IMAGE EVALUATION TEST TARGET (MT-3) ks ^ 1.0 1.1 ^£■2.8 12.5 m 2.2 u HA us u ii 12.0 IL25 n 1.4 my I 1.6 J^ ^ ^\ (moaning "CON- TINUED"), or tha symbol y (moaning "END"), whichavar applias. Un das symbolas suivants apparaltra sur la darnlAra imaga da chaqua microficha, salon la caa: la symbols — »• signifia "A SUIVRE", la aymbola V signifia "FIN". re Mapa, platas, charts, ate, may ba filmad at diffarant reduction ratios. Thosa too larga to ba antiraly included in one expoaure ara filmad beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Lea cartea, planchaa, tableaux, etc., peuvent Atre filmAs A des taux da rAduction diff Arents. Lorsque le document est trop grand pour Atre reproduit en un saul clichA, ii est filmA A partir da I'angle aupArieur gauche, de gauche A droite, et de haut en Ims, en prenant le nombre d'images nAcessaire. Las diagrammes suivants illustrant la mAthoda. / errata id to It ie pelure, 9on A n 32X 1 2 3 1 2 3 4 5 6 \* JU cou; TO 8lli By CHIEF JUS PRIJ THi: JUSTICE OF THE PEACE, AND COUNTY & TOWNSHIP OFFICER, IN THE PROVINCE OF NOVA SCOTIA. BEING A GUIDE TO SUCH JUSTICE AND OFFICERS IN THE DIS( HAR<;K OF THEIR OFFICIAL DUTIES. By JOHN GEORGE MARSHALL, Esquire, CHIEF JUSTICE OF THE COURTS OF COMMON PLEAB, AND PRESIDENT OF THE SESSIONS IN THE ISLAND OF CAPE BRETON. PR HALIFAX: INTED BV GOSSIP & COADE, AT THE TIMES (IFFICK 1837. » >*■- i ^1 ( I f ;•■.■. ■| ...» •Ill It , «, 1 1-1-, '!. I I 'i r li ' PREFACE. THE greatest civil blessings which any people can en- joy, aie, a wise and just system of Laws, and their enlightened and railbful administration. On these, more than on any other political advantages, public prosperity and happiness must depend. But for securing this favourable result, these two advantages must unite. The first, however excellent in itself, and pleasing as a matter of mere contemplation, is, when alone, insufficient for the purpose. It is, indeed, by the wise and vigilant application of such a system, not only that the happy effect is produced, but that the laws become the mo^ generally known, and most truly appreciated. The inhabit- ants of this Colony, possess a very fair portion of the first of those blessings. Although some parts of our Legal Code will, admit of considerable correction and improvement, yet upon the whole, there is in this branch of our social system, no very serious ground for dissatisfaction or complaint. Favoured with the chief privileges and advantages of a Constitution, long and generally acknowledged to be one of the best which has ever existed, for securing the blessing of rational free- dom ; and enjoying tjie protection of a mild and tolerant Government, we have far less need of any general alteration or improvement in legal regulations and establishments, in order to political prosperity, than we have for a more extend- ed difiusion of the knowledge of the Laws, now in existence, and with regard to many of them, a more extensive and active I application. On this last point, especially, it must be admit- IV PREFACE. toil, llici'c is, in this Province, a vary prevailing and injurious defect, as fur as the first steps in any criminal procedure, or the sununary execution of legislative enactments, depend on persons in the Commission of the Peace, or other local offi- cers. This may he very well accounted for, and fairly ex- cused, from a variety of circumstances, without imputing any criminal intention or neglect. The situation of such Magistrates and Officers in this country is widely diffeiient in many particulars, from that of the same persons in much older countries, and especially in our parent state; In that favour- ed land, a knowledge and observance of the laws in general, and of the various local regulations, are perpetuated from one generation to another, so tliat each grows up, familiar witlt their existence and operation. Then, as to Gentlemen^ there, in the Commission of the Peace, very many of them are per- sons of liberal or good education, and of early and extensive information respecting the Laws in general ; and many others are so wealthy or independent in their circumstfinees, as to be able to afford leisure for acquiring the requisite knowledge re- lating to their office, and for the active discharge of its dutiesi. In this comparatively infant country, our system of jurispru* dence is not yet, on some points, accurately defined or esla»- blished. Many enactments are but of recent origin, others^ are transient or fluctuating, while the numerous varieties in the description and characteristics of our population, and its con- tinual increase from different countries, tend, in a great mea- sure, to prevent any general knovTledge or observance of the- laWS»''':'' llltHi'i;^ Mihll.' UJ Hi f.r^li !!il •■)/•.»'.. 'i , j I r ! / l Ml "I V'.l I ' H With regard to our Magistrates, alihoiigh in general se- lected from tbernost suitable persons, yet the greater number, as may reasonably be supposed, are but of ordinary education and attainments, and nearly all, from necessity, being actively engaged in private avocations, they have but little leisure for PREFACE. ijiirions uic, or end oil cal ofii- irly cx- mputing of svicli feiient in ich older t favour- general, from one iliar witb sn^ there, I are per- extensive my others , as to be ledge re- ts diuiesu jurispru* or esta*- n, others liies in the Id its con- reat niea- ce of the- [eneral se- ir number, education g actively leisure lor the act]nisiiion of any particular kiiowledse of ilic f^aws. Moreover, wiib most of them, the means for obtaining that knowledge are extremely limited. The English Works on the office of a Justice of the Peace, are in general voluminous and expensive, and can hut rarely be procured' in this country; and, comparaiively, but a small part of them are of any prac- tical use to our Magistrates, especially with reference to any Provincial enactments. No publication for their general in- formation and guidance has yet been aflbrded in the colony. . The work by Mr. Murdoch, although valuable and generally useful, has, evidently, not been designed to be one of that description. It is chiefly an exhibition of our Sta< Jles in ge- neral. Now, as a very considerable part of the authority and duties of Justices of the Peace arises out of the Common and Statute Law of England, and as Precedents or Forms for their use, are of essential importance, it follows, that a work of that nature cannot form a complete and universal guide for the discharge of the almost endless variety of their duties. Then, as to the Provincial Statute^;, but few of our Magistrates pos- sess all the volumes containing them. Some have but one volume, others two, but are deficient of the rest ; and in- deed, as to the first volume, it can but rarely be procured. Besides, it most candidly be admitted, that on severfi! sub- jects, in which the duties of Justices are involved, our Sta- tutes are in such a defective, or intricate slate, that it requires the close application of a person skilled and exercised in legal investigations, lo reconcile or rightly understand them. It cannot, therefore, reasonably he expected, that plain persons, of ordinary attainments, and actively engaged in private pur- suits, should either be lilted, or will aflbrd time, for such an unprofitable and unpleasant occupation. Owing to these unfavorable circumstances, many of our Magistrates remain generally uniiiformed as to the nature and VI PREFACE. extent of their aulliurity, and the due and effective discharge of their duties ; and inconsequence, very frequently, when ap- plied to, delay or decline to act, from a '.vant of information as to their powers, or through a fear of erring, or from being at a loss in what nxanner to proceed. Ai ,n, on many occa- sions, when they commence an exercise of their authority, on meeting with embarrassments and difficulties, they feel com- pelled or induced, from the same causes, to stop short of its full and effectual exertion. The concurrence of these disadvantages and evils, pre- vents any general diffusion of the knowledge of the penal part of our Laws ; while a disregard or contempt for the authority of Magistrates, is engendered and perpetuated, so that the dar- ing violator of social regulations, or the rights of individuals, often proceeds in his course of transgression, without the fear or infliction of penal consequences. {„s j ,r ; rn ' > > j I, Considering all these unfavorable circumstances, it seems highly important and requisite, that some work should be af- forded for the special information and guidance of our Magis- ti-ates ; particularly, as the sphere of their duties is continually increasing. ~ ' The present Publication is intended to answer that pur- pose. It was designed, and would have been executed some years ago, but was postponed, from a desire that the propos- ed revision and consolidation of the Provincial Statutes, should previously take place. It is much to be regretted that this most desirable object has not yet been accomplished, although two Legislative enactments have, at different periods, been made for the purpose, y 7I;a>;I a tinp isj^ t ■atf^ai. , uia^mt^ 3- A digression may here be excused, for the purpose of remarking, that this measure seems particularly requisite with reference to some of the higher branches of our Criminal Code, in which the severity of the punishment appears disproportion- are. PREPACK. Vil discharge when ap- forinaliot) •om being any occa- liority, on feel com- lort of lis jvils, pre- penal part 3 authority at the dar- ndividualsf lut the fear s, it seems )uld be af- 3ur Magis- continuaily r that pur- uted some be pro pos- ies, s hould that this I, although |iods, been )iirpose of luisite with iinal Code, jioportion- •■ i 'A i ed to the oOence. These instances of the kind may be men- tioned, in which death is adjudged in every case of malicious- ly burning a cock of hay, or stack of straw or wood, — break- ing down a dyke or bank of a river, whereby lands are over- flowed,-^ir personating bail. In none of these cases, is it in the least degree probable, or even imagined by any one, that such punishment will ever take place. Such enactments, therefore, cannot bo said to avail, even for the purpose of in- timidation or restraint ; although they may often give rise to^ invidious and unjust reflections on the whole of our Criminal Code. Such a revision would doubtless also lead to a more full discovery of this important defect in many of our Statutes, — that although it is directed that the penalties thereby impos- ed shall be recovered before Justices, no final process whatever is mentioned or referred to, for enforcing the payment, or in- flicting any other punishment. It being clear, that in cases of this kind, no such process can be issued, such enactments arc, in eflect, little else than nugatory. , .. ■ As there is still no prospect of such a general revision of our Statutes, it has been thought best, that the publication of the present Work should no longer be delayed, and, accord- ingly, it is now most respectfully oflfered for public inspection and use. ■< } i^.tMi f-.i- ,!' ■.•r! • .-.i-; '^- ••,'• • ■= »' '• '(.r:--vi/.' t\ The plan of it, is simply this ; — It professes to combine the Common and Statute Law of England, with all our own Legislative Enactments, relating, or in any way referring to the oflice and duties of a Justice of the Peace in this Province. With reference to the execution of the work, it is proper, that on some parts of it, brief information should here be afford- ed. In the flrst place, it must be observed, that it is almost exclusively in nded for the use of Magistrates when required tp act out of Sessions. It was thought unnecessary to treat of their proceedings when convened in General Sessions, by rea- viii pri:fack. \^ »uii lliat^iuittJenion selected iVuin llic li'f^l profossioti, ore now presiding in those Courts, where, in general, the Magistrates of the most ability anil intclligenco arc assembled, and wliero referenco can always be had, to some of (he valuable Knglisli Publications which Ircut of ilie proceedings in Sessions, as well as to the whole of the Provincial Statntee* ; and olso, as time and facilities are there afTorded for (he foil and deliberate con- sideration of every matter. Moreover, it was thought desirable g^o confine the Work within the most moderate compass, con- sistent with all needful information to Magistrates. On some points, however, proceedings in the Sessions are treated of. With regard (o the Provincial Statutes which concern the duties of Magistrates, it has been deemed suHicient to recite only such of them, or such parts thereof, as ore now in force, It may therefore bo taken for granted, that every enactment of that nature, which is not set forth in this work, has cither been expressly or virtually repealed, or entirely altered or annulled. Neither has it been thought requisite, except in two or three instances, to recite or mention any Acts which are mere- ly of a local description- The duration of a Statute, as to being perpetttal or only temporary, is almost invariably noted at the close of its recital. In general where any subject has been found to branch out into a number of parts, such an order of treating it has been adopted, and such divisions have been made, that all the enact- ments and information relating to each part, or having a bear- ing upon it, are brought together under one view ; so that the reader may be saved the trouble of a referenco to any other di- vision or litle. * For every principle and position which is stated, the au- thority is given, and with regard to the Provincial Enactments, especially, wherever there has appeared to be reason for doubt or uncertainty as to their intention or construction, or the pro- PREFACE. ix gislrates d where English s, us well , ns time rate coii- desirablc tass, con- On some reatod of. )ncern the to recite V in force, actment of jither been r annulled. [ in two or I are mere- uil or only its recital' to branch it has been II the enact- |ing a bear- so that the ly other di- * . led, the au- jnactments, Id for doubt , or the pro- rrndings to be had under them, the same iiave been noticed ; and in such cases the Author has hut seldom felt himself at li- berty to express any decided opinion. With reference to instructions for the guidance of Justices, and as to Precedents or Forms, in order to keep the Work within the most moderate and convenient limits, instead of set - ling them forth, particularly, and in nearly the same words, under n great variety of Titles, it was thought suHicient, on n number of subjects, to refer to the general instructions and Forms given imder certain comprehensive Titles ; and which will be found to apply and serve in all cases of the same gen- eral class. This has been done, especially, with regard to In- forinations or Complaints, — Writs of Summons, — Warrants and Commitments. Finally, it is thought no presumption to say, that full reliance may safely he yielded, as to accuracy with respect to recitals and references, and particularly, ns to all the Pro- vincial Enactments being set forth, which are requisite to be recited or mentioned. The Author feels, that on these points he has no cause for anxiety or apprehension. He has, again and again, carefully and minutely examined and collated the several Provincial Acts, having any relation or reference to the oflice or duties of a Justice of the Peace ; and having, for many years, been extensively and actively engaged in the dis- charge of those duties, and also, having for some time had this Work in contemplation, he has felt the more encouraged in proceeding to its completion, and in giving it publicity. As it was not in his power to obtain any assistance from friends, by suggestion or otherwise, he has, on that score, no ac- knowledgments to offer. W^haiever may be the defects of the Work, he alone must bear the blame of them, while iheknow- j ledge that it is found useful, which he trusts will be the case, [will yield him very high and enduring gratification. /5 a'>^.'^?!i!'i :i hoitJon rKi'^tl ^'rii «trr'C' nA\ .faoi!' ilfxin hcii ')'! j >i; i>^ir, doitlv/ bf"; ; soiji P :»7v.>;'j(('«'){jj;ioi i-i!fin93 •minm novi|i giiii(/'l -«^3 ••illif?-'" 'Jit! k' >-J!-f" |k4 Hi J. •■(•;: ilHG v(l(* 'mI tit his ^w fhr-i^ fVHiii'ffHp'j ,'jaol} jsajy ^GilsiirJ' .^r-fllo Iiv!:? (. .ciH'jmHiamo'J h^'.<: llul .'ilrfi ,7i>»! ."if!;l),':>;n8.'. fam' ,n')nii-)!'.tlyi bus f-i !"*'>'!; sr niR^B »?iui oH ;ilui'iU-''ri'!i|(jK ;(i vr-JIXli:; inl 'i'^UHD on p.Bil V-i'. rtA ,^fn/8{l litis ; m-h^H hib 'jo 'svu-iiil. ?; 'lo /ailci) 'iu 'loffiu siih lwB:>^Ji)3 vd ,<^bf»t.i ■; ./OITOiiaiUi lYiI . . . u V I N T R D U C T 1 N M >,;, xi- 1. 11/ H\hii;<'\ COISSISTING OF TWO PARTS?. u: nh !>9u« yd' ;)i)-n 'f| li )rcii) 03h*;'j-irp') CONTAINING, viurrr^ buH ; »i)iil (nub .(I I. Certain Abbreviations made use of in this n» Some General Rules to be observed in the , CONSTRUCTION OP STATUTES OR AcTS OP •■•u>{imi o»l Uh! Pabmame^^.T. , I. Certain Abbreviations made use of in this Work. j. i-- yO .ui...i usilice. IN order to keep the Book within a limited compass, the following Abbreviations are made use of : — 1. The word Justice is always to be understood to mean J Justice of the Peace^ when not otherwise expressed, -^-i "• ' 2. The words one Justice shall be understood to signify One Justice. one or more Justices, so that what is directed to be done by one, shall not be intended thereby to exclude others from join- in£ with him. "• -^/ji- - uj id... ... ■ . t jtij iw ->K4»ici>i» ^ 3. In like malineV, two Jtesh'ces, when not otherwise ex- Two Justices, pressed, shall be understood to signify tioo Justices or more> 4. So also a conviction on the oath of one withessy shall One Witness. be undei-stood to denote one witness or more. 6. And li0O witnesses, shall denote two or more witnesses. Two Witnes- 6. The Justices in Sessions shall signify the said Jusli- Majority. ceB, or the major part of them. ■<■» • '■ 7. The word a- 9. The word Ofcrsccr shall be understood to mean Oicr- uvei.seei. " seer of Ike poor., where not expressed olherwise. - ^ .bijuv/ -1' II |i XII Poor. Pt'naltv. Overplus. I^uids. Blank Spaces. Fisureii. Continuuiice of Statutes. f"'iting of Sta- tutes. INTRODUCTION. 10. Where a penally, or part thereof, is expressed to be given to the poor^ that shall always be understood to denote, the poor of the township where the offence was committed^ if not otherwise limited. 1 1 . Where a penalty is to be recovered before the Jus- tices of the Peace, it is thought indispensable to insert partic- ularly the manner of recovering the same ; but where it is to be sued for in any of His Majesty's Courts of Record, it is judged not necessary to set forth the special method of proce- dure there ; and generally, where it is expressed that a person shall do, or not do such a thing, on pain of such a sum, with- out more, it shall be understood, that such penalty is not re- coverable before the Justices of the Peace, but only in the Supreme Court, or the Courts of Conmion Pleas. 1:2. In all cases of distress and sale^ it shall be under- stood, that the overplus must be returned to the owner, after the sum or sums to be thereout deducted, shall be satis6ed and paid. ,;;'•, -. ;,v.i! ; ' ■■'•••.i Ol T.'lr;0 ^'\ 13. Lands shall be understood to stand for lands, tene- ments^ and hereditaments. , j 14. In the blank spaces for the names in the precedents, instead of inserting initial letters arbitrarily, it is thought it may be some help to the memory, that A. 0. shall signify the Of- fender ; A. I. the Informer ; A. W. the Witness ; A. M. the Justice of the Peace, and the like. 15. Also for brevity's sake, sums of money ^nd other numbers are sometimes expressed by figures, and not in words at length ; but it is to be remembered, that in the Forms of Warrants, Convictions, and other proceedings before the Jus- tices, they ought to be expressed in words at length, and not in figures. . .^ ■ ,\,.,^. Hi-^u hm., v. j.v '•v,.SMr\, ariT Jt 16. Where a Statute is said to be in force until such a day, month, and year, &c. it shall always be understood to im- ply, — and from thence to the end of the then next Session of the legislature. 17. Ill reference to Statutes, it is judged sufficient for the understanding thereof, to quote ihose passed in the Pro- vincial Lc2,islatiire, in the following manner, ^iz. — a i»al St KingC eigbtee Statute are to I In co«isist( not to i atrons i occasioi long sta date, ai perfectl; regard t< whose u exceptio books ar useless. Mil':} Son CON hed II. TO vattons, i J rules, to 1 of ParJiai 1. £ a precede latter be c former, ra 2. A tive expre law ; and Statute, a 200. INTRODUCTION. Xlll pressed to to denote, tied, if not )re the Jus- sert partic- lere it is to ecord, it is id of proce- lat a person sum, willi- y is not re- only in the 11 be under- jvvner, after satisfied and lands, iene- precedents, ought it may nify the Of- , A. M. the [!|i'.r y und other not in words le Forms of fore the Jus- ;th, and not until such a I'slood to im- tt Session of Isufficient for in the Pro- 320.2, c. 13, §18. 1 V. 17, tosignify, the Provin- <»al Statute made in Uie thirty -second year of the Reign of KingCreoVge the Second, Chapter the thirteenth. Section the eighteenth, and contained in the first Volume of the Provincial Statutes, at |iage:sev«nteen. All StatiUQS not so designated, are to be considered English Statutes, » j1..^j, - ..* In order to keep the Work within the smallest compass, consistent with all due information and reference, it is judged not to be needful to prefix a table explanatory of the Abbrevi- ations in the names of books and cases cited as authorities, or occasionally noticed ; especially, as all such are either of such longstanding, and well known authority, or of such modern date, and so frequently referred to, that the Abbreviations are perfectly familiar to every Gentleman of the Law ; and \>ith regard to the Gentlemen in the Commission of the Peace, for whose use the Work is chiefly designed, with but very few exceptions, they do not possess the means of referring to such books and cases, and therefore to them, such a table would be useless. II. Some general Rules to be observed m the CONSTRUCTION OP STATUTES OR AcTS OP PaRLIA- HENT. ■ .Ml?) ■■nil ;n JJ6l?Rtr:'9d t I ^fM'jFf-: U .»fra.;jl'M!>f>i nii K/ TO avoid the very frequent repetition of the same obser- vations, it is thought proper to premise the following general rules, to be observed in the construction of Statutes or Acts of Parliament. k;...u, .. j: ,:.'v,o 1. Regularly, a Statute in the afiirmalive dbtli t)orrepe\)1 a precedent affirmative Statute. II Rep. 61. But if the latter be contrary to the former, it aniolints to a repeal of the former. 1 Ld. Raym. 160. 2. A Statute made in the affirmative, vtiihout any nega- tive expressed or implied, doth not take away the common law ; and therefore the party may waive his benefit by such Statute, and take his remedy by the common law. 2 Inst. 200. liofi I'j.'.im .ai'jift ;'!3riil»:V)-^{>tii v'fMiiini)>'{{.'Y(J vbom^f ■ 3. By repealing of a repealing Slalule. the first Statute •Ml' <«J'» ■' ; -If:). i: I') (.'•/'( ■'il\ ■ '(■ ../.•Ji.'i . i .-.'jm; ■r 1,;'t V/,iiI ill' Mil .h'li! iit-MM J ll(:.! i •; .!(■ .niitl/' .■•i|,: .t.(li:I>: ' iMiiii' > 1 til' / ;; 1 INTUODUCTION. is revived. Ilcttdings upon the Statutes ParL If an Ar of Parliament be revived, all Acts esfiplanatory of that Act so revived; are revived also. 2 fiutt. 747; If a Statute ex- piroj and aftenvards be revived again by another Statute, the law derives its force from the first. 4 T. R. 109* .k-i'uh^u.. 4. Regularly, where an Act of Parliament gives a power or interest tb one person certain, by this express designation of one, all others are excluded. 11 Rep. 59, 64. 5. In all cases where Justices may take examinations, or other accusation or proof, though the Statute doth not ex- pressly set down that it shall be upon oath, yet it shall be in- tended that it shall' be upon oath. Dalt. c: 115. 6. Generally, it is holden, that where a Statute appoints a thing to be done by one or more Justices, . without giving any appeal ito the. Sessions ; there, the Justices in Sessions may do that thing ; but where an appeal is given to the Sessions, the Justices in Sessions cannot proceed originally therein, be- cause that method would take away the power of appealing. 7. Where a Statute makes a new offence, which was no way prohibited by the Common Law, and appoints a particu- lar manner of proceeding against the offender, as by a cotlimit- ment, or action of debt, or information, without mentioning an indictment, it seems to be settled at this day, that it will not maintain an indictment, because the mentioning the other me- thods of proceeding only, seems impliedly to exclude that of indictment : yet it has been adjudged, that if such Statute gave a recovery by action of debt, bill, plaint, information, or oth- erwise, it authorises a proceeding by way of indictment. 2 Haw, C. 2-5, § 4k/iisi;ti!!!t- -jJl w. ^inin/d u .vf'lfli'.m'i.J{ . i M(l And if there be a prohibitory clause in the Act, the of* fender may be indicted upon the prohibitory clause, notwith- standing the penalty : but otherwise it is, where the Act is not prohibitory, but only inflicts the forfeiture, and'specifies the remedy. 2 //ia/c, 171. 1 Burr. 543. But where the offence was antecedently punishable by a comiiK)n law proceeding, and a Statute prescribes a particular remedy by a summary proceeding ; there, either method may be pursued, and the ptosecMilor is at liberty to proceed either ■ an Ar of lat Act so Statute ex<^ tatute, the I. - es a power designation I. 'jil-itW)") aminationSf 3th not ex- shall be in* Mi ilijiir 4"''' jte appoints hout giving essionsmay le Sessions, therein, be- ippealing. ^hichwas no :s a particu- y a cortimit- mentioning at it will not le other me- iidfe that of Statute gave ion, or oth- ictment. 2 ct, the of- , notwilh- the Act is nd'specifies hable by a a particular nelliod may )cced either HVTBOBUCTION at cQimnonilaw, or in the method prescribed by;!he SlatiKo ; because in tbat case the sanction is cumulative, and doth not exclude the common law proceeding, 2 Burr. 803. 8. Rut every contempt of a Statute is indictable, where np. other punishment js limited. I Haw. c. 22, § 5. . ,9 . And wheresoever an Act of Parliament doth generally prohibit any thing, the party grieved sjball not only bave his action for his private relief, hut ihe ofiender shall be punished at the King's isuit for the contempt of the law. 2 Jnst. 1 63.. (),li i:;10. All actions, indictments, or informations, on penal Statutes, for.aoy forfeiture limited to \he King, shall be brought within two years after the offence committed ; if limited to the King and prosecutor, then within one year ; and if it is not sued for within that one year, tbeo the King may sue for the same within two years after the expiration of that mo year ; and not otherwise. 31 EL c. 5, § 5. That lis to ,say, unless where it is otherwise specially directed lby)Si]fase()ttent Statutes. 11. The preaD&ble or f ehearsal of a Statnte is ;deemed true; and therefore good arguments imay be /drawji frcun ihe preamble. 1 Iml. H. ■'■■ ■"' n^rfp •/.;.<■( iisrsi Sn^nfj..,.., -itw^v But the. preamble shall not restrain the operation of the enacting part ; as where the preamble recites only a particular inconvenience, this shall not . hisder a subsequent enactii^ clause from being understood in that xnore general sense whidi the words would otherwise and of thenwelves. import, so as to take in other inconveniences of the like kind, although not spe- cified iQ the preamble. S M)d. 144. 1 P. Wtn. 320. 12. Where a Statute directs the doing of a thing, for .the sake of justice, or the public good, tlie word muy is the same as the word shall : as where the Statute of the 1^ & 14 Ch. 2, c. 12, enacts that the Overseers may make a rate to reim- burse ;the constables, this is construed they shall ; f they Are compellable so to do. 2 Salk. 609. ^i'- 1«. ft •»fol .<' '(.flw ;' 13. Where a Statute directs a penalty to be recovered in any Court of Record ; this shall not be intended of the Quarter Sessions, unless it be specially named in such Statute ; but only of the Superior Courte of Record. 6 Rfp. 19, 20. 2 Haky 29, 30. mh. m v.nr ..n.: ui '.■jj-i'i '■; li^ •'yj\i-t)l •aniill -t'lilnjU .1) ifiii'.f'H I'm ill 'Ui I.- ll'.' Wlieie 110 method of prosecution U appointed. Wliere the defendiint may be pros- ecuted both bv the King and the party {»rieved. In what tiint! prosecution shall be, on panal Statutes Proamkle, _ . .tl!.' •iUfK'tlll :ll.."> " May do" such u thing, how to be un- derstood. Tourt of Re- cord. i.lli'll-Vfiu.iX 1 i.ii-ii IR' XVI Higher Ihings not intHiideii, where the iu- ferior are first ineiitiuned. Power to con- vene the par- ties. .,. ,.-i,ij .il .'I,. -11 ili<«! Ii'ilii I 'aai/'l ''lif V ' Mn,.j ..Il I,||.' .•11'! '■.■[ >: !>.l ... .;it !:.,L Necessity of Muniinoning the party. Two Justices to be both to- gether. Informer's Oath. aiiidi ji li >fi^ Confession. ijii.i Discretionary powt r. INTRODUCTION. 14. It is a general rule in the construction of Statutes, that where things of an inferior degree are first mentioned, those of a higher dignity shall not be included under general subse- quent words. 2 Rep. 46. 2 Havk. c. 27, § 124. 15. Where a Statute gives power to the Justices to re- quire any person to do a thing, as to take the oaths, the law impliedly gives them power to issue their precept to have the body before them ; for when the law grants any thing to any one, that also is granted, without which the thing itself cannot be ; and it is against the office of the Justices, and (he autho- rity given them by the law, that they shall go and seek the par- ties. 12 Rep. 130, 131. oo;ioUo9f(t isUft ffUior 07/J niihiv/ 16. Where a Statute gives power to the Justices of the Peace, to hear and determine an offence in a summaiy way, it is necessarily implied and supposed, as a part of natural jus- tice, that the party be first cited, and have opportunity to be heard and answer for himself; 1 JTat^. c. 64, § 60. .>i.. 17. Where an Act of Parliament giv:es power to two Justices, finally to hear and determine an offence, it is neces- sarily supposed that they shall be both together, or which is the same thing in other words^ that they shall hold t Special Sessions for that purpose. And the like is, when they are to do any other judicial act, as to make an order of bastardy, or adjudge the settlement of a poor person. 1 JBum'*, Intr. 24. 18. Where a Statute appoints a conviction to be on the otah of one m'lnes^, this ought not to be by the single oath of the informer ; for if the same person shall be allowed to be both prosecutor and witness, it would induce profligate persons to commit perjury for the sake of the reward. 2 Ld. Maytn. 1545. 19. Where a Statute directs, that a person shall be con- victed of an offence upon \heoath of one or more witnetseij and says nothing of the confession of the party ; yet if the offender shall before the Justice confess the offence, he may be cod- victed upon such confession ; for confession is stronger evi- dence than the oath of witnesses. Dalt. 10^, 162. l Str.. 20. Where an Act of Parliament gives power to the Justices of the Peace, to take order in any matter aceofding one year at twent] unless it 22. solemn t an oath, be allow solemn a 23. he shall j every for Exc interest, Rep. 90. For against hi his duty c have the : same, up feiture in 24. empowen him to do sence, shi tice may < comply. 25. no time w INTRODUCTION. XVII I to their discretions ; this shall be understood according to the rules of reason, law, and justice, and not by private opinion. 5 Rep. 100. 8 How. St. Tr. 55. 21. It may be laid down as an Invariable rule, that the law favours liberty ; so that In the construction of a penal Sta- tute, where the interpretation is dubious, that sense must be pursued (all other things being equal,) which is more beneficial to the subject, or the party suffering. Thus, where an Act directs, that the Justices shall commit an offender to prison for twelve months, the Justices may not alter the words and commit him for a year ; for in this respect twelve months and one year^ are not the same : but the months must be computed at twenty-eight days to the month, and not as calender months, unless It be so expressed In the Act. 22. In all cases wherein an oath shall be required, the solemn affirmation of Quakers shall be allowed Instead of such an oath, with this exception, however, that no Quaker shall be allowed to give evidence In any criminal causes, by such solemn affirmation. By the 33 G. 2, c. 2. 1 V. 48. 23. To say that a person shall /or/et7 generally, or that he shaW forfeit to the King, is all one, for the King shall have every forfeiture not otherwise limited. 1 1 Rep. 60. Except where a forfeiture is given in lieu of properly and interest, for there it shall go to the party Injured. 1 Roll. Rep. 90. For wheresoever a Statute gives a forfeiture or penalty against him who wrongfully detains or dispossesses another of his duty or Interest ; In that case, he that hath the wrong, shall have the forfeiture or penalty, and shall have an action for the same, upon the Statute, and the King shall not have the for- feiture in that case. 1 Inst. 159. 24. It Is said that wheresoever a Justice of the Peace Is empowered by any Statute, to bind a person over, or to cause him to do a certain thing, and such person, being In his pre- sence, shall refuse to be bound, or to do such thing ; the Jus- tice may commit him to the gaol, to remain there until he shall comply. 2 Haw. c. 16, §2. 25. When a Statute appoints imprisonment, but limits no time when ; It shall be Immediately. 8 Rep. 119. Constructioa of Pena! St«- tutes Quakeri' af- firmation. Forfeiture. •/l Where a pow- er of comniit- mcnt ia im- plied. Impriaonment when. ■;< XVIll INTRODUCTION. Inipriiionment how iong. Statute mak- ing an oflTenca felony. Misprision. Infants. Doubtful words not to make felony. Benefit of Clergy; Forfeiture of dower. Damages. -"^-'-•- ■; ■ - Treble dama- ges. DietreM«iid Saie. .vu:,- 26. When a Statute appoints imprisonment, but limits no time how long ; the prisoner in such case must remain at the discretion of the Court. Dalt. 410. -Jv '• 27. Wherever a Statute makes any ofTence felony, it incidently gives it all the properties of felony at common law. 1 Haw. c. 38, § 18. 28. Therefore, an Act of Parliament that makes an of- fence felony, doth consequently introduce the punishment of concealing, that is, misprision of felony ; and every offence made felony by Act of Parliament, includes misprision. 1 Hale, 708. 29. An Act making a new felony, extends not to infants under fourteen years of age ; but if they be of that age it binds them. 1 Hale, 706. 1 Russ. 8. ^^ ' '":.!' 30. An offence shall never be made felony, by the con- struction of any doubtful and ambiguous words of a Statute ; but in every such case, it shall amount unto no more than a high misdemeanor, punishable by imprisonment, or the like. 1 Haio. c. 40, § 2. 31. All felonies by the common law have the benefit of clergy ; therefore, where a Statute enacts a felony, and says, the offender shall suffer death, clergy lies notwithstanding, and is never ousted without express words. 3 Inst. 73. 2 Haw. c. 33, § 24. 32. Saving of dower, in a Statute making an offence felony, is superfluous ; for by the I Ed. 6, c. 12, § 17, dow- er is not lost by the felony of the husband. 33. Upon an indictment or other criminal prosecution, no damages can be given to the party grieved, but it is every day's practice in the Court of King^s Bench, to induce defend- ants to make -satisfaction to the prosecutors, by intimating an inclination on that account to mitigate the fine due to the King. 2 Haw. c. 25, § 3. 34. Where a Statute gives treble damages, the Justices are not to assess the damages, and then treble them ; but the Jury ought to find the damages, and then the Justices are to treble them. Cro. Car. 449. 35. In all cases where a Justice is required by any Sta- c ^?. INTRODUCTION. XIX tute, to issue a warrant of distress for the levying of any pen- alty inflicted, or any sum of money directed by such Statute to be paid, it will be proper for such Justice granting the warrant, therein to order and direct the goods distrained to be sold with- in a certain time limited in such warrant, (if no particular time for the sale is specified in such Statute,) so as such time lim- ited in the warrant, be not less than four days, nor more than eight days, unless such penalty or sum of money, together with reasonable charges of taking and keeping the distress, be sooner paid. And the Officer making such distress, may deduct the reasonable charges of taking, keeping, and selling the said distress ; and the overplus (if any,) shall be returned to the owner. 36. An Act inflicting a penalty (or a second offence, must Second always be understood, after conviction and judgment for the ""•'"•^*- first oflcnce ; and the second oflence must be committed after the flrst conviction, and judgment thereupon given : for it doth not appear to be an offence, until judgment by proceed- ing of law be given against the offender. And the indictment for a second oflence, must recite the record of the first conviction ; and upon the evidence, the re- cord of the first conviction must be proved : but the matter of the first conviction, shall never be re-examined, but must stand for granted. 1 Burn^s Introdu. 26, 7. 37. By the 10 G. 4, c. 26, 4 V. 49, " The Clerk of Dnte of com- His Majesty's Council in General Assembly, shall endorse, I^^Se. in English, on every Act of the General Assembly, the dale, month, and year, when the same shall have passed ; and such endorsement shall be taken to be a part of such Act, and to be the dale of its commencement, when no other commence- ment shall be therein provided." Perpetual ABSEI ACCEJ AFFR^ ARRE{ ASSAU RY, BAIL, BASTA BEEF^ BILLE' BILLS BLASP BREAE BRICK! BRIDE BRIDG BURGL BURNIJ CARRIE CATTL CHEAT CLERK COALS MINE COIN, COMMr COMMO COMMO I ; r I' • 0/ . ■I « '(/ i I "./ I I 1,1 ij ^ TABLE OF THE ' !^r. NAMES OF TITLES. ' . r' -»- ) ':. ' ,■ Page. . Pnge. ABSENTEES, . . 1 CONSPIRACY, 103 ACCESSARY, 2 CONSTABLES, . 106 AFFRAY, . . 9 CONTAGIOUS DIS- ARR£,; ,,, '.- ^ -....,. - Puge. WARRANT, , . 676 WEIGHTS &MEA. SURKH. . . 583 WELLH k PUMPS, 686 WIFK, , . . 586 WITNESSES, . . 587 WOODS, . . 689 WRECK, ... 589 PUVf(i'hi Ui'^hkrfi fiort* A-ma tt^fii '.?'&-•!'' Hi;b r. our^;". '..fl' Yftr.'if! ijd l?rJ':' THE ^i■,^r,\■^^ hn<^ »'j«!r/;/i otf} i *. ,♦■»«*{) JUSTICE OF THE PEACE, &c. J" M t t.':>(JiTWf'K<^' Otis HJ5 {■•^Jij' liiiili// r.timn 'iin r-nq (ton Vo s^oefin ABSENTEES. BY the 5 G. 3, C. 5. 1 V. 110. Non resident proprie- tors of lands are made liable to pay their proportion of all county and town lates, and to perform labour on the highways, in the counties and townships wherein their lands are situated. Only the first clause of the above statute, which declares the liability of proprietors is now in force ; the other clauses, which respect the enforcement of such liability, being virtually repealed by the 33 G. 3, C. 6. 1 V. 317, made in amend- ment, by which it is provided, that, — *' Where no person shall appear to pay such rates, or perform such labour, and no goods of the proprietor can be found within the county, whereon to levy, to satisfy such rates, or the fine for the non-performance of such labour, the collector of rates, or the surveyor of high- ways, shall report the same to the next Spring Sessions, and such lands, by order of the Sessions,' may be let by the Clerk of the Peace for one year, to pay the sAme with the expenses ; and if no person can be found to take them on lease, represen- tation is to be made to the Supreme Court, by the Clerk of the Peace, and tliat Court, after causing reasonable means to be used to ascertain and notify the proprietor, may direct a sale of a part, or the whole of such lands, to satisfy such rates or fine, and expenses, and a deed of conveyance thereof shall be executed by the Clerk of the Peace. If there be any sur- plus from such lease or sale, after paying such rates or fine with expenses, the same is to be paid to the proprietor, if known, or otherwise paid into the County treasury, and n not claimed within 3 years, to be at the disposal of the Sessions, for public purposes. Collectors, Surveyors, and Clerks of the Peace, neglecting their duty herein, to forfeit 40 shillings, to be ap- plied for relief of the poor. " Perp^ual. It appears desirable for many reasons, that this statute shbuld be universally and strictly carried into effect ; psfrticu- larly, as this would enforce, otily a just contribution to public 1 •■^UKlI.'ll 1 ^:■.i.'0*t.^ nl ABSENTEES. I! il Acceisaries only inCapital fttlonios. In felonies by Statute charges, from such non resident proprietors, and would have a tendency to induce them to take n»ore prompt and effectual means for the sale or improvement of their lands. It is not thought requisite to insert any forms under this title, as the leases and conveyances will be nearly the same as in ordinary cases, with only the difference, of briefly reciting the liability and neglect of payment, — advertisement to let or sell, — means used to notify the proprietor, and such other requi- sites as are prescribed in the statute. The enforcement of payment by distress and sale, where goods, &c. of the proprietor are found within the County, will be the same as in other cases of non payment of rates or fines, for which, respectively, see Titles — Rates — and Highways. ;:■; Xi i;v .;>.,■)■;: ••"•'• M ■'"■': ''•'<: ' '''Ji'.! iw ■:• .■ ,-.• (' ■ V >!' . ' ;''.'fi'f 'h*<. 7.1'iifn ;/..:-^--v-- ACCESSARY. ■■ -lu...:-.', > I. Of Accessaries in general. '\ li '. i i! ■■>;'■ H. Of Accessaries before the Fact. ■ ,1 li iM III. Of Accessaries after the Fact and Receivers. IV. How Accessaries and Receivers are to be ! proceeded against. ., I ■' Accessary^ is he that is not the chief actor, but one that is concerned in the felony, by commandment, aid, or i^eceipl. ; ^- In high treason, there are no Accessaries, neither before nor after ; for the consenters, aiders, abettors, and knowing re ceivers and comforters of traitors, are all principals. So in cases that are criminal, but not capital, as in petit larceny and trespass, there are no Accessaries ; for the Accessaries before, are in the same degree as principals ; and Accessaries after, by receiving the offenders cannot be in law under any penalties as Accessaries, unless the Statutes that induce those penalties do expressly extend to receivers or comforters, as some do. 1 Hale, 613. r'- -! '^i •>' .' < ,^'jrff' Therefore this title of Accessary, refers chiefly to capital felonies, whether by the common law, or by statute. Concerning which L. Coke observes generally, that when an offence is felony, either by the common law, or by statute, all Accessaries, both before and after, are incidentally included. Co. Inst. 3—59. And Mr. Hawkins says, I take it to be settled at this day, that in all cases, where a statute makes any offence trea- son, same felony the CO I A I; inent before I ning o Parliar pal, a( I done ir ing all to do t A clergy, after ; by excJ M absent counsel, if he be Burn's, So sent at t only dot if one pr nothing, hold the deliver I1 sent, aid if severa one com other pui signed hi proper s( the esca They are the law,- 3.50. Bi he hinder sary, altj; gcnce he: 216. 2 . \ \ ^\ N ACCESSARY. a roulcl have I efFeciual under this le same as ly reciting It to let or ther reqni- cement ol proprietor s in other spectively , Ir YJi '■Ut.. '.II ■ " tu-.. f\'-'i' ECEIVERS. RE TO BE rv-i (■>; •(p,-;-!('. !■ ;> (•: -v'''ti one that is {receipt- ither before :nowing re- ds. So in \larceny and ries before, laries after, ly penalties |se penalties IS some do. to capital I, that when by statute, tly included. led at this Iftence trea- son, or felony, it involves tlie receiver of the offender in the same guilt with himself, in the same manner as in treason or felony at common law, unless there be an express provision to the contrary. 2 Haw. c. 29, § 14. And akhough it be generally true, that an Act of Parlia- ment creating a felony, renders consequentially Accessaries before and after within the same penalty, yet the special pen- ning of the Act sometimes varies the case — so that Acts of Parliament may diversify the offences of Accessary or princi- pal, according to the various penning thereof, and so have done in many cases. 1 Hale, 614, 615. The word command, is to be considered as comprehend- ing all those who incite, procure, set on, or stir up, any other to do the fact. 2 East's. P. C. 641. A Statute excluding the principals from the benefit of ^«"^'^' °^ clergy, doth not thereby exclude the Accessaries before or after ; neither doth a statute excluding the Accessaries, there- by exclude the principals. 2 Haw. c. 33 § 26. t J. •ii's Av^lfe , Of Accessaries before the Fact. > ^n Accessary before the fad committed, is he that being absent at the time of the felony committed, doth yet procure, counsel, command, or abet another to commit a felony. For if he be present, he is not an Accessary but a principal. I Burn's, 2. ''"• s ^i/ov;'; .ii-vmi'; f^:'!/5 na nan ,v[ ; ";iii n: i, So if divers come to commit an unlawful act, and be pre- sent at the time of the felony committed, though one of them only doth it, they are all principals. — HaWs Sum. 215 So if one present mce the other to strike ; or if one present did nothing, but yet came to assist the party if needful ; or if one hold the party while the felon strikes him ; or if one present deliver his weapon to the other that strikes : for they are pre- sent, aiding, abetting, or comforting. — HaWs Sum. 216. So if several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each taketh the part as- signed him, some to commit the fact, and others to watch at proper stations to prevent a surprise, or to favour, if need be, the escape of those, who are more immediately engaged. They are all, — provided the fact be committed, in the eye of the law, — present at it ; and therefore are all principals. — Fost. 350. But if one came casually, not of the confederacy, though he hindered not the felony, he is neither principal nor Acces- sary, although he apprehend not the felon ; but for his negli- c;cnce he is punishable by fine and imprisonment. HaWs Sum. "il6. 2 Haw. c. 29 ^ 10. 4 ACCESSARY. .,- As to Accessaries some diversities arc to be noted : as, (1.) H'hen Uie principal doth not accomplish the fact, altogether in the same sort, as it was beforehand agreed between him and the Jlccessary ; And therefore, if one command ano- ther to lay hold upon a third person^ and he lays hold upon him and robs him, the person commanding is not accessary to the robbery. — Dalt. c. 161, p. 369. But if the command had been to beat him, and the party commanded doth kill him, or beat him so that he dielh thereof, the person commanding shall be accessary to the murder ; for it is a hazard in beating a man, that he may die thereof. Id. ,:,\x\\. \ , .; tM*» 7iw ■n (2.) He that commands or counsels any evil or unlaioful act to be done,* shall be adjudged Accessary to all that shall ensue upon the same evil act, but not to any other distinct thing — As if one command another to steal a horse, and he steals an ox ; or to burn such a one's house, and he burns the house of another ; these are other felonies than he commanded to be done, and therefore he shall not be adjudged Accessary to them. Dalt. c. 161, p. 369. (3.) But if a person commit the same felony, which ano- ther did counsel or command to be done, though he dolh it al another time, or in another place, or in another sort than loas commanded, or counselled, yet here such person commanding or counselling shall be Jlccessary. As if he doth counsel to kill a man by poison, and he kills him with a dagger ; or to kill him one day, and he kills him on another day ; in these and tlie like cases he shall be Accessary to the murder. Id. ,.,, (4.) llkose offences which in the construction of law are sudden and unpremeditated, cannot have any »Sccessaries before. As killing a man by misadventure in his own defence, or man- slaughter. 1 Hale, 016. (5.) It seems to be generally agreed, that he who barely conceals a felony tvhich he knows to be intended, is guilty only of a misprision of felony, and shall not be adjudged an Jlcces- sary. 2 Haw. c. 29, § 23. By tlie 32 G. 2, C. 13. 1 V. 15, the counsellors, aid- ers and abettors, privy to the offence, of persons who shall, with malice, kill or procure any others to kill, or shall on purpose and of malice, and by lying in wait, cut out or disable the tongue, put out an eye, slit the nose, cut off a nose, or lip, or cut oft' or disable any limb or member of any person, with intention to kill, or maim, or disfigure, are declared to be I ' . ..^— —-—-——-— --_^_.-_-—_-——-__^_-____-_„_______i_____^_ * To incite and solicit another to commit a crime, is a Misdemeanor, although no act be done in conscqaence of soch incitement and •olicitation.— Rex V8. Higgins, 2 East, 5. felons and al anydv any pi of cor ■■ I I who s] punish \ offend I I ofpers [ ling h( I the Ian intent i execut day tir house, used, ii goods ( person or shall any dw therein, or by V him in J town ; i {)orson < Ah ers, and i husband tress, sh without Ac( may be ] for a mis convictei ished as By 32G in. Oi i felony to thefelon. It is either exj inent, tha had comn ACCESSARY. 4 ■1 ■I noted : as, sh the Jactj reed between rnraand ano- Id upon him ssary to the mniand had kill him, or landing shall ating a man, or unlaioful ill tliat shall lislinct thing md he steals | ns the house | oanded to be | sary to them. f, which ano- he doth it at sort than loas commanding counsel to kill ; or to kill in these and r. Id. on of law are saries before. ice, or man- \e who barely is guilty only \ed an ^flcces- t isellors, aid- Is who shall, 111 on purpose disable the lose, or lip, lerson, with fclared to be Misdemeanor, •oiicitation.— felons without benefit of clergy. Also the counsellors, aiders, and abettors of persons who shall wilfully and maliciously burn any dwelling house, barn, outhouse, or warehouse of another, or any public building, or any hovel, cock, mow, rick or stack of corn, straw, hay, or wood of another. Perpetual. Also by the same Statute, the aiders and abettors of those who shall commit the following ofiences, shall sufler the same punishment of death without benefit of clergy as the principal offenders themselves, that is to say, — the aiders and abettors of persons who shall, by night, break open and enter any dwel- ling house, shop, or warehouse, or any vessel lying so near the land that it he adjudged to be within the County, with an intent to commit any felony ; whether such felonious intent be executed or not ; or who shall rob any dwelling house in the day time, any person being therein, or break any dwelling house, shop or warehouse thereunto belonging, or therewith used, in the day time, and feloniously take away any money ov goods of the value of five shillings, therein being, although no person shall be within such dwelling house, shop or warehouse ; or shall rob any other ; or feloniously take away any goods in any dwelling house, the owner or any other person being therein, and put in fear ; or who shall, by night or by day, rob, or by violence take money or goods from any person, putting him in fear, in any highways, or in any streets or lanes of a town ; or who shall feloniously take money or goods from the {)orson of any other, privily without his knowledge. Also by the 8 G. 3, C. 3. 1 V. 136, the counsellors, aid- ers, and abettors, privy to the offence, of a woman murdering her husband ; or of a servant murdering his or her master or mis- tress, shall be adjudged guilty of petit treason ; and suffer death without benefit of clergy. Perpetual. Accessaries before or after the fact of steaHng any goods, may be prosecuted and punished by fine and imprisonment, as for a misdemeanor, although the principal felon be not before convicted ; which shall exempt the offender from being pun- ished as Accessary, if the principal shall be after convicted. By 32 G. 2, G. 13. IV. 17. Perpetual. '^•"j/, UK !.i|(J wir.ft! rfl.llr.l li !>•!?' III. Of Accessaries after the Fact, and Receivers. Accessary after the fact^ is where a person knowing the I felony to be committed by another , relieves j comforts^ or assists the felon. iu» un -. ■ri}iif! It is necessary that the receiver have notice of the felony, either expressed or implied ; and it must be laid in the indict- ment, that the receiver knew that the person received by him had committed the principal felony. 2 Haw. c. 29 § 32. Aiders nnd AliuttorR in certiiinUtVen- cea lu he piin- islicd the laiiic an prin- cipal ofTenJ. era. Accessory may be pun- ished ti8 for a Misdemeanor before convic- tion oftlie Principal. (j ■ : ACCESSARY. This oftence, lioidd only in those felonies, where by tlie law jiiclgnient of death regularly ought to ensue ; and there- fore ought not in petit larceny. 1 Hale^ 618. Unless where it is otherwise provided by statute. It seems if a person do barely receive, comfort, or con- ceal an offender guilty of any common trespass or inferior crime oj the like nature^ though he knew hint to have been guilty, and that there is a warrant out against him, (which by reason of such concealment cannot be executed) yet he is not an Acces- sary to the offence ; but perhaps in such case, he may be indictable for a contempt of the law, in hindering the due course of justice ; and if the act of such receiver amount to a rescue, or to the obstructing an officer of justice in the execution of his duty, or the like, he would undoubtedly be indictable for it, as for a misdemeanor. 2 Haw. c. 29, § 4. "I {f" -'unr / Several things are to be considered in explication of the words " relieve^ comfort, or assist the felon'' : (1.) Generally any assistance whatsoever given to one known to be a felon, in order to hinder his being apprehended or tried, or suifering the punishment to which he is condemned, is sufficient to make a person Accessary to the felony ; as where one assists him with a horse to ride away with, or with n)one^ or victuals to support him in his escape. 2 Hate. c. 29, § 26. ■ ,,K:v.;.-/i,-nl ysiy u: /j«.';t ^^' lu. (2.) But if a man know that a person hath committed a felony, but doth not discover it, this doth not make him an Ac- cessary, but it is a misprision of felony, for which he may be indicted, and upon his conviction fined and imprisoned. I Hale, 618. < .;>J^'^• (3.) Also, if a man see another commit a felony, but consents not, nor yet takes care to apprehend him, or to levy hue and cry after him, or upon hue and cry levied doth not pursue him ; this is a neglect punishable by fine and imprison- ment, but it doth not make him an Accessary. Id. (4.) In like manner, if one commit a felony and come to a person's house, before he be arrested, and such person suffer him to escape without arrest, knowing him to have com- mitted a felony, this doth not make him an Accessary ; but if he take money of the felon to suffer him to escape, or if he sihut the fore door of his house, whereby the pursuers are de- ceived, and the felon hath opportunity to P'^r-ape, he make:j himself an Accessary. 1 Hale, 6 19. \i<\ a:- ^ .jkus 3*1 oi \^iv^ (5.) Whosoever rescues a felon from an arrest for the felony, or voluntarily suffers him to escape, is an Accessary to the felony. 2 Haw. c. 29 § 27, ::> (6.) But if a felon be in prison, he that relieves him • •• ~ . .' .•>;i-t >- f'!'..'!;! ;.■ ; Jill i' i .lii 1 1 Jj j • iiimv^ J i receivu ■ 1 Hale ■^ n "w goods a his pro I agreeuK I iheffbot makes h favour Ji 1 Hale, that dutj band, as given to ing lier 1 sary bef( sole. Bu will exen the felon, servanti, '< a husban< i iftliey h? c. 29, § (12. of it, do 1 Accessar) (13. nowingly he wife s By tl ihall buy ( tame to b( ifter the fa io petit lar saries. S i ACCESSARY. here by the and there- nless where ^ii'i] brt, or con- iferior crime been guilty i by reason of )t an Acces- he may be le due course to a rescue, execution ot ictable (or it, , ication of the given to one apprehended 3 condemned, le felony ; as with, or with pe. 2 Haw. I committed a te him an Ac- ;h he may be imprisoned. a felony, but Im, or to levy vied doth not and imprison- Id. •ny and come such person to have com- issary ; but if jape, or if he lisuers are de- , he makes arrest for tlie |i Accessary lo relieves hi»i with necessary meat, drink or clothes, for the siistenlation of life, is not Accessary. 1 Ilule, 020. So if he be hailed out, it is lawful to relieve ahd maintain him. Id. (7.) But if a felon be iu gaol, for a man to convey in- struments to him to break prison to make an escape, or to bribe the gaoler to let him escape, makes the parly an Acces- sary. 1 Ilaky 621. (8.) The sending a letter in favour of a felon, or advising to labour witnesses not to appear, makes no Accessary, but it is a high contempt; //«/e's $um. 219. (9.) A man may be Accessary lo an Accessary, by the receiving of him, knowing him to be an Accessary to felony. 1 Hale, 622. (10) If a man have goods stolen, and he receive his goods again, simply without any contract to favour the felon in his prosecution, this is lawful ; but if he receive ihem upon . ;.,:; .»! agreement not to prosecute, or to prosecute faintly, this is ' ' theftbote, punishable by imprisonment and fine ; but yet it makes him not an Accessary ; but if he takes money of him to favour him, whereby he escapes, this makes him an Accessary. 1 Hale, 619. (11.) It seems agreed that the law hath such a regard lo •.,,,..' that duty, love and tenderness, which a wife owes lo her bus- >"< band, as not to make her an Accessary to felony, by any receipt fgiveti to her husband. Yet if she be any way guilty of procur- ing her husband lo commit it, it seems to make her an Acces- isary before the fadt, in the same manner as if she had been I sole. But no other relation besides that of a wife to her husband, will exempt the receiver of a felon from being an Accessary to 'the felony ; from whence it follows, that if a master receive a servant), or a servant a master, or a brother a brother, or even [a husband a wife, they are Accessaries in the same manner as [if tliey had been mere strangers to one another. 2 Haw. [c. 29, § 34. (120 But if the wife alone, the husband being ignorant [of it, do receive any other person, being a felon, the wife is Lccessary, aiid not the husband. I Hale, 621. (13.) But if the husband and wife both receive a felon, mowingly, it shall be adjudged only the apt of the husband, and pie wife shall be acquitted. Id. ()i]v,i:uh:)-/.l\ ; jtr n/ By the 32 G. 2, C. 13. 1 V. 17. ** Any person who Receiver of shall buy or receive any goods that shall be stolen, knowing the SiolenGood*. same to be stolen, shall be deemed an Accessary to the felony jfter the fact," Perpetndl. This however does not extend [o petit larcenies, as to which offence, there can be no Acces- Wies. See 1 flafev5.30— 1 JBnm?^, 7; How fur bull- able. Where tried. to be 11 \ irx-o ' ACCESSARY. By the snme Statute Inst mentioned, — " persons buying or receiving stolen goods, knowing the same to be stolen ; or who shall be Accessary to such felonj before or after the fact, may be prosecuted and punished as for a misdemeanor ; al- though the principal felon be not before convicted of the felony ; which shall exempt the offender from being punished as Acces- sary, if the principal shall be after convicted." Perpetual. NoTK. — The receivers of money or bank notes stolen, are not to be considered within the above statute, in which only the word '' goods^^ is used. See 1 Burn's, 16, and the cases there cited. :\ tic. ^hI y- i\ii-] ■^urribnA' .ii\'n\ '\i) rnivi'tO'" IV. How Accessaries and Receivers are to be pro- ceeded AtiAlNST. V ' ; i..-\ br.r ' By 3 Ed. I. C. 15, Those who fxre accused of the receipt of felons, or of commandment or force^ or of aid in felony done, shall be bailable, but this seems to be only where jt stands in- different whether the party be guilty or innocent ; for if there be strong presumptions of'^ guilt, it seemeth that he is not bail- able. 2 Haw. c. 15, § 53. ' <" .^VuW ** Where a person is feloniously stricken or poisoned in one county, and dies thereof in another county, the Accessary may be indicted and tried in the county where the death shall happen. Also, where a murder or felony is committt^d in one county, and the person is Accessary in another County, the Accessary may be indicted and tried in the county where he was Accessary." By 8 G. 3, C. 3. 1 V. 135. (from 2 & 3 Edw. VI. C 24.) Perpetual. • i^Jvivioj -.i! '"Notwithstanding the allowance of clefgy and burning in the hand of any principal offender, the Accesssnries to such offender shall be arraigned and tried in the same manner as if such clergy had not been allowed. By 32 G. 2, C. 13j §26, (from 1 Ann, Stat. 2, C. 9.) Perpetual. ,'^*^' '< -^'^ It is now agreed that the principal though i^iot convibted or pardoned, may be examined as a witness against the receiver- 2 East's P. C. 782, 783. 2 Leach, 418. l' Bum's, 22. .nni- For Precedents and other matters relating to the proceed- ings against Accessaries, see respectively, iTitles — Warrant ; Arrest ; Examination ; Bail : Commitment. " r. vv.',tM>!ul-. ^^. j?,-,iwri!J5{ ,!l0kit* 9(1 iifc-.- iR 'jvbor: no vod Ih f ACTIONS, see JUSTICES OF THE PEACE. 1 ■...■'•■:■ ; i ■ • . ■ , . ADULTERY, ace MARRIA^e! ^8 ?6i (9) sons buying I stolen ; or Iter the fact, mennor ; al- f the felony ; 3d as Acces- perpetital notes stolen, te, in which 16, and the , TO BE mo- ! of the nceipt n felony done, , re it stands in- || L ; for if there ^ he is not bail- or poisoned in the Accessary the death shall nmitted in one r County, the unty where he ,. (from2&3 and burning in saries lo such e mantter as if J, C. 13y§26, at convicted or jt the receiver. Bt»m'», 22. o the proceed- les — Warrant ; ud 11 5' oim to fin( Ki ;t AFFRAY. 11 liere ; upon r bodies to Justices, in • bailiwicks, and Mayors ne, and bo- eace, within , Id. 25. n the above this Statute, s, rebels, or ;h disturbers 10 wearing of it be accom- rify the peo- no danger of on weapons, lem for their in public, by e wears it for ) one shall in- ing his neigh- who threaten 's house is as other person iroceed there- \s contrary to , and commit lake a record into the Ex- ■ ■...: 1.?- Person. thers fighting, |l the heat be Ito be carried e. 1 Haw. for if he re- lis remedy by lurt by endea- [ay justify the But if either of the parties be slain or wounded, or so stricken that lie falls I down lor dead, in that case the standers-by ought to appro* j hend the party so slaying, wounding, or striking ; or to en- ] deavour the same by hue and cry ; or else for his escape thev shall be fined and imprisoned. 3 Inst. 158. 1 jBtirnV, 26. - ' . ^ * ■ ' ■■■■. Iir. How FAR DY A CONSTABLE. ! A Constable is not only empowered to part an AfTray [which happens in his presence, but is bound to use his best endeavours to this purpose ; and also to demand the assistance of others, which if they refuse to give him, they are punishable by fine and imprisonment. And if he see persons eiiher ac- tually engaged in an Affray, or upon the very point of entering upon one ; as where a person shall threaten to kill, wound, or beat another, he may either carry the offender before a Justice "fto find sureties for the peace ; or he may imprison him of his |own authority for a reasonable time, until the heat shall be lover, and also afterwards detain him till he find such surety by obligation : But it seems, that he has no power to imprison such an offender in any other manner, or for any other purpose : And it is said, that he ought not to lay hands on those who 'I barely contend with hot words, without any threats of personal ; hurt, but can only command them, under pain of imprison- ment, to avoid fighting. 1 Burns, 27. Also if an assault be made upon him, he may not only de- fend himself, but also imprison the offender in the same man- ner as if he were no way a party. And if an Affray be in a ouse, the Constable may break open the doors to preserve the eace ; and if Afitayers By to a house, and he follow with fresh nit, he may break open the doors to take them. But it is aid, that a Constable hath no power to arrest a man for an ffray done out of his own view, without a warrant from a ustice, unless a felony were done, or likely to be done. a. 27. -n:'- :V ::;^'t ^ -■ - . ^r.-^' . -. .,,: Vr '• IV. How FAR BY A JUSTICE OF THE PeACE. There is no doubt but that a Justice of the peace may Eind must do all such things to the aforesaid purpose, which a )rivate man or constable is either enabled or required by the law to do : . But it is said that he cannot without a warrant luthorize the arrest of any person for an Affray out of his own Mew ; yet it seems clear, that in such case, he may make his varrant to bring the offender before him, in order to compel lim to find sureties for the peace. And a Justice has a 12 AFFRAY. i greater power over one who has dangerously wounded another in an affray, than either a private person or a constable ; for there does not seem to bo any good authority, that these have any power at all to take sureties of such an offender ; but it seems certain, that a Justice has a discretionary power either to commit him, or to bail him, till the year and day be past. But it is said, that he ought to be very cautious how he takes bail, if the wound be dangerous ; for that if the party die, and the offender appear not, he is in danger of being severely fin- ed, if he shall appear upon the whole circumstances of the case to have been too favourable. 1 Burn's^ 27, 28. II.' ■. . V. Punishment op an Affray. . All Affrays in general are punishable by fine and impri- sonment. 1 Stern's, 28. '' Warrant to apprehend Affrayers. n of To each and every of the Constables County ^ of the township of in the said County ; greeting : ^ Whereas A. I. of the township of in the said County, yeoman, hath this day made oath before me, A M , Esquire, one of His Majesty's Justices of the Peace for the said County, that on the day of , in the year of our Lord one thousand eight hundred and A. 0. of the township of , in the said County, -, in the said , in the yeoman, and B. 0. of the township of County, yeoman, at the said township of County aforesaid, in a tumuhuous manner, made an Affray, wherem the person of the said A. I. was beaten and abused by them the said A. O. and B. 0. without any lawful or sufficient provocation given to thciii, or to either of them, by him the | said A. I. These are therefore to command you forthwith to apprehend the said A. 0. and B. O. and bring them before me, or some other of his said Majesty's Justices of the Peace for the said County, to answer the premises ; and to find sureties as well for their personal appearance at the next Gene- | ral Sessions of the Peace to be holden for the said County, then and there to answer to an indictment to be preferred against them bv the said A. I. for the said offence, as also foi| their keeping the peace in the mean time, towards his said Majesty and all his liege people, and especially towards him the said A. I. Hereof fail not, as you will answer the con- AFFRAY. la inded another onstablo ; for )at these have ender; but it power either . day be past, how he takes party die, and i; severely fin- ces of the case ine and inipri- ERS. the Constables in the in the ath before me, Justices of the yof ') idred and le said County, , in the said , in the lade an Aftray, and abused by ful or sufficient im, by him the ou forthwith to ig them before | 3S of the Peace ; and to find the next Gene- e said County, o be preferred nee, as also for' awards his said ly towards him iswer the con- triry at your po, il. Given under my hand and seal at in the said County, the day of , in the year - M , J. P. -J > APPEALS, see respectively, Titles POOR, and RATES. APPRENTICES, see SERVANTS. r ■ / ARREST. This title is to be understood of Arrests in Criminal cases only, and not in Civil cases. In Law, an Arrest doth signify the restraint of a man's per- son, depriving him of his own will and liberty, and binding him to become obedient to the will of the law ; and it may be called the beginning of imprisonment. Lamb95. 1 72urn'«,lGU. Concerning which will be shewn, , .ij* ; I. Who may or may yor be Arrested. II. For what causes of Suspicion an Arrest MAY BE. ,.|, III. By whom an Arrest shall be made. ,.,, IV. The manner of an Arrest. V. What is to be done after the Arrest. , I. Who may or may not be Arrested. Generally a Member of Parliament shall have the pri- Ivilege of Parliament for himself and his servants, to be freed I from Arrests : but for treason, felony, and breach of the peace, [there can be no privilege. 1 Black Com. 145. 1 Bum^Sj 170. Bodies corporate, acting in a way that would render an [individual liable to Arrest, cease to retain of course their cor- porate character, and become individually responsible. — 1 Burn's, 170. In the case of Rex vs Woodham, 2 Sh. 828, upon a mo- ition for an information against the defendant, who was a Justice of the Peace, it was holden, that a person in execution in the King's Bench prison may be there charged criniinally by the warrant of a Justice of the Peace; but that no such Justice can tt^e a prisoner of this Court out of the custody of the {Court, and send him to the County gaol. Id. 170. u ARREST. In Church Yarda. On Suiuinvs. Causes of Suspicion. By Statutes 50 Ed. 3. c. 5, and 1 Rich. 3, c. 15, None shall arrest priests or their clerks, or other persons of holy church, whilst they attend to divine service, in churches, church-yards, or other places dedicated to God ; on pain oif imprisonment and ransom at the King's will ; and he shall also make satisfaction to the parties arrested. Id. 170. Also by Stat. 29. C. 2. c. 7, § 6, "A warrant executed against any person whatsoever, on the Lord's day, is void ; and the persons serving the same, shall answer damages, as if they had done the same without warrant ; except in cases of treason, felony, or breach of the peace. Id. 170. II. For what Causes of Suspicion an Arrest may be. By the Statute of 34 Ed. 3, c. 1. Power is given to the Justices of the peace to arrest all those, whom they find by indictment, or by suspicion, and to put them in prison. The causes of suspicion which are generally agreed to jus- tify the arrest of an innocent person for felony, are these that follow • (1.) The common fame of the country : but it seems that it ought to appear upon evidence, in an action brought for such arrest, that such fame had some probable ground. (2.) Being fwmd in such circumstances, as induce a strong presumption of guilt ; as coming out of a house wherein murder has been committed, with a bloody knife in one's hand ; or being found in possession of any part of goods sto- len, without being able to give a probable account of coming honestly by them. (3.) The behaving one's self in such a manner, as be- trays a consciousness of guilt ; as where a man accused of fe- lony, on hearing that a warrant is taken out against biro, doth abscond. 1 Burn's^ 170. (4.) The being found in company with one known to be an offender, at the time of the offence ; or generally at other times, keeping company with persons of scandalous repu- tation. Id. (5.) The living an idle, vagrant, and disorderly life, without having any visible means to support it — SHaw.c. 12, §10. 11. A woman walking up and down the streets to pick up men, a night-walker, may be apprehended. Per Law- rence, J. Lawrence vs. Hedger, 3 Tannt. 15. ' "''^ ''<*» ^ (6.) The being pursued by hue and cry. For if a felo- ny is done, and one is pursued upon hue and cry, that is not of ill fame, suspicious, unknown, nor indicted, he may be attached and imprisoned by the law of the land. 1 Bwrn^By 171. I 4- i the ab< such CI hue an( (8 359— i Arrest althoug or even ^ vate ind If custody commitl preferrr ' he is to breach the chat Bransco ; 420. 1 J I III. If ! committ( hend the mand ani felony, o commanc Blimps, ] And ted, or a offender, lect ; unl Also manding 1 of an Affr AC in his vie can bring Or a breach of Magistrate peace ma; be arreste Allp any man a ARREST. i5 5, None of holy churches, m pain of shall also executed /oid ; and as if they jf treason, r MAT BE. 5 given to 1 they find prison, eed to jus- these that t it seems )rought for id. p induce a se wherein in one's foods sto- of coming ler, as he- ised of fe- nra, doth known to 3nerally at ;lou9 repu- erly life, Btw. c. 12, ts to pick Per Lavy- >r if a felo- hat is not e may be m'», 171. # (7.) But generally no such cause of suspicion as anv of the above mentioned, will justify an Arrest, where in trutn no such crime hath been committed ; unless it be in the case of hue and cry. Id. 171. (8.) In the case of Samuel vs Payne & others — Doug. 359 — it was determined that a peace officer may justify an Arrest on a reasonable charge of felony, without a warrant, although it should afterwards appear that the man is innocent, or even that no felony was in fact committed ; but that a pri- vate individual in such a case cannot. If a peace officer, of his own head, takes a person into custody on stupicion, he must prove that there was such a crime committed ; but if he receives a person into custody on a charge preferrred by another of felony, or breach of the peace, there he is to be considered a mere conduit ; and if no felony or breach of the peace was committed, the person who preferred the charge alone is answerable. Per L. Ellenb. Hobbe vi^. Branscomb 4r others. Sittings after T. T. 53 G. 3. 3 Camp. 420. 1 Burn's 172. ... . ... ..,, -• ,.,.t ..... .t ,..f •• .. :■ ,;:. III. Br WHOM THE Arrest shall be made. If a Justice see a felony, or other breach of the peace, committed in his presence, he may in his own person appre- hend the offender. And he may also by word of mouth, com- mand any one to arrest another who shall be guilty of any felony, or actual breach of the peace in his presence, and such command is a good warrant without writing. 2 Hale, 86. 1 Burn's, 173. And all persons who are present when a felony is commit- ted, or a dangerous wound given, are bound to apprehend the offender, on pain of being fined and imprisoned for their neg- lect ; unless they were under age at the time. Also, every private person is bound to assist an officer de- manding his help, for the taking of a felon, or the suppressing of an Affray. 1 Bum's, 173. A Constable may ex officio arrest a breaker of the peace in his view, and keep him in his house, or in the stocks, till he can bring him before a Justice. ' i '? {Dvcv ^j ^ > Or any person whatsoever, if an affray be made to the breach of the King's peace, may, without any warrant from a Magistrate, restrain any of the offenders to the end the King's Eeace may be kept ; but after the affray is ended they cannot e arrested without an express warrant. Id. 173. All peace officers and also private persons, may arrest any man about to commit a felony or treason, or any act which By a Peaca Officer. lii ARREST. Arrest by Warrant. Arrest by Night. In another County. would manifestly endanger another's life, and detain him until the intent be presumed to have ceased. 2 Hme. c. 12, § 19. So much concerning an Arrest without a warrant : next follows Arresting with such warrant. The Warrant is ordinarily directed to the Sheriff or Con- stable, and they are indictable and subject thereupon to r. fine and imprisonment if they neglect or refuse it. The Sheriff may command any of his sworn and known officers to execute it, without writing any precept. 1 Burn's^ 173. _ !n:;.,i But every other person to whom it is directed, must personally execute it ; yet it seems, that any one may lawfully assist him. Id. 174. If a Warrant be generally directed to all Constables, no one can execute it out of his own precinct ; for in such case it shall be taken respectively to each of them within their seve- ral districts, and not to one of them to execute it within the district of another : but if it be directed to a particular Consta- ble, by name^ he may execute it any where within the Juris- diction of the Justice, but is not compellable to execute it out of his own Constablewick. Id. The Justice may direct the Warrant to a private person if he please, and it is good ; but such person is not compel- lable to execute it, unless he be a proper officer. Id. But by the Justice's oath of office, the Warrant ought not to be directed to the party, but to some indifferent person to execute it. If a Warrant be directed to two or more jointly, yet any one of them alone may execute it. Id. 174. ,., » , ... sv « ■ji hf' IV. The manner op an Arrest. The officer to whom a Warrant is directed and delivered, ought with all speed and secresy to find out the party ; and then to execute the warrant. 1 Burn's^ 174. It is certainly an offence of a very high nature, to oppose one who lawfully endeavours to arrest another for treason or felony ; and it seems that a person, who so opposes an arrest for treason, whereof he knows the party to have been guilty, is thereby guilty of the treason ; and that he who so opposes an arrest for felony, is an accessary to the felony. Id. An Arrest in the night is good both at the suit of the King and of the subject ; else the party may escape. Id. By the 54 G. 3, c. 15. 2 V. 122, " A warrant issued by a Justice in one county, may on proof on oath being made of his hand writing, be endorsed by a Justice in another county, into wi all oth( arrest l indorse some c able, t Justice Perpeti In deterrai he ma> means t of the M arrest, 1 Bum Ac numberi traitors, break, ( every pi being re and imp] riff, or( a power [ just cans As bend off allow of. I fore no o Arrestj u his comii No It is suffi< I not as a j authority. But sheltered j to take hi jlify break (1.) crime wh King's B( I or good b [the peace in ^''■^ llelony, or ARREST. 17 n him unlil . 12, § 19. •rant : next riff or Con- on to r, fine and known 1 JBwrn's, ected, must may lawfully nstables, no n such case n their seve- it within the ;ular Consta- lin the Juris- execute it fivate person J not compel- Id. ant ought not jnt person to ntly, yet any ir. : ind delivered, party ; and re, to oppose )r treason or )ses an arrest been guilty, so opposes . Id. it of the King Id. ■i''-yi^': arrant issued being made ther county. Into which the offender has escaped ; and the Constables, and all others to whom such warrant was originally directed, may arrest the offender in such latter county where the warrant was indorsed, and carry him before the Justice who indorsed it, or some other Justice in such latter county, if the offence be bail- able, to find bail ; or else shall carry him back again before a Justice in the county from whence the warrant did first issue." Perpetual. In the case of Mayhew »s. Parker, 8 T. R. 110, it was determined, that a warrant to arrest the party, to the end that he may become bound to appear at the nexfSessions, &c., means the next Sessions after the »Srresl, and not after the date of the warrant ; therefore the officer executing it may justify an arrest, after the Sessions next ensuing the date of the Avarrant. 1 Bum's, 174. Any Justice or the Sheriff, may take of the county any T^j^ing ,i,e number that he shall think meet, to pursue, arrest and imprison power of the traitors, murderers, robbers and other felons ; or such as do County, break, or go about to break or disturb the King's peace ; and every person above the age of fifteen years, and able to travel, being required, ought to assist, and aid them, on pain of fine and imprisonment. But it is not justifiable for a Justice, She- riff, or other Officer, to assemble the posse comitatus, or raise a power or assembly of people upon their own heads, Without just cause. Id. As to the case of breaking open doors, in order to appre- hend offenders, it is to be observed, that the law doth never allow of such extremities but in cases of necessity ; and there- fore no one can justify br&dking open another's door to make an Arrestj unless he first signify to those in the house, the cause of his coming, and request them to give him admittance^ Id. 175. No precise form of words is required in a case of this kind. It is sufficient that the party hathnotice, that the Officer cometh not as a mere trespasser, but claifning to act under a proper authority, prbvided that the Officer has a legal warrant. Id. But where a person authorised to arrest another, who irf sheltered in a house, is denied quietly to enter into it, in order to take him, it seems generally to be agreed, that he may jus- tify briaaking open the doors, in the following instances : — (1.) Upon a capias grounded on an indictment for any crime whatsoever ; or upon a capias from the Chancery or King's Bench, to compel a man to find sureties for the peace or good behaviour ; or even upon a warrant from a Justice of the peace, for such purpose. Id. ,<:..,; i»i;: (2.) When one known to have committed a tlreason br felony, or to have given another a dangerous wound, is pursued 3 Breaking open doori. IS ''I I 11 ARREST. fiither witti or without a warrant, by a constable or private per- son ; but where one lies under a probable suspicion only, and is not indicted, it seems the better opinion at this day, that no one can justify the breaking open doors in order to apprehend him. Id. But upon a Warrant for probable cause of suspicion of felony, the person to whom such Warrant is directed, may break open doors to take the person suspected, if upon demand he will not surrender himself ; as well as if there had been an express and positive charge against him ; and so (says Mr. Hawkins,) hath the common practice obtained, notwithstanding the contrary opinion of Lord Coke ; for in such case, the pro- cess is for the King, and therefore a non omittas is implied. Id. And as he may break open such person's own house, so much more may he break open the house of another to take him ; for so the Sheriff may do upon civil process : but then he must at his peril see that the felon be there ; for if the felon be not there, he is a trespasser to the stranger whose house it is. Id. It is but a thing permitted to private persons to arrest for suspicion; and they are not punishable if they omit it ; but in case of a constable, he is punishable if he omit it upon com- plaint. Id. 176. ;m« > And in general, an officer upon any warrant from a Justice, either for the peace or good behaviour, or in any case where the King is party, may by force break open a man's house, to arrest the offender. Id. (3.) On a warrant to search for stolen goods, the doors may be broke open, if the goods are there ; and if they are not there, the constable seems indemnified, but he that made the suggestion is punishable. 2 HaUj 151. 1 Btim'«, 176. (4.) Also doors may be broke open where forcible entry or detainer is found by inquisition before Justices of the peace, or appears on their view. 1 i?Mm'«, 176. (5.) Also, on the warrant of a Justice of the peace, for the levying of a forfeiture in execution of a judgment, or con viction for it, grounded on any Statute, which gives the whole or any part of such forfeiture to the King. Id. (6.) Where an affray is made in a house, in the view or hearing of the constable^ he may break open the, doors to take them. Id. y ^ih mu''' -^ii.'-:''! -s ,.M>iM»'«i'»'i'**s'3fisoe,ait{¥/ 'JO,"; ! (^0 I^ there be disorderly drinking or noise in a house, at an unseasonable time of night, especially in inns, taverns, or alehouses, the constable or his watch demanding entrance, and being refused, may break open the doors to see and suppress the disorder. Id. 'itciin-mYipy^scfl nvwrnt and a doors felony break ( mgof cess. ward i to him doors, cess. to him family. rule dc the bei bered, civil su a dang( comes the pan (1 any Wj then th( in ordei If breach rest ; o it is mu JBu after the escape f him, thi wall, as ' protucti( ih- ^' I his own acquaint An I to the pt the party I not to j party gri But icoQimonl ARREST. private per- n only, and lay, that no 3 apprehend suspicion of rected, may ipon demand had been an :) (says Mr- [withstanding ase, the pro- inplied. Id. yn house, so )ther to take jss : but then or if the felon rhose house it 3 to arrest for omit it ; but [ it upon com- Tom a Justice, ly case where an's house, to >ds, the doors if they are not that made the im'», 176- forcible entry 3 of the peace, ft: Vi I the peace, for ment, or con- ives the whole in the view or doors to take »ise in a house, ns, taverns, or entrance, and and suppress (8.) Wherever a persoti is lawfully arrested for any cause, and afterwards escapes, and shelters himself in an house, the doors may be broke open. Id. (9.) But upon a general warrant, without expressing any felony, or treason, or surety of the peace, the officer cannot break open a door. Id. (10.) In a civil suit, the officer cannot justify the break- ing open an outward door or window, in order to execute pro- cess. If he doth he is a trespasser. But if he finds the out- ward door open, and enters that way ; or if the door be opened lo him from within, and he enters, he may break open inward doors, if he finds that necessary in order to execute his pro- cess. For a man's house is his castle, for safety and repose to himself and his family ; but if a stranger, who is not of the family, upon pursuit takes refuge in the house of another, this rule doth not extend to /lim, it is not his castle, he cannot claim the benefit of sanctuary therein. And it is always to be remem- bered, that this rule must be confined to the case of Arrest upon civil suits only. For where a felony hath been committed, or a dangerous wound given ; or even where a Minister of Justice comes armed with process founded on a breach of the peace, the party's own house is no sanctuary for him. Id. (11.) Finally, in all these cases, if an officer to serve any Warrant, enter into a house, the doors being open, and then the doors are locked upon him, he may break them open, in order to regain his liberty. Id. 177. i-»r*c '!»> If there be a Warrant against a person for a trespass or breach of the peace, and he fly and will not yield to the Ar- rest ; or being taken, make bis escape ; if the officer kill him it is murder. Id. ^!ttU>'^!«»'v«*'#l*5:"ftllis*^r.'f^'Wi^'^ ^ufi^"'? But if such person, either upontlie attempt to Arrest, or after the Arrest, assault the officer, to the intent to make his escape from him ; and the officer standing upon his guard, kill him, this is no felony, for he is not bound to go back to the wall, as in common cases of se defendendo^ for the law is his protection. Id. A person sworn and commonly known and acting within his own precinct, need not shew his warrant ; but be ought to acquaint the party with the substance of it. Id. 178. i a;5,;r >; An officer gives sufficient notice what he is, when he saith to the party, I arresi you in the King^s name^ and in such case the party at his peril ought to obey him, though he knows him not to be an officer ; and if he have no lawful warrant, the party grieved may have his action of false imprisonment. Id. But if he act out of his precinct, or be not sworn and icoQimonly known, he must shew his warrant if demanded. ■(•■..■J Killing in arrest or the por- 'I'K-. »V_' jsirc Shewing the Warrant. 20 h li't" t'i ii No Arrest by words only. Retaking af- ter Arrest. suq i-> I'-'" ■■■. By a private person. By a Consta- ble. By an Officer by Warrant. ARREST. Otherwise the party may make resistance, and needs not to obey it. In no case, however, is a constable required to part with tlie warrant out of his own possession ; for that is his jus- tificution. Id. ;^|1ft»t/? .'ufi'<-»i»« wiitotti*?* a rbf*ff>»'iu«i !«•'!.'»> But if the constable have no warrant, but doth it by virtue of his ofHce as a constable, it is sufficient to notify that he is constable ; or, that he arrests in the King's name. Id. Bare words will not make an Arrest without laying hold on the person, or otherwise confining him. But if an officer co.ne into a room, and tell the party he arrests him, and lock the door, this is an Arrest ; for he is in custody of the officer. — Id. 1T9. >;» K:>>tM)«r-iolHt) !;t 'nA«ev>9H m\} ehdJt 'hJ ii /^lot-'^ It hath been holden, that if a constable after he liath ar- rested the party by force of a warrant, suffisr him to go at large, upon his promise to come again and find sureties, he cannot afterwards arrest him by force of the same warrant : however, if the party return, and put himself again under the cus- tody of the constable, it seems it may be probably argued, that the constable may lawfully detain him, and bring him before the Justice in pursuance of such warrant. Id. But if the party arrested do escape, the officer upon fresh suit, may take him again, and again, so often as he escapes ; although he were out of view, or that he shall fly into another town or county. Id. ii :)({() M=5;snif-3!ai»'Kj viiffi Mi^ttinlxvtjfi feda'jW'l f/«> «(«ff «>}■♦ edt noi i ' V. What is to be done after the Arrest. •»" <■ ■■' When a private person hath arrested a felon, or one sus- pected of felony, he should with as much speed as conveniently he can, carry him immediately to a Justice of the peace, or deliver him to a constable, who may either carry him to gaol, or to a Justice. And if a constable hath arrested affi'ayers, or persons drinking in an ale-house disorderly, dt an unseasonable time of night, he may imprison them till the heat of their pas- sion or intemperance is over, though he deliver them afterwards ; or till he can bring them before a Justice. 1 Burn,^s, 179. If the Arrest be by virtue of a warrant, and the direction of the warrant be to bring the party before the Justice, who granted it, specially ; then the officer is bound to bring him before the same Justice ; but if the warrant be to bring him be- fore any Justice -of the County, then it is in the election of the officer to bring him before what Justice he thinks fit ; and not in the election of the prisoner. — Id. But if the time be unsea- sonable, as in or near the night, whereby he cannot attend the Justice ; or if ihero be danger of a present rescue, or if the party be sick, he may secure him in the stocks, or in an house rnTV' ARREST. Olft-PV 21 1, or one sus- lill tiie next day, or such time as it may be reasonable to bring him. 1 Burn's, 180. And when he hath brouglit him to the Justice, yet he is in law still in his custody, till the Justice discharge, or bail, or [commit him. Id. fthr v But the constable is not obliged to return the warrant itself, ibut may keep it for his own justification, in case he should be jquestioned for what he had done, but only to return what ho [has done upon it. Id. tfrfx . /!)'.». fC I MO r in an house ASSAULT AND BATTERY*rr I. What is An Assault. ;!r«rttMiiw«>!-H'ftf '*ifti'.(,')»wi II. What is a Battery. ; H; io III. In what Cases they may be justified.. //nl IV. How punished. b««ri iriW-vtjf vlH?f»:j w ?'(^jffom; 1 ; >-)^fmi!? 'iwR (What is an AssAULT.>r.:'.f' '?o'**ijr;'» i.-itft It I ! H ' . •,' J An Assault is an attempt or offer with force and violence to do a bodily hurt to another, as by striking at him with or ivithout a weapon, though the party striking misses his aim ; so drawing a sword, throwing a bottle or glass with intent io mund or strike ; presenting a gun at a person within the dis- tance to wiiich the gun will carry ; or pointing a pitchfork at a lerson stanciing within reach ; holding up one^s list at them in threatening or insulting manner ;. or with such other circum- stances as denote at the time an intention (coupled with a pre- sent ability,) of using actual violence against his person. No ^vords whatsoever can amount to an Assault. 1 Haw. c. 62, 1. ' ' 1'; ' ^tfrn's, 'I'Slii 'i.?^i ;.-;;i;';i.;>j!i f: f)":. .fiiu: 'A'>iy\:: vjiu.ti nttr c-,jM&'(!tjII. What is a Battery. »*<1 'k* ':*'>nb"t*>li A BAtTERY'in the legal b'cceptation of the teMi^ m^dns hot lerely to strike forcibly with the hand, oi* a stick, or the like ; )ut includes every touching (however triftirig,) of another's per- son in an angry or revengeful^ rude, or insolent manner; as ihrustlngoF pushing him in anger, holding him by the arm, s^il- jing in his face, jostling him out of the way, pushing anotlier lan against him, throwing ailquib at him, striking a horse up- Hi which he is riding, whoe^by he is thrown, or the like. 1 ~iwrns, 181. Arch. C P. 241. « Hjri ; mfw^yrstm m ime,rnr I'! Ill 90 ASSAULT AND BATTERY. By Mitadvon- ture. Bv Purniit or Previoui Ag- •ault. III. In what Cases tiiev may be justified, i Mii It is a good defence, to prove tliat the alleged Battery hap- pened by misadventure ; as where a horse ran away with his rider, and ran against a man ; also where a soldier in his ranks, dischnrged his gun, and a man unexpectedly passed before him at the time, and was hurt by it — so it is a good defence that the alleged Battery was merely an amicable contest : as that he wrestled with the prosecutor for a wager ; or that it happened by accident, whilst the defendant was engaged in some sport or game which was neither unlawful nor dangerous. Also, the correction of a child by his parent, of a servant or scholar by his master, and the punishment of a criminal by the proper officer, may be jiiMiHed ; provided the correction be moderate in the manner, the instrument, and the quantity of it; or that the criminal be punished in the manner appointed by law. Also, if a man force a sword from one who ofters to kill another ; or gently lay his hands on another, and thereby stay him from inciting a dog against a third person ; or if a man fight with or beat one who attempts to kill any stranger ; or if he even threaten to kill one who puts him in fear of death, in such a place where he cannot safely flv from him ; or if one imprison those whom he sees fighting, tdl the heat is over ; in all these cases the party may justify the Assault and Battery. Jrch. C. P. 242. 1 Burn's, 182. -if! I Jhofr* 6 ^jw^wnrt) ih' It is a justification even of a wounding or maim, to prove that the prosecutor assaulted or beat the defendant first, and that the defendant committed the alleged Battery merely in his own defence ; if he prove an Assault merely, as for in- stance, that the prosecutor lifted up bis stafT and offered to strike him ; it is sufficient to justify the defendant's striking him, for he need not in such a case stay till the other has ac- tually struck him. So a husband may justify a Battery in de- fence of his wife, a wife in defence of her husband, a parent in defence of his child, a child in defence of his parent, a master in defence of his servant, and a servant in defence of his mas- ter. But in ail these cases, the Battery must be such only as was necessary to the defence of the party or his relation ; for if it were excessive, if it were greater than was necessary for mere defence, the prior Assault will be no justification. It is not every trifling Assault that will justify a grievous and imme- diate maim ; such as cutting off a leg or hand, or biting off a joint of a man's finger, unless it happened accidentally, without any cruel or malignant intention, or after the blood was healed in the scuffle ; but it must appear that tlie Assault was in some degree proportionable to the maim. Also, it will be a suffic Assault wi It is defence of do so by t tfaer in de A ma possession his close strain him ing or resc from distui water-coui pass in la^ close, hou before he < removing I much forc( passer use and in suci w Ir even a tioned. possession excessive ant's posse the close. It is a tice arrestc cess, whicl however, c to arrest hi tempt be n greater dej his prisom sons acting warrant, to prevent peace, or tion, or thi force than he cannot &€. as a ji Thei both to an ASSAULT AND BATTERY. 'IKD. ittery liap- witli his his ranks, lefore him fence that itest : as or that it igaged in angerous. lervanl or nal by the ection be itity of it; ointed by ers to kill reby stay if a man ;er ; or if death, in or if one over ; in Battery. to prove first, and nerely in for in^ fiered to striking r has ac* ry in de- )arent in a master lis mas- only as ion ; for isary for II. It is imme- liting off dentally, ood was ult was it will be a sufficient answer to this defence, to prove that the 6rst Assauh was justifiable. Jlrcli. C. P. 242. 1 Hum's, 182, ISii. It is said that a servant may not justify beating another in defence of his master's son ; though he were cominunded to do so by the master ; neither can a tenant justify healing ano- ther in defence of his landlord. 1 Bum's, 182. A man may justify a Battery committed in defence of his possession ; as for instance to remove the prosecutor out of his close or house, or to prevent him from entering it ; to re- strain him from taking or destroying his goods, &c.; from tak- ing or rescuing cattle, &c. in his custody upon a distress ; from disturbing him of his highway ; or from turning an ancient water-course from his mill, or the like. In tiie case of a tres- pass in law merely, without actual force, the owner of the close, house, &c. must first request the trespasser to depart, before he can justify laying his hand on him for the purpose of removing him ; and even if he refuse, he can only justify so much force as is necessary to remove him. But if the tres- passer use force, then the owner may oppose force to force ; and in such a case if he be assaulted or beaten, he may justify even a wounding or maim in self defence, as above men- tioned. In answer, however, to a justification in defence of his possession, the other party may prove that the Battery was excessive ; or may justify the alleged trespass on the defend- ant's possession, by proving that he had a right of way over the close, or the like- ^rch. C. P. 243. 1 Burn's^ 182. It is a good defence that the defendant as an officer of jus- tice arrested the prosecutor by virtue of a certain writ or pro- cess, which is the Battery complained of. A sherifT's officer, however, can only justify laying his hand upon a man in order to arrest him upon a writ or process ; Unless he resist or an at- tempt be made to rescue him ; and even then he can justify no greater degree of force than was necessary j in order to secure his prisoner. And the same as to officers of justice, and per- sons acting in their aid arresting on suspicion of felony without warrant. So a man may justify laying his hand upon another to prevent him from fighting, or committing a breach of the peace, or to prevent him from rescuing goods taken in execu- tion, or the like — ^yet even in these cases he must not use more force than is requisite to restrain the other party ; otherwise he cannot avail himself of the threatened breach of the peace, &c. as a justification, ^rch. C. P. 243. . •-«- 1 -'—A. IV. How PUNISHED. .-;:fo. There is no doubt but that the wrong-doer is subject both to an action at the suit of the party wherein he shall ren- ServHnl or 'l'«tnuitl. Posaettion. il !l I 24 ASSAULT AND BATTERY. ■«U J(l« I ! il'>\dtf ,t.v.' ndmi lit i' ' ) The infortnatioD and complaint of A% -tiT !!(; ". > iCounty > I. of — r^^ ; in the said County of on of . ' . . ) — I ; , yeoman, made on Oath. this day of— r -in the year of our Lord one thousand eight hundred and thirty -> — — before rae A — r— M -, ; Es- quire, o.m of His Majesty 's Justices of the Peace in and for the said County. The said deponent saith, that on the — r— -• day of— r— r — , in the year aforesaid, at — — ^ in the County aforesaid, A O of— " in the said County, butchei^^ violent^ ly assaulted him this deponent, and did And hereupon the said deponent prayeth a warrant of me the said Justice, to. issue against the said A- compel him to answer unto the said complaint. :Jel/..i'i v'VUii.. .11 A- Sworn before me, •li 'I lli;i! ' 111 ui'Vf u!// vin;(j mil fo HiH'. o- :iuT to J. P«i! ai :i« '.iA>. id noii'jR III; o] (\v ASSAULT AND BATTERY. 25 •riKMi! t • Warrant for an Assault, ike. t iumiuMt <>' ■ iQiyjv .tiUll'i ijiif *frj; bail; '■•j;i/^<r''- -ji* ,\i«n'n;fi>A Burglary. Breaking into a dwelli.-ig house by night, with in- tent to commit a felony. By the 32 G. 2, c. 13. I V. 16, Persons who shall by night, break open and enter, any dwelling house, shop or warehouse, or any vessel lying so near the land that it be adjudged within the County, with an intent to commit a felony, whether such felonious in- tent be executed or not, shall suffer death. Perpetual. Coin. Counterfeiting gold or silver coin of England or Great Britain is declared to be treason by the 32 G. 2, c. 13. 1 V. 15. Perpetual. Commitments, by the superior Courts, or on process for con- tempts to such courts. SEdte. 1, c. 15. 2 Haw. c. 15, § 37 & 64. 1 Burn's, 202, 205. "* -^ •.r^m'%^^>^»\y. Confession of Crime. Those who on their examination own themselves guilty of a felony alleged against them, seem to be excluded from Bail ; for Bail is only proper, where it stands indifferent whether the party be guilty or inno- cent of the accusation against him. 2 //aw. c. 15, § 40. 1 Burn's, 205. Pet. on Bail, 490. Counterfeiting gold or silver coin of England or Great Bri- tain, or the King's Great or Privy Seal, or the Seal of this Province. By the 32 G. 2, c. 13, 1 v. 15, declar- ed to be high treason. Perpetual. Duelling. Where death ensues. Pet. on Bail, 4{) I. Dykes and Banks of Rivers, breaking down^ ^c. This is 30 BAIL, (cannot bail.) ^ i felony, without benefit of clergy, by the 6 & 7 G. 3, c. 1.* IV. 122. Perpetual Embezzling. By the 32 G. 2, c. 13, 1 V. 17. Servants embezzling jewels, money, or goods entrusted to them by r nous ofTences. Yet it seems to be in a great measure left ' to discretion, to judge in what cases their crime is so flag- rant and enormous that they ought not to have the benefit of bail. 2 Haw. c. 15, § 45. 1 Burn's, 203. Rapt. On females above the age of 12 years. Also on fe- m?Jes under the age of 12 years, though with their con- sent. By 32 G. 2, c. 13, 1 V. 16. Perpetual. Also see Pe/. on 6oii, 495. o/i^ v%i «< Robbery. By the 32 G. 2, c. 12, 1 V. 17, persons who shall rob any dwelling house in the day time, any person being therein ; or break any dwelling house, shop or warehouse thereunto belonging or therewith used, in the day time, and feloniously take away any money or goods of the value of five shillings therein being, although no person shall be within such dwelling-house, shop, or warehouse ; or who shall rob any other ; or feloniously take away any goods in any dwelling-house, the owner or any other person being therein, and put in fear ; or who shall by night or by day, rob, or by violence take money or goods from any person, putting him in fear, in any highways, or in an^^' streets or lanes of a town, they, and their aiders ' and if' i'^^rs, shall sutler as felons without benefit of clergy. An < ' s 14 of the same Statute, stealing, or taking by robb^.y in any of the above instances, bills of exchange, bonds, warrants, bills, or promissory notes for the pay- ment of money, is punishable in the same manner. Per- petual. Sacrilege, or feloniously taking of any goods out of any church, or chapel, 5 Bumsy 85. Pet. on bail, 495. Slutoting at a person. By the 32 G. 2, c. 13. 1 V. 18. Whosoever shall maliciously shoot at any person in any dwelling-house or other place, shall suffer as a felon with- out benefit of clergy. Perpetual. See Pet. on bail,, 496. Shop lijting. 10 & 1 1 W. 3, c. 23. Pet. on bail, 496. Stabbing. A person who shall stab or thrust another, that hath not then any weapon drawn, or that hath not then first stricken, the party who shall so stab, or thrust ; so as the person so stabbed or thrust shall die thereof within six months, although not proved to be done of malice afore- thought, yet he shall be excluded from the benefit of clergy. By 32 G. 2, c. 13, 1 V. 15. Perpetual. Thieves openly defamed and known. These, as it seems, ought not to be bailed for any fresh felony, whereof there is probable evidence against them. But this seems in a great measure to be left at the di.scretion of the person who has power to bail them, who if he find it reasonable 32 BAIL, (cannot bail.) .w> ! j< strongly to presume them to be guilty, ought not to Hail, )il but commit them. 3 Ed. 1, c. 15. 2 IJaie. c. 15, § 44. 1 Burn's, 203. Treason. By the 32 G. 2, c. 13. 1 V. 15. All treasons de- 'I dared by the Acts of Parliament of England or of Great ■oc> Britain, shall be deemed and adjudged to be treason within this Province. Perpetual. Unnatural Crime. By the .32 G. 2, c. 13. 1 V. 16, this crime is made felony without benefit of clergy. Perpetual. Wrecks ; Stealing goods from, Sfc, Persons who shall plun- :. der, steal, or destroy any wrecked vessels, or any goods i>M < wrecked or found floating in rivers, bays, or harbours ; ^ ' ' or contiguous to the shore ; or shall steal the tackle or '/•( provision of any wrecked vessel ; or shall beat, or wilful- I it/, ly obstruct any person endeavouring to save his life from . ixf a wrecked vessel ; or shall put out any false lights, with !i> intention to bring a vessel into danger, shall suffer death i< or violence, the offender shall only be punished as for -71: petit larceny* By 41 G. 3. c. 14. 1 V. 446. Perpetual. III. For what Offences two or more Jltstices may Bail in their discretion.. .Accessaries. But Accessaries to felonies are not to be bailed, ; unless they be of good reputation. And it seems at this day to be settled, that where there are strong presump- tions of guilt, such accessaries are not bailable. 2 Haw. c. 15. § 53. 1 Burn's, 204. Pet. on bail, 497. In treason there are no accessaries, but all are principals ; therefore this title does not apply to any case of treason. See 2 Haw. P. C. c. 29, § 2, 5. In crimes under the degree of felony, there can be no accessaries, but all per- sons concerned, if guilty at all, are principals. I Hale, P. C. 613. Bail, personating. By 11 G. 3, c. 3, 1 V. 166, Perpetual. Coin, Counterfeiting, 4c. or uttenng of foreign coin, cur- in 1 rent in this Province. By 32 G. 2, c. 20, 1 V. 29. Perpetual. Conspiracy, to injure third persons, or the community, 1 Burn's, 566, Pel. on bail., 498. Embezzling King's Stores, Sfc. By the 32 G. 2, c. 13, 1 V. tr-f 18, embezzling any of His Majesty's Stores, or the uten- ukk sils, furniture, or cloathing in any store-house, or liospital i-.t fin: BAIL, (may bail.) ot to Bail, tie. c. 15, easons dc- ir of Great be treason r. 16, this Perpetual. shall pUin- any goods r harbours ; e tackle or t, or wilful- )is life from lights, with >ufier death f. Provid- i of 40 shil- s of outrage ished as for Perpetual STICES MAY |o be bailed, cms at this ig presump- 2 Ilaio. , 497. In principals ; of treason. 3 under the but all per- . 1 /ia/e, Perpetual. coinj cur- , 1 V. 29. 1 imunity, 1 13, 1 V. )r the uten- of liospital of His Majesty, to the value of twenty shillings or upwards, is declared to be larceny and felony. Also, embezzlin'j goods or furniture let with lodgings. Perpetual. Forgeiy. Of deeds, wills, bonds, bills, notes, receipts, acquit- tances, &c. See the 32 G. 2. c. 20, 1 V. 30. Perpetual. Of Certificates respecting Quarantine. By 2 W. 4, c. 13. 4 V. 143. Temporary. Goods Stolen, buying or receiving of. By 32 G. 2, c. 13, I V. 17. Perpetual. iMrceny or theft. This is to be understood of simple larceny of the value of twenty shillings or upwards ; or larceny unaccompanied with any of those circumstances of aggra- vation, which by numerous Statutes make it a capital of- fence, as in house breaking, highway robbery, &c. See 3 Burn's, 176. Also the 32 G. 2, c. 13, § 22. 1 V. 18, and by § 14 of this Statute, the stealing of any bills of Exchange, bonds, warrants, bills, or promissory notes for the payment of money, is declared to be the same offence as stealing money or goods of :he same amount as is duo thereon. For stealing Treasury Notes, see Notes, under this Title, -i *» ■'^^ rit^a ;Kifj!:=v>ii'i!:-i:f>ui>?o ti^H> i%>i ,•-':.' Maim. At common law, or where not made a felony by any Statute. 2 //mo. c 15, § 45. 1 Burn's, 203. Mtes, Treasury, Stealing qjf. By the 9 G. 4, c. 3 — 10 G. 4, c. 43—11 G. 4, c. 9—2 W. 4, c. 64. Counterfeiting, or knowingly uttering of Counterfeit Notes issued under the Statutes, 57 G. 3, c. 16. 3 V. 15, — 58 G. 3, c. 32. 3 V. 36,-59 G. 3, c. 9. 3 V. 45,-60 G. 3, c. 18. 3 V. 69,-1 & 2 G. 4, c. 4. 3 V. 99,-7 G. 4, c. 14. 3 V. 260. This offence under these Statutes, is constituted a felony by the punishment therein prescrib- ed, of nailing one of the ears of the offender to the pillory. Polygamy, or having a second husband or wife, the first being alive, and the first marriage not declared void. By 32 G. 2, c. 17, 1 V. 24. Perpetual. Receivers of Felons, knowing them to be such. 3 Ed. 1 c. 15. These are Accessaries after the fact. 2 Hale, 134, 1 Btirn^s, 204. vj^iirf Rescues exorbitant. 2 Haw. c. 15, § 45, 1 Burn^s, 203. Rewards, taking, to help persons to stolen goods. By Eng. Stat. 4 G. 1, c. 11, which is extended to his Majesty's dominions in America, This offence is declared to be felony, unless they cause the felon to be brought to trial. See Note to the 32 G. 2, c. 13. 1 V. 20 Suspicion, light. But if the presumption be strong, or the de- famation great, the Justices may refuse to bail them ^ BAIL, (may bail.) i M Hale's Sum. 102. And they must also be of good fame. 2 Inst. 190, 1 Surn'sy 204. JVoodsy maliciously setting fire to, on reserved and luigranted land. By 14 & 15 G. 3, c. 3. 1 V. 184. Perpetual. It seems to be a good general rnle that so far as any per- sons are judges of any crime, so far they have the power of bailing a person indicted before them of such crime ; and upon this ground it seems clear, that any two Justices may of com- mon right bail persons indicted at the Sessions, for that any two such Justices may hear and determine the indictment. 2 Haw. c. 13, § 64. 1 Burn's, 205. IV. In what cases one Justice DISCRETION. MAY BAIL IN HIS Affray. 1 Haw. P. C. c. 63, § 20. 4 Bl. Com. 145. Pet. i on bail, 497 . But if a person have dangerously wounded ,. another, the Justice ought to be very cautious how he takes bail until the year and day be past, for if the party die, and the offender appear not, he is in dans^er of being ,n severely fined. 1 Haw. c. C3, § 19. 1 £ am^s, 202. Pet. on bail, 497. *9ssault, with intent to commit felony. As by the 32 G. 2, c. 13. 1 y. 16. Assaults with attempt to commit an unnatural Clime ; or to commit a rape. Compounding Felonies. 1 Haw. P. C. c. 59, § 5. Pet. on bail, 498. False tokens, or counterfeit letters to obtain money or goods. By the 32 G. 2, c. 20. 1 V. 31. Perpetual. Pet. on bail, 498. <* :,i Incest. By 32 G. 2. c. 17. 1 V. 25. Perpetual, '.uftc Indecencies. Pet. on bail, 498. ''* Larceny, petit, or stealing under the value of 20 shilliiigs. By 32 G. 2, c. 13. 1 V. 18, It seems to be agreed, that in (. r order to the bailing of persons charged with this offence, . ! ;, there is no necessity that they be of good reputation ; yet if such persons be taken with the stolen goods upon them, or confess the fact, or their crime be otherwise open and ;> manifest, it seems that they ought not to be bailed ; but if there be any colour of probability for their innocence, u it seems most agreeable to the intention of the Statute, 3 ..v> Ed. 1 c. 15, to bail tliem. 2 Haw. c. 15, § 50. 1 Burn's, 204. JWites, Treasury — Counterfeiting, or knowingly uttering such counterfeit notes. By Statutes 9 G. 4, c. 3. 4 V. 23,— BAIL. m L IN HIS i 10 G. 4, c. 43. 4 V. 69,-11 G. 4, c. 94. V. 63,— 2 W. 4, c. 64, 4 V. 191. The offence under these Statutes in only a misdemeanor, being punishable merely by imprisonment in Bridewell. Perjury, and procuring witnesses to commit perjury. By 32 G. 2, c. 2a. 1 V. 30, 31. Perpetual. Pet. on bail, 498. Riot. 2 Halt. c. 47, § 8. 5 Burn\ 14. Trespasses for which one ought not to lose life or member. 3 Ed. 1, c. 15. But it seems reasonable to qualify the generality of this expression with this limitation, — that such accusation ought to be either on a light suspicion, or else that the offence be inconsiderable, or that it be not excluded from bail by some special Act of Parliament. 2 Haw. c. 15, § 45. 2 Hah, 135. 1 Burn's, 204. Note, — The trespasses here mentioned, are not to be under- stood to mean or include mere trespasses of a civil nature to the lands or goods of an individual, under any Statutes of the Province, or otherwise, as this Title of Bail does not relate to any civil, but op!y to criminal cases. Wounding. But if a person have dangerously wounded ano- ther, the Justice ought to be very cautious, how he takes bail till the year and day be past ; for if the party die, and the offender appear not, he 's in danger of being severely fined, 1 Haw. c. 63, § 19. 1 Burn's, 202. One Justice alone, cannot set at large on bail, a person arrested on a charge of Jelony, or suspicion thereof, but must commit him, unless he is bailed by two Justices, or by the Court of Sessions. 1 Burn's, 206.-^— jVo ' It should seem that Justices of the Peace in the General Sessions, should have the power of judging what recognizances, certified there, concerning ofl'ences cognizable in that Court, should he estreated, /rf. The recognizances taken by Justices in one County upon a backed warrant, may be by them certified into another Coun- ty. Pet. on bail, 511. The Conditions of recognizances in a variety of cases, are interspersed under their proper Titles. Form op Recoomzancb with Sureties. ' ' '.* and c( tiic ;^r( the sail lices, and till out lic( County of > ' ••^"•i ni «n.;n'"f^ \hHi . -r-i i>.\ .^c" ;^,i'.-< -i " " \ Be it Remembered, that on the day of , in the year of the reign of our Sovereign Lord William the Fourth, of the United Kingdom of Great Britain and Ireland, King defender of the faith, A O of in the County aforesaid, labourer, and A S of in the County aforesaid, tailor, and B S , of in the County aforesaid, carpenter, personally came before us, A M and A R , two of His said Majesty's Justices of the peace in and for the said County, and severally and respectively acknowledged themselves to be indebted to our said Lord the King, that is to say, the said A O the sum of pounds, and the said A B and C D each the sum of pounds separately, and of good and lawful money of this Province of Nova Scotia, to be made and levied of their goods and chattels, lands and tenements, respectively, to the use of our said Lord the King, his heirs and if the said A- successors, the Condition hereunder written, the day and year above written. O shall make default in Taken and acknowledged, Before us, A M , J. P. '■'■■- --— '^ ----^ ^- -fe-. ^ A R , J. P. ! > The Condition of this Recognizance is such, that if the above bound A O shall personally appear before His Majesty's Justices of the Supreme Court, for the said Province, at the next silting of the said Court, (or if at the Sessions — " before the Justices of our said Lord the King, assigned to keep the peace within the said County, and likewise to hear and determine divers felonies, trespasses, and other misde- m BAIL. Ci9 keeping the be railed ; id ; nnd the be sent ond 8. the General ogiiizances, that Court, ounty upon )ther Coun- \f of cases, nieatiors, in the said County coinmilted, at tlio next GenoiMl Sessions of the Peace,") to beholden in and lor the sjid Comi- ty, then and there to answer to our said Lord the King, lor and concerning the felonious taking and stealing of , iiic ;^roperty of E — F — , yeoman, with the suspicion whereof the saiu S O stands charged before us the said Jus- tices, and to do and receive what shall by the Court, be then and there enjoined him ; and shall not depart the Court with- out licence, then the above written Recognizance shall be void. If the party had been finally committed to prison on the charge, and was held under such commitment at the time of the bail being given, there should issue a writ for his deliverance in the following form : — I '>ii«'i>i [ES. 'M^J day of 3reign Lord reat Britain — of — of of in before us, Majesty's id severally indebted to _0 ind C |nd of good \o be made tenements, his heirs default in [owledged, J. P. ,, J. P. Ihat if the fefore His iProvince, lessions — ssigned to |e to hear ;r misde- County of [i in ^;i(t'> [Seal.] [Seal.] ) A — M — and A — R — , Esquires, two \ of His Majesty's Justices of the Peace in and for the said County of ~ of His Majesty's gaol at , To the Keeper , in the said County, greeting : Forasmuch as A — O — of , in the said County, labourer, hath before us found sufficient sureties to appear before His Majesty's Supreme Court for this Pro- vince, at the next sitting of the said Court, (or at the next General Sessions of the Peace) to be holden in and for the said County, then and there to answer to our said Lord the King for and concerning the felonious taking and stealing of , (for the suspicion whereof he was taken and committed to your said gaol.) We command you on behalf of our said Lord the King, that if the said A — O — do remain in your said gaol, for the said cause, and for none other, then you forbear to de- tain him any longer ; but that you deliver him thence, and suffer him to go at large ; and that upon the pain that will thereon ensue. Given under our hands and seals, at iu the said County, the day of , in the year of our Lord . 01 i... ■'V' I, , A— R— , J. P. !j, af'; iit; jiii. ./\ .V;»,ii'.«J 0, ^'Bj1J_ ;h}H /V-J- I iP.yti ■W i ..r\:^//: i;l ';^^j; BANKS OP RIVERS, see RIVERS. >1V7 7/ ,, ) :;'" 1 tiii:' it ') I u •■•i >t > \ FIAS'I'ARDS. (».( •■'■it Evidence of Parent! as lo Legitimacy or otherwise. Divorce and Volantary Se- paration. \. Who shall df. nr.FMP.n a Bastard. II. Ol-' SKCURINCJ Till'- MAINTKNANL'K OP BaSTARDS. III. Op TIIR PirNISIIMCNT OP A WoMAN FOR MAKINO A PAI.SK ACCUSATION CONCKHNING BaSTARDV. iV. MuRi)P.iiiNa A Bastard Child. 1. Who shall bf. df.rmf.d a Bastard. If n child bo begotten, whilst tbo parents nrc single, and they will ('iidcavoiir to make an early reparation for the offence, by marrying wiiliin a low months after ; oor law is so indnl* gent, as not to bastardixe the child, if it be horn^ thongli not be- frollcn'iu lawful wcdKxdi. 1 Jilack. Com. 4.')G. If a woman great with child, marry, it is the child of the husband ; for when they testify their consent by a public mar- riage, before the birth of the child, it is a public acknow- ledgment, that the child is his ; for at that time the child is one with the mother ; and therefore in taking the mother he takes the child with her. 1 Burn^s, 242. The child of a married woman may be born a bastard, and if so, shall be within the remedial law concerning bastards. Even though the husband and wife arc both in one country, if there be sufficient proof that he had no access to her, the child will be a bastard. 1 Burn^s^ 239. '' "\^-»-: <'>u i'.n The wife may be a witness to the fact of her'incoiitinence, but not to the fact of the non-access of her husband. Id. A father has been permitted to give evidence to bastardise the son, by disproving a marriage, and there are matiy other cases in which it has been decided, that the parents may be called as teitnesses with respect to the legitimacy of their issue ; and if they may be called to prove that they are legitimate children, there is no reason wh)- they should be considered as incoiTipetent when called upon to prove that the children arc illegitimate. But in all these cases, such testimony is open to great observation. Rex vs. Bramley, 6, T. R. S30. 1 Burn'Sy 242. Note. It is to be understood, however, that a parent who is a party in the causey cannot be admitted as a witness. Where a woman is separated from her husband by a di- vorce d mensa el thora, the children she has during the sepa- ration are bastards ; for a due obedience to the sentence shall be intended, unless the contrary be'shewn ; but if a husband and wife without sentence, do part, and live separate, the children being made, or the giving such security, by paying into the hands of the overseers of the poor, twenty pounds for the sup- port of the child, according to the option given by the Statute. It has been decided, that an order of filiation upon the Formnnflpnr- putative father of a bastard child, slating that the child *' is like- ti«'ulurs of ihe ly to become chargeable," is sufficient, without shewing thai it was actxmlhj chargeable. Ilex vs. Ilardngton — Upper Quar- ter 4 JM. fy. S. 559. Extent of the Order and fe'e- Order. 4G BASTARDS. !■■; M m There must be an express adjudication by the Justices, as to who is the reputed father, otherwise the order will be quashed for such defect. The Court of K. B. quashed an order of bastardy, which only stated, " Whereas it hath ap- peared to us, &c." without an express adjudication^ that the person charged, was the putative father. 1 Btirn^s, 263. But the Justices cannot adjudge a person not to be the putative fa- ther. Id. An order for maintenance of a bastard, directing that a certain sum in gross shall be paid upon sight of the order, and after that, so much weekly, is good ; for by the Statute, the Justices are to make an order for the relief of the place or child ; and this may be only indemnifying the place for money laid out, before the reputed father was found. Also, if an order directs a sum to be paid towards the lying-in, and maintenance ; it seems to be enough, without stating that the sum was expended bv the overseers. Id. 264. The Statute directs, that the order shall require security to be given, that " the child shall not become burthensome or chargeable to any place in the Province" without any limitation ' as to time ; therefore, an order that so much money shall be paid weekly, or otherwise, until the child shall be of a certain age ; or until it can get its living by working, will not be good ; but the order must be according to the above express tern«s of the Statute. See 1 Stern's, 264. The order must be for maintenance only, and cannot be for payment of a sum for putting out the child an apprentice, or the like. Id. By the express words of the Statute, it will be seen, that the party charged in the order with the maintenance of the child, if failing to comply with it, after receiving notice thereof, shall be committed to gaol, or the house of correction, for six months ; except he or she shall give security to perform such order, or to appear at the next Sessions and abide by such order as shall there be made ; or if no order is made at tho Sessions, then to abide by the first order. Commitment ^V virtue of this clause of the Statute, if the mother of the of the Mother, bastard child marries before an order is made, by which she is charged with the maintenance of the child, she may be commit- ted for disobeying it ; because it is for a criminal offence, in disobeying the order of the Justices ; and her husband need not be summoned with her. Seel flteni's, 255. The Justices have authority to commit a soldier in acluiil service^ for disobeying an order of bastardy, for he is not pro- tected against such commilnient by the Mutiny Act. Rex ff. ..1rckci\ 2 T. R. 270. 1 /iu/n'f, 265. ,, , . . BASTARDS. 47 lie Justices, ider will be quashed an it hath ap- n, that the , 263. But putative fa- ;tiug that a ! order, and Statute, the ice or child ; ley laid out, )rder directs tenance ; it IS expended lire security Jiensome or !iy limitation ney shall be of a certain will not be 3ve express cannot be apprentice, )e seen, that nee of the ice thereof, ion, for six jrform sucli Je by such lade at tho )ther of the hich she is )e commit- offence, in band need r in acluul not pro- Rex vs :| Until default shall be made the Justices have no power to Nq Commii- commit or to require stneties for performance of the order, or ment. «ic. un- for appearing at the Sessions. 1 Burn's, 258. But as has »'' tle/ault of been seen in the second clause of the Provincial Statute already ** ®3""6"'^ cited, the Justices are authorised in and by the Order of Filia- tion, to require the reputed father or mother to find sufficient security that the child shall not become chargeable to any place in the Province. This security, it would seem, should be by recognizance, according to the form No. 10, hereafter given. Form op an Order op Filiation and Maintenance. To the Overseers of the Poor of the township of County of > The Order of A— M— and A— R ) Esquires, two of His Majesty's Justices the Peace, in and for the said County, made the day of 5 of in the year one thousand eight hundred and — , con- cerning a (fe)male bastard child, lately born in the township of , in the said County, of the body of A — S — , single woman. Whereas it hath been duly made to appear unto us the said Justices, as well upon the complaint of the Overseers of the poor of the said township of , as upon the oath of the said A — S — , that she the said A — S — , on the day of- last past, vk'as delivered of a (fe)male bastard child, at , in the township of , in the said County ; and that the said bastard child is now chargeable to the said township of and likely so to continue ; and further, that A — F — of in the said County, yeoman, did beget the said bastard child on the body of her the said A — S — . And whereas the said A — F — has appeared before us, in pursuance of our summons for that purpose, but has not shewn any sufficient cause why he the said A — F — shall not be the reputed father of the said bastard child, [or, — And whereas it has been duly proved to us upon oath, that the said A — F — has been duly summoned to appear before us the said Justices, to the end that we might examine into the cause and circumstances of the premises ; and whereas the said A — F — has neglected to appear before us, according to the said summons ;] We therefore upon exami- nation of the cause and circumstances of the premises, as well upon the oath of the said A — S — as otherwise, do hereby adjudge him the said A — F — to be the reputed father of the said bastard child. And thereupon we do order, as well for the better relief of the said township of , as for the susientation and relief of the said bastard child, that the said A — F — , shall and do m 4.S BASTAUDS. ¥Ui m Directions. lortlivv'uli, upon notice of this oiu' order, |)ay or cause to he paid, to tlie said Overseers of the poor of the said township of , or to sonie or one of them, the sum of , for and towards the reasonable charges and expences incident to the said birth, and for and towards the maintenance of tiie said bas- tard child, to the time of making this our order. And we do also hereby further order, that the said A — F — shall likewise pay or cause to be paid, to the Overseers of the poor of the said township of for the time being, or to one or some of them, the sum of weekly, and every week, from the pre- sent time, for and towards the keeping, sustentation, and main- tenance of the said bastard child, ibr and during so long a time as the said bastard child shall be chargeable to the said town- ship of . And we do also further order, that the said A — F — shall forthwith find one sufficient surety, and be bound with him to our Lord the King in a recognizance, himself in the sum of pounds, and the said surety in the sum of pounds, — conditioned that the said bastard child shall not be- come burthensome or chargeable to any placd in this Province ; or else that the said A — F — shall j)ay into the hands of the Overseers of the poor of the said township, the sum of twenty pounds, for the support of the said bastard child, pursuant to the Statute in such case provided. Given under our hands and seals the day and year first above written. [Seal.] A— M— , J. P. [Seal.] . i ... A-.R— , J. P. The above Order is made against the reputed father, but by the express terms of the Statute, it may be made upon the mother, if the Justices in their discretion see fit to do so, under circumstances ; as where the reputed father is absent, or the mother refuses to disclose who is the father, or for other cause. A copy of the order should be left with the Overseers of the poor, and another copy, as a notice, should be given to the party on whom it is made ; and if at any time after, such party shall fail in complying with the same, the Overseers may make information and complaint thereof before any one Justice or more ; and cause such party to be summoned to appear before such Justice or Justices, to answer to the premises ; and if upon the hearing of the matter it appears that the said party has made such default, then he must forthwith find sufficient security to the satisfaction of the Justice or Justices, by enter- ing into a recognizance with one surety or more, according to the form hereafter given, to observe and perform the said order made by them, or else personally to appear at the next Cioneral Sessions, and abide by such order as shall there he made abide rity, t to the the S 1 " that if the mon \ judgme Justice heard petual. given. 3. iM^ ■ ■.0'.4 ^ BASTARDS. • cause to be township of — , for and dent to the he said bas- And we do hall likewise poor of the 3 or some of otn the pre- 1, and main* long a time e said town- :he said A — id be bound limself in the urn of hall not be- is Province ; hands of the m of twenty pursuant to ur hands and made ; and if no order shall be made at the Sessions, then to abide by the first order. If the party fails to find such secu- rity, the Justice, or Justices shall forthwith commit him or her to the common gaol, or house of correction, for six months, as the Statute prescribes. > y — .-'w'l By the last clause of the aforesaid Statute, it is provided, Appeal from ** that if any person shall think himself wrongfully charged, or pyj,"'**" "'^ if the person charging him, be a woman of ill tame, or a com- mon whore ; in such cases upon giving security to abide the judgment of the Court, he may appeal from the order of the Justices to the next Sessions, when the whole cause may be heard and tried by such Court, on the verdict of a jury.'^ Per- petual. :..niiit)fj:> If therefore the party adjudged in the order to be the repu- Direction!, ted father, makes known to the Justices, that he so appeals, they are bound to allow it ; and the party must give the secu- rity ; which should be by entering into a recognizance before the Justices, with one surety or more, in such respective sums as the Justices shall name, and according to the form hereafter given. At or before the next Sessions, the Justices must deliver in to the Clerk of the Peace, the said order made by them, to- gether with a record of such recognizance, on appeal, or a minute thereof ; and all other papers in their hands relating to the matter. After such appeal made, and the requisite security given, it would seem, that no proceedings under the order can take place against the reputed father, thereby charged, until after the appeal is determined. 3. Of the right of the Father or Mother to the custody of iiji*i.'f f-'-.-,;i.-i,.'.i '■ , ..li.jt/ the Child. ' •.•<>■■■ ■ i^tUt ji) t-'iifiu. «jdj ,.,■ . ■ •* ■ •. -I' •' .; . • . ' ^ ' -. . . " , .,. ,f • . r Whetheii the Overseers shall have the sole application of t> money, and ordering of the child ; or the reputed father may take tlie child from the parish and provide for it himself, hath been doubted, and seems not yet to have been fully set- tled. In the case of Newland vs. Osman, T. 27, G. 2, it was indeed held by the Court, (with the exception of on6 Judge, who doubted,) that the putative father may take his child and maintain it himself; and that this has always been given as a reason why orders for the maintenance of such children must not be limited to any certain time. 1 Bum's, 256. The mother is entitled to the custody of her illegitimate child, in preference to the father, though he may be better able to educate it. /rf. 2.'>7, - ■-. :...;. 7 !*i'. *. BASTARDS. III. 'l [n0f\: Va «■>! >■-. '■ .Hoi'i. ■ « -• ,^r .vin.-!ju-*«;t fi'nm !o I •! . tlu'if vnh^'tp <). riij IV. Murdering A Bastard Child. Ij ••junin r V. ;By § 5 of the 32 G. 2, c. 13. 1 V. 16, it was declared,— "that the mother of a bastard child, concealing its death, should suffer death as in case of murder, unless she could prove by one witness, that the child was born dead." But the said Section is repealed by the 53 G. 3, c. 11 2 V. 108, by which it is enacted, tllat " the trials of womfen charged with the murder of any issue of their bodies, male or female, which being born alive, would by law be bastard, shall thereafter pro- ceed and be governed by such and the like rules of evidence, ajad of presymption, as are by law used and allowed to take place in other trials of murder ; and as if the said Section of the said Act had never been made. Provided always, that it shall and may be lawful for the Jury by whose verdict ntiy pri- soner charged with such murder as aforesaid shall be acquitted, to find, in case it shall so appear in evidence, that the prisoner was delivered of issue of her body, male or female, which if born alive, would have been bastard ; and that she did by seci-lt burying, or otherwise, endeavour to conceal the birth thereof; — and thereupon, it shall be lawful for the Court be- fore which such prisoner shall have been tried, to adjudge that the said prisoner shall be committed to the common gaol, or -'*V«'"'- •' BASTARDS. Si house of coi'icction, for any lime not exceeding two years. Perpettiiil. . Tills last mentioned Statute, extends to all caeos of con- cealment of the birtli ; whether the child be born alive or otherwise. See I Burn*Sy 2GB. , ; ^ No. 1. j'.hiset \ Voluntary Examination or a Woman with child of -juMcu • : ' A Bastard. .. -ii- •.-!-;■ .:.i.^ ;.:..-!.. County of The Voluntary examination of A— S — of in the said County, single woman, taken upon oath , before me A — M — one of His Majesty's Justices of the Peace in and for the said County, the — ■ day of in the year of our Lord Who on her oath declares, that she is now with child ; and that such child is likely to be born a bastard ; and to be chargeable to the township of in the said County, and that A — ' F — of in the said county, labourer, did get her with child. Taken and signed the day and year ) '• '>'f> •oi ,^ivti- ri above written, before me, ..,iu.A). A-- S — . A— M— , J. P. - ) bv.) biiiitf JVfW-'««siii'W'i*«^'''^^'' ■ '^^^^ '•''*' .'bfjfe rf'ifii '.m' .,tv. ; ii^rf-nilittfo "}r> 'Yiio?? No 2i-~'- t'^ "i^* '^'^- fwb >b.u:{ bns Examination after the Birth. County of ) The examination of A — S — of in the ) said county, single woman, taken upon oath before me A — M — , one of His Majesty's Justices of the Peace in and for the said county, this day of, in the year, of our Lord : "-h yiii m .■^-4*»t,--lo «5»i}4»ir.7t)i!.'/ Who sailh, that on the day of now last past, at in the township of , in the county aforesaid, the said A. S. was^ delivered of a (male) bastard child ; and that the said bastard child is likely to become chargeable to the said township of , and that A — F — of in the said county, labourer, did get her with child of the said bastard child . ^ - Taken ftnd signed the day and year ) ^ imi' above written, before me, > A— S — . • ' t?tf5>? 'Ki>- or (*5ttiA. M., J. Peace. ) i;; sii"} •tciooMd o^ m bastard;^. ■m fi^i f /m f «ilv4«.>i. The like after the Birth. To each and every of the Constables of the township of , in the said County. - w<^>j [Seal] Whereas A — S — of in the said county, single woman, hath by her examination taken in writing, upon oath before me A — M — , one of His Majesty's Justices of the Peace in and for the said county, declared, that on the — day of now last past, at in the township of in the county aforesaid, she the said A — S — was delivered of a (male) bastard child ; and that the said bastard child, is likely to become chargeable, (or is actually chargeable) to the said township of and hath charged A — F — of in the M' JUL BASTARDS. ra «aid county, labourer, with having gotten hor with child of the said bastard child ; and whereas O — P — one of the Overseers of the poor of the township of aforesaid, in order to in- demnify the said township in the premises, hath applied to me, to issue my ivarrant for the apprehension of the said A — F — ; I do therefore hereby command you, immediately to appre- hend the said A — F — and to bring him before me, or some other of His Majesty's Justices of the peace for the said county, to find security to indemnify the said township of •—»-' from the supporting of such bastard child ; and to enter into a recog- nizance with sufficient security for his appearance at the next General Sessions in the said county, to be there dealt with ac> cording to law. Given under my hand and seal, the — day of in the year of our Lord, r : i i.i.j i .• . :. A — M — , J. Peace. No. fi. u. Commitment thkreupon. H' County of ''i To A — B — one of the Constables of the township of in the said county. i - i*i [Seal.] Whereas A. S. of in the said county, single woman, in her voluntary examination, taken in writing upon oath the »-■ ■ - day of , in the year of our Lord one thou- sand eight hundred and , before me A — M — , one of His Majesty's Justices of the Peace in and for the said county, hath declared lierself to be with child ; and that the said child is likely to be bom a bastard, and to be chargeable to the said township of — — , and hath charged A — F — of in the said county, labourer, with having gotten her with child of the said child, [or if it is afier the birth then say : Whereas A — S— of , single woman, in her examination, taken in wri- ting upon oath before me A — M — , one of his Majesty's Jus- tices of the Peace in and for the said county, hath declared that on the day of , in the year of our Lord at in the township of , in the county aforesaid, she the said A — S— - was delivered of a (male) bastard child ; and that the ^aid bastard child, is likely to become chargeable to the said township of , and hath charged A — F — of in the said county, labourer, with having gotten her with child of the said bastard child ;] And whereas the said A — F — being now personally present before me, being brought by my warrant, upon application for that purpose to me made, by — P — , one of the Overseers of the poor of the said township, hath refused to give security to indemnify the said township ; III 51. BA8TAUDS. und liaili mIso refiHud to cnlur into a iccugiiiicaiicc with sulK- cieiit security, upon condition to oppcar at the next Goiierul Sessions ot'thu Peace to be holdcti lor the said County ; con- trory to the Statute in such case provided. These are there- fore to command you the said Constable, to take and convoy the said A — ¥ — to tiio common gaol at—, in the said county, and to deliver him to the keeper thereof, together with this warrant : And I do hereby command you the said keeper of the said common gaol, to receivo the said A— F — hito your custody in the said common gaol, and him there safely to keep, until he shall givo such security, and enter into such recogni- zance as ul'oresaid ; or bo otherwise lawfully delivered from thence. Given under my hand and seal at , the — "- day of in the year of our Lord, > * niu fo m-jy 'Hi/ ni — *- :- t - . • A — M — , J. Peace. No. 6. Bond to Indemnify the township. •■ •' Know all men by these Presents, that we A — P — , o<* the township of in the county of , labourer, and B — C — and D — E — of the township of in the said county, yeomen, are held and firmly bound unto O — P— « and R — S — , Overseers of the poor of the said township of in the said county, (in trust for the inhabitants of the said town- ship of ), in pounds of lawful money of the Province of Nova Scotia, to be paid to the said — P — and R — S— , or their certain Attorney, their Executors, Administrators, or Assigns. To which payment well and truly to be made, wo bind ourselves and each of us, jointly and severally, and our and each and every of our heirs, executors and administrators, firmly by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand eight hundred and The condition of this obligation is such; that whereas A — S — of the township of in the county aforesaid, single wo- man, hath in and by her voluntary examination, taken in writing and upon oath before A — M— , Esquire, one of His Majesty's Justices of the Peace in and for the said county of' ^, declared that she is with child, and that the said child is likely to be bom a bastard ; and to be chargeable to the said township of—— ; and that the above bounden A — F — did get her with child ; j If it is after the birth, then say, instead of the foregoing The condition of this obligation is such, that whereas A — S — , of the township of in the county aforesaid, single woman, ■I UASTARDS. 55 wiili sulK- :t Qeiierul nty ; con- arc there- 11(1 convoy lid county, with this keeper oC into your y to keep, 1 recogni- ered frmn — ^ day Ir III -*— •- ence. -P— , d ', and B — id county, and R — of aid town- Province itors, or lade, wo and our jistrators, [)d dated Ithousand reas A — )gle vvo- writing [ajesty's lleclared bom a cbiki ; The S-, ivouian, in lior examination takoti in writing upon oath .leforo \ — M — , Fisqiiirof one of lli.s Majusly's Justices of tlie IV'ace in and for tlio said county, imth declared, titat on the day of now lost past, at in the said township of the county aforesaid, she the said A — S — was delivered of a (niale) bastard child ; and that the said bastard child is likely to become chargeable to the said township of , and hath charged the obove bound A — F — with having gotten her with child of the said bastard child.] If therefore Uie said A — F — JB — C — and D — E — , or any, or either of them, their, or any or either of their heirs, executors or administrators, do and shall, from time to time, and at all times hereafter, fully and clearly indemnify and save harmless, as well the above named Overseers of the poor of the said township of , and their successors for the time being, as also, all and singular the other inhabitants of the said township of , which now are, or hereafter shall be, for the time being, of and from all man- ner of costfl, taxes, rates, assessments, and charges whatsoever, for or by reason of the birth, education and maintenance of tho said child ; and of and from all actions, suits, troubles, and other charges and demands whatsoever, touching or concern- ing the same, then this present obligation to be void ; other- wise of force. '.n- . , .i(u;y im;,: '.(t: :,? ^ ■ .',■> f};r.?(lVA>< '.>l1' [Sedl.l [Seal. I [Seal.j Signed, sealed and delivered ) A — P — . in the presence of ; , ) . B — C — . A — W-— . l>'jKnv«)(i iiuu D— E — . B — W — .. i-fifii.fi t •ito .ImiJ. Vfi} 'to iii'iv; u(i/ ti{ ,-+• nuij'Ki jui-i . *!► — ^~^ K.>' f^ijieiiwiii wu ui ■^"-— hi f*^ — ^ twv- f-jI.'iniW: ii> j*£)uovikii> hfei ■* — /. liib'H ';i;j inb .hnii.iy:{:>Ui •.\Kf of ^ii>/lii h\ \>i'nv> h'Ui No. 7» nil J..?Jf Jim; '. \Ah'\a inr.l't-i tiicd (itTR ; ••"fifr' -la tiiiUiH) tjii i*ii.f. »<*» <•» -i! .iiwFjJsiifi 'jmiv^ Recognizance FOR the reputed Father to appear at THE next Sessions, pursuant to the Stat. 32. G. 2. €.19. § 1. 1 Vol. 28. County of) Be it Remembered, that on the — ^^~ day ) of ■ ' ■'■ in the year of our Lord one thousand eight hundred and , A — F — of the township of in the county aforesaid, labourer^ and A— B— of ■ in the county aforesaid, yeoman, personally came before me A— M — , Esquire, one of His Majesty's Justices of the Peace for the said County of , and acknowledged themselves to owe to our Lord the King ; that is to say, tho said A — F — the sum of pounds, and the said A— B — the sum of pounds, of lawful money of the Province of Nova Scotia, to be made and levied of their coods and chat- m' 50 BASTARDS. tels, lands and tenements, respectively, to the use of our said Lord the King, his heirs and successors, if the said A— F— shall make default in the condition under written. Whereas A — S— of the township of in the coun- ty of , single woman, hath in and by her voluntary exam- ination, taken in writing, and upon oath, before A— M— one of His Majesty's Justices of the Peace, in and for the said county of , declared that she is with child, and that the said child is likely to be born a bastard ; and to be charge- able to the said township of , and that the above bounden A F did get her with child : The condition of this recognizance is such, that if the above bounden A F do and shall appear at the next General Sessions of the Peace, to be hoiden in and for the said county, and shall abide and perform such order or determination in the said premises, es shall be then and there made in pursuance of the Statute of this Province, passed in the 32d year of the reign of His Majesty King George the Second, concerning bastard children, then this recognizance to be void ; otherwise of force. Acknowledged before me. A — M— , J. P. [If it is after the birth, then say. Whereas A. S. of the township of , in the said county, single woman, in and by her examination, taken in writing upon oath, before me A. M., one of His Majesty's Justices of the Peace in and for the said county, hath declared, that on the — .— day of , in the year of our Lord one thousand eight hundred and , at in the township of in the county aforesaid, she the said A — S — was delivered of a (male) bastard child ; and that the siaid bastard child is likely- to be- come chargeable to the said township of ; and hath charged the above bound A — F — with having gotten her with child of the said bastard child. The condition of this recognizance is such, that if the above bound A. F. do and shall appear at the next General Sessions of the Peace to be hoiden in and for the said county, and siiall abide ?<:d per- form such order or determination in the said premises, as shall be then and there made, in pursuance of the Statute of this Province passed in the 32d year of the reign of His Majesty King George the Second, concerning bastard children ; then this recognizance to be void ; otherwise of force. M^iU ,--••: Acknowledged bpfore me, A. M., J. Peace. ./') (.'. : Mi:: Mi !,> Ii:il: is -i IVarrl A eel c\ Counts [Scd [Seal W and A. and lor where t well up said tow as well u as on ih woman, one thou delivereo ship of - said coui that the likely to These ar before u? the — di same daj and that may like lawful de cause am right dot! hereof, y aforesaid in 1 ' our said \... F— he coun- ty exam* i— M— 1 for the and that e charge- bounden 1 of this -F e Peace, bide and nises, as itc of this Majesty en, then J P. I. S. of aman, in I, before "^eace in 1— day lundred county (male) to be- d hath ■ten her of this F. do eace to i:d per- s shall >f this lajesty then ,1 ',r ' i . ,M 'Ml I BASTARDS. No. 8. 57 Warrant of two Justices^ against Ike Mother, with, a Sumraons for the reputed Father, to make the Order of Filiation and Maintenance ; jmrsuant to 2nd »Slcc. of the 32 G, 2, c. 19« '- *t*'' ?' " County of [Seal.] [Seal] To A. B. one of the Constables of township of , in the said County, the !■! Whereas informalion hath been made unto us A. M,, and A. R., two of Ills Majesty's Justices of the Peace in and lor the said county, and both of us residing near the place where the bastard child hereinafter mentioned was bom, as well upon the complair'.. of the Overseers of the poor ol' ihc said township, [or if complaint is by a houseiiolder then say,- aswell upon the complaint of G. II. a substantial householder,! as on the oath of A. S. of , in the said county, single woman, that on the day of , in the year of our Lord one thousand eight hundred and , she the said A, S. was delivered of a (male) bastard child, at , in the said town- ship of , and that A. F. in the township of in the said county, tailor, is the father of the said bastard child ; and that the said bastard child is now living and chargeable, (or likely to become chargeable) to the said township of : These are therefore to commaud you to bring the said A. S. before us at the house of , in in the said county, on the — day of , at the hoin* of — in the forenoon of the same day, to be by i"j further examined touching the premises ; and that you give notice thereof unto the said A F. that ho may likewise be at the time and place aforesaid to make his lawful defenci : To the end that upon the examination of the cause and ;.ircumstances, we may take such ori-ler therein as to right doth appertain. And what you shall do in the execution hereof, you are to make known unto us, at the lime and place aforesaid. Given under our hands and seals the — day of in the year of our Lord- A. M., J P. A U 8 iM m |jJ| ^ yW 1 ■■ fii '■> fi i:_. ^ '^ ri *.. i' I: .i"^ ii f II; Wkv ^ir mim fW 68 HASTARDS. No. y. IVarranl of two Justices against the Mother ^ for the purpose of making the Order of Filiation and Maintenance, where she has not declared on Oath who is the Father. County of ^ To A. B. one of the Constables of the town- \ ship of in the said County. iSeal.l iSeal.j AVhereas information hath been made unto us A. M. and A. II., two of His Majesty's Justices of the Peace in and for the said county, and both of us residing near the place where the bastard child hereinafter mentioned was born, upon the complaint of the Overseers of the poor of the said township of , [or, if by a household, say, upon the complaint of G. H. a substantial householder,] that on or about the day of , in the year of our Lord one thousand eight hun- dred and , A. S. of in the said county, single wo- man, was delivered of a (male) bastard child, at in the said township of , and that the said bastard child is now living, and chargeable, or likely to become chargeable to the said township of : These arc therefore to command you to bring the said A. S. before us at the house of in , in the said county, on the day of , at the hour of — in the forenoon of the same day, to be by us examined touching the premises ; to the end that upon examination of the cause and circumstances, we may take such order therei > as to rie;ht doth appertain. And what you shall do in the exe- cution hereof, you a: 3 to make known unto us, at the time and place aforesaid. Given under our hands and seals, at the day of , in the year of our Lord one thousand eight hundred and A. M., J. P. A. R., J. P. No. 10. Recognizance of the reputed Father, that the child shall not become burlhensome or chargeable to any Place in the Pro- vince, as required in the Statute, and the Order of Filiation. County of) Be it Remembered, that on the day \ of , in the year of our Lord one thousand eight hundred and , A. F. of in the county aforesaid, labourer, and A. B. of in the county aforesaid, yeoman, our offol oflal and respc and s| dilior BASTARDS. 59 JtVtl he purpose ncCf where r the town- us A. M. ace in and the place jorn, upon d township mplaint of the eight hun- single \vo- in the ild is now ible to the nnand you -in , le hour of examined ination of r therei > the exe- time and It the ^and eight P. P. yshall not \lhe Pro- Viliation. — day thousand [foresaid, ^eoniaii, 1 peisonally came before us A. M. and A. 11. Esquires, two of tiie Justices of our Lord the K'w^ assigned to keep the peace in the said county, and acknowledged themselves to owe to our said Lord die King ; that is to say, the said A. F. the sum of forty pounds, and the said A. S. the sum of twenty pounds, of lawful money of the Province of Nova Scotia, to be made and levied of their goods and chattels, lands and tenements, respectively, to the use of our said Lord the King, his heirs and successors, if the said A. F. shall make default in the con- dition under written. Whereas A. S. of in the county of , single woman, was on the — day of , in the year of our Lord one thousand eight hundred and , at in the township of in the said county, delivered of a male bastard child ; which said bastard child is likely to become chargeable to the said township of ; And whereas she the said A. S. in and by her examination, taken upon oath before us, hath charged the above bound A. F. with having gotten her with child of the said bastard child ; and whereas we the said Justices on due examination of the cause and circumstances, pursuant to the Statute in such case provided, have by our order, made on the — day of in the year aforesaid, among other diings, ad- judged the above bound A. F. to be the reputed father of the said bastard child ; the condition of this recognizance is such, that if the above bound A. F., do and shall hereafter prevent and keep the said bastard child from becoming burthensome or chargeable to any place in the said Province of Nova Scotia, then this recognizance to be void, otherwise of force. Acknowledged before us, * A. M., J. P. A. R., J. P. No. 11. Recognisance of the reputed Father, where he appeab to the next Sessions against the Order of Filiation. County of } Be it REMEMnEREn, that on tlic — diy of S J in the year of our Lord one thousand c'^^ht hundred and , A. F. of in the county aforesaid, la- bourer, and A. B. of , in the county aforesaid, yeoman, personally came before us A. M. and A. R. Esquires, two of the Justices of our Lord the King assigned to keep the ))eace in the said county, and acknowledged themselves to owe to our said Lord the King ; that is to say, the said A. F. the sum of forty pound i, and the snid A. B. the sum of twenty pounds, iii (>0 m k 1 J i ■ fa ! urn BASTARDS. of lawful money of iho Province of Nova Scotia, to be made and levied of their goods and chattels, lands and tenements, res- pectively, to the use of our said Lord the King, his heii's and successois, if the said A. F. shall make default in the condition underwritten. >, Whereas by an order under the hands and seals of us the said Justices, duly made or, the — day of in the year aforesaid, it is adjudj^cd by us the said Justices, that he the said A. F. is the reputed father of a male bastard child, born at in the said county, on the — day of in the year one thou- sand oii|;ht hundred and , of the body of A. S. of in the said county, single woman ; And whereas the said A. F. hath appealed against the said order, to the next General Ses- sions of the Peace, to be holden in and for the said county, j)ursuant to the Statute in such case provided,: The condition of this recognizance is such, that if the said A. F. shall well and truly abide and perform the judgment of the said Court of General Sessions, in the premises ; dien this recognizance to be void ; otherwise of force. Acknovvletlged before us. A. M., J. P. A . Ill . , tl • 1. . lie ihd that til said o| merit the sal said SI to the the ac\ Justice said Ji\ thcretc Bl No. 12. Information of the neglect or rejuccd of the reputed Father or the Mother of a Bastard child^ to perform the Order for J\Iaiulcnancc. ' -^ ? ■ r • ■ •" ,. County of ^ The information and complaint of A. O. one ^ of the Overseers of the j)Oor of the township of — in the said county, made on oath before me A. T. one of His Majesty's Justices of the Peace for the said county, the — day of in the year of our Lord one thousand eight hundred and . Who on his oath aforesaid says, that by an order under the hands and seals of A. M. and A. 11., two of His Majes- ty's Justices of the Peace in and for the said county, A. F. of in the county aforesaid, labourer, is adjudged to be the reputed faihoi of a (male) bastard child, born of the body of A. S., single woman, in the township of in the said county ; and that against the said order no appeal hath been preferred, [or, that the said order was u})on appeal confirmed by the Court of General Sessions, held in and for the said county, on the day of last.] And that in and by I he said order, it is ordered, that die said A. F. shall pay the suni of for and towards , and that the said baytar(' child is now living within the said township of — — ; and that BASTARDS. ()l » be made eiits, res- heii's and condilion . i.M 'tl: of US ihc the year le the said •n at one thou- »f in lid A. F. leral Scs- i\ county, condition shall well aid Court ognizancc J. P. LP. Father or Irder for 3 I ho the said A. F. has had due notice of the said order, and that the sum of due by the said A. F. under and by the said order, has not yet been paid, and that demand of pay- ment thereof has been made upon the said A. F., but that he the said A. F. has refused to pay the same ; whereby the said sum of is now due and owing from the said A. F. to the Overseers of the poor of the said township of , on the account aforesaid. And ihereui)on, he the said A. 0. prays me the said Justice, that the said A. F. may be brought before mc the said Justice, to answer the premises ; and to make his defence thereto ; and that justice may be done in the premises. Before me, A. T., J. P. . . • > , No. J3. . • » '. Summons thereon. County of } To each and every of the Constables of the ^ lov.nship of in the said county. [Seal.; Whereas information and complaint upon oath have been made before me, A. T., or... of His Majesty's Justices of the Peace for the said County, by A. 0. one of the Overseers of the poor of the township of in the said county, that by an order under the hands and seals of A. M. and A. R., two of His Majesty's Justices of the Peace in and for the said county, A. F. of in the county of , labourer, is adjudged to be the reputed father of a (mnle) bastard child, born of the body of A. S., single woman, in the township of , in the said county of ; and diat against the said order no appeal hath been preferred, [or, — and that the said order was upon appeal confirmed by the Court of General Sessions, holden in and for the said c»..unty of , on the — day of last ;] and that in and by the said order, it is ordtn-ed, that he the said A. F., shall [setting out the order ;J and further, that the said bastard child is now living within the said township of ; and tJiat the said A. F. has had due notice of the said order ; and tliat IJie sun> of , due by the said A. F, under and by the said order, has not been paid ; and that demand of pay- ment thereof has been made upon the said A. F, but that the said A. F. hath refused to pay the same ; whereby the said sum of is now due and owing from the said A. F. to he Overseers of the poor of the said tewn?hij) of , on the ac count aforesaid ; And thereu|)on, ho the said A. 0., prays mc the !iaid Justice, that the said A. F. may be brought before me, I ■\i iY2 BASTARDS. to answer the prcniises, and to make liis tlofcncc tlicrcio. Now, I do therefore hereby command you, that immediately, yon duly summon, by leaving with him a copy of this my order, the said A. F., to appear before me the said Justice, at in the township of in the said county, on the day of next, at the hour of — in the forenoon, to answer the said complaint, and to be further dealt withal according to law. Herein fail you not. Given under my hand and seal, the day of , in the year of our Lord one thousand eight hun- dred and , A. T., J. P. No. 14. Recognizance of the reputed Father or the Mother, for per- formance of the Order of JMaintenancc, or for appearance at the next General Sessions ; and to abide by the Order tohick may be there made ; on judgment being given against the party, on the foregoing Summons. County of) Be it Rememberkd, that on the — day of ) in the year of our Lord one thousand eight hundred and , A. F. of in the county aforesaid, la- bourer, and A. B. of in the county aforesaid, yeoman, jjersonally came before me A. T., one of His Majesty's Jus- tices of the Peace for the said county, and acknowledged them- selves to owe to our Sovereign Lord the King ; that is to say, the said A. F. the sum of forty pounds, and the said A. B. the sum of twenty pounds of lawful money of the Province of No- va Scotia, to be made and levied of their goods and chattels, lands and tenements, respectively, to the use of our said Lord the King, his heirs and successors, if the said A. F shall make default in the condition under written. Whereas, by an order duly made under the hands and seals of A. M. and A. R., two of His Majesty's Justices of the Peace for the said county, the said A. F. is adjudged to be the reputed father of a (male) bastard child, born of the body of A. S., single woman, in the township of , in the said county ; and it is therein and thereby ordered that the said A. F. shall pay the sum of , for and towards . And whereas, on the information and complaint on oath of A. 0., one of tlie Overseers of the poor of the said township of , the sjiid A. F. has been duly summoned to appear before me, to answer for his not paying the sum of , due by liim upon the said order ; and whereas, on the hearing of the said com- plaint before me, it has been made to a})pear, that the said of the! the s! that h^ he thol order,! by ant that if I and tri tices, tion is the Ord tion «f sonally be hold by and or if no the said said abo jio. Now, niely, you my order, B, at — clay of or the said ing to law. , the eight hull- J. P. ', for per- ippenrance the Order en against — day of isand eight >resaid, la- , yeoman, sty's Jus- ged them- is to say, A. B. the ce of No- chattels, said Lord hall make lands and istices of iidged to the body I the said : the said . And A. a, of , (fore me, pirn upon lid com- Ithc said .-'J BASTARDS. A. F. had due notice of the said order, and that the sum of is due under Jhe same, l)y the said A. F. to tiio Overseers of the poor of the said township of , and that payment of the said sum has been duly demanded of the said A. F., but that he has neglected and refused to pay the same ; whereby ho the said A. F. has failed to observe and perform the said order, of which default, the said A. F. has been duly convicted by and before me : The condition of this recognizance is such, (hat if the above bounden A. F. do and shall in all things well and truly observe and perform the said order of the said Jus- tices, then this recognizance to be void ; otherwise of force. [ Or, if by the option and desire of the party, the condi- tion is for his appearance at the next Sessions, and to abide by the Order which may be there made, then say] — The condi- tion of this recognizance is such, that if the said A. F. shall per- sonally appear at the next General Sessions of the Peace, to be holden for the said county, and shall well and truly abide by and perform such order as shall be there made in that behalf ; or if no such order shall be made at the said Sessions, then if the said A. F. shall well and truly abide by and perform the said above mentioned order of the said Justices, then this re- cognizance to be void ; otherwise of force. Acknowledged before me, ; A. T., J. P. 4 . , .;,,... , - . No. 15. ...--, '• '' " . Commilmcnty where the Party convicted of not complying iciih the Order for Maintenance^ has neglected and refused to give the foregoing Security for the performance of the Or- der^ or for Jlppearance at the Sessions. .,. -,;, ., i^ .i-.- • GJ % County of; To A. C, \ Township of one of the Constables of the , in the said County ; and to the [Seal.] Keeper of the Common Gaol at , in the said County. Whereas information and complaint upon oath, have been made before me, A. T., one of His Majesty's Justices of the Peace for the said county, by A. 0. one of the Overseers of the poor of the township of in the said county, that by an order under the hands and seals of A. M. and A. R., two of His Majesty's Justices of the Peace for the said county, A. F. of in the county of , labourer, is adjudged to be the reputed father of a (male) bastard child, born of the body of A. S., single woman, in the township of . in the said county of , and that against the said order, no appeal C4 BASTARDS. 1 1 '..; i' lialli been preferred. [Or, — and that ilic said crdci was unon appeal confirmed by the Court of GcncraJ Sessions, holdcn in and for the said county, on the — day of last.] And that in and by the said order it is ordered, that be the said A. F. shall pay the sum of , for and towards ; and child is now living within the said further that the said bastard township of , and that the said A. F. has had due due by the notice of the said order, and thai the sum of — said A. F. under and by the said order, has not been paid, and that demand of payment thereof has been made uj»on the said A. F., but that he hath refused to pay the same ; whereby the said sum of is now due and owing from the said A. F. to the Overseers of the Poor of the said township of , on the account aforesaid ; and thereupon he the said A. 0. hath prayed me that the said A. F. might be brought before me, to answer the premises, and to make his defence thereto : and whereas the said A. F. having been thereupon duly summoned, now appears before me the said Justice, [or, doth not appear before me,] to answer unto the said complaint, and to be fur- ther dealt with accoruing to law ; and it appcarcih unto me the said Justice, as well on the oath of the said A. O., as otherwise, that the said sum of , is now due and owing from the said A. F. to the Overseers of the poor of the said township of , on the account aforesaid. But the said A. F., being called upon by me the said Justice, to show cause why the said sum is so unpaid, doth not shew to me any reasonable or sufficient cause for the same, I the said Justice do therefore order and adjudge, that he the said A. F. is guilty of the offence aforesaid. And whereas the said A. F. has neglected and refused to give security to perform the said or- der, or for his personal appearance at the next General Ses- sions for the said county, and to abide by such order as might be there made in that behalf, pursuant to the Statute in such case provided ; I the said Justice, do therefore hereby further order and adjudge, that for his offence aforesaid, of not paying the said sum of due under and by the said order, he the said A. F. be committed, and he is accordingly by me, hereby committed to the common gaol of the said County at , to be there detained in custody for the space of six months ; or until he the said A. F. shall give the said security touching the said order, pursuant to the said Statute ; or shall be thence delivered by due course of law. And I do hereby charge and command you the said Constable, forthwith to take and con- vey the said A. F. to the said common gaol of the said county, at , and there deliver him to the keeper thereof, together with this precept. And I do also hereby command you the ^^aid k\ into y( and d( the sail ihencel and scj Nl similar of mon^ diately judged ly ior tl the Ses made ; led to g defect ii the payr died by delay an in this F BAI 1 I /',':)'■ By each CO nominate the Cour beef, sol hundred where so ploy one of all cat shall forf( be recovi go to the the town: il , BASTAUOd. G5 was upon linidcii in ;t. 1 And the said — ; and n the said had due lie by the paid, and n the said lercby the I A. F. to , on L. 0. hath )re me, to reto : and immoncd, lot appear to be fur- h unto me A. O., as and owing Df the said ^t the said to show to me any d Justice . is guilty F. has c said or- ral Scs- as might in such y further lot paying tr, he the hereby , to haid keupei' of llit; sail 1 common gaol, to receive the .said A. F Inths ; or ;hing the thence karge and Ind con- county, j together you the I •If :f lUo yuur (Mistoily, in the said gaol, and him there safely to keoj) and detain, for the space of six months ; or until ho shall give the said security, pursuant to the Statute aforesaid ; or shall be thence delivered by duo course of law. Civeu under my hand and seal, the — day of one thousand eitrilit luauhod and A. T., J. P. ••^ .-■.•*:* 1 Note, — By the Provincial Act already cited, which is similar to the English Statute, of the 18 Eliz. c ;3, llio payment of money due upon an Order of Maintenance cannot bi; innue- diately enforced against the party by whom it has been ad- judged to be due ; but he can only be required to give securi- ty ior the poiforma\K',o of the order, or for his appearance at the Sessions, antl to abide by any order which may be there made ; or in default of giving such security, may be commit- ted to gaol or the house of correction, for six months. This defect in the said English Statute, as to immediately enforcing the payment of the money due under an order, has been reme- died by the 49 G. 3, c. G8, and it is highly expedient, to avoid delay and expense, that a similar amendment should be enacted in diis Province. ,,. ;.s»-'i ..1 iti ',:):yi{ lU I '*■&.. BATTERY, see ASSAULT AND BATTERY. '(,'1 th\['' '•! 'itii 'Mr- r.r: t- (' BEEF AND PORK. , I \>\t' Vi ■ 1 I. Weighing of Beef By the 10 G. 4, c. 17. 4 V. 47. " The Grand Jury for each county, at the first General Sessions, annually, shall nominate five or more persons in each township, out of whom the Court shall appoint two or more, to inspect and weigh, beef, sold to any butcher at a stated price, by the pound or hundred weight, and slaughtered by him, within the township where sold. And by Sec. 4, any butcher who shall not em- ploy one of such Inspectors, to inspect and weigh the beef of all cattle purchased and slaughtered by him, as aforesaid, shall forfeit for every head of such cattle, twenty shillings, to be recovered before one Justice ; one half of such penalty to go to the party prosecuting, and the other half to the poor of the township where the penalty is recovered. Temporary Jlcl. ..(■'■'I b!:ef and vouk Wjicu informalion of an ofVencc against tliis Siaiiite m given before liie Justice, Ik; must issue a Summons against the party charged, to appear before him, in at least three days after, and answer the charge ; and if he be convicted, a uar- ranl of distress for the penalty may issue. For the forms, see respectively., Titles, — Information, Summons, and Distress. II. Inspection of IJkki' and Pork for Exi'ortation spoctu rununil ..S I!! l' ^nr »ll By the II G. -1, c. G. 4 V. 70, " The Grand Jury an- nually, at the General Sessions, when the town ofhcors are appointed, shall nominate fgur persons in each township, out of whom the Court shall appoint two, to be Inspectors and re- packers of beef and pork intended lor exportation." By Sec. 12. — On Inspector stating on oath, before any Justice, his sus- picion that any hcvS or pork not inspected, is shipped on board any vessel for exportation, assigning the causes of his suspi- cion, the Justice if he ihinks the suspicion well founded, shall issue his warrant to such Inspector, to enter on board such ves- sel, and to make search for such beef or pork ; and if any such shall be found, the Justice, on application by such Inspector, shall issue his warrant directed to the Sheriff", his deputy, or any constable, to enter on board such vessel, and to cause such beef or pork to be re-landed, and delivered to the owner thereof, upon his paying all reasonable and lawful expences for the said warrant, search, and re-landing. Every person ob- structing the Inspector in making such search, or in re-landing such beef or pork, shall forfeit fifty pounds ; to be recovered on the oath of the Inspector, and to be paid to the Overseers of the poor of the township where the oflbnce was committed." Perpetual. No. 1. Form of Jiffidavit of Inspector under the above Slatute, stating his suspicion that Beef or Pork is shipped without being inspected. ... , County of) Personally appeared before me A. M., one ^ of His Majesty's Justices of the Peace for the said county of , A. I. of the township of , in the said county, one of the Inspectors for the said township, of salted beef and pork intended for exportation ; who being by me duly sworn, on this day of , in the year of our Lord one thousand eight hundred and , deposeth and saith, that, &c. [here state the fact of the oflence of shipment, without in- ■i; County! I Seal. VVI Lord or compiaii His Mr you the the odei These in thorisc a proper a: vessel, c make dis the said ^ any of tli it known further cj that beha said coun Warrant re-l( County of the to every otii respeciiv ( Seal. Wii of His IVJ the infori IJKEF AND PORK. 07 Stntiito \i ig,ninst the hrec (lays rid, a uor- brnis, see Distress. spoclion, or ilic causes of suspicion tliat tlio oUruco lias been roinmittcd. | A. I. Sworn before nic, A. M., J. r. M ,1" No. 2. )RTATION il Jury an- i/Kcprs are nship, out irs and rc- BySec. CO, hissus- ] on board his suspi- nded, shall 1 such ves- if any such Inspector, leputy, or \ to cause the owner pences for erson ob- re-landing recovered Overseers imitted." ff^arranl on the foregoing J]J)idavil. I. one of the Inspectors for llic town- in llic said county, for ibu inspoclion County of? To A. \ ship of I Seal. I of salted beef and pork, inicnded for exportation. VVherkas on the — day of , in the year of our Lord one thousand eight hundred and , information and complaint on oath liave been made before me AM., one of His Majesty's Justices of the Peace for the said county, by you the said A. I., stating that, [here recite the fact of the olfence, or causes of suspicion as stated in tlie allidavit ;| These are therefore in the name of our Lord the King, to au- thorise and re(piire you the said A. L, with necessary and proper assistants, to enter in the day time, on board of the said vessel, called the , and there diligently to search for, and make discovery of any salted beef or pork shipped on board of the said vessel, for exportation out of this Province ; and if any of the same shall be found upon such search, that you make it known to me, together with your doings hereon, that I may further cause to be done thereupon, what is by law required in that behalf. Given under my hand and seal, at in the said county, the — day of , in the year of our Lord 183 A. M., J. P. ..ir ! No. 3. |e, staling mt being M., one M' the said the said I of salted by me )ur Lord lith, that, Ithout in- Warrant for entering a Vessel having on board Uninspected Beef or Pork Jor exportation, and causing the same to be re-landed. ,, • « , . • ■. , County of To the Sheriff of the said county of or his deputy ; (or to E. C, one of the Constables of the township of in the said county, and (o each and every other of the Constables in and throughout the said county respectively.) [Seal.] ' Whereas it has been made to appear to me A. M., one of His Majesty's Justices of the Peace for the said county, on the information of A. L, one of the Ins})ectors for the said im il IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 2.5 m '^^ — ■tt iiii 12.2 « L& 12.0 u ^ - = III— 1^ < 6" » Photographic Scifflices Corporalion 23 WIST MAIN STMIT WItSTII.N.Y. 14SM (71«)«72-4S03 '^ 68 BEEF AND PORK. township, of salted beef and pork intended for exportation from this Province, under and by virtue of a search warrant, directed by me to the said A. I., that barrels of s<ed beef, which have not been inspected as by law provided and directed, are now on board of the ship or vessel, called the , now lying in the port of in the said County, and whereof E. M. is Master, and which beef is shipped on board of the said vessel for exportation from this Province, contrar}' to the Statute in such case provided ; These are therefore to authorise and re- quire you, with necessary and proper assistants, forthwith to enter on board of the said vessel, and to cause the said barrels of uninspected beef to be re-landed from the said ves- sel, and to be delivered to the owner or owners thereof, upon his or their paying all reasonable and lawful expenses of the aforesaid search warrant, directed by me to the said A. I., and also all reasonable and lawful expenses of making the said search, and of the re-landing of the said barrels of beef as here- in commanded. Herein fail not. Given under my hand and seal at — --in the said county, the — day of , in the year of our Lord (jiMo^^sfti,) tif iTw**ti* Jjuwi-ijui- i'iwtr u^^.^*a^ ^-.^ BILLETING. ■ '**=* p^^h^* .ns*" n By the 35 G. 3, c. 4: 1' V. 350, Any one Justice, inhabiting in or near any town or place, may quarter and billet the officers and soldiers in His Majesty's service, when march- ing from one district to another, in inns, taverns, and alehouses ; and where there shall not be found room in such houses, then in the houses of persons selling spirituous liquors by retail ; on the officer or non-commissioned officer commanding the regi- ment, or detachment, producing to such Justice, the order of the officer commanding His Majesty's forces within this Pro- vince, directing such march ; and if any such person to whom any such billet is directed and presented, shall refuse to quar- ter and billet the officers and soldiers, he is therein directed to receive, he shall forfeit five pounds for each offence, to be re- covered in any Court of Record. Perpetual. By the 48 G. 3, c. 2. 2 V. 44, Whenever any regiment or detachment of His Majesty's forces, or of the militia, shall be ordered to march from one district of the Province to ano- ther, it shall be lawful for the Justices of the Peace inhabiting in or near any town or place, at or through which such forces shall arrive, or pass, to quarter and billet the officers and^sol- PILLETING. V ■^ ? . 69 diersof such forces, in inns, taverns, and alehouses ; and where there shall not.be sufficient room therein, then to quarter the remainder of them, in the houses of persons selling spirituous liquors by retail, and of tliose who have within one month pre- vious to the marching of such forces, kept an inn, tavern, or alehouse. And by § 4^ In places where there may not be a sufficient number of public inns, taverns, and licensed shops, whereon to billet the whole of any detachment of soldiers or militia that may be on their march, it shall be lawful to billet a part of such detachment, on other housekeepers, in the discre- tion of the magistrates giving billets for the same. '<')di- BILLS AND NOTES. Br the 1 & 2 G. 4, c. 38. 3 V. 115. the issue and cji- culation of bills, notes, or undertakings, payable to bearer, 6c otherwise negotiable for a less sum than 29 shillings, (except treasury notes, or notes or engagements between debtor and creditor,) are prohibited, under the penalty of twenty shillings for each such bill, note, or undertaking, so issued or circulated ; such penalty to be recovered by any person in a summary way, before two Justices, and to be levied by execution in the usual form ; one half of such penalty to be paid to the in- former, and the other half to the poor of the town or place in which the offence has been committed. By Sec. 5, the sum due on any such bill, or note, may be recovered by the holder thereof, from the person liable to the payment of the same, by suit in a summary manner before one Justice. Perpetual, • 'ale, any sort of bread, other than wheaten bread, and such other sorts of bread as in such place shall by the Court be publicly allowed to be made or sold, under a penalty of not more than twenty shillings,' nor less than five shillings, to be recovered before any Justice or Justices. Sec. 8, 9. When the Justices in Sessions shall order and allow bread to be made for sale, mixed of different kind) qf flour or meal, the bakers shall conform to th^ regulations made and published by such Justices, under a penalty not exceed- ing twenty shillings, nor less than five shillings, in the discre- tion of the Justice before whom the party shall be convicted. Sec. 10. Bread for sale, shall be well made, without any damaged or musty ingredients ; on pain) that every j^ex- (other than a journeyman or servant) who shall offend^ son shall, on conviction before one Justice, forfeit not more than three pounds, nor less than forty shillings ; or be committed to the house of correction, or the county jail, and be there kept at hard labour, for not less than seven days, nor more than fourteen days, at the discretion of tlie Justice. And every journeyman and servant, knowingly ofl^ending therein, shall, on the like conviction, forfeit not more than forty shil- lings, nor less than twenty shillings ; or be committed as afore- said. And the Justice before whom any offender $ball be convicted, shall, out of the mon^ forfeited, cause the offend-' er's name and offence to be published in some aewspaper. Sec. 11. Persons making, selling, or offering for sale bread of less weight than the assize established, on conviction shall forfeit not more than five shillings, nor less than one shil- ling, for every ounce 4eficient in a Ipaf ; and for any deficiency less than an ounce, not less than six pence, nor more than two shillings and six pence, according as any Justice before whom any such deficient bread shall be brought, shall see fit to or- der ; so as such bread bq weighed before such Justice^ within twenty-four hours after it was baked, or sold, or exposed for sale ; unless tl)e party against whom the complaint has been made, can make out to the satisfaction of the Justice, that the deficiency aro?e wholly from some unavoidable acpident in baking, or otherwise, or was occasioned by some ace idept, contrivance, pr confederacy. MarkingBread Sec 1^. Bres^d for ^ale, shall be marked with the ini- tial letters of the baker's name, and of the quality of tb^ flour, under a penalty of not lees than five shillings, nor mo|re than twenty shillings, in the discretion of the Justice before whom the oftender shall be convicted. «» ^IsamW >«» -^t^* «ik *^ BREAD. 73 within sed for been lat the be ini- flour, ■e than whoin -^^ Sec. 13 8l 14. Clerks of the Market, Justices ol' the . Sec. 17. One Justice, or more, may hear and determine Hearing in a summary way, offences against the true intent of the Act ; *^*'«"*""- and for that purpose, may summon the party accused, and on his not appearing, or offering sufficient excuse therefor, may on affidavit of offence, issue a warrant to apprehend him, and whether he is arrested or not, the Justice may proceed to ex- «,, amine witnesses as to the offence, and either convict or acquit ; and on conviction of the party, if the money forfeited shall not be paid within twenty-four hours after conviction, the Justice shall issue a warrant of distress against his goods and chattels ; and if within five days after levying thereof, the money forfeit- ed shall not be paid, the goods seized shall be appraised and sold ; and out of the proceeds, the penalty, and all charged shall be deducted, rendering any overplus to the owner ; and for want of distress, the party convicted shall be committed to the county gaol, or house of correction, for not less than seven days, nor more than twenty-one days, unless the penalty and charges shall be paid, before the expiration of the term of com- mitment, half of such penalties to go to the informer, and the other half to be paid by the Justice, into the Sessions, to be there disposed of, for better carrying the Act into execution. Pleading. Sec. 19. Justices and others sued for any thing done Coatf, andli- under authority of the Act, may plead the general issue, and p,'^ecutiooa 10\ 74 BREAD. u^ -i give the special matter in evidence, and on judgment iu their favour, shall have treble costs. No person to be convicted for any ofTence against the Act, unless the prosecution for the same be commenced within tliree days after the offence committed. Perpetual. For the Forms required under this Title, see respectively, Titles, — Information ; Summons ; Warrant ; Conviction ; Distress ; Commitment ; the forms under which Titles may be readily altered or filled up, so as to answer. BRICKS. SiceiiQaality w- Proi^otioD und Forfeit- urei. UAU By the 32 O. 3, c. 4. 1 V. 292. '' All bricks for sale, shall be inspected by the officers appointed for that purpose, and those who shall refuse to accept of the office, or who shall be guilty of any neglect or misbehaviour in the execution of the duties thereof, shall forfeit and pay for the use of the poor in the town wherein they reside, a sum not exceeding three pounds, to be recovered before any two Justices of the Peace for the county." The above Statute is repealed as to the size of bricks, by the 56 G. 3, c. 21. 2 y. 209, which enacts, that all bricks made in this Province for sale, or sold therein, shall be of the size and dimensions following, that is to say ; those of the larger size shall be nine inches in length, four inches and tliree eighths of an inch in width, and two inches and one half in thickness ; and those of the smaller size, shall be eight inches and one quarter in length, four inches in width, and two inches in thickness. And all bricks sold or offered for sale, shall be inspected by one of the officers appointed for that purpose; and all such bricks of any other or different dimensions than is above provided, shall be seized by the said Inspector, unless their actual size and dimensions shall have been declared by the owner or seller thereof, and he shall have sold or offered them for sale, as and for bricks of such their actual size and dimensions. And all bricks inspected as aforesaid, that shall not be well burnt, or be otherwise good and merchantable, shall be seized by the Inspector, unless the same shall have been sold or offered for sale, as inferior or refuse bricks. Sec. 4. The Inspector shall receive from the seller, ninepence for every thousand bricks inspected, and so in pro- portion for any smaller number. Sec. 5. If the number of bricks seized, do not exceed two thousand, the offender may be convicted before one Jus- BRICKS. 76 tice of the Peace, upon the oath of one witness or more ; and upon such conviction, the bricks so seized shall be adjudged forfeited ; and the person convicted, shall be adjudged to pay the costs of prosecution — one half of the forfeiture shall go to the Inspector who made the seizure, for his trouble, and expense of storage and prosecution, and the other half to the use of the poor of the county where the conviction shall take place. Per' petwtl. For the Forms required, see respectively, Titles, — In- formation ; Summons ; Conviction. -Sit .J A fu'Ji -r, BRIDEWELL, &c. 'A^i '! I By the 33 G. 2, c. 1, §2. 1 V. 41, (which relates ^^^^ ^^ only to the town of Halifax,) it is provided that the Justices of may' b«*coin- the Peace in their General Sessions, or any one Justice out of mitied. Court, may send and commit to the house of correction, to be kept, governed and punished, according to the rules and orders thereof, all disorderly and idle persons, and such as shall be found begging or practising any unlawful games, or pretending to fortune telling, common drunkards, persons of lewd beha- viour, vagabonds, runaways, stubborn servants, and children, and persons who notoriously misspend their time, to the neg- lect and prejudice of their own or their family's support ; upon due conviction of any of the said offences or disorders. By the 32 G. 3, c. 5. 1 V. 293, The Justices of the Peace and Grand Juries of the several counties and districts, in their Providing General Sessions, when they shall think necessary, may pro- WorkhooMf, vide proper buildings, or appropric: • a certain part of the county or district gaol as a work-house or house of correction ; and the Justices in their Sessions, or any one Justice out of Court, may commit thereto all persons of the descriptions mentioned in the above second clause of the above Stat. 33 G. 2, c. 1, which clause is hereby extended to the whole Pro- vince. The Justices in Sessions, shall appoint keepers of the said work-houses, and shall nominate three of their bench, to have the inspection of such work-houses, one of whom, in ro- tation, shall visit the same, at least once in every month, to ^^ see that such persons as shall be committed thereto, be kept diligently at work, and to rectify any abuses that may be found in the management thereof, in concurrence with the other Jus- tices ; and such Justice shall report the same without delay to the Justices in their Sessions. The term for which persons shall be committed to such work-houses, shall be until the 76 BRIDEWELL, &c. meeting of the next General Sessions of the Peace, or until otherwise discharged by law. Provided, however, that it . shall be lawful for the Justices appointed as aforesaid, to visit such work-houses, or for any other two Justices of the Peace for the county, at any time to discharge any person commit- ted to the same, if they shall think it fit and proper so to do. Perpetual. Panithment By the 56 G. 3, c. 6. I V. 201, The Court before whom forCltrgyabla any person shall be convicted of any clergyable felony, larceny, FaloDiM, fcc. qC receiving stolen goods, knowing them to be stolen, or other lesser criminal ofTence, may sentence the offender to be put and kept to hard labour in the house of correction at Haliiax, or elsewhere, or upon the highways or other public works in the Province for any time not exceeding seven yeari. Per- petual. ' *r»<. iH^ ^^^ general directions as to proceedings under the two .hi. .1 first Statutes above recited ; and for the Forms' required, see Titles, — Information ; Warrant ; Conviction ; Commitment. BRIDGES. By the 5 W. 4, c. 13. 4 V. 385, Presentments may be made, and confirmed in the General Sessions, or on neglect of presentments, amercements may be made, for the payment of all such sums of money as may be necessary to be raised, or expenses that may have arisen, for the building or repairing of bridges within the county or district. Temporary. By the common law, counties are chargeable with the re-^ pair of public bridges. 1 Bum's, 367. BUGGERY. By the 32 G. 2, c. 13, § 6. 1 V. 16, '< Persons who shall be convicted of the detestable sin of buggery with mankind, or beast, shall suffer death ; and Justices of the Peace shall have power to enquire of the offence, as in other felonies. And persons who shall make an assault, with intent to commit this crime, shall be adjudged to the pillory, and may also be fined and imprisoned, or bound in sureties for good behaviour. '* The Forms and the proceedings by the Justice, will be the same as in other cases of felony, oi' of Assault, &c., for BURGLARY. 77 or until , that it , to visit le Peace commit- to to do. re whom larceny, or other ) be put Halifax, works in i. Pir- the two lired, see mitment. i may be neglect payment e raised, repairing h the re-' rho shall lankind, Ice shall felonies. 1 commit also be iviour." will be LC, for which see, respectively, Titles, — Information ; Warrant ; Ex- amination ; Bail ; Commitment. Justices cannot discharge a party on bail for the higher offence, but roust commit him to prison ; but one Justice may admit to bail a person who is only charged with an Assault, with intent to commit the ofl'ence. BUOYS, see NAVIGATION. BURGLARY. Burglary is a felony at common law, in breaking and entering the mansion house of another, in the night, with intent to commit some felony, within the same, whether the felonious intent be executed or not. Haters Sum. 79. 1 Burn'ty 393. To constitute a breaking, the entrance must be obtained '^■^""l("<8- either by fraud, conspiracy, threat or force. If the door of a mansion house stand open, and the thief enter, or if the win- dow of the house be open, and a thief with a hook or other en- gine draw out some of the goods of the owner, there is no burglary in either case ; because there is no actual breaking of the house. But if the thief breaks the glass of a window, and with a hook, or other engine, draws out some of the goods of the owner, it is burglary. 3 Inst. 64. 1 Burn^s, 394. And Lord Hale says, " These acts amount to an actual ' breaking ; viz. opening the casement, or breaking the glass window, picking open the lock of a door, or pulling back the lock, or the leaf of a window, or unlatching the door, that is only latched ; so entering by the chimney is a breaking, for it is as much closed as the nature of things will permit. " 1 Bum^s^ 394. If a thief enter a dwelling house in the night, through the outer door being left open, or by an open window, and when within the house, he turn the key, or unlatch a chamber door, with intent to commit a felony, this is burglary. Id. 395. It is deemed an entry, when the thief breaks the house, and his body, or any part thereof, as his foot, or his arm, is Entry, within any part of the bouse. So if one put a gun into a win- dow, which he hath broken, (though the hand be not in,) or into a hole of the house which he hath made, with intent to murder or kill, this is an entry, and breaking of the house ; but if he doth barely break the house without any such entry, this is no burglary. Id. 397. ^^j^ ^..J.,.,. i^iw ;iaii v;,p 7S BURGLARY. What Huild- iiiKd Mitniion lloDMS in- cladei. WhHi ■hHll be If divers come in the night to do a burglary, and one of them breok and enter, the rest of them standi ^7 to watch at a distance, it is burglary in all. Id, 399. The mansion-house not only includes the dwelling house, but also the out-houses, as barn, stable, cow-house, dairy-house, if they be parcel of the messuage, though they are not under the same roof, or joining contiguous to it. Id. It is not necessary to make it burglary, that any person be actually in the house at the very time of the ofTence com- mitted. Id. 400. There can be no bnrglary in the day time, but only in the dweinfldNight "'S^^ * B"<^ therefore if there be daylight enough begun or left, either by the light of the sun, or twilight, whereby the counte- nance of a person may be reasonably discerned, it is no bur- glary ; but this does not extend to moon light. Id. 405. They are burglars who break any house in the night, al- though they take nothing away. Id. 406. By the 32 6. 2, c. 13, § 9 & 1.3. 1 V. 16, If any per- son or persons shall by night, break open and enter, any dwel- ling-house, shop, or warehouse, or any vessel lying so near the land, that it be adjudged within the county, with an intent to commit any felony, whether such felonious intent be execu- ted or not ; each and every such offender, their aiders and abettors, shall upon due conviction, suffer as felons, without benefit of clergy. Perpetiuil. The Justice before whom a party charged with burglary is brought, must proceed to examine concerning the offence, according to the directions contained under the Title, — Exam- ination ; and if the offence is proved, although it does not ap- pear that the party charged is guilty, yet the Justice cannot dis- charge him, on bail, or otherwise, but must commit him to gaol to take his trial : for which see Title — Commitment. DirMtioni. No. 1. Form of Information of Burglary. County of ^ The information and complaint of A.' I. of -, in the said county of , yeoman, made on oath the — day of , in the year of our Lord one thou- sand eight hundred and '■ before me A. M., Esquire, one of His Majesty's Justices of the Peace for the said county. The said deponent saith, that in the night of the — day of , in the year aforesaid, the dwelling house of him the said A. I., at aforesaid, in the county aforesaid, was feloni- ously and burglariously broken open, and the following articles. BURGLARY. i 79 namely, — six silver spoons of the vnlue of five siiiliings each, and one silver ladle of the value of one pound, of the goods and chattels of liiin the said A. 1., were feloniously and huri^la- riously stolen, taken, and carried away from thence ; and that he hath just cause to suspect, and doth suspect, that A. O., late of in tlie county of labourer, did break into the said dwelling-house, and steal and carry awav the said goods. A. I. Sworn before me, A. M., J. P, ^i.fiUa- County of i [Seal.] No. 3. fVarrant to Jipprehend a Burglar. To each and every of the Constables respec- tively for the several townships of the said county of Forasmuch as A. 1. of in the county of yeo- man, bath this day made information and complaint upon oath before me A. M., Esquire, one of His Majesty's Justices of the Peace for the said county, that in the night of the — day of , in the year aforesaid, the dwelling-house of him the said A. I., at ' •■■ in the county aforesaid, was feloniously and burglariously broken open, and six silver spoons, of the value of five shillings each, and one silver ladle, of the value of one pound, of the goods and chattels of him the said A. I., were feloniously and burglariously stolen, taken, and carried away from thence ; and that he hath just cause to suspect, and doth suspect, that A. 0. late of , in thecountyof labour- er, did commit the said burglary and felony ; These, are there- fore in His said Majesty's name, to command you, that im- mediately upon sieht hereof, you do apprehend the said A. 0. and bring him before me, to answer the premises, and to bo further dealt withal according to law. Herein fail you not. Given under my hand and seal, the — day of , in the year of our Lord one thousand eight hundred and A. M., J. P. For a Form of Commitment, see Title, — Commitment. fiic ijn*. !i*'« t^ (80) m Direotiont. I ThrentK of Burning. ■Kt< ".**:?»* .' Ratfls of Car- riage, &c. BURNING. Sec. 2. Every person who shall hereafter drive any truck, sled, or wheel carriage, used for the carriage of goods within the town of Halifax, or any town within this Province, shall not on any pretence whatever, drive swifter than a slow or easy trot, and shall at all times take care to lead his horse or Horses with a halter, or to guide them with proper reins. Sec. 3. Every person driving any chaise, sleigh ^ or other carriage whatsoever, within any town in this Province, shall drive the samein a moderate and careful manner. Sec. 4. Persons driving sleighs or sleds in any of the streets or highways within the Province, shall have affixed to the harness used for the purpose of drawing each such sleigh or sled, at the least two good open bells, or four round bells, such as are commonly used on sleighs. m ■ i^u Sec. 5. All sleds used for the carriage of loads upon any of the roads, shall not oe less than four feet wide from outside to outside of the runners. .Umi. Sec. 6. It shall not be lawful to drive upon any of the roads, any load of hay or straw of a greater width than twelve 11 Rolei for Dri< viDgCarriBgea > /lii' 82 CARRIAGES. Carriagea ■topping, &e. Penalty. ■ink i«»i ^a'ii'I Time of Proaecution. Application of Penalties. Locking Wheels. feet ; nor shall it be lawful for persons returning with sleds, to suffer pointed stakes to remain standing, or carry frames, or projectii^ pieces outside of the sled. b ^'ru^'r.fi -in .bitj^iu Sec. 7. Every person who in summer or winter shall drive any gig, chaise, carriage, waggon, cart, truck, sleigh, or filed, on any sti'eet in the town of Halifax, or on any public road or highway, shall always leave the' centre of such street or road on his right hand side. « wvisvot' **si» m bw!> ;; Sec. 8. When the driver of any carrif^, sleigh or sled, on any of said streets or public roads, attempts to pass ano- ther carriage, sleigh, or sled, having its head in the same direc- tion, such driver shall tdce care to pass on the right side of such carriage, sleigh or sled, so as to leave a sufficient way open on his left hand, for the carriage, sleigh,, or sled, which he is so about to pass ; and all carriages, sleighs and sleds, at all times, both in the night and in the day, shall be obliged to keep on the side of the road appointed and established by this Act. Sec. 9. Whenever any carriage, waggon, cart, truck, sleigh, or sled, shall at any time stop, or be suffered to sUuid loaded or unloaded, on any of the said streets of Hali&x, or public road, such carriage, waggon, cart, truck, sleigh, or sled, shall not be placed nearer to the centre of such street or road ithan eighteen inches. Sec . 10. Every person offending against any of the regu- lations of this Act, shall upon conviction on the oath of one credi- ble witness, before any one of His Majesty's Justices of the Peace, forfeit and pay for each and every offence, the sum of ten shillings ; and in case of refusal or neglect to pay, the same shall be levied by warrant of distress on the goods and chattels of such offender ; and for want thereof, such offender shall be committed by such Justice to the county gaol^ for a period not exceeding forty-eight hours. Sec. 11. All prosecutions under the Act shall be com- menced in forty-eight hours after the committing of the offence. Sec. 12. All monies arising from fines under the provi- sions of the Act, shall be paid into the hands of the treasurer of the county wherein it was recovered ; and be applied to the repair of highways in such county, sifer nai hun >89iifciii wtr The foregoing is a temporary Act, and hais been conti- nued from time to time. By the 4 G. 4, c. 30. 3. Y. 170, It shall not be lawful for the driver of any loaded waggon or cart, to cause the same to be drawn upon any of the public roads of this Province, with any one or more of tlie wheels thereof locked or chained, to prevent it from turning, unless such driver shall cause to be CARRIAGES. ■?< J 83 placed under such wheel or wheels, an iron shoe not less than five inches in width, and sixteen inches in length ; or a wo6dien shoe of the same length, and eight inchetr wide, connected with a chain to some part of such waggon or cart, in such way, that such wheel or wheels so chained or locked, shall he borne up and drawn upon said shoe. Any person who shall drive any waggon or cart on any of the said roads contrary to the fore- going regulation, or who shall place and leave on any of the said roads, any stones, sticks, or other obstructions, shall be subject to a fine of ten shillings ; to be recovered on the oath of one credible witness, before any one of His Majesty's Justices of the Peace for the county or town wherein the ofiencei was committed ; which sum, if not paid, shall be levied by war- rant from such Justice of th(^ Peace, from off the goods and chattels of the offender ; and for want thereof, he shall be committed to the gaol of such county, for the space of twenty- four hours. And all monies arising from fines under the pro- visions of this Act, shall be applied for the repair of the roads in the county, wherein the same shall be received. Perpetual. ^9^ The regulations prescribed, and the ofl^enoes mentioned in the foregoing Statutes, are so clearly stated and defined therein, that no particular or extended observations need here be made as to the proceedings before Justices touching any of those of- fences. It will be sufficient to say, that the proceedings must be the same as in other general cases for the recovery of penal- ties, or the punishment of the offenders ; thqtis, by taking the information in writing, summoning the party charged, hearing the complaint, issoing a warrant of (distress, dr other final pro- cess, as directed by the Statute ; as to all which, and other requisite proceedings, and the Forms required, direction^ will be found, respectively, under the Titles,-^Information ; Sum- mons ; Conviction ; Distress ; Commitment. >' •;■'•'« 'to 6'iitmi 'jo iiQ A T T X# E>3^ ^tJ'Vlt)u-tc)sl/ i^tmtrfR'i ■ t'hm^'^'ihx(i!dJ/"3,ti^ifirti sdj 1o ■."'■■■■■ ^ ui iij- . ' '.'.■■ y.-^: .'■ Ai BV the 1#G. 3, c. 2. 1 V. 213, Thd Justices of the Peace are empowered and directed to make regulations for the preventing the going at large of infected horses, mares, geld- ings, and cattle, and the spreading of distempers among them, in manner as shall be most agreeable to the circumstances of such county or the townships therein ; and any person who shall transgress such regulations so made, sh^ll be subject to a Direction!. 84 CATTLE. » vtorKl Direetiona. fine not exceeding ten pounds, to be recovered on complaint or information before any two of His Majesty's Justices of the Peace for the county wherein the offence shall be committed, or before the Justices in the Sessions held for such county or township ; and be levied, on non-payment thereof, by warrant of distress and sale of the offender's goods and chattels, and applied for the township wherein the offence was committed. PerpettMl. II. Maliciouslt Killing or Maiming Cattlb. ir, Bt the 4 & 5 6. 4, c. 4. 3 V. 181, Persons convicted in His Majesty's Supreme Court, or General or Quarter Ses- sions of the Peace, of maliciously, unlawfully, and willingly killing, maiming, wounding, or otherwise hurting any horse, mare, gelding, ox, bull, cow, steer, heifer, sheep, or other cattle, shall suffer such punishment by imprisonment or public whipping, as such Court shall in their discretion adjudge. Provided always, that nothing herein contained shall sub- ject any person to be punished or imprisoned under the direc- tions of this clause, who shall be proceeded against for dama- ges by the party aggrieved ; nor shall any person who shall have been punished or imprisoned under the directions of this clause, be liable to any suit or action at the instance of the party aggrieved, but such punishment or imprisonment shall be forever a bar to any such action or suit. Perpetual. III. Crvbl Treatment OF Cattle. Br 6 (jl. 4, c. 22. 3 V. 213, Any person owning or having the charge of horses, sheep, or other cattle, who shall wantonly and cruelly maim, wound, or otherwise hurt any of the same, shall upon conviction before any one magistrate, by any one or more witnesses, forfeit for each offence a sum not exceeding three pounds, nor less than five shillings ; and on non payment thereof, be committed to the gaol or house of correc- tion, for a time not exceeding twenty days, at the discretion of the magistrate— one half of the sum forfeited shall be paid to the prosecutor, and the other half for the use of the poor of the parish in which the offence was committed. Perpetual. The proceedings by the Justice, on a complaint under the Statute relating to infected cattle, and likewise under the fore- going one for the cruel treatment of cattle, will be the same as in other prosecutions before him for the recovery of penalties ; as to which proceedings, with the Forms required, see res- pectively, Ti(les,-r-Information ^ Summons ; Conviction ; CATTLE. 85 Distress ; Commitment. With regard to the offence of killing or maiming cattle, it will be observed, Uiat prosecutions for the same must, by the terms of the Statute, be in the Supreme ^ Court or in the Sessions ; but any one Justice may receive > complaints of such offence on oath, and issue his warrant for the arrest of the party charged, and on his being brought be- fore him, he need not take any written examinations as in case of felony ; but if sufficient bail to his satisfaction be offered, he must take such bail for.the appearance of the party, to answer' to the complaint at the next term of the Supreme Court, or of the Sessions, and thereupon discharge the prisoner ; or if such bail is not produced, the Justice must commit the prisoner to gaol. m For directions as to bailing, and for the Forms required, see respectively. Titles, — Information ; Warrant ; Bail ; Com- mitment. -ht( hnn s-^iia} !.im i>!JttKnfta» jfitt .to &^i yjiiUi B,i Jj.,.i,]|(i,ja li'-'si-.r^'j '■■1 " '■■'■-! •;•.. V i.{0. ^ CHEAT. 1,1,. K , Of Cheats punishable by public prosecution there are two kinds, — by the Common law, and by Statute. . >-.- .,,*-■- .i: -ob {sf^isaiRjwy^cijtiuBi THE Common Law^-'-'^h Cheats which are punishable by the common law, may in general be described to be, — deceitful practices, in defrauding cr endeavoring to defraud another of his known right, by mean9 of some artful device, contrary to the plain rules of common honesty ; as by playing with false dice ; or by causing an illiterate person to execute a deed to his prejudice, by read- ing it over to him in words different from those in which it was written ; or by persuading a woman to execute writings to ano- ther, as her trustee, upon an intended marriage, which in truth contained no such Uiing, but only a warrant of attortiey to con- fess a judgment ; or by suppressing a will ; and such like. It seems to be the better opinion, Uiat the deceitful re- ceiving of money from one man to the use of another, upon a false pretence of having a message and order to that purpose, is not punishable by a criminal pi'osecution, because it is accom- panied with no manner of artful contrivance, but only depends on a bare naked lie. As there are frauds which may be relieved civilly, and not punished criminally, so there are other frauds which in a 86 CHEAT, k DiitinetioB «■ to pnblie of* fence and pri- Tate iojory. special case majr not be helped civilly, and yet shall be punished crimiaally » thus, if a minor go about the town^ and pretending to be of age, defraud many persons by taking credit for consi- derable quantities of goods, and then insist on his non-age ; th& persons injured cannot recover the value of their goods, but they may indict and punish him for a common cheat. The distinction which as it seems will solve almost all cases of this kind, was taken ia a. case where the defendant^ was indicted and convicted for selling beer short of the due and just measure, to wit, sixteen gallons^ as and ibr eighteen. Upon a motion in arrest of judgment, it was said by the Court, *VThis is Only an incoavenience and injury to a private person, arising from his own negligence and carelessness in not measuring the liquor upon receiving it. Offences that are indictable, must be such as aflbct the public, as if a man use false weights and. measures, and sell by them to all,, or to many of his customers ; or use them in the general course of his dealing ; so if there be any conspiracy to cheat. But in the present case, it is only a non-performance of his contract, for which the other may bring his action. So the selling an un- sound horse for a sound one is not indictable. The distinction to be attended to in all cases of this kind, is this ; that in such impositions or deceits where common' prudence may guard persons against their suffering irom them, the offence is not indictable ; but where false weights and measures are used, or false tokens produced, or such methods taken. to cheat and de- ceive as people cannot by any ordinary care or prudence be guarded against, there it IS an offence indictable. The distinction therefore is this ; if a person sell by fidse weights, though only to one person j it is to indictable offence ;• but if without false weights, he sell to many persons a less: quantity than he preteads to sell, it is not indictable. All frauds affecting the Crown and the pulo^c at large, are indictable, though arising put <)tf < a pwrticular transaction, or contract with the party, .t ^rcrsrow ^■m-.i^sm-.ivm "f»S to i imiivn. The punishment for a cheat at common law is, gtoerallyv fine and imprisonment* 1 JStirw'*, 467 to 470i lm , >; . ...,,„,^>. ,., ... , JuaM«iJL•(,lw>.■■''■ ^ . -f|f|, {i;liii»i»' : . .... Ji„ • Ih ■ Br .'Statutb..: < »vi- oi m'3^m il &Mmfi ^^di'mn 1^; !MiEj'i.MH ujun ot.o .iio'ii Y''isf5«K«'io 4»"''''''^'' Br the 32 6. 2, c. 2Q. 1 V. 31, " If any person or pet- sons shall falsely and deceitfully obtain or get into his^ her, or their bands or possession, any money, goods, chattels, jewels, or other tilings, of any other person or persons, by colour and means of any privy false token, or counterfeit letter, made in another man's name, to a special friend or acquaintance, for CHEAT. 87 the obtaining of money, goods, chattels, jewels, or other things, and shall be thereof convicted in any Court of Oyer and Terminer, Court of Assize and General Gaol Delivery, or Quarter Sessions of the Peace, every such offender shaH suffer such' punishment by imprisonment, setting upon the pillory, public whipping, :or hai'd labor in the house of correction, as such Court where the offender shall be convicted shall in their discretion adjudge. " Perpettuil. >< MHo-in .: • A person endeavouring by a counterfeit letter to defraud another of goods, and being apprehended on suspicion of such fraud, before he hath got the goods into his possession, seems not to be withiip this Statute. Ste 1 Bum's, 470. f • 1 • . ... Wniranifor a Cheat ;on the f ongoing Statute^ 33 G 2,c. 20. County of ) ' ' To A. C . , one of the Constables of the town- ': :^ ship of •-~'-^ in the said County.' ;jnit)itfYr:T:ui ;[Seal.] ' Whereas complaint hath been made unto me A. M., £s- quire, one of His i Majesty's Justices of the Peace in and frar the said County, upon the oaths of A. I. and A. K. of — ' — in the said county,: yeomen, that on the -p- day of- — ^ in the year of our Lord , A. 0. of-- — in the said county, yeo- man, did by a false privy token, [or counterfeit letter as the case may be^] that is. to say, by [here particularise the of- fence,] iaiseiy and deceitfully obtain and get into his hands and possession, from C. L of -^ y trader, certain goods and chat- tels of him the said C. I., that is to say [here mention the things,] contrary to the Statute in that case made. These are therefore to command you^ upon sight hereof, forthwith to ap- prehend the said A. 0., and bring him before me, to answer unto tbe. said con^Iaint, and furth^ to be dealt withal accord- ing to law. Given under my hand attd seal, at -i-^ in the said county, the — day o( - ^ in the year aforesaid. : . * '^ ■ A. M., J. P. via For the course of proceeding on taking an Information, and ds to Bail or Commitment for this offisnce, see those Ti- tles respectively, i i ! //g^*~-»^nooisMil. a'^iaq9®r>o'«j inm inn:\j^\ CHIMNIfiS, see FIREWARDS^,<^^:^f . ^ I V\ p ' ? 1 \ P8 (88): ■'^ff J«r)4. CLERK OF THE PEACE. 4" ->^j 1^' ' ; The Custos Rotulorum shall appoint an able and sufficient person, residing in the county or division, to execute the office of Clerk of the Peace, by himself or his sufficient deputy, (to be allowed of by the said Custos Rotulorum,) and to take and receive the fees, profits and perquisites therieof, for so long time only, as such Clerk of the Peace shall well demean himself in the said office. Eng. Stat. 1 W. c. 21, § 5. 1 Bwm% 603. "Hi fSfWkyi '-iw-r, The Custos Rotulorum shall not sell the place of Clerk of the Peace, or take any bond or other assurance to receive anv reward, fee, or profit for such appointment, on pain that each of them shau be disabled to hold his office, and forfeit double the value of the thing given. By Eng. Stat. 1 W. 3, c. 31, Every Clerk of the Peace before entering upon the execution of his office, shall in open Sessions take the oath following : — I A. B. do swear, that I have not, nor will pay any sum or sums of money, or other reward whatsoever, nor given any bond, or other insurance to pay any money, fee or profit, directly or indirectUy to any person or persons whomsoever, for such nomination and ap- pointirient ; so help me God. .<>• Ji ,*-'♦'- ^^hm|iTijo»t» tj^ov The several duties of the Clerk of the Peace, with other matters relating to the office, under various Statutes of the Pro- vince, may for convenience be arranged under the following 'heads:— ' :fmviA'ii 4n By the 28^. 3, c. 15. 1 V. 261, The following fees aire allowed for the Clerk of the Peace > — Drawing an Indictment if found, — ^two shillings and sixpence. Every Trial and Judgment, — two shillings and sixpence. no Every Submission, — two shillings and sixpence. Concordatum fee,^— one shilling and sixpence. Every petition and proceedings thereon,— two shillings and sixpence. Every cause continued by traverse or otherwise, — one shilling. Every Presentment proceeded on, to be paid by the de- linquent, — three shillings and four pence. Certificate of Administering the State Oaths, — one shilling. ' Warrant from the Court, — one shilling. CLERK OP THE PEACE. 89 . '■ fficient ) office ty, (to ike ind !0 long himself B«tm'«, Dkrkof jive any lat each L double e Peace in open r, that I or other trance to f to any and ap- ith other he Pro- oUowing ing fees )gs and ixpence. Every cpence. |e, — one the de- sbilling. Every Recognizance, — each person, one shilling. Disciiarging a Recognizance,— -one shilling, By the 2 W. 4, c. 3, § 13. 4 V. 114, Every person who shall take out any tavern licence, shop licence, or gene- ral licence, shall pay to the Clerk of the Peace, the fee of five shillings, in full for his services in and about the granting suclk licence. Perpettuil. By the 5 W. 4, c. 13, §1. 4 V. 385, There shall be raised by presentment in the Sessions in each county and dis- trict, such annual sum, not less than twenty pounds, as shall be deemed necessary for paying the Clerk of the Peace for such of his services in that office for which no provision is otherwise made. Temporary. Fines. .«4f By the 23 G. 3, c. 1. 1 V. 230, All Clerks of the Peace, shall once in every six months, certify under the seals of their respective Courts, into the office of the Clerk of the Supreme Court at Halifax, an account, stating therein the several fines, penalties and forfeitures adjudged to the King in their respec- tive Courts, together with the names of the persons who shall be adjudged to pay the same ; and in case the same shall have been adjudged within the said six months, then such Clerks of the Peace shall certify the same as aforesaid. And in case any Clerk of the Peace shall neglect to make a return in the man- ner aforesaid every six months, he shall forfeit and pay for every neglect the sum of five pounds, to be recovered on infor- mation by any person whatsoever, in His Majesty's Supreme Court at Halifax. Perpetual, Licenses. By the 2 W. 4, c. 3, § 9 & 12. 4 V. 113, Clerks of the Peace must certify on all licences for the sale of spirituous liquors, that security has been given therefor, as prescribed by the Statute, and they shall register in a book, and keep a cor- rect list of all licences granted in every year, with the names, additions, and residences of the parties licenced, and a memo- randum of the house or shop for which such licence is granted, and the several dates tliereof, with an account of the bonds or securities given previous to taking out such licences, and the amounts of the licence duty payable on every such licence, and the respective times when the same are payable, and paid or 12 t:'- 90 CLKRK OF THE PEACE. received, ond such book shall be exhibited to the Justices in Session, and to the Grand Juries whensoever they shall re- quire the same. Perpehml. Marriages. i By the 35 G. 3, c. 2. 1 V. 348, Certificates of Marriages solemnized by virtue of the Statute, shall be Hied with the Cleric of the Peace for the county where such marriages take place, who shall within three days record every such certificate, under the penalty of five pounds for every neglect, to be recovered in ony Court of Record ; one half to the use of the poor of the township wherein the offence was committed, and the remainder to the person prosecuting therefor Perpetual. Returns, &c. By the 39 G. 3, c, 10. 1 V. 409, Clerks of the Peace shall on every day of the holding of a Court of General or Quarter Sessions of the Peace, enter in a book, the names of every Justice of the Peace who shall attend at such Court, and assist in the business thereof ; and if any such Justice shall leave the Court before the business of the day shall be com- pleted, or without obtaining the consent of the major part of the magistrates then sitting, his name shall not be entered in the said book for that day, but shall be omitted as though he had totally absented himself from such meeting. And the said Clerks of the Peace shall on the first day of the sitting of the Supreme Court, in the respective counties, next after any General or Quarter Sessions, return into the said Supreme Court, lists of all such magistrates as have wholly neglected to attend at such preceding Sessions. And if any Clerk of the Peace shall neg- lect to make such return, he shall forfeit and pay a fine of five pounds for every such neglect. Nothing in the Act to ex- tend to the members of His Majesty's Council, the Justices of the Courts of Common Pleas, or to Justices throughout the Province. PerpetuaL COALS AND COAL MINES. I. Measuring Coals. By the 32 G. 3, c. 4. 1 V. 291, The Sessions in the se- veral counties shall appoint Measurers of Coal, and every person COALS AND COAL MINES. 91 no appointed, who shnll refuse to accept of such ofTicc, or shall be guihy of any neglect or misbehaviour in the execution of the duties thereof, shall forfeit and pay for the use of the poor in the town wherein he resides, a sum not exceeding tliree pounds ; to be recovered before any two Justices of the Peace for the county. And by the 56 G. 3, c. 4. 2 V. 200, Every Measurer of Coal who shall undertake to attend the measure- ment thereof, from more than one vessel at one and the same time, shall foifeit for every such offence, forty shillings ; to be recovered before any one Justice, by warrant of distress ; and to be applied for county purposes. Such Measurer shall be allowed sixpence per chaldron, to be paid by the seller of the article. Perpetual. IL Setting Fire to Coal Mines. fif By the 3 W. 4, c. 9. 4 V. 197, It is enacted, that per- > ,,,- sons convicted of unlawfully and maliciously setting fire to any '■ » mine of coal, or cannel coal, within this Province, shall sufibr death as felons, without benefit of clergy. And all or any ances* sary or accessaries to any such offence, before the ofience committed, shall be deemed and taken to be a principal or prin- cipals in the said offence, and shall be liable to be indicted, convicted and punished, as principal or principals therein. ^ Perpetual. Directions for the recovery of penalties under the Statutes Directionk relating to the measuring of coals, and also the Forms which may be made to answer, will be found, respectively, under the Titles, — Information ; Summons ; Conviction ; Distress. The duty and proceedings of the Justice, on an Information for set- ■»'»<*"* Tmj.{o:> ting fire to coal mines, will be the same as in all other cases of capitaf felony, and will be found set forth under the Titles, — Felony ; Examination ; Commitment. A party charged with this latter offence cannot be let to bail by Justices of the Peace, but must be committed for trial ; and the examinations taken, must be sent into the Supreme Court, as in other cases of capital felonies. >«jiiip«l I COIN. By the 32 G. 2, c. 13. 1 V. 15, Persons who shall be Britiih Coin, duly convicted of forging or coimterfeiting the King's money, being gold or silver coin of England, or of Great Britain, are declared to be traitors, and shall suffer as in cases of high trea- son. Perpetual. 92 %. « r I ' COIN. Clipping! or Coiu. Foreign Coin. Uy tho 32 Q. !2, c. 30, § U. IV. 30, Every person duly convicted nt tlio Court of General Gaol delivery, or Quar- ter Sessions, of counterfeiting, or impairing, diminishing, or inibasing any foreign coins, current in the Province, by wasli- ing, clipping, rounding, filing, or scaling the same ; or of ut- tering any cotmierfoited or impaired coin, knowing the some to be so counterfeited, or impaired, shall be set in the pillorv for one hour, and one of the ears of such offender shall be nail- ed thereto, and he shall also be publicly whipped, through the streets of the town where the olTence was committed, and shall pay all charges of the prosecution. Sec. 7. Every person convicted as aforesaid, of buying or receiving any clip|)ings, scalings, or filings of money, shall forfeit the sum of twenty pounds ; one moiety thereof for the support of His Majesty's Government in this Province, and the other moiety to him or them who shall inform and sue for the same ; and also be imprisoned for tho space of three months. Note. In place of the punishments of setting in the pil- lory, cutting off an ear, public whipping and imprisonment, pre- scribed for the ofTences above specified in the last mentioned Statute, persons convicted thereof, may, by virtue of the 50 G. 3, c. 6. 2 V. 201, be sentenced to be put and kept to hard labour in the house of correction at Halifax, or elsewhere, or upon the highways, or other public works in the Province, for any time not exceeding seven years. The other punishments • «ffn«!>M prescribed, namely of bearing the charges of prosecution, and paying the penalty of twenty pounds, cannot it is presumed, be dispensed with ; especially where the prosecutions are at the instance of private persons. Copper Coin. By the 28 G. 3, c. 9. 1 V. 258, No persons whatsoever, shall import, vend, or knowingly and willingly offer in payment, or circulate, any half pence, or other copper coin, other than Tower half pence, or such copper coin as may and do legally pass current in Great Britain or Ireland, on pain of forfeiting such base half pence and coin, and paying for the use of the poor of the town where such offence shall be committed, a sum not exceeding double the amount or nominal value of such base half pence and copper coin so imported, vended, offered in payment, or circulated as aforesaid, to be recovered on informa- tion before any two of His Majesty's Justices of the Peace " within the town or county where such offence shall be com- mitted. Perpetual. Direotiou. The course of proceeding by the Justice, on charges upon the Statute first mentioned under this head, which makes the counterfeiting therein mentioned to be treason, will be the same as in other cases of capital felonies, and for which, with COIN. the i'urnis, see Titles, — Iiiforinatioii ; Warrant ; Kxaminatiun ; Cuiniuitniuiit. For the duly and proceedings of the Justice, and also the forms under the Statute next mentioned, concern- ing counterfeiting foreign '^oin, &c. see, respectively. Titles, — Information ; Warrant ; fiiiil ; Commitment ; and for the pro- ceoding^i aud forms upon churges under the Statute, res|)ecting counterfeit huif-pence, see Titles, — Information ; Summons j Conviction ; Connnitment. tisr •u 'Tn* t ' COMMITMENT. I. Who may be Committed. There is no doubt but that persons apprehended for oiiencos which are not bailable, and also nil persons who neg- lect to offer bail for offences which are bailable, must be com- mitted. And it is said, that wheresoever a Justice is empow- ered by any Statute to bind a person over, or to cause him to do a certain thing, and such person, being in his presence, shall refuse to be bound, or to do such thing, tlie Justice may commit him to the gaol, to remain there till he shall comply. If a prisoner be brought before a Justice, expressly charged with felony upon oath, the Justice cannot discharge him, but must bail or commit him. But if he be charged witli suspicion only of felony, yet if there be no felony at all proved to be committed, or if the fact charged as a felony, be m truth no felony in point of law, the Justice may discharge him ; as if a man be charged with felony for stealing a parcel of the freehold, or for carrying away what was delivered to him, and such like, for which though there may be cause to bind him over, as for a trespass, the Justice may discharge him as to felony, because it is not felony. But if a man be killed by another, though it be by misadventure, or in self- defence, (which is not properly felony,) or in making an as- sault upon a minister of justice in execution of his office, (wh'ch is not at all felony,) yet the Justice ought not to dis- charge him, for he must undergo his trial for it, and therefore he must be committed, or at least bailed. But commitment by the Justices of the Peace, almost in all cases, (except for the peace, good behaviour, felony, or higher offences) is but to retain the party until he hath made fine to the King ; and therefore if he offer to pay it, or find sureties by recognizance to pay it, he ought not to be committed, but to be delivered presently. 1 Burn's^ 552 — 3. . -. -, . / ,:. ^•.■. Perions not bailable nr not finding bail. Charged with felony or aua- picion thereof. tt>i» Not paying fine. I 94 Ditr«rent County. In whose iiamo. Name. .iiami^^'^-''X^i<-M'>f'ir^i ■■pai.^fn^44».:^uA. M., J. P. jrer of » here- t ; and ind in in case to pay le Pub- a crime, ►r other, till he be by the lation for COMMITMENT. Warrant of Commitment in General, rk^- 97 •vtsfjH County of) A. M., Esquire, one of the Justices of our ) Lord the King assigned to keep the peace within [Seal.] the said county ; To A. C, one of the Constables of the township of in the said county, and to the keeper of the common gaol at , in the said county. • These are to command you the said Constable, in His Majesty's name, forthwith to convey and dehver into the custody of the said keeper of the said gaol, the body of A. O., charged upon the oath of A. I. of in the said county, yeoman, before me, with [here specify the offence.] And you the said keep- er are hereby required to receive the said A. 0. into your cus- tody in the said gaol, and him there safely to keep, [here set forth the time,] or until he shall be thence delivered by due course of law. Herein fail you not.» Given under my hand and seal at , the — day of , in the year of our Lord '^-' • A. M., J. P.- - *•-*%■ M.'j.» P. Commitment oj a Person for further Examination.'^^ To A. C, ) township of [Seal.] Whereas by warrant under the hand and seal of me, A. M., one of His Majesty's Justices of the Peace in and for ■ ^- the said county of , bearing date the — day of , in ,^^ the year of our Lord one thousand eight hundred and , A. 0., late of in th» said county, labourer, was committed to the common gaol of the said county, for , [here state the offence or misdemeanor,] he the said A. 0., having means or ability to bear his own reasonable charges for so conveying or sending him to the said gaol, and the charges of those ap- pointed to guard him thither ; And whereas A. D., one of the Constables of the township of in the said county, who in obedience to such warrant, conveyed the said A. 0. to the said common gaol of the said county, hath made oath before me the said Justice, that the said A. O. refused at the time of his com- mitment and sending to the said gaol, to defray the said charges of conveying him as aforesaid, and did not then pay, nor hath since paid the same, which said charges amount to the sum of . These are therefore to command you, to sell such and so much of the goods and chattels of the said A. O., as shall satisfy and pay the said sum of , being the charges of such his conveying to the said gaol, the appraisement to be made by four of the honest inhabitants of the township where such goods and chattels shall be ; and I do hereby order and direct the goods and chattels so to be distrained, to be sold and disposed of at the expiration of four days from the time of taking such distress, unless the said sum of , for which such distress shall be made, together with the reasonable charges of taking and keeping such distress, shall be sooner paid, returning the overplus upon demand to him the said A. 0., the reasonable charges of taking, keeping, and selling such distress, being 6rst deducted. And if sufficient distress cannot be found of the ^ goods and chattels of the said A. 0., whereon to levy the said * The time of the detainer mnat be reaaonable. The niaal practice it itated to be» to commit Trom three to three daya. 1 Ckitt. Crim, L. 74. COMMITMENT. 'If--- sum of , that then you certify the same to me, together with this warrant. Given under niy hand and seal, at in the said county, liie — day of , in the year of our Lord one thousand eight hundred and . A. M., J. P. 'ii Order on Treasurer of Ike County, to reimburse Expenses oj conveying a Prisoner to Gaol^ where Goods^ fyc. belonging to him cannot be found whereon to levy a Warrant of Dis- tress for the same, — pursuant to the 8 Sf 9 G. 3, c. 2. 1 V. 147. To the Treasurer of the County of : County of ) Whereas application hath been this day made ) to me, one of His Majesty's Justices of the Peace [Seal.] in and for the said county, by A. D., one of the Constables of the township of in the said county, to allow the reasonable expenses of his conveying A. O. to the com- mon gaol at in the county aforesaid, who was by me committed to the said gaol for , [here state the offence,] it having been duly made appear to me the said Justice, that the said A. O. hath not money nor goods within the said county, sufficient to bear the charges of himselfand those who conveyed him to the said gaol ; and I having upon oath, examined into the expenses thereof, and made due enquiry into the premises, do hereby ascertain and allow the reasonable expenses thereof, at the sum of , which I hereby order and require you the Treasurer of the said county, forthwith to pay the said A. D. Given under my hand and seal, at , this — day of , in the year of our Lord one thousand eight hundred and . A. M. J. P. ^^*^'^ CO MM ON. ^^^'^' ■m By the 10 G. 3, C. 4. 1 V. 160, the General Sessions in the several counties, shall from time to time, affix and set- tle such regulations as they may think most proper and conve- nient to be observed and followed by the inhabitants in the several townships within such county, in regard to the Com- mon belonging to the same. And any person who shall trans- gress any such rules and regulations, or shall neglect or refuse to obey the same, shall forfeit and pay a fine not exceeding forty shillings, for every such offence ; and in case such of- fender shall refuse or neglect to pi^y the fine, then it shall be 99 U 100 COMMON. ^> Concerning Final Process. lawful for any two Justices of the Peace to grtnt a warrant of distress for levying the same in the usual manner ; one half to be to the person complaining, and the other half for the use of the poor of the township where the offence was committed ; and in default of such distress, to commit such offender for any space not exceeding ten days. Perpetual. The course of proceeding by Justices under the foregoing Statute, with the forms required, will be the same as in simi- lar cases for the recovery of penalties before them, and may be found under the respective Titles, — Information ; Summons; Distress ; Commitment. erenco! ^ntfff • COMMON FIELDS. I. op THEIR Lines and Boundaries. M^j^dito J By the 5 G. 3, c. 1. 1 V. 107, every proprietor of lands lying unfenced, or in any Common Field, shall once in two years, on six days notice given him, his agent or attorney, by the next proprietor or proprietors adjoining, run the lines, and make and keep up the boundaries of such lands, or common fields, by stones or other sufficient marks ; and every party so neglecting and refusing, shall forfeit the sum of twenty shillings, one half of which shall be to the party complaining, and the other half to the Overseers of the poor, for the use of the poor of said township ; and to be heard and determined before any one of His Majesty's Justices of the Peace within the same county. Perpetual. Remarks. It may be remarked, as well with regard to the foregoing enactment, as all other similar instances of Statutes im- posing fines or penalties, recoverable before Justices of the Peace, without mentioning any mode by which the payment thereof shall be enforced, that it appears very doubtful, what final process, or course of proceeding should be adopted to compel such payment. It would seem clear, that in any such case, a war- rant of distress, in nature of an execution against the goods of the party convicted, cannot be issued. As it is laid down how- ever, and will be found under t'le Title — Commitment, — that *' wheresoever a Justice is empowered by any Statute to cause a person to do a certain thing, and such person being in his presence, shall refuse to do such thing, the Justice may com- mit him to the gaol till he shall comply," — and as warrants of commitment in execution, after convictions before Justices, are frequently spoken of without any particular restrictions or ref- COMMON FIELDS. J 101 erencos, it would seem, that in proceedings under the forego- ing enactment, and in all similar cases as above mentioned, where the party complained of is before the Justice at the time of his conviction, and on his being informed of the fine imposed on him, and required to pay it, he shall refuse to do so, he may be forthwith committed to gaol, until he shall comply. Such commitment, as in other cases, must be in writing, un- der the hand and seal of the Justice, and it must state the par- ticular cause of commitment, as " for refusing to pay the said fine of " and it must also state that the party " be de- tained in the said gaol, until he shall pay the said fine of • ." For other directions as to proceedings under the foregoing clause of the above Statute, and for the Forms required, see the general directions and Forms in similar cases, given under the respective Titles, — Information; Summons; Conviction; Commitment. .., „> ,•„>< .,- ;w.i -i'.* II. Op Boundary Fences of adjoining Lands. By the 8 G. 4, c. 26. 4 V. 13, The proprietor of any field adjoining to any Common Field enclosed and improved, in case his part of the fence dividing his land from sUch Common Field, shall become deficient, or out of repair, shall immedi- ately repair such deficiency, and make the same a good and sufficient legal fence ; and in case he shall neglect so to do, within the space of three days after notice given him, it shall and rtiay be lawful for any one of the Fence Viewers, upon ap- plication being made to him in such case, forthwith to cause such deficient fence to be built up and repaired, if in his judg- ment the same be insufficient ; and the perspn that of right ought to repair and maintain the same, shall pay double the costs and charges expended for the closing thereof, and in case of refusal, such Fence Viewer may recover the same by action on the case, according to the value, in manner aforesaid. Pro- vided always, that no Fence Viewer shall be allowed more than three shillings per day in his account, for his own trouble and time expended herein. And if any Fence Viewer, when no- tified, shall neglect his duty herein, he shall forfeit two pounds for each offence, to be recovered on due proof before any Jus- tice of the Peace for the County or District in which such lands lie, one half to the person who shall prosecute for the same, and the other half to the poor of the township or place where the ofience was committed. Perpclual. Note. By the words, — " by action on the case, accord- ing to the value, in manner aforesaid," used in the above enactment, it is not easy to discover precisely what is intended. "".;? 1 ::f«...i: If > i «u-^^ .{) III. Regulations bt Proprietors. Making Reg- ulatioDt. By the 10 G. 4, c. 27. 4 V. 50, The proprietors of any Common Field may meet at some place in the township where- in such field is situated, and make such regulations as may from time to time appear to them necessary and expedient, respecting the ordering, fencing, and improving of such field, and the keeping the fences thereof in repair, and making and repairing roads in and across the same ; and such regulations shall be entered in a book, and be signed by the Chairman of the Meeting. The said book and the proof of the entry made there- in shall be good evidence of such regulations, in any Court, or wheresoever the proofof such regulations maybe necessary. Sec. 3. The said proprietors shall, annually, at one of the said meetings, appoint from among themselves, a commit- COMMON FIELDS. 103 Afioiimentt and rpcovery ■ ;>;:)•'• tee of not less than three nor more than five persons, to carry into eflecl for the year then ensuing, the regulations made as aforesaid. Sec. 4 & 5. Whenever the said committee shall find it necessary to raise money for carrying into effect any of the said regulations, they shall assess the amount to be raised on "^ ''*'""' the several proprietors or occupiers of such Common Field, by an even and equal rate, according to thf^^uantity and quality of the land held in such field, by each proprietor or occupier ; and shall, by an instrument in writing under their hands, ap- point a collector to collect the sums so assessed ; and upon the neglect or refusal of any proprietor or occupier, to pay the amount wherewith he has been rated, after due notice given of such assessment, the said collector shall have power to sue for and recover the same with costs from such proprietor or occu- pier, before any one or two Justices of the Peace, or before any Court of Record, according to the amounts of such rates, in the same manner as debts under and above three pounds are now by law recoverable. iMt^'au, u*>v, , Sec. 6. The said committee may include in any sum as- sessed by them as aforesaid, for every member of such com- mittee, the sum of five shillings for each day in which he shall be actually occupied and employed in carrying into effect the aforesaid regulations. Temporary. By the 2 W. 4, c. 62. 4 V. 190, The regulations made at any meeting of the proprietors of a common field, of which meeting due notice has been given, shall be good and binding, if the same have been passed with the assent of such number of the proprietors present, whose rights and shares in such field, when added together, amount to more than one half of the land owned in such field by the proprietors then present at such meeting, although such rights and shares do not amount to one half of the land contained in such field. Annual. The proceedings and forms requisite for the recovery of the rates mentioned in the foregoing Statute, will be found under the title, — Summary Trials. Mi- au •VoJ CONFESSION, see EVIDENCE and EXAMINATION. ■■•j.jiK' " .4 ttifi Ttttvy i ii« li i*i CONSPIRACY. :V/ Conspiracy, is when two or more combine together, to execute some act for the purpose of injuring a third person, lOi CONSPIRACY. •Irt't » as by indirect means to impoverish him, or falsely and malici- ously to charge him with being the reputed father of a bastard child ; or to maintain one another in a matter whether it be true or false. Every confederacy to injure individuals, or to do acts which are unlawful or prejudicial to the community, is a conspiracy. Thus, journeymen confederating and refusing to work, unless for certain wages, may be indicted for a con- spiracy, and the o^nce consists in the conspiring, and not in the refusal, for all conspiracies are illegal, although the sub- ject matter of them may be lawful. A bare conspiracy to do a lawful act, to an unlawful end, is a crime, though no act be done in consequence thereof. 1 Bnrn^s^ 567. A conspiracy being a trespass, and tending to a breach of the peace, is cognizable by the General Sessions. Id. 569. Combination By the 56 G. 3, c. 27. 2 V. 215, All contracts, cove- to ruiie wBgei. nants, and agreements, entered into by or between any journey- men, manufacturers, or other workmen, or persons, for obtain- ing an advance of wages of them oj- any of them, or any other journeymen, manufacturers, or workmen, or other persons in 4 any manufacture, trade, or business ; or for lessening or alter- ing their, or any of their usual hours, or time of working ; or for decreasing the quantity of work ; or for preventing or hin- dering any person from employing whomsoever he shall think proper to employ in his manufacture, trade or business ; or for controlling or any way affecting any person carrying on any manufacture, trade or ^jsiness, in the conduct or management thereof, shall be illegal, null and void, to all intents and pur- poses whatsoever ; and every journeyman, workman, or other person, who shall be lawfully convicted of entering into, or being concerned in entering into any such illegal contract, co- venant or agreement, upon his own confession, or the oath of one credible witness or more, before any two or more Justices , .; v^ ; of the Peace for the county, town, or place where the offence shall be committed, within three calendar months after the of- fence was committed, shall by order of such Justices, be com- mitted to and confined in the common gaol within their juris- diction, for any time not exceeding three months, or at the discretion of such Justices, shall be committed to some house of correction within the same jurisdiction, there to be kept to hard labour for any time not exceeding two months. Sec. 3. Every journeyman, workman, or other person, who shall enter into any combination to obtain an advance of wages, or to lessen or alter the hours or duration of the time of working, or to decrease the quantity of work, or for any other purpose contrary to the act ; or who shall hy giving CONSPIRACY. 105 jerson, ince of le time |or any giving money, or by persuasion, solicitation, or mtimiilali* n, or 4, / oilier means, directly, or indirectly, endeavour to prevent m* v unhired or unemployed journeyman, or workman, or 0' «r j)erson in any manufacture, trade, or business, or any oHht person uanting employment in such manufacture, trade, or bu- siness, from hiring himself to any manufacturer or tradesman, or person conductmg any manufacture, trade or business ; or who shall, for the purpose of obtaining an advance of wages, or for any other purpose contrary to the provisions of the Act, by any means whatsoever, directly, or indirectly decoy, per- suade, solicit, intimidate, influence, or prevail, or attempt, or endeavour to prevail on any journeyman, or > orkman, or person hired or employed, or to be hired or en p'oyed in any such manufacture, trade, or business, to quit h s work or service ; or who shall hinder or prevent, or attempt to hinder or prevent any manufacturer, or tradesman, or other person from employ- ing in his or her manufacture, trade, or business, such jour- ,,., ,,. ncyman, workman, and other persons, as he or she shall think > - proper ; or who, being hired or employed, shall refuse to work with any other journeyman, or workman employed or hired to work therein, and who shall be lawfully convicted of any of the said offences, upon his own confession, or the oath of one credible v»^itness or more, before any two or more Justices of the Peace for the county town, or place where such offence shall be committed, within three calender months next after the ,T offence was committed, shall, by order of such Justices, bo committed to and confined in the common gaol within his or their jurisdiction, for any time not exceeding three months ; '" or otherwise be committed to some house of correction within the same jurisdiction, there to be kept to hard labour, for any time not exceeding two months. Sec. 4. All contracts, associations, agreements, cove- nants, and engagements, in writing, or not, entered into be- tween master tradesmen, or manufacturers, or any other per- sons, for the purpose of regulating the wages of workmen, or ges, &c. for adding to or altering the usual hours of work, or for increas- ing the quantity of work, or for regulating or fixing the price to be paid for any work done, or article made by such master tradesmen or manufacturers, or other persons, whereby their customers, or others who may deal with them, may be affected, shall be illegal and void ; and every master tradesman, manu- facturer, or other person, being thereof convicted by the oath of one witness, before two Justices, within twelve calender months, shall forfeit and pay for each and every offence, twenty pounds ; one half to the informer, and the other half to the poor ; and if the same is not immediately paid, with costs of 14 . Contracti &c. among Master Tradesmen to rognlate wa- 106 CONSPIRACY. prosecution, such Justices shall levy the same by warrant oi' distress, with the costs attending the distress and sale ; and for want of sufficient distress, such Justices shall commit the offen- der or offenders to the common gaol or house of correction, for any time not exceeding three, or less than two calender months. Perpetual. Such directions as are requisite, and also the Forms, which may readily be made to serve for proceedings under the above Statute, will be found, respectively, under the Titles, — Infor- mation ; Summons : Conviction ; Distress ; Commitment. -m- CONSTABLES. Boond to ext- ente Warrant! of JHticea. ^ot to part with Warrant Showing Warrant. Appointing Deputy. Action againat Constable. It has always been holden, that the Constable is the pro- per officer to a Justice of the Peace., and bound to execute his warrants ; and therefore it has be«n resolved, that where a Statute authorises a Justice of the Peace to convict a man of a crime, and to levy the penalty by warrant of distress, without saying to whom such warrant shall be directed, or by whom it shall be executed, the constable is the proper officer to serve such warrant, and may be indicted for disobeying it. In no case is a Constable required to part with the war- rant out of his own possession, for that is his justification. A Constable if he be sworn, and commonly known to be an ofHcer, and act within his own precinct, need not siiew his warrant to the party, notwithstanding he demand the sight of it ; but Constables, and all other persons whatsoever, making an arrest, ought to acquaint the party with the substance of their warrant. And all private persons to whom such warrants shall be directed, and even officers if they be not sworn, and com- monly known, and even these if they act out of their own pre- cincts, must shew their warrants if demanded. And it is cer- tainly expedient, that wheuever an arrest be made by virtue of a warrant, the warrant (if demanded at least,) should be pro- duced. 1 jBwrn's, 578-9. Inasmuch as the office of Constable is wholly ministerial, and no way judicial, it seems that he may appoint a deputy to execute a warrant directed to him, when by reason of sickness, absence, or otherwise, he cannot do it himself ; yet it doth not seem to be settled that he can make a deputy, without some special cause. Id. 574. By the 54 G. 3, c. 15. 2 V. 122, No action shall be brought against any Constable, or other officer, or against any CONSTABLES } 107 person acting by liis order, and in his aid, for any thing donn by him in obedience to any warrant under the hand and seal of any Justice of the Peace, until demand has been made and left at the usual place of his abode, of the perusal and copy of such warrant, and the same has been refused for six days after such demand ; and if after such demand and compliance therewith, any action shall be brougiit against any such Constable or other o/Hcer, or against any such person acting in his aid, for any such cause as aforesaid, without making the Justice who signed or sealed the said warrant, defendant, on producing or proving such warrant, at the trial of such action, the jury shall give their verdict for the defendant, notwithstanding any defect of jurisdiction in such Justice. And if such action be brought jointly against such Justice, and the Constable, or other officer, or persons acting in his or their aid as aforesaid, then, on proof of such warrant, the Jury shall find for such Constable or other olTicer, and persons so acting as aforesaid, notwithstanding such defect of jurisdiction. Sec. 10. No action shall be brought against any Consta- ble, or other officer or person acting as aforesaid, unless the same shall be commenced within six calender months after the act complained of shall have been committed. Perpetual. For the fees of a Constable, sec Title, — Fees. Concerning the execution of a warrant by a Constable, see Titles, — Arrest and Warrant. ■. \ I : '• ■*. — -r CONTAGIOUS DISEASES, &c. I. Quarantine. By the 2 W. 4, c. 13, § 7. 4 V. 138, Masters of ves- Masters of sels on board of \Vhich any infectious disease shall appear, on Vesgeli to their arrival at the place to which they shall be appointed to *^" ' repair, shall report their case to one of the officers named in . ; > ,i the Act, or to some Justice of the Peace, who shall forthwith give notice thereof to the local Board of Health, or to the Governor or His Majesty's Council. Sec. 17. A Justice of the Peace, on application made Person eMcav to him, shall issue his warrant for apprehending any person IngfromQua- who shall have quitted any vessel I'able to perform quarantine, '^"•"'•• or who shall have escaped from quarantine, and for conveying 'm:?? such person to the vessel from which he or she shall have come on shore, or to any vessel performing quarantine, or laza- ret, from which he or she shall have escaped ; or for the con- 108 CONTAGIOUS DISEASES, &c. Releasing from Qaaran- tine. Hearing, nnd panishment of offences. Recovery of penalties. Directionr. fining of any such person in any such place of safe custody, (not being a public gaol,) and under such restrictions as to having any communication with any other persons, as may, in the discretion of such Justice of the Peace, (calling to his aid, if he shall think fit, any medical person,) appear to be proper, until such person can be safely conveyed to some place ap- pointed for the performance of quarantine, or until directions can be obtained from the Board of Health, or His Majesty's Council, as to the disposal of any such person ; and to make any further order, or grant any further warrant that may be ne- cessary in that behalf. Sec. 21. Upon proof made before a Justice of the Peace, by the oaths of the master or other person having charge of a vessel under quarantine, and of three or mois persons be- longing thereto, or by the oaths of tv>?o or more credible wit- nesses, that such vessel, and all and every such person and persons respectively, have duly performed quarantine, and that the vessel and all and every person and persons are free from infection, then and in the said respective cases, such Justice of the Peace shall give a certificate thereof. Sec. 31. All oftences committed against any of the pro- visions of the act, for which no specific penalty, forfeiture, or punishment is therein provided, shall be tried, heard and de- termined, before any three Justices of the Peace of the county or place, where such offence or disobedience shall happen ; and the offender on conviction thereof, shall be liable to such forfeiture or penalty, not exceeding the sum of one hundred pounds, or to such imprisonment not exceeding twelve months for any one offence, as shall in the discretion of the three Jus- tices who heard and determined the same, be judged proper ; and such forfeiture and penalty shall be paid, one moiety to the person prosecuting for the same, and the remainder to His Majesty, to be applied as the proceeds of other penalties and forfeitures are by the act directed to be applied. Jlnnual. By the 3 W. 4, c. 67. 4 V. 241, made in amendment of the above mentioned act, it is provided, that all fines, pen- alties, and forfeitures, imposed or incurred by or under the said above mentioned act, when the whole amount thereof shall not exceed five pounds in the whole, shall and may be prosecuted, recovered, levied, and paid, before and by order of any two Justices of the Peace for the county or district where the offence was committed. Jlnnual.- The forms of the Information and Warrant required under the before recited 7th clause of the aforesaid Statute respect- ing Quarantine, may readily be framed from the words of the clause. The information should be taken in the form of an CONTAGIOUS DISEASES, &c. J 109 affidavit, made by the persfm giving tlie information, in which should be stated briefly, the fact of the person complained of having quitted the vessel, or the j>]ace of quarantine, and stat- ing names, times, and places, and other material circumstan- ces, as the case may be. This affidavit must be briefly recit- ed in the body of the warrant, the merely formal part of which will be the same as in ordinary cases for the arrest of a party, and will be found under the title, — Warrant. Such directions as are requisite, and also the forms, which may readily be made to serve for prosecutions under the before recited 31st. section of the same Statute, and also under the foregoing Act of the 3 W. 4, made in amendment thereof, will be found under the respective Titles, — Information^; Summons; Conviction; Commitment. i , ^'^ II. Health Wardens. By the 2 W. 4, c. 14. 4 V. 148, Justices in Sessions, in every other county or district except Halifax, may nomi- nate and appoint from time to time, such and so many persons as may be necessary, to fill the office of Health Wardens, within the several towns of the Province, except Halifax, who shall act gratuitously, and be sworn to the due performance of their office, pursuant to the act. Temporary. III. Regulations, &c. by Sessions. .'■■ ^ «V1 '-'>Ii .: V-.t,i;L>^'; 7V,J-; By the 5 W. 4, c. 18. 4 V. 405, If, on any occasion, at any towns or places distant from Halifax, any infectious disease or distemper shall have been introduced, or there shall appear imminent danger of the introduction or spreading there- of, before the directions of the Governor, or His Majesty's Council thereon, can be transmitted to such town or place, then, if there is no Board of Health in such town or place, it shall be lawful for the Justices of the Peace for the county, in Special Sessions assembled, by any order or orders then and there to be made, to establish all such rules and regulations as to such Justices may appear necessary or expedient, as well for preventing as far as possible the introduction into this Pro- vince, or spreading within the same, of any such infectious disease or distemper, as also for the relief of any persons suf- fering under, or likely to be afflicted by any such disease, and likewise for declaring and bringing into immediate and full operation, all such parts of the regulations in the " Act more effectually to provide against the introduction of infectious or contagious diseases, and the spreading thereof in this Pro- Appointment. no CONTAGIOUS DISEASES, &c. CoanuUing Physicians. Removing infected persons. vince," and in this Act, as such emergency shall require to be put in force in such town or place ; and likewise for enforcing the perforniance of quarantine, according to the provisions of the Statute therefor ; and moreover for appointing officers and persons to execute the said regulations, s far as may appear requisite ; and the said Justices in Session shall forthwith cause copies of all such orders to be transmitted to the Gover- nor, or in his absence to His Majesty's Council; and the same orders, until the Governor, or His Majesty's Council, shall alter or annul the same, shall continue to be in force. Sec. 5. In all towns and places where there shall be no Board of Health, except in the town of Halifax, it shall be lawful for the Justices in ^Special Sessions, to appoint such number as may be deemed requisite, of consulting physicians, whose duty it shall be, in case of any alarm of any contagious or other dangerous disease or distemper occurring, or likely to occur in any such town or place, to give to the said Justi- ces all such professional advice and information as they may request, with a view to the prevention of the said diseases, and at all convenient times to assist such Justices whh their counsel and advice, in all matters that relate to the health of the inhabitants. Sec. 6. In places where no Boards of Health, or Health Wardens are appointed, any three Justices in General or Special Session assembled, shall have power to remove or cause to be removed from any dwelling house, or other place within the jurisdiction of the said Justices, or from any ship or vessel coming near to or within the same, any person or persons sick with any contagious or infectious disease, to any hospital, house, or place, proper for the reception of such sick and exposed persons. Provided it shall be certified unto the said Justices in Sessions, in some writing to be signed and attested to by any two or more physicians of the town or place, or if only one, then by that one physician, that in their or his opin- ion, such removal is necessary or expedient for the safety of the inhabitants ; and in case any persoii sick with such conta- gious or infectious disease, in any house or place within such jurisdiction, cannot, in the opinion of such physicians, be re- moved, then the said Justices in Session shall have power to cause such house to be vacated by the removal of the other occupants thereof, or to cause any house or tenement contigu- ous thereto, to be vacated, by the removal of the occupants thereof, for such time as the physicians consulted by the said Justices in Session, shall think expedient, and the safety of the inhabitants of the place may require. Temporary. ce. I be no hall be It such r Health ' Special ise to be Ithin the ir vessel (ons sick lospital, iick and the said attested CONTAGIOUS DISEASES, &t. IV. Recovery of Penalties. Ill •r;«iiii; Bt the 5 W. 4, c. 17, § 30. 4 V. 402, Concerning nui- sances, it is enacted, that it shall be lawful for any Board of Health, or Health Wardens, appointed and acting under the Act, " more effectually to provide against the introduction of infectious or contagious diseases," to limit and restrain to any sum under ten pounds, but not below ten shillings, the amount to be prosecuted for, in respect of any of the several penalties imposed by or incurred under the said last mentioned Act, for the offences to which such Act has reference, and all penalties thus limited, shall and may be sued for and recovered before any one Justice of the P«ace for the county or place wherein the penalty shall be incurred, and all larger penalties shall be sued for and recovered in any Court of Record in the same county. Sec. 31. All such limited penalties under the said last mentioned Act, shall be sued for and recovered in the name and on the information of any Health Inspector within whose limits the offence shall have been committed, or as a debt due to him, as the case may be ; and if there be no Health Inspec- tor, then in the name of the Clerk of the peace of the county or district, unless His Majesty's Attorney or Solicitor General think proper to prosecute at the suit of the Crown, and give notice accordingly ; and in all cases where the prosecution shall be in the name of the Health Inspector, or Clerk of the peace, he shall be deemed the official prosecutor, and shall, as shall any Heulih Warden, be and be deemed a competent witness in such prosecution or suit, and shall recover costs of suit from the defendant, if judgment be given for the penalty or sum pro- secuted for, but shall not be liable to pay to the defendant any costs, if the judgment pass in favour of the defendant ; and all monies to be recovered by any such suit or prosecution, shall be paid into the hands of the Treasurer for the town, or for the county as the case may be, and shall be appropriated towards defraying the expenses there to be incurred in and about the enforcing and carrying into effect this Act, and the Acts therein recited. Sec. 33. If any appeal shall be entered against the judg- ment of a Court of Summary Jurisdiction, or any Justice of the Peace, given for any sum of money sued for by any Clerk of the peace, or Health Inspector, either as a penalty, or as a debt due to him, under the provisions of the said Act, '^ more effectually to provide against the introduction of infectious or contagious diseases," or of this Act, and such appeal be not duly prosecuted at the first sitting of the Court to which the Appenlf. ■ JSsi'iill ft d U2 CONTAGIOUS DISEASEJ, &c. appeal is prayed, then on such default being certified by the Clerk thereof, execution shall be forthwith issued from the Court, or by the Justice by whom the judgment was rendered. Temporary. Directions. As it is provided in the above recited 30th and 31st Sec- tions of the aforesaid Statute, 5 W. 4, c. 17, that the limited penalties therein mentioned, incurred under the aforesaid Act " to provide against the introduction of infectious diseases," may be sued for before one Justice of the Peace, by a Health Inspector, or Clerk of the Peace, as a debt due to him, the proceedings and the Forms of Summons and Execution requi- site for the recovery of such limited penalties, will be the same as in cases for the recovery of private debts before a single Justice, and will be found under the Title, — Summary Trials. „ ^!:«',f;,v Directions. ''■^•;■ r.:Ui :'. CONVICTION. t: .:h The power of a Justice of the Peace to convict an offender in a summary way, without a trial by jury, is in restraint of the common law, and in abundance of instances a tacit repeal of that famous clause in the Great Charter, that a man shall be tried by his equals ; which also was the common law of the land long before the Great Charter, even from time immemo- rial, beyond the date of histories and records. Therefore, ge- nerall3r , nothing shall be presumed in favour of this branch of the office of a Justice of the Peace, but the intendment will be against it. For which reason, where this special power is given to a Justice of the Peace by Act of Parliament, it must appear that he hath strictly pursued it, otherwise the common law will break in upon him and level all his proceedings. So that where a trial by jury is dispensed with, yet he must pro- ceed, nevertheless, according to the course of the common law in trials by juries, and consider himself only as constituted in the place both of judge and jury. Therefore there must be an information or charge against a person, then he must be sum- moned or have notice of such charge, and have an opportunity to make his defence ; and the evidence against him must be such as the common law approves of, unless the Statute di- rect otherwise ; then if the person is found guilty, there must be a conviction, judgment and execution, all according to the course of the common law, directed and influenced by the special authority given by Statute. 1 Burn's^ 586. The Justice must also take and preserve minutes of all the proceedings before him, from which, when a removal of CONVICTION. 1 1.3 llie same to a Superior Court is reqjiired by a writ of certiorari, lie must make and send up a record liiereof, according to the form set fortli in the Statute hereinafter mentioned. The dif- ficulty of drawing up a conviction in due form, has induced the Provincial Legislature in the Statute alluded to, being the 5 W. 4, c. 2. 4 V. 353, to frame and prescribe a general Form of a Record of Conviction, to be used in all cases where no parti- cular Form for the record thereof shall have been directed. In here treating further of this subject, the Form of Record pre- scribed in the said Statute will first be set forth, and then the several essential parts of it will be separately exhibited, and the law establishing and explaining them, respectively, will be stated and applied. It is proper, however, to observe here, that in cases where a Justice is authorised to convict of an offence on his own view, or in his own hearing, the said Sta- tute does not apply, and the Form of Record therein prescribed will not suit, and indeed cannot be followed in any such case, but a more brief though sufficiently comprehensive Form is to be used ; as in cases under the Statutes against Drunkenness, profane swearing, and performing ordinary labour, or using sports on the Lord's day ; which brief Forms will be found, respectively, under the titles of those last mentioned offences. In all instances, however, where a Justice is not authorised to convict on his own view, or in his own hearing, the Form of Record set forth in the said Statute must, according to the di- rection therein contained, be strictly adhered to, either literally, or at least in words to the same eflect. .,!• , -.'^v By the aforesaid Statute it is enacted, that, — In all cases wherein a conviction shall have taken place, and no particular Form for the Record thereof shall have been directed, the Jus- tice or Justices, or other person or persons duly authorised to proceed summarily therein, and before whom the offender or offenders shall have been convicted, shall and may cause the Record of such Conviction to be drawn up in the manner and form following, or in any worlds to the sanie efiect, mutatis mutandis^ that is to say : -v,f» t,,^^,.^,..^;. ^y ,f:h *- » . »;I? \Mcr.. County of , ) [or as the case may be,] ^ Be it Remembered that on the — day of , in the year of our Lord , at in the county of , A. B., of in the county of , la- bourer, (or as the case may be,) personally canje before me (or before us, &c.) C. D., one (or more as the case may be,) of His Majesty's Justices of the Peace for the said , and informed me (or us, &c.) that E. F. of , in the county , nf of. -, on the — day of at in the said did 15 r lU CONVICTION. Appeal. (here set forth the fact for which the information is laid,) con- trary to the form of the Statute in such case made and pro- vided ; whereupon the said E. F., after being duly summoned to answer the said charge, appeared before me, (or us, &c.) on the — day of in the said , and having heard the charge contained in the said information, declared he was not guilty of the said offence, (or as the case may happen to be,) did not appear before me, [or us, &c.] pursuant to the said summons, [or did neglect and refuse to make any defence against the said charge,] whereupon I [or we, &c., or, never- theless I, or we, &c.,] the said Justice, [or Justices,] did proceed to examine into the truth of the charge contained in the said information, and on the — day of aforesaid, at aforesaid, one credible witness, to wit, A. W. of ■ in the county of upon his oath deposeth and saith, [if E. F. be present, say in the presence of the said E. P.,] that within months, [or as the case may be,] next before the said information was made before me, (or us, &c.,) the said Justice, by the said A. B., to wit, on the — day of , in the year , the said E. F , at in the said county of , (here state the evidence, and as nearly as possible in the words used by the witness, and if more than one witness be examined, state the evidence given by each,) (or if the defen- dant confess, instead of stating the evidence, say) — and the said E. F. acknowledged and voluntarily confessed the same to be true ; therefore it manifestly appeareth to me, (or us, &c.,) that the said E. F. is guilty of the offence charged upon him in the said information, I (or we, &c.,) do hereby convict him of the offence aforesaid, and do declare and adjudge, that the said E. F. hath forfeited the sum of , of lawful money of Nova Scotia, for the offence aforesaid, (with the sum of ,) costs in this behalf, (if any allowed,) to be levied, col- lected, and distributed, (or paid,) (as the case may be,) ac- cording to the form of the Statute in that case made and pro- vided. Given under my hand, (or our hands,) and seal, (or seals,) the day of , in the year of our Lord . Sec. 2. In all cases where any Justice or Justices, or others, shall by virtue of any Statute, fix, impose, or order payment of any fine, penalty, or sum of money, upon or against any person or persons whomsoever, he or they may appeal against the decision to the then next Supreme Court, or Court of Common Pleas, to be holden in the county or district where such decision took place ; and such appeal shall be granted by such Justice, or Justices, or others, upon the party appealing entering into a bond, with sufficient surety, in treble CONVICTION. the amount of such fine, penalty, or sum of money, (including the costs attending the conviction, or order for payment there- of, if any there be,) In the name or names of, and payable to the pai'ty or parties prosecuting, and conditioned for the due prosecution of such appeal, and the abiding of the judgment thereupon, by tlie party or parties so appealing, (for which bond the Justice or Justices, or other persons granting such appeal, and whose duty it shall be to prepare such bond, upon the demanding of such appeal, shall receive and take the sum of two shillings and sixpence and no more,) and such Justice or Justices, or other persons, shall thereupon, on or before the first day of the term of the Court to which such appeal shall be had, send to the said Court such bond, and his minutes of judgment and proceedings, and other papers in the matter of such appeal, without its being necessary in such stage of the cause, to make up a formal record of such conviction ; and such further proceedings and judgment shall be thereupon had and given, as is or are now used, had, or given, in and upon appeals from the judgments of Justices of the Peace, in civil cases, and with the like costs as are allowed in such cases ; and the judgment thereupon shall be final and conclusive, and execution thereupon may issue in the same manner, and to the same effect as in civil cases ; and when an appeal shall have been had against any judgment or conviction, in either a civil or criminal case, and no proceeding therein be had during the next ensuing terra of the Court appealed to, either by entry of the cause there, or otherwise, it shall be lawful for the Justice or Justices having given such judgment, or ordered such con- viction, to issue his or their execution or warrant against the party so having appealed, in the same manner as if no such appeal had been taken. Perpetual. .,„, .,,,_ Be it Remembered^ that on the — day of ] The day and year of exhibiting the information must be specified, as well that it may appear to be subsequent to the offence, and prior to all other proceedings, as in order to ascertain that the prosecution is within the time limited by Statute. I Burn's^ 590. ^. B. of Sfc. Sfc] The name of the informer should be set forth, tliat it may afterwards appear that the witness is not the same person ; since many Statutes giyr a part of the penalty to the informer, and in such cases the informer cannot be a witness. Id. That E. F. of Sfc] It is no objection that the offender appears to be a married woman, for a married woman may be convicted on a penal Statute, without joining her husband. /(/. 593. U5 . ii '■!I.L}- :!:i ' UG CONVICTION. On the — day oj ] The time of committing the of- fence must be stated, that it may appear that the prosecution is commenced in due time ; and also that the party may be ena- bled to defend himself against a second charge. But the of- fence need not be proved precisely on the day on which it is laid to have been committed, though it must be proved to have been committed within the time limited for the prosecution. The time of committing the offence must also be stated in that part of the Conviction in which the evidence is set forth, the year as well as the day. Id. 592. '^ *St Sfc. did Sfc.'] Here must be stated an exact des- cription of the offence, which in order to give the Justice a jurisdiction, must appear to be within both the letter and spirit of the Statute that creates it, and which must be so exactly described, that the defendant may know what charge he is to answer. And the quantity of the offence is more especially necessary to be shown, in cases where it is the measure of the penalty or damages to be given by the Justice. Thus a con- viction on the Stat. 43 Eliz. c. 7, § 1, for cutting down trees, was quashed, because it did not mention the number of trees. Id. 694. Negative of A summary conviction for any offence created by Statute, Exceptions, must negative every exception contained in the clause creating the offence ; and a defect in omitting so to do, is not aided by a proviso in the Statute, that " no conviction for any offence in the Act, shall be set aside for want of form, or through the mistake of any fact, circumstance, or other matter, provided the material facts alleged were proved," for this in effect re- quires all material facts to be alleged, and it is a material fact, that the defendant did not come within the exception in the enacting clause. But where a Statute constitutes an act to be an offence generally, and in a subsequent clause makes a pro- viso in favour of particular cases, there the proviso is a matter of defence or excuse, which need not be noticed in the infor- mation, /a. 594. svfej n;.^^ syi w.. lit; If a subsequent Statute make any exception to a former one, it is incumbent on the defendant to shew by way of de- fence, that he comes within such exception. So where nega- tives are descriptive of the offence, they must be set forth ; for what comes by way of proviso in a Statute, must be insisted on by way of defence, by the party accused ; but where ex- ceptions are in the enacting part of a law, it must appear in the charge, that the defendant does not fall within any of them. Id. 1 In general it is sufficient for the Justices in the description of the offence, to pursue the words of the Statute, but that is not always sufficient, it may be necessary to go farther. It summoni CONVICTION. ] 117 was so determined, upon a conviction of a person, for robbing an orchard ; which the Court held not sufficient, but it ought to have appeared of what and how the orchard was robbed, that they might judge whether it were a robbery within the meaning ofthe43EIiz. c. 7. Id. 695. Whereupon the said E. F., after being duly summoned, Sfc] The party ought to be heard, and for that purpose ought to be summoned in fact ; and if the Justices proceed against a person, without summoning him, it will be a misdemeanor in them, for which an information will lie. But though justice requires that a party should be duly summoned, and fully heard before he is condemned, yet if he be stated to be present at the time of the proceedings, and to have heard all the witnes- ses, and not to have asked for any further time to bring for- ward his defence, if he had any, this at all times has been deemed sufficient. Id. 595. rn^'r. The defendant should have a reasonable time allowed him for making his defence. A conviction upon default of appear- ance, where the summons was to appear immediately upon the receipt of it, was held bad. The summons should be, to ap- pear at a certain time and place, and these must be such as to aflbrd the defendant the reasonable means of complying with the summons, and of being fairly heard. The service of the summons should be proved upon oath, and it seems that such service should in general be a personal one. Id, 596. The summons may be directed either to the party charg- ed, requiring him to appear, or to some third person, requir- mg him to summon the party. Id. 595. The summons must not be for appearance on an impossi- ble day. In one case it was stated, that the defendant was summoned to appear ; and did appear, on Tuesday the 1 7th day of April, 1802, &c. In fact the 17th of April fell on a Friday, and it being objected, that the time of the summons being impossible, it was the same as if there had been no summons, the court quashed the conviction on this ground, saying, " there could be no such day, and therefore he could not appear thereupon ; and when the day is not set forth, his appearance on another day cannot be intended. " Id. 595. *Snd having heard the charge, Sfc] The information must be read to the defendant, who should be apprised of the charge against him, and put to plead thereto, that is either to confess or deny it, before the Justice proceeds to hear evi- dence in its support. Id. 597. Whereupon I or We, S^c. did proceed to examine, 4rc.] It was formerly doubted, whether the Justice having summon- ed the defendant, might, if he did not, appear, proceed to The party to be Summoned Time for Ap- pearance and Defence. .' Ji Pleading to the Charge. ConTicting the Party in bia Abaence. 118 CONVICTION. Naming Wit- neu. Setting oat the Evidence. .,,' The Evidence may be slated in the words gf the Act. Evidence to be given in presence of Defendant. Defence. hear the evidence and convict him, in cases where tlie Statute does not expressly give such a power, but now it seems per- fectly settled, that a party who does not appear after regular notice, may be convicted in his absence. Id. 596. One credible WitnesSj to toity Jl. W. of ^c] It is requisite to name the witness, that he may appear to be a dif- ferent person from the informer ; as the Statutes generally give the latter a share of the penalty, and therefore he cannot be a witness, excepting where the act shall specially so direct. Id. 597. Upon his oath deposeth and saith in the presence of the said E. F.] It is fully settled that in all convictions, the evidence must be set out particularly, not merely the result of it ; and that sufficient proof must appear upon the face of the record to sustain every material part of the charge, and to warrant the adjudication. The evidence must be set out, in order that the superior court may judge whether the Justices have done right. It is recognised as a known distinction be- tween orders and convictions, that in the former, it is allowed to state the result only of the evidence, but this would un- doubtedly be bad in a conviction. A conviction for taking pil- chards, contrary to the form of the Statute, was quashed, and the reason assigned was, because the witness swore generally, that the defendant was guilty oj the premises ; for that is tak- ing the law upon himself. Likewise, a conviction on the Can- dle Act was set aside, because the evidence was not set out, it being only alleged that the offence was fully and duly proved. Id. 598. If a conviction state in the words of the Statute, the depo- sition of the witness to the fact, it is sufficient ; but if the Ma- gistrate endeavour to shelter himself from detection, by merely stating the fact of the offisnce in the terms of the Statute, as if it were the legal effect of the evidence, when the evidence itself would not warrant the conclusion, he subjects himself to a criminal information, upon a proper case laid before the Court. Id. 599. Where the informer is permitted to be a witness, he must be sworn and examined in the defendant's presence, (if ap- pearing,) even though he were sworn when the information was taken. And therefore it is not sufficient in such a case, to read over the informant's deposition, in the presence of the defendant, Id. It should appear that the fact was proved to have been committed in some place within the jurisdiction of the Ma- gistrate. Id. If the defendant when put on his defence, sets up a claim CONVICTION. ) 119 le must (ifap- lon was lase, to of the re been le Ma- a claim uf right to the thing ho is accused of taking, or destroying, and there is any pretence or colour for such right, the Justice ought to acquit him. Id. It is sufficient in convictions, if there were such evidence Comideration before the Magistrate, as in an action would be sufficient to be of Evidence, left to a jury. He is the sole judge of the weight of the evi- dence, and the Court will not examine whether or not he has drawn a right conclusion from the evidence. But if no evidence appear on the conviction to support a material part of the in- formation, the Court will quasi) the conviction. Id. 600. »Snd the said E. F. acknowledged, Sfc] In general if Confewon. the defendant confess the offence, it is needless to go into the proof of it. But this is to be understood of a confession to the full extent of a good and sufficient information ; for where either the confession does not come up to the charge in the information, or is made upon an insufficient information, it will not supply the want of evidence in the one case, or of a sufficient charge in the other. 1 iJurn's, 597. Though a Statute only empowers the Justice to convict upon the oath of one or more witnesses, yet he may convict >a..r».,.i<; upon the confession of the party alone. Id. That the said E. F. hath forfeited, S^c.] Even in cases Adja^ieaiion. where the punishment is fixed by Statute, there must be an express adjudication of the forfeiture. A conviction is in the nature of a verdict and judgment, and therefore must be pre- cise and certain. 1 Burn^s, 601. If imprisonment be adjudged, not for any certain period, PunUhinent. but generally till the payment of a fine or the performance of some other act, the condition must be distinctly expressed, and such as is authorised by Statute. If it be till payment, the sum must be fixed. Thus a conviction and commitment for a forcible entry, " there to remain till they shall have paid a fine to the King," the Justices not having assessed any fine, was held to be irregular. So under a Statute which em- powered the magistrate to commit until the penalty and charges were paid, a commitment for nine months, or until the sum of £15, ^' together with charges previous to and attending the conviction shall be paid," was held to be bad, for want of ascertaining the exact sum, by the payment of which the de- fendant might be released. Id. With the sum of costs in this beJialfl When an Costt. Act gives power to a Magistrate, on a summary conviction, to award the reasonable charges of taking a distress, he must ascertain the amount in the conviction ; and an adjudication that the defendant shall pay the reasonable charges of the levy, .is bad. Id. 603. ^rts* ,-M !^kh -. / 120 CONVICTION. .iiii' W.I Given under my hand and nealy Sfc. \ A Conviction must bo under the hand and seal of the Mugistrate, and it is laid down that he ought to give the defendant a copy of the convic- tion if he demands it, as it is a record. Id. 603. Note. From the enactment, however, in the beforo re- cited Provincial Statute, that, — On an Appeal the Justice must send up to the Court *^ his minutes of judgment and proceed- ings, and other papers in the matter of such appeal, without its being necessary in such stage of the cause to make up a for- mal record of the conviction," it would seem that he will not be bound to furnish to the defendant a copy of such record, unless where he may be required to do so in some course of legal proceedings. It is laid down, that in all cases a Justice of the Peace ought to return a conviction by him to the Sessions, whether the party appeal or not, or whether an appeal is or is not given ; that the Crown may not be deprived of its share of forfeitures. 1 Burn's, 603. DirectioBi. ' .|.'<(»lrJ HI >'(Hl, The requisite Forms of Information ; Summons ; War- rant of Distress, and Commitment ; will be found under these Titles respectively ; and where an execution is required pur- suant to the provision of the before recited Statute, the form of such execution will be similar 1 1 that issued on judgments on summary trials before a Justice, for the recovery of debts ; and will be found under the Title, — Summary Trials. ■ «-> 1 '.if 1/ Form of the Bond to be given by a Defendant on his Appeal from a Conviction, tii^y •'<■'' I ■ .»,m> J Know all men by these Presents, that we, E. F. of — -^ in the county of , yeoman, and G. H. of in the same county, , are jointly and severally, held and firmly bound unta A. B. of in the county aforesaid, labourer, in the sum of , of lawful money of the Province of Nova Scotia, (this sum must be treble the amount of the sum which £. F. has by the conviction been adjudged to pay,) to be paid to the said A. B. or his executors, administrators, or assigns, for which payment to be well and truly made, we bind ourselves, and each of us by himself, our and each and every of our heirs, executors, and administrator , firmly by these presents, sealed with our seals, and dated the — day of — — , in the year of our Lord one thousand eight hundred and ' . Whereas on the — day of , in the year aforesaid, the above bounden E. F. vas, on the information oi^the said A. B. convicted by and before C. D., one of His Majesty's CONVICTION. 121 Justices of the Peace for the county of of the offence of , and was for the said offence, thereupon adjudged by the said Justice, to pay the sum of , pursuant to the Sta- tute in such case provided, together with the sum of , for costs on the said prosecution ; (if any such were adjudged.) And whereas the said E. F. hath appealed against the said conviction, to the Court at the next ensuing term of the said Court, to be held in and for the said county ; Now the condition of this obligation is such, that if the above bounden E. F. shall at and during the said next ensuing term of the said Court, to be holden in and for the said county, duly prosecute his said appeal, and shall abide the judgment of the said Court thereupon ; then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed and delivered, ) E. F., [Seal.] in the presence of \ G. H., [Seal.] M«i jk; ' h'' 'f,T»r Hj CORONER. .I'il'U* When it happens that any person comes to an unnatural death, the township shall give notice thereof to the Coroner. Otherwise if the body be interred before he come, the town- ship shall be amerced. It is a matter indictable to bury a man that dies a violent death before the Coroner's inquest have sat upon him. 1 Burn^s^ 633. A Coroner's inquisition ought to show upon the face of it, of what place the party who took it was Coroner, and that it was taken by the oath of '' honest and lawful men." Id. The Jury appearing, is to be sworn and charged by the Coroner, to enquire, upon the view of the body, how the party came by his death. For he can take inquisition of death, only upon view of the body, and not otherwise ; therefore if the body be interred before he come, he must dig it up. And this he may do lawfully, within any convenient time, as in fourteen days. Id. If the body cannot be viewed, the Coroner can do nothing, but the Justices of the Peace shall enquire thereof. Id. The Jury being sworn, and the body upon view, the Co- roner shall enquire upon the oaths of them, in this manner ; viz. — If they know where the person was slain; whether it were in any house, field, bed, tavern, or company ; who are culpable either of the act, or of the force ; and who were pre- sent, either men or women, and of what age soever they be, if they can speak or have any discretion ; and how many soever 16 Notice of Death. Burying. Swearing and Charge. View. Inqairy aa to the Death. 122 CORONER. «. Death in Pri- ■on. '.,;;: \.l..i'>'-. Inquisition on Death by Vio- lence. Proceedings in a Caso of Murder. Provincial Statute. be found culpable, they shall be taken and delivered to the SiierifT, and shall be committed to the gaol. Id. 634. If a person be found slain in a field, or in the woods, first it is to be enquired, whether he were slain in the same place ot not ; and if he were brought and laid there, they should do so much as they can to follow their steps that brought the body thither. It shall also be enquired, if the dead person were known, or else a stranger, and where he lay the night before. Id. Also, all wounds ought to be viewed, the length, breadth, and deepness ; and with what weapons ; and in what part of the body the wound or hurt is ; and how many wounds there be ; and who gave the wound ; and how many be culpable. And they must hear evidence on all hands, if it be ofl^ered to them, and as well on the part of the person accused, as against him, and that upon oath. Id. If any be found culpable of the murder, the Coroner shall immediately go to his house, and shall enquire what goods he hath, and how much land he hath, and what it is worth. And when they have thus enquired upon every thing, they shall cause all the land, corn, and goods, to be valued in like manner as if they should be sold immediately. Id. He also shall enquire, \vhether the persons found guilty fled ; for which flight they forfeit goods and chattels. Id. Immediately upon these things being enquired, the bodies of such persons being dead or slain, shall be buried. Id. 635. The Coroner ought also to enquire of the death of all persons who die in prison, that it may be known whether they died by violence or any unreasonable hardships ; for if a pri- soner by the duress of the gaoler come to an untimely death, it is murder in the gaoler, and the law implies malice in respect of the cruelty. And this inquest upon prisoners ought to con- sist of a party Jury, that is, six of the prisoners, (if so many there be,) and six of the next vill or parish, not prisoners. Id. If in any instance of violent death, the Coroner and Jury believe an individual to be guilty of manslaughter, or murder, they are bound to frame their inquisition, containing the result of their enquiries, and to return it to the next assizes. Id. When a Coroner's jury have found that a party has mur- dered the deceased, the Coroner may issue his warrant to ap- prehend him, and may commit him to prison ; he has also power to summon witnesses, and bind over persons to prose- cute and give evidence. Id. By the 9 G. 4, c. 16. 4 V. 32. Every Coroner shall return every inquisition by him taken on view of any deceased person, before the next sitting of the Supreme Court in the CORONER. 123 county or district wherein such Coroners shall have jurisdic- tion, to the Clerk of the Crown, or his deputy for such county or district, who shall thereupon file the same, and without fee or reward give to such Coroner a certificate of such inquisi- tion having been so returned and filed with him ; and therein state the day and year when such inquisition was taken, and when returned and filed as aforesaid ; and upon such certificate of the Clerk of the Crown, or any one of his deputies being filed with the Secretary of the Province, it shall be lawful for the Governor or Commander-in-chief, by warrant under his hand and seal, to direct that there be paid to any such Co- roner, for each and every such inquisition so taken, returned and filed as aforesaid, the sum of fifty shillings out of the Trea- sury of the Province. Sec. 2. The said sum of fifty shillings shall be in full of all demands against the Province, for and on account of such inquest to be made by any Coroner under this or any former Act or Acts whatsoever. And the said Coroner shall apply twelve shillings thereof to pay the Jury's fees, and two shil- lings and sixpence to pay the Constable's fees ; and if there be any further necessary or extraordinary charge attending such inquest, or the burial of the body of the deceased person or persons, such charge shall be defrayed by the county or dis- trict wherein such inquest was taken. Provided, that an ac- count of items be rendered by the Coroner taking such inquest, to the Court of General Sessions of the Peace, and approved of by the Grand Jury in the usual manner. Sec. 3. When any Coroner, in any county, district, town or place, shall be called upon and required to hold any inquisition on any person deceased, when by law such inquisi- tion shall be necessary, such Coroner shall forthwith, either personally summon and require a Jury of the inhabitants of the county, town, or place where such inquisition is held, to attend him on such inquisition ; or shall make out and deliver to some Constable or Constables of the county, town, or place wherein such Coroner has jurisdiction, a warrant or precept, com- manding such Constable or Constables, to summon a Jury to attend such inquisition at a certain time and place therein to be appointed, and such Jurors shall attend accordingly. Sec. 4. It shall and may be lawful for any Coroner to proceed to hold and take any inquisition, on view of any de- t^^ ceased person, on Sunday, where he shall deem it proper and requisite. Perpetual. The Coroner ought to execute his office in person, and not by deputy, for he is a judicial officer. 1 Burn^s, 636. % i.- k m I m Ij. \m 124 # CORONER. ',"ii)trAn ' n? IKUi County of) To A. B., one of the Constables of the ) township of m the said county. . « .^v*a [Seal.] . " By virtue of my office, these are in His Majesty's name to require and command you, immediately upon sight herjof, to summon and warn twelve good and lawful men of the said township of , to be and appear before me A. C, gentle- man, Coroner of the said county of , at in the town- ship aforesaid, on the — day of , at — of the clock in the — noon, then and there to enquire of, do, and execute, all such things as on His Majesty's behalf shall be lawfully given themin charge, touching the death of A. D. And be you then there to certify what you shall have done in the premises, and further to do and execute what in behalf of our said Lord the King shall be then and there enjoined you. Given under my hand and seal, the — day of , in the year of our Lord one thousand eight hundred and — — . :; -■iy..t ai^ f:.i A. C. *»'''.' fi ->■:):<■■ j.ii. I t ■.i:n. y ;iE.. i.j.-,: The Jurors^ Oathonthe Coroner^ s Inquest, '■■p-' ^•'-^ You shall diligently enquire, and true presentment mj on the behalf of our Sovereign Lord the King, how, and m what manner, A. D., [or a person unknown, as the case may be,] here lying dead, came to his death, and of such other matters relating to the same, as shall be lawfully required of you, according to your evidence : so help you God. ivh) After the foreman is sworn, the rest may be sworn three or four together : as follows — Such oath as A. F., the foreman of this inquest, hath for his part taken, you, and every of you, shall well and truly ob- serve and keep on your parts, respectively : so help you God. Witness's Oath. The evidence which you shall give to this inquest, on the behalf of our Sovereign Lord the King, touching the death of A. D., shall be the truth, the whole truth, and nothing but the truth , so help you God. I Inquisition of Murder. ; 's. County of > An inquisition, indented, taken at — I county of aforesaid, the — day of •I !i)ii -in the in CORONER. 125 the — — year of the reign of our Sovereign Lord King Wil- liam the Fourth, and in the year of our Lord one thousand eight hundred and , before me, A. C, gentleman, Co- roner of our said Lord the King for the county aforesaid, upon the view of the body of A. D. then and there lying dead, upon the oaths of A. B., G. D., E. F., &c., [naming all the twelve Jurors,] good and lawful men of the township of , in the county aforesaid, who being sworn and charged to enquire on the part of our said Lord the King, when, where, how and after what manner, the said A. D. came to his death, do say upon their oath, that one A. M., late of in the county aforesaid, yeoman, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the — day of , in the said — year of the reign of our said Lord the King, and in the year of our Lord aforesaid, at the hour of — in the said day, with force and arms, at in the county aforesaid, in and upon the aforesaid A. D., then and there being in the peace of God and of our said Lord the King, feloniously, voluntarily, and of his malice forethought, made an assault ; and that the aforesaid A. M. then and there, with a certain of the value of , which he the said A. M. then and there held in his right hand, the aforesaid A. D., in and upon the left side of the said A. D., then and there violently, feloniously, voluntarily, and of his malice forethought, did strike, and then and there gave to the said A. D., with the aforesaid, in and upon the said left side of the said A. D., one mortal wound, of the breadth of — inches, and of the depth of — inches, of which said mortal wound, the aforesaid A. D. then and there instantly died ; and so the said A. M., then and there feloniously killed and murdered, the said A. D., against the peace of our said Lord the King, his crown and dignity. And moreover, the Jurors aforesaid, upon their oath aforesaid, do say, that the said A. M., at the time of the committing of the fe- lony and murder aforesaid, had goods and chattels contained in the inventory to this inquisition annexed, which remain in the custody of B. C, [or had not, nor as yet hath any goods or chattels, lands or tenements, within the county aforesaid, or elsewhere to the knowledge of the said Jurors.] In witness whereof, as well the aforesaid Coroner, as the juries aforesaid, have to this inquisition put their seals, on the day and year, and at the place first above mentioned. A. C, Coroner. [Seal.] i'kfw>,.|^ ??> {,,. viViiB'*^— jm ,tt /! f.5ft,<<^H! • A. B., [Seal.] C. D., [Seal.] ! '>vi . M'Jfiei Itrm ii^»h E. F., [Seal.] G. H., [Seal.] &c. &c., Jurors. Note. All the Jurors must sign and seal the Inquisition. •bl ISil I id :=i !:-■■: % 4 1; 11- 126 - !■ / CORONER. ■ Ati Inquisition on onis Drowned by Jlccident. "i^- " [Same as before to the words]— do say upon their oath, that the said A. D., on the — day of h — -^ in the year of our Lord aforesaid, at the township aforesaid, in the said coi ,ity, being in a boat upon the river , accidentally, casually, and by misfortune, he the said A. D. fell out of the said boat into the water of the said river, and was in the water of the said river then and there suffocated, and drowned ; of which said suffocation and drowning, he the said A. D. then and there in- stantly died : And so the Jurors aforesaid, do say, that the said A. D., in manner and by the means aforesaid, accidentally, casually, and by misfortune came to his death, and not other- wise. In witness, &c. (as above.) r .-> ,;;> »; ;..» ■ . . ■ ■ I fin rif,ot'A Mill .I)U)J, i)i')!r Mil it' I,:. • J I f\* t rJ.l Jin Inquisition where one dies a JVatural Death. [Same as before to the words] — do say upon their oath, that the said A. D. on the — day of——, in the year aforesaid, at the township of in the county aforesaid, to wit, in a certain place called , was found dead : that he had no marks of violence appearing on his body, and died by the vis- itation of God, in a natural way, and not otherwise. In wit- ness, &c. (as before.) :':l ./-.. l}u;'i i}:U l0')i; i'oi !;.;:;••: ttfll no'isf l>it!i m ;Ui'Aii'M:iiu ■ — -^ *^n Inquisition on one for Cutting his Throat^ ha:- '•r [Same as before to the Words]— ^-do say upon their oath, that the said A. D., not having the fear of God before his eye^, but being moved and seduced by the instigation of the devil, at aforesaid, in the county aforesaid, in dnd upon him- self, then and there being in the peace of God and of the said Lord the King, feloniously, voluntarily, and of his malice afbre- thougiit, made an assault : and that the aforesaid A. D.y then and there with a certain knife of the value of — — , which he the said A. D. then and there held in his right handj himself upon his throat then and there feloniously, voluntarily, and of his malice aforethought did strike, and gave to himself then and there with the knife aforesaid, upon his throat aforesaid, one mortal wound of the breadth of — inches, and the depth of — inch, of which said mortal wound, the said A. D. at afore- said in the county aforesaid, languished, and languishing hved from the said — day of , in the year aforesaid, to the — day of — — ■ in the same year ; and that the said A. Di on the CORONER. 127 — day of aforesaid, in the year aforesaid, at afore- said, in the county afotesaid, of that mortal wound died : And so the Jurors aforesaid, upon their oath aforesaid, say, that the said A. D. then and there in manner and form aforesaid, as a felon of himself, feloniously, voluntarily, and of his malice aforetliought, himself killed and murdered ; against the peace of our said Lord the King, his crown and dignity. In witness &c. (as before.) itiiifwo-i .-niod'^fiit t.) .iv ■,,, .f,., jt.Vfjt CORRECTION, HOUSE OF, see BRIDEWELL, &c. 'Jt^\i'hu"- 'y'" COSTS, seeFEp. " '''county CHARGES, see rates 5? C^imiS^L q^FENDERj?, see COMMITMENT. ii..;ij, ;.:o;i ,i .H DEBTORS ABSCONDING, &c. 'ir"!). By the 1 & 2 G. 4, c. 18. 3 V. 109, It shall not be lawful for any person, to sue out, any process under the second section of the. Act 1 G. 3, c. 8, of which this is in amendn^ent, unless tlie person applying for the said process, shall previous to the issuing thereof, maHe an, affidavit before one of the Judges of the Court from which such process shall be required ; or in the absence of aU the Judges of the said Court, before some one of His Majesty's Justices of the PeacCvthat the defendant is justly indebted to the plaintilfF, in a sum to be specifically mentioned and set forth in the said affidavit; which affidavit shall be filed in the office of the Clerk of the Court from whence the writ shall issue ; and the sum specified in such affidavit, shall be endprsed oUi the back of the said writ, in words at length, and signed; by the Judge or Justice of the Peace before whoni such affidavit shall be made ; and shall also make oath, that he verily believes that the person or persons, whom he is about to sumnion» is the Factor, Agent, or Trustee, of such absent or absconding person, or that he hath goods, effects, or credits of such absent person in his possession, or under his management and controul. PerpUual. m ' 'IS "■il II •m^- (128) iM:A •. l^l'^l-':.•vDESERTERS. - ' "'M'^'^^- (nut.- vl.vJwMijo^B Ai'tofi) I. From Navt. ium tmii M ,^ hitr? By the 32 G. 2, c. 12. 1 V. 14, made perpetual by the 34 6. 2, c. 1. 1 y. 56, If any person shall entice any sea- man or marine to desert, or harbour, conceal, or assist any de- serter from any ship of war, knowing him to be such, the per- son so offending shall forfeit the sum of twenty pounds, on con- viction by one or more credible witness, before any three Jus- tices of the Peace, [quorum unus^) for the use of His Majes- ty's Government, to be levied by distress, and for want of such distress, the person so offending, shall be committed to His Majesty's gaol, there to remain without bail or mainprize, for the space of six months, or till such time as the said fine shall be paid. Perpetual. 1 1 A- ^ For the law as to searching for deserters from the Navy, and respecting the sellir ^ or receiving the slop clothes of seamen or marines, see Title, — Navy. n. From Army. K!h' By the 35 G. 3, c. 5. 1 V. 350, If any person shall harbour, conceal, or assist any deserter from His Majesty's Service, knowing him to be such, the person so offending shall forfeit the sum of five pounds ; and upon conviction by the oath of one or more credible witness or witnesses, before any two Justices of the Peace, the said penalty shall be levied by warrant under the hands of the said Justices, by distress and sale of the goods and chattels of tho offender ; one half of the said penalty to be paid to the informer by whose means such deserter shall be apprehended, and the other half to be paid to the officer to whom such deserter or soldier did belong. And in case the offender so convicted shall not have sufficient goods and chattels whereon distress may be made, to the value of such penalty, or shall not pay such penalty within four days after such conviction, then such Justices may by warrant under their hands and seals, commit such offender to the common gaol, there to remain without bail or mainprize, for three months ; or cause such offender to be publicly whipped, at the discretion of such Justices; Provided, that no commission officer shall break open any house to search for deserters, without a warrant from a Justice or Justices of the Peace, (which warrant such Justice or Justices are empowered to DESERTERS. 129 ii Mri>. '. a»{.i o«! 1 by the my sea- any de- the per- on con- ree Jus- i Majes- want of litted to ainprize, laid fine from the p clothes ion shall iajesty's )frending ction by }, before te levied ress and if of the ins such paid to And jt goods lvalue of ur days t under Common Ir three Iped, at Amission Iserters, 1 Peace, lered to grant,) obtained upon oath made of a desertion from the regi- ment to which such deserters belong, and that there is reason to believe that such deserter or deserters be concealed in the dwelling or out-house in which it is proposed to search for him or them, and into which he the said ofiiccr has been refused admittance. And by the 43 G. 3, c. 1. 1 V. 4C7, made in amendment of the foregoing Act, it is declared, that any person harbouring a deserter, knowing him to be such, shall, instead of the penalty of five pounds, prescribed by the above recited Act, be liable to the penalty of twenty pounds ; to be reco- vered by the ways and means, and applied to the purposes di- rected in and by the said Act. By Stat. 4 & 5 G. 4, c. 34. 3 V. 193, made in further amendment of the said first recited Act, it is provided, that it shall be lawful for the said Justices before whom any conviction shall be had against any offender under the said Act, to commit such offender to the common gaol, after conviction, and before the expiration of the said four days after conviction, unless such offender shall enter into recognizances with two sureties, for his personal appearance before the said Justices, at the expiration of the said four days mentioned in the said Act Perpetual. , ; By the 41 G. 3, c. 4. 1 V. 436, If any person shall di- rectly or indirectly, persuade, entice, or procure, or endeavour to encourage, persuade, entice, or procure any soldier to de- sert, it shall be lawful for the commanding officer of the regi- ment, company, or party to which such soldier shall belong, at his option to cause the person so offending, to be prose- cuted by information in the Supreme Court, or before two Justices of the Peace, according to the nature and circum- stances of the case ; and every person, who on the oath of one or more credible witness, or witnesses, on a prosecution be- fore such Justices, shall be convicted by them, of any or either of the foregoing offences, shall forfeit and pay for each offence, five pounds ; the same to be paid and applied for the use of the poor of the town or district where the offence was committed ; and such offender shall by such Justices be committed to gaol until he or she shall pay and discharge the said penalty of five pounds, together with the cost of prosecution ; and if such offender shall not pay the penalty or penalties recovered against him, within ten days after such conviction, the said Justices shall cause such offender to be publicly whipped and dis- charged from gaol. Perpetual. By the 43 G. 3, c. 1. 1 V. 467, It shall be lawful for the Sheriff of the county, or his deputy, or for any Constable of the town or place where any person who may be reasonably suspected to be a deserter shall be found, or for any officer, or 17 'H ri'! ido DESERTERS. soldier in His Majesty's Service, to apprehend, or cause such suspected person to be apprehended ; and to bring, or cause him to be brought before any Justice of the Peace living in or near such town or place, who shall examine such suspected person ; and if by his confession, or the testimony of one or more witness or witnesses, upon oath ; or by the knowledge of such Justice, it shall appear, that such suspected person is a listed soldier, and ought to be with the troop, or company to which he belongs, such Justice shall forthwith cause him to be conveyed to the gaol of the county, or to the house of correc- tion, in such town or place where he was apprehended, and shall transmit an account thereof to the Governor, or to the commanding officer of the district, to the end that such person may be removed, and proceeded against according to law. Perpetual. . • • . > 4^ III. EXFENCES OF APPREHENDING, MAINTAINING, AND CONVEYING Deserters. h , . By the 41 G. 3, c. 4. 1 V. 436, The Governor may or- der payment out of the Treasury, of the reasonable charges incurred by Magistrates in apprehending, securing and main- taining deserters from the Array, or Navy, and transmitting them to the corps or ship to which they belong, in case such charges cannot be recovered upon due application to such corps or ship. Perpetual. By the 43 G. 3, c. 1, § 2. 1 V. 468, The Sheriff of the county, the keeper of every gaol, house of correction, or pri- son, in ■vhlch any deserter from the Army shall be confined, sha]' receive the full subsistence of such deserter, during the time he shall continue in his custody, for the maintenance of such deserter ; but shall not be entitled to any fee or reward, on account of the imprisonment of such deserter ; and the keeper of every gaol, house of correction, or other prison, shall receive and confine such deserter while on the road from the place where he was apprehended, to the place to which he ijs to be conveyed, either by warrant of the Justice by whom he was examined, and committed, or by order of the Governor, or commanding officer of the district ; and shall not be entitled to any fee or reward on account of the imprisonment of such deserter. Perpetual. ' Note. It is to be observed that this last mentioned Sta- tute only relates to deserters from the Army. '^ i v*fe^ /= DESERTERS. I3i Form of Information to obtain a IVarranl to break open a house to search for a Deserter. via-w -> j-^ ■» -3 County of The information and complaint of A. I., Lieutenant in His Majesty's — Regiment of Footf -, in the year of our Lord one -, before me, A. M., one of made on oath this — day of ■ thousand eight hundred and His Majesty's Justices of the Peace for the said county. The said A. L deposeth and saith, that on the — day of , in the year aforesaid, A. D., a private soldier in the said — regiment, and belonging to a detachment of the said regiment, stationed at in the said county of , desert- ed from the said detachment at aforesaid, and that he the said A. L hath good reason to believe, and doth believe, that the said A. D. is now concealed in the dwelling house of A. O. yeoman, at in the said county, and that he the said A. \., hath made application at the said dwelling house to be admitted therein, to search there for the said A. D. but he hath been re- fused such admittance into the said dwelling house. And hereupon the said A. L requireth a warrant of me the said Justice, authorising the breaking open and entering of the said dwelling house, and the making search therein after the said A. D. ■ A. L Before me, A. M., J. P. . ; ,- . > .-'> h i Form of a Search Warrant thereon. i:> '^%,jmy. n ^».■.'t»^ County of To A. C, one of the Constables of the township of in the said county, and to each [Seal.] and every of the other constables of the said township. Whereas it appears to me A. M., Esquire, one of His Majesty's Justices assigned to keep the peace in the said county, by the information on oath of A. L, a Lieutenant in His Majesty's — Regiment of Foot, that on the — day of , in this present year of our Lord one thousand eight hundred and , A. D., a private soldier in the said regiment, and be- longing to a detachment of the said regiment stationed at in ' — , deserted from the said detachment at the said county of aforesaid, and that he the said A. L hath good reason to believe and doth believe, that the said A. D. is now concealed in the dwelling house of A. 0., yeoman, at in the said county ; and that he the said A. I. hath made application at the said dweUing house, to be admitted therein, to search there for the said A. D., but that he hath been refused such admittance into the said dwelling house ; these are therefore in the name m Hi VM ir pi f"^ lf)2 Direction!. DESERTERS. of our said Lord the King, to authorise and require you, witii necessary and proper assistants, to enter in the day time into the said dwelling house of the said A. 0., at aforesaid, and there diligently to search for the said A. D., uuu if upon such search, you shall Hud the said A. D., that you immediately apprehend him, and bring him before mo, or some other of His Majesty's Justices of the Peace for the said county, to be dealt with according to law. Herein fail you not. Given under my hand and seal, at in the said county, the — day of Distraining at ssreral times. in the year aforesaid. A. M., J. P. For directions as to other proceedings by Justices, by virtue of the Statutes recited imder this Title ; and for the Forms required, see the general directions, and the common Forms which may be made to serve, contained respectively, under the Titles, — Information ; Summons ; Conviction ; Dis- tress ; Recognizance ; Commitment. 'i; ( 'Mm t, i ir • v: : .TT S-rl- DISTRESS. - , •! -J I- .■.■-■1.. i. ii.-:- This Title relates only to that distress which is authorized for the levying of fines or penalties, imposed for ollences against Statutes which director sanction that mode of recovering them, under warrants from Justices of the Peace. It is not to be un- derstood to have any reference whatever to Distresses for rent, in which case, as the law now stands in this Province, — Jus- tices of the Peace have no authority to act. It has been solemnly resolved that these words in an Act of Parliament, — " to be levied by distress," must be under- stood of " distress and sale." 1 Burn^s, 730. Where distress is made by virtue of a warrant of a Justice, in nature of an execution, and the value of the goods distrained shall not be found to be to the full amount of the sum to be le- vied, distress may again be made for the residue of such sum. And the distinction seems to be this, that where there is an entire sum to be levied, it shall not be split, and distress made for part of it at one time, and part at another, and so toties {jvoties for several times ; for that is great oppression ; but if distress is made for the whole sum, and only a mistake is made as to the value of the goods seized, (which may be of very uncertain or even imaginary value, as pictures, jewels, race- horses, and the like,) there is no reason why the whole sum i^hould not be levied by making a further seizure. Id. 704. DISTRESS. 15A What Goods may bo Dia- trained. Il inay be laid down as a general rule, that all chattels personal are liable to be distrained, unless particularly protect- ed or exoniptod. The tools, utensils, or instruments of a man's trade, or profession, as the axe of the carpenter, or the book of a scholar, a loom, im[)lements of husbandry, beasts of the plough, and sheep, and many other things, although under certain circumstances privileged from distress for rent, yet they are all liable to be taken, wiierc a distress is given in the nature of an execution by any particular Statute. Id. 706. uii : Furnaces, cauldrons, or other things 6xed to the freehold, or the doors or windows of a house, or the like, cannot be dis- trained. Id. 700. In cases of distress for the levying of penalties, a part or HreaKing the whole of which is given to the King, doors or gates, in ?P"" Ooorito case they are locked up, or shut, may be broken open ; but where no part of a penally is given to the King, it seems there is no power to broak them open to make the distress. Id. 731 . Note. Distresses should be reasonable, and not too great, and the goods taken should be sold within not less than four, nor more than eight days after seizure, upon due public notice given of the time and place of sale. In cases wherein no power is specially given to Justices to ascertain the charges of taking, keeping, and selling the dis- tress, it seems that the officer executing the warrant, shall be the sole judge thereof in the first instance ; and afterwards, if the owner of the goods distrained shall be dissatisfied, the rea- sonableness thereof shall be determined by a Judge and Jury, upon an action brought : but in several Statutes this power of ascertaining the charges of distress, and sole, is given to the Jus- tices, and in all such cases they should ascertain and fix such charges. See 1 Burn''Sy 731. General Form of a Warrant of Distress for levying a Penally. County of) To A. C, one of the Constables of the Town- ) ship of , in the said County, and to each of [Seal.] the other Constables of the said township. Whereas, on the — day of , in the year of our Lord one thousand eight hundred and , A. 0. of in the said county of , yeoman, was duly convicted before me A. M., one of His Majesty's Justices of the Peace for the said county, of the ofience of [here state particularly the offence of which the party was convicted, and as nearly as may be in the words of the Statute declaring it,] at in the county aforesaid, contrary to the Statute in such case provided, whereby the said A. 0. hath forfeited, and hath by me on the li 134 DISTRESS. hi} said conviction been adjudged to pay the sum of , pursu- ant to the Statute in sucli case provided, [and if costs are aU lowed, say — ] besides the costs and expenses attending the said conviction, wiiich costs and expenses I have ascertained and assessed at tiie sum of . And whereas the said A. O. hatli had duo notice of the said conviction, but hath hitherto altogether neglected and refused to pay, and hath not yet paid the said several sums of — — and , or any part thereof, respectively ; These are therefore in His Majesty's name to command you to distrain the goods and chattels of the said A. 0., and on the goods and chattels so distrained, to levy the said several sums of and , and if within the space of six days next after such distress by you made, the said se- veral sums of and , 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 out of the money arising by such sale, that you do pay the sum of , being one — of the said penally of to , and the residue of the said penalty, and also the said sum of being the costs and expenses aforesaid, to A. I. of in the said county, yeoman, who informed rne of the said oflence, [or, as the appropriation of the penalty and costs, (if any,) may be directed by the Statute,] returning to him the said A. O. the overplus on demand ; the reasonable charges of taking*, keeping, and selling the said distress being first deducted. And you are hereby commanded to certify to me the said Justice, on the — day of now next ensuing, what you shall have done by virtue of this my warrant. Given under my hand and seal at in the said county, this — > day of — — in the year aforesaid. .1 -I A. Al.j J. It ,i' \. Return to be Indorsed on the Warrant where no Goods can be found. County of) I, A. C. the within named constable, do here- ) by certify A. M., Esquire, one of His Majesty's Justices of the Peace for the said county, that by virtue of this warrant, I have made diligent search for the goods and chattels of the within mentioned A. 0., and that I can find no sufiicient goods and chattels of him the said A. O., whereon to levy the within mentioned sums. Witness my hand the — day of , in the year within mentioned. ): ,' ;i*' p' w A. C. Sworn before me the ) m-R-^ •• '*■ ^ day and year aforesaid, A. M., J. P. ?« V County [Seal. county. Wf was on t sand eigh Esquire, said cour particulai against th whereby viction at sides the which cos the sum o and when conviction yet paid tl on the — to t< warrant of the goods I pears to ir otherwise, vours to le of the said can be four by commar and him sal liver him to cept. An( gaol aforesj him the saii several sun limited by i of this comi paid, or oth concerning — day of - If the < the warrant DISTRESS. ItVi Commitment /or want of Distrest. County of can be To A. township of , one of th( Constables of the — in the said county, and to the [Seal.] keeper of His Majesty's pnol at in the said county. \Vherea8 a. 0. of in the said county, yeoman, was on the — day of , in the year of our Lord one thou- sand eight hundred and , duly convicted before me A. M., Esquire, one of His Majesty's Justices of {he Peace for the said county, of the offence of , [here state the offence particularly, as set forth in the Statute and warrant of distress,] against the form of the Statute in that case made and provided, uhereby the said A. O. hath forfeited, and I did on such con- viction adjudge him to forfeit and pay the sum of , be- sides the costs and expences attending the said conviction, which costs and expenses I have ascertained and assessed at the sum of , pursuant to the Statute in such case provided ; and whereas the said A. 0. hath had due notice of the said conviction, but hath neglected and refused to pay, and hath not yet paid the said several sums, or any part thereof ; and whereas on the — day of , in the year aforesaid, I did issue my warrant to A. C, one of the Constables of the said township of , to levy the said several sums by distress and sale of the goods and chattels of the said A. O. ; and whereas it ap- pears to me, as well upon the oath of the said Constable, as otherwise, that he the said Constable hath used his best endea- vours to levy the said several sums, on the goods and chattels of the said A. O., as aforesaid, but that no sufficient distress can be found whereon to levy the same. Wherefore I do here- by command you the said A. C, to apprehend the said A. O. and him safely to convey to the said common gaol, and to de- liver him to the keeper thereof aforesaid, together with this pre- cept. And I do hereby command you the said keeper of the gaol aforesaid, to receive into your custody in the said gaol, him the said A. 0, and him there safely to keep until the said several sums shall be paid, [or if a time of imprisonment is limited by the Statute, say for the space of from the time of this commitment, unless the said several sums shall be sooner paid, or otherwise according to the directions of the Statute concerning the offence.] Given under my hand and seal the — day of , in the year aforesaid. ^ • A. M., J. P. ' If the conviction took place before two Justices or more, Direc the warrant of distress and commitment must be filled up ac- iP(U». 1 "■ • H H full f. . 'IF m 136 DISTRESS. cordingly, and be signed or sealed by both or all of them. Justices must, in every case, carefully examine whether the Statute which directs the levying by a warrant of distress, provides also, that where no goods can be found, the offender shall be committed to prison ; and if to be committed, whether for a limited period, or until payment shall be made ; for un- less iuj^>risonment is authorized by the express or implied terms of the Statute, it cannot take place as a matter of course, for want of distress. In every case, the mode directed by the Statute of levying the penalty, or carrying into effect the pu- nishment imposed, must be strictly observed, and according to the course prescribed by the Statute. -;,^ -';;■?;. DOGS, &c. Br the 34 G. 3, c. 2. 1 V. 331, Every person who shall keep a dog which hath been known to kill or accustomed to worry sheep, or lambs, after notice thereof, shall forfeit and pay ten shillings to the owner of every sheep or lamb so killed ; and shall also forfeit and pay three pounds for every offence ; to be recovered before any one Justice of the county where the of- fence was committed ; one half thereof for the use of the township or plane where the offence was committed, and the other half to the person or persons prosecuting for the same. Perpetual. By the 3 W. 4, c. 71. 4 V. 244, " It shall be lawful for the Justices at any of their General or Special Sessions, or for any two Justices, whereof one shall be a Judge of the Court of Common Pleas, to meet together for the purposes of the Act, and to make, ordain, and put in execution, all such rules, orders, and regulations, as they shall deem necessary or expedient to adopt, as well for preventing the going at large of dogs or other animals, by whose bite the disease, called " ca- nine madness," may be occasioned, as for preventing the oc- currence or progress of the said disease ; and also to order and ordain, that all dogs or other animals affected by, or labouring under the said disease, or exhibiting any of the symptoms at- tending canine madness, or by whose bite the same may pro- bably be communicated to any persons or animals, shall be forthwith destroyed, whenever they shall be found running at large ; and further, to give such orders and directions a» to such Justices shall seem necessary or prudent, against the hap- pening of accidents from the bite of any such diseased animal ; and to prohibit the sale of the flesh of any animal which died 4 f t)0(5S. 4 laf in consequence of having been bitten by any dog or animal la- bouring under, or affected by the symptoms attending canine madness. And the Justices by whom such orders or regula- tions shall be made, or other the Justices in General or Spe- cial Sessions, may change, alter, or revoke the same, or any part thereof, and make other orders and regulations for the purposes of the Act, and may enforce obedience thereto, res- pectively, by any penalty or penalties, not exceeding ten pounds for any one offence, as in such orders or regulations, respectively, shall be expressed. By Sec. 3. Constables and other persons are authorised to kill dogs, or other animals in a rabid state, or liable to com- municate by their bite the said disease ; and which shall be found going at large, contrary to any such orders or regula- tions ; or to secure and confine them safely. Sec. 4. Penalties imposed by such orders or regula- tions, may be sued for, recovered, and levied as debts in the name of any person who will sue for the same, before any two Justices of the county where the offence was committed, and shall be applied to the benefit of the poor therein, Annual. The following directions seem requisite, as to proceed- Direciiona. ings by Justices under the foregoing Statutes. For recovery of the ten shillings given under the first recited Statute, to the owner of a sheep killed by a dog, the proceedings should be the same as in cases for the recovery of small debts, for which see Title,— Summary Trials ; — and for the recovery of the penalty of £3 for the same offence, the proceedings until after conviction, will be the same as in other cases for the recovery of penalties, and for which see, respectively. Titles, — Information ; Sum- mons ; Conviction. This Statute, like several others of our Provincial Acts, does not direct any final process for the levy- ing or enforcing payment of the penalty, and therefore it is in a great measure nugatory, or ineffectual, by reason that after a conviction under it, the Justice is not authorised either to issue a warrant of distress, or to commit the offender to prison for obtaining the penalty. It may here be remarked concerning all such Statutes, that in summary convictions by Justices, they cannot proceed any further, or in any other manner than is au- thorised or directed by the Statutes respectively, under which they are acting ; and consequently, that they cannot, in any such case, either issue a warrant of distress, or commit the party convicted to pristm, to obtain the penalty, unless tiiey are authorised to do so by the terms of the Statute. With regard to the Act respecting mad dogs, as it pro- vides that the penalties imposed shall be recovered " as debts," it would seem, that the proceedings and forms will be the same 18 iL I* 138 DOWER. as in cases of debt between private parties, and which will be found set forth under the Title, — Summary Trials. •nt;: •j'M ■.(;! DOWER. By the 11 G. 3, c. 6. 1 V. 167, "Where a sale of lands or tenements shall be made by a husband and his wife, before the deed shall be sufficient to bar the wife from her dower, she shall be examined by a Justice of the Peace, and if before him she shall declare that she hath freely, and without compulsion from her husband, signed such deed, and therein assigned her right of dower, the Justice shall certify such acknowledgments on the deed, which shall forever bar her from the recove y of her dower to the lands so conveyed." Perpetual. .■r>; ;. ■y ' mn\i 't !'''.>?>* 1^frM ■ i fr •.if [-■•■ ■ \ '1 ^•iT DRUNKENNESS. By the 32 G. 2, c. 20. 1 V. 29, Every person who shall by view of any Justice of the Peace, or confession of the party, or oath of one credible witness before any such Justice, be convicted of drunkenness, shall forfeit and pay for the use of the poor of the town where such offence is committed, the sum of five shillings, to be levied, on neglect or refusal to pay the same, by warrant of distress and sale of the offender's goods ; and the said sum, when paid or levied, shall be deli- vered to the Overseers of the poor, for the use of the poor as aforesaid ; and for want of such distress, such offender shall be set in the stocks for any time not exceeding three hours, at the discretion of the Justice or Justices before whom such of- fender shall be convicted ; and upon a second conviction of drunkenness, in like manner as aforesaid, every such offender shall, over and above the penalty aforesaid, be bound with two sureties in the sum of ten pounds, with condition for the good behaviour ; and for want of such sureties, such offender shall be committed to the common gaol, until he shall find the same ; provided that every such offence be proved or prose- cuted within ten days after it was committed. The Justices shall register all the convictions made before them of drunken- ness, and shall certify the same to the next Quarter Sessions, to be kept upon record by the Clerks of the Peace, to be seen widiout fee. And if any action shall be brought against a Justice, for any proceedings on the said oflence, in pursuance DRUNKENNESS. 139 rill be >M^in*< f lands before er, she ire him pulsion led her gments vey of , ,.'V ■: ' (' (*■{'•;, Mii [■'■:■ on who n of the Justice, I the use d, the to pay Fender's be deli- poor as er shall ours, at such of- jtion of )ffender nd with for the fFender find the prose- Fuslices unken- jssions, to be [gainst u rsuancc of this Act, he may plead the general issue, and give the spe- cial matter in evidence ; and if the plaintiff shall be nonsuit, or a verdict shall be found for the Justice, he shall have treble costs. Perpetual. ^fU^ ^/■li'woi Form of infrrmation for Drunkenness. County of) The information of A. I., of in the ) county aforesaid, yeoman, exhibited before me, A. M., Esquire, one of His Majesty's Justices of the Peace for the said county, the — day of , in the year one thou- sand eight hundred and , who on his oath saith. That A. 0., of in the county aforesaid, labourer, on the — day of in the year aforesaid, at the township of in the said county, was drunk, contrary to the Statute in such case made : and thereupon, he the said A. I. prayeth that the said A. 0. may forfeit the sum of five shillings, to the use of the poor of the said township, as by the said Statute is required. A. I. ' Before me, A. M., J. P. .^ Summons thereupon. County of) To A. C, one of the Constables of the ) township of in the said county : [Seal.] Forasmuch as information upon oath hath been made before me, A. M., Esquire, one of His Majesty's Justices of the Peace for the said county, that A. 0., of in the said county, labourer, on the — day of , in the year one thousand eight hundred and , at the township of in the county aforesaid, labourer, was drunk, contrary to the Statute in such case made : These are therefore to require you to summon the said A. 0. to appear before me, at in the said county, on the — day of aforesaid, to answer unto the said information, and to show cause why the penalty of five shillings should not be levied on the goods of him the said A. O., for the said offence ; and be you then there to certify what you shall have done in the premises. Given under my hand and seal, the — day of , in the year aforesaid. A. M., J. P. »; !«■ For a Form of Conviction, see the General Form under the Title, — Conviction. If the Justice convicts on his own view, the Information and Summons are needless, and the Form may be thus : — '\ iW '■'■ w fi I- 140 if County of eight hundred county of Ired and DRUNKENNESS. Be it Remembered, that on the — day of in the year of our Lord one , at the township of — aforesaid, I, A. M. Esquire, one thousand , in the of His Majesty's Justices of the Peace for the said county, personal- ly saw one A. 0. of the township of , in the said county, labourer, drunk, contrary to the form of the Statute in that case made and provided : Whereupon it is considered and adjudged by me the said Justice, tliat the said A. 0. be convicted, and he is by me, accordingly, hereby convicted of the offence of being drunk, upon my own view as aforesaid, according to the form of the Statute in that case made and provided : And I do hereby adjudge, that the said A. 0., for the said offence, hath forfeited the sum of five shilHngs, to be paid and distributed as the law directs. In witness whereof, I the said Justice, to this present conviction have set my hand and seal, the day and year above written, r ? i <> ^ ;: ■ • [Seal.] , I P:n-''ii^"'' ' > ' A. M., J. P. 'tif Note. By the English Statute on this subject, to which ours is in general similar, it is provided, that if the party does not pay the penalty to the Church Wardens, within one week after conviction, a warrant of distress shall issue ; and there, accordingly, the practice is, after conviction, to send out a warrant to the Church Wardens, to demand the penalty, and if on the expiration of the week, it is returned unsatisfied, the warrant of distress is issued. As our Statute does not allow any time after conviction for making payment, it would seem, that a similar warrant to the Overseers of the poor to demand payment, is not requisite. However, as in our Statute the words " on neglect or refusal to pay," seem to imply that some notice of the conviction should be given to the party, or some demand of the penalty made upon him, before issuing the war- rant of distress, it will probably, in the case of his not being present at the time of the conviction, be the best and safest course, to send out a warrant in the following form to the Over- seers of the poor. If, however, the Justice convicts on his own view, or, if where the proceeding is by information, the party is present at the time of the conviction, the Justice will of course inform him of his being convicted, and will require payment of the penalty, and in both such cases, the warrant to the Overseers will be unnecessary, but on neglect of immediate payment after conviction, the warrant of distress may issue. '-- •: "■nil bii JG,it i DRUNKENNESS. IVarrant to the Overseers of the Poor, to demand the PenaUy, :,;,(». in the Case of the Offender not being present at the time i{i\n of the Conviction. nl* ri>M7«T/ o-m-rF 7 .'' .1; County of i To the Overseers of the Poor of the Town- ■n»ni S ship of in the said County. > r {>iw{ [Seal.] ! Forasmuch as A. 0. of , of the townsWp of in the said county, labourer, is convicted before me A. M., Esquire, one of His Majesty's Justices of the Peace for the said county, for that he the said A. 0., on the — day of in the year of our Lord one thousand eight hundred and , at the township of in the said county, was drunk, con- tiary to the Statute in such case made ; whereby he hath for- feited the sum of five shilHngs, to the use of the poor of the said township : These are therefore to require you to demand and receive of and from him the said A. 0., the said sum of five shillings, to be by you accounted for, to the use aforesaid : And if he shall refuse or neglect to pay the same, on such de- mand made, that then you certify to me such refusal and neg- lect, to the end that such proceeding may be had thereupon, as to justice doth appertain. Given under m^ hand and seal, the — ^^ day of , in the year above written. T>f}h »<'?!f> /';! *>•!! J 'I?i A. M., J. P. • I'^ih- If the penalty is not paid on demand, the Overseer must return the above warrant to the Justice, with a certificate or affidavit thereon, of non payment*? 'f>i> -^^vs-ivr^ .. .. -ft.!, U'l. .).;..' > County of ) To A. C, one of the Constables of the tovvn- ) ship of in the said County. [Seal.] Whereas A. 0., of the township of in the county aforesaid, labourer, was on the — day of , in the year of our Lord one thousand eight hundred and , convicted be- fore me, A. M., one of His Majesty's Justices of the Peace for the said county, for that he the said A. O., on the — day of , in the year aforesaid, was drunk, at the township of in the county aforesaid, by which he hath forfeited the sum of five shillings : and whereas it duly appears to me the said Justice, that the said sum of five shillings hath been duly demanded of and from the said A. 0., but that he the said A. 0. halh neglected lu pay the same, and that the same is 141 it** .1 II'! 142 DRUNKENNESS. ,•■1 not yet paid : Those are therefore to command you forthwttii to levy the said sum, by distraining the goods of him th« said A. 0. ; and if within the space of six days next, after such distress by you taken, the said sum, together with reasonable charges for taking and keeping the said distress, shall not be paid ; that then you do sell the said goods so by you distrained as aforesaid, and out of the money arising by such sale, that you do pay the said sum of five shillings to the Overseers of the poor of the said township of , for the use of the poor of the said township, rendering to him the said A. 0., the overplus upon demand, the necessary charges of taking, keep- ing, and selling the said distress, being first deducted. And if the said A. O. be not able to pay the said sum of five shil- lings, and sufficient distress cannot be found whereon to levy the said sum, that you certify the same to me, together with the return of this warrant. Given under my hand and seal, this — day of , in the year above written. ' ■ " A. M. J. P. '* Certificate by the Constable of want of Distress, to be indorsed .■•^ ]v'"" .;•• tj*;irr-':- vj. on the Warrant.' •••'5' •'■" •'••' '" '■•■''■^' County of) A. C, one of the Constables of the township ) of in the said county, maketh oath this — day of , in the year within written, before me the Justice within mentioned, that he hath made diligent search for, but doth not know of, nor can find any goods of the within men- tioned A. O. whereon to levy the within sum of five shillings. A. C. • Before me, the said Justice, A. M. J. P. svnvv«i « Commitment to the Stocks for DrunkennesSj on inability to pay the penalty. County of) To A. C, one of the Constables of the ) township of in the said county : [Seal.] ;' '- -f Whereas A. 0. of the township of , in the said -, in the year of our -, convicted before county, labourer, was on the — day of Lord one thousand eight hundred and me, A. M. one of his Majesty's Justices of the Peace for the said county, for that he the said A. 0., on the — day of , in the year aforesaid, was drunk, at the township of in the said county ; whereby he hath forfeited the sum of five shillings. And whereas it duly appears to me, that the said A. 0. is not able to pay the said sum of five shillings : These of the le said r of our 1 before for the f , in of five the said : These DRUNKENNESS. are therefore to require you in His Majesty's name, to set him the said A. 0. in the stocks, tlicre to remain for the space of — hour . Given under my liand and seal, the — day of f in the year above written. '•j'iiihprui'^'no '.''■v;A^i>.iii,'i, ■ A. M. J. P. i.iii.j ■ 'r<^h] in... DUTIES, see REVENUE. DYKES. ,. . .Jilt ;•;?!* -J in :vii--a*5 III .;'K';:M(!.lt>.» Ti .'<.''««( By the C & 7 G. 3, c. 1. 1 V.122, Persons who shall be lawfully convicted of unlawfully and maliciously breaking down, or cutting down, the bank or banks of any river, or any sea bank or dykes, whereby any lands shall be overflowed, or da- maged, shall be adjudged guilty of felony, and shall suffer death as in cases of felony, without benefit of clergy. Sec. 2. If any person shall unlawfully cut off, draw up, or remove and carry away any piles, or other materials which are driven into the ground, and used for the securing any marsh lands, or sea walls, banks or dykes, in order to prevent the lands lying within the same from being overflowed and da- maged, it shall be lawful for any two Justices of the Peace re- siding near the place where the oflence was committed, and they are required, upon complaint or information upon oath of such oflence, to summon the party complained of, or to issue their warrant to apprehend and bring before them the person so accused, complained of, or suspected, and upon his or her appearance, or neglect to appear, to proceed to examine the matter of fact with which he or she is charged, and upon due proof thereof made, either by his or her confession, or upon the oath of one credible witness or more, to convict such of- fender ; and every person oflending herein, and so convicted, shall forfeit and pay the sum of twenty pounds ; one half there- of to the informer, and the other half to the Overseers, of and for the use of the poor of the township or place wherein such oflence was committed ; the same to be levied by distress and sale of the oflender's goods and chattels, together with the charges of such distress and sale, rendering the overplus (if any be,) to the owner or owners thereof ; and for want of suf- ficient distress, the said Justices are required to commit the person or persons convicted as aforesaid, to the house of cor- rection, or common gaol of the county, town, or place where 143 m is*' 1 144 t k ii 1 Direction!. i DYKES. »^ the ofTence was committed, there to remain and be kept at hard labour for the space of six months. Perpetual. With regard to the offence described in the first clause of the foregoing Act, — of cutting or breaking down dykes or banks, the course of proceeding by a Justice, on complaint thereof made before him, will be the same as in other cases of felony ; that is, — by taking the information on oath, issuing his warrant, examining witnesses in presence of the party charged, taking his examination, and committing him to gaol, and bind- ing over witnesses in recognizance to appear at the Supreme Court ; for directions on all which, and other points of duty on the occasion, and for the Forms requisite, see respectively, Titles, — Information ; Warrant ; Examination ; Commitment. As this offence is a capital felony. Justices of the Peace cannot admit to bail a party charged with it, but must commit him to gaol, to take his trial in the Supreme Court, w' >>**HKv^:M««wi The course of proceeding by the two Justices under the second clause of the Act, is very clearly pointed out therein : and for more particular directions concerning the same, and for the Forms required, reference must be had to the respective Titles, — Information ; Summons ; Warrant ; Conviction ; Distress; Commitment. ., • ,' ' . " : ". '0.utvi;:*'i ^HS^ !ifi,.fl': EELS, see FISH. ■ . li^Hi^^ li (k',.Hi?*i liiiii Mwi'^' '-''■' ' ':' ' '• '"'5'; ;^Mji^w i>i{;w EMBEZZLEMENT, see LARCENY. W^s^i •j^'; ';iv;;i;;.'-- -• ;;^ E S C A PE.'Wi^f"; »(>!■< ^'ViiWKm]M« 'In order to make an escape, there must be an actual ar- rest ; and therefore, if an officer having a warrant to arrest a man, see him shut up in a house, and challenge him as bis pri- soner, but never actually have him in his custody, and the party get free, the officer cannot be charged with an escape. 1 Burn's, 752. It seems to be a good general rule, that wherever any person hath another lawfully in his custody, whether upon an arrest made by himself, or another, he is guilty of an escape, if he suffer him to go at large before he hath discharged him- self of him, by delivering him over to some other who by law ought to have the custody of him. Id. It is an escape in some cases, to suffer a prisoner to have ESCAPE. 145 .{ 0< ■ ■.m]^>i ual ar- arrest a lis pri- e party escape. er any ipon an 3scape, jd him- Hby law Lo have greater liberty than by law ho ought to have, as to admit a per- son to bail, who by law ought not to be bailed, but to be kept ' , in close custody. So it' a gaoler or other oiHccr shall license his prisoner to go abroad for a time, and to come again ; this is an escape, even though the prisoner return again. Id. If an officer hath arrested a man by virtue of a warrant, R'tnking. and then takelh his promise that he will come again, and so letteth him go, the ofhcer cannot afterwards take him again by force of his former warrant, because be consented to his going. But if the party return, and put himself again under custody of the officer, it seems that it may probably be argued, that the officer may lawfully detain him, and bring him before the Justice, in pursuance of the warrant. But if the party arrested, had escaped of his own wrong, without the consent of the offi- cer, upon fresh pursuit, the officer may take him again and again, as often as he escapes, although he were out of view, or shall fly into another town or county, and may bring hiin before the Justice, upon whose warrant he was first arrested. And it is said generally in some books, that an officer who hath negligently suffered a prisoner to escape, may retake him wherever he finds him, without mentioning any fresh pursuit ; and indeed, since the liberty gained by the prisoner is wholly owing to his own wrong, there seems to be no reason he should take any manner of advantage from it. Id. 753. Wherever a person is lawfully arrested for any cause, and Brenking afterwards escapes and shelters himself in a house, the doors °P®" """ may be broken open to take him, on a refusal of admittance. Id. 754. '- ttiiva ^lY^vrm- 'ay HAir/.Ai*4, :34it. m4» . ' It seems to be generally agreed, that a voluntary escape suffered by an officer, amounts to the same kind of crime, and is punishable in the same degree as the offence of which the party was guilty, and for which he Avas in custody, whether it be treason, felony, or trespass. And for a negligent escape of a criminal, actually in his custody, the officer is punishable by fine and imprisonment, according to the quality of the of- fence. Id. 755. Warrant to Apprehend a Person for Escaping from the House of Collection. ,1,. ,,! ■liMllj. County of To A. C Township of — ,cint « one of the Constables of the — in the said County.! [Seal.] Forasmuch as I. H. keeper of the house of correction at in the county aforesaid, hath this day made informa- tion and complaint before me A. M. Esquire, one of His Ma- 19 H 144; ESCAPE. H fei ■if* i il jesty's Justices of llie Poace in and for tl»e said county of , that A. 0. Irath unlawfully and wilfully escaped from the house of correction at aforesaid, and from and out of the cus- tody of him the said I. H, the keeper thereof, before the ex- piration of a certain term for which he the said A. 0. was or- dered to be imprisoned and kept to hard labour therein. These are therefore to command you the said constable, forthwith to apprehend and bring before ine, or some other of His Majes- ty's Justices of the Peace for the said county, the body of the said A. O., to answer unto the said complamt, and to be fur- ther dealt with according to law. Herein fail you not. Given under my hand and seal, this — day of in the year of our Lord one thousand eight hundred and A. M., J. P. i.f ,. ■■ . ^•■' , . .0 . ..'' .1. The foregoing Form, with the slight alterations which are obviously requisite, will also serve in cases of escapes from a gaol. ./ ,-K>''i<- '<■ Jl'i.' . I .- ■ .^.iii- ,,»!•■; ix.y. ■'. l\ lityA i(ili- ■!.'•;?'* ',;h». .■''{!•• ® • h i'i.,r.,'«i(,;'.i- ■'' ;■■•!:; i\'- r*>, '( -m-rT r' i :■ :»': 'i7'»i>'" ■ > /'', ■-- Jl< V IDIjIV C -Cj . '''il .: IV. Of the Evidence op Witnesses. ' ,}„) V. Of the Manner of giving Evidence. ' w VI. Op Process to cause Witnesses to appear. ,;.: •■.,•:. , ■• I. Of Evidence in General, '.i.i,"!,-;-;*/..: •! 'li The best evi- dence ii re- quired. It is a general rule in all cases, civil and criminal, that the best evidence must be given of which the nature of the thing is capable. The true meaning of this rule is, not that Courts of Law require the strongest possible assurance of the matter in question, but that no evidence shall be given, which from the nature of the thing, supposes still greater evidence behind, in the party's possession or power ; for such evidence is altoge- ther insufficient, and proves nothing, but carries with it a pre- sumption contrary to the intention for which it is produced. Thus, it" a party offer a copy of a deed or will, where he is able to produce the original, this raises a presumption that there is something in the deed or will, which, if produced, would make against the party, and therefore the copy in such a case is not evidence. But if he prove the original deed or will to EVIDENCE. 117 'PEAR. ho in the liaiuls of the adverse party, who refuses to proHufo it, ahhouj^h he has received a regular notice for that purpose, or that the oiiginal has been lost, or destroyed, without his de- fault, no such presumption can reasonably be made ; and a copy will be admitted, because then such copy is the best evidence that can be produced. 1 iiitrn's, 7()G. »'" ' If a deed is attested by several subscribing witnesses, the execution may be [>roved by one of them ; or if none of these witnesses can be produced, proof of the signature of one wit- ness shall be sufficient. /(/. '') The common law does not recjuire any certain number of Nomher of witnesses for the trial of any crime whatever. And before a ^V""""**- Justice of the Peace in divers cases, one witness is sufficient to convict an offender, the same being directed by special Statutes. Id. 7G7. By P. S. 32 G. 2, c. 11. 1 V, 9, Wills of land shall be attested by three witnesses at the least. An offence need not be proved precisely on the day on Time, which it is laid ♦'^ have been committed, but where a time is limited for any prosecution, it must be proved that the oilcnce was committed within such limited time. 1 jB«rn'», .'iOi. It must be proved that the oii'ence complained of was com- Plac*. mitted within the jurisdiction of the Court or Justice before whom it is tried, and whore any part of a penalty sought to be recovered, is given to the township where the offence was com- mitted, it must be proved that such offence took place within the township stated in the indictment or other proceedings. In each of such cases, if such requisite proof is not given, the de- fendant must be acquitted. 1 Burn's, 592. Arch. C. P. 53. Where a guilty knowledge u[)on the part of a defendant is to be proved, the prosecutor is allowed to give in evidence other instances of his having committed the same offence for which he is now prosecuted. And nearly the same rule applies where it is requisite for the prosecutor to prove malice upon the part of the defendant, as former menaces, or expressions of vindictive feeling by the defendant against the prosecutor. Jlrch. C. P. 70, 71. ' ■ ' The subject of evidence may now be considered in a more enlarged and particular manner, and it may be classed tmder three heads ; Admissions or Confessions — Presumptions, and Proofs. Each of these in order will here be treated of. '*« II. Op Admissions and PREsuMmoNs. '1. " v=(l K- Of Mmissions in Criminal Cases. t'ik '\ mM .M The aduiission or confession of a fact by the defendant, iy^ i:VIDENCK. r i Confession most be vol- untary. Time of con- fession. rentiers it unnecessnry for the prosecutor to prove it. Tills ini- iiiisition or conlossion is uf lour l\iii(is. I. Where tlie defen- dunt in open court, confossus tliat lie is guilty of the otl'ence with which lie is chtirged. After this a trial is unnocussary, atul the Court have nothing to do but to award judgment. 2. Where the dofcnduiit, upon an indictment for a misdemean- or, yields himself to the King's mercy, and desires to suhmit to a small fine, which submission the Court may accept of, if they think fit, without putting the defendant to a direct con- fession. A. Wliurn the defendant upon his examination be- fore Justices of the Peace, on a charge of any offence, admits either his guilt, or any fact which may tend to prove it at the trial. This examination must not be upon oath ; if it be, the Court will not oilow it to be given in evidence. Where one of three* prisoners stated in the presence and hearing of the others. In his examination before the Magistrate, that he and one of the others committed the felony, and this was not con- tradicted by the other, still it was held that this could not be given in evidence against the otlun*. But In nil other cases, what is said in the prisoner's presence and hearing, relative to a fact within his knowledge, and which he assents to, or does not contradict, is etpiivalent to an admission of the fact, and may be given in evidence against him ; what weight such admis- sions by iniplicntion should have with a jury, is another matter. 4. Where the defendant makes an admission or confession of his guilt, or of any lact which may tend to the proof of it to any other person All these several species of confession, to be of effect, must be voluntary. And In the case of a confession before a Magistrate, or other person, if it appear that the defendant was induced to make it, by any promise of favour, or by menaces, or undue terror, it shall not be received in evidence against him. So if the promise or menace, &c. take place previously to the prisoners being brought before the Magistrate, and the confession be before the Magistrate, the Court will in general refuse to admit the confession to be given in evidence, unless it appear that the prisoner was undeceived by the Magistrate, and cautioned by him not to expect the favour, or not to regard the menaces held out to him. But if it be a free and volun- tary confession, it is receivable in evidence against him, whe- ther it be made at the moment he is apprehended, or while those who have him in custody are conducting him to the Magistrate, or even after he has entered the house of the Magistrate for the purpose of undergoing examination, t^rc/i. C. P. lb — (3. 1 Burn's, 5G2. Although confessions improperly obtained, cannot be re- r.VIDENCE. 140 . ii««i .1 •»! ceivod in evidence, yet i''in consequence ofHiich confessions, my facts orise, Audi facts may be c,\vvn in evidonco. Thus, if in consequence of an extorted confession, stolen t^oods be found, although proof cannot be n(hnitted of the prisoner's uc- i^nowledgnient of having stolen, or put them there, yet the fact of the witness having been directed by the prisoner where to find the goods, and his having found them in the place described by tlio prisoner, may be given in evidence. 1 «ttrn'», 603. Whore a prisoner has been once induced to confess, upon Tlirenti or a promise or threat, he may afterwards suppose it will not bo of pmnimea. any use to deny what he has said, and therefore any subsequent confession of the satne or like facts, be the distance of time . j • ^ what it may, cannot be admitted as evidence against him. As to what shall be considered as a threat or promise, it has been held, that a confession induced by saying, " Unless you give ine a more satisfactory account, 1 will take you before a Ma- gistrate," cannot be received in evidence. So also saying to tlie prisoner, " It would be worse for him if he did not confess," or that '* It woidd be better for him if he did," is suflicient to exclude the confession. A confession induced by saying '^ Tell me where the things are, and I will be favourable to you," can- not be given in evidence. Nor where the prosecutor had said, that '' He only wanted his money, and if the prisoner gave him that, he might go to the devil if he pleased." Id. 564. Admissions or confessions to other persons than Magis- Proving con trates, if in writing, are proved as any other written instrument, '"«""»"''• if not in writing, are proved by j)arol evidence of some person who heard them. In all cases the whole of the confession should be given in evidence ; for it is a general rule, that the whole of the account which a party gives of a transaction, must be taken together, and his admission of a fact disadvantageous to himself, shall not be received, without receiving at the same time, his contemporaneous assertion of a fact favorable to him, not merely as evidence that he made such assertion, but ad- missible evidence of the matter thus alleged by him in his dis- charge. Also, it may be necessary to observe, that a man's confession is only evidence against himself, and not against his accomplices. »^rch. C. P. 78. m w iitwt'. -jni ,•'*;;» W ,/ Mniissions in Civil Cases. m An admission of a fact by either party, renders it unneces- sary for his adversary to prove it. The highest species of ad- mission is that which appears upon record, and it is conclusive against the party making it. The udmisijion of a party upon f| i>rM 150 EVIDENCE. Oath. Deed. ffli Wr'i M'l f^ ll:-1 Notice in Gazette. Receipt. Confessions by Implicatiun oath, is of course evidence ngainst hiiu, as for instance, his answer to a bill in equity, or his affidavit. A deed, in which any admission is made by a party to it, may be given in evi- dence against him, or any person claiming under him. Also, when one deed is recited in another, this is an admission of the recited deed by all parties to the deed reciting it, and may be given in evidence as such against them, and all persons claiming under them. So a notice that a partnership is dissolved, sign- ed by the ])arties, for the purpose of being inserted in a Ga- zette, was holden to be sufficient evidence of the dissolution, for all purposes against the parties signing it, although the part- nership was constituted by deed, and consecjuently must have been dissolved by d»ied. So a party's receipt is good evidence as an acknowledgment of a payment ; although it is not con- clusive evidence, if it can be shewn that it originated in some imposition practised upon the party who gave it. Where the plaintiff entered an account in writing, of goods and cash fur- nished to the defendant from time to time, each page of which was authenticated by the defendant's acknowledgement in writing of the receipt of the contents, it was holden, that al- though such an acknowledgment in writing could not be given in evidence, per se, in respect to the cash items amounting to above forty shillings in each page, for want of receipt stamps, yet that it was competent to the plaintiff to prove, that upon calling over each article to the defendant, he admitted that he had received the same ; and that the witness might refresh his memory bv referrine to the accounts, ^rch. on PI. ^ En. 344—5. Note. As no stamps are required i i this Province, the written acknowledgments in the foregoing case, on the de- fendant's hand writing to ihem being proved, would be good evidence here of the whole of the account, for cash as well as goods. !n an action on a bill of exchange, evidence being given of an admission by the plaioti^ thsf; he had no inter- st whatever in the suit, the plaintiff was nonsuited. An acknowledgme"* of the debt by the defendant, may be given in evidence, and it is in general conclusive. • But in all 'he before-mentioned cases, the whole of the account which a party gives of a tran- saction must be taken together ; and his admission of a fact dis- advantageous to himself, shall not be "eceived without receiv- ing at the same time, his contemporaneous assertion of a fact favourable to him, not merely as evidence that he made such counter claim, but as admissible evidence of the matter he thus alleged in his discharge. Arch, nn PL iff Ev. S46. There are also admissions by implication. If an assertion be made knowled fairly be serted. ant in po plied adi the year however, iniplicati( or a fooli the other parties h) if by deet it is no m be the pei a party to the declar feat the ac tee for a t the persoi not a ])art a ship for nefit the s The admiJ both. So one may b( who made evidence t( of a man o of his kno\ Thus, le^t< which form against the upon a part when appli( evidence fo agent to his of business against the where she i evidence ag lo transact used in the between hei goods to be against the 1 EVIDENCE. 151 be made in U»e presence of a party, relative to a fact within his knowledge, and lie assent to it, or do not contradict it, it may fairly be deemed equivalent to his admission of the matter as- serted. So if notice to quit be personally served on the ten- ant in possession, and he make no objection to it, this is an im- plied admission that the tenancy commenced at the season of the year when the notice to quit expired. Too much reliance however, should not, be placed on admissions by words, or by implication ; they may have originated in a lapse of memory, or a foolish boasting in the one case, or from inadvertence in the other ; and it would be wrong therefore, to conclude the parties by them. Those in writing are of a higher nature, and if by deed or record, or upon oath, they are conclusive. And whose Con- it is no matter, whether the party who makes the admissions, Tession is be the person actually interested or not ; it is sufficient if he be evidence, a party to the suit. Thus, a defendant may give in evidence, the declarations or admissions of the plaintiff in the suit, to de- feat the action, although such plaintiff' appear to be only a trus- tee for a third person. On the other hand, the admissions of the person actually interested, are evider e, although he be not a party to the suit. Thus, in an action by the master of a ship for freight, the declarations of the owner, for whose be- nefit the action is brought, are evidence for the defendant. The admissions of one of two partners, are evidence against Partners, both. So .vhere two jointly sue or are sued, the affidavit of one may be received in evidence against both ; against the one who made it as conclusive evidence, and against the other, as evidence to be left to the jury. And not only the admission of a man or his partner, but also in some cases the admission of his known and accredited agent, is evidence against him. Thus, leU.ers written by an agent in making a contract, and Agent which form part of the thing done, are admissible in evidence against the principal. So, if A. refer B. for information upon a particular subject to C , what C. says concerning it, when applied to by B. or his agent, has been holden to be evidence for B. in an action against A. But the letters of an agent to his principal, in which he is rendering him an account of business he has done for him, cannot be given in evidence against the principal. Even the admissions of a wife, in cases wife, where she is to be considered the agent of her husband, is evidence against him. Thus, where it appeared that slie used to transact the business at home, and purchased the articles used in the trade, her admission as to the state of tiie accounts between her husband and the plaintiff, who supplied her with goods to be used in the trade, were holden to be evidence against the husband. But it is only where she can be consi- m.i V aJM ^ 'I ' 1 f » '>!' J..)! Hii'i'ifJ ,'!•' ;'vWs J 1 Presumptions. ■i-..i( ii ' y.ii' lU General Acts of Parliament are not, correctly speaking, the subject of proof in anj^ Court of Justice, for being the law of the land, they are supposed to be known to every man, and are binding upon every subject, and Judges are bound to take judicial notice of their contents. But private Acts of Parlia- ment, not concerning the public, but which relate only to par- ticular classes of men, or to certain individuals, are not consi- dered as laws, but facts, and therefore must be proved like other records which concern private rights, i Burn^s^ 768. ,ijjjii-. HL ■j'.'A Of Records ,i. "»'on o*" which rule how«=!ver, there are some exceptions. If a deed be thirty years old, it may be given in evidence without any proof of the execution of it ; however, there ought to be some ac- count given of the deed, where found, &c., and if there be any blemish in the deed, by rasure or interlineation, the deed ought to be proved, though it were above thirty years old, by the witnesses if living, and if they are dead, by proving the bands of the vtritnesses, or at least one of them, and also the hand of the party, in order to encounter the presumption, aris- ing from the blemishes of the deed ; and this ought more es- pecially to be done, if the deed imports a fraud. There is no fixed rule upon this point, but a deed has often been allowed as evidence where it was but twenty-five years old. It is now settled, that the production of an instrument at the trial in pur- * See befor*, reipeeting the Copy of a Deed from the Registry , where tha Original it lost. ■ Wi Hi , r' . -s ; '.1 ' . ;■ \m •t ! r.- ..ip I , «' 'in?!! ItK) 11 J '. ^ • Proof of hand-writing of a Witnoas. Hand writing of a party. EVIDENCE. sunnce of a notice, will nol supersedo the necessity of proving it by one of the subscribing witnesses, as in urduiary cases ; and this is the case with regard to wills as well as deeds. A witness need not have seen the instrument actually executed, for if the ohligcr of a bond sign a bond, and then tell a certain person that he had signed it, and scaled it, and bid him wit* ness it, which he does, that is a sufficient proof of due execu- tion. The subscribing witne^ii uloneis conripetent to prove the execution, because he may be able to state the time of the ex- ecution, and some circumstances of the transaction which may be material, and unknown to other persons. Subscribing wit- nesses are not requisite to a deed. If there be none, the hand- writing of the party may be proved. If the subscribing witness be dead, it is sufficient to prove his handwriting, but it must also be proved that he is dead. In an action on a promissory note, the subscribing witness being dead, proof of his hand- writing, and that the defendant was present when the note was prepared, is sufficient without proving the hand writing of the defendant. Qiicre, if proof of subscribing witness's hand writ- ing alone would have been sufficient. Id. 779. According to the Statute of bigamy, the presumption of the duration of life, with respect to persons of whom no ac- count can be given, seems to end at the expiration of seven years from the. .time when they were last known. to be living. Where a subscribing witness is absent in a foreign country, his hand writing may be proved. So if he be out of the juris- diction of the Court, so as not to be amenable to its process. Strict proof is required of diligen*; search after an attesting wit- ness, and without finding him, before his hand writing can be proved. If a witness be absconding from his creditors, his band writing may be proved. So, if by some criminal act committed by him subsequently to the t.iecution of the deed, he become incompetent as a witness in a Court of Justice. So, if he become incompetent by interest subsequently accrued. Also, where there is no subscribing witness oti the dted, or where the subscribing witness denies having any knowledge of the execution, (which is the same thing as if there were no wit- ness at all,) and the same in the case of a promissory note ; — or where the name of a fictitious person is inserted ; or where the attesting witness was interested at the time of the execution of the deed, and continues so at the time of the trial ;' — or where the person who has put his name as a subsQribing wit- ness, did so without the knowledge or consent of the parties. In these cases, the execution may be proved, by proving the hand writing of the party to the deed ; or by any person pre- vent at th Or by |>r( ciiKmI tlia siidicieni lo \h% so; witness ni (|iieslion t (^\()i\ if tli( called to wiio liavin Ills dying coucornec of the fon ilic case o A sill in i;;ive cvi Ills name, n j)i()[)cr u E Evini h a latent n which does ovory thing (Icicd uncei iciiioval of was a devif name, evidc meant. So its natm-o i< a contract o mere servar parties, and the deed, th parol evider deed ; as in given sum t< payment of is different ; making the d another, and there parol e prove other Although pa contract, ve proving cases ; Is. A Bcuted, certain im wit- oxecu- ove the the ox- oh may ing wit- le hand- witness it must missory is hand- lote was g of the nd writ- iption of n no ac- )f seven e living. country, e juris- jrocess. ing wit- can be his i: VI DENG i:. UJI •innt at the nxpoutlon, ilinugh lir is not indorsed ns a witness. Or hy proof of ill) ndinission of ilic parly himself, that ho cxe- cnU'd tliul (IcihI. Aim! proof of lliu parly's hand wririni;, is n siillicient c;ronnd for presuming that the deed was as it purports lo bo, sealed and delivorod. To prove a dood, the attesting falli"i!^'ie«' witness must he called, though it he an issue directed to try a '"^ i "em. (jneslion as to the date, not the existence of the deed. And even if the deed be cancelled, the subscribing witness must be called to prove the execution. The declaration of a person, who having set his name as subscribing witness to a bond, in Ills dying moments begged pardon of heaven for having been concerned in forging the bond, has been admitted as evidence of the forgery. And the like evidence has been admitted in the case of a forged will. Id. 780. A subscribing witness to any instnmient, is compellable in give evidence respecting it ; for the person by subscribing his name, undertakes lo give evidence at a proper time and in n proper manner. /(/. 781. Evidence relative to the Contents of Deeds. ' Evidence may bo received to cx[)lain deeds where there i.^ a latent ambiguity. By a latent ambiguity is intended, that which does not appear upon the face of the instrument, where pvory thing seems right and clear : but the meaning being ren- dered uncertain by tlie proof of some fact, the law permits the removal of the doubt by the like evidence. As where there was a devise to her cousin I. C, and there were two of that name, evidence was admitted to show which of the two was meant. So where from the terms of the deed, its intent as to its nature is erpiivocal : for instance, whether it is to enure as a contract of apprenticeship, or only as an agreement to be a mere servant, evidence is admissible to sho^v the intent of the parties, and that some act was done further than that stated in the deed, though forming a part of the same transaction. But parol evidence cannot be admitted to contradict the terms of a deed ; as in case of a lease, to shew that the lessee is to pay a given sum to a ground landlord ; the lease only stipulating for l)aynient of a sum certain lo the lessor. Incasesoffraud.it Fraud. is different ; as whore the party is imposed upon at the time of making the deed ; where one sum is fraudulently substituted for another, and where part of the real consideration is omilled ; there parol evidence of the fact may be received. A party may prove other considerations than those expressed in the deed. Although parol evidence cannot be admitted to vary a written contract, yet it may be shewn whether a contracting party is )-l ^ ^y^ o <**>, IMAGE EVALUATION TEST TARGET (MT-3) ^ s 1.0 1.1 i£i|Z8 mis lit lii 12.2 u Hi IS ti& ■20 U HiolDgraphic Sciences Corporation 23 WIST MAIN STRIIT VtflUTM,N.Y. MSM (716) •72-4503 m o 16;^ EVIDENCE. agent or principal, and for this purpose the broker is a compe- tent witness. Id. 781. Tradeiman's Book of Ae> coanu. I I Eatrioi Booki. in 1^.4, ., Entries. srtt';. The other division of that class of evidence relative to private writings, consists of entries in books, memoranda, and some particular cases, which are allowed, from their own pe- culiar nature, to be received as evidence, as inscriptions, alma- nacks, &c. By the 11 G. 3, c. 10. 1 V. 168, No tradesman, or handicraftsman, or his executors or administrators, shall be al- lowed to give bis shop book in evidence in an action for money due for wares delivered, or for work done, above two years before the action brought, except he or they shall have obtained a bill of debt, or obligation of the debtor for the debt, or shall have brought against the debtor, his executors or administrators, some action for the said debt, wares, or work done, within two years next after the same wares delivered, money due for wares delivered, or work done. Provided, that nothing contained in the Act shall extend to mutual trading between merchant and merchant, merchant and tradesman, or between tradesman and tradesman." Perpetual. But though the Statute says that the shop book shall not be evidence a(\er the two years, yet it is not of itself evidence within the two years, except under particular circumstances. 1 JJt«m'«, 782. ; "sftij vf! A man's book of accounts is no evidence for the owner of Uie book, but for the adverse party ; for his book cannot be of better credit than his oath, which would not serve in his own case. Id. < Ttt'isifT pv There are however cases in which entries made in books by the agents of persons, who formerly stood in the situation in which the parties calling for the evidence stand, are admitted as evidence to prove what those agents would have proved, had they been living at the time of trial. And the rule which de- termines the admissibility of such evidence, is, — that the per- sons making such entries, must by making them, charge them- selves with a debt, or discharge others of a debt due to them- selves ; in other words, the entry must be against their own interest. Thus, to prove the fact of a surrender of an interest in an estate, the books of the attorney since deceased, who had made an entry of having prepared the writings, and of the charge for the same, as due to himself, and then an entry that they were paid i were determined by the Court to have been pro- perly admitted in evidence. So, to prove the real time of ex- EVIDENCE. 163 ecuting a lease to have been difTerent from its actual date, an attorney's entry of charges by himself of making the lease, and of payment of those charges, was admitted as good evidence. In these cases, the entries were admitted upon the ground that there was a total absence of interest in the persons making them to pervert the fact ; and at the same time a competency in them to know it. So a written memorandum by a deceased man-midwife, stating that he had delivered a woman of a child on a certain day, and referring to his ledger, in which a charge for his attendance was marked as paid, was thought by the Court of K. B. to have been properly received in evidence^ upon an issue as to the child's age. On a question whether a testator at the time of making his will, was of full age, a written memorandum by his deceased father, stating the time of his birth, hat> hc^x^ admitted to be good evidence. It is said in- deed to have long been an established principle of evidence, that if a party who has knowledge of the fact, make an entry of it, whereby he charges himself, or discharges another upon whom he would otlierwise have a claim, such entry is admis- sible evidence of the fact, because it is against his own inte- rest. 1 Bum's, 782--3. But entries by a third person, deceased, in hh books of receipts of rent from his tenant for a particular estate, are not admissible to prove the identity of the land, in a cause between two others. Evidence of this kind, can only be admitted to restrain^ not to advance the interest of the party who makes it. What a man does in his closet, ought not to affect the rights of third persons. The general rule is, that a man cannot make evidence for himself. Id. 784. The examination of an almanack, that such a day of the month was Sunday, is sufficient. A copy of an inscription on a grave stone, has been allowed to be given in evidence : and recitals in family deeds, engravings on rings, old pedigrees hung up in a family mansion, and the like, are all of them admissible, upon the principle that they are the natural effusions of a party who must know the truth, and who speaks upon an occasion \v4ien his mind stands in an even position, without any tempta- tion to exceed or fall short of the truth. Id. 784. tmimmKii iMi.«ijALi Handivriting . ih-i\*i i* if ^'j.stifH.' <© ani n ii ■ Iff '»'■ As relating to the evidence of written instruments, the mode of proving the handwriting of an individual is now proper to be considered. In general cases the witness should have gained his knowledge from hating seen the party UBrite, but under some circumstances that is 'not necessary ; as where the 164 KVIDENCE. Simililads or Hand writiog. Incompetsney handwriting to be proved is of a person residing abroad ; one who has frequently received letters from him in a course of correspondence, will be admitted to prove it, though he has never seen him write. It is not necessary that a witness should swear that the writing intended to be given in evidence, is actually the handwriting of any particular individual, but his belief that it is such, is sufficient. This belief must be found- ed upon rational grounds ; either he must have seen the indi- .vidual in question often write his name, or have received letters from him in a course of correspondence, not having actually seen him write. But he is to form his opinion merely and only from looking at the handwriting in question. It seems to be generally holden since the reversal of the attainder of Alger- non Sidney, that similitude of hands is not evidence in any cri- minal case, whether capital or not capital. The true distinc- tion seems to have been taken in a case where the defendant being indicted for publishing a written libel, a person from the Post Office, who had never seen him write, being called as a witness, the learned Judge permitted the witness to give gene- ral evidence that the writing appeared to be in a feigned hand ; but when the witness was asked, whether, on compiiring such handwriting with papers proved by others to be the genuine handwriting of the defendant, he could say it was the disguised hand of the same person, his lordship rejected the evidence attempted to be introduced by such examination, because it arose only from comparison of hands. 1 xJt»rn'«, 784 — 6. 3iS*fii III. Op the Evidence or Witnesses, kj Isi Previously to admitting a witness to be sworn, it is often necessary to examine him upon what is termed the voir dire, which is done for the purpose of ascertaining, whether there be any objection in law to his being admitted as a witness upon the case before the Court ; and such an objection is valid for that purpose, when it appears in the course of the examin- ation, that the witness is incompetent to give evidence, by rea- son of some civil disability, or by reason of his being directly interested in the event of the cause at issue. But if it is dis- covered during any part of the trial, that a witness is interested, his evidence will be struck out. And upon this examination of a witness as to his situation, he may be asked any questions concerning instruments he has executed, &c., without produ- cing those instruments. It is a rule, that when the objection to the competency of a witness, arises from his answer to a question on the voir dire, that he may in the same way do away the objection, and restore himself by parol ; but if the fact ap- EVIDENCE. 165 .l!'>i!£fU.I *i^' ''nl pear in any otiier way, as if the witness is proved by other evidence to have been a bankrupt, in such case it is necessa- ry to answer the objection by the best evidence, that is, by production of the certificate itself. It is to be observed, that there be many circumstances that disable a juror, that are not sufficient exceptions against a witness. Thus, the exception of kindred is a good cause of challenge against a juror, but not against a witness ; therefore the father may be a competent witness for or against his son, or the son for or against his father. These, and the like exceptions, may be to the credit or credibility of the witness, but are not exceptions against his competency. It may here be observed, that the exceptions Exceptiong to to a witness are of two kinds. — 1st. To the credit of the wit- * '""*'* ness, which do not at all disable him from being sworn, but yet may blemish the credibility of his testimony ; and in such case, the witness is to be allowed, but the credit of his testi- mony is left to the jury. 2nd. To the competency of the witness, which excludes him from giving his testimony ; and of these exceptions the Court is the judge. Id. 786. Husband and wife cannot be admitted to be witnesses for Husband and each other, because their interests are absolutely the same ; Wife, nor against each other, because contrary to the legal policy of marriage. However, there are some exceptions to this rule, and among these, are cases where from necessity, a wife de jurCy may be a witness against her husband, for a personal tort ^^'i>l^,of,y done to herself. On an indictment against him for beating her, she has been admitted to give evidence against him. So also for his assisting to commit a rape upon her. The wife is al- ways allowed to exhibit articles of the peace against her hus- band ; and the Court will not receive affidavits on the part of the husband, to contradict the truth of the articles exhibited against him, and prevent his giving surety. On the trial of a man for the murder of his wife, her dying declarations are evidence against him. Id. 787. Want of discretion is a good exception against a witness ; Want of Dis- on which account alone, it seems that an infant may be ex- cf^^'o°- cepted against. But if an infant be of the age of fourteen years, he is, as to this purpose, of the age of discretion to be sworn as a witness ; and even if under that age, yet if it appear that he hath a competent discretion, he may be sworn. And in many cases an infant of tender years may be examined, where the exigence of the case requires it ; which possibly being fortified with concurrent evidences, may be of some weight : especially in cases of such crimes as are practised upon children In one case it has been agreed by all the Judges, that children of any age may be examined on oath, if ffjji.ol .■!0"l I 166 EVIDENCE. Lanatiei. Infidelf. r; -i'>*;'i«i Qitkari. Jadg* or Jaror. capable of distinguishing between good and evil ; but that they cannot be examined in any case without oath. Id. 789. Lunatics, and other persons who are subject to temporary fits of insanity, may be witnesses in their lucid intervals, if they have sufficiently recovered their understandings. And a person deaf and dumb, is not on that account incompetent, but if he have sufficient understanding may give evidence by signs, with the assistance of an interpreter. Infidels cannot be wit- nesses ; that is, such who profess no religion that can bind their consciences to speak truth. But when any person professes a religion that will be a tie upon him, he shall be admitted as a witness, and sworn according to the ceremonies of his own re- ligion ; for it would be ridiculous to swear a person upon the Holy Evangelists, who did not believe those writings to be sa- cred. Thus, Jews are always sworn upon the Old Testament ; Mahometans on the Koran ; a Scotch Covenanter is permitted to swear by holding up his hand. For oaths are to be admin- stered to all persons according to their own opinions, and as it most affects their consciences. The particular opinions of a man professing the Christian religion are not to be examined into, but he is merely to be asked if he believes in God, the obligation of an oath, and a future state of rewards and punish- ments. But a person who has no idea of the being of a God, or a future state, is not admissible. Id. 790. By the 33 G. 2, c. 2. 1 V. 48, Quakers shall, instead of an oath in the usual form, be permitted to make their solemn declaration, or affirmation, in these words, to wit, — *'■ I, A. B. do solemnly, sincerely, and truly declare and affirm." Which solemn affirmation shall be of the same force and effisct as if such Quakers had taken an oatli in the usual form. Provided however, that no Quaker, or reputed Qua- ker, shall be admitted to give evidence in any criminal causes by such solemn declaration or affirmation. And provided also, that no persons shall be deemed Quakers within the intention of the Act, unless they shall affirm in the form before directed, that they are Quakers, and have been so for one year then last past. Perpetual. It will be observed, that the affirmation allowed by this Act, only relates to civil causes. In criminal causes, no Qua- ker shall be allowed to give evidence except upon oath. It seems agreed, that it is no exception against a person's giving evidence either for or against a prisoner, that he is one of the Judges or Jurors who are to try him. But where a Jur- or is called upon to give his evidence, he ought to give it upon oath, openly in Court, and not be examined privately by his companions. 1 Burn'Sf 790. EVIDENCE. 167 ;:4?.''i .jn}'! ' "" It is no exception against a witness, that he has confes- AeeomiiUoi. sad himself guilty of the same crime, if he has not been in- dicted for it. Although however, an accomplice is a compe- tent and admissible witness, yet if there be no other evidence to corroborate his testimony, neither Juries nor Judges incline to convict a prisoner upon it. For he that declares himself guilty of an infamous crime, and wants only an attainder of it to render him totally incompetent, deserves only little credit. And the hopes he may have of earning his own pardon, or of being extused from prosecution and punishment, by giving such testimony, is a further reason for suspecting his testimony. The practice therefore, is to advise the Jury to regard the ev- idence of an accomplice, only so far as he may be confirmed in some part of his testimony by unimpeachable testimony. It is not necessary that he should be confirmed in every circum- stance which he details in evidence, for there would be no oc- casion to use him at all as a witness, if his narrative bould be completely proved by other evidence free from all suspicion. Nor need it appear from the confirmatory evidence, that he speaks truth with respect to all the prisoners, or with respect to the share which each had in the transaction. But if the Jury are satisfied that he speaks truth in those parts in which they see unimpeachable testimony brought to confirm him, that is ground for them to believe that he also speaks truly with regard to the other prisoners, as to whom there may be no confirma- tion. Also, it has oft^i been adjudged, that such of the de- fendants in an information against whom no evidence is given, may be witnesses for the others. It has been also adjudged, that where three perisons ar^ sued in three several actions on the Statute ; for a supposed perjury in their evidence con^- cerning the same thing, they may be good witnesses in such actions for one another. It is no good exception against a witness, that he is an alien. It seems agreed that an attainder, Conviction of judgment, or conviction of treason, felony, piracy, premunire, "'•ny»*C' perjury, or foi^ery, and in conspiracy, at the suit of the King ; and also judgment for any heinous crime to stand on the pil- lory, or to be whipped or branded, are good causes of excep-^ lion against a witness, while they continue in force. jai Note. The party who would take advantage of this ex- ception, must have a I copy of the record of conviction ready to produce in Court ; for until the judgment upon the verdict be regularly entered, the witness is not deprived of his legal pri- vileges. If it be objected against receiving a person's testimo- ny, that he has been convicted of felony, and his punishment is unexpired, such objection must be supported by the produc* tion of the record ; and no admission by the party himself will 1 16S EVIDENCE. Incompetency from inlereit. no;i: be sufHcient. A person convicted of felony, who is admitted to his clergy, and burnt in the hand, is thereby re-enabled to be a witness ; for the burning in the hand operates as a Statute Eardon. But a mere allowance of clergy, without an actual urning in the hand, or a pardon of that punishment, does not restore the party to his credit. The King's pardon of treason, or felony, after conviction, or attainder, restores the party to his credit. A party convicted and whipped for petit Utrany^ shall not be allowed to be a witness. It is established as a rule, that it is the crime that creates the infamy., and Mt the pu- nishment of it. 1 Burn's^ 792. The remaining objection to the admissibility of a witness, is the fact of his being interested ; respecting which it seems an incontested rule in all cases, that it is a good exception against a witness, that he is either to be a gainer or loser by the event oj the cause, whether such advantage be direct and immediate, or consequential only. In many criminal cases, however, from the necessity of the thing, interested persons are allowed as witnesses. As where the owner prosecutes an indictment of felony for stolen goods, he is concerned in inte- rest, for he will be entitled to restitution, and yet his evidence is admitted. Id. 792. Note. In this Province, persons rated, or liable to be rated for the support of the poor, are thereby incompetent, on the ground of interest, to give evidence in any suit or appeal concerning such rates in their own township, or concerning the removal of any pauper from their own township or settlement. In England it is provided by Statute, that persons rated, or liable to be rated to any rates, shall not thereby be incompetent to be witnesses on any question concerning such rates, or the settle- ment or removal of any poor in their township, or the boundaries of such township, or respecting bastards, or parish officers, or their accounts in such township. As this Statute does not ex- tend here, such persons in this Province, cannot in the cases therein mentioned, be admitted as witnesses for their own township, except as to county or district rates, with regard to which, it is indeed provided by the 5 W. 4, c. 13. 4 V. 389, that persons rated, or liable to be rated to such rates, shall not thereby be incompetent to be witnesses in any question con- cerning such rates, under the Act." It is obvious, that a si- milar provision to that just cited from the English Statute, is required in this Province. Before that Statute, however, it had been decided, (and it may therefore be considered even at present as a rule in this Province,) that inhabitants are not in- competent as witnesses, merely for having rateable properly in the parish, if it does not appear that such property was actually EVIOENCIC. 169 9«t .!t-''%J rated at tlie iii)i(j of the appeal ; and this, although it was omit- ted in the rate for the very purpose of introducing their evidence. The Court held that in order to disqualify a witness, there must bo an actual existing interest at the tinie, not merely one that is expectant and contingent ; and that by taking the witness ofl* the rate, his immediate interest was so far taken away, that it could not render him incompetent, whatever objections might still be made against his credibility. 1 Burn's^ 793. The owner of an estate, occupied by his lessee, has a per- manent interest in it, which disqualifies him from being a wit- ness to disburthen such estate from the payment of a rale. lu a case between two parishes, the declarations of a rated inha- bitant of either parish, concerning the facts in issue, are admis- sible in evidence, not only against himself, but also against the Other rated inhabitants of his parish. And it is not necessary, in order to make such declarations evidence, that he should first be called as a witness, and refuse to bo examined. All the rated inhabitants are parties to an appeal, and therefore their . declarations are evidence. Id. 794. It has been decided, that if the defendant and plaintiff be Plaintifi* a willing, the defendant may have the plaintift'as a witness. One ^VuneM. commoner may be a witness for another claiming common^ be- cause in effect it charges himself. A trustee may be a witness, Trnstee. if he have released his trust, but not if he have conveyed it over. If a trustee takes a beneficial interest, he is incompe- tent, but without such an interest trustees and executors are competent witnesses. An heir at law may bo a witness con- 11^;, ^^ l^w. earning the title to the land ; but the remainder-man cannot, for he hath a present interest ; but the heirship is a mere con- tingency. Where the rights of a corporation are at issue, a member thereof may give evidence upon the same, if he have not, as a private individual, a particular interest in the question at issue. A person cannot be a witness, if he believes hie. .I'f interested, whether he is or is not interested by strictness 1 law. But a mere obligation in honor, is no objection to the competency of a witness. A prosecutor has been admitted to ProMcuior. * be a witness, on an indictment for an assault, although he had laid a wager that he should convict the defendant ; and the reason seems to be, not because the witness had made the wager at a time when public justice became interested in his testimony, but because it would be against public policy to al- low a witness by any such gratuitous act, to exclude himself from giving evidence ; and there seems to be another reason for admitting the witness, since the wager would now probably be considered absolutely void, as tending to produce an impro- per bias on the mind of the witness, and therefore as directly 22 -r .iiil ^i 'Mi,it 170 EVIDENCE. Especlation or Bentfit. Agent. Evidence eon- trary to Inter- ett. Attornij. prejudicial to the administration of justice. It is no objection to a witness, that lie hopes or expects a benefit. It is necessary to observe, that as an exception to the general rule, that per- sons immediately interested in the event of the cause, cannot be witnesses for that party whose claim if established will advance their own interest, — there is a class of cases, determining that where a person is equally interested either in the event of a verdict for the plaintiff, or defendant, he is a good witness. As for example, where one is entrusted by A. to pay money to B. and does not pay it accordingly ; and then B. brings an ac- tion against A. for the amount, the agent is a good witness to prove no payment, inasmuch as be acknowledges the receipt of the money from A., and thereby renders himself liable to A. Persons who become interested in the common course of bwi- nessj and who alone can possibly have knowledge of a fact, may be called as witnesses to prove it, as persons who have been agents employed to pay money, may prove such payment. So an agent may prove the terms of a contract, though he be to derive a profit from it. And this upon the ground of neces- sity. If such evidence were not admitted, the facts would be incapable of proof. Where a person mad'e himself a party in interest, after a plaintiff or defendant has an interest in his testimony, he may not by this deprive the plaintiff or defen- dant of the benefit of his testimony. Upon the whole, with respect to interest^ a man who is interested in the event of a suit, is objectionable only when he comes to prove a fact con- sistent with his interest, for if the evidence he is to give be contrary to his interest, he is the best possible witness that can be called, and no objection can be made to him by the party in the cause. And again, the Judges have in a variety of cases resolved, that these questions of interest shall, as far as possible, go to the credit, rather than the competency of the witness. Id. 795 — 6. Some persons also are privileged by reason of their pecu- liar relationship to the party in the cause, from being compdied to give evidence. Thus, an attorney ought not to be examined against his client, because he is obliged to keep his secrets ; but of his own knowledge before retainer, that is before he was addressed in his professional character, he may be examined as a witness, if served with a subpoena. This privilege only extends to prevent the disclosure of facts communicated con- fidentially to the witness, in the character of attorney ; and therefore it has been decided, that an attorney may be examined as to the contents of a written notice which he had received in the course of the cause, calling upon him to produce papers in the bands of his clients, for by such disclosure ther6 could be EVIDENCE. 171 no breach of conHdence. This is the privilege of ihe client, and not of the attorney. But it is confined tu three cases of counsel, solicitors and altornies, when acting in their respec- tive characters. It does not extend to the case of an agent or steward, nor of a conveyancer, nor of course to the case of medical persons. Of examining Witnesses, and of the mode of enquiring into '> thfir Credibility. " The several objections before enumerated, may be raised either by an examination of a witness upon the voir direy (of which sufficient has been said already,) or by an examination after the witness has been sworn. Witnesses are allowed to refresh their memories by looking at memoranda made under certain circumstances. A witness may refresh his memory by any book or paper, provided he can afierwards swear to the fact from his own recollection, but if he cannot swear to the fact from recollection, any farther than as finding it entered in a book or paper, then the original book or paper must be pro- duced ; for he shall not be allowed to give evidence from a copy, or extract from it. A witness may refresh his memory, by looking at memo- randa or entries which he did not make himself, but which he regularly examined from time to time, while the entries were fresh in his recollection, and which he always found accurate. 1 Burn's, 797. [Note. It appears to have been considered formerly in ,,/.,.• • England, that a witness was not compellable to answer any r<^7 v question which might subject him to a civil action, or tend to chaise himself with a debt ; but by a Statute passed there in the 46 G. 3, the law is declared otherwise ; but as that Statute is not expressly extended to the Colonies, it may probably be considered, that in this Province a witness is not compellable to answer such a question.] On a question of settlement, a rated paishioner is not com- pellable by the adverse parish to give evidence, as he is di- rectly interested as party to the appeal. (t,, .MK^ft^-kUh iM It is a general rule, that a witness shall not be asked any Qaeitioning a question, the answering to which might oblige liim to accuse him- Witnesi ai to self of a crime ; and that his credit is to be impeached onJy by *•'" Character, general accounts of his character and reputation, and not by proofs of particulai' crimes, whereof he never was convicted. But a witness may be asked whether he has not been in the pillory for perjury. A man shall not be permitted to swear that he was suborned and perjured. And Lord Coke says, A witness alleging his own infamy or turpitude, is not to be heard. ,1 172 EVIDENCE. iiueitioni to try Credibil- ily. Leading Queationi. A witness cannot bo asked a quostion wliioii has a direct and immediate effect to disgrace or degrade him. On an indict- ment for a rape, the woman is not obli!i;ed to answer, whether on some former occasion she had not a criminal connection with other men, or with particular individuals, nor is evidence of such criminal intercourse admissible. Id. 798-9. It is not competent on cross examination, to (piestion the witness concerning a fact wholly irrelevant to the matter in is- sue, if answered alfirmatively, for the purpose of discrediting him if he answered in the negative, hy calling other witnesses to disprove what he said Upon cross examination to try the credit of a witness, only general questions can bo put, and he cannot be asked as to any collateral or independent lact, merely with a view to contradict him afterwards by calling another wit ness. If the witness answers such an irrelevant question be- fore it is disallowed, or withdrawn, his answer is conclusive. Witnesses cannot be called to contradict him. It would be ir- relevant to ask a witness in cross examination, whether he had not attempted to dissuade another witness from attending the trial. A witness may object to answer a question, which he thinks will tend to his crimination, though the answer would not lead to an immediate conclusion of guilt. Where a witness swears to a particular fact, a letter veritten by him, contradict- ing in effect his testimony upon that point, may be given in ev- idence to impeach his credit. A witness may be examined as to what he has formerly sworn in an affidavit : but the affidavit, or an office copy of it, must be first read in Court. Id. 800-1. Leading questions, that is, such as instruct a witness how to answer on material points, are not allowed on the examina- tion in chief. Questions however, which are intended merely as introductory, and which whether answered in the affirmative or negative, would not be conclusive on any of the points of the cause, are not liable to the objection of leading. For ex- ample, if two defendants are charged as partners, a witness may be properly asked, whether the one defendant has interfered in the business of the other. This is not a leading question, for though he may have interfered, it will not follow that he has by this alone made himself liable as a partner. ' Or, if a witness called to prove the partnership of the plaintiffs, is not able at the moment to specify the several names of the partners, a num- ber of names containing those of the partners among others, may be suggested to the witness for the assistance of his mem- ory. In a criminal prosecution it is proper, and the common practice is, to direct the attention of the witness to the person of the prisoner, and ask him, whether that is the man of whom he has been speaking. A witness swore to a particular circum- EVIDENCE. 173 direct and an indict- r, whether connection 8 evidence • iiestion the Rtter in is- liscrediting r witnesses 1 to try the tilt, and lie ict, merely nother wit uestion be- conclusive, vould be ir- ther he had ending the , which he iwer would re a witness contradict- ;iven in ev- xamined as 16 affidavit, Id. 80Q-1. witness how le examina- ded merely affirmative e points of For ex- ritness may I interfered I question, that he has if a witness lot able at srs, a num- )ng others, his mem- e common [the person of whom lar circum- i«i«,» >( i stance, ai part of the contents of a letter, which he also swore was lost. Another witness who had heard the letter read, was permitted to be examined to the particular circumstbnce by a leading question, for the purpose of denying its forming part of those contents ; provided the witness's memory had been fust exhausted by general questions as to the contents of the letter. In one case, the defendants intending to impeach the credit of a witness for the plaintiff, by shewing such witness to be of an infamous character, were prohibited Irom asking, whether from what their own witness had seen pass at Bow Street, at which place the plaintiff's witneis had been before the magistrates there, he would believe bim on his oath ? They were permit- ted to put this question, — ^* Have you the means of knowing what the general character of this witness was ? And from such general character would you believe him on his oath ?" For then it would be open to the plaintiff, to ask as to the means of knowing the witness's character. Where the character of a witness has not been attacked, no evidence can be admitted iu support of it. But evidence of the conduct of deceased wit- nesses, when it has been attacked, may be received, to attach credit to their testimony, or to destroy its effect. Id. 801-2. It often happens that the character of subscribing witnes- character of ses to deeds, and other written instruments, is the subject of Wimesaefi to enquiry ; and upon this point the following cases have oc- curred. If the subscribing witnesses to a will be dead, evi- dence given of what was said by one of them, being then in bed of the illness of which he died, thereby impeaching the validity of the will, inasmuch as he declared it was a forgery, was ad- mitted, and afterwards decided to have been rightly admitted. Such evidence being given, not to prove the furge^y, but to impeach the credit of the subscribing witness. And evidence of the character of the subscribing witnesses may be admitted, if an imputation be cast upon the will. And upon the authority of the preceding case, evidence was admitted, that the sub- scribing witness to a bond, had in his last moments begged par- don of heaven for having been concerned in forging it. These decisions were upon the principle, that if the subscribing wit- ness could have been produced upon the trial, to prove his handwriting, as he might have been cross-examined, so a party may prove his declaration of the fact, in contradiction to the presumption of a due execution of the bond, from the proof of his handwriting as a subscribing witness. It has been agreed that the evidence given by a witness at one trial, cannot, in the ordinary course of justice, be made use of against a defendant on the death of such witness, at another trial. But it has been u yu»i>>?{ admitted, that in order to shew a variance in the evidence, a •>. uj.r.{9H li ' i Insiruiiientf. Evideneeona former Trial. 174 EVIDENCE. I deposition taken by a witness before a Justice of the Peace, may at tiie prisoner's desire be read at the trial, in order to take off the credit of the witness, by shewing a variance be- tween such depositions and the evidence given in Court. And for the same reason, it seems agreed, that where a witness at one trial, varies from his own evidence at another trial, in re- lation to the same matter, such variance may also be given in evidence to invalidate his testimony at the second trial. But nothing shall be admitted as evidence of what was done at another trial, till the record of that trial be produced. When a witness has been once sworn to give evidence, the other par- ty may cross examine him, though he gave no evidence for the Contradictory party that called him. If a witness is called on the part of the Testirneny on plaintiff, who swears what is palpably false, it would be ex- tl.eiaine.ide. jyemely hard (said Lord Ellenborougb,) if the plaintiff's case should be for that reason sacrificed. The party is not to set up so much of a witness's testimony as makes for him, and to reject or disprove such part as is of'^a contrary tendency. But if a witness is called and gives evidence against the party call- ing him, he may be contradicted by other witnesses on the same side ; and in this manner his evidence may be entirely * repudiated. But a party shall never be permitted to discredit, by general evidence, his own witness, for that would be to enable him to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him, with the means of destroying his credit if he spoke against him. The meaning of llie rule, is, that a party cannot prove his own wit- ness to be of such a general bad character as would make him unworthy of credit. If he knew the infamy of his character, he was practising a fraud upon the Court, in producing him as a witness. But if a witness unexpectedly give evidence against the party that called him, another witness may be called to prove those facts otherwise ; as where the question was, whetl>er the defendant's servant who had been employed to sell a horse, had warranted him sound, he swore on being called by the plaintiff, that he had not given any warranty, and Lord Ellen- borough allowed the plaintiff to call another witness to prove, that at the time of the sale he had expressly warranted its soundness. There can be no rule of law, said Lord Ellen- borough, by which the truth on such an occasion is to be shut out, and JHEtice perverted. Objections to disqualify a witness, such as questions of interest, or description, should betaken in the first instance, before his examination in chief is gone into. Id. 802—3. Ileartay and In general, that which another asserts must be by oath in Reputation, g ^Quft Qf Justice, and no one will be permitted to com« into -J 1^ EVIDENCE. 175 such Court and say, upon his oath, that lie heard such an one declare certain facts to have occurred, but he who makes the declaration must himself repeat it upon his oath. And this is that which is termed hearsay evidence, viz. the deposing on oath that certain facts are, which facts are only known to the deponent by the relation of some other person. On enquiring into the truth of facts which happened a long time ago, the Courts have varied from the strict rules of evid^pce applicable to modern facts of the same description, on account of the great difficulty of proving those remote facts in the ordinary manner, by living witnesses. On this principle, hearsay and reputation (which latter is the hearsay of those who may be supposed to have known the fact handed down from one to another,) have been admitted as evidence in cases of pedigree. Thus, declarations of deceased members of the family, are ad- missible evidence to prove relationship, as who was a person's grandfather, or whom he married, or how many children he had ; or as to the time of a marriage, or the birth of a child, and the like ; of which it cannot be reasonably presumed that better evidence is to be procured. But hearsay evidence by a pauper, of the declarations of his deceased putative father, as to the birth place of the pauper, is not admissible. The de- clarations of deceased parents, as to whether they were married, or whether the person in question ^vas born before or after marriage, are evidence. So in questions about a right of way, reputation, that is, what old people deceased have said upon the subject, is good evidence. So, whether a particular piece of land be parcel of an estate, may be proved by decla- rations made by a deceased tenant, while in possession. Proof by one of a family, that a particular person had many years before gone abroad, and was supposed to have died there, and that the witness had not heard in the family of his having mar- ried, was considered by the Court of King's Bench good fnima facie evidence of the person's death without lawful issue. There are cases in which a person has been presumed to be still Irving, though not heard of for some time. But this pre- sumption would not be made, in contravention of another pre- sumption or principle of law, by which every person is sup- posed not to have acted illegally, until the contrary is proved. The law presumes the continuance of life, but it also presumes against the commission of crimes, and that even in civil cases, until the contrary be proved. A general right may be proved by traditionary evidence, a particular fact cannot. Tr'xditionary reputation is evidence of boundary between two parishes, and this, although the deceased old persons, whose declarations res- pecting it are given in evidence, were parishioners. But not so as to a boundary between two estates. I 170 Pnrtiea in Suit being VVitneastis. Removal of Witnesaea. AffirmBtivo to be proved. EVIDENCE. Declarations made by persons after a suit commenced, are not admissible as evidence of reputation. Id. 804 — 5. In civil cases, a plaintiff in a cause cannot 'be a witness for himself, nor can the defendant. But in all criminal prose- cutions the prosecutor may give evidence in support of the charge against the prisoner. In cases of informations for pen* allies, the informer, who is the real prosecutor, cannot be a witness, unless the Statute which imposes the penalty, permit it by special provision. Id. 806. -i ninLuiH i ; In prosecutions which subject the party to corporal punish- ment, he is permitted to call witnesses to his general ciiarac- ter ; but in actions or informations for penalties, though found- ed on the fraudulent conduct of the defendant, such evidence cannot be admitted. Id. ./j rj; wiihi^xi/ti a.-vMi uvsii (,M(iir. ■• •.. - w.„, ^ . !,; ; • ; ».aif>b Jo Biit)ai}3u4i;>i> r IV. Of the manner of giving Evidence. He who affirms the matter in issue, whether plaintiff or defendant, ought to begin to give evidence. The evidence both for and against a prisoner ought to be upon oath. A pri- soner cannot insist upon the removal out of Court of the wit- nesses for the Crown, during the examination of each other, as a right. It is a favour which the Court may and does grant sometimes. In cases of life, no evideace is to be taken against a prisoner, but in his presence. . /? '.>* ':*4' ..toi'-,h' In every issue, the affirmative is to be proved. A negative cannot regularly be proved, and therefore it is sufficient to deny what is affirmed, until it be proved. But when the af- firmative is proved, the other side may contest it with opposite proofs, for this is not properly the proof of a negative, but the proof of some proposition totally inconsistent with what is af- firmed, as if the defendant be charged with a trespass, he need only make a general denial of the fact ; and if the fact be proved, then he may prove a proposition inconsistent with the charge, as that he was at another place at the time, or the like. But to this rule there is an exception of such cases where the law presumes the affirmative contained in the issue. Therefore, in an information against Lord Halifax, for refusing to dehver up the rolls of the Auditor of the Exchequer, the Court put the plaintiff upon proving the negative ; namely, that he did not de- liver them ; for a person shall be presumed duly to execute lis office, till the contrary appear. hi> A witness shall not be cross-examined till he has gone through the evidence for the party on whose side he was pro- duced. Id. 807. - „. ,.' _ ,^....., '»jf;i ■J ijy Hi''ii 4 •i'dr.ihoils ol EVIDENCE. 177 VI. Of Process to cause Witnesses to appear. The compulsory means to bring in witnesses, are of two kinds. 1. By process of subpoena issued in the King's name, ',., by the Justices or others where the trial is to be. 2. Which is the more ordinary and more eflectual means, (in criminal cases), the Justices that take the examination of the person ac- cused, and the information of the witnesses, may at that time, or at any time after, and before the trial, bind over the wit- nesses to appear at the Court, and in case of their refusal, either to come, or to be bound over, may commit them for their con- tempt in such refusal. No witness is bound to appear in civil Tendering cases, unless his reasonable expenses for going to and returning Feex to a from the trial, be tendered him at the time of sending the sub- Witness. poena ; nor if he appears, is he bound to give evidence till such charges are actually paid or tendered. Only four witnesses can regularly be included in one writ of subpcena for the appearance of witnesses at the Sessions. In order to save expense, it is settled, that leaving a ticket containing the substance of the writ, will be as effectual as the writ itself ; but the writ ought to be shewn. The lorit or ticket should be served personally on the witness, and in reasonable time before the day of trial, that he may suffer the less inconvenience from his attendance on the Court. If a witness who has been duly served with the writ, - and has had a tender of the reasonable expenses, omit to attend at the trial without a sufficient cause, he is liable to be pro- ceeded against in one of three ways. 1st, By attachment, for a contempt of the process of the Court. 2d, By a special ac- tion on the case, for damages at common law. 3d, By an ac- tion on the Statute in that behalf, for the penalty of ten pounds, and also for the further recompense recoverable under that Sta- tute. But the more usual way is to proceed by attachment. And in order to ground this summary way of proceeding, it is not only necessary to shew an ill motive in the witness, or neg- ligence or inattention to the process of the Court, but also to prove that the witness was personally served ; and that his rea- sonable expenses were paid or tendered at the time of the ser- vice of the subpoena. In criminal cases, if a witness has been bound over and do not appear, he shall forfeit his recognizance. In case he do appear, he is entitled to his expenses in certain cases ; for which see Title — Witnesses, 1 Burn^s, 808-9. ^.•>t Subpana to give Evidence. If County of ) William the Fourth, by the grace of God, ) of the United Kingdom of Great Britain and Ircr [Seal.] land, King, Defender of the Faith, 178 EVIDENCE. To A. B., C. D., E. P, and G. H., greeting : Wo command you and every of you, that all business being laid aside, and all excuses whatsoever ceasing, you do in your pro- per persons, appear before our Justices assigned to Iceep the peace in our said county of , and also to hear and deter- mine divers felonies, trespasses, and other misdemeanors in the said county committed, at the General Sessions of the peace to be holden at , in and for the said County , on the — day of , at the hour often o'clock in the forenoon of the same day, to testify the truth and give evidence on behalf of A. I. against A. O., in a case of- . And this you are in no- wise to omit, nor any of you to omit, on pain of one hundred pounds. Witness A. P. Esquire, the — day of , in the — year of our reign. 1 ■ I ii'\' I'f ■■ 1 I ''■^'^■'^' ■'' '•' •* A. D., C. P. '■' ' ' ' ' Jl Subpoena Ticket. By virtue of His Majesty's writ of subpoena, to you di- rected, and herewith shewn to you, you are personally to be before His Majesty's Justices of the Peace for the county of , at the General Sessions of the Peace to be holden for the said county, at in the said county, on the — day of next, to testify the truth, and to give evidence on behalf of A. I. against A. O., in a case of . And this you are not to omit upon pain of one hundred pounds. Dated this — day of , in the year of our Lord . By the Court, A. D.,, C. P. For the Form of a Recognizance to appear and give evi- dence, see Title, — Recognizance. Note. By the 25 G. 3, c. 2. 1 V. 239, Where a wit- ness lives five miles or upwards, from the place where the trial is to be had before any Court, or Justice, such witness may be summoned to attend, by any one Justice ; as to which Statute more at large, with the Form of Summons therein given, see Title, — Witnesses. Further information, and directions with regard to witnesses in prosecutions of a penal nature, and also in civil suits before Justices, with the Forms to be used for requiring their attendance in such cases, will also be found under the same Title. "■ ^"''^t^* ''^ "" f 5*1 ii/l (179) /:i EXAMINATION. T When a party arrested for felony, is brought to a Justice of the Peace, he must either discharge, or commit, or bail hint. If he be charged with suspicion only of felony, yet if there be no felony at all proved to be committed, or if the fact charged as a felony, be in truth no felony in point of law, the Justice may discharge him ; as if a man be charged with felony for stealing a parcel of the freehold, or for carrying away what was deliver- ed him, and such like ; for which, though there may be cause to bind him over for a trespass, the Justice may discharge him ■ ' < as to felony, because it is not felony. I Bum's, 810. In order to which bail or commitment, the examination of Examinatioiw witnesses and of the prisoner must first be taken, according to ^° ^^ ^'^*"" the Provincial Statute 8 G. 3, c. 3, § 5. 1 V. 136, by which it is enacted, *' that the Justices of the Peace before whom any person shall be brought, for any murder, manslaughter, or felony, or for suspicion thereof, shall take the examination of such priso- ner, and information of those that bring him, of the fact and circumstance thereof ; and the same, or as much thereof as shall be material to prove the fact, shall put in writine ; and the same shall certify, together with the bailment of such prisoner, (in case the crime whereof such prisoner is charged is bailable,) at the next Sessions of Oyer and Terminer, or Gaol delivery, to be holden within the limits of their commission. And that the said Justices shall bind all such by recognizance, or obliga- tion, as do declare any thing material to prove such murder, manslaughter, or felony, against such prisoner, to appear at the next Sessions of Oyer and Terminer, or Gaol delivery, to be holden within the county where the trial of such murder, manslaughter, or felony shall be ; then and there to give evi- dence against such prisoner ; and that the said Justices shall certify the said bonds or recognizances taken before them, in like mannner, as the examination of such prisoner, and the wit- nesses, are herein before directed to be certified." Perpetual. The informations of the accusers or witnesses taken under Outh. this Statute, must be upon oath, but the examinations of the prisoners must be taken without oath. And these examinations may be read in evidence against the prisoner, and so may the informations of witnesses taken upon oath, if they are dead, or not able to travel by reason of sickness or other casualty ; for they are Judges of record, and the Statute enables and requires them to take these examinations : but then oath is to be made in Court by the Justice, or his Clerk, that these examinations and informations were duly taken. See 1 JBttm's, 812. i i ISO EXAMINATION. The Statute speaks only of cases of murder, manslaugh- ter, and felony. It does not yet appear to have been expressly decided, whether examinations taken before Justices of the Peace, in cases of misdemeanors, can be read in evidence ; but from the language of Judges in several cases, it may be said, that the only conclusion yet warranted, is, that the de- position of a witness, taken ex parte, before a Magistrate, on an examination fur a misdemeanor, cannot be read in evidence on the trial of the party for such misdemeanor, though the de- fendant be dead, beyond sea, or kept out of the way by pro- curement of the defendant. Id. 812 Manner of Kx- No hopes or threats are to be held out to a prisoner, to ainuinig. induce him to make any confession or statement ; neither is he , I > .> to be sworn ; nor to be examined in the manner of a witness ; .; >.N .: av . |jyj j,g jg merely to be asked what he has to say, and his vol- untary statement, (if he make any,) is to be taken down ex- actly as he makes it. In a case where the Magistrate examin- ed the prisoner, (though not sworn,) in the manner of examining a witness, the Judge said on the trial, — " I think I am not at hberty to suffer this examination to be read. No matter whe- ther a prisoner be sworn or not. An examination of itself im- poses an obligation to speak the truth. If a prisoner will con- fess, let him do so %'oluntarily. Ask him what he has to say ? But it is irregular in a Magistrate, to examine a prisoner in the same manner a.'!i a witness is examined. I must reject this ex- amination." The prisoner was acquitted. Id. 814. *^ If by some reasonable occasion the Justice cannot, at the return of the warrant, take the examination, he may by word of mouth command the constable or any other person to detain in custody the prisoner, till the next day, and then to bring him before the Justice for further examination. But the time of detainer, must be no longer than is necessary for such pur- pose. • It was holden, that a party could not be detained six- teen days, and it was said, that three days is a reasonable time. The usual practice is stated to be from three days to three days, by a written mittimus. If the offender upon his Pubscriliing examination before the Justice, shall confess the matter, it Exajnumtion. g]^Q\[ ,jQt \^q amiss that he subscribe his name, or mark to it. But it has been determined by a majority of the Judges, that a written examination, containing a confession of the prison- er's guilt, is admissible in evidence, although it was not sign- ed either by the magistrate or the prisoner. Id. 816. In a case of murder it was solemnly decided, on full con- sideration, that the deposition of the deceased was admissible in evidence, although not wholly taken in the presence of the prisoner, but the party in his presence, having however been \l EXAMINATION. 181 re-sworn, and the deposition repeated and signed in the prison- ' er's presence ; for he had an opportunity of cross examining. Id. 815. The Justice must take the examinations not only of them that bring the prisoner, but also of other witnesses whom he may cause to appear before him, in pursuance of his summons for that purpose. And such examinations must be upon oath ; therefore the affirmation of a Quaker cannot be taken. It is not essential to the validity of the deposition of a deceased wit- ness, that it should be signed by him. On an indictment for a rape, all the Judges concurred in opinion, that the deposition of a girl deceased, on whose person the crime had been per- petrated, taken on oath by the committing Magistrate, had been properly admitted in evidence at the trial ; though such depo- sition was not signed by the deceased. It seems just and right, Certifying Ex- ihat the Justices who take information against a felon, or per- ""''""tioim. son suspected of felony, should take and certify, as well such information, proof, and evidence, as go to the acquittal or clearing of the prisoner, as such as make against the prisoner : for such information, evidence, or proof so taken, is only to inform the King and his Justices of gaol delivery, of the truth of the matter. Id. 817. For petty larcenies and small felonies, the offenders may be tried at the Sessions of the Peace, and therefore the exam- inations and informations in such cases, should be sent there by the Justices who took them. Examinations taken by Jus- tices of the Peace in one county, may be by them certified into another county, and there read and given in evidence against the prisoner. Id. If any witness against a prisoner, shall refuse to be bound Recognizance in recognizance to appear and give evidence on the trial, the °^ VVuneasei. Justice may commit him to gaol, to be detained there until he complies. But a Justice is not authorised by law to commit a witness, willing to enter into a recognizance for his appearance to give evidence against an offender, merely because such wit- ness is unable to find a surety to join him in such recognizance ; nor ought the Justice to require such surety. The party's own recognizance, (at the peril of commitment,) is all that ought to be required. The practice of committing witnesses, unable to find sureties for their appearance, is clearly repugnant to every principle of the English law. But a Justice may com- mit a married woman, who is a material witness upon a charge of felony brought before him, and who refuses to appear at the Sessions to give evidence, oc to find sureties for her appear- ance. Id. 817. a Note. As married women, and persons under the age of ilM 182 EXAMINATION. 'r .■«!l<'i Ut twenty one years, cannot themselves be bound in recognizance, they must, in cases of this kind, find a surety to be bound for thorn. The party grieved ought to be bound not only to give ev- idence, but also to prefer a bill of indictment against the priso- ner. 1 Burn^Sf 819. The Examination of a Person cliarged with Fehny. County of i The examination of A. O., of , in the ) county of , labourer, taken before me A. M., Esquire, one of His Majesty's Justices of the Peace, acting in and for the said county of , [or if the case is bailable say, taken before us A. M., and A. R., Esquires, two of His Majesty's Justices of the Peace acting in and for the said county,] the day of , in the year of our Lord one thousand eight hundred and . The said A. 0. being charged before me, [or us] the said Justice, [or Justices,] on the oath of A. I. of , in the said county, yeoman, with feloniously stealing, at the town- ship of , in the said county, on the day of in the year aforesaid, one silver spoon of the value of ten shillings, the property of the said A. I. ■ A. M.J. P. > The plain and obvious meaning r)f the words spoken by the witness, ought to be taken down, and not merely the re- sult of the evidence. 1 Burn^s 819. For information as to whether a prisoner may or may not be let to bail, and whether by one Justice or two, and for the proceedings therein, reference must be had to the Title, — Bail. For the Forms of Recognizance of the party complaining, —of the Witnesses, and of the prisoner, (where it is a bail- able oifence,) see Title, — Recognizance ; and for the Form of a Summons for a witness, see Title, — Witnesses. Further in- formation as to the giving examinations in evidence, will be found under the Title, — Evidence. !Hl^^ '«Ji:m?'-tJ EXECUTION, see Titles,— SUMMARY TRESPASSES. TRIALS, and '•«H.'I ■Jt EXTORTION.' 1%) ■'>iU Extortion in a large sense, signifies any oppression un- der colour of right ; but in a strict sense it signifies the taking of money by any officer, by colour of his office, either where none at all is due, or not so much is due, or where it is not yet due. And by the Statute of the 3 Ed. 1. c. 26, (which is only in affirmance of the common law,) ** No sheriff, nor other the King's officer, shall take any reward to do his office, but shall be paid of that which they take, of the King ; and he that so doth, shaii yield twice as much, and shall be punished at the King's pleasure." Under these words of the Statute, " JVb Sheriff nor other the King's officer" are understood, escheators, coroners, bailiffs, gaolers, and other inferior offi- 184 EXTORTION. cera of the King, whose ofliccs were instituted before tlin making of this Act, wliich any way concern the administra- tion or execution of justice, or the common good of the sub- ject, or for the King's service. Also, the Justices of the peace, whose office was instituted after this Act, are bound by their oatii of office, ^' to take nothing for their office of Justice of the peace, to be done, but of the King, and fees accustom- ed, and costs limited by Statute.!' (See the oath of a Justice of the peace, under the title,— Justices.) And generally, no public officer shall take any other fees or rewards for doing any thing relating to his oflice, than some Statute in force gives him, or else as hath been antiently and accustomably taken; and if he do otherwise, he is guilty of extortion. The officerb mentioned and intended in the foregoing Statute, can at this day take no more for doing their office, than hath been since allowed to them, by authority of Parliament. All prescriptions which have been contrary to this Statute, and to the common law in affirmance of which it is made, have been always holden to be void. It has been resolved, that a promise to pay them money for doing of a thing, which the law will not suffer them to take any thing for, is merely void. At the common law, this offence of extortion, is severely punishable at the King's suit, by fine and imprisonment ; and also by a removal from the office, in the execution whereof it was committed. — And this Statute doth add a greater penalty than the common law gave ; for hereby the plaintiff shall recover his double damages. 2 Burn's^ 368-9. Note. The fees of Justices of the peace in this Pro- vince, are, in nearly every case, regulated by several Provin- cial Statutes ; and penalties are therein imposed upon those who shall exact or take any greater or other fees for the ser- vices mentioned, than are thereby allowed ; for which see Title, — Fees. ,*.. f . .»i.; \.. .,.., r f)'i •vfl hn • • FALSE TOKENS.— See CHEAT. FEES. By the 28 G. 3 c. 15. l.V. 259, No officers or other per- son or persons whatsoever, for any service or services by him or them to be done and performed, in their respective offices •een since ./Sk PEES. 1 hereinafter mentioned, for any fee, perquisite, or other reward, shall exact, demand, or receive, any greater or other fee or fees, sum, or »ums of money, than is or are hereinafter set down, allowed and established for the same, that is to say ^-t Justices' Fees. Issuing Writ or Summons, — two shillings and sixpence. Subpoena, — six pence. Judgment,— one shilling. - uwiuA i'«» ^e'*!*^'* "^ . . Execution, — one shilling. .1. ui.i Every Bond or Recognizance, — one shilling. - "^ Every Affidavit in writing, — one shilling. .'i-i*«>. Sending Process to Inferior or other Courts ; — one shil- ling. Warrant in Trespass, Assault in Battery, on Conviction of the Offender, — one shilling. Acknowledging Instrument or Deed,— one shilling.* Every Examination in Assault in Battery, on Conviction of the Offender, — two shillings and sixpence. Constables' Fees. o;«V'-rfiion/i Attending a Jury in each Cause, — one shilling.' Serving every Warrant or Summons, — one shilling. Summoning a Jury by Warrant from Coroner, and attend* ance per day, — two shillings and sixpence. . lU // Travelling per mile, the same as the Sheriff,— three pence.' 185 .^.»'(i:,.-.,Vi,,M.'.!'.ia.;ji(,*. '^;,j'r.: Witnesses* Fees.. For attendance per day at Court,— two shillings and six« pence; ■ • ' • '"'^ '^.tirin .j^tM; »_4'*»^. f^f?- ^mtKHi Travel pei^ mile, — threepence.' — ■ . ?• *" Sec. 6. If any officer or person whomsbever, shall exact or take any greater or other feesj in respect of any of the ser- vices before mentioned, than are ascertained or allowed as aforesaid, he or they so offending, shall for each offeiice, for- feit the sum of ten pounds ; one half thereof to the use of the King, towards the support of the Government of the Province, and the other half to any one who shall sue for the same to ef- fect ; to be recovered in any Cdurt of Rfecord, with full costs of suit, and the party so offending shall further pay double the amount 'of the exicessive fees taken, to the party aggrieved. Provided that all actions and prosecutions for the forfeitures and penalties incurred under the Act, shall be commenced in i . . 24 i Id6 FKUS. ih« county where the ofTence woh committed ; and within lix moiithn from the time of committing the same. Perpetual. By the 3 G. 4. c. 30. 3 V. 134, The following Fees are establitihed and allowed in Suits before Justices, for the re- covery of debts not exceeding five pounds : M Justices' Fees. ■ V On Writ of Summons — two shillines. On Capias and A/Tidavit, — two shillings and sixpence. On Judgment, — one shilling. On Execution, — one shilling. Supbotina, — one shilling. i»ir — ■'•- I ,i>^<$tf in li 4. Constables' Fees. V nJ Service — one shilling. Travel — tluree pence per mile. Witnesses' Fees. .r.^»^.^l>^D2^f>,i»lfJ Each, — two shillings and sixpence, and ! Travel, — three pence per mile. And by Sec. 8. '' any Justice or Justices who shall ask, demand, or receive any greater or other fees than are herein allowed, shall forfeit and nay a fine of ten pounds, together with costs, to be recovered in any action or suit by him or them, that will sue for the* same, in any Court of Record with- in the county where such greater fees shall have been received. Temporary, Note. It will be observed, that the fees allowed to a Justice, for a Summons and Subpcena, under the . first men- tioned Act, ice by this latter one altered. For these Writs, therefore, in all cases, the fees now to be taken, are those which are allowed by this latter Statute. The other fees set forth in the first recited Act, continue the same. For the fees where a Jury is ordered on Trials before Justices, see Title,— Summary Trials. .,.„,. ,,. yi>.;;: i^ „,u ,. **. , , 4^ til #»»*«« -^d) 1^ !{fc**|'ilfefi MM(tes>r! F £ R R I £ S iJT.^"* >Yo.t'jrt tiff m '.mi : By the 7 W. 4, c. 11. Sess. 1837, Justices in Qeneral or Special Sessions, are empowered to establish and regulate ferries over rivers, bays, or creeks, and tu appoint and license \\ F£RRIES. ferrymen to attend the lame, at such rates of ferringe as such Justices shall establish ; and persons so appointed, who shall refuse or neglect to comply witli llic regulations so made, or shall take more than the established rHt(;$ of ferriage, shall, for each ofi'ence, be fined by the Justices in their Sessions, in any sum not exceeding forty shillings. Sec. 2. When any ferry h so estahlish^^d, imd a ferry- man nppninted, if any other person not so licensed, shall ferry or carry over the river, bay, or creek, H'hpie such ferry is so established, any person, or any description of cattle, or any icind of carriage, for hire, unless by desire or consent of the said ferryman, or on his neglect or refusal to give due attend- ance, such person shall fortcit and nay a fme not exceeding twenty shillings, nor less than five shdiings, to any person who will prosecute for the same ; to bo recovered on complaint be- fore any two Justices of the peaceof the county, together with the costs of prosecution, to be levied by a Warrant of distress from such Justices, against the goods and chattels of the of- fender, and it shall be directed in and by such Warrant, that if no goods and chattels of such offender, suflicient to satisfy such fme and costs, can be found whereon to levy, that then tiie said otfender be committed to the common gaol of the county, for any niunber of days not exceeding ten nor less than five, unless he shall sooner pay such fine and costs Provided, that if my such ferryman shall neglect or refuse to give attend- ance pursuant to the regulations made for that purpose, in every such case, any other person or persons may supply his place until another ferryman be appointed, and may receive payment for the same, as the proper ferryman might do if present. Sec. 3. Every licensed ferryman shall keep a good boat,' or boats, vessel or vessels, in good repair, suitable for the ferry, and shall give ready attendance on passengers, on all oc- casions, according to the regulations established; and for every neglect in keeping such boat or boats, vessel or vessels, or in giving such attendance, he shall forfeit a sum not exceeding forty shillings, nor less than ten shillings, to be recovered with costs of prosecution, by whoever shall sue for the same, be- fore any two Justices of'^the peace, in the same manner as afore- said, (and shall be further liable in an action on the case for all such damages as any person shall sustain by such neglect.) Sec. 5. Repeals the only previous Act for establishing and regulating ferries. Perpetual. , ^ - For directions as to the course of proceeding for recove- ry of any of the fines mentioned in the foregoing Statute, and for the Forms required, until after conviction, see respectively, Titles,— Information ; Summons; Conviction. ''<^*>^^*»'*«»i»f**^ 187 im FERRIES. K i;i If, i,i !i P ■: The following will serve as a Form of the Warrant, di- rected to follow a conviction under the foregoing Statute.—- ; County of > To A. C, one of the constables of the town- \ ship of in the said county, -m .>» .hoimj ij^wfe [Seal.] [Seal.] Whereas, on the — day of——', in the year of our I^ord one thousand eight hundred and -— — , A. 0. of — - in the said county, yeoman, on the complaint and prosecution of A. F. a licensed ferryman, was duly convicted before us, A. M. and A. R., Esquires, two of His Majesty's Justices of the Peace for the said county, for that he the said A. 0., on the — day of , in the year of our Lord one thousand eight hundred and , for a certain sum as hire paid to him the said A. O., and without his being licensed as a ferryman, and without the consent and desire of the said A. F., did ferry and carry over a certain river called , at in the said county, a certain person named A. T., at which part of the said river there was then a ferry duly estabhshed, and of which the said A. F. was then and there the duly licensed and establish- ed ferryman, and which said A^ F. was then and there ready and willing as sucb ferryman to ferry and carry the said A. T. over the said river ; contrary to the Statute in such case made and provided ; And whereas he the said A. 0. on his said con- viction, was by us the said Justices, for his said offence, adjudg- ed to pay the sum of , besides the costs of his prosecution before us for his said offence, pursuant to the Statute in such case provided ; which costs we have ascertained and assessed at the sum of ; And whereas the said A. 0. hath hither- to neglected and refused to pay and hath not yet paid the said several sums, or any part thereof ; These are therefore to com- mand you to distrain the goods and chattels of the said A. 0. and on the goods and chattels so distrained, to levy the said several suras, and if within the space of five days, next after such distress made, the said sums together with the reasonable charges of taking and keeping the said distress, to be by us al- lowed, shall not be paid, that thea you do sell the said goods, and out of the money arising by such sale, that you do pay the said sum of to the said A. F., and the said sum of , the costs aforesaid, to us the said Justices, to be applied and dis- posed of as by law provided, returning to him the said A. 0. the overplus (if any) on demand, the reasonable charges of taking, keeping, and selhng the said distress, being first de- ducted. And if no goods or chattels of the said A. 0., suf- ficient to satisfy the said fine and costs, can be found by you whereon to levy for payment of the same, We further com- FERRIES. 189 mand youvth&t you thereupon take the body of tho said A. O., and commit him to the teommon gaol of the said county, at — '— to be held and detained in the said gaol, for tho space of — r days, unless he shall sooner pay the said fine and costs ; and for so doing this shall be your sufEicient Warrant. Herein fail not. Given under our hands and seals at , the — day of——, in the year aforesaid. iiMi..^ «> iK»i^p ■...H 1,1 li,n/:.'i '>" f -;;;- •■^:::^- :. ,i Jtiniuvt- A. M., J. P.' i'Hr .:>l^L hifra o^^'lO'^Hr^:);. v.fifv:ufciti'i. h-, iisKitk*,;' A. R., J. P. J '■:» If the conviction is for any offence of the Ferryman, the Warrant must of course be filled up accordingly, slating such offence as nearly as may be in the words of the Act. ■ >):, 'tllfNr wi il'ilJ ■ »»«J!«W .ti.! in EIJSES, see— CLERK OF THE PEACE, and JUSTICES OF THE PEACE. l-r.i. ■ih aru') iiAi 7'J ii >jnio(|t, . FIRE'S. mi«ii''r«'-^"f <'"ji ^'>i>^^^>J: Bt- the 2 G. 3, c. 5. 1 V. 80, The Justices in Sessions rimwiirds for at Halifax, are authorised to appoint Firewards for the town HahiUx. of HaUfax ; and any person disobeying the orders of such Firewards at the time of fires, may within two days after such disobedience, be informed against, and prosecuted for the same, before two Justices ; and on conviction shall forfeit and pay forty shillings, to be levied and distributed by the direction of such Justices, among the poor most distressed by the fire ; and in case of inability to satisfy the fine, the offender shall sufier ten days imprisonment, ^hfjiw- &m uh.'m&^ -bm, m'mmi Sec. 3. Two Magistrates, or Firewards, may order any puUing down house to be pulled down to stop a fire ; and upon the owners Ho"*'*^^ "*• of houses so pulled down, making application as soon as may ^^^' be, to the first Ju:'^^"''Sec. 4. The Sessions nt Halifax may make assessments From time to time 011*1116 inhabitant;^, for the purchase end re- pair of fire engines. Perpehtal. '• By the 30 G. 3, c. 1. 1 V. 277> The fine of forty shil- lings imposed by the foregoing Statute, on persons neglecting to sweep their chiranies, is rediiced to ten shillings ; the same to be recovered and applied as directed by the said foregoing Statute. And all the clauses amd things contained in all the foregoing Acts, and in this Act, «re extended to the town of Shelburne, in the same manner as if the said town had been named therein. By the 31 G. 3, c. 8. 1 V. 286, Engine men at Halifax are exempted from working on the highways, or serving as Jurors or Constables. Perpetual. t <;> ,-yiiilliis-r vhr.i By the 33 G. 3, c. 7. 1 V. 318, The before tecited Act of 2 G. 3, c. 5, and also the foregoing several Acts of the 23, 28, and 30 G. 3, are extended to the towns of Windsor, Annapolis, and Lunenburg. Provided, that it shall be lawful for the Justices in Sessions, to assign the limits within which the inhabitants of the said towns shall be hable to make good losses sustained and recoverable under the said Act df S G. 3, 0. 5. Perpetual, ■ ' '"- ^ > •' By the 41 G. 3, c 1.1 V. 435, The before recited Act of 2 G. 3, c. 5, and' also all the other foregoing Actsj are extended to the town of Liverpool, in as ample a manner as if the jsaid town had been named therein. Perpetual. i'i"' By the 47 G. 3, c. 15. 2 V. 11, Additional Engine men and Firewards may be appointed in Halifax, and Engine' men in the towns of Annapolis, Windsor, Shelbame, Liverpod, and Lunenburg, are exempted from working on the highways Perpeittal.' '• ■ • ■ ; - .. ,■-.■.:! tt tfBy the 62G. 3, c. 13. 2 V. 90, The Justices*! Ses- srons at Halifax, on application of the Firewards^ mayorder such number of hooks, chains, ropes, ladders, axes, and saws to be providefd, as the Justices may deem expedient ; an4mt^ order the cost of providing the same, and keeping them in re- pair, to be assessed and levied in the same manner as the poor rates. The Sessions shall appoint Firemen, who shell have charge of the said hooks, chains,' ropes, ladders, axes and saws, and shall be exempted from working on the highways ; and one of whom, to be named by the Sessions, shall haive the authority of a Fireward, to order assistance for conveying the said implements to and from a fire ; and any person refusing to obey any such order, shall be subject to the same fine| (of forty shillings) as vs imposed by the aforesaid Act of 2 G. 3, c. 5'. for refusing to obey the orders of a Fireward* Persons who shall have in their possession, any of the said implements FIRES. 193 belonging to the Firemen, and shall neglect to retuni them within twenty-ibur hours after a (ire, or shall he found using them, except at the time of the 6re, or on the alarm thereof, shall be subject to the same penalty, [of forty shillings,] as is provided for a similar offence, in and by the before recited Act of the 22 6 3, c. 4, and to be recovered and applied as there- in directed. And every Constable at Halifax, who at a time of fire, or the alarm thereof, shall refuse or neglect to obey the orders of any Fireward, shall upon conviction thereof before one Justice, forfeit a fine not less than five shillings, nor more than twenty shillings ; and every such Constable, if called on by the Justices in Special Sessions, after any fire, or alarm thereof, shall prove by certificate from one or more of the Fire- nrards, that he duly attended and did his duty at such fire, or shall shew to the satisfaction of such Justices, that he had a sufficient cause which prevented him from so attending ; and if he shall neglect to produce such certificate or excuse, he shall, for every such neglect, be liable to the same fine of not less than five shillings, nor more than twenty shillings ; and the Clerk of the Peace shall read this clause to the Constables. Two Fire Bells shall be provided and paid for, in the manner directed in the first clause of this Act ; and the Sessions shall make regulations for preventing boys and others from unneces- sarily ringing them, or injuring them ; and shall impose a fine not exceeding twenty shillings for each such offence. The pa- rents of children under age, and the masters of apprentices, transgressing such regulations, shall be liable to the payment of such fine, which shall be levied on their goods and chattels. Licensed chimney-sweepers shall give bonds to perform the duty, and on failing to comply with the regulations in that be- half made by the Firewards, and approved of by the Sessions, shall for each offence forfeit a fine of not less than five shillings, nor more than twenty shillings, to be recovered before one Justice, on the oath of one credible witness. And if the per- son so convicted shall not have sufficient goods whereon distress may be made to the value of the fine imposed, or shall not pay the same within ten days after conviction, then the Justice may by warrant commit such offender to the gaol, or house of cor- rection, for a term not exceeding ten days. Perpetual. By the 58 G. 3, c. 33. 3 V. 38, No person at the time of a fire in Halifax, shall break open the doors or windows of any building, or attempt to pull the same down, or order others to do so, unless orders for so doing shall have been first given, either by the owner of the house or by at least four Firewards, or Magistrates ; and any person so doing, shall for each offence forfeit a fine of forty shillings, to be recovered as is directed in 25 CniiRtablea at- tending at Fires. Firo BeiU. Cliin)n«y SwoeperH. Pulling down Houses, Doors, &c. at Fires. 194 FIRES. »r; , Annapolia. Windsor. liunenhurg. Liverpool. Uarttiiouth. Yarmouth. Pictou. and by the second section of the aforesaid Act or2 G. 3, c. 5, and the person so offending shall be answerable to the owner of such building, for the damages done to the same. And the town of Halifax shall not be liable foi any damage done by pulling down, or injuring any building at the time of fire, unless orders for so doing shall have been given by at least four Ma- gistrates or Firewards. No compensation shall be allowed from the town of Halifax for a house pulled down after it has taken fire. PerpeAual. By the 60 G. 3, c. 7. 3 V. CO, Buildings in Halifax, of stone or brick, covered with tile, slate, tin, or sheet iron, shall not be assessed for more than one fourth of their value, to- wards paying for any building which has been pulled down at the time of fire. And all stone and brick buildings, covered with shingles, shall in such case be assessed for one half of their value. ' , .= Sec. 4. The before recited Act of 52 G. 3, c. 13, Is extended to the towns of Annapolis, Windsor, Lunenburg, and Liverpool. Perpetual. By the 1 & 2 G. 4, c. 32. 3 V. 114, The before re- cited Act of 2 G. 3, c. 5, with all the other foregoing Acts, in addition to, or amendment thereof, are fully extended to the town of Dartmouth. Perpetual. By the 3 G. 4, c. 4. 3 V. 122, The before recited Acts, of 2 G. 3, c. 5, and of 52 G. 3, c. 1.3, are extended to the town of Yarmouth. Perpetual. By the 4 G. 4, c.24. 3 V. 107, The before recited Acts of 2 G. 3, c. 5,-22 G. 3, c. 4, and 28 G. 3, c. 8 ; also 1st and 2d Sections of 30 G. 3, c. I, and 1st, 2d, and,3d Sections of 60 G. 3, c. 7, are extended to the town of Pictou. Per- petual. By the 5 W. 4, c. 12. 4 V. 380, Which relates only to the town of Halifax, sundry regulations are established for pre- venting fires, and for the more speedily and effectually extin- guishing the same, by enforcing the attendance and assistance of the inhabitants on such occasions, with further enact- ments concerning Firewards, Engine-Men, and Constables ; and imposing penalties for breaches of the provisions of the Act. Perpetual. . . , ,...;. , .rv - conviction. For information as to the course of proceedings for die recovery of the fines, directed in the several foregoinc: Statutes to be recovered before a Justice or Justices, u:; d ibr the Forms requisite in such cases, see respectively. Titles, — In- formation ; Summons ; Conviction ; Distress ; Commitment. warrant s "' (195) FIREWORKS. ( '■■> , .i..r'V! re f".v By the 2 G. 3, c. 4. 1 V. 79, Persons who shall make, or cause to be made, or shall give, sell, or utter nny squibs, rockets, serpents, or other fireworks, or any n)oulds or in- struments for making the same, and persons who shall throw, or fire, or be aiding and assisting in throwing or firing of the same, into any public street, house, shop, highway, passage, or water ; or who shall permit any squibs, or other fireworks, to be thrown or fired from their houses, shops, lodgings or habita- tions, or in any place thereto belonging, or adjoining to any pubhc street, road, or passage, or any other place, shall each and every of them, for each and every of such offences, on conviction thereof before any one Justice of the peace where the offence was committed, by the confession of the party, or oil the oath of one credible witness, forfeit and pay the sum of forty shillings : such forfeitures to be levied by distress and sale of the goods of every such offender, by warrant of such Justice ; the one half of every such forfeiture to be to the use of the poor where the offence was commiitedj and the other half to the use of those who shall prosecute such offenders to conviction. And if any such offender shall not, immediately on conviction, pay to the said Justice the said forfeiture, such Justice shall b}' warrant commit such offender so convicted, to the house of correction, or gaol, for any time not exceeding fourteen days ; unless such offender shall sooner pay the said forfeiture to the said Justice. Provided, that nothing in the Act shall debar the Governor, or the Commanding Officers of the troops, or any persons employed under them, from making and firing off any such fireworks. Sec. 4. No person shall make any bonfire, within three hundred yards of any buildings, or stacks of hay, or corn, under the penalty of forty shillings ; to he recovered and ap- plied in the manner herein before mentioned. Perpetual. Note. There is an evident inconsistency, and indeed contradiction, in the terms of the foregoing Statute, with regard to enforcing the payment of the penalties. In the first place it is prescribed, that the forfeitures shall be levied '' by warrant of distress :" and directly after it is said, that if the offender " shall not pay the forfeiture to the Justice, immediately on con- viction, he shall be committed," &c. It is presumed, how- ever, that it is intended, that where the party convicted has any goods whereon a warrant of distress may be levied, such warrant shall be issued ; and that he is to be committed, only 196 FIREWORKS. Removing Fish not In- spected. In tho case of his having no goods, or where none can be round, on which to levy the warrant. In the case of a person under age, or of any other who has no goods whereon distress may be made, it seems clear that such offender upon failing to pay the penahy immediately on conviction, may at once be com- mitted by the warrant of the Justice. For directions as to the proceedings of the Justice under this Statute, and for the Forms which may readily be made to serve, see respectively. Titles, — Information ; Summons ; Conviction ; Distress ; Commitment. Improperly Branding, &c. Selling or Fa- porting Fish not Inspected. FISH. . • By the 9 G. 4, c. 20. 4 V. 33, A chief Inspector, and deputy Inspectors of all pickled fish shall be appointed, whose duty it shall be to inspect such 6sh, and to see that the same are assorted into different qualities, and that the casks irf which the same are put up, are of certain specified descriptions, and contain certain prescribed quantities of such fish ; and that the fish are good and well packed, and shall brand such casks ac- cording to the kind and qualities of the fish put up therein. Sec. 5. If any master of a vessel, or other person, shall put or receive on board any vessel, or other carriage of con- veyance, to transport from the Province, any pickled or whole fish, packed in casks, which are not inspected and branded in the manner prescribed by the Act, such offender shall on con- viction forfeit not less than thirty shillings, or more than forty shillings for every hundred pounds of such uninspected fish. Sec. 7. If the chief Inspector or any deputy, shall brand any cask, the contents of which he has not inspected, packed, salted, and coopered, according to the true intent of the Act ; or if he shall permit any other person to use his brands, in vi- olation or evasion thereof, such offender shall forfeit for every cask so branded, the sum of five pounds, and be liable to be removed from his office. Sec. 8. If any pickled or barrelled fish as aforesaid, shall be put on board any boat, vessel, or carriage of conveyance, with intent to sell or export the same, contrary to the provi- sions of the Act, it shall be lawful for any Justice for the county, upon information given him, to issue his warrant to the Sheriff or his deputy, or to any Constable of the town in which such boat, vessel, or carriage may be, requiring them respectively, to seize and secure said fish, and carry the same to the chief Inspector, or a deputy Inspector, whichever may be nearest ; FISH. 197 Dispoxiiig or Fixli iiiipro|)- erlv. and such Inspector, or deputy, shall open, inspect,, pack and brand the casks, and detain the same, until the expences of so doing, and all other charges arising from such seizure, shall be paid. And every person, when required, shall give his neces- sary aid to the officer having such warrant, on pain of forfeiting thirty shillings for his refusal. Temporary. By the 10 G. 4, c. 30. 4 V. 54, The first, third, and ninth Sections of the foregoing Act are repealed ; and all the before recited, as well as the other clauses thereof, and also the present Act, are extended and made to apply to all pickled fish, packed for sale, whether intended for exportation or con- sumption within the Province. Sec. 16. The sorting, weighing, inspecting and branding any cask of fish, as directed by this Act, shall be made and done, either by or in the immediate presence and sight of the chief Inspector, or of some one of the deputy Inspectors ; and unless in such immediate presence and sight of an Inspector, no other person shall be allowed to brand a cask, or sort or in- spect such fish, under the penalty of three pounds upon the Inspector suffering the same to be done. Sec. 19. Whosoever shall in or from any cask, inter- mix, lake out, or shift any inspected fish, packed or branded according to the directions of the Act, or put therein other fish, for sale or exportation, contrary to the true intent of the fore- going Act, and the present one ; and whosoever shall sell, or export, or ofl!er for sale or exportation, or cause to be sold in, or exported from the Province, any tainted or damaged fish, or any tierce, barrel, or half barrel of pickled fish, not inspect- ed and branded according to this Act ; and whosoever shall carry or convey from the vicinity of Halifax, or any of the outports or other places in the Province, into the inland or other parts thereof, any fish, packed in tierces, barrels, or half barrels, and intended for consumption, but not being branded as herein before directed ; whosoever being the mas- ter of any vessel, having on board any pickled fish for expor- tation, or being the shipper thereof, shall not produce to the principal officers of the Customs for the port, before the ship's departure therefrom, such certificates of the chief Inspector, or any deputy Inspector, as is by the foregoing Act directed, each and every of the parties so offending, shall pay a penalty of twenty shillings for every hundred weight of the fish in this sectiori referred to. Sec. 21. All pickled fish not inspected and branded ac- Forfeiture of cording to the Act, or tainted or damaged, being in tierces, barrels, or half barrels, and shipped for exportation, or offer- ed fqr sale in the Province, or found while being conveyed into Fish. Jf>8 F181I. Recovery of Feiiiilties and Forfeit urex. Mal\iii<^ Iii- fipeutiuii. Appointing ln.spectors, uud their pow- ers, duties, &c. tl)e inland ports ut* (lie Province ; and all fisli takun, sliified, or intermixed, from or in the cask after the inspection and branding thereof, shall be and is hereby declared forfeited. Sec. 22. All pecuniary penalties imposed by the fore- going Act, and the present one, shall be recovered before a Justice or Justices of the Peace, or any Court of Record, having jurisdiction to the amount of the penalty sued for ; and all pickled fish forfeited shall be seized by the chief Inspector, or any of his deputies, or the Collectors of Impost and Excise, and the officers of the Provincial Revenue, and unless the fish is tainted or damaged, shall be condemned and adjudged be- fore any one or more Justices of the Peace, or in any Cotirt having jurisd'ction, according to the value thereof ; and the proceeds of such forfeitures, and of the penalties aforesaid, bliall be applied, one half for the benefit of Common Schools in the town where the offence is conmiitted, and the other half to him who will sue for the same. Provided, that tainted and damaged tish shall, without being condenmed, be J )stroyed or sold for manure. Sec. 25. When any quantity of fish not exceeding twen- ty barrels, shall be retjuired to be inspected, the same shall be brought to the store, wharf, or place of business of the Inspector ; but if the quantity be greater, the Inspector, on payment or tender of his fees, for travel, at the rate of six- pence per mile, from the place of his residence and back, shall attend at the place where the fish may be, and inspect the same, within two days after being requested thereto, under the penalty of forfeiting to the owner thereof, three pounds for each day, that he shall after such space of two days, neg- lect such inspection. Temporary. *• Note. By the following Statute, the travelling fees to the Inspector are taken away ; but he is required to perform the duty prescribed in this clause, under the penalty mention- ed therein. .,„!- .v-S--,-... By the 7 W. 4, c. 44. Sess. 1837. The two foregoing Acts, except as altered and amended, are continued for one year ; and it is enacted, that in future no chief Inspector for any county or district shall be appointed ; but where it shall be judged necessary Inspectors shall be appointed in the Gen- eral Sessions, in the same manner as other township officers, and shall be licensed, and enter into bonds with sureties, for the performance of their duties, according to the directions and in the forms jirescHbed and set forth in the Act ; and shall be sworn before a Justice to the faitiiful discharge of their duties, FISH. iiiul slinll r^mnin in oOico until removed by the Ocneral Ses- sions : and the diities, powers, and nnthoriiies, responsibilities, and liabilities of such Inspectors, shall be the same us those of any chief Inspector, or deputy Inspector, under either of the before mentioned Acts. Provided, that the liability of any such In:4pector under this Act, shall only extend to the fish ac- tually inspected by him. Every such Inspector shall be liable to the same penalties and forfeitures for neglect of duty, as the chief Inspector or any deputy Inspector are made liable to, under either of the before mentioned Acts ; and shall receive for inspecting and branding every tierce of pickled fish, — eight pence ; for every barrel, — five pence ; and every half barrel — three pence ; and for every certificate of exportation, — one shilling. And every Inspector shall annually on or before the thirty-first day of December, make and certify to the Clerk of the Peace, returns on oath before a Justice, of all the pickled fisli inspected by him, and of his fees for the same ; abstracts of which returns shall yearly, on or before the twentieth day of January, be made by such Clerk of the Peace to the Secre- tary of the Province. No travelling fees shall be allowed to any such Inspector for the duty done by him under the 25th section of the aforesaid Act of the 10 G. 4. c. 30. Inspectors shall not inspect their own fish, and if any one of them does so, he shall, on selling, or exporting thereof, be liable to the same penalties and forfeitures as if the same had not been in- spected. The Clerk of the Peace shall be entitled to receive from every Inspector, the fee often shillings, in full for filling up and taking the license and bond required, and for all ser- vices connected therewith. Sec. 19. Every Inspector appointed under the Act, for every tierce, barrel, or half barrel, improperly branded, be- fore the same shall be packed, filled, and inspected, shall for- feit the sum of forty shillings, to be recovered before one Justice of the peace for the county, by any person who shall sue for the same, in the same manner as if the said penalty were a debt due, which shall be paid and applied, one half to the person who shall sue for the same, and the other half to be paid to the County Treasurer, to be expended on roads and bridges under the directions of the Sessions. Temporarv. From the directions contained in the two first of the tore- going Acts relative to the manner of recovering the several pen- alties mentioned therein, and of prosecuting in the case of fish liable to forfeiture, and particularly from a reference to the 22d clause of the foregoing Act of 10 G. 4. c. 30, it is to be inferred and understood, that where the penalty for an offence under either of the said two first mentioned Acts, or the value of fish Fee to Clerk of the Peuce. Improperly branding Cnsks. Directions. yi '!il 200 FISH. iinhio to foiToituro docs not exceed tiie sum of ,£J, the prosecu- tion must take ploce before one Justice, and whore the amount is above that sum but does not exceed ^£5, such prosecution must bo hnd before two Justices, and where the amount is abi;vo that simi, it must take place in some Court of Record. The instructions requisite with regard to prosecutions before a Jus< tice or Justices for the recovery of any such penalties, and the forms whicli may be made to serve, will be found under the re< spective Titles — Information ; Summons ; Conviction. As it is not provided by either of the said two first Statutes, that afior convictions before Justices any kind of final process is to be issued for enforcing payment of the penalties adjudged — it is conceived according to what has been already advanced under other titles relative to similar omissions, that Justices are not authorized upon such convictions under these Statutes — either to issue warrants of distress, or to commit to prison the parties convicted. In the case of fish forfeited, although no partieu* lar form of proceeding before Justices is pointed out by the Statutes, yet it seems but legal and proper that an information as in the case of prosecutions for penalties, sliould first be given in, and that the owner or person having the custody or posses- sion of the fish should be summoned in the usual form to an- swer to the complaint, and that a hearing of the whole case should take place before the Justice or Justices, previous to any final decision being made thereon. The Justices should make and keep minutes of their proceedings, and of their judg- ments in all such cases of forfeiture, but they are not required to draw up any particular form of judgment, as in the case of a conviction for a penalty. The forms of an Information and Summons in such prosecutions for fish forfeited, and also the form of an Information under the first of the foregoing Acts, for endeavouring to remove for sale or exportation any fish not inspected, with the Warrant for seizing the same, will all be found at the end of this title. As the fine of forty shillings im- posed in the nineteenth clause of the last mentioned Act, is to be recovered as a debt due, the requisite directions and forms in such case, will be found under the Title, — Summary Trials. Smoked Her- By the 3 W. 4, c. 53. 4 V. 234, Red or smoked her- riiigH. rings for exportation, shall only be put up in boxes of certain described dimensions, and Inspectors of such herrings shall be appointed in the Sessions, in the same manner as other town ofiicers, and vacancies in the office in like manner be filled up by two Justices ; and on the refusal of such Inspectors to serve, or their being guilty of any neglect or misbehaviour io their of- fice, they shall be punished in the like manner as other town ofiicers in the like case, under the Act 5 G. 3, c. 1. a common FISH. 201 [Note. Thi» punishment is a penally of forty shillings, to be recovered hcforc two Justices, on tlie information of any person who will sue ior ilie laroOi and to be levied by war- rant of distress.] :^.^0.^^ U :,, . r » See. a. If any smoked herrings shall be shipped for exportation, before t^e same have been inspected, approved, and marked by the Iq» tector ; or if any such herrings shall bo sold and delivered in any boxes, before the same shall have been so inspected, approved, and marked, the same shall, on information and due proof thereof before any one Justice of the Peace, be seized and sold by warrant under the hand and seal of the said Justice, and the nett proceeds of such sale shall be paid to the Overseers of the poor, for the use of the township where the seizure was mnde. Sec. 4. If the commander of any vessel shall receive on board of the same, any smoked herrings, to be carried without the township wherein the same were smoked or preserved, be- fore the same shall have been marked by nn Inspector, as here- inafter directed, such commander shall forfeit aud pay the va- lue of such herrings not marked as aforesaid, to the amount of fifty poimds, according to the price of merchantable herrings ; such value, if not exceeding three pounds, to bo sued for be- fore any one Justice ; and if above that sum, before any Court of Record ; the one half of the sum recovered in each case, to be for the use of His Majesty, and the other half for the bene- fit of the person who will sue for the same. Sec. 5. The Inspector shall mark every box of herrings which he has inspected and approved, with a brand containing the initial letter of his christian name, and his surname in full, and also the word '* Inspector," and the name of the town at full length, for which he is Inspector ; and shall also mark the boxes witli the quality of the herrings, whicii if of the fattest, best, and most superior fish, sitall be marked No. 1, and of the poorer, thinner, small aud inferior fish. No. 2. And if any person shall counterfeit, or be concerned in counterfeiting, the said brand or mark of the Inspector, or shall, without the licence of the Inspector, make use of his brand in marking any box, or shall by shifting, put otlier fish into any box previously marked by such Inspector, in order to evade the intent and meaning of the Act, such person shall be prosecuted as and for a common cheat, and be punished as such, by fine or impri- sonment, at the discretion of the Court before whom he shall be convicted. ,?^« i<)ffcRHv"'> t*^^ < '<> **' 'H Sec. 6. Inspectors shall not mark any boxes but such aa shall measure on the inside eighteen inches in length, twelve 26 202 Hi' \ FISH. inches in breadth, and six inches in depth ; or eighteen inches in length, nine inches in breadth, and eight inches in depth ; nor unless the same shall be sufficiently seasoned, strong, and well made, the covers to be well planed or shaved, and the boxes close packed with good red or smoked herrings, of one size, and previously marked with the initial of the christian, and the surname in full, of the owner or packer of the said herrings. ' Sec. 7. Inspectors shall receive from the owner of the herrings, one penny halfpenny for every box of the same which they shall inspect and mark ; and the Inspectors shall open and sufficiently reclose the boxes ; and when it shall be found ne- cessary to cull and repack, they shall receive for doing the same, two pence halfpenny for each box, making in the whole, for inspecting, opening, culling, repacking, reclosing, and marking one box, the sum of four pence. Sec. 8. Inspectors shall publicly destroy all herrings which they shall cull and reject as not merchantable. Act for 5 Years. t . Directions with regard to the recovery of the penalties im- posed by the last-mentioned Statute, to be recovered before Justices, and also Forms which can readily be filled up so as to serve, will be found under the respective Titles, — Informa- tion ; Summons ; Conviction ; Distress. The Form ol an Information, for shipping for exportation, or for selling smoked herrings before inspection, and the Warrant for seizing and selling the same, will be found at the end of this Title. Information on Stat. 9, G. 4, c. 20, § 8, For putting Casks of Pickled Pish^ not Inspected and Branded^ on board of a Vessel, with intent to sell or export the same. County of ) The information and complaint of A. I., of ' ^ the township of in the said county, yeoman, made before me, A. M., Esquire, one of His Majesty's Jus- tices of the Peace for the said county, on the — day of , in the year of our Lord one thousand eight hundred and , Who says, that several casks of pickled fish, to the num- ber of — casks thereof, or upwards, which have not been in- spected and branded by any Inspector of pickled fish, pursuant to law, have lately been shipped, and now are on board of a certain vessel called the , at in the said county, with the intent to sell or export the said casks of fish, contrary to the form of the Statute in that case made and provided. A. I. ' Before me, A. M., J. P. . minwi .> t FISH. Warrant thereon. 20S County of > To A. C, one of the Constables of ihe ^township of in the said county. - ;•.:... [Seal.] Whereas information and complaint have been made before me, A. M., Esquire, one of His Majesty's Justices of the Peace in and for the said county, by A. I., of the township of in the said county, yeoman, that several casks of pickled fish, to the number of — casks tliereof, or upwards, which have not been inspected and branded by any Inspector of pickled fish, pursuant to law, have lately been shipped, and now are on board of a certain vessel called the , at in the said county, with the intent to sell or export the same, contrary to the form of the Statute in such case made and pro- vided ; These are therefore to require and command you, that with necessary and proper assistants, you do enter in the day lime, on board of the said vessel called the , wherever sh6 may be wilhin the said township of , and that you there seize and take into your custody and possession all barrels and other casks of pickled fish which have not been inspected and branded by some Inspector of pickled fish, which upon due search made you shall find on board of the said vessel ; and that you do forthwith convey and deliver the same to the Inspector of pickled fish in the said county, who shall be nearest to the place where the said vessel may be, in order that such pro- ceedings may take place concerning the said fish, as are by law directed. Herein fail not, and make due return to me of your doings hereon. Given under my hand and seal, at in the said county, the — day of , in the year of our Lord one thousand eight hundred and ■ . A. M., J. P. If the fish are in a boat, or other carriage of conveyance, the Information and Warrant must be filled up accordingly. It will be observed, that by a clause in the Statute, the Inspector shall detain the fish until all the charges arising from the seizure of it shall be paid. Information of Inspector of Pickled Fish, of such Fish, not Inspected, being offered for Sale, On 10 G. 4, c. 30. County of) The information and complaint of A. I., of ) in the said county, an Inspector of pickled fish for the township of in the said county, made before me, A. M., Esquire, one of His Majesty's Justices of the ^04> FISH. Peace in and for the said county, on the — day of , In the year of our Lord one thousand eight hundred and , Who says, that on the — day of , in the year afore- said, at in the counry aforesaid, A. 0., of -^ — in the county aforesaid, trader, did offer for sale and sell, . barrels of pickled mackerel, the same not being inspected and branded by any Inspector of pickled fish, contrary to the Statute in such case made and provided ; whereby the said barrels of mackerel are forfeited, pursuant to the said Statute ; wherefore the said A. I. prayeth the judgment of me the said Justice, that the said barrels of mackerel may be condemned as forfeited, and that the proceeds of the same may be distributed and applied as the law directs ; and that the said A. O. may be summoned to appear before me the said Justice, to answer the premises. Exhibited before me, M !. 'J i. A. M., J. P. ■.ft »'('.'j. h.^.,^ Summons thereupon. County of '-■■.') {y To A. C. one of the Constables of the town- ship of , in the said county. . ^ [Seal.] Whereas information and complaint have been made be- fore me A. M. Esquire, one of His Majesty's Justices of the Peace in and for the said county by A. I. of———, in the coun- ty aforesaid, an Inspector of pickled fish, for the township of , in the said county, that A. 0. of , in the county aforesaid, trader, on the — day of , in the year of our ■ at , in the said — barrels of pickled and branded by any Lord one thousand eight hundred and — county, did offer for sale, and did sell - mackerel, the same not being inspected Inspector of pickled fish, contrary to the Statute in such case made and provided, whereby the said mackerel are forfeited ; These are therefore to require you, forthwith to Summon the said A. O., to appear before me, at , in the said county, on the — day of , at the hour of — in the forenoon of tiie same day, then and thereto answer to the said information and complaint, and that such further proceedings may take place therein as are by law directed, and be you then thereto certi- fy what you shall have done in the premises. Herein fail you not. Given under my hand and seal, the — day of , in the year aforesaid. H>.+,t,,-w j. A.M., J. P. If the Information is, for shipping for exportation, casks .of fish not inspected and branded, or for conveying the same PISK. 205 iota die inland parts of the province, or for taking, shifting, or jnternfxing, from or in the casks, any fish after the inspection and branding thereof, or for any other offence under any of the foregoing Statutes, whereby there is a forfeiture of the fish, the Information and Summons must, in each case be filled up accordtngly, sttting the offence, as nearly as may be, in the votds of the Statute. InfsmuUion on the Stat. 3 W. 4, e. 53, Far Shipping Jor Exportation, Red or Smoked Herrings, which have not been Inspected and Branded. Coontj cf } Thb Information and complaint of A. I. of ) , in the said county, yeoman, made before me A. M. Esquire, one of His Majesty's Justices of the Peace, in aad for the said county, on the — day of , in the year of our Lord one thousand eight hundred and . Who says that several boxes of red or smoked herrings, to the oumber of-— boxes thereof or upwards, which have not been inspected and branded by any Inspector of such herrings, pur- suant to> the law in such case provided, Iiave lately been ship- ped for exportation ; on board of a certain vessel called the , at , in the said county, and are now there on board of the said vessel for the said purpose of exportation, contrary to the Statute in that case made and provided, whereby the said boxes of herrings are liable to be seized and sold pursuant to the said Statute. Exhibited before me, 'i , j. ;i ,, ; , , A. Mt, J. It. 'i.^.'ii. t' ■' .,j..i, --..■--.:, ' ,.) Warrant therettpon. County of ) To A. C. one of the Constables of the town- ) ship of , in the said county. [Seal.] ■ Whereas information and complaint have been made be- fore me A. M. Esquire, one of His Majesty's Justices of the peace in and for the said county, by A. I. of , in the said eoumy yeoman, Uiat several boxes of red, or smoked herrings, to the number of boxes thereof, or upwards, which have not been inspected and branded by any Inspector of such her- rings, pursuant to the law in such case provided, have lately been shipped for exportation, on board of a certain vessel called the , at — — , in the said county, and are now ation, casks ■ tfaer»on board of the said vessel for the. said purpose of expor- 2m FISH. tntion, coiitrnry to llic Statute in that case made and provided ; whereby the said boxes of herrings are liable to be seized ami sold pursuant to the said Statute ; These are therefore to re- (|uire and command you, that with necessary and proper assist- ants, you do enter in the day time on board of the said vessel called the wherever she may be within the said township of , and that you there seize and take into your custody and possession, all red or smoked herrings, in boxes or other- wise, which have not been inspected and branded by some Inspector of such herrings, which upon due search made you shall find on board of the said vessel ; and that within six days next after such seizure you do sell all such herrings at public auction, giving due notice of such sale, and you are hereby further required to pay over the nett proceeds of such sale to the overseers of the poor of the said township of , for the use of the poor of the said township, the reasonable charges of taking, keeping, and selling the said herrings being first de- ducted ; and you are hereby commanded to certify to me the said Justice, what you shall have done by virtue of this Warrant. Given under my hand and seal, at , in the said county, the — day of , in the year of our Lord one thousand eight hundred and . t- ; t >. - ■f ■ ■■_.• ' ' '■ A. M., J. P. If the offence is for selling and delivering such herrings before inspection and marking, tlie Information and Warrant must be filled up accordingly, stating to what person or per- sons they were so sold and delivered ; and if the fish are in casks or other packages, or in bulk, the fact must be so stated in the Information and Warrant. i*l ..* i >■ i 1 . .1. FISHERIES. ;'. -\,! yn Bv the 10 G. 3, c. 10. 1 V. 162, If any fisherman in any vessel, bark, or boat, shall throw into the sea, within three leagues of any of the shores of this Province, any heads, bones, or other offal of the fish they may take, the master of such fish- ing vessel, bark or boat, shall upon due conviction thereof by the oath of one credible witness, before any one Justice of the Peace, or by view of any such Justice, pay for each and every such offence, the sum of five pounds, to be levied by distress and sale of the offender's goods and chattels, together with the charges of such distress and sale, rendering the overplus, (if any be) to Uie owner tliereof ; one half of every such penalty FISHERIES. 207 to be to the person who sliall inform and sue for the same, and the other half to be paid into His Majesty's Treasury for the use of the Province. Provided, that fishermen in boats, who split and dress their fish on shore, may throw the oflal of their llsh into what is called the land wash. Perpetual By the 15 and 16 G. 3, c. 10. 1 V. 199, " General or Special Sessions may, annually, make regulations for river fisheries, and impose a penalty for breach thereof, not exceed- ing ten pounds ; and when such penalty shall not exceed twenty shillings, the same to be recovered before one Justice, and when above that sum, and not exceeding three pounds, before two Justices. Said Sessions may also appoint overseers of such fisheries, who shall remove any net or other incumbrance found in the rivers contrary to such regulations ; and if no per- son shall appear to claim the same within ten days after public notice thereof given, such net or seine, with the fish found therein, shall be forfeited and sold to satisfy the said penalties ; and the overplus, if any, shall be paid to the Overseers of the poor for the use of the poor of the township where the offence was committed. Nothing in the Act shall extend to those riv- ers where fish do not resort in seasons for spawning." This Act is made perpetual by 18 G. 3, c. 4. 1 V. 210. By the 26 G. 3, c. 7. 1 V. 250, The Justices in Ses- sions may from time to time make regulations as to the manner of placing nets and seines in all such havens, rivers, creeks and harbours as they shall judge necessary, and under such penalty as is expressed in the Act of the 3 G. 3, c. 2. IV. 89. By this last mentioned Act, persons transgressing the regulations made under the same, shall forfeit ten pounds, one half thereof to the informer, and the other half to the poor of the township where the offence was committed, to be recovered in any Court of Record. The foregoing Act of the 26 G. 3, c. 7, is made perpetual by the 48 G. 3, c. 18. 2 V. 21. By the 10 G. 4, c. 40. 4 V. 66, Persons who shall place any hedge, weir, fish-garth, net, seine, eel-pot, or other in- cumbrance, in or across any river, brook, stream, or other place where eels resort, between the first day of May, and the twentieth day of June, shall for each such incumbrance, on due conviction thereof before any two Justices, on the oath of one credible witness or more, forfeit and pay a sum not exceeding five pounds nor less than forty shillings, with costs of suit ; one half thereof to the informer, and the other half to the poor of the township where the offence was committed ; and it shall be lawful for any overseer of the river fishery, or constable, or other person within the said limited time, to seize and remove any such incumbrance, and the same shall be thereupon 'i-i ' I 208 FISHERIES. sold by an order from any two Justices, wlio are autho- rised to grant the same, upon the oath of the person who made the seizure ; and the nett amount of such sale, after deducting all cliarges, shall be equally divided between the person making such seizure, and the poor of the township where such seizure wa:< made. All persons may require the aid of a constable, or the overseer of the river fishery, for the purpose of removing any such incumbrances, who on refusal to afford such aid, on being required, may be prosecuted at the next General Ses- sions by information or indictment, and if convicted, shall be fined as in other cases of neglect of duty. The conviction of offenders shall be in the Form foJbwing, to wit : — County of) Be it Remembered, that on the — day of — to wit. ) , in the year of our Lord , A. B. was convicted before us, two of His Majesty's Justices of the peace for the county aforesaid, of setting one [or more as the case may be] hedge, weir, fish-garth, net, seine, eel pot, or other incumbrance, on this — day of , in the year afore- said, contrary to the Act in that case made and provided. Given under our hands and seals the day and year first afore- said " Sec. 4. Nothing in the Act shall extend to, or alter the rights of private property in the river fisheries, or to prevent any person from setting nets within the times limited by this Act, for taking salmon, bass, shad, or gaspereau according to such regulations as are now provided for by law. Sec. 5. The prosecutor or defendant in any prosecution under the Act, may appeal from the judgment of the Justices, or of the Sessions, to the Supreme Court at its next sitting within the county, and ihe appellant shall be entitled to a new trial, which such Court shall grant in a summary manner, and the party obtaining judgment shall be allowed such costs as to the Cpurt shall seem reasonable. *Snnuol* Directions as to prosecutions before Justices, for the re- covery of the penalties imposed by the foregoing Statutes, and also the Forms required, will be found respectively under the Titles, — Information ; Summons ; Conviction ; Distress. By the 5 W. 4, c. 40. 4 V. 426, All coasting vessels under sixty tons burthen, owned in this Province, and coasting along the shores between Yarmouth and Canso, shall have a piece of plank or iron affixed and well secured to the bottom of the keel, and level therewith, which shall extend aft at least six I'ii PISHEUIES. inches beyond ihe aperture left by the stern post and rudder. And the owner or master of any such coasting vessel, not so furnished, running foul of any net, set off any harbour, bay, or river, upon the said coast, shall be liable to a penalty not ex- ceeding five pounds, to be recovered by the person sustaining the dftmage, before any two Justices of the county wherein the damage was done. Provided, that this Act shall not be con- strued to prevent the person injured seeking a remedy by an action at common law. *^nnual. 209 Note. It will be observed, that no final process, or remedy is provided or directed by this Statute, whereby the penalty may be levied, or the payment thereof otherwise en- forced. FLOUR. M'-rtv, By the 3 G. 3, c. 3. 1 V. 87, All flour, biscuit or ship Flour and bread, shall be sold, bartered, or exchanged, by weight only ; foTd"b* *** ''* and every person who shall sell, barter, or exchange, any of Weight, the same, by the cask or in any other manner than by weight, shall forfeit the whole quantity thereof which has been sold in any other way ; and on conviction of such offence shall further forfeit the sum of twenty shillings for every hundred weight, and so in proportion for a greater or less quantity of such flour, biscuit, or ship bread, so sold, bartered, or exchanged ; to be recovered, together with the costs of prosecution, on the oath of one credible witiiess, before any two Justices of the Peace for the county where the offence was committed. All forfeitures and penalties incurred, and arising by the Act, shall be applied and disposed of in manner following, — All flour, bis- cuit, or ship bread so forfeited, shall be applied to the use of the poor of the town or place where the offence v/as committed ; and all other penalties shall be for the use of the person who shall inform and sue for the same. Prosecutions under the Act shall be commenced within ten days after the offence com- mitted. Perpetual. - mimi nf^^-iw^* ^w^'^-^' ■ ^ By the 29 G. 3, c, 10. 1 V. 273, All meal or flour made ah Meal and of Indian corn, buckwheat, rye or any other species of grr'.i. Flour to be in casks or otherwise, shall ^e sold, bartered, or exchanged by ^^. 'jy weight only, and in no other way or manner ^'.hatsoever ; and all persons herein offending, shall be liable to the penalties and forfeitures mentioned in the foregoing Act of the 3 G. 3, c. 3. Petpetml. • 27 ' M 1 I. 210 FLOUR. liiHpcction of riuiir & Mcul. |i, ! ;• \ t By the 3W.4, c. 15. 4V. 200, The Governor may appoint at every port of entry, an Inspector and Weigher of flour and meal, who may appoint deputies. All wheat and rye flour, corn meal, and buckwheat meal, imported in barrels and half barrels, shall immediately upon being landed, and before being sold or offered for sale, or re-shipped, or taken out bf the warehouse for consumption in this Province, or sent from the place where the same was landed, be inspected and weighed by the Inspector for such port or his deputy ; and each barrel shall contain not less than one hundred and ninety six pounds, net weight, and each half barrel not less than ninety eight pounds, net weight of flour or meal. Inspectors shall see that they con- tain the said quantities respectively ; and shall brand every bar- rel and half barrel tliereof containing such quantities, with the initials of his christian and surname, and with the letter S for Superfine, F for B'ine, and M for Middlings, as the case may be ; and BAD for Bad, if the same shall not be good, sweet and wholesome. And every barrel, and half barrel of flour or moal, of any of the said descriptions, imported, which after landing shall be sold or offered for sale, removed, or re-shipped for consumption in the Province, without having been previ- ously so inspected, weighed and marked as aforesaid ; or which shall have been re-packed or found deficient in the weight, or quality denoted by such marks, shall be liable to seizure by any Inspector or deputy, or any officer of the Customs, or of Ex- cise, or seizing officer, and may, if not of higher value than five pounds, be declared forfeited to His Majesty, by and be- fore any two Justices of the county ; or if of higher value, in any Court of Record ; and the person who shall have commit- ted any such offence, shall forfeit the sum of ten shillings for every such barrel, and five shillings for every such half barrel thereof, and sixpence for every pound weight so deficient, to be recovered as hereinafter provided ; one half of the nett proceeds of such seizures and penalties to be paid to the per- son who shall seize, or inform, or sue for the same, and the re- sidue to the Commissioners or Overseers of the poor, for the use of the poor of the place where the offence was committed ; and such offender shall be liable to, and shall pay and make good to the buyer, or person from whom tlie same may have been so seized, or in whose possession the same may have been found, all monies, loss, or damage, by him or them paid, incurred, or sustained, in consequence of such seizure ; to be recovered either by action of debt, or for so much money had and received by such seller to the use of such buyer, or person sustaining such loss or damage. Inspectors and their deputies shall be allowed for inspecting, weighing, and marking each FLOUR. 211 barrel, — three pence ; and each half barrel, — one penny half- penny ; to be paid by the owner, seller, importer, or consignee. Sec. G. Inspectors or deputies shall forfeit forty shil- lings for every barrel, and twenty shillings for every half bar- rel of flour or meal which they shall inspect, weigh, brand, or mark, in any manner or way contrary to the Act ; and for every other offence against the Act, they shall forfeit twenty pounds ; such forfeitures and penalties to be recovered and levied as hereinafter directed, and one half of the proceeds thereof to be paid to the person who shall inform or prosecute for the same, and the other half to the Commissioners or Overseers of the poor of the place where the offence was committed. Sec. 7. All forfeitures, penalties, and sums of money, imposed, or declared and made payable by the Act, shall be recovered w'lh costs of suit in the name of the person suing for the same, in like manner as debts ; either in any Court of Record, or before any one or more of the Justices of the Peace, according to the amount of such penalties, forfeitures, or sums, with reference to the jurisdiction of such Courts and Justices, in cases of debt ; and shall be levied in like manner as in cases of debt, and be applied as herein before provided. Provided, that all flour and meal, imported and deposited within any bonded warehouse, and therefrom directly shipped for exportation out of the Province, shall be altogether exempt and free from the regulations of the Act. Sec. 9. All flour and meal, manufactured within the Pro- vince, and brought to market, and oflered or exposed for sale, in barrels, liplf barrels, or casks of any kind, shall im- mediately on being so brought to market, and before being offered for sale, be weighed and inspected ; and the casks con- taining the same be marked by the persons, and in the manner, and under the penalties herein before mentioned. And such flour and meal shall be subject to all the clauses, regulations, and provisions herein before contained. Inspectors may affix a tare for the barrels and half barrels, according to the best of their judgment ; but if the same is disputed by the buyer or seller, the cask shall be unpacked, and the expense attending the un- packing and repacking, shall be paid by the party complaining. The Act shall not go into operation in any county or district, except in the district of Halifax, and county of Cape Breton, without the special order of the Commander-in-chief, to be made upon the application of the Court of General Sessions for any such county or district. Annual. By the 4 W. 4, c. 15. 4 V. 269, Every barrel of corn meal, not kiln dried, shall contain not less than one hundred 212 FLOUR. Directions. and sixty-eight pounds, net weight, and shall be so branded. And on the importation of any flour or meal, intended for ex- portation, the owner, or importer, may either immediately tranship, and export ; or if found necessary may store the same until such reshipment, without such flour or meal being liable to the operation of regulations of the foregoing Act. Provided, that notice of such re-shipment be given to tiio Inspector. Annual. By the G W. 4, c. 4, Sess. 1836. If the owner or im- porter of any flour, or meal, imported for exportation, and stored in any private warehouse for such purpose, shall re-ship the same without notice to the Inspector, as required by the proviso to the last clause of the before recited Act of 4 W. 4, c. 15, he shall forfeit and pay for every barrel, or half barrel of flour or meal so re-shipped without such notice, the sum of two shillings and sixpence, to be recovered and applied in manner as any forfeitures and sums of money are made reco- verable, and are to be applied, under the sixth clause of tlie before recited Act 3 W. 4, c. 15. Sec. 5. When any barrel or half barrel of flour or meal, weighed and branded, shall be emptied, before the same shall be refilled, the brands thereon made by the Inspector and weigher, or his deputy, shall be erased ; and any person refill- ing, or procuring to be refilled, any such barrel, or half barrel, when emptied, without erasing the brands, shall forfeit and pay for every such barrel or half barrel, so refilled, a penalty, of two shillings and sixpence, to be recovered and applied as aforesaid. Duration not limited. The proceedings under the two Acts first recited under this Title, which regard the selling of flour and biscuit by weight only, will be the same until conviction, as in ordinary cases of recovering penalties before Justices, and for which, with the Forms required, see Titles, — Information ; Summons ; Con- viction. It would seem that neither a Warrant of distress against the goods of the oflender, nor any process against his body, can be issued upon conviction under either of the said first mentioned Acts, as no final process of any kind, is thereby directed or authorized. It will be observed, that by the first of the foregoing Acts, concerning the inspection of flour and meal, it is directed that all forfeitures, penalties, and sums of money under the same, are to be recovered as debts of the like amount, before any Court, or Justice or Justices having jurisdiction over any such amount. It follows, therefore, that if any such forfeitures, penalties or sums, do not exceed £3, the suit may be before one Justice ; and if above that sum, but not exceeding J£5, be- 'T^v^ f FLOUR 213 fore two Justices ; wbicii sums may be sued for, recovered, and levied in the same manner as in tiie case of debts between private parties ; for directions as to the proceedings in which cases, with the requisite forms, see Title, — Summary Trials. The penalties imposed by the last mentioned Act, are also di- rected to be sued for, recovered, and applied in the same manner. FORCIBLE ENTRY & DETAINER. By the 32 G. 2. c. 3. 1 V. 6. Upon complaint on oath made to any Justice of the Peace, of any wrongful and forcible entry made into any houses, lands, tenements, or other pos- sessions, lying within any town or place where such Justice resides, or of any wrongful detainer, or withholding with force, after possession demanded, of any houses, lands, tenements, or other possessions, every such Justice shall by Warrant un- der his hand and seal, directed to the Constables of such town, cause such offender or offenders to be arrested and detained in custody, until he, she, or they, find sufficient securities for his, her, or their personal appearance at the next General Sessions of the Peace, there to answer such complaint ; and for want of such security lo be committed to prison. The Sessions shall enquire of such forcible entry and detainer, and if the same is on trial found by a Jury, the party grieved shall again be put into possession of such lands, &c. and may by action of trespass recover treble damages and costs of suit. The Act shall not extend unto any person who has had the oc- cupation, or been in quiet possession of any lands, tenements, or possessions for three whole years, together, next before, and his or her estate or estates, therein not ended or determined. Perpetual. A forcible entry or detainer is committed, by violently What m a taking, or keeping possession of lands, or tenements, with Forcible Entry r J J -.1- / .u *i •» f 1 "id Detainer. menaces, force, and arms, and without the authority ot law. If one who pretends a title to lands, barely go over them, either with or without a great number of attendants, armed, or unarmed, in his way to the church or market, or for such like purpose, without doing any act which either expressly or im- pliedly amounts to a claim of such lands, he cannot be said to make an entry thereinto. But if a person enter into another man's house, or ground, either with apparent violence offered to the person of any other, or furnished with weapons or com- pany which may offer feaV) though it be but to cut or take ■ &■■■ '' .(1 tmh I; h i 214 FORCIBLE ENTRY AND DETAINER. away another man's corn, grass, or other goods, or to fell or crop wood, or to do any other hke trespass, and though he do not put the porty out of his possession, yet it seems to he n forcihic entry. But if the entry were peaceable, and after such entry made, thoy cut or take away any other man's corn, grass, wood, or oilier goods, without apparent violence or force, thougli such acts are counted a disseizin with force, yet they arc not punishable as forcihic entries. But if ho enter peace- ably, and there shall with force and violence, cut or take away any corn, grass, or wood ; or shall forcibly, or wrongfully carry away any other goods there being, this seems to bo a forcible entry. And in general, it seems clear, that to denominate the entry forcible, it ought to be accompanied with some circum- stances of actual violence or terror ; and therefore, that an entry which hath no other force than such as is implied by the law in every trespass whatsoever, does not amount to this offence of a forcible entry. As to the matter of violence, it seems to be agreed, that an entry may be forcible, not only in respect of a violence actually done to the person of a man, as by beating him, if ho refuse to relinquish his pos^session, but also in re- spect of any other kind of violence in the manner of the entry, as by breaking open the doors of a house, whether any )> ison be in it or not, especially if it be a dwelling house ; and per- haps also by an act of outrage after the entry, as by carrying away the parties' goods ; but it seems that an entry is not for- cible by the bare drawing up a latch, or pulling back the bolt of a door, there being no appearance therein of being done by strong hand, or multitude of people ; and it hath been holdcn that an entry into a house through a window, or by opening a door with a key, is not forcible. In respect of the circum- stances of terror, it is to be observed, that whenever a man, either by his behaviour, or speech at the time of his entry, gives those who are in possession, just cause to fear that lie will do them some bodily hurt, if they will not give way to him, his entry is esteemed forcible, whether he cause such a terror by carrying with him such an unusual number of attend- ants, or by arming himself in such a manner, as plainly intimates such a design, or by actually threatening to kill, maim, or bent, those who shall continue in possession, or by giving out such speeches as plainly imply a purpose of using force ; as if one say, that he will keep his possession in spite of all men, or the like. But it seems that no entry shall be ,udged forcible, from any threatening to spoil another's goods, or to destroy his cattle, or to do him any other such like damage which is not personal. However, it is clear that it may be connnitted by a single per- son, as vt^ell as by twenty. But nevertheless, all those who ac- FORCIBLE ENTRY AND DETAINER. company a man when ho makos aforcihlccntry, shall bo judged 10 enter with him, whether they actually come upon the lands or not. It seems certain that the same circumstances of vio- lence or terror which will make an entry forcihlo, will make a detainer forcible also. And a detainer may be forcible, whe- ther the entry wore forcible or not. 2 Burns. 419-21. . i Information of Forcible Entry and jPe/ainer, on 32 G, 2, c. 3, 1 r. G. ' , . County of The information and complaint of A. I. of -, in the said county of yeoman, made nnoalh before mo A. M. Esquire, one of His Majesty's Justices of ilie peace in and for the said county, the — day of , in the year of our Lord one thousand eight hundred and , Who says, that on the — day of , in the year afore- said, he the said complainant, was lawfully and peaceably possessed and in the occupation of a certain dwelling house of liim the said complainant, with tlie appurtenances situate and being at in the said county, and that while he the com- plainant was so lawfully and peaceably possessed, and in the occupation thereof, A. O. and B. 0., of , in the county aforesaid, yeomen, on the said — day of , in the year aforesaid, did unlawfully and forcibly, and with a strong hand, enter into the said dwelling house, and with force and violence, did unlawfully expel and put out him the said complainant from his said possession, and occupation of his said dwelling house and the appurtenances, and with force and violence, and a strong hand, do still unlawfully detain and keep the possession of the said dwelling house and appurtenances, and prevent him the said complainant from re-entering into the occupation and possession thereof, contrary to the Statute in such case made and provided. And hereupon the said A. I. prayeth a Warrant of me the said Justice, to issue against the said A. 0. and B. 0. to compel them to answer unto the said complaint. i^.u Before me, ,mu u«ij i; A. I. A. M., J. P. 215 ■ ' '' '• i. I in Warrant thereupon. '.■Uf- County of > To A. C, one of the Constables of the J township of , in the said county, and to each and every of the other Constables of the said township. Whereas A. I., of in the said county of , yeoman, hath this day made information and complaint, upon i IIHii ] w II I 216 FORCIBLE ENTRY AND DETAINER. oath, before me, A. M., Esquire, one of His Majesty's Jus- tices of tile Peace in and for the said county, that on the — day of , in the year of our Lord one thousand eight hun- dred and , he tho said A. I. was lawfully and peaceably possessed, and in the occupation of a certain dwelling house of him the said A. I., with the appurtenances, situate and being at , in the county aforesaid, and that while he the said A. I. was so lawfully and peaceably possessed, and in the occu- pation thereof, A. O. and B. 0., of in the county afore- said, yeomen, on the said — day of , in the year afore- said, did unlawfully, and forcibly, and with a strong hand, en- ter into the said dwelling house, and with force and violence, did unlawfully expel and put out him, the said A. I., from his said possession and occupation of his said dwelling house, and the appurtenances, and with force and violence, and a strong hand, do still unlawfully detain and keep the possession of the said dwelling house and appurtenances, and prevent him the said A. I. from re-entering into the occupation and possession thereof, contrary to the Statute in such case made and provided ; These are therefore to command you, and every of you, in His Majesty's name, forthwith to apprehend and bring before me, the bodies of the said A. 0. and B. 0., io answer unto the said complaint, and to be further dealt with according to law. Herein fail you not. Given under my hand and seal at aforesaid, the — day of , in the year aforesaid. - ■ ■'' ■ -' ■- '■• ' ■■ , A. M., J. P. Directions. When the parties are brought before the Justice upon the foregoing Warrant, he must require of them to find a surety or sureties to be bound with them, and if they procure the same, the Justice must bind them all in recognizance, in the usual form, for the appearance of the parties charged, at the next General Sessions, to answer to the complaint. The parties charged may be bound in jC40 each, and the sureties in £20 each, or in other lesser or greater sums, at the discre- tion of the Justice, according to the nature and circumstances of the case. He should also bind over the complainant to ap- pear at the Sessions and prosecute, and must also make minutes or memorandums of such recognizances, in the manner, and similar to the forms directed and given in the case of assault and battery, and must send such memorandums into the office ol the Clerk of the Peace, before or at the next meeting of the General Sessions. If the parties arrested, refuse, or fail to find such sureties, and to become so bound, the Justice must send them to gaol under a written commitment. The Forms of Recognizances, — of the memorandums there- FORCIBLE ENTRY AND DETAINER. 217 of, and of a Commitment, which may all be readily filled up so as to answer, will be found under the Titles, — Assault and Battery, and Commitment. For directions and proceedings, in the case of tenants overholding the possession of premises after the expiration of their terms, see Title, — ^Landlord and Tenant. rffinji Me- . I i '>'..\n4 FORGEIvY. f''".i.Tf-'^'' M-i^ii*'^ Forgery is an offence at common law, and in many cases an offence also by Statute. Forgery at the common law is an offence, in falsely and fraudulently making or altering any manner of record, or any other authentic matter of a public nature, as a parish register, or any deed, will, privy seal, and the like. Also, the counterfeiting of any writing, with a frau- dulent intent, whereby anotlier may be pi'ejudiced, (it is imma- terial whether the party be actually injured or not,) is a forgery at common law. 2 Burn's^ 444. By a Resolution of the Governor and Council, contained yov in the first Volume of the Provincial Acts, page 5, and refer- niormlsof red to and confirmed by the Statute of the 32 G. 2, c. 2, § 1 1 . D««^d^' &^^- 1 V. 3, It is declared, that if any person or persons shall forge or counterfeit, any entry of the acknowledgment of any such memorial, certificate, or endorsement, as is therein direct- ed to be made of any deed, conveyance, or mortgage, and shall be thereof lawfully convicted, such person or persons shall incur and be liable to such pains and penalties, as in and by an Act of Parliament made in the fifth year of Queen Eliza- beth, (entitled an Act against Forgers of False Deeds and Writings,) are imposed upon persons, for forging and publishing of all false deeds, charters, or writings sealed, court rolls or wills, whereby the freehold or inheritance of any person or "' persons, of, in, or unto any lands, tenements, or hereditaments, shall or may be molested, troubled, or charged. And by the 32 G. 2, c. 20, § 8. 1 V. 30, If any person Deeds and shall forge, or counterfeit, or procure to be forged or counter- Wills, feited, or willingly assist in the forging or counterfeiting, any deed, or writing sealed, or last will or testament ; or shall pub- lish, or shew forth in evidence, any such forged or counter- .^ feit deed, writing sealed, or last will or testament, as true, knowing the same to be false ; or if any person shall forge or counterfeit, or procure to be forged or counterfeited, or wil- lingly assist in the forging or counterfeiting, any bond, writing obligatory, bill of exchange, promissory note for the payment 28 , - 1 i 218 Treasury Notes. Bnnk Bills & Notes. I I .i/\ v:m FORGERY..! lum'mo' of money, or any endorsement or assignment of any bill of exchange, or of such promissory note ; or any acquittance or receipt, either for money or goods ; or any discharge of any action, account, debt, demand, or any personal thing, with in- tention to defraud any person, or shall utter or publish as true, any forged or counterfeited bond, writing obligatory, bill of ex- change, or such promissory note for the payment of money, or such acquittance, receipt, or discharge, with intention to de- fraud any person, knowing the same to be forged, or counter- feited ; every such person being thereof convicted at the Court of Assize and General Gaol delivery, or Sessions of the Peace, shall be set in the pillory, and there have one of his ears cut off, and shall also suffer imprisonment for the space of one year, without bail or mainprize ; and the parly grieved shall recover his double costs and damages, to be assessed in the Court where such conviction shall be. Perpetual. By the 56 G. 3, c. G. 2 V. 201, Imprisonment in a Bridewell may be adjudged, instead of the punishment pre- scribed in the foregoing Statute. By the 9 G. 4, c. 3. 4 V. 22 ; 10 G. 4, c. 43. 4 V. 69 ; n G. 3, c. 9. 4 V. 82; and 2 W. 4, c. 64. 4 V. 191, res- pectively. It is enacted and declared, that if any person or per- sons shall counterfeit any Treasury note or notes, issued or hereafter to be issued, by virtue of any of the said Acts, or of any former or other Act, or alter any of the same, so that they shall appear to be of greater value than when originally issued ; or shall knowingly pass, or give in payment, any of the said notes, so counterfeited, or altered ; every person convicted thereof, shall be imprisoned for a term not exceeding seven years, in the Bridewell, and there kept at hard labour, and shall pay all charges of the prosecution. Duration of these Statutes not limited. By the 4 W. 4, c. 24, § 9. 4 V. 274, If any person or persons shall make, forge, or counterfeit, or cause or procure to be made, forged or counterfeited, any such undertaking as is mentioned in the second clause of this Act, or alter, or cause or procure to be altered, any such undertaking, so that it shall appear to be of greater value than when originally issued, or shall knowingly offer, or pass, or give in payment, any such undertaking so forged, counterfeited, or altered, every person convicted of such offence, shall be adjudged guilty of a mis- demeanor, and shall be imprisoned for a term not exceeding seven yeais, in the Bridewell, and there kept at hard labour, and shall pay all charges of prosecution. The undertakings referred to in the foregoing clause, are described in the said second clause of the Act, to be '' Any undertakings now issued, FORGERY. 219 ■^■!:m or hereafter to be issued, and whether made, designed, or pur- porting to be promissory notes, or Bank notes, or bills, or issued, or purporting to be issued, as and for, and to serve the like purposes as notes, or bills of bankers, or of a Banking .' Comp/'ny, or as and for paper money, or circulating currency, and whether the same be payable to a real or fictitious person, or to the bearer thereof, or purport or be designed to be nego- tiable, or transferable by endorsement, or delivery ; or whether the same be, or purport to be payable absolutely, in gold or silver, or either in specie, gold or silver, or in notes of the Provincial Treasury, or other body corporate, or politic, com- pany, partnership, person, or persons whomsoever, or in any other mode, and whatsoever be the sum for which such writings respectively shall be made." Perpetual. It is considered sufficient here, only briefly to mention. Directions, that on a complaint made to a Justice of a forgery under any of the before mentioned Statutes, he must proceed in the same manner as in the case of informations of felonies, — by taking the information in the usual form, in writing, and on oath, and by issuing a warrant to apprehend the party. When he is b' ' 'ight forward on the warrant, it is not imperative on the J '>i to take written examinations, as on charges of felony. :*" r.ie prisoner desires to bo bailed, another Justice must be called in, and if the sureties offered are approved of by the Justices, they must be bound with the prisoner, in re- cognizance in the usual form, for his appearance at the next term of that Court to which the proceedings are to be sent. If the charge is upon the first mentioned Statute, which relates to the registry of deeds, or upon any of the foregoing Statutes respecting Treasury notes, or upon the Act wl jch relates to Bank bills or notes, the recognizance must be for the appear- ance of the prisoner at the Supreme Court ; but if it is upon the before mentioned general Act relating to wills, deeds, and other writings, the recognizance must be for his appearance at the next term of the Supreme Court, or of the General Ses- sions, whichever Court will first meet. The complainant and other witnesses must also be bound in recognizance, for ap- pearance at the Court, and to give evidence. The Justices must make memorandums of the recognizances, according to the Forms which will be found under the Title, — " Recog- nizance," and before, or at the meeting of the Court to which the party has been bound over, they must hand in the same to the Clerk of such Court. If the prisoner refuse, or fail to find sufficient sureties, the Justice or Justices must, as in other similar cases, send him to gaol under a written commit- ment. More particular directions, if needed, and the requi- '■'•: m 220 Certificatfis of Quuruntiuu. Directions. i FORGERY. site Fortns, which may readily be filled up so as to serve, will be found under the respective Titles, — Information ; ^.Var- rant ; Bail ; Recognizance ; Commitment. By the 2 W. 4, c. 13. 4 V. 143, If any person shall knowingly, or wilfully, forge, or counterfeit, interline, erase, or alter, or procure to be forged, or counterfeited, interlined, erased, or altered, any certificates directed or required to be granted by any order of the Governor in Council, now in force, or hereafter to be made, touching quarantine, or shall publish any such forged or counterfeited, interlined, erased, or altered certificate, knowing the same to be forged, or counterfeited, interlined, erased or altered, or shall knowingly and wilfully utter and publish any such certificate, with intent to obtain the effect of a true certificate, to be given thereto, knowing the contents of such certificate to be false, he or she shall be guilty of felony. *Bnnual. The forms of the Information and Warrant, on a charge of forging the certificate mentioned in the foregoing clause, will be the same as in the other cases of forgery already mentioned; but after the party charged is brought before the Justice, the proceedings will be somewhat different. As this offence is by the clause declared a felony, examinations in writing must be taken of the prisoner, and of the witnesses, as in other cases of felony, in the manner and according to the Forms directed and given under the Title, — Examination. A party charged with this offence, may or may not be let to bail by two Justices, as they may see fit in their discretion, according to the circum- stances of the case. In the event of bailing, the proceedings will be the same as in the other cases of forgery already men- tioned, and the party must be bound for appearance at the Supreme Court, whither the examinations and minutes of Re- cognizances must be sent. If the prisoner is committed, the requisite Form will readily be framed from the general Form under the Title, — Commitment. freestone/'*'-.;"-:" " t!u ,i) i -; '/jiMfi--. By the 56 G. 3, c. 21. 2 V. 210. All Freestone sold or offered for sale, shall be inspected and measured by an Inspector of bricks and lime, who shall receive from the seller for all Freestone of the description called flagstones, at the rate of nine-pence per ton, and for all other kinds sixpence per 'IQIV* ■" * C^/'C»ttflt» ;Jjr,i/u -,i4'./;i« ■ titJ jMii.i . U lovj w sua'. ..:..^». I I ) serve, will .eJi:i i« (221 ) '^juf :'i U By the 33 G. 2, c. 1. 1 V. 47. It shall and may be lawful lor any two or more Justices of the Peace, to enter into any public houses, suspected of keeping any gaming tables, and to order and direct the keepers of such gaming les, if any such shall bo found therein, to remove the same within forty-eight hours, as a public nuisance ; and any person refusing or neglecting to obey the order of such Justices, the said Justices shall have power to break and prostrate such public gaming tables, and also to require sufficient security from persons keeping such pubhc gaming houses, for tlieir good behaviour during twelve months, or for their appearance at the next Quarter Sessions, there to be prosecuted for offending against this Act ; and on conviction to be either fined, or imprisoned, as the Court shall direct. Perpetual. The Form of a Recognizance for the good behaviour, and also of one for the appearance at the Sessions, required by the foregoing clause, will both be found under the Title, — Surety for the good behaviour. .ij^'ni^vvu V ■III ■*\-.iii YfiroM v; ^M i 7 H GAOLS AND GAOLERS. .(.-.IS 'li'.'l ■f The gaol itself is the King's, for the public good ; but the Sheriff has the custody, rule and keeping of it, and of the prisoners confined therein. All felons shall be imprisoned in the common gaol, and not elsewhere. And if the gaoler refuse to receive a felon, by the delivery of any constable, or take any thing for receiving him, he shall be punished for the same by the Justices of gaol delivery. In all cases, where a man is committed to prison, especially if it be for felony, or upon an execution ; or but for a trespass, or other offence, every gaoler ought to keep such prisoner in safe and close custody ; safe, that he cannot escape ; and close, without conference with others, or intelligence of things abroad. Therefore, if the gaoler shall license his prisoner to go abroad for a time, and then to come again, or to go abroad with a keeper, though they come again, yet these are escapes. If the gaoler keep the prisoner more strictly than he ought of right, whereof tlie pri- soner dieth, this is felony in the gaoler, by the common law. If the gaoler voluntarily suffer a prisoner to escape, he shall be punished in the same manner as the prisoner ought to have been, who escaped ; and if he negligently permit him to es- 11 --m IS i 'i * 990 Appropriating piirt of a (iaul as )i VVork- liuuaie. li *ii Persons to l)e ronniiitted to Workhouse. m Selling or us- ing Spirituous Liquors in Gaol. Si £ , .i 1.' it f. S I i ! R GAOLS AND GAOLERS. cape, lie shall be punislied by fine and imprisonment. Andl the sheriff shall answer for him. If a gaoler detain a prisoner in gaol after his acquittal, unless it be for his fees, (not for| meat, drink, or lodging,) this is an unlawful imprisonment. 2 Burns. Title,— Gaols. By the 32 G. 3, c. 5. 1 V. 293. The Justices, andl Grand Jury in General Sessions, in the several counties and districts, may provide proper buildings or appropriate a certain part of the county gaol, as a work-house, or house of correction; the expense of establishing which, shall be raised by present- ment and assessment in the usual mode. The Sessions or any { one Justice out of Court, may commit to such house of correc- tion, all persons of the descriptions mentioned in the second I clause of the Act of the 33 G. 2, c. 1. 1 V. 41. Perpetual, I By the clause here referred to, the Sessions, or a single Justice, may, on due conviction, commit, for punishment ac- cording to the rules of such house of correction, all idle and dis- orderly persons, beggars, persons practising unlawful games, fortune-tellers, common drunkards, persons of lewd behaviour, vagabonds, runaways, stubborn servants, ari children, and per- sons mis-spending their time to the injury of their families.— Perpetual. By the 5 W. 4, c. 13. 4 V. 385. Money may be pre. sented in the Sessions and raised in the usual manner, for build- ing and repairing gaols. Temporary. By the 4 W. 4, c. 36. 4 V. 285, If any gaoler, or the keeper of any prison, or other person or persons, shall either by themselves, or their wives, or any of their children, or their servants, substitutes or agents, directly, or indirectly, sell, bar- ter, exchange, or deliver, or willingly or knowingly suffer, or permit, or cause to be sold, bartered, exchanged, or delivered, to any prisoner, or prisoners, or other person or persons whom- soever, any rum, brandy, gin, or any other distilled spirituous liquors, mixed or unmixed, by whatever name or names the same are or may be called, or known, in any gaol or prison, or gaol yard, or within the limits of any gaol or prison, or in any room or apartment, or other part of any house, or building, wherein any gaol or prison is, or may be kept, or situate ; or if any person or persons shall bring, or introduce into any gaol or prison, or gaol yard, or limits of any gaol, or prison, to be used, drunk, or consumed therein, by any prisoner or pri- soners, person or persons, confined, or detained within such gaol or prison, or gaol-yard, or the limits of any such gaol, or prison, such gaoler or keeper, or other person or persons so offending, in either of the said cases, being thereof convicted before any two Justices of the Peace for the country or dis* GAOLS AND GAOLERS. :.;. ;f / ''ti ' irict wherein such gaol or prison may be situate, upon the oath of any one or more credible witness, or witnesses, shall forfeit and pay a fine or penalty of three pounds ; to be levied by war- rant of distress under the hands and seals of the said two Jus- tices, of and upon the goods and chattels of the offender, or of- fenders so convicted ; and shall be paid and applied, one half to the person who will give information for the same, and the other half to the Clerk of the Licenses for the county or d • I irict wherein such offence shall have been committed, to be by him applied in like manner as the funds receivable by him for licensed houses are directed to be applied ; and in case the said offender or offenders, shall not have sufficient goods and chattels whereon to levy the distress aforesaid, and to satisfy the said fine, then such offender or offenders shall be commit- ted to gaol, to be there kept and detained in close confinement for two months, or until such fine be paid. And any gaoler, or keeper of a prison, who shall be convicted as aforesaid a second time, shall thereupon, in addition to paymg the fine, or undergoing the confinement herein before mentioned, be there- after absolutely disqualified from holding such situation of a gaoler, or keeper of a prison as aforesaid, and shall be there- from forthwith removed. Sec. 3. All prosecutions under the Act shall be in the name of the Clerk of the Licenses, and it shall be imperative upon the said Clerk, upon information given to him of any of- fence against. this Act, forthwith tp prosecute for the fine hereby imposed.: •''';•'•. . *-;!: c'-'^-VJ^^-^M" Sec. 4. Provided, that nothing in the Act contained shall extend to prevent the introducing into any gaol, or pri- son, such limited and restricted quantity of rum, brandy, gin, or other distilled spirituous hquors, for any sick prisoner, or other sick person who may be confined or resident in such gaol or prison, as may, by the physician, or medical attendant of such sick prisoner, or other sick person, be particularly mentioned, allowed, and prescribed in writing, as necessary for the use of such sick prisoner, or other sick person. Sec. 5. Provided, also, that when the limits of any gaol or prison, shall extend beyond the gaol yard, and include within the same any house or building, other than the said gaol or prison, nothing in this Act contained shall extend to such limits, unless so far as respects the selling, or delivering, or bringing, or conveying of any rum, brandy, gin, or other dis- tilled spirituous liquors, to any prisoner or prisoners, confined within such gaol or prison, or the limits thereof. Perpetual, The proceedings and Forms under this last mentioned Diicctioi»», • •tl m a 1 1) , 1 HI 'if '> £ 1 i 7 224 GAOLS AND GAOLERS. Statute, except the slight differenoe obviously requisite in stating the ofl'ence in the Forms, will be the same as in the case of prosecutions by the Clerk of the Licenses, for selling spirit- uous liquors without license, the requisite directions and Fornis in which latter case will be found under the Title, — Spirituous! Liquors. It will be observed, however, that there is no time limited I for the commencement of a prosecution for any offence against this Statute, and also, that no charges of prosecution are al- lowed, and therefore none can be adjudged. The penalty,! also, is exactly specified, and must be the same ia every c&se. '.■;.•? ;-l,,.j/!- iit''s:v;5M<-'f>/nfl iteii .nyljui'ilO jio urb/mU.j bin :.! •!;•' la GOOD BEHAVIOUR, see SURETY, &c.. ;■) ,'rn) h'j ;n.iv(r| oi 'tvi uli 'id .Jj\)nf)i.'ii';iu -..? n«ui i.ut:'. iJiir. At .; GRAIN. r,.! Br the 32 G. 3, c. 4. 1 V. 291, In the first General Sessions in every year, Measurers shall be appointed of all species of corn, or grain, sold or offered for sale. Grain ex- posed for sale shall not be deemed merchantable, unless it be of the following standard weight, to say — .j»;j j^j^^, ,i,jj ,,,.,, Wheat, shall weigh per bushel, — fifty-eight pounds. at) fifty-six pounds. fifty->eight pounds. V Avoir- forty-eight pounds.,^ dupoise. thirty -four pounds, ^ixty pQWd^. "i VJll •n'ti Rye do. Indian corn do. Barley do. Oats do. Pease ^9., A.ad all grain importecl or Brought to market ifor sale, shall, on request of the purchaser^ be inspected, and measured by the sworn Inspectors of the town or port where the same shall be brought for sale. If any corn, or grain of any kind, shall be imported or brought for sale within any port or place in the Pijovince, which shall not be merchantable, agreeable to the standard weight herein before appointed for each species of grain to weigh respectively, the Inspector or person pleasuring the same, if required either by the buyer, or seller thereof, bhall add to each bushel, a quantity sufficient to make the same weigh equal to the standard hereii^ before regulated for each particular species ; and if such corn, or grain, shall weigh more than the standard weight aforesaid, he shalUn like manner de- GRAIN. 225 Niict from each bushel, so much as shall be sufficient to make I (he same weigh agreeable to said standard. Sec. 4. Persons who shall export to any place out of I the Province, any corn or grain of any kind, which shall weigh less than the standard weight herein before respectively ap- pointed, or which shall not have been inspected and measured I by an Inspector appointed under this Act, previous to such exportation, shall forfeit and pay the sum of one shilling for every bushel which they shall so export ; the same to be re- covered, on complaint before any one Justice of the Peace ; one half of which penalty shall belong to the informer, or per- son prosecuting for the same, and the other half to the poor of llie township from which such export was made. Sec. 6. Persons appointed Inspectors of grain, who shall refuse to accept of such office, or who shall be guilty of any neglect, or misbehaviour in the execution of the duties thereof, shall forfeit and pay for the use of the poor in the town wherein they reside, a sum not exceeding three pounds, to be recovered before any two Justices of the Peace for the county. Sec. 7. All grain imported into the Province, shall be subject to the foregoing regulations. Perpetual, By the 56 G. 3, c. 4, 2 V. 200, All grain delivered Measuring from any vessel to any truckman, or other person, without Grain, having been duly and regularly admeasured by the proper offi- cer appointed by the Court of Sessions to survey the same, shall be forfeited, or the value thereof, by the seller thereof, for the use of the poor of the township. And every measur- er of grain, who shall undertake to attend the admeasurement of the same, from more than one vessel at the same time, shall forfeit for every such offence, the sum of forty shill- ings, to be recovered before any one Justice of the Peace, by warrant of distress, and to be applied for county purposes. Measurers of grain shall receive from the seller thereof, for all grain, (oats excepted,) at the rate of four shillings per hundred bushels, and for oats, two shillings per hundred bush- els. Perpetual. With regard to the first of the foregoing Statutes, as it Directions, does not direct or authorise any final process for levying the penalties thereby imposed, the same observation applies which lias already been made, respecting other Statutes with the like omission, namely, — that if the party convicted, refuse or neglect to pay the penalty adjudged, the Justice, or Justices, cannot issue either a warrant of distress against his goods, or any process to commit his body to prison. It will be observed, that the Statute last recited, is not so defective, as it provides that the penalty shall be recovered by warrant of distress. 29 1 ■i.^ii' 'Lh 9 • vt ¥- •■ ;>i1 226 Tolls. GRAIN. Directions as to prosecutions for penalties, under cither of the foregoing Statutes, until after conviction, and also the requisite Forms, will be found under the respective Titles,— Information ; Summons ; Conviction. A Form, which may readily be filled up to serve for a Warrant of Distress, on a Conviction under the lust mentioned Statute, will be found under the Title, — Distress. With respect to the forfeiture of grain, or the value thereof, mentioned in this Act, as no jurisdiction or authority is thereby given to Justices, with reference to such forfeiture, they have no power to take or direct any proceedings whatever, on the subject. .' ti i . '. - - < ,:im " I., t By the 4 W. 4, c. 45. 4 V. 290, The tolls hereafter to be taken by every miller, for the grinding of wheat, rye, bar- ley, buck-wheat, or Indian corn, shall be one sixteenth part of the whole quantity brought to the mill to be ground, and no more ; to be ascertained by a sealed measure ; and for grinding oats, where the same shall not be kiln dried, shelled, and sifted, — one sixteenth part of the whole quantity brought to the mill to be ground, and no more ; to be ascertained as afore- said ; and for kiln-drying, shelling, grinding, and sifting of oats, — one-eighth part of the whole quantity brought to the mill to be ground, and no more, to be ascertained as aforesaid. Every miller keeping suitable machinery for the hulling of barley, shall receive as toll for hulling the same, — one-sixth part of the whole quantity brought to the mill to be hulled, anc^ no more ; to be ascertained as herein before mentioned. And every miller who shall keep in hi^ mill a good and sufficient bolting machine, shall be obliged, if required so to do, to bolt the flour or meal, of all wheat, rye, buckwheat, or barley, or bolt or sift all flour, or meal, of Indian corn, ground at his mill ; and shall be allowed to take at the rate of one quart out of each bushel of grain or corn brought to the mill to be so ground, and bolted, or sifted, and no more, as and for the toll for bolting or sifting the same, in addition to the toll hereby allowed for grinding such wheat, rye, buckwheat, barley, or Indian corn. [By 5W. 4, c. 5. 4 V. 357, This toll for bolt- ing, or sifting, is reduced to one pint for each bushel.] Sec. 4. If any Miller shall, in any case, demand and take any larger and greater toll for grinding, hulling, or bolting any grain, corn meal, or flour, than is herein before allowed and prescribed, such miller, being thereof legally convicted before any two Justices of the Peace for the county or district where- in such offence shall be committed, on the oath of one or more credible witness, or witnesses, shall forfeit and pay a penalty of .•;i GRAIN. two pounds, to be levied by warrant of distress under the hand:) and seals of the said two Justices. Sec. 5. If any miller shall refuse to grind any grain or corn, for which his mill is prepared, the said grain or corn Lcins; clean, dry, and in good order ; or if his mill be provided with bulling machinery, shall refuse to bolt any meal or flour, hereby required to be bolted, when he is requested so to do, or shall refuse to hull any barley, when required, the same being clean, dry, and in good order, and his mill having proper and suitable machinery for the hulling of barley, then and in eitlier of such cases, any such miller so refusing, and not having some good and sufficient excuse for such refusal, being thereof legally convicted, in manner as herein before mentioned, shall forfeit and pay a penalty of two poimds, to be levied as aforesaid. Sec. 6. Every miller shall at all times keep in his mill, properly fitted and erected in a convenient place, a good and sufficient beam and scales, with proper and legal weights, for ilie use of persons requiring grain or corn to bo ground at such mill ; and any miller neglecting to keep and have in his mill, such beam and scales and weights, so fitted and erected in manner aforesaid, being thereof lawfully convicted, as herein before mentioned, shall forfeit and pay a penalty of five pounds, to be levied as aforesaid. Sec. 7. All penalties recovered and levied under this Act, shall be paid and applied for the use of the poor of the town or place where the offence for which such penalty is im- posed, was committed, and if no sufficient distress shall be iound, to satisfy any such penalty, then the offender shall be committed to gaol, there to be confined, for a time not exceed- ing thirty days, or until the said penalty be paid. Sec. 8. Every miller who shall be convicted as herein before mentioned, of demanding and taking any greater toll for tile grinding, hulling, or bolting of any grain, corn, meal, or flour, in any case, shall in addition to the penalties hereby im- posed for any such oflfence, forfeit the full value of the grain, corn, meal, or flour, which shall be demanded and taken by him as aforesaid, over and above the toll herein before men- tioned and allowed ; to be levied, together with the said penalty hereby imposed, and in the same manner, and to be paid to the owner or owners of the grain, corn, meal, or flour, where- on such excessive toll shall be demanded and taken. Sec. 9, Repeals the Acts of 10 G. 3, for establishing tolls to be taken at Grist Mills, and 21st and 28th G. 3, in amendment thereof. "'' Sec. 10, Provides that this Act shall not extend to any- other Mills than such as are propelled or worked by wind or water. Perpetual. 221 Miller l(» keep 8cal<'H itiid Weights. ■■■f ,!?,. ■i; hfl ^i! 22d GRAIN. Direction... This Statute is so plainly and accurately worded, tlim, it is conceived, intelligent and judicious Magistrates will find no difliculty as to any part of the proceedings before them, for the recovery and levying of the penalties. It will be observed, that all the penalties are to be recovered before two Justices, and that a warrant of distress is to issue against the goods of the parly convicted, and if no goods can be found, he is to be committed to prison for a limited time, or until payment is sooner made. The proceedings therefore, will be the same as in all ordinary cases of prosecutions for the recovery of penal. ties ; directions as to which, with the requisite Forms, to be filled up according to the facts of the complaint in each case, will be found under the respective Titles, — Information ; Sum- mons ; Conviction ; Distress ; Commitment. It is proper however to observe, that as the value of the excessive toll taken, is to be levied from the party convicted, in addition to , the penalty imposed, it will be the duty of the Justices, at the time of the conviction, to ascertain and determine that value, and to add the amount thereof to the penalty, and to adjudge the whole of such value and penalty, against the party, and to issue the warrant of distress for the full amount so made up. ! !f"-C':,v-^.r GRIST MILLS, see GRAIN. .'•'' ,: ■' ;uu r'w- « '■ -.v. •!».: I,;.. .'! 'f'^Hl GUAGERS. By the 1 G. 3, c. 9. 1 V. 72, The Governor shall ap point two Guagers for the port of Halifax, who shall be sworn to the faithful discharge of their duty, and who are authorised to guage all rum or other distilled spirituous liquors, which shall be imported into, or distilled within the same, and shall perform all such guaging, by the instrument commonly known by the name of Gunter's Callipers, and no other instrument whatsoever ; and if any guager, to be appointed as aforesaid, shall neglect to attend, upon due notice given for the guaging any rum, or other distilled spirituous liquors, imported into, or distilled within the Province, he shall forfeit and pay for every such neglect, the sum of five pounds, with costs, upon convic- tion thereof by the oath of one credible witness, before any two Justices of the Peace ; to be recovered by warrant of dis- tress from under the hand and seal of said Justices ; one 'inoiety whereof to be paid to the person who shall inforiu and GUAGERS. 22U tices ; one sue for the same, and tlio otlior iiioluiy to ilio Ovorsccis of ilio |K)or, fur thti uses of the pour ul' the tuvsn wlioiu the uli'ciice (vaii coininitted. Perpetual. By tlio 32 O. 3, c. 3. 1 V. 291 (made in addition to, and amendment of the foregoing Act,) All caski;! containi, ;:; rum, wine, and molasses, imported into this Province, Nlinll be {Tuaged by the sworn and established guager, immediately after landing, and before removal from the wharf wlioreon it is landed; and die said guagers shall mark with a marking iron, the qiian- tiiy of gallons each cask contains, on the stave next the bung slave, or upon the head of each cask, with the two fust letters of his name on the left hand of the (juantity ; all which to be done in a fair legible manner. And in lieu of the present allowance for guaging, such guager shall receive for every cask exceeding ten, to be guaged by him at any one time and place, the following fees : for every puncheon, — three pence ; for every hogshead or tierce, — two pence ; and for every barrel, — oue penny. Sec. 2. If any guager, appointed as aforesaid, shall neg- lect or refuse to do the duty enjoined by this and the above recited Act, he shall for each and every oifence, forfeit and pay the sum of forty shillings, to be recovered before any one Justice of the Peace, by any person or persons who shall sue for the same ; one moiety thereof to such person or persons, and the other moiety to the Overseers of the poor, for the use of the poor of the township to which such guager belongs. - Provided, that until persons can be found in the out ports of the Province, capable of guaging with callipers, it shall be lawful in such ports, to guage with a rod, as also in the port of Halifax, when the parties consent. Perpetual. ui It will be seen, that the first of the foregoing Statutes re- Dhectioiw. lates only to the port of Halifax, and applies to all distilled spirituous liquors imported into, or distilled within such port ; while the latter Statute extends to the whole Province, but appplies only to rum, wine, and molasses. With regard to the penalties, also, the latter Act imposes the penalty of forty shillings, on neglect of any duty enjoined either by this Act, or by the previous one. It would seem, therefore, that the clause in the first Act, respecting the penalty, is not in force, but is virtually repealed by the substitution, in all cases, of the penalty of forty shillings, impose J by the latter Act ; and there- fore, that this penalty is tht only one which can be en- forced against the guager, for any offence under either of the Acts. As this latter Act does not direct or authorize any final process, for levying the penalty on a party convicted, it is quite clear, agreeably to what has been already advanced .1 m ,,!i.- 'H ^•'. 230 GUAGERS. under previous Titles, respecting such omission in other Sta- tutes, that upon any conviction under either of these Acts, the Justice will not be authorised to issue any such final process, either against the goods, or the body of the offender. Direc- tions applicable to prosecutions before the Justice, for the re- covery of the penalty imposed by the latter Statute, and also the requisite Forms, which may readily be filled up, according to the offence complained of, will be found under the respect- ive Titles, — Information ; Summons ; Conviction. For the appointment of Guagers throughout the Province, except in Halifax, see Title, — Town Ofllicers. ,,,un <■. ii: GUNS FIRING. By the 32 G. 2, c. 25. 1 V. 37, If any person of what age, or degree soever, shall unnecessarily fire out of any gun, fusee, musket, pistol, or other fire-arm, in any of the houses, streets, lanes, wharves, yards, or gardens, in the town or suburbs of Halifax, such person, upon conviction thereof, upon the oath of one or more credible witness, before any one Jus- tice of the Peace, shall forfeit the sum of ten shillings, to he levied by warrant of distress from such Justice, on the offender's goods and chattels, and for want of goods or chattels, such of- fender shall be committed to gaol for the space of twenty-four hours. Provided, that no prosecution for breach of this Act shall be admitted, unless complaint be made thereof within twelve hours at least after the offence committed. All forfeit- ures arising by virtue of this Act, shall be, one half to him or her who will prosecute for the same, and the other to the use of thic His Majesty's government. By the 48 G. 3, c. 21. 2 V. 22, The foregoing Act, and every matter and thing therein contained, are extended to the several towns, and suburbs of the several towns throughout the Province. Perpetual. By the 9 and 10 G. 3, c. 3. 1 V. 156, If any child un- der fourteen years of age, shall fire out of any gun, fusee, or pistol ; or if any person, of what age or degree soever, shall unnecessarily fire out of any gun, fusee, or pistol, or other fire-arm, within one hundred yards of any person, either on horseback, or in any carriage within the peninsula of Halifax ; such child or person, their parents, guardians or masters, shall forfeit the like sum as is inflicted by the foregoing Act of 32 G. 2, c. 25; and to be recovered, levied and applied in like manner as is therein provided. Perpetual. GUNS FIRING. Directions as to prosecutions before a Justice under either of tiie foregoing Acts, with the requisite Forms, which can rea- dily be filled up so as to serve, will be found under the res- pective Titles, — Information ', Summons ; Conviction ; Dis- tress ; Commitment. 231 i.!!W I',' HAWKERS, see PEDLARS. HEALTH WARDENS, see CONTAGIOUS DISEASES HERRINGS SMOKED, see FISH, &c. ;■•'!; i;y;r I <; ■■' ,1 vf' :■"}-'■ HIDES. By the 1 G. 3, c. 12. 1 V. 74, If any butcher or other Cutting or In- person, ?hail by himself or any person employed under him, juringtiiiios. gash, cut, split, or flaw the hide of any ox, bull, steer, cow, sheep, or calf, in fleaing thereof or otherwise, whereby the same shall be impaired or damaged, and offer the same to sale, he shall forfeit twenty shillings for each ofTence committed 'by him, or any person employed under him, to be recovered be- fore any one Justice, and to be levied by warrant of distress and sale of the offender's goods and chattels, under the hand and seal of such Justice ; and for want of distress, he shall suf- fer twenty days' imprisonment; one half of said penalty shall be paid to the informer, or person suing for the same, and the other half to the poor of the place where the offence was com- mitted. Perpetual. By the 8 and 9 G. 3, c. 4. 1 V. 148, No tanner, or odier person, shall sell, or expose to sale, any leather, tanned, curried, or otherwise dressed, or manufactured within the Province, or imported into the same, (from any of the neigh- bouring colonies,) till the same has been viewed, stamped, and marked, by the ofKcer for that purpose to be appointed, on pain of forfeiting twenty shilling', ior every ox, bull, steer, or cow hide, and five shillings for every calf skin, so sold or of- fered to be sold. Sec. 2, 3, and 4. The Surveyors of leather shall view all such hides and skins, and mark such as are sufficiently tanned, or otherwise manufactured ; and if any person shall be convicted before two Justices, of counterfeiting the stamp or mark of such Surveyor, he shall forfeit ten pounds. All Inspecting Hides. ■;J 232 ^/ HIDES. forfeitures and penalties nrisins; by virtue of the Act, shall bp one half to the informer, and the other half to the use of the poor, and shall be recovered by complaint before any two Jus- tices of the Peace for the county where such complaint shall arise ; and shall be levied upon due conviction, by warrant of distress, and sale of the offender's goods and chattels, uiidei the hand and seal of such Justices ; and for want of suflicient distress, the offender shall suffer one month's imprisonment, Perpetual. By the 19 G. 3, c. 3. 1 V. 214, The searcher and sealer of leather shall view every skin of any cattle, calves, or sheep, either in the slaughter-house, or at the tanner's, before the same shall be delivered on sale ; and if he shall find the same to be gashed, cut, split, or flawed, there shall be an allowance made in the price thereof to the buyer, as shall appear to such searcher and sealer to be just and equitable ; and any butcher or other person, who shall not call on such searcher to view such skins, before any such sale thereof, shall forfeit a fine of twenty shillings, for every such skin not exposed to view as aforesaid ; to be recovered before any one Justice, and to be levied by warrant of distress, and sale of the offender's goods and chattels ; one half thereof to the informer or person suing for the same, and the other half to the poor of the place where the offence was committed. Perpetual. For directions as to prosecutions under the foregoing Statutes, with the general Forms, which may readily be filled up so as to serve, see respectively, Titles, — Information ; Summons ; Conviction ; Distress ; Commitment. .»3! :- «i.;,-ri' i r uu Hit. "isiU'V ir^uri.'V r 'jii .'^■Ui■i•J'■>.l^ -,0; tH I .iHi ■:,<: 1- '\ ,n.:.,:.? v. HIGHWAYS. ■•'•'■ .1.. ;y :> -^ - ' I. Injuring or Obstructing Highways. ' By the 4 G. 4, c. 30. 3 V. 170, No loaded waggon or cart shall be drawn upon any of the public roads, with any one or more of the wheels thereof locked or chained, to prevent it from turning, unless there shall be placed under such wheel or wheels, an iron shoe, not less than five inches in width, and sixteen inches in length, or a wooden shoe of the same length, and eight inches wide, connected with a chain to some part of such waggon, or cart, in such way that such wheel or wheels shall be borne up, and drawn upon said shoe. Every person who shall drive any waggon, or cart, on any of the said ( ' HIGHWAYS. ' 233 roads, contrary to such regulation, and also every person who shall pluce and leave on any of the said roads, any stones, sticks, or other obstructions, shall be subject to a fuie of ten shillings, to be recovered on the oath of one credible witness, before any one Justice for the county or town wherein the offence was committed, which sum, if not paid, shall be levied by warrrant from such Justice, ofi'the goods and chattels of the offender ; ■- j ^ and for want thereof he shall be committed to the gaol of such ' ' county for twenty-four hours ; and all monies arising from lines under this Act, shall be applied for the repair qI' the roads ill the county wherein the same were received. Perpetual. By the 7. G. 4, c. 2, § 22. *3 V. 234. if any person shall alter any public road, or private road, the same having been laid out and established by law ; or shall make any en- croachment thereon, not being lawfully authorized so to do. such offender shall forfeit and pay the sum of five pounds. [By Sec. 31, this fine is to be sued for, by bill, or informa- tion, in some Court of Record.] Sec. 23. Any one Justice shall and may on his own view, or upon the oath of one credible witness, impose a fine not exceeding twenty shillings, on any person who shall en- cumber any of the highways, roads, streets, or bridges, by laying timber, wood, carts, trucks, rubbish, or any other thing thereon, to be recovered by warrant of distress, and sale of the offender's goods and chattels ; or in case such offender shall not be known, or foimd, the same shall be recovered, by sale of so much of the timber or wood, and the carts, or other thing encumbering such road or street, and be paid to the Overseers of the poor, for the use of the poor of the town or place where, or nearest the place where the offence was com- mitted, rendering the overplus, if any be, to the owner when discovered ; and if the nuisance shall continue, the same shall be deemed a new offence, and shall be prosecuted and liable to the penalty aforesaid. r u < i Sec. 24. The General Sessions shall make such rules Side Paths, and regulations as may be deemed necessary, to prevent the side paths or ways along any public road, or street, from being injured, or destroyed ; and every person offending against the same, upon conviction thereof before any one Justice, shall forfeit a sum not exceeding forty shillings, nor less than five shillings, to be levied by warrant of distress and sale of the offender's goods and chattels, and to be applied towards the re|)airs of such side paths or ways. /:,/•( ^.^ :,,.•.;. oij •;;..,! •»,. t-ij-lu Sec. 27. If any person shall trail on any roads or high- Triiiling Tim- ways, when the same are bare of snow, or the frost on the ber. ground insufficient to support the 30 :attle travelling thereon, any , "^ if* I . i. I 5 < h^'l 234 HIGHWAYS. rutl'mg down Trees, &c. 1. i.'!,i logs, timber, or other lumber, he shall forfeit and pay a fine not exceeding twenty shillings, nor less than five shillings ; to be recovered before any one Justice for the county or district wherein the offence was committed, who may impose the same on his own view, or on the oath of a credible witness ; to be levied by warrant from off the goods and chattels of the offender. Sec 32. Every person who shall cut down, or other- wise destroy, any trees or underwood, growing or being upon the land lying between any river, lake, or arm of the sea, and any public road, made or to be made, within thirty feet from the margin or shore of spch river, lake, or arm of the sea, shall, on proof thereof by the oath of one credible witness, before any one Justice for the county wherein the offence was committed, forfeit and pay a sum not exceeding forty shillings ; to be levied in the same manner as fines for the non-perform- ance of highway labour ; and to be applied, one half to the informer, and the other half to some one of the Surveyors of highways, for the improvement thereof. Perpetual. By the 7 G. 4, c. 3. 3 V. 241, by which Commissioners of Highways are to be appointed for the towns of Halifax, An- napohs Royal, Windsor, Liverpool, Lunenburg, and Pictou, It is enacted, — " that every person within each of the said towns, shall be obliged to keep the gutters and streets before the houses, building, or land occupied by him, or her, free from dirt and nuisances of every kind ; and that whenever any earth, ashes, manure, stones, bricks, shavings, chips, dirt, filth, offal, or any other thing, shall be found lying, thrown, or placed in any of the streets, lanes, or highways of any of the said towns, the person or persons before, or nearest whose house, building, or land, the same shall be, shall forfeit and pay a fine of twenty shillings, together with the expense incurred by the said Com- missioners in removing the same ; and such Commissioners, or one of them, are authorised to cause the same to be instant- ly removed, without giving any notice to the owner, or sup- posed owner thereof, or being at all answerable for the same. Provided, that no person shall be liable to the said penalty, un- less he shall have thrown or placed the said nuisance in the street, lane, or highway, where the same shall be found, or not having placed the same there, shall suffer the same to con- tinue for twenty-fflur hours. And provided also, that any per- son, by leave of such Commissioner, may place in any such street, lanes, or highways, stones, bricks, timber, or other ma- terials for building houses, or other work ; and may set up posts, bars, or enclosures, for the better securing such mate- rials, and continue the same, for such time only as the Com- missioners, or the major part of them may give leave, and in HIGHWAYS. 235 manner and form as they shall in writing direct, and no longer, on pain of forfeiture thereof." Sec. 22. No person shall be at liberty to dig up, or Brpuking Soil break open the soil of any street or highway within the juris- i» Streets.&c. diction of the said Commissioners, respectively, without. first applying to them, and obtaining their permission in wr/ting, specifying the purpose for which such breaking of the joil is required ; and the said Commissioners may impose such terms upon the person applying, as the security of pasisengers, by day or night, shall appear to them to require ; and any per- son acting contrary thereto, or to the terms imposed by the said Commissioners, shall forfeit and pay five pounds for every offence. Sec. 23. Every person who shall drive any cart, truck, i • or carriage, or ride with a horse upon, or over any side path, or way, made along any public street, or highway, within the respective towns and places in this Act mentioned ; or who slinll roll heavy articles of any description over, or place the same thereupon, to the injury or obstruction of such side paths, or ways, shall for every such offence forfeit and pay a line not exceeding forty shillings, nor less than five shillings ; to be recovered with costs, in the manner, and to be applied as directed by the Act. By Sec. 4 and 5, It is provided, that the said Commis- Prosecutions sioners shall prosecute for the recovery of all fines and sums of '"' ^ "'•'=*» ^*^- money due under the Act, and for offences against the same ; and that they shall have the like process and remedy for the penalty, or sum sought to be recovered, as if the amount there- of were a private debt contracted with them respectively ; and such suit shall be heard and determined in the Courts, or be- fore the Justices possessing jurisdiction over suits, for debts to the like amount. Perpetual. All the regulations and provisions of the foregoing Act, are extended to tiie following towns and places. To Bridge- town, in the county of Annapolis, by 8 G. 4, c. 28. 4 V. 1'). To Dartmouth, by 9 G. 4, c. 27. 4 V. 40. To Digby, by 10 G. 4, c. 24. 4 V. 49. To Dorchester, by 10 G. 4,c. 47. 4 V. 71. To Falmouth, by 2 W. 4, c. 3G. 4 V. IGO. To Chester, by 3 VV. 4, c. G. 4 V. 195. To Guysborough, by 3 \V. 4, c. 34. 4 V. 212. To North Sydney, by 4 W. 4, c. G4. 4 V. 337. To New Glasgow, by 4 W. 4, c. 72. 4 V. 349. Perpetual. By the 8 G. 4, c. 23. 4 V. 10, The General Sessions ^J»K'« & B'^rs. in the several counties and districts, are authorised to direct snch and so many gates and bars as they may think fit, to be placed and kept upon private and particular ways, heretofore. Mi 236 HIGHWAYS. |, ,.v Directions. or hereafter to be laid out ; and to make such regulations res- pecting the placing and keeping such gates and bars upon such ways, as they, for that purpose, may think expedient and proper to appoint. And by 10 G. 4, c. 45. 4 V. 70, Every person who, on the oath of one credible witness, or more, shall be convicted before any one or more Justices of the Peace, of a breach of any of the said regulations made by the Sessions under the foregoing Act, shall forfeit and pay a fine, of not less than five shillings, nor more than forty shil- lings for every such oflence, to be applied for the benefit of the poor of the township or place wherein such offence was com- mitted. Perpetual. -.>-Hniii With regard to such of the foregoing Statutes as direct, that the penalties thereby imposed, shall on conviction of the offender, be levied by warrant of distress, the requisite direc- tions as to the proceedings for the recovery of such penalties, with general Forms, which may readily be filled up so as to serve, will be found under the respective Titles, — Information ; Summons ; Conviction ; Distress ; Commitment. It will be observed, that by the foregoing Acts, under which Com- missioners of Streets are appointed, the fines are to be recovered in the same manner, and by "the same proceedings as private debts. The requisite directions, therefore, and the Forms in such suits, will be found under the Title, — Sum- mary Trials. MU ■•i,:):/-. .»*< II. Labour on the Highways. .■inl •)■'• '^ By the 7 G. 4, c. 2, § 2. 3 V. 231, Every person keeping any cart, team, or truck, shall send on every day ap- pointed by tile Surveyor of highways, one cart, or team, or truck, with two oxen, or two horses, or with one horse, in case he owns no more, and one able man to drive the same, four days in every year, to work on the roads, allowing eight hours to each day's work ; and on neglect of such duty, he shall forfeit for each day, if owning two or more oxen, or horses, ten shillings, and if owning one horse only, seven shil- lings ; and every other person, able of body, between the ages of sixteen and sixty, not being a military person, or holding a commission in the military or civil department of the army, or an hired servant, minor, apprentice, journeyman, or day la- bourer, shall, either by himself, or other sufficient jierson to be hired by him, and provided with such necessary implements as shall be directed by the Surveyor, work on the roads for six days in every year ; and every hired servant, minor, appren- HIGHWAYS. 237 .»( lice, journeyman, «nd day labourer, shall, either by himself, or . i,t.!.» other suflicient person, and provided with necessary imple- ments, work on the roads for two days ; and every householder, hired servant, minor, apprentice, journeyman, day labourer, and other person not attending, or neglecting to perform the said labour, shall forfeit three shillings for every day's neglect. Sec. 4. When any Surveyor shall judge the labour of , ^ . i men more useful and neceissary than that of carts, teams, • • ' oririicks, the persons who by this Act are to furnish the same, shall be, and are required, under the like penalty as aforesaid, to send instead thereof, two labouring men, furnished with ne- cessary implements as aforesaid. Sec. 5 — 6. Constables shall make out and deliver to Culling out the Surveyors, lists of all owners of carts, teams, and trucks, *^'''|'V"'' *" and of all other persons liable to perform labour on the roads, and shall also, when required by the Surveyors, summon the persons contained in the said lists, to meet to perform such labour, on such days, and at such places as the Surveyors shall direct. The Surveyors, shall, at the most seasonable time, between the first day of April, and the first day of November, (seed time and harvest only excepted,) cause the persons contained in their lists to be summoned, giving them at least six days' notice of the lime and place where they are to be employed ; and shall there oversee them in labouring the whole time required ; and such Surveyors shall be excused from any other service on the roads. Sec. 7. Any two Justices shall, in their discretion, les- Re'liicing Lu- sen the number of days' labour to be performed by any poor ^•""'' person, who cannot, without detriment to his family, perform the labour required by the Act. • i »i Sec. 8. Persons over sixty years, keeping carts, teams, persons jii)o\e or trucks, shall when summoned so to do, send the same for sixty Years. lour days, to assist in repairing the roads. Sec. 9. No Surveyor, with the consent of the owner of Altering the land, shall alter any road, or make any repairs to a road, ^^"""'* without the advice and consent of at least two Justices of the Peace. Sec. 10, 11. Surveyor shall order and direct the inha- bitants, as often as they shall deem necessary during the win- ter, to work on the roads with their horses, oxen, and sleds, in order that the roads may be rendered passable. Provided, that no inhabitant shall be compelled to furnish more than one day's labour of himself or cattle, for any one fall of snow, or where the fall or drift of snow shall not exceed the depth of twelve inches. Every inhabitant refusing or neglecting to obey such order of the Surveyor, shall forfeit ten shillings for each nej^lecl. I.iittniir in \V inter. 1 1 'M m 238 HIGHWAYS. IhIiukIs. I. ■« II Recovery of Fiiieii. Diifctiuiis. '%; Sec. 28, 29. Persons living on islands, shall not be Iln- ble to perform labour on the roads on the mainland, but shall perform the same on the roads on such islands ; and where such islands are connected with the mainland by any bridges or I causeways, such persons shall perform their labour in rebuild- ing or repairing the same. Sec. .30. All fines and forfeitures directed to be paid for neglect of performing labour on the roads, and of furnishing carts, teams, and trucks, as required by this Act, shall be sueil for, and recovered, with costs of suit, by the Surveyors of| highways, before one or more Justices of the Peace, in like manner as debts are sued for, and recovered ; and shall be ap- plied to the repairs of the ! Sec. 5. It shall not be necessary hereafter for Com- missioners to procure any certificate or certificates of the per. furmnncc of highway labour, in order to entitle them to obtain monies granted for the road and bridge service. Duration wi \ limited. .■■ur'-[' , i •■••i.t <.'<:f'j,'*)^ ,i,. I I Summons Joi' Fines for neglecting to work on tke IJighmys. County of To A. C, one of the Constables of tlie township of in the said county, Greeting : [Seal.] You are hereby required to summon A. O., of the said township of in the said county, yeoman, to appear be- fore me, A. M., Esquire, one of His Majesty's Justices ofj the Peace for the said county, on the — day of this present month of , at eleven o'clock in the forenoon, at in , to answer to the suit of A. S., Surveyor of Highways of the said township, for the district from to , to re- cover from the said A. O. the sum of , for the refusal and neglect of the said A. 0. to perform labour on the highways under the said A. S. as such Surveyor, within the limits afore- said, in the said township, in the year , pursuant to the Statute in such case provided ; and make return hereof on or before said day. Witness my hand and seal at aforesaid, this — day of , in the year of our Lord . "d_.l- A. M., J. F. .;'< •.)i\':H i -if. Execution thereon. >i :k>i. i' County of To A. township of - C, one of the Constables of tiie in the said county, — Greeting: [Seal.] Whereas judgment hath been awarded against A. 0.. of the said township of — — , yeoman, at the suit of A. S., one of the Surveyors of highways in and for the said township, for the sum of , and — — more for costs, for the neglect of the said A. 0. to perform labour on the said highways, in the year of our Lord , as by law required : These are to com- mand and require you, to levy from off the goods and chattels 'f HIGHWAYS. of the said A. O., the said sums, making together , by sale of the said goods and chattels ; and for want thereof, you are hereby commanded to take the body of the said A. O., and him to commit to His Majesty's gaol in , there to re- 0iflin until he pay the sum above mentioned, with your fees, or that ho be discharged by the said A. S., or otherwise by order of law. Hereof fail not, and make return of this writ to ine within twenty days. Witness my hand and seal, at — , the — day of , in the year of our Lord . A. M., J. P. ' ■}•!•/. HOMICIDE. 241 .HI ifh m} I. JUSTIFIABLR HoMtCIDE. »,j>,.;,ff To make homicide justifiable, it must be owing to Horae unavoidal>le necessity to which the person who kills another must be reduced, without any manner of fault in himself. And there must be no malice coloured under pretence of necessity. If rioters, or forcible enterers or detainers, stand in opposition to the Justice's lawful warrant, and any of them be slain, it is no felony. So if they stand in opposition to the Sheriff's posse (omitutus. And if the Sheri^ or Magistrate, or any one coining in aid of them, be killed, it is murder in all. If a man come to burn my house, and I shoot out of my house, or issue out of my house and kill him, it is no felony. 2 Burn% 783. .„i.,.,f,-, H. Homicide BY Misadventure. This kind of killing is, where a man is doing a lawful act, without intent to hurt another, and death casually ensues. As where a labourer being at work with a hatchet, the head flies off and kills one who stands by. Or, where a third per- son whips a horse on which a man is riding, whereupon he springs out and runs over a child and kills him, in which case, the rider is guilty of homicide by misadventure, and he who gave the blow, of manslaughter. But if a person riding in the street whip his horse to put him into speed, and run over a child and kill him, it is homicide, and not by misadventure ; and if he ride so, in a press of people, \Vith intent to do hurt, and the horse kills another, it is murder in the rider. It is not sufficient that the act upon which death ensues, be lawful and innocent in itself, it must be done in a ])roper manner, and with due caution, to preyent mischief. For instance : A 31 »! ■Mba '('.! ■iiS'' ^ t likta 24.2 KOMICIDE.) person driving a carringe, happens to kill another t if he saw, or had timely notice of the mischief likely to ensue, and yet wilfully drove on, it will he murder. If he might have seen the danger, but did not look hefore him, it will be manslaughter, for want of due circumspection. Rut if the accident hap- pened in such a manner, that no want of duo care could be imputed to the driver, it will be accidental death, and ho will be excused. ;•• 'uj < ,5 v»;h ymuti imlw A person who has killed another by misadventure, is not bailable by Justices of the Peace, but must be committed ; but if he be taken only on a slight suspicion, the Justices of the Peace may bail him. 2 Burn's, 785 — 789. III. HOMICIDP. BY SfSLP-DEPENCE. Homicide in a man's own defence, seems to be, — where one who hath no other possible means of preserving his life, from one who combats with him on a sudden quarrel, kills the person by whom he is reduced to such an inevitable necessity. An officer who kills one that resists him in the execution of his office, and even a private person that kills one who feloniously assaults him in the highway, may justify the fact, without ever giving back at all. 2 jB«m'», 789. V i^ /ifi: » . . IV. Manslaughter. H i? ilitJ r^ili Jo }- . f. -I 111. '.'.(»' Manslaughter is the unlawful killing of another, with- out malice either express or implied ; which may be either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act. There is no difference be- tween murder and manslaughter, but that murder is upon ma- lice forethought, and manslaughter upon a sudden occasion. As if two meet together, and striving for the wall, the one kill the other, this is manslaughter and felony. And so it is, if they had, upon that sudden occasion, gone into the field and fought, and the one had killed the other ; this had been but man- slaughter, and no murder, because all that followed was but a continuance of the first sudden occasion^ and the blood was never cooled till the blow was given. This offence is not bailable by Justices of the Peace. 2 Burn's^ 790. , - ,.'..>li Cib>»'>* li^i'Ui f;,;vY. V. MuRDERt'-'l"'*' Ki ("t't* '^JiH vii. I lii *>'"> ^'•' Murder, is when a man of sound memory, and of the age of discretion, unlawfully kills any person, under the King's peace, with malice forethought, either expressed by the HOMICIDE. 243 party, or implied by law ; fto that the party wounded or hurt, iJieof the wound, or hurt, within a year ind a duy. When anofllcer is killed in the execution of his Okficc, it is murder, and the law implies malice. Wiierever a person in cool blood, bv way of revenge, beats another in such a manner that he al- terwards dies thereof, he is guilty uf murder ; however un- uilliog he might have been to have gone so far. If a master bv premeditated negligence, or harsh usages cause the death of his apprentice, it will be murder. It seems to be agreed, that no breach of a man's word or promise, no trespass either to lands or goods, no afTront by bare words or gestures, how- ever false or malicious it may be, and aggravated with the most provoking circumstances, will excuse him from being guilty of murder, who is so far transported thereby, as immediately to attack the person, who offends him, in such a manner as ma- nifestly endangers his life, without giving him time to put him- self upon his guard, if he kills him in pursuance of such an as- sault ; whether the person slain did at all fight in his defence or not. The law so far abhors all duelling in cold bluod, that not only the principal who actually kills the other, but also his seconds, are guilty of murder, whether they fought or not. And it is holden, that the seconds of the party slain are like- wise guilty as accessaries. They that are present when any man is slain, and do not their best endeavour to apprehend the murderer, or manslayer, shall be fined and imprisoned. 2Burn% 791 to 795. r! u.-wu .... \.l., ii,'.i ,■. .,» J By the 32 G. 2, c. 13, 1 V. 15, if any person with malice prepense, shall kill, or procure any other persons to kill, or bball on purpose and of malice forethought, and by lying in wait, unlawfully cut out, or disable the tongue, put out an eye, slit the nose, cut off a nose, or Hp, or cut off or disable any limb, or member of any person, with intention to kill, or to maim, or disfigure any such person, the persons so offend- ing, their counsellors, aiders and abettors, privy to ihe offence, shall be felons without benefit of clergy i And every person who shall stab or thrust any person, that hath not then any weapon drawn, or that hath not then first stricken the party who shall so stab, or thrust, so as the persons so stabbed or thrust shall thereof die, within the space of six months, al- though it cannot be proved that the same was done of malice forethought, yet the party so offending, and being thereof convicted, shall be excluded from the benefit of clergy. Pro- vided, that this Act shall not extend to nny person, who shall kill any person in his own defence, or by misfortune, or in any other manner than as aforesaid, nor shall extend to any persons, who in keeping the peace, shall chance to commit '1 Hi:' ^ i'i kit- pi m 11 i\nM ■ H Pfl ril:! 1 PH i V 1 v , -J a m If,- II Pi II t i i'«i (I. r I 1 i mii 1 ,14 244 HOMICIDE. marislaug])ter, so as the said manslaughter be not committed willinsrly, and of purpose, under pretext and colour of keep- ing the peace ; nor shall extend to any person, who in chas- tising or correcting his child, or servant, shall, besides his purpose, chance to commit manslaughter. Perpetual. For directions as to the course of proceedings on an inform- ation and arrest for felonious homicide, and on the examination of such charge, with the Forms requisite, see respectively, Titles, — Information ; Warrant ; Arrest ; Examination ; Re- cognizance Commitment. ■Hi U, f, I HORSES, see CATTLE. , HOUSE OF CORRECTION, see BRIDEWELL,- and VAGRANTS, &c. ; HOUSE BURNING, see BURNING. : J. ---I ! 1 ■ .. ;jv i;.! i^'lli! V IP't: ' HUE AND CRY. This is the old common law process after felons, niul such as have dangerously wounded any person : and it has received great countenance and authority by several Acts of Parliament. When any felony is committed, or any person is grievously and dangerously wounded, or any person as- saulted, and offered to be robbed, either in the day or night, the party grieved, or any other, may resort to the constable of the bill; and, 1. Give him such reasonable assurance there- of, as the nature of the case will bear. 2. If he know the name of him that did it, he must tell the constable the saiie. 3. If he know it not, but can describu him, he must describe his person, or his habit, or his horse, or such circumstances as he knows, which may conduce to his discovery. 4. If the thing be done in the night, so that he knows none of these circumstances, he must mention the number of the persons, or the way they took. 5. If none of all these can be disco- vered, as where a robbery, or burglary, or felony is commit- ted in the night, yet they are to acquaint the constable with the fact, and desire him to search in his town for suspected persons, and to make hue and cry after such as may be proba- bly suspected, as being persons vagrant in the same night. HUE AND CRY. For levying hue and cry, allliongli it is a good course to httve the warrant of a Justice of the Peace, when time will permit, vet it is by no means necessary, nor is it always convenient, i'or the felon may escape before the warrant be obtained. The Jiity of the constable is, to raise the power of the town, as well in the night, as in the day, for the prosecution of the offender. And he may search suspected houses, or places, bill his entry must be by the doors being open ; for he cannot break open doors barely to search, unless the person against whom the hue and cry is levied, be there ; and then it is true he may ; therefore, in case of such a search, the break- ing open the door is at his peril, namely — ;justifiable if he be there, not justifiable if he be not there. But it must be al- ways remembered, that in case of breaking open a door, there riiist be first a notice given to them within of his business, and a demand of entrance and a refusal, before the doors can be broken. The coiistable of the town where the felony was done, as also every officer to whom the hue and cry shall afterwards come, ought to send to every other town round about him, and not to one next town only. And in such cases, it is needful to give notice in writing, (to the pursuers,) of the things stolen, and of the colour and marks thereof, as al o to describe the person of the felon, his apparel, horse, and the like, and which way he is gone, if it may be. 2 /ittrn's, 812. 245 •) -.!'fn< -i •) HYDROPHOBIA, see DOGS, &c. ,r .„ { ■i K f ' ^■'\ : l^'i '• 1 ■■ 'i ■ 1; .!-f'-'*l. J IDLE AND DISORDERLY PERSONS, ■'O III' see VAGRANTS. •'i; — m — INCEST. ■ ■■:■> oi By the 32 G. 2, c. 17. 1 V. 25, Every man and woman who shall carnally know each other, being within the degrees of kindred forbidden in the English Act made in the thirty-se- cond year of King Henry the Eighth, concerning j)re-contracts, and touching degrees of consanguinity, and shall be convicted thereof, before the Supreme Court, or Court of General Quar- ter Sessions of the Peace, shall be set in the pillory for one hour, and further shall forfeit the sum of fifty pounds, to the use of His Majesty's government, or suftier six months' inipri- sonmerU. Perpetual. IT /• (246) < ! ! fif. ¥ I m ' i ... It being provided by the foregoing Act, that the fines therein mentioned are to be recovered before one Just'ce, in the same manner as debts of the like amount, the proceedings and the Forms in prosecutions for the recovery of such fii.o's, will be the sanje as in the case of such debts, and will be found under the Title, — Summary Trials. 5. justice, ' (247) •■ » INDICTMENT. All offences of a public nature, that is, such acts or attempts as tend to the prejudice ol" the community in general, are in- dictable. And therefore, not only all actual breaches of the peace, as Riots, Affrays, Assaults, &c., but also every criminal irregularity that tends to disturb the good order of government, or to endanger or annoy the tranquillity, welfare, or conve- nience of the public, is punishable by indictment. The fol- lowing, therefore, are indictable misdemeanors, viz : 1. All open offences against God and religion, or against public decency, that tend to corrupt the morals of the people. Of this sort, are blasphemous books, or any profane or obscene publications, bawdy houses, &c. 2. All crimes that are mala in sc, and of evil example. 3. All practices that tend to endanger the Constitution, asbribery at elections, seditious pamphlets, &c. 4. All contempts of the King, or his Courts. All attempts to corrupt, mislead, or pervct public or to make it a handle of fraud or oppression. : All acts and designs against the common occasions, necessities, and general commerce of the public. Such as, unlawful combinations, monopolies, forestalling, engrossing, and regrating, adulteration of victuals, and all pubHc cheats, &c. &c. In this class are also included, the several kinds of common nuisances, both positive and negative, namely, either positive acts that annoy the public, or the neglect of some duty wliich the public have a right to require from the defendant, and by the omission of which a general inconvenience arises. It is an indictable offence, to incite and solicit a servant, to steal his master's goods, though the servant do not steal the goods, and no other act be done, except the soliciting and inciting. And such offence is indictable at the Quarter Sessions, as falling in with that class of offences, which being violations of the law of the land, have a tendency, as it is said, to a breach of the peace, and are therefore cognizable by that jurisdiction. It seems to be a good general ground, that wherever a Statute prohibits a matter of public grievance to the liberties and secu- rity of a subject, or commands a matter of pubHc convenience, an offender against such Statute is punishable, not '^nly at the suit of the party grieved, but also by way of indictment for his contempt of the Statute ; unless such method of proceeding do manifestly appear to be excluded by it. But if a Statute ex- tends only to private persons, or if it extend to all persons in general, but chiefly concerns disputes of a private nature, it is I }i' ^ ! I 248 INDICTMENT. paid that ofTences against such Siatntes will hardly bear an in- (liclnienl. It has been held that every unauthorised obstruc- lion of a highway, to the annoyance of the King's subjects, is an Indictable ofl'ence. This was held by Lord EUenborongli, C. J. in a case where it was determined to be an indictable offence, for stage coaches to stand plying for passengers in the public streets. Disobeying an order of Sessions, or an order of Justices, is an indictable offence at common law. 3 Burn\ 22, 25. Where a Statute makes a new offence, by prohibiting and making unlawful, any thing that was lawful before, and appoints a particular method of proceeding, without mentioning an in- dictment, it seems to be settled at this day, that no indictment can be maintained. But upon this the true rule o( distinction seems to be, that where the offence intended to be guarded against by a Statute, was punishable before the making of such Statute, prescribing a particular method of punishing it, there such particular remedy is cumulative, and does not take away the former remedy. But where the Statute only enacts, that the doing any act not punishable before, shall /or the future be punishable in such and such a particular manner, there it is necessary that such a particular method by such Act prescribed, must be specifically pursutd^ and not the common law method of indictment. Wherever there is a prohibitory law, if it be still in force, the proper remedy under it, is by indictment ; and where a Statute forbids the commission of any act, the doing it wilfully, is indictable, although it be done withrut any corrupt motive. It is also a clear and established principlr that when a new offence is created by an Act of Parliament, and a penalty ts annexed to it by a separate and substanlive clause, it is not necessary for the prosecutor to sue for the penalty, but he may proceed on the prior clause, on the ground of its being a misdemeanor. 3 Burn's^ 24, 25. An indictment will not lie for throwing down skins Into the public way, by which a personal injury is accidentally oc- casioned- Nor for acting, not being qualified, as a Justice of the Peace. Nor for selling, short measure. Nor for exclud- ing commoners by inclosing. Nor for an attempt to defraud, if neither by false tokens nor conspiracy. Nor for secreting another. Nor for bringing a bastard child into a parish. Nor for keeping a house to receive women with child, and deliver them. 3 Burn's, 24. litl •i ' . V ' 1 The ' ' ) ',(»■• • I fants are e • ; y.l' >' '1 i .'..( ' ■ ■ lity depen ! t^- li'i-' ■•'; rM '.I. t ( 249 ) INFANTS. ■..■, !■■ • .'i . . ■ ■ 'lit; II • '. • ■ .'... ■ rn\ I. How FAR ANSAVERABLE FOR CRIMES. '"' ■I : I \ By an infant or minor, is meant, any one who is under the age of twenty-one years. It is said generally, that those vflio are under a natural disability of distinguishing between good and evil, as infants under the age o( fourteen years, ffhich is called the age of discretion, are not punishable by any criminal prosecution whatsoever. But this must be understood with some allowance ; for if it appear by the circumstances, that an infant under that age, could distinguish between good and evil, as if one of the age of nine or ten years, kill another, and bide the body, or make excuses, or hide himself, he may be convicted and condemned, and forfeit as much as if he were of full age. In general it must be left to the discretion of the Judge, upon the circumstances of the case, how far an infant under that age is capax doli, or hath knowledge to discern be- tween good and evil. Within seven years of age, there can be no guilt whatsoever, of any capital offence, the infant may be chastised by his parents or tutors, but cannot be capitally punished, because he cannot be guilty ; and if he be indicted ibr such an offence, as is in its nature capital, he must be ac- quitted. An infant may be guilty of forcible entry, in respect of personal actual violence ; and t'.ie Justices may fine him there- fore. 3 Burn's, 55 to 57. For any notorious breach of the peace, as a riot, battery, or the like, an infant above the age of fourteen, is equally lia- ble to suffer as a person of the full age of twenty-one ; ami if an infant judicially perjure himself, in point of age or other- wise, he shall be punished for the perjury : and he may be in- dicted for cheating with false dice, &c. With regard to cap- ital crimes, the actions of infants on their attaining fourteen years of age, are subject to the same modes of construction as those of the rest of society, and therefore they are liable to capital punishments as much as if they were of full age. An Act making a new felony, extends not to an infant under the age of fourteen years ; but wh^re a fact is made felony, or trea- son, it extends as well to infants above that age as to others. 11. Their Civil Incapacities. There seems to be no precise age fixed, at which in- fants are excluded from being witnesses ; and their admissibi- lity depends upon the sense and reason they entertain of the 32 ^ . If?: !'^'-i^;;"-il ■m )1 ;> b'* '|," sr' 250 . INFANTS. danger and impiety of falsehood, which is to be collected from their answers to questions propounded by the Court. It has been ai;reed by all the Judges, that children of any age maybe examined on oath, if capable of distinguishing between good and evil ; but they cannot be examined in any case without oath. This is now the established rule in all cases, criminal as well as civil, and whether the prisoner is tried for a capital ofFence, or for one of an inferior nature. If a child is too young to be sworn, it follows as a necessary consequence, that any account which it may have given to others, ought not to be admitted. An infant before twenty-one years of age, shall not be sworn on an inquest. A male is of age at twelve years to take the oath of allegiance. At twenty-one, and not before, persons may bind themselves by any deed, and ahen lands, goods, and chattels. Upon which ground, infants may not enter into recognizance to keep the peace, or to be of the good behaviour, but their sureties only. But an infant may bind himself to pay for his necessary meat, drink, apparel, physic, and such like ; and also for his good teaching and in- struction, whereby he may profit himself afterwards ; but if he bind himself in an obligation, or other writing, with a pe- nalty for the payment of any of these, that obligation shall not bind him. Neither will assumpsit lie against an infant, on an account stated, for an infant is not competent to state an ac- count. And it is said, that aninfant may buy necessaries, but cannot borrow money to buy ; for he may misapply the money, and therefore the law will not trust him, but at the peril of the lender, who must lay it out for him, or see it laid out. And it shall be only for necessaries, and not for matters of luxury, or extravagance, and if after he comes of age, he is prevailed on by surprise or other undue means, to give security, yet a Court of equity, on consideration of circumstances will relieve. 3 Burn's 57. III. Their Civil Capacities. An infant, without consent of any other, hath capacity to purchase real estate, for it is intended for his benefit ; and at his full age he may either agree thereunto, and perfect it, or without any cause to be alleged, waive, or disagree to thn pur- chase ; and so may his heirs after him, if he agree not there- unto after iiis full age. A person is of age to be executor at seventeen. An infant cannot release a debt. An infant can- not answer but by guardian, but he may sue either by his next friend or by guardian. 3 Burn's, 59. I ,ii '■ (251) • V]W INFORMATION. This Title will treat of the proceedings on informations I given before Justices, upon the great variety of Statutes im- posing penalties to be recovered, or directing offences to be otherwise punished, or to be enquired into before one Justice or more. In all instances where a Statute directs that the in- formation shall be in writing or on oath, the course prescribed must be observed, and in every case it will be safest and most proper, to take the information in writing, signed by the party complaining; but unless an oath is expressly required, that solemnity need not be observed. Where it is directed, that the information shall be before two Justices, or more, they should be together when it is taken. Upon the. information being lodged in the manner requisite, the Justice or Justices should immediately issue the warrant, or summons, as the i , case requires. for causmg the party complained of, to be brought, or to appear before them. If the information is for a felony or misdemeanor, and indeed in all cases where the charge is at the suit of the King, and also in cases between party and party, where the body of the offender is liable, a warrant to arrest, may and should be issued, but if it is merely by the party grieved, or other informer, for the recovery of a penalty, or forfeiture, or damages, a summons to appear and answer to the complaint, is the proper process. This latter should be served a reasonable time, (in general not less than three days,) before the day for appearance. On the parly being brought up on a warrant, if it is a cliarge of felony, on which examinations are to be taken, to be sent into a Superior Court, the course to be observed by the Justice or Justices, will be found under the Title, —Examination. When the pro- secution is to be heard and determined before the Justice, if at the time appointed for the hearing of the case, the party charged does not appear, after hoving been duly summoned, the case may be heard and evidence received on the part of ihe prosecution, and judgment given, as though the party were present, unless in cases where other proceedings are di- rected to be had, or it is otherwise provided by the Statute on which the prosecution is founded. Where the party charged appears, or is brought forward at the time appointed, but no person appears on the part of the prosecution, the information must be dismissed, and the defendant, if in custody, discharg- ed. But where botli parties are present for a trial, the Justice or Justices must in the first instance, cause the party charged to be informed of the nature of the charge against him, by .; ^'i^'l 252 INFORMATION. having the information read, or the substance thereof stated to him ; and he must then be required to plead to it, or say whether he is guilty, or not guilty. If he pleads guilty, no evidence as to the oftence need be produced, but judgment of conviction may immediately be given, and the penalty or other punishment be awarded, and made known to the defendant. If he denies the charge, the prosecutor must be called upon to establish it by evidence. It must here be observed, that if any part of the penalty sought to be recovered, is to be re- ceived by the party informing and prosecuting ; or he is other- wise to receive any direct gain or benefit from the conviction of the defendant, he cannot be a witness in support of the charge, but it must be proved by other testimony ; but if he is not interested in any such manner, he may be admitted to give evidence. After the evi(]ence on the part of the prose- cution has been closed, the defendant may stale his defence, and produce testimony on his behalf, and after all the evidence on each side has been given, the Justice, who in these prose- cutions is invested with the powers of a Jury, after a consi- deration of all the testimony, and of the law relating to the case, must form and declare his judgment, whether of convic- tion or acquittal. If, as is generally the case, the Statute on which the prosecution is founded, limits a time within which such prosecution Is to take place, it must appear in proof that it was commenced within such limited time after the commis- sion of the offence. The Justices in every case, must also be careful, that the fine or other punishment they impose, is precisely such as the Statute on which the prosecution is founded, directs or warrants, for the offence of which the party is convicted, as no other or further punishment, can le- gally be substituted or imposed. Further, and more particu- lar information, if needed, with regard to the forms, service and return of warrants and summons's, the examination, bail- ment, or commitment of prisoners, the rules of evidence, the proceedings, on summary trials before Justices, and as to convictions, writs of distress, and of execution, will be found throughout this work, under the appropriate Titles. Special forms of information, for several offences of the higher des- criptions, and for some which most frequently occur, are here given ; also a general form, which may readily be filled up, so as to serve in nearly every case, care being taken to set forth therein, all the substantial averments and statements, which, by the Statute on which the prosecution is founded, are made material to constitute the offence charged. lereof stated o 't, or say '. gui'ty, no judgment of pity or other defendant, called upon 'ved, that if s to be re- he is other- conviction 'port of the but if he admitted to the prose- bis defence, he evidence these prose- ter a consi- iling to the T of convic- ' Statute on ithin which n proof that he coramis- , must also impose, is 3secution is which the 3nt, can le- 3re particu- us, service lation, bail- idence, the and as to II be found . Special ligher des- occur, are Y be filled g taken to tatements, I founded, INFORMATION. Information for Burning a Dwelling Home. 253 ^1^ :,i Be it Remembered, that on the — day of -, in the year of our Lord one thousand eight -, at ■ in the townsliip of , in the County of } hundred and said county, A. C. of the township of , in the said county, yeoman, cometh before me, A. M. Esquire, one of His Ma- jesty's Justices of the Peace in and for the said county of , and complaineth and maketh oath, that on the — day of , in the year of our Lord one thousand eight hundred and , his dwelling house, situate at in the township of in the said county, was, as he verily believes, unlawfully, maliciously, and fehmiously set fire to and burnt ; and that he the said A. C. hath just ciuise to suspect, and doth suspect, that one A. 0., of in the said county, labourer, did unlawfully, ma- hciouily, and feloniously set fire to, and burn the said dwel- ling-house ; and thereupon the said A. C. prayeth the judgment of me in the premises, that my warrant may issue against the said A. 0., to answer the premises. Sworn and exhibited before me, the ) A. C. day and year first above mentioned. A. M., J. P. Information for Uttering Counterfeit Coin : on Stat. 32 G. 2, c. 20, Sec. e. 1 V. 29. , ..a.):,u. i* o v County of ^ The information of A. I, of the township of \ , in the said county of , labourer, taken upon oath before me A. M., Esquire, one of His Majesty's Justices of the Peace for the county aforesaid, the — day of -, one thousand eight hundred and This informant on his oath deposeth and saith, that on the — ciay of last past, at the township of in the said county, A. O. of the township of in the county aforesaid, did unlawfully and deceitfully utter, and pay tolnmthe said A. I., one piece of false and counterfeited money, made and counterfeited to the likeness and similitude of the lawful and current coin of the , called a , lawful and current in this Province ; he the said A. 0. then and there well knowing the said piece of money to have been false and counterfeit. And thereupon he the said A. I. prayeth that justice may be done in the premises. A. I. Before me, f A. M., J. P. If the charge is for counterfeiting, diminishing, or imbas- ing coin, the Information must be filled up accordingly. MTMm ,: I i - i 25h . INFORMATION. Common Form of Information for Felony. County of ) The information and complaint of A. I., of \ the township of — — in the county of , yeouian, made on oath before me A. M., Esquire, one of His Majesty's Justices of the Peace for the said county of ., on the — day of , in the year of our Lord one tiiousand eight hundred and : The said informant deposeth and saith, that yesterday in the night, or early in the morning of this day, [divers goods of him the said A. I., to wit : , have feloniously been stolen, taken, and carried away from the house of him the said A. I., at the township aforesaid, in the county aforesaid, and that he hath just cause to suspect, and doth suspect, that A. 0., late of in the said county, labourer, did steal, take, and carry away the same ;] And thereupon he the said A. I. prayelh that justice ma/ be done in the premises, ' A. I. Before me, A. M., J. P. ' ' If the offence is any other description of felony, the in- formation must of course be filled up according to the material facti^ of the case which constitute such offence. Information for immoderately driving a Carriage ; on Slut. 4, G. 4, c. 23. 3 r. 166. County of ^ The information and complaint of A. I., of ) the township of in the said county of , made before me, A. M., Esquire, one of His Majesty's Jus- tices of the Peace in and for the said county, on the — day of , in the year of our Lord one thousand eig!,t hundred and , Who saith, that on the — day of , in the year afore- said, and within forty-eight hours of the time of exhibiting this information, A. 0., of the township of in the said county, labourer, did, at the town of in the said county, unlaw- fully drive a certain on and over a certain public road in the said town of , in an immoderate, violent, and careless manner, and not in a moderate and careful manner, contrary to the form of the Statute in such case made and provided, whereby the said A. O. hath forfeited the sum of , and hereupon the said A. I. prayeth the judgment of me the said Justice, and that the said A. O. may be summoned to appear before me, to answer the premises. A. I. Before me, ■ »• m : A. M., J. P. Note. a„y other offt obviously re(| jvery case iii of die Act. liformalion , Illation County of veoman, ma jesiy's Justic - day of — hundred and Who sa said, at county, yeo according to the Regulati regulation in Peace for l\ and for the ordered, dii regulation, by reason c become lial said A. L _p that the sait answer the . Before General I County of before me Justices o day of — dred and • The county, y date of th INFORMATION. Note. The foregoing Form will serve in the case of ai.y other offence under the same Act, with only the dift'crence obviously re(|uisite in the statement of the oH'ence, which in every case must be set forth as nearly as may be in the words ofiiie Act- , , Information for Recovery of a Penalty for a Breach of a Reg- ulation of Sessions, made in pursuance of a Statute. County of > The information and complaint of A. I., of ) the township of , in the said county of , yeoman, made before me, A. M., Esquire, one of His Ma- jesty's Justices of the Peace in and for the said county, on the — (Jay of , in the year of our Lord one thousand eight liuiulred and Who says, that on the — day of in the year afore- said, at in the county aforesaid, A. 0. of in the said county, yeoman, did unlawfully [here state the offence according to the facts, and as nearly as maybe in the words of the Regulation,] contrary to the form and effect of a certain regulation in that behalf made by His Majesty's Justices of the Peace for the said county, in General Sessions assembled in and for the said county, in and by which said regulation it is ordered, directed, and declared, that , [here state the regulation, as nearly as may be in the exact words thereof ;] by reason of which offence the said A. O. hath forfeited and become liable to pay the sum of . And hereupon the said A. I. prayeth the judgment of me the said Justice, and that the said A. O. may be summoned to appear before me to answer the premises. ■,...(■ , n- m: r j , fv ,i . ; ,,; . ,. . i.-.hI' • ■■ .'.'".>»' . !',i-,. Si '.'* A. I. . • Before me, ,; •,.; !, i : . ,i A' JSlt, J. i> '"' '..(ii. General Form of an Information before a Justice or Jus- tices, on a penal Statute. County of) The Information and complaint of A. I., of in the said county of , labourer, made before me, [or us as the case may be,] one of His Majesty's Justices of the Peace in and for the said county, on the — day of , in the year of our Lord one thousand eight hun- dred and ' . The said informant saith, that A. 0., of in the said county, yeorpan, heretofore, and within next before the date of this information, to wit, on the — day of , in the 255 ! ■ t' ' 1! ^"J^:.^f,:i [''V,:(,^'dW' '■ :J:i! lif .' ir, IMAGE EVALUATION TEST TARGET (MT-3) '^s ^ 4^ .^ 1.0 ^^ Ui itt Uii 12.2 £ |i£ 12.0 LI FhotogFaphic Sdences Corporation ^ '^ O 23 WIST MAIN STMH WHSTIR.N.Y. 14SM (71«)t72-4S03 5r> /• 256 INFORMATION. I year , at — —^ in the county aforesaid, did [here set Torth the offence, according to the facts, and as nearly as may be in the words of the Statute declaring such offence,] contrary to the form and effect of the Statute in such case made and jpro- vided ; whereby the said A. 0. hath become liable to . Whereupon, the said A. I. prayeth the judgment of me the said Justice, and that the said A. 0. may be summoned to ap- pear before me, to answer the premises. A. I. Taken before me, A. M., J. P. M. INNS AND INNKEEPERS, see TAVERNS. ~H>!:" s- INSOLVENT DEBTORS. Bt Stat. 2 W. 4, c. 58. 4 V . 187, It shall and may be lawful in any case where any person shall have been committed to prison, under any execution by any Justice or Justices of the Peace, in any cause tried and determined before such Justice or Justices, for any two Justices for the county wherein such per- son shall be imprisbned, without fee or reward, to extend the benefit of the Act passed in the third and fourth years of the reign of his late Majesty King George the third, entitled '* An Act for the Relief of Insolvent Debtors," and the Acts in amendment thereof, to every such person who may have been committed to prison as aforesaid, although neither of the said Justices last mentioned may have been one of the Justices by whom the said person may have been committed. Perpetual ^t»> ■ Note. The Act of 3 and 4 Q. 3, mentioned in the foregoing clause, is to be found in the 1st Volume of the Pro- vincial Acts, page 90. The only Acts now in force, in amend- ment thereof, are the 57 G. 3, c. K 3 V. 1, and the before mentioned Act of 2 "W* 4, c. 58. 4 V. 187. As these Acts are very voluminous, and^the examinations of insolvent debtors always takes place in the county town where the several vo- lumes of the Provincial Statutes can readily be referred to, it is deemed quite unnecessary to recite here the several provi- sions of the said Acts. Moreover, it is for many reasons highly desirable to bring this work within the roost moderate compass, consistent with affording to Magistrates all informa- tion really needful to the right discharge of their various duties. INSOLVENT DEBTORS. 257 By the 7 W. 4, c. 47, Sess. 1837, Whenever the per- JJ^J'^'J^J^"' son of any debtor shall have been arrested upon mesne pro- Mesne Pro- cess, it shall and may be lawful for him to apply to the Court, cesR. or Justice, or Justices from whence such process issued, for an order to bring him or her before such Court, or Justice or Justices, in order that he or she may take the benefit of the Acts passed for the relief of Insolvent Debtors ; which order it shall and may be lawful for such Court, or Justice or Justices, to make, in whatsoever stage the proceedings against such debtor may be ; Provided always, that due notice shall be given totlie plaintiff, according to the provisions of the said Acts- Sec. 2. If upon the examination of such debtor, before such Court, or Justice or Justices, he or she shall confess the debt, to the amount indorsed upon the writ, as to the amount agreed upon between the parties, it shall appear that he or she would be entitled to his or her discharge, in case judgment had been entered up against him, or her, it shall be lawful, in whatever stage the proceedings may be, for the said Court, or the said Justice or Justices, to afford to such debtor the relief extended by the said Acts, to debtors against whom judgments have been entered up ; provided always, that the creditor or creditors, if he, she, or they shall think fit, may proceed to perfect a judgment against such debtor, notwithstanding his or her discharge from arrest. Perpetual. As the proceedings under this last mentioned Act may take place before the Justice at his own house, and under such circumstances that he may not have it in his power to refer to the several Statutes before mentioned, relating to insolvent debtors, it is deemed proper to set forth here certain provi- sions of the said Statutes, for (he guidance of the Justice, with reference to such proceedings under the said Act. And first, as to the notice to the plaintiff, which the said Act re- quires, it is provided and enacted by the 57 G. 3, c. 1. 3 V. 2, '^ that the prisoner, or some person on his behalf, shall give two days' notice to the creditor or creditors, at whose suit or JJ**'"?® ** suits the prisoner is charged in execution, or to his or their at- '* ""'' torney or agent, of the time and place appointed by the Court or Justices, to consider the said petition ; and if the said cre- ditor or creditors do not reside within ten miles of the pkoe so appointed, the prisoner shall give an additional day's notice, for every twenty miles from the place of the said meeting, to the residence of the creditor or creditors, or of his or their at- torney or agent. " Perpetual. . . With regard to the examination of a prisoner who has ap- of ihe'iDebtor. plied for his discharge as an insolvent debtor, it is provided by the Statute of the 3 & 4 G. 3, c. 5. 1 V. 90, '* that upon 33 258 INSOLVENT DEBTORS. •sn the day appointed for appearance, if ihe creditor refuse or neg- lect to appear, upon affidavit of the due service of the order of the Justices, the said Justices shall and may, in a summary way, examine into the matter of the petition of the prisoner, and hear what can or shall be alleged on either side, for or against the discharge of such prisoner, and may, and are re- quired to administer or tender to the prisoner, an oath to the effect following : I A. B. do solemnly swear, in the presence of Almighty God, that the account by me delivered into in my peti- tion to doth contain a true and full account of all my real and personal estate, debts, credits and effects whatsoever, which I, or any in trust for me, have, or at the time of my said peti- tion, had, or am or was in any respect entitled to, in posse^ sion, remainder, or reversion, (except the wearing apparel and bedding for me or my family, and the tools or instruments of my trade or calling, not exceeding ten pounds in the whole,) and that I have not at any time since ray imprisonment, or he- fore, directly or indirectly, sold, leased, assigned, or otherwise disposed of, or made over in trust for myself or otherwise, other than as mentioned in such account, any part of my lands, estate. goods, stock, money, debts, or other real or personal estate, whereby to have or expect, any benefit or profit to myself, or to defraud any of my creditors to whom I am indebted. So help me God. " And if the prisoner shall take the said oath, and the ere* ditors shall be satisfied with the truth thereof, the Justices may immediately order the lands, goods, or effects, contained in such account, or so much thereof as may be sufficient to satis- fy the debts wherewith the prisoner is charged, and the fees due to the provost marshall, and the gaoler, to be, by endorsement on the petition signed by the prisoner, assigned to the credi- tors, or one or more of them, in trust for the rest ; and such trustees may take possession of, or sue for the said lands, goods, or effects ; and upon making such assignment, the said priso- ner may be discharged from custody, by order of the said Jus- tices." Sec. 7. Such debtor shall not be again arrested for the same debt, but the judgment shall remain in force, and execu- tion thereon may be taken out against his lands, tenements, goods and chattels, (except his wearing apparel, bedding, and necessary tools of trade.) Perpetual. By the 2 W. 4, c. 58. 4 V. 186, Where any insolvent debtor, detained in prison under execution, shall apply for his discharge, and shall comply witli the directions of the Acts for the relief of insolvent debtors, he shall be forthwith discharged. INSOLVENT DEBTORS. 259 from imprisonment, unless sufficient cause for his further de- tention snail be shewn by affidavit. Sec. 2. Provided, that if it shall appear to the Justices^ or Court, before whom any such prisoner shall be brought, that such debt was fraudulently contracted, or that there have occurred any circumstances in respect of such debt, or the de- lay of payment thereof, which, in the opinion of such Justices, or Court, render it proper that the person should be longer detained in prison, then it shall be lawful for the said Justices or Court to remand the prisoner for such longer period or pe- riods as the said Justices or Court shall consider proper, un- der all the circumstances of the case ; and also, from time to time, to make such further order or orders as the said Justices or Court may judge equitable and proper. Sec. 4. In every case where a person shall be ordered to be discharged upon assigning any real or personal estate, it shall be lawful for the Court or Justices before whom such person is brought, to order all such deeds and instruments of assignment to be executed, as shall by the said Court or Jus- tices be deemed necessary, for the more perfect and satisfac- tory transfer and assignment to the creditor or creditors, of all the real and personal property, ordered to be assigned as afore- said. Sec. 5. The Court or Justices before whom any such RefuBing prisoner may be brought, may, and are hereby empowered, Discharge, to refuse to discharge any such prisoner, if he shall decline or refuse to comply with such terms and conditions as the said Court or Justices may deem reasonable to be entered into, by or on the part of the prisoner, towards the payment in whole 9r in part of the debt or costs for which h& may be confined. Perpetual. i JUSTICES OF THE PEACE. Justices of the Peace, are Judges of Record, appointed by the King to be Justices within certain limits, for the conser- vation of the peace, and for the execution of divers things com* prehended within their commission, and within divers Statutes committed to their charge. And a record or memorial, made by a Justice of the Peace, of things done before him, judici- ally, in the execution of his office, shall be of such credit that it shall not be gainsaid. One {nan may affirm a thing, and ano- ther man deny it, but if a record once say the word, no man shall be received to aver, or speak against it. And therefore 260 JUSTICES OP THi:: FEACE. to avoid all contention, while one saith one thing, and another saith another, the law reposes itself, wholly and solely, in the report of the Judge. And hereof it cometh, that he cannot make a substitute or deputy in his office, seeing that he may not put over the confidence that is put in him. Great cause therefore have the Justices to take heed, that they abuse not this credit, either to the oppression of the subject, by making an untrue record, or the defrauding of the King, by suppressing the record that is true and lawful. Hereof also it cometh, that if a Justice of the Peace, certify to the King's Bench, that any person hath broken the peace in his presence, upon this certificate, such person shall be there fined, without allowing him any traverse thereto. 3 Burn^s, 108. [Such a ceriifi. cate to the Supreme Court of this Province, will doubtless have the same force and effect.] 1. Of the Commission of Justices of the Peace. The Form of the Commission of Justices of the Peace in this Province, at the present day, is as follows : — Province of Nova Scotia. William the Fourth, by the Grace of God, oftheUni ted Kingdom of Great Britain and Ireland, King, Defender of the Faith ; and of the United Church of England and Ire- land on Earth the Supreme Head. To A. B., C. D., &c. greeting. Know ye, that We have assigned you, jointly and severally, and every one of you, our Justices to keep our peace, in our county of , and to keep and cause to be kept, all the ordinances and Statutes for the good of the peace, and for preservation of the same ; and for the quiet rule and govern- ment of our people, made in all and singular their articles, in our said county, (as well within liberties as without,) accord- ing to the force, form and effect of the same ; and to chastise and punish all persons that offend against the form of those or- dinances and Statutes, or any one of them, in the aforesaid county, as it ought to be done, according to the form of those ordinanc'.'ij and Statutes ; and to cause to come before you or any of you, all those, who to any one or more of our people, concerning their bodies, or firing of their houses, have used threats, to find sufficient security for the peace, or their good behaviour towards us and our people ; and if they shall refuse to find such security, then them in our prisons, until they shall iind such security, to cause to be safely kept. We have also JUSTICES OP THE PEACE. assigned you, and every two or more of you, (of whom any oneofyou the aforesaid A. B., C. D., &c. we will shall be one,) our Justices aforesaid, to enquire the truth more fully, by the oath of good and lawful men of the aforesaid county, by vrhom the truth of the matter shall be the better known, of all and all manner of felonies, poisonings, enchantments, sorcer- ies, arts, magic, trespasses, forestallings, regratings, ingros- sings, and extortions whatsoever, and of all and singular other I crimes and offences, of which the Justices of our Peace may or ought lawfully to enquire, by whomsoever, and after what manner soever, in the said county done or perpetrated ; or wiiich shall happen to be there done or attempted ; and also of all those who in the aforesaid county, in companies, against our peace, in disturbance of our people, with armed force, have vone or rode, or hereafter shall presume to go or ride ; and also of all those who shall have there lain in wait, or hereafter shall presume to lie in wait, to maim, cut, or kill any of our people ; and also of all victuallers, and all and singular other persons, who in the abuse of weights or measures, or in selling victuals, against the form of the ordinances and Statutes or any one of them, therefore made for the common benefit of our Province of Nova Scotia, and our people thereof, have offend- ed, or attempted, or hereafter shall presume in the said county to offend or attempt ; and also of all sheriffs, bailiffs, stewards, constables, keepers of gaols, and other officers, who in the execution of their office, about the premises, or any of them, have unduly behaved themselves, or hereafter shall presume to behave themselves unduly ; or have been, or shall happen here- after to be careless, remiss, or negligent in our aforesaid coun- ty ; and of all and singular articles and circumstances, and all other things whatsoever that concern the premises, or any of .hem, by whomsoever, or after what manner soever, in our aforesaid 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 taken, or to be taken, or before others late our Justices of the Peace in the aforesaid county, made or taken, and not yet determin- ed ; and to make and continue processes thereupon, against all and singular the person or persons so indicted, or who be- fore you hereafter shall happen to be indicted, until they can be taken, surrender themselves, or be outlawed ; and to hear and determine all and singular the felonies, poisonings, en- chantments, sorceries, arts, magic, assaults, batteries, breaches of the peace, trespasses, forestallings, regratings, ingrossings, extortions, unlawful assemblies, indictments aforesaid, and all and singular other the premises, according to the Laws and Sta- 261 t 262 JUSTICES OF THE PEACE. tutes of England, and according to the Laws and usages of our said Province of Nova Scotia, not being repugnant thereto, as in the lilce case it has been accustomed or ought to be done ; and the same offenders, and every of them, for their ofTences, by fines, ransoms, amerciaments, forfeitures, and other means, as according to the law aforesaid, or form of the ordinances 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 de- termination of any of the premises, before you, our said Jus- tices of the Peace, or any two or more of you, shall happeD to arise, then let judgment in no wise be given thereon, before you or any two or more of you, unless in the presence of the Chief Justice of our said Province of Nova Scotia, for the time being, or of some one of our Justices of our Supreme Court for the same Province, or of one of our Justices, ap- pointed to hold the Assizes in the aforesaid county. And therefore we command you, and every of you, that to keeping the peace, ordinances. Statutes, and all and singu- lar other the premises, you diligently apply yourselves ; and that 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 enquiries ; and all and singular the premises hear and determine, and perform, and fulfil them in the aforesaid form, doing therein what to justice appertains, according to the law and custom of England, and according to the laws and usages of our said Province of Nova Scotia, not being repugnant thereto. Saving to us, the amerciaments, and otlier things to us therefrom belonging ; and we command, by the tenor of these presents, our Sheriff of our 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 bim, he cause to come before you, or such two or more of you as aforesaid, so many, and such good and lawful men of our said county, (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 said A. B., Esquire, Keeper of the 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 indictments 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 our truly, &c. &,c. at Halifax, &c. Know ye that we luive assigned you.] This is founded mission ar notice, oi JUSTICES OF THE PEACE. ■ on the English Statute of the 1 Ed. 3, o. 16, by which, *' for the belter keeping and maintenance of the peace, the King wills, that in every county, good men and lawful, which be no main- iiiners of evil, or barretors in the country, shall be assigned to keep the peace." From this Act we are to date that great alteration in the English Constitution, whereby the election of conservators of the peace was taken from the people, and translated to the assignment of the King. And here we may observe, that the Commission hath two parts, or consists of two different assignments. By this first assignment, any one or more Justices have as well all the ancient power, touching the peace, which the conservators of the peace had at the com- mon law, as also that whole authority which the Statutes have since added thereto. The second assignment defines their powers in Sessions. [See Title, — Sessions.] Jointly and severally y and every one of you.] Whatso- ever any one Justice alone may do, the same also may law- fully be done by any two or more Justices ; but where the la\r gives authority to two, there one alone cannot execute it. And yet where a Statute appoints a thing to be done by two Justices, or more, if the offence be any misdemeanor, or mat- ter against the peace, there, upon complaint made of the of- fence to any one of those Justices, it seems that one of them may grant out his warrant to attach the offender, and to bring him before the same Justice, and the other Justice so appoint- ed, (at some convenient place,) and then they to hear and de- termine the same. . But it seems that when a thing is appointed by any Statute to be done, by or before one person certain, such thing cannot be done by or before any other ; and by such express designation of one, all others are excluded, and their proceedings therein are, — coram non judice. Our Justices.] In that the King calls th^*n our Justices, their authority determines of course by his ti a'h or demise. But by the 1 Anne, Stat. 1, c. 8, § 2, No patent, or grant of any office or employment, shall determine by the King's death or demise, but shall continue in force for six months after, un- less in the mean time made void by the successor. Also, be- fore his death or demise, the King may determine the Commis- sion at his pleasure ; and that either expressed, as by writ un- der the Great Seal, or by implication, by making a new Com- mission and leaving out the former Justices' names. But until notice, or publishing of the new Commission, the acts of the former Justices are good in law. To keep our peace.] By these words, our peace^ when the King dies, the surety of the peace is discharged, for when he is dead, it is not his peace. 263 It.' .■ '•'nil Ml m 264 JUSTICES OF THE PEACE. Indoraing Warrants is- sued in ano- ther County. In our eotmiy of .] Here are two consideraiions ; one is, how far a Justice can act when he is out of the county ; and the other is, when he is in the county, how far his power extends to other counties. As to the former case, when he is out of the county, it is said, that the Justices have no coercive poxver when out of the county ', and therefore, that an order of ! bastardy, or for payment of labourer's wages, made by them out of the county, is not binding. Yet it is said, that recoct- zancei, and informations voluntarily taken before them, in any place, are good. And Lord Hale says, that a Justice of the Peace may do a ministerial act out of his county, as examining a party robbed, as to his knowledge of the felons, but that he cannot do a compulsoiy act, as committing a person for not giving recognizance. Justices, either of the county from which tenants fraudulently remove goods, or of that in which they are concealed, may convict the offenders in their respective coun- ties. Unless facts are stated to make the contrary appear, the Court always presumes in favour of the acts of inferior juris- dictions. 3 Bum'Si 113 — 16 By 54 G. 3, c. 15, § 7. 2 V. 122, In case any person against whom a warrant shall be issued, by any Justice or Jus- tices of the Peace of any county, district, or place out of the jurisdiction of the Justice or Justices granting such warrant, it shall be lawful for any Justice or Justices of the Peace, of the county, district, or place, where such person shall escape, go into, be, or reside, and such Justice or Justices is, and are, hereby required, upon proof being made upon oath of the hand- writing of the Justice or Justices granting such warrant, to in- dorse his or their name or names on such warrant, which shall be a sufficient authority to the person or persons bringing such warrant, and to all other persons to whom such warrant was originally directed, to execute such warrant in such other county, district, or place, out of the jurisdiction of the Justice or Justices granting such warrant as aforesaid, and to apprehend and carry such offender or offenders before the Justice who indorsed the warrant, or some other Justice or Justices of such other county, district, or place where such warrant was indorsed ; and in case the offence shall be bailable in law, and the offender shall be ready and willing to give bail, for his ap- pearance at the next sitting of the Supreme Court, or next General Quarter Sessions of the Peace, to be held in and for the county or district within which the offence was committed, such last mentioned Justice or Justices shall and may take bail or bail of such offender or offenders, for such appearance, in the same manner as if the Justice or Justices of the Peace of the county, district, or place where the offence was com- I was com- JUSTICES OF THE PEACE. lilted might have doiie ; and the Justice or Justices who shall take bail as aforesaid, shall deliver the recognizance, toe;ether ivith the examination or confession of such oflender, or uifcn- ders, and all other proceedings relative thereto, to the Constable or other person so apprehending such offender rjs aforesaid, who is hereby required to receive and deliver over such re- cognizance, examination, and other proceedings, to the Clerk of the Supremo Court, or Clerk of the Peace of the county or district where such ofiender or offenders is or are required to appear by virtue of such recognizance. And in case the of- fence for which such offender or offenders shall be so appre- hended and taken, be not bailable in law, or such offender or offenders shall not give bail for his or their appearance as afore- said, to the satisfaction of the Justice or Justices before whom he or they shall be brought as aforesaid, then, and in that case, (he said Constable or other officer, shall carry and convey such offender or offenders before one of His Majesty's Justices of ibe Peace of the county, district, or place where such ofl'cnce was committed, there to be dealt with according to law. Perpetual. And to keep and cause to be kept all ordinances and Sta- Ivttsfor the good of the peace.] It seems certain, that by vir- tue hereof, they may execute all Statutes whatsoever, made for the better keeping of the peace, as well those Statutes made before the reign of Ed. 3, in whose time Justices of the Peace were first instituted, as those made since. The power, however, of Justices of the Peace in relation to those former Statutes, seems entirely to depend on the King's Commission, and yet hath always been unquestionably allowed. From whence it appears, that regularly the King, by his Commis- sion, may authorise whom he pleases to execute an Act of Parliament. But if no power be expressly given in any such Statute, to any one Justice alone, he cannot proceed upon it, but he may prefer the cause at the Sessions, and work it to a presentment upon the Statute. But besides the Statutes re- lating to the peace, there are also many other Statutes, which are not specified in the Commission, and yet are committed to the charge and care of the Justices of the Peace, by the ex- press words of such Statutes ; and all such Statutes are to them a sufficient warrant and commission of themselves, al- though they be not recited in the Commission, and are to be executed by them, according as the same Statutes themselves do severally prescribe and set down. Jlndj'or the quiet government of our people.] Of our people ; — yet it seems that the subjects of a foreign prince,, coming into the country, and living under the protection of 34 265 ij 266 JUSTICES OP THE PEACE. our King, shall be subject to, and hnvo the benefit of the laws in respect of the local alleg;iance which they owe to him. Concerning their bodies.] If a man is in fear that another will hurt his servants or cattle^ or other goodtf the surety of the peace shall not be granted ; but if one threatens to hurt a man's tri/e, or childy he may crave the peace by virtue of these words. Have need threats.] It should seem, from the many causes which from time to time have been adjudged sufficient to bind to the good behaviour, that this expression is not to be understood of words only, but of threatening actions like- wise ; or any thing whereby a man has just cause to apprehend the burning of his houses, or some bodily hurt to be done to him. \rin, 1 To find sufficient security.] This is done by recogni- zance ; by a reasonable intendment of law, more than by any especial law in that case provided. For the peace or their good behaviour.] A Justice of the Peace is authorised to require surely of the peace for a limited period, (e. g. two years,) according to his discretion, and that he need not bind the party over to the next Sessions only. In our prison.] The King's prison is the common gaol of the county. S Burn*Sj 118 — 121, [Note. But by sundry Statutes, Justices of the Peace are authorised to commit for certain offences, either to the gaol, or to the house of correc- tion, according to their discretion.] A Justice of the Peace has authority to issue his warrant for the arrest of a party, charged with having published a libel, and upon his neglect to find sureties to answer the charge, he may commit him to prison, there to remain till delivered by due course of law. 3 /?«m'», 254 — 799. The publishers and distributors of impious and seditious libels, may be in- stantly taken up by a warrant of a Justice, and held to bail. 3 Burn's, 253—255. IVe have also astigned you and every two or more of you.] Here begins the second part of the Commission, or the second assignment ; all the business within which assignment belongs to the Sessions of the Peace. And by this it appears that two Justices may hold a Sessions, but that one Justice cannot. f By the oath of good and lawful men.] That is, by a Jury sworn. Of all and all manner of Felonies.] That is, either by the common law, or by Statute. Though the! Commis- sion doth not mention murders and manslaughters, by ex- press name, but only felonies generally, yet by these general words they have power to hear and determine murder and venience, ni JUSTICES OF THE PEACE. 267 nuiiislaughter , and also may take an indictment of $e defen- itwlo. But tliougii the Justices have this power, yet they do not ordinarily proceed to hear and determine these of}unce». ind rarely other offences without clergy. In cases of great moment, they bind over the prosecutors, ond bail the party, if bailable, to the next gaol delivery ; but in smaller matters, as petit larceny, and some cases within clergy, they bind over to the Sessions. But this is only a point of discretion and con- venience, not because they have not jurisdiction of the crime. So, also, an inquisition of self murder^ if the body cannot be seen, and so not en(|uircd of by the Coroner, may be taken before Justices of the Peace, for it is a felony, and within the extent of their Commission. So, also, if a person hath com- mitted treason, though the Justices have no cognizance of it as treason, yet they have cognizHncc of it as a felony, and as a a breach of the peace ; and therefore, o Justice of the Peace, upon information on oath, may issue his warrant to take the traitor, and may take his examination and commit him to prison. Trespasses. ] This is founded on the Statute of the 34 Ed. 3, c. 1, which enacts, that the Justices assigned, shall have power to restrain the offenders, rioters, and all other bar- rators, and to chastise them according to their trespass or of- fence. And upon this Mr. Hawkins observes, that the word tnspasSf is of very general extent, and in a large sense, not only comprehends all interior offences which are properly and di- rectly against the peace, as assaults and batteries, and such like, but also all others which are so, only by construction, as all breaches of the law in general are said to be. Yet it hath been settled, that Justices of the Peace have no jurisdiction over forgery, or perjury at the common law, for inasmuch as tbe chief end of the institution of these Justices was, for the preservation of the peace against personal wrongs, and open violence, and the word trespass in its most proper and natural sense, is taken for such kind of injuries, it shall be understood in that sense only, in the said Statute and Commission ; or at the most to extend to such other offences only, as have a direct and immediate tendency to cause such breaches of the peace, as libels and such like, which, on this account have been ad- judged indictable before Justices of the Peace. 3 J3urn'«, 121—3. ForestallingSy regratings^ engrossings.] The operation of the Statutes of this Province against these offences is sus- pended at present, but they still continue offences, punishable by indictment at the common law. Extortions.] The intent of this word is, to enquire of those who have done excessive wrongs ; for wrong done by n ■| 268 JUSTICES OF THE PEACE. any one is properly trespass, but excessive wrong done by any one is called extortion ; and this is more properly in offi- cers, as sheriffs, mayors, bailiffs, escheators, and other officers whatsoever, (as well spiritual as temporal,) who by colour of their ofHce, have done great oppression and excessive wronz to the King's subjects, in taking excessive rewards, or fees for doing their offices. The Justices have no express power given to them over this offence, by any Statute ; upon which Mr. Hawkins observes, that Justices of the Peace have juris- diction of all inferior crimes within their Commission, whether such crimes be mentioned in any Statute concerning them, or not, for that all such crimes are either directly, or at least by consequence and judgment of law against the peace ; and upon this ground principally, he says,, as he apprehended, it was lately resolved, that they may take an indictment of extortion. Jind of all and singular other crimes and ojffences of which the Justices of our peace may or ought lawfully to enquire.] Which general words seem to include the vast number of of- fences over which they have a jurisdiction given to them, by many Statutes, and which are not particularly mentioned in the Commission. ^nd also of all those who in companies, against ourpeact, in disturbance of our people , with armed force have gone or rode.] By these words, they are to enquire of riots, routs, and all unlawful assemblies. 3 Burn^s., 123. Weights or Measures.'] Selling by false weights or measures, is a misdemeanor at common law, indictable before Justices of the Peace. [Also, see Title, — Weights and Mea- sures. »^nd also of all sheriffs., bailiffs., stewards., constables, keep- ers of gaols, and other officers, who in the execution of their offices have unduly behaved themselves.] This clause is as ancient as the 4 Ed. 3, c. 2, on which ii is founded. And it hath been suffered to remain in the Commission, not as of any ne- cessity at all, (since it is incident to every Court of Record to do correction upon whatsoever officers and ministers do serve them,) but only for the plainer declaration of the power of these Justices in that behalf, and for the more assured terrifying of such as shall, either of contempt or negligence, do that which is amiss. t^nd to inspect all indictments so before you taken.] But they cannot proceed upon indictments taken before Coroners, or Justices of Oyer and Terminer, or gaol delivery. Or before other our late Justices.] This is founded on the Stat. 11, H. 6, c. 6, which enacts, that no indictment, plea, s jit, or process, shall be discontinued by a new Commis* JUSTICES OF THE PEACE. 269 sion, but the Justices in the new Commission, after they shall have the records of the same pleas and processes before them, shall have power to continue the said pleas and processes, and to hear and finally determine the same, as the former Justices might have done. And to make and continue processes.] This is by rem're, distringas, capias, or exigent, as the case shall be. And it dif- fers from a warrant in that a warrant is only to attach and con- vene the party before indictment, and may be either in the name of the King or of the Justice ; but the process, issues after indictment, and must be in the name of the King only. Until they can be taken, surrender themselves, or be out- lamd.] For the process is sent out to this end, that either the party shall come in to answer and to be justified by the law, or else that he shall, for his contumacy, be deprived of the benefit of the law. Hear and determine.] This power was first given to them by the Statute of the 18 Ed. 3, c. 2, and afterwards confirmed and enlarged by divers other Statutes. Yet this clause doth not, in propriety, make the Justices of the Peace Justices of Oyer and Terminer, because that is a distinct Commission ; and therefore a Statute limiting an offence to be heard and determined before Justices of Oyer and Terminer, gives not the power therein to Justices of the Peace. And thereupon it is said, that although they have power to hear and determine felonies, yet they cannot deliver a person suspected thereof, by proclamation, (as Justices of gaol delivery may,) until an inquisition taken ; but if an inquisition be taken, and an ignoramus found, they may deliver him as it seems. Like- wise, ahhough Commissioners of Oyer and Terminer may in- dict and try at the same Sessions, yet it hath been ruled other- wise in cases of Justices of the Peace, unless by consent : but certainly, constant usage and learned opinion must give that exposition upon those resolutions that it must extend only to popular actions or indictments for misdemeanors, and not to cases of felony. By fines, ransoms, amerciaments, forfeitures, and other means, — to chastise and punish.] But the Justices may not award any recompense to the party wronged, otherwise than by persuasion. Nevertheless these words are inserted, not as of necessity, (for the punishment of all offenders is implied in the word determine,) but for the plainer declaration of the Justice's power, and for the more assured terrifying of offen- ders. If a case of difficulty shall happen to arise.] That is a difficulty in point of law. Then let judgment in nowise be given.] But yet if they ;;^l 210 .iS* JUSTICES OF THE PEACE. list to proceed without the Judges' advice, their judgment is notl void ; but it stands good and effectual until it be reversed by al superior Court. ^i certain days and places,] That is; when they holdl their Sessions, which they are empowered and required to dol by several Statutes. 3 Burn^Sy 124 — 5. For further particulars resppciing the powel-s and duties ofl Justices in Sessions, and their manner of proceeding therein, see Title, — Sessions. Ifv Oaths op Office to be taken by Justices of| THE Peace. 1/ . ■' V . , On renewing or issuing a Commission of the Peace, there comes a writ of dedimus potestatum, directed to some ancieni Justice (or other,) to take the oaths of office of the person or persons named in such Commission. In addition to the oath I of oflice, the oaths of allegiance and supremacy are usually taken. The form of the oath of office is as follows : ^'Ve| shall swear, that as Justice of the Peace in the county of , in all articles in the King's Commission to you directed, you shall do equal right to the poor and to the rich, after your cun- ning, wit, and power, and after the laws and customs of ilie realm, and Statutes thereof made ; (and after the Statutes of | this Province.) And ye shall not be of counsel of any quarrel hanging before you ; and that ye hold your Sessions after the form of the Statutes thereof made ; and the issues, fines, and amerciaments that shall happen to be made, and all forfeitures which shall fall before yoU) ye shall cause to be entered with- out any concealment, (or embezzling,) and truly send them to the King's Exchequer. Ye shall not let for gift, or other cause, but well and truly ye shall do your office of Justice of the Peace in that behalf : And that you take nothing for your office of Justice of the Peace to be done, but of the King, and fees accustomed, and costs limited by Statute. And ye shall not direct, nor cause to be directed, any warrant (by you to be made) to the parties, but ye shall direct them to the Sheriff of the said county, or other the King's officers or ministers, or other indifferent persons to do execution there- of. So help you God. " This oath seems to be founded on the Statute of the 13 R. 2, c. 7, which enacts, that the Justices shall be sworn duly, and without favour, to keep and put in execu- tion all the Statutes and ordinances touching their ofHce. 3 Burn's, 125. JUSTICES OP THE PEACE. 271 llll. Some General Directions relating to Justices OF the Peace, not falling under any particular Title of this Book. Regularly, Justices of the Peace ought not to execute jtbeir office in their own case, but cause the offenders to be IcoDvened or carried before other Justices, or desire the aid of Lnie other Justice being present. The Mayor of Hereford was laid by the heels, for sitting in judgment in a cause where be himself was lessor of the plaintiff in ejectment, though he by ihe charter was sole Judge of the Court. Neither can a Jus- tice act at Sessions, where a matter, which concerns any office bemay hold, comes in question. An order of removal of a poor person was quashed, because one of the Justices who made ttie order, was at the time an inhabitant of the place from nbence the pauper was removed, and charged to the poor rate tberc. And by the Court, no rule of law or reason is more I established, than that a Judge ought to stand disinterested. Yet in some cases, if the Justice shall act in his own cause, it seems to be justifiable, as when a Justice shall be assaulted, I or (in the doing his office especially) shall be abused to his face, and no other Justice present with him ; then it seems he may commit such offender until he shall find sureties for the peace orgood behaviour, as the case shall require. But if any other Justice be present, it were fitting to desire bis aid. If a Jus- tice exceed his authority in granting a warrant, yet the officer must execute it, and is indemnified for so doing ; but if it be a case in which he hath no jurisdiction, or in a matter whereof he bath no cognizance, the officer ought not to execute such warrant, so thai the officer is bound to take notice of the autho- rity and jurisdiction of the Justice. [But see hereafter, the Act respecting the protection of Justices, constables, and other of- ficers, with regard to the execution of warrants.] If a Justice send a warrant to a constable to take up one for slander, or the like, the Justice hath no jurisdiction in such cases, and the constable ought to refuse the execution of it. Where an Act of Parliament, gives power to two Justices finally to Ijear and determine any ofiience, or when they are to do any othev judicial act^ as making an order of bastardy, — ad- judging the settlement of a pauper, — appointing Overseers of the poor, — allowing the indentures of a parish apprentice, and such like, it is necessary that they should be both together to hear the evidence, and to consult together. In respect to granting a supersedeas in bailable offences, it is said, that the legahty of it is very doubtful, and that at any rate it cannot hold where the party is convicted in the first JiiHtice not to uc\ in his own I\ \\ f':-l^:\'A Assaulting or Abusing aJus- tice. I * »■* I 'ill Ir ''» Where Justi- ces should be together when acting jointly. uM I'll! 1 I 272 JUSTICES OF THE PEACE. Hearing n pnrty bolore convicting him. Refusing to ant. Making Rfi- cords. Wliere a Warrant is to be issued. >7 instance as a rogue and vagabond, and committed in exeauion for there he is clearly not bailable. In summary convictions, the party ought to be heard, and for that purpose ought to be summoned in fact ; and if the Jus- tice proceed against a person without summoning him, it would be a misdemeanor in him, for which an information would lie. But before an information is granted, the Court will first re- quire that the conviction be removed before them. When a Justice is convicted on an information, he must appear in Court, in person, to receive judgment. If a Justice of the Peace refuses to proceed in a cause de- pending before him, a mandamus may be issued to compel him to do so, and to JetPrmine the matter.iiMt. <■■ Where a special authority is given to Justices out of Ses- sions, it ought to appear in their orders, that such authority was exactly pursued. In all cases where Justices may hear and de- termine out of Sessions, (viz., on their own view, or confes- sion, or oath of witnesses,) the Justice ought to make a record in writing under their hands, of all the matters, and proofs ; which record notwithstanding in many cases they may keep by them. In all cases of convictions, the Justices should return the convictions to the next Sessions. On the point, whether a Justice may issue his warrant for offences cognizable only in the Sessions, Mr. Hawkins saith thus : It seems that anciently no one Justice could legally make out a warrant for an offence against a penal Statute, or other misdemeanor, cognizable only by a Sessions of two or more Justices, for that one single Justice hath no jurisdiction of such offence ; and regularly, those only who have jurisdiction over a cause can award process concerning it, yet the long, constant, universal, and uncontrolled practice of Justices of the Peace, seems to have altered the law in this particular, and to have given them au authority in relation to such arrests, not now to be disputed. However, it seems best in ordinary cases, and more consonant to the practice of the Superior Courts, to issue a summons against the offender, and not a warrant in the first instance : unless in cases of felony, or where the offender in other respects is to suffer corporal punishment. 3 Burn's^ 129 to 131. (Note. In these last mentioned cases, a warrant in the first instance is the only proper process.) An Attorney has no right to interfere with the duties of a Magistrate in his own Justice room, and therefore, where a criminal information was moved for against two Justices, on the ground of their having deprived the defendant of legal assistance, by excluding his Attorney from the Justice room, (no corrupt motive being imputed to the Magistrates,) the Court refused to JUSTICES OF THE PEACE 273 interfere. One Judge said, it might be a different thing where counsel are employed, but an Attorney in all events has no right to he present. 3 Bum's, 133. By the 39 G. 3, c. 10. 1 V. 409, »' If any Justice in General Sessions, shall quit the Court without leave, before the business of the day is completed, his name shall not be entered by the Clerk, as present on that day. The names of Justices who wholly neglected to attend at any terra of the General Sessions, shall be returned into the Supreme Court by the Clerk of the Peace, and if no sufficient excuse is given, they shall be reported to the Governor and removed from office. Justices are required and bound to attend every term of the Supreme Court, on being summoned by the Sheriff fourteen davs previous. Nothing in the Act to extend to such as are Justices of the Court of Common Pleas." Perpetual. By the 7 W. 4, c. 15, Sess. 1837. " No Magistrate, or Justice of the Peace, (except in the town of Halifax,) shall be allowed or considered eligible to hold or take out any tavern license for the retail of ardent spirits. Temporary. '• - -■ IV. Their Indemnity and Protection by the Law, IN THE RIGHT EXECUTION OF THEIR OfFICE ; AND THEIR Punishment for the Omission of it. H'»f Attendance in HebsiouH and Supreme Court. A Justice of the Peace is strongly protected by the law, in the just execution of his office. In the first place, he is not to be slandered or abused. In an action by a Justice of the Peace, for these words spoken to him in a discourse concerning the execution of his office — You are a rascal, a villian and a liar, the Court determined, that though rascal and villain were uncertain, yet being joined with liar, and spoken of a Justice of the Peace, they did import a charge of acting corruptly and partially, and therefore there ought to be judgment for the plaintiff. It has been determined that an indictment lies for saying of a Justice in the execution of his office — " You are a rogue and a liar. In this case the Court said. The allowing the de- fendant might be committed, shews that the words were in- dictable. It is true the Justice may make himself Judge, and punish him immediately : but still, if he thinks proper to pro- ceed less summarily, by way of indictment, he may. The true distinction is, that where the wcM'ds are spoken in the presence of the Justice, there he may commit ; but where it is behind his back, the party can only be indicted for a breach of the peace. ~ ■■..'vii*y^4,-,^^»>^,mr^- Whether a Magistrate, not sitting as Chairman of a 35 Where Justi- ces may com- mit for abuse. 2U ■ ? ' JUSTICES OF THE PEACE. Court, but in his private office, can commit for a contempt, does not appear to have been expressly decided. Clearly, however, such a commitment by way of punishment, made by word of mouth only, without warrant in writing, cannot bo supported, for it is clearly laid down by Hawkins and Lord Hale, that such a commitment by a Magistrate must be mode by warrant in writing. 3 Burn^s, 134. .,<^ The following Forms of Commitment for insulting a Jus- tice in the execution of bis office, are given by Mr. Toooe, and Mr. Chitty, and are also to be found in 3 Bum '5, 135-- 6. .r To the Constables of the township of in the county of , and to the keeper of the common gaol, at in the said county. „^ „,.... ,, ,v ,,. County of ) > Whereas A. B., being personally present to wit. 5 this day, at in the said county, before me, S. P., Esquire, one of His Majesty's Justices of the Peace in and for the said county, to answer and make his defence to a certain information before me exhibited against him, for— [state the offence,] and being so personally present before me, hath this day been guilty of divers gross insults and contempt- uous behaviour to me the said Justice, then being in the actual execution of my office, as such Justice of the Peace as afore- said, by accusing me of partiality and injustice in the execution of my office, [or as the case may be.] And whereas the said A. B., in consequence of such his insolent and con- temptuous behaviour, is now here by me the said Justice re- quired to find sureties for his good behaviour ; that is to say, two sufficient sureties to become bound with him in a recogni- zance in the sum of — pounds each, conditioned for the per- sonal appearance of the said A. B. at the next General Sessions of the Peace to be holden in and for the said county, and that in the mean time he should be of good behaviour ; but that the said A. B. hath refused to find sureties, and to become bound in such recognizance as aforesaid. These are therefore to command you, the Constables of the township of afore- said, to convey and deliver the said A. B. into the custody of the keeper of the common gaol at in the said county, together with this my warrant ; and I hereby command you the said keeper, to receive the said A. B. into your custody in the said county gaol, and him there safely to keep, until he find such sureties, and enter into such recognizance, or be from thence otherwise delivered by due course of law. Given un- '«»^=»^ ="*»'ll*'.«r*'1^^^> v/;- '^-t ir^^9-tu^-»'f=f^ ^^'■-yr'fv^^^ir'/^^y -•>? > fi^v-.-w^ -■;•>- JUSTICES OP THE PEACE. 275 der my hand and seal at in the said county, this — day of^ , in the year of our Lord . - S. P., J. P. , [Seal.] To the Keeper of the Common Gaol at , in the county of — — . County of) Receive into your custody the body of C. . > D'j herewith sent you by me, A. M., Esquire, to wit. ) one of His Majesty's Justices of the Peace in and for the said county, and charged by me the said Justice, upon the view of me, A. M., Esquire, one of His Majesty's Justices of the Peace in and for the said county, for indecent behaviour, by insulting me and obstructing me in the due execution of my office as a Magistrate as aforesaid, against the peace, &c. Her therefore safely keep in your said custody, for want of sureties, or until she shall be discharged by due course of law, 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 -. . A. M. [Seal.] i Si KU-: ' punishuble. A Justice of the Peace is not punishable at the suit of the Where a Jus- party, but only at the suit of the King, for what he doth as ticeisorisnoi Judge in matters which he hath power by law to hear and de- termine without the concurrence of any other : but in cases where he proceeds ministerially rather than judicially, if he act corruptly, he is liable to an action at the suit of the party, as well as to an information at the suit of the King. Where an information was moved for against two Justices, for arbitrarily and unreasonably refusing to grant an alehouse li- cence, Ld. Mansfield, Ch. J., declared, that the Court of King's Bench hath no power or claim to review the reasons of Justices of the Peace upon which they form their judgments in granting licences, by way of appeal from their judgments, or overruling the discretion in that behalf entrusted to them. But if it clearly appear that the Justices have been partially, mali- ciously, or corruptly influenced in the exercise of this discre- tion, and have (consequently) abused the trust reposed in them, they are hable to prosecution by indictment or information, or even possibly by action, if the malice be very gross and in- jurious. If ihe'ir judgment is wrong, yet their heart and inten,' ftonpure, they cannot be punished. And he declared, that he should always lean towards favouring them, unless partiality, corruption, or malice should clearly appear. And another of the Judges explicitly stated, that the rule is invariable, that the Court will never interpose to punish a Justice of the Peace for 27G JUSTICES OF THE PEACE. Statute for protection of Jn«tice8. •►.tT, i ) 3-4 c' a mere error in judgment. The rule to shew cause was disj charged with costs. In another case, the Court were most explicit in their de-l claration, that even where a Justice acts illegally, yet if he has acted honestly and candidly, without oppression, malice, re| venge, or any bad view or ill intention whatsoever, the CourJ will never punish him in the extraordinary mode of an infor- mation, but leave the parties complaining to their ordinary logall remedy, or method of prosecution, by action or by indicunem. But if they act improperly, and knowingly, information shall be granted, as in two cases for granting ale licences, pre- viously refused by other Justices on good grounds, informatiuns were granted. And a Justice shall not be liable to be punished both ways, I that is both criminally and civilly, but before the Court will | grant an information, they will require the party to reiintjuisli his civil action, if any such is commenced. By 54 G. 3, c. 15. 2 Y. 121, Any action against a Jus- tice of the Peace, for any thing done by him by virtue of hi? office, shall be laid in the county or district where the fact! complained of was committed, and the Justice or Justices may plead the general issue to such action, and give the special matter in evidence. Sec. 2. No writ shall be sued out, nor any summons or process at the suit of a subject shall be served on any Jus- tice, for any thing done by him in the execution of his office, until notice of such intended writ or process shall have been delivered to him, or left at his usual place of abode, at least one calendar month before the suing out or serving the same ; in which notice shall be plainly expressed the cause of action which such party has, or claims to have against such Justice, and the party or his Attorney shall affix his name and place of abode to the said notice. Sec. 3. Such Justice may at any time within one calen- dar month after such notice given, tender amends to the party complaining, or to his Attorney ; and if the same is not accept- ed, he may plead such tender in bar to the action, together with the plea of not guilty, and any other plea with leave of the Court ; and if upon issue joined, the Jury shall find the amends tendered to have been sufficient, they shall give a ver- dict for the defendant ; and in such case, or if the plaintiff shall be a nonsuit, or shall discontinue, or if judgment be given for the defendant upon demurrer, the Justice slial! be entitled to the like costs as if he had pleaded the general issue only. And if the Jury shall find that no amends, or not suffi- cient were tendered, and abo against the defendant on such JUSTICES OF THE PEACE. 277 other plea, they vhall give a verdict lor ilie plnintif}', and surli damages as they shall think proper, which he shall recover with costs. Sec. 4. No such plaintifT shall recover any verdict against such Justice in any case wlien the nclion shall be grounded on any act of the defendant as Justice oi' the Peace, unless it appear on the trial, that the action is laid in tliu county or district where the fact complained of was connnit- ted, and unless also it is proved en tlie trial of such nclion, ilmt such notice was given as afuresiiid ; but in default tliereul, such Justice shall recover a verdict and costs as aforesaid. Sec. 5. If the Justice shall neglect to tender amends, or shall have tendered insufficient, before the action brought, he may by leave of the Court, before issue joined, pay into Court such sum as he shall see fit, whereupon such proceed- ings and judgment shall be had as in other actions where thu defendant is allowed to pay money into Court, jhi . /^m, Atiyitel Sec. G. And no evidence shall be permitted to be given by the plaintiff on the trial of any cause of action, except such as is contained in the notice aforesaid. Sec. 10. No action shall bo brought against any Justice for any thing done in the execution of his oflice, unless coni- inenced within six months after the act committed. Perpetiml. By the 10 G. 4, c. 44. 4 V. 09, " Jn actions against Justices for any of their proceedings under any British or Pro- vincial Statutes, they may give all such proceedings in evi- dence under the plea of the general issue, or any other brief plea. Perpetual. Magistrates are protected in an action of trespass by a subsisting conviction, good upon the face o( \t.'d.,^,i,Jt^.k.i,,. In an action against a Magistrate for a malicious conviction, it is not sufficient for the plainiiff* to shew that he was innocent of the offence of which he was convicted, but he must also prove from what passed before the Magistrate, that there was a want of probable cause. If a Justice will not, on complaint to him made, execute his office, or shall misbehave in his office, the party grieved may move the Court of K. B. for an information, and after- wards may apply to have him put out of the commission. The Court will grant an information against a Justice, as ivell for refusing or criminally neglecting to act on any given occasion, as for misconducting himself in his office. Any fraud or mis- conduct imputed to Magistrates in proceeding, notwithstanding the issuing of a certiorari, may be a ground ibr a criminal pro- ceeding against them, and Ld. Kenyon said, he believed there were instances in which a criminal information had been grant- ed against Magistrates, acting in Sessions. 3 Burn's, 143-4. act. Jii Vi 'i (9 i •; ^:A>. 278 I JuMtico coin- iniiting firat AhuuiiIi. JUSTICES OF THE PEACE. But the Court refused a criminal information against a Magistrate, for returning to a writ of certiorari, a conviciiun of a party, in another and more formal shape than that in which it was first drawn up, and of which a copy had been delivered to the party convicted, by the Magistrate's Clerk, the convic- tion returned being warranted by the facts. An information was moved for against the defendant, for assaulting and beating a Justice of the Peace in the execution of his office. On shewing cause, the question was, whether the defendant could justify, the Justice having struck him first. Lord Hardwicke, C. J. said, '' He may justify it, for though a Magistrate is protected by the law, whilst lie is in the exe- cution of his office, yet in this instance he hath forfeited thai protection by beginning a breach of the peace himself, o Burn's, 144. The acts of a Justice of the Peace who has not duly qua- liBed, are not absolutely void , and therefore, persons seizing goods under a warrant of distress signed by a Justice who had not taken the oaths at the General Sessions, nor delivered in the certificate required, are not trespassers. 3 Burn^s, 700. For the proceedings relating to convictions before Justi- ces, and for a general Form of Conviction, see Title, — Con- viction. Other matters relating to the very extensive office of this Magistrate, will be found under the several appropriate Titles of this Book. u.-. a.; i^^.v;, yj^ii 'fw:i- jm: Ji.' LANDLORD AND TENANT. IM.' By 19 G. 3, c. 10. 1 V. 217, Upon complaint on oath made before any two Justices of the Peace, of any wrongful or unlawful holding over of any tenant, after the expiration of his term, of any houses, lands or tenements, or other posses- sions where such Justices reside, after possession demand- ed, and warning having been given to such tenant, in manner as is hereafter mentioned, to remove, it shall and may be law- ful for such Justices, by warrant, to cause such tenant or ten- ants, or other person in possession, to be arrested and detain- ed in custody until he, she, or they, find sufficient security for personal appearance at the next Supreme Court, there to answer such complaint, hi ni t-iimx^a^i^lf: oi~b '»«»«««} By Sec. 2, the Supreme Court shall enquire into the cause of detention, and if upon trial by a jury, it shall be found to be illegal, the Court by writ shall cause the owner to LANDLORD AND TENANT. be repossessed of his property ; and the party grieved inny liy action recover treble rent and costs. Sec. 3. When any house or tenement shall be let by iho year, three months worning shall be given ; and when by ihe month, one month's warning ; and when by the week, one week's warning shall be given to the tenant in possession. Ptrpetual. There is no distinction between houses and lands, as to the time of giving notice to quit. The notice ought to be in writing, and it should be certain and clear, and not optional or ambiguous. 1 jBum'«, 725. Form of Complaint of overholding possession of a Tenement after the expiration of the Term therein, pursuant to the foregoing Stat. 19 G. 3, c. 10. County of > The information and complaint of A. C. of j in the said county of , yeoman, made on oath before us, A. M. and A. B., Esquires, two of His Majesty's Justices of the Peace in and for the said county, on ihe — day of , in the year of our Lord one thousand eight hundred and . ■uma .i v/vrtsj m-A a-mri The said A. C. saith, that on the — day of , in the year ■ , he the said A. C. did lease and let to A. 0. of in the said county, labourer, a certain dwelling house and premises thereunto belonging, of him, the said A. C, situate at in the said county, for the term of , at a certain rent agreed upon between them, and that by virtue thereof the said A. 0. entered into the occupation and possession of the said dwelling house and premises, pursuant to the said letting, and continued to hold the same during the said term ; and that the said A. O., since the expiration of the said term, hath wrongfully and unlawfully overheld and detained, and still con- tinues to overbold and detain, the occupation and possession of the said dwelling house and premises, from and against him the said A. C, although he the said A. C. hath given the said A. 0. due notice to quit the said house and premises, and al- though, since the expiration of the said term, the said A. C. hath demanded the possession of the said dwelling house and premises of and from him the said A. 0. And hereupon the said A. C. prayeth a warrant of us the said Justices, to rssue against the said A. 0. to compel him to answer unto the said complaint. *5<3if Vy ;4>oiv^ hfifC^nHti Before us, ^y iv"pi • ' * -■•*>x ^'^ t£* »> t\ A. C. '>w» A. M., J. P. liB-^ n^-iO i'l-.!; '>'>»'-« uo fitii . . M.wqvi A. R., J. P. -.t nrj^^^j. ,fii.;^.:.,>:,oviy U>>^«iM ilJi^^oo^v/ ./.'sr lnt»\ tVarrant tkereon. Cotinty of ) To each nnd every of the Consinbies of thi; ^ township of in the said county of . [Seal. I ■ ■ " ' WiiEREAn A. C, of in the said county, yeomon, hnth made information and complaint upon oath, before us, A. M. and A. II., EHquires, two of His Majesty's Jnaiices of the Peace in and for the said county, that [here stole the facts of the case as set forth in the complaint.] These arc therefore to command yon, in His Majesty's name, fortiiwidi to apprehend the said A. O., and to bring him before us the snid Justices, that lie may be required to find sufficient sureties to answer to tlio said complaint, and may be further dealt with according to law. Herein fail not. Given under our hands and seals at , the — day of , in the year of our Lord one thousand eight hundred and . Iff A. M., A. R., . I Id lo J. P. J. P. .■iti When the party is brought before the Justices on the Warrant, he must be required, according to the ternis of the Statute, to find sureties for his appearance to answer lo the complaint at the next term of the Supreme Court in the county. The course of proceedings relative to taking such security, with the requisite Forms, will be as in similar cases of taking bail, and will be found under the Titles, — Bail, and Recognizance. ffd.'M *MJ^«!'''i!i! fff ifWtr>v(\ .uplift) riflf ''"'* 'J'^ofni TJfi'M'f '" m >■■*! r-fr'. : (iii*^** l>,!N '(' H' 1) jf^>;i oJ l>f>M<>il. > •'>' :H. .u..'-. ■ -•; • ' ' ,.0 ./■ ; : : .:- » ; Hi^;^ Tjfi: > LARCENY. •'» w^» t'"-^"^'- ,rri;i i^fiM-^t. Op Grand Larceny in general.') f- .., i hk- ■ ■ '- The true meaning of larceny is, — " the felonious taking the property of another, without his consent, and against his will, with intent to convert it to the use of the taker." It is of the essence of robbery or larceny, that the goods be taken against the will of the owner. Grand larceny is a felonious and frau- dulent taking and carrying away by any person, of the mere personal goods of another, of the value (according to the Pro* vincial Act 32 G. 2, c. 13. 1 V. 18,) of twenty shillings or upwards. The offence has been well defined to be " the wrongful taking of goods, with intent to spoil the owner of them." 3 Rum's, 176. LARCENY. 1^1 Feloninui and fmuduUnt taking. ) Felony is always ac- rompanicd wiili uii evil iiitontion, oiid theroloio shall not be iiii|uiiod to a mere inisiiikt? ur inis-aiiimadvcrsion ; as where persons break open h door in order to execute a warront, wliicli will not justify siicli a proccodii.t; ; for in such case there IS no felonious inl(ji)tion. For it is (ho mind that makes the lakiiic; of another's gooeii to be kilony, or a boro trespass, but because the variety of circumstances is m ^reat, and the com- plication thereof so minified, that it is inipossibit? to prescribe all the circumstances evidencing u felonious intent, or iho con- trary ; the some must bo left to the duo and attentive consider- aiioii of the Judge and Jury. Only in general it may bo ob- served, that (he ordinary discovery of a felonious intent, is, if ilio party do it secretly, or being charged with the goods, deny it. If goods be taken on a claim of right or proporty in them, T-'kinK on it will be no felony ; at the same time it is matter of evidence, •'"""'"' "^'k''^- ttiiellier they were bona fide so taken, or whether they were not taken from the person actually possessing them, with a thievish and felonious intent. And therefore, obtaining possession of ;;oods by a fraudulent claim of right, or by a fraudulent pre- tence of law, and then running away with them, would be a felony. It may be that the taking is no more than a trespass, and the circumstances in such case must guide the judgment. As where man takes another's goods openly, before him, or be- fore other persons, otherwise than by apparent robbery, or having possessed himself of them, avows the fact before he is questioned. However, in all these cases, the concurrent con- duct of the person accused must be considered, for the pur- pose of determining whether or not the act done by him be felony. But nevertheless, doing it openly and avowedly doth not excuse from felony. As where a man came to a market to sell a horse, and a jockey coming thither to buy a horse, the owner delivered his horse to the jockey to ride up and down die market, to try his paces, but instead of that, the jockey rode away with the horse ; this was adjudged felony. So where a person came into a sempstress's shop, and cheapened goods, and ran away with them out of the shop, openly in her sight, this was adjudged to be felony. So where a man comes into a house by colour of a writ of execution, and carries away the goods : or sues out a replevin to get another man's horse, and then runs away with him ; this is felony under colour of law. It is laid down in the books, that if one lose his goods I; Taking hy trHHpilMlt. Fimling 8 J •S-1 ■H n 282 LARCENY. and another find them, thoue;h he convert them animo funmh to his own use, yet it is no larceny, for the first taking was lawful. But the doctrine of a taking hy finding, must be ad- mitted with great limitation, and must be understood to apply only where the finder really believes the goods to have been lost by the owner, and does not colour a felonious taking un- der such a pretence. It will not avail therefore, where a man's goods being in a place in which ordinarily and lawfully they are or may be placed, a person takes theui with an intention of stealing them. Thus, if a man's horse be going upon a com- mon where he has a right to put him, and another take the horse with intent to steal him, it is no finding, but a felony, So also if the horse stray into a neighbour's ground, or com- mon, it is felony in him that so takes him. If A's sheep stray into B's flock, and B. drives it along with his flock, and by bare mistake shear it, this taking is not a felony; but if he knew it to be another's, and marks it with his mark, this is an evidence of felony. But even if the place where the goods are found is not one in which ordinarily they would be deposited, circumstances m&y shew the taking to have been felonious. A man hides a purse of money in his corn mow, his servant finding it, took part of it. If by circumstances it can appear he knew his mas- ter laid it there, it is felony ; but then the circumstances must be pregnant ; otherwise it may reasonably be interpreted to be a bare finding, because the purse was deposited in so unusual a place. But where a gentleman left a trunk in a hackney coach, and the coachman took and converted it to his own use ; held to be felony, — for he must have known where he 4ook up the gentleman and his trunk, and where he set him down, and therefore he ought to have restored it to him. The doctrine as to a felonious taking of goods which have been found by the party, has been further confirmed in two more recent cases. In the first, it appeared that a pocket book con- taining bank notes, had been found by the prisoner in the high- way, and afterwards converted by him to his own use. Upon which the Judge observed, that if the party finding property in such manner, know the owner of it, or if there be any mark upon it, by which the owner can be ascertained, and the party, instead of restoring the property, converts it to his own use, such conversion will constitute a felonious taking. And in the other case, the two prisoners (father and son,) were convicted of stealing a bill of exchange, upon evidenco of their having found and converted it to their own use, by endeavouring to negotiate it. The Judge stated to the Jury, that it was the duty of every man who found the property of another, to use LARCENY. 283 Possession of thti Owner. ill diligence to find the owner, and not to conceal the pro* nerty) (which was actually stealing it,) and appropriate ii lo I his own use. Lord Hale says, if one man take another man's hay or {corn, and mingle it with his own heap or stock ; or take ano- ther man's cloth, and enihroider it with silk or gold ; such other I person may retake the whole heap of corn, or cock of hay, or garment and embroidery also ; and this retaking is no felony, nor so much as a trespass- There must be an actual taking or severance of the thing Actual taking from the possession of the owner ; for all felony includes tres- pass ; and every indictment must have the words feloniously look, as well as carried away ; from whence it follows, that if (be party be guilty of no trespass in taking the goods, he can- not be guilty of felony in carrying them away. The possession of the owner may be actual, or construc- tive ; that is, he may have the goods in his manual possession, or they may be in the actual possession of another, and at the same lime be constructively in the owner's possession ; and ihey may be his properly by virtue of some contract, and yet not have been reduced by him into actual possession ; in which case, his possession is constructive ; they may be placed by him under his servant's care to be by him managed for him ; in this case the owner has a constructive possession. There may be also a possession distinct from the actual property, but aris- ing out of an interest in the goods acquired by contract ; as in the case of one who has possession of goods in pledge, or of goods lent, or let ; such a one has a property (as well as pos- session) concurrent with the absolute property of the real own- er, and either defeasible or reducible into an absolute property, according to the terms agreed upon between him and the actual owner. The above several kinds of possession will all be suf- ficient to sustain a charge of larceny from the absolute owner. There are also cases, in which, although the manual cus- ciuuda in tody be out of the owner, and delivered by him to another, yet f|',f^P "^ ""' the possession, absolute as well as constructive, is deemed to remain in him, and the possession of the other to be no more than a bare charge. There is a diversity between a possession and a charge, for when I deliver goods to a man, he hath the possession of the goodsv and may have an action of trespass:, if they be taken or stolen out of his possession. But my but- ler or cook that in my house hath charge of my vessel or plate, hath no possession of them, nor shall have an action of trespass as the bailee shall ; and therefore if they steal the plate, &c. it IS larceny. So if a taverner set a piece of plate before a man to drink in it, and he carry it away, &c. it is larceny, for it is other. ' I. A. 284 Takjug bjr a Curriur. \\ Eiiihczzlenient hy Servants. LARCENY. no bailment, but a special use lo a special purpose. The ser- vant wTlo keeps a key to my chamber, may be guilty of felony in fraudulently taking away the goods therein, for he hath only I a bare charge given him. And so if a weaver who has received materials to work., or a miller who has corn to grind, take oui| part thereof with intent to steal it, it is felony. Another case is that of the carrier. If while his contract I is in the course of completing, he open the pack and take out u part of the goods, he commits a larceny : but if he run away with the whole, it is a breach of trust, and no huceiiy. So of a tun of wine. But if after arriving at the place where he should deliver his charge, he steal a part or the whole, it i is larceny. The foregoing cases seem exceptions to the rule, that no felony can be committed by his stealing the goods, lo whom they were delivered in possession by the owner, iti a wav which excludes the supposition of their being originally taken with a felonious intent. But in truth the reason of the dis- tinction seems this : Though the carrier, &c. have originally the goods delivered to them upon a trust, yet they are deliver- ed as one whole and inseparable thing, and the only trust com- mitted to him is over them in that state ; and therefore his possession is a limited one ; but if he separate them, it is exercising an act of ownership not given to hhn over each part, and is therefore the same as an originally unlawful taking of that individual part, and it is also a carrying away by the mere act of separation. And this distinction should be care- fully remembered, as it includes a number of cases very likely to occur in practice, viz. where a part is separated from a thing delivered entire. By the common law, therefore, he who had goods deli- vered to him by the ovyner, thereby originally gaining a legal possession of them, could not by converting them to his own use with intent to steal, be deemed a felon and guilty of lar- ceny. And it seems that servants stood in the same situation in this respect as strangers ; in order, therefore, that masters might be secured from the consequences resulting from the trust they are obliged to repose in their servants, the Statute of the 21 Hen. 8, c. 7, was passed, relating to embezzlements by servants. 3 Burn's^ 177 to 183. A similar provision has been made in this Province, by the Act of the 32 G. 2, c. 13. § 18, 1 V. 17, by which it is enacted, " That if any servant or servants shall go away with the caskets, jewels, money, goods, or chattels, delivered to bis, her, or their keeping, by his, her, or their master or mistress, with intent to steal the same, and defraud his, her, or their master or mistress thereof, contrary to the trust and LARCENY 285 ■ner, iii a wav confitlence in them reposed ; or being in service, without as- sent or conimanchnent of his, her, or their master or mistress, shall embezzle or convert the same to iiis or her use, with purpose to steal the same, being of the value of forty shillings or above, every such ofiender or otlbnders shall, upon due con- viction, sillier death as in cases of felony, without benefit of clergy. Provided, that any apprentice or apprentices, with- in the age of fifteen years, shall be entitled to the benefit of clergy, for the first ollence." PerpeUial. i'j a a , . " This Statute extends only to :3uch as were servants to the owner of the goods, both at tlie time of their delivery and when they were stolen. The goods must have been delivered 10 the servant, to keep for the master, and to be returned to liiin. If a servant make a suit of clothes of cloth, or shoes of leather, or change one species of corn into another, which in their original state wore delivered to him by his master, to keep, he is within the Statute. But no wasting or consunnng of goods is within the Statute, however wilful. The Statute does not extend to cases where the servant has a mere charge over the goods, but that is still an oil'ence at common law. The following are cases of servants, who having had a bare charge committed to them, and stolen the goods so en- trusted to them, were adjudged to be guilty of the crime of larceny. — One employed as a clerk in the day time, but not residing in the house, embezzled a bill of exchange which he received from his master in the usual course of business, with directions to transmit it by the post to a correspondent, and it was held to be larceny. Goods delivered to a tradesman's servant to carry to a customer, are still in the possession of the owner, and the servant is guilty of larceny in breaking the package t. d converting them. There is another class of cases, in which the master be- comes, by contract with another, the owner of goods in the ac- tual possession of that other, and which are by the master's di- rection delivered to his servant for him. If the servant, having thus received the goods, steal them, it is larceny at common law, as in the following case : — A corn factor having purchased a cargo of oats on board a ship, sent his servant with his barge to receive part of the oats in loose bulk ; and the servant ordered some of them to be put into sacks, which he afterwards em- bezzled : this was holden to be larceny. The fraudulent ap- pro )riation by a wharfinger, of oats, in his custody, but not in his legal possession, was held to be a larceny. 3 Burn^s 183-5. If the owner deliver his property of his own accord to GomU deliv- the prisoner, and there is no fraud in the prisoner to induce him ^^.^ ♦"* '•'" so to do, it will not be larceny, though the prisoner mtended to 4 I Hi 286 LARCENY. Credit given, pledged. (ioods obtain- ed by fruud. misapply the property when h« tonk it, and iiiisapplies it nc- cordingly. As where one obtained delivery of a horse sold lu hiui, on promise to return immediately and pay for it, and lie rode of}' and did not return ; it was held to be no felony, I'ui here was a complete contract of sale and delivery, the properly as well as the possession was entirely ])arted with. One writing a letter in the name of another, to a tliiid person, to borrow money, which he obtains by that fraud, is not guilty of a felony, but only of a misdemeanor. 3 Burn's, \\)2 — 3. [In such cases as these, however, if any liilst' token or counterfeit letter is made use of, to obtain the property, the party may be charged criminally, as for a cheat.] If the owner has not parted with the property in the goods. but only with the possession of them, the question of larceny still remains open. Where the owner of goods sent them by his servant to be delivered to A., and the prisoner fraudulently procured the delivery of them to himself, by pretending to be A., it was holden to be larceny. Obtaining possession from a per- son who has the charge of goods, by pretending to be the servant of a person who has bought them, is felony. Where money or other property is parted with, for the performance of a certain engagement, and tlie party, instead ol complying with such engagement, converts the same to his own use, he is guilty of felony. As in a case where the ]>rose- cutor entrusted the prisoner with notes to procure him gold in lieu thereof, but having got possession of the notes, he went away with them, and did not return with the gold as he promised to do. If credit be given for property for ever so short a time, no felony can be committed in converting it. Where the delivery is by way of pledge or security, the property in the thing pledged remains in the owner, and there- fore larceny may be committed of it, if such delivery were ob- tained fraudulently, and with intent to steal. Although in general he who has a possession of any thing on delivery by the owner, cannot commit felony thereof ; yei that must be understood, first, — where the possession is ab- solutely changed by the delivery, which has before been con- sidered, and next, — where such possession is not obtained by fraud, and with a felonious intent. For, if under all the cir- cumstances of the case, it be found, that a party has taken goods from the owner, though by his delivery, with an intent to steal them, such taking amounts to felony. This principle is illustrated by the following cases : — Hiring a horse on pre- tence of taking a journey, but in truth with intent to steal it, LARCENY. 587 Wm evidencing such felonious intent, by immediately soiling ilie lioi'sc, ns soon as the party obtained possession of it, was lield to be larceny. So obtaining a horse, by pretending that another person wanted to iiire it to go to B., but in truth with intent to steal it ; and not going to B., but taking the horse elsewhere, and selling him, is larceny. It may be collected from the foregoing cases, that if a person obtain the goods of another by a lawful delivery, with- out fraud, although he afterwards convert them to his own use, lie cannot be guilty of felony. As if a tailor have cloth deli- vered to him to make clothes with, or a friend be entrusted with property to keep for the owner's use, which they after- wards severally embezzle. So if plate be delivered to a gold- smith to work or to weigh, or as a deposit, his conversion of it will not be felony. But if such delivery be obtained by any I'luud or falsehood, and with an intent to steal, though under pretence of a hiring, or even a purchase ; if in the latter case no credit were intended to be given, the delivery in fact by ilie owner will not pass the legal possession so as to save the parly from the guilt of felony. But if the pioperty were in- tended to pass by the delivery, there can be no felonious taking. 3 iittrn's 193 — 200. ♦n^rtJ'i, sni >?*^'0f « tind carrying away.] The least removing of the thing taken from the place where it was before, is sufficient for this purpose, though it be not quite carried off. And upon this l^roiind, the guest, who having taken ofi;' the sheets from his bed with an intent to steal them, carried them into tlie hall, and was apprehended before he could get out of the house, was adjudged guilty of larceny. So also was he, who having taken an horse in a close with an intent to steal him, was ap- prehended before he coidd get him out of the close. And such was the case of him who intending to steal plate, took it out of the trunk wherein it was, and laid it on the floor, but was surprised before he could remove it any further. If the thief once take possession of the thing, the offence is complete, though he afterwards return it. As if a robber, finding little in a purse which be had taken from the owner, restore it to him again, or let it fall in struggling, and never lake it up again, having once had possession of it. By any person. ] Regularly a man cannot commit felo- ny of the goods wherein he bath a property. If A. and B. be joint tenants or tenants in common of a horse, and A. take the horse, possibly animo furandi, yet this is not felony. But under certain circumstances a man may commit felony of his own goods ; as if A. bail goods to B. and afterwards, animo furandi^ steal the goods from B. with design to charge him for the value of them ; this is felony. I.uwfiil deli\- frv orOooitii. I If I) It 288 LARCENY. A wife maj be guilty of larceny by stealint; the goods of a stranger ; but not by stealing; her husband's goods from his own possession, because in law they are considered but aj one per:;on, and she has a kind of interest in his goods. On which account, not even a stranger can commit larceny of such by the delivery of the wife, although he knew they were the husband's goods. But a wife may steal the goods of he. husband which have been bailed or delivered to another per- son ; for he has a temporary special property in them. The wife cannot commit larceny in the company of her husband ; for it is deemed his coercion, and not her own vol- untary act — yet if she do it in his absence, and by his mere command, she is then punishable as if she were sole. If one steal another man's goods, and afterwards another steal the same from him ; the owner may charge the fust or second felon at his choice. ' Of the mere personal goods.] If the personal goods sa- vour any thing of the real estate, (that is land, houses, &c.) it cannot be larceny. They ought to be no way annexed to the freehold ; therefore it is no larceny but a bare trespass to steal corn or grass growing, or apples on a tree. But it is larceny to take them, being severed from the freehold, as wood which has been cut, grass in cocks, stones digged out of the quarry ; and this, whether they are severed by the owner or even by the thief himself, if he sever them at one time, and then come again at another time and take them. With regard to domestic animals, such as horses, oxen, sheep, and the like, there is no doubt that they are the sub- jects of larceny at the common law. Also domestic birds, as ducks, hens, geese, turkeys, peacocks, &c., and larceny may be committed of their eggs or young ones. It is however, certain, that larceny cannot be committed of such animals in which there is no property, as of beasts that are of a wild na- ture, and unreclaimed ; such as deers, hares, and conies, in a forest, chase or warren ; fish in an open river or pond ; or wild fowls at their natural liberty. There are also some ani- mals, which though they may be reclaimed, yet are considered of so base a nature, that no larceny can be committed of them, such as bears, foxes, monkies, cats, ferrets, and the like ; and the same of dogs, by the common law. Also, the goods ought to have some worth in themselves, and not to derive their whole value fit r.! the relation they bear to some other thing, which cannot be stolen, as paper or parch- ment, on which are written assurances concerning lands, or ob- ligations or covenants, or other securities for a debt, or other chose in action. 3 Burn'^s, 202 — 9. LARCENY. 289 kr: [As to stealing Treasury notes, and bank notes, bonds, bills, &c., see hereafter, under this Title.] It being felony to steal the animals themselves, it is also felony to steal the product of any of them, though taken from ihe living animals. Thus, milking cows at pasture and stealing ihe milk, was holden to be felony by all the Judges ; so pul- ling wool from the backs of sheep, is felony. But in both these instances it must be understood, that the fact is done fraudu- lently and feloniously, and not merely from wantonness or fro- lic ; which must be collected from concurrent circumstances, such as the quantity taken, the use to which it is applied, the behaviour of the party, &c. 3 /item's, 210. Of another.] It is well settled that larceny may be com- mitted by stealing goods the owner of which is not known ; and that it may be stated in the indictment that the things stolen weie the goods of a person to the Jurors unknown. But upon prosecutions of this kind, some proof must be given sufficient to raise a reasonable presumption that the taking was felonious. 3fitern's, 211. By the 32 G. 2, c. 13, § 22. 1 V. 18, Whosoever shall be found guilty of feloniously taking and carrying away any money, or goods, in any other manner than is before declared and provided for in the Act, or of embezzling any of His Ma- jesty's stores, or the utensils, furniture, or cloathing in any storehouse or hospital of His Majesty, to the value of twenty shillings or more, every buch offence shall be larceny and fel- ony ; and if the value shall be found by verdict on trial, to be less than twenty shillings, then such offence shall be punishable as petit larceny. [Note. The words in this clause — " in any other manner," &c. refer to previous clauses of the Act, relating to burglary, robberies, and other higher larcenies, distinguished from simple larceny, and which will be treated of hereafter under this Title.] , iToi^fA.i ^V/rH;-^- Op Petit Larceny. ^*''^^* ■:m ;vvo?r^ ■■.iO' i'U .-r^-" -t -m ,(»■ tiO-{ Petit Larceny agrees with Grand Larceny in the several particulars before mentioned, except only the value of the goods, (and except as hereafter follows,) so that wherever an offence would amount to grand larceny, if the thing stolen were of the value of twenty shillings, it is petit larceny if it be under that value. By the 3 Ed. 1, c. 15, Persons indicted of petit larceny, if they were not guilty of some other larceny aforetime, are bailable by Justices of the Peace. And it seems to be agreed, that there is no necessity that such person be of good reputa- 37 % kV 290 larceny; tion : but yet if the criiue be open and manifest, it seems tlint they ought not to be bailed ; but if there be any colour of pro- bability for their innocence, it seems most agreeable to the in. tention of the Statute, to bail them. For a Justice of tlie Peace before whom an offender shall be brought for petit lar- ceny out of Sessions, may not punish him by his discretion, and so let him go ; but must have him committed or bailed, to the intent he may come to his trial as in cases of other felonies. 3 Burn's, 214. ' vt"ji 111 -i III iJUrt f ji'iii' ■<»•■'«■.•• .,'! III. Larceny from the Person. If the goods be taken from a man's person, the offence receives a farther degree of guilt, and if it be attended with putting him in fear, it is called robbery, for which, see that Title. If it be without putting him in fear, then it is called barely, larceny from the person. And as to this offence, it is enacted by the Statute of the 32 G. 2, c. 13. 1 V. 17, "that if any person or persons shall feloniously take n)oney or goods from the person of any other, privily, without his knowledge, each and every of such oflenders, their aiders and abettors, shall, upon due conviction, sufier as felons without benefit of clergy." Perpetual. .. . .. .. , ji'-i ^1 . \,\ IV. Larceny from the House. Larceny from the house, is not distinguished at common law from simple larceny, unless where it is accompanied with the circumstance of breaking the house at night, when it falls under another description, that of burglary. In England, by various Acts of Parliament, the benefit of clergy is taken away from larcenies committed in a house in almost every instance, and in this Province, by the Statute of the 32 G. 2, c. 13. IV. 17, it is enact'ed, " That if any person or persons shall rob any dwelling house in the day time, any person being therein, or break any dwelling house, shop, or warehouse, thereunto belonging, or therewith used, in the day time, and feloniously take away any money or goods of the value of five shillings, therein being, although no person shall be within such dwelling house, shop or warehouse ; or shall rob any other, or feloniously take away any goods in any dwelling house, the owner or any other person being therein, and put in fear, each and every of the offenders aforesaid, their aiders and abettors, shall upon due conviction, suffer as felons without benefit of clergy." Perpetual. • \j .,1^^ » ->** f .rfi' itif^ ti :'iij« iiiiiS vjigr!003(f on % >tfJ ii; LARCENY, y. Larceny and Embezzlement from Lodoings. This is not a felony at common law ; but by the 32 G. 2, c. 13. 1 V. 17, it is enacted, " That if any person or per- sons shall take away with an intent to steal, embezzle, or pur- loin, any goods, chattels, or furniture, which by agreement they are to use, or shall be let to them to use, in his, her, or their lodging, such taking, embezzling, or purloining, shall be adjudged to be larceny and felony." Perpetual. A ready furnished house, the whole of which is let to the party, is not a lodging within the meaning of the Statute. See 3 Burn's, 223. Note. As the benefit of clergy is not taken away from this offence, it is not u capital felony, but is only punishable in the same manner as a siniple larceny. . ^ . ,. .. VI. Larceny of Bills, Notes, and other Whitings, FOR PAYMENT OF MoNEY. 291 -".lu'f^ Att.H f m By the Stat. 32 G. 2, c. 13. 1 V. 17, If any person or persons shall steal or take by robbery any bills of exchange, bonds, warrants, bills, or promissory notes for the payment of money, being the property of any other person, notwithstanding any the said particulars are termed in law a chose in action, it shall be deemed felony of the same nature, and with or without the benefit of the clergy, or of this Act, in the same manner it wonld have been if the oflender had stolen or taken by robbery any other goods of the like value with the money due on such bills of exchange, bonds, warrants, bills or notes, or secured thereby, and remaining unsatisfied ; and siiall suffer such punish- ment as if he, she, or they, had stolen other goods of the like valne. Provided, that no attainder for any such offence so made felony, shall work any corruption of blood, loss of dower, or disherison of heirs. Perpetual. I r>^ With regard to the stealing of the Treasury notes, which Treasury have been issued in this Province, it is enacted by the several ^*''^''' Statutes of the 9 G. 4, c. 3. 4 V. 23—10 G. 4, c. 43. 4 V. 69—11 G. 4, c. 9. 4 V. 83, and the 2 W. 4, c. 64. 4 V. 191, "That if any person or persons shall feloniously steal, take, or carry away, any Treasury note or notes heretofore issued under any former Act or Acts, or hereafter to be issued under either of the before mentioned Acts respectively, such person or persons shall be deemed and taken to be guilty of the same offence as if such person or persons had stolen, taken, 292 LARCENY. Baiik Notes. ;o. and carried away, so much money as the value expressed on the face of the Treasiny note or notes so stolen, taken, or carried away, shall or may be." Perpetual. Concerning Bank Note?, the Statute of the 4 VV. 4, c. 24. 4 V. 27G, enacts, " That if any person or persons shall feloniously steal, take, or carry away, or attempt or intend lu steal, take, and carry away any such undertaking mentioned in the second clause of this Act, such person or persons shall be adjudged, deemed, and taken to be guilty of the same of. fence, as if such person or persons had stolen, taken, or car. ried away, or had attempted or intended to steal, take, and carry away, so much money as ihe value, sum, or amount expressed on the face of such undertaking shall or may be. The undertakings here referred to, are described in the said second clause of the Act, as follows, — ** Undertakings now is- sued, or hereafter to be issued, and whether made, designed, or purporting to be promis.sory notes, or bank notes or bills, or issued, or purportmg to be issued ns and for and to serve the like purposes as notes or bills of bankers, or of a banking company, or as and for paper money, or circulating currency : and whether the same be payable to a real or fictitious person, or to the bearer thereof ; or be, purport, or be designed to be negotiable or transferable by indorsement or delivery ; or whe- ther tha same be, or purport to be, payable absolutely in gold or silver, or either in specie, gold or silver ; or in notes of the Provincial Treasury, or other body corporate, or politic, company, partnership, person or persons whomsoever ; or in any other mode, and whatsoever be the sum for which such writings respectively shall be made." Perpetual. VII. Punishments op Grand and Petit Larceny. At common law the judgment for grand larceny is death; but the party may have the benefit of clergy, unless in cases where he is ousted by Statute. But by the 56 G. 3, c. 6. - V. 201, (which includes petit as well as grand larceny,) it is enacted, — " That it shall and may be lawful for the Court be- fore whom any person or persons shall be convicted of any clergyable felony, larceny, of receiving stolen goods, know- ing them to be stolen, or other lesser criminal offence, to sen- tence the offender to be put and kept to hard labour in the house of correction at Halifax, or elsewhere, or upon the high- ways or other public works in the Province, for any term or time not exceeding seven years, on such terms and conditions as shall appear to be best calculated to promote the reformation of the offender, a good example to others, and a just letribu- if 4 W. 4, c. persons shall 't or intend lo ig mentioned persons shall tile same of. aken, or car. al, taite, and |> or aniouni or may be. 1 in tlie said kings now is. e, designed, "oles or bills, and to sprve of a banking ng currency ; tious person, esigned to be ery ; or whe- uteiy in gold r in notes of e> or politic, )ever ; or in which sucli ny is death; ess in cases . 3, c. C. 2 ceny,) it is e Court be- sted of any ods, know- ice, to sen- sour in the ►n the high- \ny term or conditions reformation list retribu- LARCENY. lion to the public, for the injury done to it by such ulTender. Perpetual. By tiio previous Statutes of the 32 G. 2, c. 13, and the 14 & 15 0. 3, c. 7, The puuishineul of puhhc uhipping, or ofini|)risonmcnt, was prescribed in cases of petit larceny ; but these punishments may be considered to be superseded or vir- uially repealed by the aforesaid Act of the r>() O. 3, c. G. It is however provided by tlie said Statute of the 32 G. 2, c. 13, that in cases of larceny, it shall be lawful for the Court before whom any Huch otFender siiali bo convicted, to ordtr iiim to make full restitution, and in default thereof to couunit such of- fender to the house of correction, there to be put to hard la- bour for a term not exceeding three mouihs, as the Judges in their discretion shall think fit. Perpetual. » VIII. Receiving Stolen Goods. "; j IJy the 32 G. 2, c. J3. 1 V. 17, If any person or per- sons shall buy or receive any goods that shall be stolen, know- ing the same to be stolen, be, she, or they shall be deemed accessaries to the felony after the fact ; and it shall be lawful to prosecute and punish persons buying or receiving stolen goods, knowing the same to be stolen, or that shall be accessary to such felony, before or after the fact, as for a misdemeanor, to be punished by fine and imprisonment, although the principal felon be not before convicted of the said felony, which shall exempt the offender from being punished as accessary, if the |H'incipal shall be after convicted. Perpetual. IX. Taking a Reward to help to Stolen Goods. By the British Statute, 4 G. 1. c. 11, which is extend- ed to the British dominions in America, it is enacted, " That whenever any person taketh money or reward, directly or in- directly, under pretence, or upon account of helping any per- son or persons to any stolen goods or chattels ; every such person so taking money or reward as aforesaid, (unless such person doth apprehend, or cause to be apprehended, such felon who stole the same, and cause him to be brought to trial for the same, and give evidence against him,) shall be guilty of felony, and suffer the pains and penalties of felony, according to the nature of the felony committed in stealing such goods, and in such and the same manner as if such offender had himself stolen such goods and chattels, in the manner and with such circumstances as the same were stolen." ,?-,. in V;; There is also another offence conceruii^g stolen goods, 2^ '"(',. *#■' t ■ n 294 LARCENY. .A ,'^ ;■ f'oiiipoiiniliiiK fliriunily denominatRil thefthote, and now designntod a com- utVUmjf. ■poundina; of felony^ uliieli is, wlaMe tl»c purty robbed, not m\^ knows the fuloii, but also tnkes his goods agnin, or othiir aitieiids, upon Dgreenirnt not to prosecute. It i» said to haw been anciently punishable ns felony, but is now punished nnlv with (ino and itnprisoruucnt, unless it be accompnnied with some degree of inninteiiancu given to tliu felon, whioli ni!ikt>s the parly an accessary alifM- the fact. But the barely tnkini; again one's own goods, which have been stolen, is no oilenrc at all, unless some favour be shewn to the thief. 1 Husicl^ ilo %^» liifnnuatinn for Larceny. County of ^ The information and complaint of A. I. of ^ , in tlic county of yeomau, nuulc im oath, before mu, A. M. Estpiirc, one o( his Majesty's Jus- tices of the Pence for the said county, the — day of in the year of our Lord one thousand eitslit hundred and — - The said A. L on iiis oath saiih, that yesterday in the night, or early in the morning of this day, divers goods of him the said A. L to wit, have feloniously been stolen, taken, and carried away from the house of him the said A. L at aforesaid, in the county aforesaid, and that lie huth just cause to suspect, and doth suspect, that A. 0. late of in the said coimly, labourer, feloniously did steal, take, and carry away the same, [or otherwise, staling the case ac- cording to the fads, j And thereupon he the said A. I. prayeth that justice may be done in the premises. iOOhi) V'! ■?■•:•; (^. fl^! '..ivIU O'l iUU.UAil A S)V A.I. Before me, >. , ■> . c •i'. A. M., J. P. ^ . '":i!r;-. u '.'.- ' ••^'u ■:'- --:V--*-"-h d^VjUi.:''.' Warrant for Larceny. vjt| he information.] Thusi; are therefore to command Kou nnd every of voii, forllmith to a))|>rchend him the said A. 0. and to 'ing him buforo me, to answer unto the said infor- mation an'i . omplnint, and to be further dealt withal according 10 law. Heroin fail you not. CJiven under my hand and seal, ji alorosuid, the — day of , in the year of our I^ord uiic thousand eight hundred and . A. M., J. P. The Form of a VVarrnnt to search for stolen goods, will be found under the Title, — VVarrnnt. The proceedings before Justices on informations of lar- leny, will be the same as in other felonies, and will be found sutiiciently set forth and explaiited, under the respective Titles, -Information ; Examination ; Bail ; Commitment. For stealing wrecked ships or goods, see Title, — Wreck. It may he well to observe here, that by the Statute of the 26 G. 3, c. 2, 1 V. 243, Special Sessions may bo held lor the trial of all simple larcenies, for which more fully, see Title, — Sessions. .pii.jw, . .v.-.-^. i^5 'm ) c- LEATHER, see HIDES. LETTERS COUNTERFEIT, &c., see CHEAT. ^*': . — m — LETTERS, (THREATENING.) By the 32 G. 2, c. 13. 1 V. 18, '* Whosoever shall knowingly send any letter without any name, or signed with a fictitious name, demanding from any person or persons, money or other valuable thing, such offender or offenders be- ing duly convicted thereof, shall suffer as felons ^vithout ben- efit of clergy. " i,,ly This enactment is similar to that contained in the Britisl:^ 296 LETTERS (threatening.) Statute> 9 G. 1, c. 22, called the Black Act, and in both, the offender is made liable to death. uufc A threatening letter, in which the writer makes himself ] known to the person to whom it is sent, either from its hand writing, or by the subject of its contents, though not signed by the writer in any name, is not within the Stauite, for by mak- ing himself known in the letter, it is the same thing as if he had signed his name to it. Sending a letter signed with iniliaU only, is sending a letter without a name. See 3 Burn's^ 244. ■ nn-:'- .'II ..V. t. LIBEL. :iv; A Libel, in a strict sense, is taken for a malicious defa- niation, expressed either in printing or xcriting^ and tendin" either to blacken the memory of one who is dead, or the repu- tation of one who is alive, and to expose him to public hatred, contempt, or ridicule. It matters not whether the libel be true, or whether the party against whom it is made be of good or bad fame. But this is to be understood, only when the prosecution is by information or indictment. It is otherwise in an action to recover damages for a libel. 3 Burn^s, 248. A criminal prosecution for a libel can on!y be sustained where the defamation is expressed either in printing, or writing, signs, or pictures. No defamatory words spoken will sustain a criminal proceeding, as for that offence. See 3 Burn's, 249. It is certain that not only he who composes a libel, or pro- cures another to compose it, but also he who publishes, or pro- cures another to publish it, is in danger of being punished for it. Also, it hath been resolved, that the sending of a letter full of provoking language, to another, without publishing it, is highly punishable, as manifestly tending to a disturbance of the peace. In cases of libel the offenders may be condemned to pay such fine, and also to suffer such corporal punishment as to the Court in discretion shall seem proper, according to the b^lnous- ness of the crime, and the circumstances of the offender. Libels having a direct and immediate tendency to a breach of the peace, are indictable in the Sessions. A Justice of the Peace has the power of issuing a war- rant to apprehend a person charged by information on oath, with the publication of a Hbel, and of requiring him to find bail to answer such charge, and for want of it, of committing him to prison, there to remain until he be delivered by due course of law. 3 Burn's, 251 — 5, 799. ligh¥ houses. 29T LICENSED HOUSES, see SPIRITUOUS LIQUORS, TAVERNS, &c. .■/^;^j. LIGHT HOUSES. J By 4 W. 4, c. 25. 4 V. 278, " It shall be lawful for any Collector of light duties, to call to his aid in the execution of the Act, all Magistrates, Constables, and Peace officers, and all other His Majesty's subjects, who are hereby required, when called upon, to afford such Collector every aid and assist- ance in their power, for the purpose of carrying into effect the several provisions of the Act." Temporary. 1 ;•>,.'» ifLffi ■ ',* !')fi '.£?': I tr :iniiih<>\*-,rl LIME. ■''] ; i ^■*r^./- By the Statute 32 G. 3, c. 4. 1 V. 292, " All lime ex- posed to sale in any part of this Province, shall be measured by the officers appointed for that purpose ; and the officers so appointed shall be sworn to the faithful discharge of their duty, and upon refusal to accept of the said office, or being guilty of any neglect or misbehaviour in the execution of the duties thereof, they shall forfeit and pay for the use of the poor of the town wherein they reside, a sum not exceeding three pounds, to be recovered before any two Justices of the Peace for the same county." Perpetual. ,.:...,„,. .. By 56 G. 3, c. 21. 2 V. 210, " All lime sol^, or offered for sale, shall be measured and inspected by one of the officers appointed for that purpose ; and all lime not sufficiently burnt, or otherwise of good and merchantable quality, shall be seized by the said Inspector ; and every person onering for sale, or selling by the hogshead, any lime in hogsheads, that shall not contain at the least eight Winchester bushels heaped, or ninety- six gallons, shall forfeit for every bushel of which every and each hogshead shall be deficient, the sum of ten shillings, and so in proportion for every part of a bushel, together with the hogshead or cask in which such Lime shall be contained, which shall be seized by the said Inspector and destroyed. The Inspector of lime shall receive from the seller thereof, at the rate of sixpence per hogshead, for inspecting and measuring the same. Sec. 5. If the quantity of lime, seized as aforesaid, shall not exceed thirty-two bushels ; and if the deficiency of 298 I 1] LIME. ■ r lime sold, or offered for sale in hogsheads as aforesaid, shall not exceed twenty bushels, then upon conviction upon the oath of one or more witness or witnesses, before one Justice of the Peace, cf the county where the offence shall happen; and if the quantity so seized shall exceed th' ty-two bushels, and if the deficiency shall exceed twenty bushels, then upon conviction as aforesaid, in any of His Majesty's Courts of Re. cord in the county whore the offence shall happen, the lime so seized shall be adjudged forfeited ; and the person who sold, or offiered lime for sale, in hogsheads deficient as aforesaid, shall be adjudged to pay the penalty hereinbefore declared, together with the costs of condemnation ; of all which 'penalties and forfeitures, one half thereof shall go to the Inspector or Inspec- tors in each case respectively employed, for his and their trouble, and expense of storage and prosecution ; the remain- der to the use of the poor of the county where such convictions shall happen." Perpetual. Note. For the course of proceeding with regard to prosecutions upon either of the foregoing Statutes, and for the Forms which may be readily made to serve, see respectively, Titles, — Information ; Summons ; Conviction. As no final process or mode is pointed out by either of these Statutes, for enforcing the payment of any penalty adjudg- ed against a party convicted, no such final process can be issued by a Justice, either agamst the goods or the body of such party. Selling Goods, &c. LINES OF TOWNSHIPS, see,— TOWNSHIP LINES ;;";f. / u ;•.{ >ii c A. M., J. P. ■■)iV Summons thereupon. I*} County of > To A. C. one of the Constables of the town- ^ ship of in the said county. [Seal.] Forasmuch as information hath been made before me, A, M., Esquire, one of His Majesty's Justices of the Peace lor the said county of , that A. O. of in the said county, labourer, on the — day of in the year of our Lord one thousand eight hundred and . being the Lord's Day, at the township of aforesaid, in the said county, did openly and publicly do and perform the worldly work ol cutting wood wiili an axe, [or as the case may be] contrary to the Statute in such case made : These are therefore to require you to sum- mon the said A. O. to appear before ine, at in the said county, on the — day of in the year aforesaid, at — o'clock in the forenoon, to answer unto the said information, and to shew cause why he the said A. O. should not pay ihe pen- alty often shillings for the said offence ; and be you then there to certify what you shall have done in the premises. Given un- der my hand and seal, the — day of in the year aforesaid. }fii\ mv- • i* ;^u isjus' A. M., J. P. If the inforraatidn is for using a sport game, &c., or for any of the other otibnces mentioned in the Act, the informa- tion and summons must be filled up accordingly, slating the facts of the ofience as nearly as may be in the words of the Act For the Form of a Conviction, where the course is by inlor- tnation, see the general Form under the Title — Conviction. LORD'S DAY. 30J The general rules of law and evidence to be attended to, and liie manner of proceediiig on the hearing before the Justice, will be the same as in all similar cases ibr the recovery of pen- alties, and will be found set forth under the Titles — Informa- liion, Conviction, and other appropriate Titles of this Work. If the Justice convicts on his own view, the mode of pro- iceeding, and the Forms will be different. In this case, if cir- cumstances will permit, the Justice should, at the time of viewing the work done, enquire and ascertain, whether it is a I work of necessity or charity, or otherwise, so that he may de- termine on the case accordingly ; and if he convict the party, I he should inform him thereof, and of the penalty imposed. Should the Justice at the time of the view, not have it in his power to ascertain ; or from the circumstances appearing or ascertained, should it seem doubtful whether the work is one of necessity or charity, or otherwise, he should defer an imme- diate conviction, and should summon the party in the usual manner to appear before him at a subsequent time, to shew cause, if he have any, why he should not be convicted of the olfenoe ; and in this case the same proceedings must be had as ill all similar cases. Directions relating to such proceedings have already been given under the Title — Information, and other Titles of this Work. The following will serve as the form of such a summons to shew cause. ,< v# County of > To A. C, one of the Constables of the lown- } ship of in the said county. r',...vi.*:_inj' .w^f [Seal.] Forasmuch as A. 0. of in the said county, la- bourer, on the — day of , in the year of our Lord one thousand eight hundred and being the Lord's Day, at -, in the said county did in the view of me A. M., Es- quire, one of His Majesty's Jnsticea of the Peace, openly and publicly do and perform the worldly work and labour of cutting wood with an axe, [or whatever else the case may be.] These are therefore to require you to summon the said A. 0. to ap- pear before me at , in the township of , in the said coupty, on the — day of , in the year aforesaid, to shew cause if any he have, why he should not be convicted of the said offence, and should not be compelled to pay the pen- alty of ten shillings imposed by the Statute in suc^ case pro- vided ; and be you then there to certify what you shall have done in the premises. Given under my hand and seal the — day of in tjie year aforesaid. r-a;** '^6 !,i.Jbit/ffft'> '()?• A. M., J. P.-«»;. ■Ul V*i 4)il»i Hi '5'i«*>'-i #{1? So »#'7i,iB^li; *, ')».»' JO 'St« 301 ii l! LORD'S DAY. '^ III every case where the Justice convicts on his own view. the information is of course needless, and also a summons, ex- cept in the case just mentioned. In all cases of conviction om view, the Form may be thus : - -*■■- • County of hundred and , Sunday, A. 0. of Be it Remembered, that on the — dayoi , in the year of our Lord one thousand eight being the Lord's day, commonly called in the sdid county of , labourer, did, in the view of roe, A. M., Esquire, one of the Justicesof our Lord the King assigned to keep the peace in and for the ' said county, and also to hear and determine divers felonies, tres- passes, and other misdemeanors, in the said county committed, do and perform the worldly work and labour of cutting wood with an axe, openly and publicly, at the township of , in the said county, [or as the case may be] contrary to the Statute in such case made and provided, which said work was not then and there a work of necessity or charity : Whereupon it is considered and adjudged by me the said Justice, that the said A. O. be convicted, and he is accordingly by me hereby con- victed of the offence aforesaid, upon my own view as aforesaid, according to the form of the Statute in that case made and provided. And I do hereby adjudge, that the said A. 0., for the said offence, hath forfeited the sum of ten shillings, to be paid and applied as the law directs. In witness whereof I the said Justice, have to this present conviction set my hand and seal, at in the said county, on the — day of , in the year of our Lord above written. [Seal.] 'P • :i..:( ,■ -i^y -f^ A. M., J. p. If the complaint is for using a sport, game, &c., or any other offence mentioned in the Act, the conviction must, of course, be filled up accordingly, stating the offence accordiog to the facts. Warrant to levy the Penalty on a Conviction for Working, et .ff^mm Sfc. on the Lord^s Day. County of) To A. C, one of the Constables of the town- ^ ship of , in the said county, and to the other Constables of the said township. [Seal.] Forasmuch as A 0. of in the said county of , labourer, is duly convicted before me, A. M., Esquire, one of His Majesty's Justices of the Peace in and for the said LORD'S DAY. 305 county, for that he the said A. O. on the — day of in the year of our Lord one thousand eight hundred and , be- ing the Lord's day, commonly called Sunday, did do and per- form the worldly work and labour of cutting wood with an axe, [or as the case may be] openly and publicly, at the township of in the said county, contrary to the Statute in such case made and provided ; which said work was not then and there a work of necessity or charity ; whereby he the said A. O. hath forfeited the sum of ten shillings ; wliich sum he the said A. O. haih neglected to pay, and the same is not yet paid. These are therefore to command you, forth- with to levy the said sum of ten shillings, by distraining the goods and chattels of him the said A. O., and if within six days next after such distress by you taken, the said sum, to- gether with reasonable charges for taking and keeping the said distress shall not be paid, that then you do sell the said goods and chattels so by you distrained as aforesaid, and out of the money arising by such sale, that you do pay the said siun of ten shillings to the Overseers of the poor for the said township of , for the use of the poor of the said township, render- ing to him the said A. 0., the overplus upon demand ; the necessary charges of taking, keeping, and selling the said dis- tress, being first deducted. And if the said A. O. be not able to pay the said sum of ten shillings, and sufficient distress cannot be found whereon to levy the said sum, that you certify the same to me, together with the return of this warrant. Given under my hand and seal, at . in the said county, the — day of -r—r, in the year above written. -i|7 t^ **!»#& :>^..m4j-.\«:r a'j*iit4i mid 'iQ^nu^i) ; A. M., J. P. (ij I'- K^air.J fm^'f, ^-nmnixioo oi oun ma t-?M*.i: iliv. Certificate by the Constable of the want of Distressy to be indorsed on the Warrant, m^ wi. f'mmiomni.m imii, im County of ^ / A. C. one of the Constables of the township ^ of , in the said county, do hereby certify this — day of •, in the year one thousand eight hundred and unto.- the Justice within mentioned, that I have made diligent search for, but do not know of, nor can find any goods or chattels of the within mentioned A. 0. whereon to levy the within sum of ten shillings. ? bite ;g«9!iP?ajU jo, iosnii ^/ la .^csno'i jic. A. C. ,;; Before me, the said Justice^ ^lorfr^JTOdv; en^i «.-* ,immiihm K. M'i J. p. ... :->M»i--t|tf ^^t; 3f -«^ 306 Hi LORD'S DAY. Commitment thertxipon to the eommon gaol. County of To A. township of D. [Seal.] one of the constables of the in the said county ; and to the keeper of the common gaol at , in the said county. Whereas A. O. of , in the said county, labourer, was and is duly convicted before me, A. M., Esquire, one of I his Majesty's Justices of the Peace for the said county, for that he the said A. O. on the — day of in the year of our Lord one thousand eight hundred and , being the Lord's Day, commonly called Sunday, did do and perform the worldly work and labour of cutting wood with an axe, [or as the case may be,] openly and publicly at the township of in the said county, contrary to the Statute in such case made, which said work was not then and there a work of necessity or charity, whereby the said A. O. hath forfeited the sum of ten shillings, which sum the said A. 0. hath neg- lected to pay, and the same is not yet paid or any part there- of : And whereas it duly appears to me by the return of A. C. one of the constables of the said township of , that he hath made diligent search for, but doth not know of nor can find any goods or chattels of the said A. O. by distress and sale whereof the said sum of ten shillings may be levied, pur- suant to my warrant duly made and issued for the levying the said sum of ten shillings by distress and sale of the goods and chattels of the said A. O. These are therefore to command you the said A. D. constable as aforesaid, to apprehend the said A. O. and convey him to the common gaol at , in the said county, and deliver him there to the keeper of the said gaol : And these are also to command you, the said keeper of the said gaol, to receive him the said A. 0. into the said gaol, and there detain him in close confiiiement with- out bail or mainprize, for the space of — hours ; and for so doing this shall be your sufficient warrant. Given under my hand and seal, at aforesaid, the — day of , in the year of our Lord one thousand eight hundred and -- i>'Urb:(btU.Ut ';i)^3 L .. A. M., J. P. Note. It will be seen by the Act, that the commitment must be for not more than 48, nor less than 34 hours. The foregoing Forms of Warrant of Distress and Com- mitment, will serve where the conviction is for using a game, sport, &.C., or for any other offence specified in the Act, only filling them up according to the conviction. - VI (307) r-H' ;.i ...i... LUMBER. -'^-"'- -• I. Survey of Lumber. >"• > ress and Cora- By the Statute of the 5 W. 4, c. U. 4 V. 376, The fol- lowing enactments and regulations are made. Sec. 1. '' All ton timber which shall be exported from this Province, shall be straight lined and well squared, without offsets or joints, and square butted at both ends, and shall also be squared with not more than one inch of wane on the edges, and shall be free from all marks of scoring, rots, splits, or worm holes which mj be detrimental to the same. Sec. 2. No spruce or pine timber shall be less than six- teen feet in length, nor any birch or other hardwood ton tim- ber, less than ten feet in length ; nor shall any ton timber be considered merchantable unless the same shall square at least len inches ; and where the timber does not exceed sixteen feet in length, it shall be of equal bigness at both ends. > V''^ Sec. 3. Surveyors of lumber shall be entitled to receive three-pence per ton for surveying ton timber, with four-pence per mile for every mile they shall necessarily travel in coming to the place for performing such duty, and shall in all cases measure ton timber by the girth, one quarter part of the girth to be taken as the side of the square. Sec. 4. Every Surveyor of lumber, before attempting to act as such, shall take and subscribe the following oath, be- fore any one Justice of the Peace who is hereby authorised and required to administer the same without fee, that is to say : " I do solemnly swear that I will faithfully, impartially, truly, and to the best of my skill, knowledge and ability, execute, do, and perform the office and duty of a Surveyor of Lum- ber, according to the true intent and meaning of an Act enti- tled, An Act to regulate the survey of timber and lumber, and to repeal certain Acts now in force, and that I will give a true and faithful account of the number, dimensions, and measure- ment of all such timber or lumber as may be submitted to my inspection and judgment, according to the best of my know- ledge, and that I will not at any time, wilfully change any ar- ticle of lumber that may be entrusted to me for the purpose of being so surveyed," — which oath every such person shall de- liver to the Clerk of the Peace for the county or district in which he shall be appointed, together with the private mark which he shall adopt ; and the said clerk shall grant a certificate to every such person of his having taken and subscribed the said oath, and the said persons shall thereafter continue in such 308 I I i If .n m , LUMBER. office until the annual appointment of Town OfTicers, atid n sliail be lawful for such Surveyors to survey timber or IninbHr in any part of the county or district in which they are appointed. Sec. 5. All Surveyors of lumber shall personally and diligently examine and survey all ton timber and lunibur of every kind and description when called upon so to do, and sic that the same is and shall be in all respects conformable to the several provisions and directions of this Act, and shall reject any timber or lumber which shall in any respect be contrary to, or objectionable under this Act, (of which each Surveyor shall provide himself with a copy,) and shall refuse to pass the same; and after rejecting and refusing such objectionable timber or lumber, the said Surveyor shall furnish the buyer and seller, each with a true and faithful account in writing of the number, dimensions, and measurement of the articles he shall have so surveyed and find to be merchantable, and every such account duly certified under the hand of the Surveyor, shall be final and conclusive between the buyer and seller — provided, that it any dispute shall arise between the buyer and seller of any article of timber or lumber, the person dissatisfied may call upon three skilful and disinterested persons, being Surveyors of lumber regularly appointed and sworn, who sliall re-survey and examine the said timber or lumber ; and tiieir determina- tion, or that of any two of them shall be conclusive ; and if the opinion of the first Surveyor shall be confirmed, then the buyer is to pay the expense of the second survey, but if the same be not confirmed, the expense of such second survey shall be paid by the first Surveyor. Sec. C. All dimension-deals shall be cut to the lengths of twelve, i'ourteen, sixteen, eighteen, twenty, and twenty-one feet, and of the breadth of nine, eleven, and twelve inches, to the thickness of three inches each, having an allowance of one inch and not exceeding two inches on tlie length, of one fourth of an inch and not exceeding one half ol an inch on the breadth, of one eighth of an inch and not exceeding one fourth of an inch on the thickness, to be sawed smooth and fair, of equal width and thickness at both ends, to be butted at both ends with a saw, and the stubshot to be sawn off ; to be free from rots, sap-stains, large knots, rents, shakes, worm-boles, wane, and augur holes." Sec. 7. All plank intended for exportation out of this Province, except hard wood plank, shall be sawed at least 'hree inches and one eighth of an incL iti thickness, at least nine inches in width, and at least ten feel and not over twenty feet in length, and shall be in all other respects the same as is herein before prescribed and directed with respect to dimension deals." *H LUMBER. 309 Sec. 8. All morcliaiitable boards, plank, and scantling, I except what is commonly called hard wood, shall be square Ldged with the saw. All clear boards shall not be less than one inch thick, and merchantable boards not loss than seven ois;litlisof an inch thick ; no board or pinnk shall be deemed mer- cliantablu if split at both onds, or have one continued split of more than two feet nt any one end, nor shall any board be deemed merchantable which is less than twelve feet in length, and nine inches in width, and which is not sawed of equal thickness throughout ; or which is not free from rots, sap- jiains, Inrge knots, rents, shakes, worm-holes, wane, and augur holes. ; "Mn ,[<■• Sec. 10. All lath-wood shall bo of fresh growth, straight rift, free from bark, hearts and knots, to be measured by the cord of four feet high, and eight feet long, and piled as close as it can be laid ; all pine shingles shall be eighteen inches long, not less than four inches wide, and three eighths of an inch thick nt the butt, free from sap and worm holes, to be put up in bundles not less than twenty-five feet tier, or courses to twenty inches wide ; four of which bundles shall be reckoned a thousand : shipping shingles for exportation shall be half an inch thick at the butt ; the said thickness to be continued three fourths of the length and shaved from thence to the point, and shall also be from four to four and one half inches wide through- out ; and that the account shall be taken by the tale of ten hundred to the thousand, and all pine shingles manufactured in the same manner shall be subject to the like rules and regula- tions. Sec. 11. All hogshead staves shall be forty two inches long, three fourths of an inch thick on the thinnest edge, and not ex- ceeding one inch on the back ; and shall also be from three and one half inches to five and one half inches wide ; and all barrel staves shall be thirty tvi^o inches long, one half inch thick on the thinnest edge, and not exceeding three fourths of an inch thick on the back ; the whole to be of good rift, free of twists, fairly split, and free from knot-holes, rotten knots, norm-holes, and shakes, and the account shall be taken by the tale of twelve hundred to the thousand. ft-; nuvi ■ iMt,i?;)^nf Sec. 12. If any Surveyor of lumber shtll certify as merchantable for exportation, any ton timber or any article of lumber, contrary to any or either of the provisions of this Act, he shall forfeit and pay for each and every offence a sum not less than two pounds, nor more than five pounds. Sec. 13. If any person shall ship or export out of this Pro- vince as merchantable, any ton timber, or any article or des- cription of lumber herein mentioned and directed to be sur- 310 , LUMBER. veyed, which shall not have been regularly surve;^ed by a sworn surveyor, and by him certi6ed as merchantable and Gt for exportation, he or they shall forfeit and pay for each and every offence, the sum of ten pounds. Sec. 14.. When any contract or bargain shall be made for any quantity of timber or lumber of any description herein before mentioned for exportation, the same shall be understood to be for timber or lumber according to the directions and provisions of this Act, and no person shall be obliged to receive any other kind of timber or lumber, unless such person shall have pre- viously made a special agreement in writing for the same, spe- cifying particularly, the nature, dimensions, and description of timber or lumber agreed to be received. See's. 15 & 14. Every surveyor of lumber shall attlie time of making a survey, mark on every stick of ton timber by him surveyed, the exact number of cubic feet such stick shall contain, together with the initial letters of his own name, and that of the private mai'k of the purchaser ; and on all deals and plank the surveyor shall mark with lead on the end, the length, breadth, thickness, and superficial contents thereof respectively, and also the Surveyor's private mark ; and all boards such Surveyor shall mark with the superficial contents thereof respectively, and with the said Surveyor's private mark. And if any person shall cut, deface, or otherwise destroy any mark so to be made on any stick often timber, or upon any deals, planks, or boards respectively, without the knowledge, or permission of the owner thereof, every such person so offending shall forfeit and pay for every such offence a sum not exceeding twenty shillings, nor less than ten shillings. Sec. 17. Every Surveyor of lumber shall be entitled to demand and receive for his labour and trouble in surveying the several articles following, the sums herein after mentioned, that is to say, for surveying and measuring all deals, planks, scantling, and boards, nine pence, for every thousand superfi- cial feet thereof, and the further sum of three pence for every thousand superficial feet for marking the same ; and for all lath- wood, six pence per cord ; and for all shingles three pence per thousand ; and for all hogshead staves, one shilling and six pence for every thousand thereof, according to the sale there- of respectively, which rates for the survey of merchantable lum- ber, as well as those herein before prescribed for surveying merchantable timber, shall be paid by the seller, who shall employ or have the choice of the Surveyor, and the seller shall remove or cause to be removed at his own expense, whatever may obstruct or prevent the Surveyor from ascertaining with facility the measurement, manufacture, or quality of any article LUMBER. 311 of lumber or limber, and when required the same shall be canted : Provided always, that no purchaser of any article of lumber or timber who shall purchase the same after it has been surveyed, shall be required to pay for the expense of survey^ unless such purchaser shall require a new survey thereof, or shall have made a special agreement for the payment of such expense. Sec. 18. The surveyor shall mark all timber and articles which do not correspond with the provisions of this Act, as re/use ; and for such survey and marking shall be entitled to the same fees as he is by this Act entitled to for surveying and marking merchantable articles. Sec. 19- All fines and forfeitures hereby imposed shall be recovered with costs of suit before any two Justices of the Peace of the county or district where the offence was committed, at the suit of any person who will sue for the same, in the same manner and by the same means as if the same were private debts ; and shall be paid and applied, one half to the use of the poor of the town or place where such offence was commit- ted, and the other half to the person who will sue for the same. Sec. 20. All prosecutions under this Act shall be com- menced within twelve months after the time the offence was committed. Temporary Act. As the Act directs that all fines thereby imposed shall be recovered in the same manner as private debts, the requisite directions and Forms in suits for the recovery of such fines, will be found under the Title — Summary Trials. All previous Acts regulating the qualities and survey of the several articles of timber and lumber mentioned in the fore- going Act, are by the said Act repealed, — some expressly and others virtually. ; , ,: II. Bringing Lumber, &c. down Rivers. -.11 :t ,iu in . LK <.t . ■-!. '(' By the Statute of the 58 G. 3, c. 31, 3 Y. 35 made per- petual by the 1 & 2 G.4, c. 10, it is enacted " That logs and lumber of any kind may be brought down the fresh water ri- vers at such times of the year as the Justices in their Sessions may appoint, doing as little damage as possible to the owners of adjoining lands ; and that persons engaged in the timber and lumber trade may remove obstructions in such rivers, at such times as shall be most convenient under the regulations estab- lished by the General or Special Sessions. Provided, that no mill dam may be removed, and the General or Special Sessions may make such rules and regulations as may be necessary res- pecting the bringing lumber and other articles down rivers, and 312 LUMBER. may impose a penalty for breach theraof of not less than ^wq \ shillings, nor more than two pounds ; to be recovered in an court of record, one half thereof to the person who shall sue for the same, and the other half for the repair of roads and bridges in the county." Temporary. >:.'i.,;,;r^,!';;' lunatics. ."••■1:1 r. ; By the 14 & 15 G. 3, c. 5. IV. 187, Where persons, by lunacy or otherwise, are furiously mad, and dangerous to be permitted to go abroad, it shall be lawful for two Justices where such lunatic is found, by warrant directed to the consta- bles, church wardens and overseers of the poor of the town- ship or place, to cause such person to be apprehended and kept safely locked up in some secure place within the county, as such Justices direct ; and if such Justices find it necessary, to be there chained, if the last legal settlement of such person be in any place within such county ; and if such settlement be not there, such person shall be sent to the place of his last legal settlement by a pass, and shall be locked up and chained, by warrant of two Justices of the county to which such per- son is to be sent ; and the charges of removing, maintaining, and curing such person during such restraint, (which shall be for such time only as such madness continues,) shall be paid, being first proved upon oath, by order of two Justices, di- recting the church wardens or overseers of the poor where any goods, lands, or tenements of such person be, to seize and sell so much of the goods, or receive so much of the rents of the lands as is necessary to pay the same ; and to account for what is so seized, sold, or received, to the next Sessions of the Peace ; but if such person hath not an estate to pay the same, over and above what is sufficient to maintain his or her family, then such charge shall be paid by the township or place to which such person belongs, by order of two Justices, directed to the church wardens or overseers. Provided, that nothing herein contained shall extend to abridge the preroga- tive of his Majesty, or of the Chancellor, concerning such lunatics, or restrain any friend or relation of such lunatics from taking them under their own care." Ptrpituah vtif)t?,;i9>S U5i.',>yqr3 lo \&-i^tmx} mii bun ,itov•!« fenotJi;ui;j,M*:(.ij«s !^:jriui. ri^iia ailflm biip .y.vym f(#^©b etJairi^; jodiwi'iis ijcicnul^aigriial udi ^v:. LUNATICS. fVarrant to Secure a Lunatic. ■ -fs£ County of ) To the Constables of the township of , :i^» r ) the churchwardens of the Parish of , nnd the Overseers of the Poor of the said township of — — [Seal.] in the said county of Whereas it hath been proved before us A. M. and A. 11. Esquires, two of His Majesty 's Justices of the Peace in and for the said county, upon the oaths of A.,W. and B. W. both of the township of in the county aforesaid, yeomen, that A. L. late of , in the county of , yeoman, frequently goeth at large in the said towship of , and that he the said A. L. is by lunacy so far disordered in his senses, that he is dangerous to be permitted to go abroad ; and that his last legal settlement is in the township of in the said county of . These are therefore to auf'^orize and require you, and every of you, to cause the said A. L. to be apprehended and kept safe- ly locked up in the house of A. K. at , in the said county, the said A. K. being willing to keep and entertain him the said A. L. for a reasonable allowance in that behalf, and the said 'ouse being a secure place : And the said A. L. is to be kept eked up only so long as such lunacy or disorder shall con- :..ue, and no longer. Given under our hands and seals, at , in the said county, this — day of , in the year of our Lord one thousand eight hundred and A. M., J. P. it-, j»r, /j rii-i A. ixt , u . x. Order to charge a tjimatic'^s Estate with his Keepings Main- I u tenance and Cure. ' 5^* * ^»' " ' ' • County of ' To the Churchwardens of the Parish of [Seal.] [Seal.] Whereas A and the Overseers of the Poor of the township of , in the said county of ,!"'•• "^ » ^ f ' ' ' L. late of ) in the said county, yeoman. being a person lunatic, and so far disordered in his senses, that he was and is dangerous to be permitted to go abroad, hath by warrant under the hands and seals of us A. M. and A. R. Esquires, two of His Majesty's Justices of the Peace in and for the said county, been apprehended and safely locked up in the house of A. K. at , in tlie said County, the said house being a secure place for that purpose ; and whereas it apj^ears to us on the oaths of C. W. one of the church wardens of the said parish of , and 0. P. one of the Overseers of the poor of the township of in the said county, that they the 40 813 nl Mi 314 LUNATICS. said church wardens and overseers have reasonubly expended the sum of , in removing the said A. L. to the said house of the said A. K. and in keeping, maintaining, and curing hitn there ; These are therefore to authorise and command you lo s6ize and sell so much of the goods and chattels, and to receivp so much of the annual rents of the lands and tenements of hini the said A. L. within your said parish and township, as shall be necessary to pay the same ; and for what shall be so seized, sold, or received by you, you are to account at the next Gene- ral Sessions of the peace to be holden for the said county. Given under our hands and seals, at in the said county, the — day of in the year of our Lord one thousand eight hundred and — . Ai ,(}t \'i A. M., J. P. A. R., J. P. 'hf>' i ni ».! ,H !. ■JU'W a:.' .or, MADNESS, see,— DOGS, also,— LUNATICS. >;hl , :^d'; i.i: ,(''■* \', m; p; .J f. " :ivn Maim, is such a hurt of any part of a man's body, where- by he is rendered less able in fighting, either to defend him* self, or annoy his adversary. The cutting off, or disablinj, or weakening a man's hand, or finger, or striking out his eye or fore tooth, or castrating him, are said to be maims : but the cutting off his ear or nose were not esteemed maims at the common law, because they do not weaken but only disfigure him. 3 Burns, 296. But by the English Statute of the 22 & 23, Ch. 2, c. 1, Sec. 7, The lying in wait, and maliciously maiming or disfigur- ing any person, is made a capital felony, and this clause has been re-enacted in this Province, by the 32 Geo. 2, c. 13, Sec. 2. 1 V. 15. by which it is declared, — " That if any person shall on purpose and of malice forethought, and by lying in wait, unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut of a nose or lip, or cut off or disable any limb or member of any person, with intention to kill, or to maim or disfigure any such person ; the persons so offending, their counsellors, aiders and abettors, privy to the offence, shall be felons without benefit of clergy. Provided, that no at- tainder of such felony shall work corruption of blood, or for- feiture of dower, lands or goods of the offender. " Perpetual • HCiU.i MAIM/wLJAK 315 It is not necessary that the malicious intention should be iMalicioua in- conceived against any particular individual. If it be against all to"'>on- persons who may happen to come within the scope of the per- petrator's design, the particular mischief done to any one, will be connected with the general malignant intent, and so the case u'ill fall within the Statute. With regard to the lying in wail, there must be proof of a deliberate and premeditated design to do a personal injury of the sort described, to another ; and it must appear that the mischief was done in the manner described there- in ; that is, on purpose, and of malice aforethought, and by lying in wait for that purpose. And to bring the case within the Act, there must also be an intention (to be collected from (irciimstances) to maim or disfigure ; for if the intent be of a (litl'erent and less atrocious kind, it is not within the Act, though the party be in fact maimed. If the maim come not within any of the descriptions in the Mnim at com- k(% yet it is indictable at the common law, and may be pun- ished by fine and imprisonment ; or the party injured may bring an action of trespass, in which he shall recover damages. It is not every trifling assault ihtit will justify an inime- cliaie and grievous maim, such as cutting off a leg or hand, or biting off a joint of a man's finger, unless it happened acci- dentally, without any cruel and malignant intention, or after the blood was heated in the scuffle ; but it must appear that the assault was in some degree proportionable to the maim. S Bwns, 297-9. As a maim under the before mentioned Act, is thereby Uiroctioiie. made a capital felony, the same proceedings must be had, and the same Forms will serve on Informations for this offence as in other felonies ; as to which proceedings and Forms, see respectively. Titles, — Information ; Warrant ; Examination ; Commitment. Justices of the Peace cannot bail for a maim tinder the Act. inon law. Justification of Maiai. )»U !■ It?.' \ MALICIOUS INJURIES. u .^ ^ I. To Cattle. i» (^ ,,-. u. i»»iii r, . -«'• By the 4 & 5 G. 4, c. 4. 3 V. 181, *' If any person shall maliciously, unlawfully, and willingly, kill, maim, wound, or otherwise hurt, any horse, mare, gelding, ox, bull, cow, steer, heifer, sheep, or other cattle ; every such offender or offenders, shall forfeit and pay unto the parly aggrieved, treble the damage which he shall sustain ; to be .recovered by action of trespass, or upon the case, in any Court of Record." ai6 w ^ MALICIOUS INJURIES. Sec. 2. Any person who shall be duly convicted of such I ofTence, in tlie Supreme Court, or General or Quarter Sessions shall suffer such punishment by imprisonment or public whip- 1 ping, as such Court shall in their discretion adjudge. Provided that nothing herein contained shall subject any person to be punished or imprisoned under the directions of this clause, who shall be proceeded against for damages by the party ag- grieved ; nor shall any person who shall have been punished or | imprisoned under the directions of this clause, be liable to any suit or action at the instance of the party aggrieved ; but | such punishment or imprisonment shall be for ever a bar to any such action or suit. " Perpetual. .t-^ Note. This Act repeals a former Act of the 8 G. 3, c. 2. on the same subject. -(Ml II. To Real or Personal Property. By the 2 W. 4, c. 48. 4. V. 167, If any person shall wilfully and maliciously destroy, or commit any damage, injury or spoil to or upon any real or per onal property whatsoever, either of a public or private nature, for which no remedy or punishment (other than a civil suit or action) is provided, or can be inflicted by the Laws or Statutes of this Province, or in force therein, every such person shall be guilty of a misde- meanor, and being duly convicted thereof in His Majesty's Supreme Court, or before any General or Quarter Sessions, shall forfeit and pay such 6ne or penalty, not exceeding twenty pounds, or shall suffer such punishment by imprisonment io the couuty gaol, or bridewell, or house of correction at Hali- fax, for such space of time not exceeding two years, or by 6ne and imprisonment as aforesaid, as such Court shall in their discretion adjudge. Sec. 2. All fines levied and received under the Act, shall in case of injury to private properly, be paid to the party ag- grieved, (if known) except where such party shall have been examined in proof of the offence ; and in such case, or where any public right or property is concerned, such fines shall be paid to the king. Sec. 3. Nothing herein contained shall extend to any case, where the party trespassing acted under a fair and reasonable supposition that he had a right to do the act complained of ; nor to any trespass, not being wilful and malicious ; but every such trespass shall be punishable in the same manner as before this Act. Sec. 4. Every person who shall aid, abet, counsel, oi ...iC:. ■' I' ■•I»i MALICIOUS INJURIES. 317 '^ti procure the commission of any offence punishable under this Act, shall be liable to be indicted and punished as a principal offender. 5. Every punishment by this Act to be imposed or in- flicted upon any person maliciciisly committing any offence, shall equally apply and be enforced, whether the ofl'ence shall be committed from malice conceived against the ow^er of the ^ property in respect of which it shall be committed, or other- wise. Temporary. On complaint being made to a Justice, of any of the of- Directiong. fences mentioned in the Statutes recited under this Title, he must take the information in writing, in the usual manner and form, and issue his warrant for the arrest of the party charged, and on his being brought before him, examinations in writing need not be taken, as all the said ofi'ences are only misde- meanors ; but the party must be required to produce sufficient bail, and if he does so, the Justice must, as in like cases, bind the party and his bail, for the appearance of the former at the next term of the Supreme Court, or of the Sessions, as the Justice may see proper, and may then discharge him from custody ; but if he fails to furnish sufficient bail to the satisfac- tion of the Justice, he must be forthwith committed to jail, to await his trial. The Justice must also, as in similar cases, bind over the prosecutor and witnesses to appear at the court, and give evidence ; and in due time must send into such court, the minutes of all the recognizances by him taken in the case. More particular directions, if needed, and the requisite Forms, which may readily be filled up so as to serve, will be found under the respective Titles, — Information ; Warrant ; Bail ; Commitment. Oiii : t(i iv.jf r ;v o]- ■/" j :)) -HilVi- li. Vf,I !o :j.i .■» Uiin ,v »)'ii- Mj ill!!, ■- = .;-■ )) i i MARRIAGE. f ) m 'ill m :?!':•* r js ; but every nner as before By tlie 32 G. 2, c. 17. 1 V. 24. If any person, being Pulygamy. married, do marry again, the former husband or wife being alive, such offence shall be felony. Provided nevertheless, that this shall not extend to any person, whose former marriage has been declared void, or who has obtained a divorce by any sentence had before the Governor and Council. Sec. 8. Every man and woman who shall carnally know incest. ' each other, being within the degrees of kindred forbidden in the English Statute, made in the thirty-second year of King Henry the Eighth, entitled " An Act concerning pre-contracts 318 AiImI'-sij. Registry of Mairiiiges, Hivlhs and Town ( 'k'rks to re^istfr Marringoa, &c. .-''■ MARRIAGE. A '^ ami touching degrees of consanguinity ; and shall be convict- ed thereof, before His Majesty's Supreme Court, or General Quarter Sessions of the Peace, shall be set in the pillory for the space of one hour ; and further, shall forfeit the sum ol fifty pounds, to the use of His Majesty's Government; or suffer six months imprisonment. '«tr?fi Sec. 9. Every person who shall commit adultery, and shall bo thereof convicted before any of His Majesty's Courts aforesaid, shall forfeit to the use aforesaid, the sum offiliy pounds, or suffor six months imprisonment, and to be subjeci nevertheless to an action of damages by any of the parlies ag- grieved. Perpetual. By the 1 G. 3, c. 4. 1 V. 67. It is provided, that in everv township where no parish is established, the proprietors clerks shall take an account of all persons who shall be married, or that shall be born, or shall die in such townships, respectively, and shall fairly register in a book their name^ and surnames, as also the names and surnames of their parents, with the time of their being married ; or of their birth, or death ; and the Registrar shall receive the fee of six-pence for every such registry, to be paid by the persons who shall be married, and by the parents or nearest of kin to or concerned with the parly born or dead. And if any shall refuse or neglect to give notice to the said Registrar, of the marriage by the persons themselves, or of the birth or death of any person that they are so related to or concerned for ; or to pay for registering as aforesaid, within the space of thirty days, next after such marriage, birth or death, every person so refusing or neglecting, and being (upon the complaint of any Registrar,) thereof convicted, be- fore one Justice of the Peace of the santie county, shall forfeit and pay to such Registrar the sum of five shillings, to be levied by distress and sale of the offender's goods, by Warrant from such Justice, if payment be not made within four days nest after conviction as aforesaid. And every such Registrar shall give forth from the Registry, a fair certificate under his hand, of persons married, born, or d)ing in the township, to any who shall desire the same ; and lie shall receive one shilling and no more, for every certificate so given. The Registry so kept shall be sufficient evidence in any Court of Record in this Province. By the 22 G. 3, c. 3. 1 V. 226, made in amendment of the foregoing Act, it is enacted, " That the duty to be done by the proprietor's clerk of each township, as directed by the said foregoing Act, shall for the future be done by the Town Clerk of each township ; and the parties failing to comply with the directions of the said AcL shall be liable to the forfeiture MARRIAGE. dl9 iinirpRnalty iherein set forth, and such party shall pay for re- cording each mnrringe, hirth, or death, one shilhng, instead of ihe fee directed to he paid by the said Act. And the swid Town Clerks siiall apply to the several ministers of such townships respectively, for a list of all such marriages, births, or deaths recorded by them, before the making of this Act, and from time to time hereafter, and shall enter the same in a book kept lor that purpose." Perpetual. ,'\ ,'.i''"'i :h V w.a f'f MEASURES, see,— WEIGHTS, &c. \ t ^ i'j ; :•',! ,-t '' i' . .^ '1.1 MILE POSTS, &c. By the 30, G. 3, c. 3. 1 V. 278. " Whoever shall be guilty of defacing, displacing, injuring, or destroying any post board, or stone, erected or to be erected for the purpose of ascertaining distances, shall on conviction thereof, before any two Justices of the Peace, forfeit and pay the sum of two pounds ; the one half whereof to be given to the prosecutor, and the other half paid in to the Treasurer of the County wherein such offence was committed, for the purpose of repairing and erecting mile boards within such County ; and in case the party so convicted shall be unable to pay the fine impo:; J lisr ;' [Sec. 21. Persons charged with selling, purchasing, or re- ceiving arms or accoutrements as aforesaid, who shall imme- diately cause the same to be delivered to the Justice, shall have a remission of one half of the fine, or imprisonment.] k.( [Sec. 23. Militia men, before removal out of the district of the company in which they are enrolled, shall deliver to the 41 $1- M2 \n MILITIA. rommaniliiig oHirer of siirli cotripnny, in good order, the anus nnd nccoutrenients they remived, under the penalty of IKe pounds.] [Sec. 2!y. If any militia man shall appear at any muster, with arms or accoutrements, which in the opinion of the officer commanding the company to which he belongs, are dirty nnd nol in good and serviceable order, he shall forfeit and pay, not less than two shillings and six pence, nor more than ten shillings,] [Sec. 2G. If any militia man who has received arms or accoutrements as aforesaid, shall use them for fowling, or the like private purposes, he shall forfeit and pay five shillings for each offence.] [By 4, G. 4, c. 4. 3 V. 148, Where a bond given by n militia man for arms, has been lost or misplaced, a rcroijit given by the commanding officer of the company, on the return of such arms, shall cancel the bond ; and if such militia man shall refuse to deliver up the arms or accoutrements on sucii receipt being tendered to him, he shall forfeit five pounds. J See the note at the end of division No. 12. ^•"•■>i ' • isv - -<.«i.j •Ki ' -j.iOtU'jq liXit \..l III. Training. 1 lis. '.riV.'iMs .7^> lull •:::!/ r 'i'l [By the 1 & 2, G. 4, c. 2, §28. 3 V. 79, Officers commanding companies, having received orders to call out and discipline their compani«>s, and neglecting so to do, shall for- feit five pounds for each such offence.] [ Sec. 31 . All officers under the rank of Lieutenant Colo- nel, who shall fail to attend any meeting of the battalion or company to which they respectively belong, without reasonable excuse, to be adjudged by a Board of Officers appointed for hearing and determining appeals, shall forfeit, if a major, five pounds, if a captain, three pounds ; and if a subaltern officer, two pounds ; which fines shall be sued for by the adjutant of the battalion, and recovered in like manner as fines upon mili- tia men for non attendance.] "> [By the 7 G. 4, c. 16. 3 V. 261, Instead of the fines im- posed by the 28th section of the aforesaid Act, of the 1 & 2 G. 4, c. 2, for non attendance at any battalion meeting, every militia man for such non attendance, shall for the first ofTence be subject to a fine of ten shillings, and for the second like of- fence in the same year, to a fine of twenty shillings ; whicli fines shall be sued for and recovered, and be applied conform- ably to the said last mentioned Act, by the clerk of the com- pany to which the offender belongs, but in the name of the commanding ofiicer of such company, instead of such clerk ; and the clerk shall be a competent witness upon such prosecu- tion. MILITIA. tJ23 I Sec. 6. Mililia men while piocuctling fioin home to ot- icnd tiainiiigs, and during the ihya they uttcnd the same, ond while returning therefrom) sihall not be arrested on any civil process, and every sucli arrest shall be void, and the officer making it shall be liable to au action for damages at ' '>c suit of ihe party arrested.] (By Sec. 29, of the aforesaid Act of the 1 ^ 2 G. 4, c. 2, 3. V. 80. Notice of the imposition of fines for non nt- leiHJance at trainings, shall be given by the clerks of companies, either personally to the delinquent militia men, or in writing left with the master, pafcnt, or wife, or with the child or ser- vant, of the age of discretion.] [Sec. 33. All fines on militia men for such non attend- ance, shall be recovered belore any one Justice, Miot being an oificer of the company to which the militiaman belongs, which Justice shall have no power to remit any such fine, but on proof thai the delinquent militia man had the notice before mentioned of the imposition of the fine, and that he bad nut been relieved oil appeal, the Justice shall issue process lor collecting the same, us in cases of debt.] [Sec. 48. Any person wilfully interrtipting militia at ex- ercise, or on any duty, may be confined by the commanding of- ficer during the time of such exercise or duty, (if necessary,) to prevent the continuance of such interruption, and the per- voii so offending shall forfeit the sum of ten shillings.] See Note at the end of division No. 12. mu in '(Oiu .'«: rill!* IV. Watching and Wardino. ■'A',f\'i■'>^' '.liMf:. T'l: r^ ■ ■ V, ,' . ,i 'i'l 1 t\- i • If * ' [By the 1 & 2 G. 4, c. 2, § 3G. 3 V. 81, Wiiere militia guards shall be appointed for the purpose of watching and warding, every person, oflicers and others, neglecting by him- sell' or sufiicient substitute to perform his fair term of watching and warding, in manner and at the lime directed by the com- manding oiHcer of his company, shall forfeit ten shillings for every such neglect.] See the Note at the end of Division No. 12. , . , ^'f I 'oi>. ".1 I , i^ir^xj '.>.', s\''j IV,' -nihiuT. Refusing A-PPOintments. . ■ .-n- h->:]5- ■- i ■* ;Ct'rt-i3'vi;/«ft?i/«s ,<-'niifMHi*.' t*' nr.piVfi'si Aft. ■ h\n',l By Sec. 43, of the last mentioned Act, — Every person appointed a sergeant, corporal, clerk, drummer or filer, who shall refuse to accept such appointment, shall forfeit a fine of forty shillings ; and every person having accepted any such ap- pointment, and neglecting the duty thereof, shall forfeit forty shillings for each olFeuce,^ .jtcujfm; *;a.j ... .^ *;(; .mtj^r *^m..; 324 m fcill* MILITIA. "I < 6. Clerks op Companies and Battalions. By See's. 44 and 45, of the said last mentioned Act, the duties of clerks of companies are declared to be — " To keep registers of their respective companies, — to furnish the non- commissioned officers with lists of the men whom they are directed to warn for training and other duties, — to take lists of the companies as often as required by the officers com- manding them, — to attend commissioned officers making In- spection of arms, — to attend all musters, — and to prosecute for all fines and penalties applicable to the use of their respec- tive companies, when so ordered by the officers commanding such companies. And if any such clerk shall refuse or neglect to perform the said duties, he shall for each such neglect, for- feit a fine not exceeding five pounds, nor less than twenty shillings, to be prosecuted for, by the officer commanding the company. Sec. 46. Officers commanding battalions shall appoint clerks for the same, who shall be subject to the same penal- ties as clerks of companies for any neglect of duty. ■■ 7. Commitment for Improper Behaviour. Br the Sec. 41 , of the samei last mentioned Act, *' If any non-commissioned officer or private, shall be drunk, or mis- behave himself at any training of a battalion or company, the commanding officer thereof, may by warrant under bis hand and seal, forthwith commit such offender to the county gaol, for a time not exceeding three days, nor less than twelve hours, there to remain without bail ; and on refusal of the sheriff or gaoler to receive such offender into his custody, he shall for- feit five pounds ; and the serjeant or corporal, who, on beins; ordered by such commanding officer, shall refuse or neglect to escort such offender to gaol, shall be reduced to the ranks, and forfeit forty shillingsi ; and every private who on being so ordered, shall neglect or refuse to do the same, shall forfeit ten shillings." By 9 G. 4, c. 26. 4 V. 38, The foregoing provision is extended to all cases of employment in militia duty of any kind.] See the Note at the end of division No. 12. 8*.' Certificates of Surgeons, &c. ■''''■ [By Sec. 49 of the same Act '' Any physician or sur- geon, on being required by a board of officers to certify or give his opinion as to the sickness oi- infirmity of any person MILITIA. I enrolled in the militia of the county or district where he resides, shall forthwith give the same without fee, under the penalty of forty shillings for refusal thereof ; and every physician or sur- geon who shall give a certificate or opinion of the actual exist- ence of any sickness, complaint, or disability, knowing that ihe same is false or pretended, shall forfeit a tine of ten pounds."] See the Note at the end of division No. 12. r, •,. 325 , F>«^ '^ 9. Reports of Officers. "I*. ■ J .>i V Ik.. [By the 4 G. 4, c. 4, 3 V. 147, When (he officer com- manding any company, shall accept from any man of the com- pany, an excuse for non-attendance at any meeting, he shall, if required by the commanding officer of the battalion, report 10 him in writing, the nature of such excuse ; and on neglect or refusal thereof, shall forfeit the sum of two pounds ten shil- lings.] See the Note at the end of division No. 12. 10. Boards op Officers. [By Sec. 4 of the said last mentioned Act, " If any field officer or officer commanding a company, shall neglect to attend any board or meeting of officers, when ordered by the officer commanding the battalion to which he belongs, wiUiout reasonable excuse to be adjudged by a board of officers, he shall for each offence, forfeit the sum of two pounds ten shil- lings."] See the Note at the end of division No. 12. -i^nh. .-.• f). ■rJV.^i!fn»»«»p frit ■■ . 1 1 ;?^-i.) '" '**' ' ^■■f " '.'f'-- ■• -' -w-v.-. V(! i.#y».i.i, !,• 11. Actual Service.v»'-..-iM* .-v 4y,v .; v •■.. ■■'..% [By the 1 & 2 G. 4, c. 2, § 64. 3 V. 90, " Whenever the commander in chief, or the officer commanding any batta- lion, or the officer commanding in any township, shall order any part of the militia into actual service, any non-commis- sioned officer or private, who shall neglect or refuse to obey such order, or shall not, by himself or sufficient substitute, proceed to perform such service as may be legally required of him, shall be confined by the commanding officer of the bat- talion or company to which he belongs, and shall be subject to a fine of ten pounds, to be recovered before any two Jus- tices for the county wherein the oft'ence was committed ; to be levied of his goods and chattels, by warrant of distress, un- der the hands and seals of such Justices ; or in default of such distress, to be liable to three months close imprisonment.] [Sec. 85. If any person shall encourage, or endeavour to encourage, persuade, entice, or procure any non-commis- 'Mm Il MILITIA. sioned ofHcer or private of the militia on actual service, to desertf or shall harbour, conceal, or assist any such deserter knowing him to be such, it shall be lawful for the commanding oliicer of the battalion, company, or detachment to \vliicli| such non-commissioned oilicer or private belongs, at liis op- tion to cause such person to be prosecuted in the Supreme | Court, or before two Justices of the Peace. And if such pro. secution shall be before two Justices, the person or persons I who on the oath of one credible witness or more, shall be I convicted by them of any of the said oflences, shall severally forfeit and pay five pounds ; and in default of such paymeiii, the offender or offenders shall by such Justices be committed to gaol and closely con6ned for twenty days, or until he, slie, or they, shall discharge the said penalty of five pounds, wiili the costs of prosecution.] See the Note at the end of divi- sion No. 12. 12. Recovery of Fines. !l^: I :i| [By the 9 G. 4, c. 26. 4 V. 38, No Justice of ilie Peace shall receive any fee or reward for any service done hv him in that capacity, under the provisions of this Act, or any previous Acts hereby continued and amended.] . [Sec. 10. All fines and forfeitures under this Act, or any previous Acts hereby continued, not exceeding three pounds, shall be recovered before any one Justice ; and all above three pounds, and not exceeding five pounds, shall be recovered before two Justices ; none of the said Justices being an officer of the company in which the fine sued for was in- curred ; and all other fines and forfeitures, above five pounds, shall be recovered in any Court of record, unless the recovery of the san)e is otherwise provided for. Provided, that no person shall be prosecuted for the breach of any clause of this Act, or of any of the said Acts, after the expiration of tlnee mouths from the commission of the oifence.] h, -...h ; i< Note. All the before mentioned Acts concerning the militia, containing the several provisions and regulations here- in before recited, were annually continued until the Session ol the Legislature in the present year 1837, when by the Acl ol the 7 W. 4, c. 02, only the Jivsl ten sections, and the fuiiij- Ihirdy forly-fourik, jorty-fifth, and forty-sixth sections of the said first mentioned Act of the 1 &, 2 G. 4, c. 2, were con- tinued for one year. None of the other sections of iliis Act, nor any part of either of the other Acts herein before mention- ed were so continued ; and therefore these sections and Acts mflitfa: 321 f s S ustice ; and all j3i.p to l)e ronsiderpd as not in force at present. IIo\rever, las it is probable they will be revived in the next, or some stib- Isfiqiient Session of the Legislature, and moreover, as they Imav, tinder certain circumstances, be at any lime bronghtinto operation by the Lientenant Governor, agreeably to a clause liniliesaid Act of the last Session, it has been thought best to set forth under this Title, the sevc.'al foregoing enactments, nf/hiow in force ; and accordingly ll ey have been given, in- rliided within brackets. The preceding Sections, not so de- signated, are at present in full force. slnj^? h By the aforesaid Act of the 7 W. 4, c. G2, the following I enactments are made : Sec. 1. The first ten sections, and also sections 43, |44, 45, and 46, of the Act of the 1 & 2 G. 4, c. 2, are con- |tiiiiied until the thirty first day of March, in the year 1838. Sec. 2. The militia shall not be called out, or required (0 attend any muster for drill, training, or discipline, during the continuance of this Act. Sec. 3. On or before the last day of October in each veai', every captain or cifficer commanding a company shall make out and transmit to the officer commanding the regiment to which such company belongs, a return of the strength of such company, with a fair roll thereof; and in like manner once in every year, on or before the last day of November, the commanding officer of every regiment or battalion shall make and transmit to the Adjutant General of Militia, a return of the strength of such regiment or battalion, with a return of the arms and accoutrements thereto belonging, and of the state and condition thereof ; such returns to be made in the form prescribed by the Adjutant General ; and any captain or offi- cer commanding a company, neglecting to make such returns, shall forfeit and pay a fine of two pounds ; and any officer com- manding a regiment or battalion neglecting to make such re- turns, shall forfeit and pay a fine of five pounds. Sec. 6. In case of war, invasion, or any sudden emer- gency which shall require the calling out of the militia, it shall be lawful for the Governor, or commander in chief for the time being, by proclamation, to revive and call into operation the Acts relating to the militia, which were continued by the Act of the last Session of the General Assembly until the thirty first day of March, in the year one thousand eight hundred and thirty seven, or such of the said Acts, or such parts thereof as shall be in the said proclamation designated ; and thereupon, and thereafter, such Acts, or such parts thereof, shall come into and remain in operation, and this Act shall cease and de- termine until the end of the then next session of the General Assembly. n- H,.\ i^i'm 328 MILITIA. Sec. 7. All fines and penalties imposed by this Act, or by any of the sections of the said Act herein first mentioned, which are hereby continued, shall be recovered and recover- able, and be applied as is prescribed in and by the tenth clause of the Act passed in the ninth year of the reign of His late Ma- jesty, entitled, " An Act to alter, continue, and amend the several Acts for the regulation of the Militia," in the same manner as if such tenth section had been hereby continued. Sec. 9. This Act shall continue in force until the thirty first day of March in the year one thousand eight hundred and thirty eight. iTtt' ISTS t i-^.t Dirftctiona. With regard to such of the before mentioned fines as are directed to be levied as in cases of debt, the writ of Execution for levying them, will be the same as in such cases, the Form of which Writ will be found under the Title, — Summary Trials, The proceedings for the recovery of the other fines, will beas in similar cases, set forth under various titles of this work ; di- rections as to which proceedings, with the requisite Forms, will be found under the respective Titles, — Information ; Sum- mons ; Conviction ; Distress ; Commitment. S ''.'Sfkrv; . nil If , ":': • •?''>;i.'.v ■►' < MILLS, see, — GRAIN. M,,;t', ..r,. ■;>..,,.•... :^ ..-i-^/ MINES, see,— COALS. „,, ^'"' '"i/;^:' MINORS, see,— INFANTS. ;.,-,;'i. ,',.,. 'to' ti. _ ;t MISDEMEANOR. t Ji' -•; This word in its usual acceptation is applied to all those crimes and offences for which the law has not provided a par- ticular name ; and they may be punished according to the de- grees of the ofl^ence, by fine or imprisonment, or both. This is the case with respect to acts of omission or commission, which were punishable at common law ; but many offences ftre by the statute law punishable as misdemeanors specifically. A misdemeanor is in truth any crime less than felony, and the word is generally used in contradistinction to felony ; and mis- demeanors comprehend all indictable offences which do not amount to felony, as perjury, battery, libels, conspiracies, public nuisances, &c. 3 Burns 503. ( 329 ) MURDER, see,--HOMICIDE. '.HXi hiii \'6 I. Deserters prom the Navv. k . .»»«! j > , .„«.! at NAVIGATION, see,— WRECK. > fjit. 6 w. i^i.M •■) & j-.xi NAVY. By the 32 G. 2, c. 12. 1 V. 14, Any person who shall entice any seaman or marine to desert, or harbour, conceal, or assist any deserter from any ship of war, knowing him to be such, shall forfeit twenty pounds, on conviction, by one credi- ble witness, or more, before any three Justices of the Peace, [(iwruin unus) for the use of Government ; to be levied by distress, and for want of such distress the offender shall be fommitted to gaol, there to remain without bail for six months, or till such time as the said fine shftll be paid. Sec. 4. On information made on oath before any Justice of the Peace, by any officer of a ship of war, that one or more of the seamen in His Majesty's service have deserted orab^ sconded, who there is reason to believe lie concealed in some dwelling or out-house where the said officer has been refused admittance, it shall be lawful for such Justice to issue his warrant to some one or more constables, empowering him or them in the day time to search for said desertors or abscond- ers, in any dwelling or out house that shall be suspected for concealing them, accompanied by one officer only, either lieutenant or midshipman, and no seaman or marine with him ; and in case any master or mistress of any such house shall re- fuse entrance to said constable or constables, they shall forfeit twenty pounds, upon conviction, to be levied by warrant of distress, under the hands and seals of two Justices of the Peace, from the offenders goods ; and for want of such distress, such offender shall be committed to gaol for six months. And upon information on oath as aforesaid, it shall be lawful for anv such Justice, and he is hereby required in the night time, in his own person, attended with the constables, accompanied by one officer either lieutenant or midshipman, and no seaman or marine with him, to demand entrance into any dwelling house or out-house, on suspicion of deserters or absconders being concealed there ; and the master or mistress refusing entrance to such Justice so demanding it, shall forfeit twenty pounds, to be levied as aforesaid upon conviction, and for want of such distress, shall be committed to gaol for six months ; the afore- 42 .•1 '. I i1 330 i m m NAVY. said sums to be for the uses of this Government. And the per- son or persons apprehended, supposed to be such deserters or | absconders, shall be committed to gaol until proof is made be- fore one Justice or more, of his or their desertion or abscond- ing, and then shall be delivered up to the officer or officers oil the Navy, who shall make demand of him or them. And in case any such person so committed, is not a deserter orab-| sconder, or shall not be in His Majesty's service, he sliallbe discharged without cost. Perpetual. ■f II. Selling OR Receiving Slop Clothes. By the aforesaid Act, Sec. 2, " If any person shall buy or receive as a pledge, or exchange any slop clothes from any seaman or marine belonging to any of His Majesty's ships of | war, upon conviction thereof, or confession, or by the oaihof one credible witness, or if such clothes shall be found in the possession of any person, upon complaint that they were bought from, or pledged, or exchanged by such seamen or marines ; in such case the parly offending shall pay a fine of five pounds ; forty shillings of which to the informer, and three pounds to the use of His Majesty's Government ; and the clothes shall be taken from such person and returned to such seaman or marine ; and such person shall be utterly debarred from recovering the purchase or loan money for the same. Any person offending may be convicted before any one or more of His Majesty's Justices of the Peace, who shaU levy the penalty by distress ; and in default of distress, shall commit the offlenderto gaol, there to remain vvitliout bail for two months, or until such penalty shall be paid. Sec. o. It shall be lawful for any person upon seeing or knowing of any seaman or marine belonging to the navy, selling or exposing to sale any of his clothing or slops, to apprehend him and carry him immediately to some Justice of the Peace of the county, who shall commit him to gaol, and deliver hint over to the captain or other oiFicer of the ship to which he belongs."— This Act is made perpetual by the Act of the 34 G. 2, c. 1. 1 V. 56. i ,.'..,.>■').•-»■ 4,' J 5 v.rt-,»i^.i,'i'i u.iiiiSi For the Forms, which may be filled up so as as to serve for an information, and for a warrant thereon, to search for a de- serter from the navy, see Title, — Deserters ; and for directions as to other proceedings under the provisions of the aforesaid Statute, and for the other Forms requisite, see the general di- rections and the common Forms in similar cases, given under the respective Titles, — Infonnatiou ; Summons ; Conviction ; Distress : Conimiiment. (331) .i5 »^:>ki^^^ N U I S A N C E . *■ -'^^ ^«^^ -*:^' ■ -'': tfll f; .-.; ; m l>'..: , I. At Common Law. I . ,..it ;; .^l,;i-!i:! ;' lia'i'V.x-' >'■;■« ACoMMON Nuisance seems to be an oflbnce against the public, either by doing a thing vvliich tends to the annoyance of all the King's subjects, or by neglecting to do a thing which the common good requires; and the remedy for this oftence is by indictment or presentment at the suit of the King. An- noyances to the prejudice of particular persons are not pun- ishable by a public prosecution as common nuisances, but are left to be redressed by the private actions of the parties ag- grieved by them ; as, — stopping a prospect ; — building a house in a larger manner than it was before, so that the street be- comes dark ; — or erecting a shed so near a man's house, that it stops up his lights, — are not public nuisances. The follow- ing have been held to be cases of public nuisance : — common bawdy houses, common stages for rope dancers, and all com- mon gaming houses. Also, agate erected in a highway where none had been before ; so a wall erected across a highway ; and every other unauthorized obstruction of a highway, to the annoyance of the King's subjects. However, in the case of repairing a house, the public must submit to the inconvenience necessarily occasioned thereby, but if this inconvenience is prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance. A mastiff going in the street unmuzzled, from the ferocity of his nature being dangerous and cause of terror to His Majesty's subjects, seems to be a common nuisance, and consequently the owner may be indicted for suffering him to go at large. No length of time will legitimate a nuisance. It seems to be certain, that any one may pull down or otherwise destroy a common nuisance, as a new gate, or even a new house erected ill a highway, or the like. But although he may remove the nuisance, yet he cannot remove the materials, or convert them to his own use. So much of the thing only as causes the nuisance ought to be removed. 3 Burns, 519 to 524. i! * II. By Statutes. 1. Nuisances in Rivers. S,1 By the 20 G. 3, c. 7. 1 V. i47, made perpetual by the 332 NUISANCE. Makinst Reji- ulafions noii- cerning ^iui- siinccs. 48 G. 8, c. 18. 2 V. 21, It is enacted, — that all mill-dams or other obstructions across rivers to which 6sh resort, shall have a ivubie gate or slope for the admission of fish ; and if not so con- structed, upon complaint made to the General Sessions, ilie Justices thereof, upon the report of a jury, under a precept lo the Sheriff, may order the owner of such mill-dam or other ob- struction, to form such waste-gate or slope, and to pay a 6ne not exceeding fifty pounds nor less than ten pounds ; and if the said fine with the charges of prosecution are not paid, the same shall be levied on the goods and chattels of the offender, bv warrant of distress ; and if no distress can be found, the offender shall be imprisoned for three months, or until the fine and charges are paid, If the party convicted do not obey such order of the General Sessions, a Special Session of three or more Justices may be held, and shall issue a precept to the Sheriff, to prostrate such nuisance ; and all persons when re- quired by the Sheriff, shall assist in so doing. When it appears by the return of the Jury that persons have complained without sufficient cause, they shall be adjudged to pay costs to the said owner. Justices in their first General Sessions shall distin- guish :iuch rivers or streams as they deem useful for the sup- plying of timber, fire wood, saw mill logs and boards ; and shall make an order that all persons thereafter making a mill- dam or other obstruction on such rivers or streams, shall form a waste gate or slope ; and such Justices shall cause copies of such order to be posted up, and if any person shall act con- trary thereto, he shall be liable to be proceeded against, in the same manner as herein before mentioned ; and any mill dam or other obstruction not so made, shall be prostrated as in the case aforesaid. Perpetual. ,> A i-^.i '1,^ i)ii' Note. As the proceedings under this Statute are to take place in the Sessions, it is thought unnecessary to recite in full the several clauses relating to the foregoing regulations. With regard to the Statutes and the proceedings in cases where prosecutions are to be had before Justices, for nuisances in rivers, by obstructing the passage of fish, see Title,— Fisheries. rf. i,vij,>j 2. JS\iisances concerning Health. > ;* c By the 3 W. 4, c. 40. 4 V. 218, The General or Spe- cial Sessions, when at least five Justices are attending therein, shall make and publish such rules and regidations as they may deem expedient, for the prevention and removal of nuisances in streets and elsewhere, whereby the public health may be NUISANCE. 333 KeiiioMil of Nuwunces. adectecl ; and for cleDiiing and purity ing streets and other places, and cleansing wells and reservoirs of water ; and may impose penalties not exceeding five pounds, nor less than ten shillings, for the violation of such rules and regulations ; and, if considered expedient, may appoint inspectors for carrying the same into effect, and for preventing nuisances, and preserv- ing cleanliness. > <«'>ii Sec. 4. It shall be lawful for any one Justice, upon his own view, or the oath of one credible witness, to make an or- der in writing for the removal, burial, or destruction, as he may think necessary, of any animal body, decayed tish, or other offensive substances occasioning nuisances in or near, or encumbering the highways, wharves, or places in any town or selllemeut, or being in any boat or vessel ; and also to order the same to be done by the party or parties by whom or whose (iiieclions such nuisances have been occasioned, or by any other person whom the said Justice shall appoint for the pur- pose ; and all expenses thereby incurred, shall be borne and he paid by and recovered against the party or parlies occasion- ing such nuisance, or otherwise in such manner as by the said rules and regulations shall have been provided. Sec. 5. The Inspectors aforesaid may enter into and examine, in the day time, at such times as they shall think 6t, as well all vessels and boats lying at or near to, as all buildings, aancea. lots, yards, wharves, and places of every description in any town or settlement wherein they may have reason to believe thai any offensive substances injurious to the health of the in- habitants are or may be deposited, and to ascertain and report to the Police Office in such town, if any, or to any two Jus- tices of the Peace, the condition of such vessels, boats, and places aforesaid, so far as the public health may be affected thereby ; and to give all such directions, and enforce all such measures as in the judgment of such Inspectors, or by the order ol such Justices may be necessary for the cleansing and puri- fying all such vessels, boats, and places aforesaid ; and to cause to be done every thing in relation tl^ereto which in their opin- ion may be necessary to preserve the health of the inhabitants. Sec. G. Every penalty by any such orders or regulations Progecutiuna imposed for offences against the same, shall and may be sued for Pwialtieti. for and recovered by any such Inspector or Inspectors appoint- ed for the place where the offence shall be committed ; or if there be no Inspector, then by any person who shall sue for • =•' the same before any two Justices of the Peaco of the county ;, ' " . or district, and in the same manner as if the same penalty were a debt due to the prosecutor ; and upon conviction of the of- fender by the oath of one credible witness, the amount of the Inspecting niul Exiiiniii- ins as to Nui- 'i • ., h$ Mt.V 334 NUISANCE. riiiirgos of KcniMving ^iui!ruins, I'li- spectur, shall be furnished with a sufficient drain under ground, to carry oft' the waste water, and also with a suitable privy, the vault ot which shall be sunk under ground, and built in the manner hereinafter prescribed, and of a sufficient capacity in proportion to the number of inhabitants of such tenement ; and they all shall have the use of such privy in common ; and the owner of any such tenement who shall offend against the provisions of this clause, shall forfeit a sum not less than one pound, nor more than five pounds, for every week during which any part of the said tenement is used as a dwelling house. And if upon the report of the Health Inspector, or otherwise, such Special Court shall be satisfied that any such tenement is not provided with a suitable drain, privy, and vault, or either of them, they may give notice in writing to the owner thereof or his agent, if either be an inhabitant of the place, or otherwise public notice in one newspaper or more, if any be printed there, requiring such owner or agent within a time appointed by such Court, to cause a sufficient diain, privy, and vault, to be constructed for such tenement, for the common use of the inhabitants thereof ; and in case of neglect to comply with such notice, the said Court shall cause the same to be made for such tenement, and the expense thereof may be recovered from the said owner or agent by the said Inspector, as if the same were a debt due to himself. Sec. 14. Establishes certain requisites in the construc- tion of privies and the vaults thereof. Sec. 15. Whenever any privy or vault shall become offensive, and be so found or reported by the Health Inspec- and Repairing tor, the same shall be cleansed, and the owner or his agent, "'^'^^• or the occupant of the land in which any privy or vault are situated, whereof the condition is in violation of, or contrary to the enactments of this Statute, shall remove, cleanse, alter, , amend, or repair the same within a reasonable time after notice in writing to that effect given by the Health Inspector, the said Special Court, or any Health Warden, or Justice of the Cleansing 336 NUISANCE. Opening Pri- »ie8. Foul or Tnfer- tiouH Substan- ces not to lie placed in Htreets, &c. Removal of Nuiijunres from StreetH, Removing Nuisances from Houses, &c. Peace ; and in case of neglect or refusal, such cleansinn, altering, amendment and repair, shall he done, and all necev sary disinfecting substances he procured and used hy the Health Inspector or other proper person under the order ol the said Com't, and at the expense of the owner, agent, or occupant aforesaid, and to be recovered from him as before provided, r /*o;{nV; f- *w» ** \ ovsmivn *jmti'.\$cit id ¥ >?^t Sec. Ifi. No vault or privy shall be emptied wlihont a permit from the Health Inspector ; and no vault shall he open. ed between the fifteenth of June and the fifteenth of Septem- ber, unless directed by the said Special Court, and the expen- ses thereof shall be borne by such owner, agent, or occupant, and shall never be less than double the amount charged in any other months of the year, and shall be recovered from him as aforesaid. Sec. 21. No person unless duly licensed by the said Court, or other proper authority, shall deposit or cause to bo deposited in any street, court, square, lane, alley, whaif, or vacant lot, or into any dock, pond, well, or reservoir, nny dirt, saw'dust, soot, ashes, cinders, shavings, hair, shreds, manure, shells, waste water, rubbish, or filth of any kind, or any animal or vegetable substance whatsoever, nor shall any person cast any dead animal, or any foul or ofi'ensive ballast into any dock or place within two hundred yards from the ex- tremity of any wharf, nor shall any person land any such foul or offensive animal or vegetable substance within any town or the suburbs thereof ; nor shall any person cast any dead ani- mal into the harbour above low water mark, nor below low water mark, without securing thereto a sufficient weight to pre- vent it from floating. Sec. 22. If any of the substances in the preceding Sec- tion mentioned, shall be thrown or carried from any house, warehouse, shop, or cellar, yard, or other place, into any street, lane, alley, court, square, wharf, dock, public place or vacant lot, as well the owner of such house or other place, as the occupant thereof, and also the person who actually tlirew or carried the same, shall severally be deemed liable for a vi- olation of this Act ; and all such substances shall be removed by and at the expense of such owner or occupant, forthwith after personal notice to that effect given to him in writing by the Health Inspector, or shall be immediately removed by such Inspector, at the expense of such owner or occupant. Sec. 23. All dirt, saw-dust, soot, ashes, cinders, shav- ings, hair, shreds, manure, oyster or lobster shells, waste wa- ter, or any animal or vegetable substance, rubbish, or filth ol any kind, in any house or other place, and which any Special NUISANCE. 337 ' Court 01* Health Inspector shall deem it necessary for the hualth of the town or place to have ren.oved, shall be carried there- from by and at tho expense of the owner or occupant of such house or other place, and be removed to such place as shall be (lirecicd, within four hours after notice in writing to that cD'ect, given by the said Court, or tho Health Inspector, or the In- spector shall forthwith remove the some at the owner's charge. Sec. 24. No person in any place within the limits assign- ed to any Health Inspector, shall sell or ofl'er for sale, or have in his possession in any market or other place, any unwhole- some, stale, or putrid meat, fish or fruit, or other articles of provisions, or any meat which has been blown, raised or stufi- ed, or any diseased or measly pork, under the penalty of not less than two, nor more than ten pounds, for every ofFonco, and such articles shall be forfeited, and be seized and destroyed by the Health Inspector. Sec. 27. Whenever any person has been duly notified to remove any nuisance, or to cleanse, alter, or amend any vault, or drain, or to perform any other act which it may be his duty to perform in obedience to this Act, or the Statutes, rules, or- ders and regulations herein mentioned, and the time limited for (he performance of such duty shall elapse without a compliance, the Health Inspector shall either remove the nuisance as afore- said, or issue new notices, or new orders shall be giveh by such Special Court until the duty is performed ; and if in the opinion of such Special Court, or of the Health Inspector, or of the Commissioners of Streets of such place, it shall be for the health or comfort of the inhabitants, that any particular nuisance should be forthwith removed, then it shall be their re- spective duty to cause the same to be removed without delay, and the expense thereby incurred shall be paid by the owner or occupant of the land on which the nuisance exists, or by whom it was caused, and shall be recoverable from him at the suit of the Inspector. ' i» -i >h<- • '•■ " ••" Sec. 28. Any Health Inspector, or any person author- ised by the said Court, or any Justice of the Peace to act in his aid, shall and may at any time between sunrise and sunset, and within the limits of his jurisdiction, enter into any house, building, yard, or other place, and into any vessel or boat, for the purpose of examining any alley, sink, sesspol, privy, vault, drain, sewer, public or private dock or slip, vessel or boat, in order to report to the said Court thereon, or for examining into, destroying, removing, or preventing any nuisance, source of filth, or cause of sickness therein, or for any other legal pur- pose referred to by this Act, or the Acts herein before men- tioned ; and if any person shall refuse to admit such officer, or 43 UnwholMoa* Proviaiont, Regulationt as to the Ri>- moval of Nuj- saacoi. Gnterins hou- sea &c.to exa- mine concero- ing nuisancM. 338 NUISANCE. r Punishment for Violations of the Act. Limitation ard Prosecu- tion of penal- tiei. Who ihal! prosecute for penaltiea, &c. Other person so authorised, into such building, yard, lot of ground, out-house, place, or cellar thereto belonging, or into any such vessel or hoat, the said Inspector shall on oath com. plain thereof to the Police Court in Halifax, or to any two Jus- tices in any other place, and obtain a warrant for such eniiy, and shall thereupon proceed under the authority of such warrant, to examine such building, yard, place, or cellar ; and any such vessel or boat, and to destroy, remove, or prevent by all effectual means, and in such manner as the said Court shall di- rect, any nuisance, source of filth, or cause of sickness that may be found therein. Sec. 29. Every person offending against any of the clauses or provisions of this Act, or the orders and directions of any Special Court, and whosoever shall refuse or wilfully neglect to act in obedience to the same respectively, or to obey and comply with the directions and orders of the Health Inspector, and whosoever shall resist or oppose the lawful execution of this Act, or of tlie said Act concerning nuisances, or of any orders or directions made under the authority of the same, or any Health Warden in the execution of his duty, shall for every such offence be deemed guilty of a misdemeanor, and shall also incur and become liable to a penalty not exceeding twenty pounds, nor less than ten shillings for every such offence, to be recovered in the manner herein after provided. Sec. 30. It shall be lawful for any Board of Health, or Health Wardens, appointed and acting under the said Act, passed, " more effectually to provide against the introduction of infectious or contagious diseases," and for any such Special Court, or Health Inspector, acting under the said Act concern- ing nuisances, or this present Act, to limit and restrain to any sum under ten pounds, but not below ten shillings, the amount to be prosecuted for, in respect of any of the several penalties imposed by or incurred under any of the said Acts, for the of- fences to which they have respectively reference ; and all pen- alties thus limited shall and may be sued for and recovered be- fore anyone Justice of the county cr place wherein ihe penally shall be incurred ; and all larger penalties shall berecoveredin any Court of Record in the same county. Sec. 31. Not only all pecuniary penalties incurred under the said Act, passed to provide against the introduction of in- fectious diseases, or under the said Act concerning nuisances, or this present Act, or under any orders, rules, or regulations made or given in pursuance of the powers and authorities in the said Acts granted, but also all such monies and expences as shall be expended under this Act, for or in consequence ol the neglect of any owner or occupant of any tenement, land. ) '" Ntfl^ANCE. 33d I i:^ Appcali boat, vessel or plaCe, to perform dny order, shall respectively be sued for and recovered in the name and on the information of any Health Inspector within whose limits the oftence was committed, or as a debt due to him, as the case may be ; and if there be no Health Inspector, then in the name of the Clerk of the Peace of the county or district, unless the Attorney or Solicitor General think proper to prosecute at the suit of the Crown, and give notice accordingly : and in all cases where the prosecution or suit shall be in the name of the Ilealih In- spector, he shall be deemed the official prosecutor, and shall, as shall also any Health Warden, be a competent witness in such suitor prosecution, and shall recover costs of suit from the de- fendant, if judgment be given for the penalty or sum prosecuted for, but shall not be liable to pay to the defendant any costs if the judgment pass in favour of the defendant ; and all monies ApplicaUonof to be recovered by any such suit or prosecution, shall be paid Penalties, into the hands of the Treasurer for the town or county, as the case may be ; and shall be appropriated towards defraying the expences there to be incurred in and about the enforcing and carrying into effect this Act and the Ac^ts above recited. Sec. 33. If any appeal shall be entered a<^ 'nst the judg- ment of a Court of Summary Jurisdiction, or an\ Justices of the Peace, given for any sum of money sued for by any Clerk of the Peace or Health Inspector, either as a penalty, or as a debt due to him under the provisions of the present or any nf the said Acts, and such appeal be not duly prosecuted at die first sitting of the Court to which the appeal is prayed, tMon on such default being certified by the Clerk thereof, execution shall be forthwith issued from the Court, or by the Justice by whom the judgment was rendered. Sec. 35. In all indictments and informations to be prose- cuted as aforesaid, for offences, misdemeanors and pecuniary pe- nalties, under the present or above recited Acts, it shall be requi- site to insert the respective clauses of the Statute, or the rules, orders, or regulations which have been violated or dlsr-harged, Kid under which the penalty is sought to be recovered ; and also to state that the offence was committed in violation of such clause or clauses, between two days to be specified therein ; and the general form of the conviction before a Justice or Justices of the Peace shall otherwise be as is now by law pro- vided. Temporary. It will be observed thnt certain of the penalties and sunls pijection* ofmoncy mentioned in the foregoing Statutes relating to Health, are directed to be sued for by information, and certain others in the same manner as debts due to the prosecutor. In thu ]VIod)i of stat- ing oft'iincas ia iadictaients. « n '1 t. S : '■ I 11 j:. I \-"i 340 NUISANCE. former case, the proceedings and Forms will be the same as in like prosecutions for the recovery of penalties, except as is re- quired by the clause last recited. For the said proceedings and Forms, see respectively. Titles, — Information ; Summons- Conviction. It is to be noted however, that where the pro.* secution is by information, no final process of distress or of any other description is directed or authorized, by which payment of the penalty may be enforced from the party convicted. Where it is directed that the sum shall be sued for in the same manner as a debt due to the prosecutor, the course of proceed' ing and the Forms will be found under the Title, — Summary Trials. t^ Pi OATHS. There is a difference of opinion concerning the power of Justices of the Peace to administer oaths in cases under their jurisdiction where an oath is not expressly required or mentioned, or where Justices are not expressly authorised lo administer them. But whatever may be said on these points, there is certainly nothing in the law to sanction a practice which very generally prevails — that of administering oaths in cases where Justices of the Peace have no jurisdiction ; the evil of which is clearly stated by Mr. Justice Blackstone, who says (4 Com. 137.) " The law takes no notice of any perjury but such as is committed in some Court of Justice having power to ad- minister an oath ; or before some magistr*^ 3 or proper officer invested with a similar authority, in some proceedings relative to a civil suit, or a criminal prosecution : for it esteems all other oaths unnecessary at least, and therefore will " not punish the breach of them. For which reason it is much to be ques- tioned, bow far any magistrate is justifiable in taking a voluntary affidavit in any extra judicial matter, as is now too frequent upon every petty occasion ; since it is more than possible that by such idle oaths a man may frequently in/oro conscientico incur the guilt, and at the same time evade the temporal penalties of perjury." Lord Coke says, it is an high contempt to minister an oath without warrant of law, to be punished by fine and im- prisonment. The Court of King's Bench has often reprehend- ed and discouraged as much as possible, the taking of volun- tary affidavits by Justices of the Peace, in matters not within their jurisdiction. In one case Lord Kenyon said — " He did not know but that a Magistrate subjects himself to a criminal information for taking a voluntary, extra-judicial affidavit. 3 Surn'r, 531 . %Wi\ OATHS* 341 By the 33 G. 2, c. 2. 1 V. 49, Quakers who snill be Qutkon. required upon any lawful occasion to take an oath, rhall instead of an oath in the usual form, be permitted to make a solemn de- claration or affirmation in these words — " 1, A. B. do solemn- ly, sincerely, and truly declare and affirm ;" which solemn affirmation shall be adjudged and taken to be of the same force and effect in all places where by law an oath shall be required, as if such Quaker had taken an oath in the usual form. Pro- vided, that no Quaker shall be admitted to give evidence in criminal causes by such declaration or affirmation ; and pro- vided that no persons shall be deemed Quakers within the in- tention of this Act, unless they shall affirm in the form before directed, that they are of the profession of the people called Quakers, and have been so for one year then last past. Per- pdual A Jew is to be sworn upon the Old Testament, A Maho- metan upon the Koran, and others, in general, according to the ceremonies of their religion. The particular opinions of a ministered man professing Christianity are not to be examined into with reference to his being sworn, but he is only to be asked whe- ther he believes the obligation of an oath, the being ofa Deity, and a future slate of rewards and punishments. But a person who lias no idea of the being of a God, or a future state of re- wards and punishments, is not admissible. But in such a case, the trial may be postponed until the witness is instructed as to the nature and obligation of an oath. 3 B«rn«, 537-8. The following is the Form of the Oath of Allegiance. I, A. B. do sincerely promise and swear, that I will be faithful and bear true allegiance to His Majesty King William the Fourth. So help me God. ^s • How Oaths are to be ad- t 'H Concerning the ofiences of profane cursing and swearing, See Title, — Swearing. .1 i r OFFSET, see,— SUMMARY TRIALS. ORPHANS. •.. i- By the 33 G. 2, c. 1, § 7. I V. i2. The Oversecru fi the Poor of the town of Halifax, shall take order from 3il ORPHANS. m 'I; time to time, by tnd with the consent of two or more Justices of the Peace for the county of Halifax, for setting to work the children of all such, whose parents shall not by the said Over- seers, or the greater part of them, be thought able to maintain them, or any poor orphans ; or by indenture to bind out any such children or orphans as aforesaid, to be apprentices, where they shall see convenient, till such man child shall come to the age of twenty one years, and such woman child to the age of eighteen years ; or the time of her marriage ; the same to be as ellectual to all purposes as if such child were of full age, and by indenture of covenant had bound him or herself. Provided always, that one of the conditions of said indentures shall be, that if the said master or mistress of said apprentice, or other person to whom said indenture may be assigned, shall trans- port or carry said apprentice out oi' this Province, to reside or dwell in any other colony or plantation, that then the said in- denture shall be void, and the said apprentice shall thencefonh be discharged from any further service to his said master or mis- tress, or assigns. Provided also, that the children maintained in the orphan house at the expense of the Crown, shall remain and be under the direction of the Governor as heretofore, and bound out in such manner as he shall order and direct. Perpetual By the 3 & 4 G. 3, c. 9. 1 V. 96, The said clause inthe before recited AqJ, relating to the binding out poor children and orphans, and all the directions therein contained, shall for the future extend to all the other towns in this Province. PtT' peiual. .n''i(i .. Ui '^i>^t- '■ «-<'•> 1 -.1. ;(••■. '>■» '''. ^:'.\ ■', •'U\>.^.-:\]i\\ •■•■" ' -@- •■> .- I ' a i. .. ,1 PARTITION. I By the 13 & 14 G. 3, c. 2. 1 V. 178, All accounts of charges on obtaining and executing writs of partition shall be laid before the Supreme Court, and when approved of, asses- sors shall be appointed by such Court to assess the amount in due proportion on the proprietors, and to levy the same from them, and to pay it over to the person appointed by the Couri to receive the same. And if any proprietor, or other person in possession of any land allotted and assigned under a writ of partition, shall refuse or neglect to pay the sum assessed as his dividend or j)roportion of the charges aforesaid, it shall and may be lawful for any one Justice of the Peace on complaint of the receiver appointed as aforesaid, to issue a warrant of distress arid sale of the delinquent's goods and chattels, for the recovery of the sum so assessed, with the charges of the pro- secution. PARTITION. Sec. 3. In case no person be resident on any lands al- lotted and assigned as aforesaid, nor any goods and chatteU lliereon, whereby the sum due as aforesaid may be levied, it shall be lawful for any one Justice of the Peace to let out any part of such delinquent's lands as may be sufiicient to pay, by ihe produce of the same any such dividend, proportion, or charge so due, and in case no person shall offer to hire the same, such lands shall be held chargeable therewith. Perpe- iml > -. ,. , ; ,t ,.,.■■ . 34*3 ice, to reside or Note. Although from the words used in the foregoing Act, concerning the issuing of a warrant of distress, it would seem as if such writ might be granted immediately on the com- plaint of the receiver, without any other proceedings, yet it is consi'lered, that previous to such writ being issued it is requi'- site that the party complained of should be summoned in the usual form, to appear before the Justice to answer to the com- plaint, so that he may have an opportunity of shewing cause, if he have any, why he has not paid the sum assessed on him. PEDLARS. By the 22 G. 3, c. 1. 1 V. 225, No* hawker, pedlar, or petty chapman, or other trading person or persons,., going from town to town, or other men's houses, and travelling either on foot or with a horse or otherwise, carrying to sell, or ex- posing to sale, in any house, or in any town or village, whereof such person is not an inhabitant, except in any public fair or market, ai.y wares, goods or merchandise, , without previously giving bond, and taking out a license, if at Halifas, from the Clerk of the Licenses, and if in any other county or district, from the Clerk of the Peace, by consent of at least three Justices of the Peace for such county or district, in the same manner as bonds are taken and licences for retailing liquors are granted ; for which license there shall be paid half-yearly, as follows : where such pedlar travels on foot, without a beast of burthen, — three pounds ; where he travels with one beast, — six pounds ; and for every other beast exceeding one, — two pounds ; and the number of horses or other beasts, when any, shall be expressly specified in the license. And every person who shall so expose to sale, any goods, wares, or merchandize, except as aforesaid, without being licensed as aforesaid, shall i^orffcit all such goods, wares, and merchandize so exposed to sale contrary hereto. Fines and forfeitures shall he recovered II) any Court of Recovd. ■■}■ IH i '^■s^ 11. I,!. '-lip- 11 f m rAm jA ■ sir 5^* t K 344 PEDLARS Sec. 4. All Justices, Sheriffs, Under Sherifls, and Constables, are hereby strictly enjoined and required to exert their utmost power to see that this law be duly put in execution. Provided, that nothing in the Act shall extend to prohibit any person selling fish, fruits, or victuals, nor to hinder any makers of goods, or their children, apprentices, or servants, from car- rying or selling the goods of their own making, nor any tinkers, coopers, glaziers, phimbers, harness menders, or other persons usually trading in mending kettles, tubs, household goods, or harness, from going about and carrying materials for mending the same. Perpetual. By 55 G. 3, c. 8. 2 V. 149, The money arising by virtue of the before mentioned Act, shall be paid into the Treasury of the county or district in which the same is receiv- ed, and shall be added to the fund raised therein from ilie granting licenses to retail spirituous liquors, and shall be dis- posed of by the Grand Jurors and Court of General Sessions accordingly. Perpetual. ■ Ui: PERJURY. Perjury by the common law, seems to be a wilful false oath, by one, who being lawfully required to depose the truth in any judicial proceeding, swears absolutely in a matter ma- terial to the point in question, whether he be believed or not. The false oath must be wilful, and proved to be taken with some degree of deliberation ; and as to the falsehood, a party swear- ing the truth, not knowing it to be so, is guilty of perjury. To found an indictment for perjury, the requisite circumstances are these ; — the oath must be taken in a judicial proceeding, before a competent jurisdiction, and it must be material to the question depending, and false. 3 Burn's, 604. By the 32 G. 2, c. 20, § 9. IV. 30, It is enacted, that if any person or persons, either by the subornation, un- lawful procurement, sinister persuasion, or means of any other, or by their own act, consent, or agreement, shall wilfully or corruptly commit perjury, by his, her, or their deposition in any Court of Record, or being examined ad perpetuam reiim- moriam, every person so offending and being thereof duly con- victed, shall forfeit twenty pounds, the one moiety thereof for the support of this His Majesty's Government, and the other moiety to such person or persons as shall be grieved by reason of the offence, who shall sue for the same by any action of debt, bill, plaint, or information in any Court of Record ; and PERJURY. shall also be imprisoned by the space of six months, witboiK bail or mainprizo. And the oath of such person or persons shall not be received in any Court of Record, until the judg- ment against him or them shall be reversed ; and upon every such reversal, the parties aggrieved shall recover their damages against such person or persons as did procure the said judg- ment, so reversed, to be given against them or any of them, bv his, her, or their action upon the case. Sec. 10. If the said offender or offenders shall not have any goods or chattels to the value of twenty pounds, then he, she, or they, shall be set on the pillory for one hour, and both his ears shall be nailed to the pillory, and from thenceforth such offender shall be discredited, and disabled forever to be sworn in any Court of Record, until such judgment shall be reversed. Sec. 11. Every person and persons who shall imlaw- fully and corruptly procure any witness or witnesses by letters, rewards, promises, or by any other sinister and unlawf j1 la- bour or means whatsoever, to commit any wilful and corrupt peijiny in any matter or cause whatsoever, depending, or that shall depend in suit and variance, by any writ, action, bill, com- plaint, or information, in any Court of Record, or to testify in perpetuam rei memoriam ; every such offender, being there- of duly convicted, shall suffer the like pains, penalties, for- feitures and disabilities, in all respects as are hereby directed for the like offences, and the said forfeiture to be recovered and applied in manner as aforesaid. • '" .( i i i~ - •■ ;! t Sec. 12. As well the Judges of the said Courts where such perjury shall be committed, as also the Justices of Assize and Gaol delivery, and the Justices of the Peace at their Quarter Ses ;ions, shall have power to enquire of all the said offences of wilhil perjury and subornation of perjury, and thereupon to give judgment, award process and execution of the same. Perpetual. By the 56 G. 3, c. 6. 2 V. 201, Instead of the punishment prescribed in the aforesaid Act, persons convicted of perjury and subornation of perjury may be sentenced to hard labour, in the house of correction at Halifax or elsewhere, or upon the high- ways or other public works in the Province. Perpelual. One Justice may bind the offender over to the Sessions. 3 Hum's, 609. 345 I *.. \%m ?.'. \'i ! !j PLEADINGS IN ACTIONS AGAINST JUSTICES, : see Title,— JUSTICES OF THE PEACE. ' POLYGAMY, see MARRIAGE. 44 • (34C) POOR. iVM;t i|(||(ii 1 This extensive Title will be treated of under two prin- cipal divisions, into which it may conveniently be arranged; tiie one relating; to the support, and the other to the seltletnent of the poor. In discussinj; these divisions, the Statutes con- cerning them respectively, will first be set forth in full, ami then they will be treated of and explained at large, under ap- propriate subdivisions. . . . I. Of thf. Support of the Poor; •, • • and herein, ^ . ' . 1. 2. 3. Of Orer seers. Of the Poor Rate. Of Relief. The eencral Statute h relating Hf i % mi' to the support and ma- nagement of the })Oor, is the 4 G. 4, c. G. 3 V. 149, by wliicli it is enacted as follows : Voting .Money Scc. 1. It shall be lawful for the freeholders of eacli township, (the town of Halifax excepted,) or of any setiie- nient or place not comprehended within any such township, and where there are twenty or more freeholders resident, lo hold two meetings annually, if necessary, lo make provision for the support of their poor ; which meetings shall be held on the first Monday in April, and on the first Monday in Novem- ber ; and of which meeting, w'th the place or places of holding the same, the constables for the said townships and seltle- raents respectively, upon a precept directed to them being issued, shall give notice, at least ten days before the said times of meeting respectively ; at which meetings the said freeholders present, having first elected a chairman to preside at the same, shall and may vote such sums of money as they shall jiitige necessary for the support of their poor for the current year, or for the next ensuing six months of the same ; and shall choose and appoint five freeholders of such township or set- tlement, any three of whom shall be a quorum, to assess as herein after mentioned, for the sum or sums of money so voted ; and in case the business to be transacted at the said meeting cannot be completed on the said days respectively, it shall be lawful for the said chairman, with the consent of the majority of the freeholders then present, to adjourn the said meeting to the day following, or to any other day, and then to conclude the business of the same. * me ; and shall 1, to assess as I'OOR. (support.) 347 Sec. 2. U the siim voted at any such meeting be insuf- ficient, the I'rocholders at their next niocling may vote a further sum to make up the deficiency. See's. 3 & 4. The aforesaid assessors, or any three of A''sp';>'inp>tt them, being first sworn, shall forthwith assess the inhabitants i','|"){^„',',',!,' *^""" of (he townships or settlements for which they have been ap- pointed, in just and equal proportion, and as near as may be, according to the known estate, either real or personal, of such inhabitants, for njaking up the sums respectively voted for the |)iii|)Ose aforesaid ; and shall apjioint collectors to collect and receive the same ; and if any person so assessed shall neglect or refuse to pay the sum for which he or she was assessed as aforesaid, the same shall and may be levied from him or her, hv warrant of distress iVom any one Justice for the county whorcin such ptnson resides. Provided, that no person shall bo assessed any sum, unless in the opinion of the assessors he shall lie able to pay annually one shilling at least ; and pro- vided also, that if any person shall think hinj or herself over- rated, such person may appeal for redress to the next General -^I'l"'"'*' Sessions, or the next Special Sessions which may be held for the hearing of such appeals in the county or district ; and the Justices in such Sessions are hereby required and empowered to examine, hear, and determine, every such appeal or com- plaint, and to give redress as they shall think equitable ; and their order and judgment on such appeal shall be final, and bind all parlies. ..; Sec. 5. The Overseers of the poor throughout the Pro- vince, (the town of Halifax excepted,) shall continue to be no- minated and appointed as now by law provided, and being sworn to the faithful execution of the duties of the oflice, shall at least twenty days before the times herein before appointed, lor meeting to make provision for the poor, issue their precept to the constables of the several townships and settlements res- jiectively, requiring them to notify the inhabitants thereof to meec on ihe said several uaya for the purpose aforesaid; and the said Overseers shall apply all sums of money voted as aforesaid, and received by them in their said capacity, for the hefore mentioned purpose only ; and if any collector shall neg- lect or refuse to pay over to the said Overseers any sum col- lected by him, the said Overseers shall prosecute such collec- tor for the recovery of the same, in any Court of Record ; and the said Overseers shall within one month after the expi- ration of their office, render to the Clerk of the Peace for the county, to be by him laid before the Justices at their next yessions, an account of all sums received and expended by iheni for the support of the poor, and shall account on oath, if Appoiiiliiitnf iiiiit I hilics (»r W (■ ii -^;-:-yi JiS POOR, (support.) tlxaiiiiiifttion uf Ovorscers Accounts. Fines ouOvnr- neers for neg- lect of duty. Anicreanients by Sessions. required, before the General Sessions held next aficr tiic ex- piration of iheir ofKce, for all sums received, and npplicd, and expended by tlieiii as aforesaid ; and tliey shall enter their proceedings in a book to be kept for the purpose ; and at the expiration of their ofKce they shall deliver the same to their successors, and shall pay into their hands any balance of money received by them, and remaining unexpended. Sec. C. The Justices in Snssions, (except in Halifax,) shall examine the accounts of the Overseers of the poor, sub- mitted to them as before directed, and shall allow such ac- counts, if they apj)ear just, and may refuse to allow any sums charged which the said Justices shall have reasonable ground!) to believe unduly or unfairly charged or expended. Sec. 7. Every person who has been du/y appointed an Overseer of the poor, and who shall refuse to serve in the office, shall forfeit five pounds ; which sum shall be sued for befoi'e any two Justices, by the Overseers who shall be in office next after such refusal, within and for the same place, And the Overseers for the time being, who shall neglect to issue their precept as aforesaid, to the constables, requiring them to notify the inhabitants to meet on the days aforesaid, to vote money as aforesaid, shall severally forfeit and pay ten pounds, which shall be sued for by the Clerk of the Peacp, or by any other person who will sue for the same in any Court oi Record within the county ; and all such Overseers as shall not, within one month after the expiration of their office, ren- der to the Clerk of the Peace an account of all sums received and expended by them, in manner directed by the fifth Section of this Act, shall, on complaint of the said Clerk, or of any one or more inhabitants, forfeit five pounds each, which shall be levied upon non-payment thereof, by warrant under the hands and seals of any two Justices ; and all tines by this Sec- tion imposed, shall be expended towards *he support of the poor of the townships or settlements wherein such fines were incurred. . ,.-? ; -t.^y; ,/t r n-ii .':■.■ .i'(V:> <'--'r) • Sec. 8. In case the freeholders of any township or set- tlement shall neglect to meet on any of the days before men- tioned, for the purpose aforesaid, or having met, shall neglect to make any provision for the poor, or one adequate and suffi- cient for the purpose, in any or either case, the Justices in the General Sessions, or in any Special Sessions to be called and held for the purpose, shall on the application of the Overseers, amerce such township or settlement in such a sum as shall ap- pear to them to be necessary for the purpose aforesaid, and shall appoint five freeholders of such township or settlement, (any three of whom shall form a quorum,) to assess the same POOR. (SLIPOIIT.) 349 I )• upon the inliabitnnis in manner herein before directed ; which assessors shall nominate and appoint collectors to collect the sums so assessed ; and the assessment so made shall be affixed in some public place within such township or settlement, at least three days before the end of ilie same Sessions, in order iliat any of the inhabitants so assessed, may, if they see cause, appeal against such assessment, and that the Justices may de- termine thereon during the same Sessions ; and all snn)s for which such amercements iind assessments are made, shall be ^ levied and collected by the san)e ways and moans as are herein before directed, where assessments are made by the freeholders at their meetings as aroresaid, and shall be paid over in like manner, and be expended for the [)urpose aforesaid. Sec. 9. Wbere any person appointed an assessor under A^i^fUHoiH rn- this Act shall refuse to serve, the freeholders or Justices in J,'.^"|f '" each case respectively, shall appoint another in his stead ; and every person appointed an assessor who shall refuse to serve, shall forfeit forty shillings ; and every person who has accept- ed the said office, and who shall neglect or refuse to make the assessment required within twenty days after his appoint- ment, shall be subject to a fuie of five pounds ; which Hues respectively, shall, on failure of payment thereof, be recover- ed by complaint or information by the Overseers of the poor, hefore any two Justices of the county, and shall be levied by warrant of distress from the said Justices, and by sale of the otfendcr's goods and chattels ; and all such fines shall be ex- pended towards the support of the poor of the township or settlement within which such fines were incurred. Provided, that no person shall be obliged to serve as an assessor more than once in three years. Sec. 10. Every person appointed a collector as afore- ColIertorH re- said, who shall refuse to serve, shall forfeit forty shillings, and '"«"'S'o serve another person shall forthwith be appointed in like manner to serve as aforesaid ; which fine, on failure of payment thereof, shall be recovered by the Overseers of the poor where such fine was incurred, before any two Justices for the county, and be levied by warrant of distress from the said Justices, and by sale of the ofTender's goods and chattels, and be expended for the use of the poor of the township or settltment. Sec. 1 1 . Every collector shall once in every three li'ies on Col- with and pay into the hands of the Overseers I*!!!*'''*/'!'' """ months account wi of the poor where he is acting, all such sums as he may have collected or received, and upon his neglect so to account and pay, he shall be prosecuted for recovery of the same by the Overseers for the time being, in any Court of Record ; and every person who has accepted the said office of a collector. gleet of dtitj. iir:^;: h I'' I IMAGE EVALUATION TEST TARGET (MT-3) <>.«t^ 1.0 ^K£ Ui ^^= itt Ui2 12.2 1^ ia^ '^ Ml 6" FholDgraphic Sciences Corporation 33 WIST MAIN STRHT WnSTIII,N.Y. UStO (71«)S7a-4S03 360 POOR, (support.) Rcrovcririg exptjnres of relief from pauper's us- tute. .S7 ..■> V.IJ >>.,i/ Levying for rates, pending an appeal. Ileinibursc- nient un iip- peui. 0.! .!'. O'^ilii'lfl .fUtiy 'ti» j-w'u Number of AHsessors. and who shall neglect for thirty days thereafter to perform tlie duty required of him by this Act, of enforcing, agreeable to the directions of the same, the payment of the sum or sums which he was appointed to collect, shall forfeit five pounds for every such neglect ; which shall in Hke manner be sued for and re- covered, and be expended for the use of the poor of the town- ship or settlement wherein such fine was incurred. Sec. 13. When any person shall apply for and obtain relief from the Overseers of any town or place, and it shall happen that such person at the time of such application or re- lief was possessed of, or entitled to any property, real or per- sonal, out of which the expenses incurred for his or her lelirl may be repaid, it shall be lawful for such Overseers, as credi- tors to such person on behalf of the public, to demand and re- ceive from him or her a repayment of all or any part of the expenses so incurred, and if need be, to enforce the payment thereof by the usual remedies of attachment, arrest, or other legal process ; and all monies so received or recovered, shall be accounted for by such Overseers, as other monies received for the use of the poor. Sec. 14. If any person assessed by virtue of this Act, shall refuse or neglect to pay the sum for which he was assess- ed, it shall be lawful for the collector or collectors appointed to receive the said rates, notwithstanding any such appeal as aforesaid, to levy for the amount of such person's rate, by war- rant of distress, in manner herein before provided for the re- covery of the same, ju- f mil Hi .inkHm'fK . 4^' . liswoj i>c Try Sec. 15. If the pe • on so appealing to thd next Geiieral or Special Sessions, shall make it appear to the Justices there- of, that he hath been assessed or taxed more than his just pro- portion of the amount of the said assessment, then it shall be lawful for the said Justices to cause such appellant to be reliev- ed and reimbursed the excess of such rate, by order to the Overseers for the township or settlement within which such person was overrated, which Overseers are hereby directed to refund the same. Sec. 16. This Act shall not extend to repeal, alter, or afifect any of the laws now in force relating, to the settlenieiu ol the poor. .■i(Rint»i.^lneR tutjuUtt« •icjctf t*ih If* Ntuoid Sec. 17. All formee Acts rfllating to the .support of the poor are hereby repealed, except so far as they relate to the town of HaHfax. FerpeluaL •ic By the 5 W. 4, c. 3Q.i 4 V. 421, it is enacted as fol- lows*— <»4»f«i wn to !iyi>»o:it|'i *tnk baim)9dmf| au Itua^ .«a ,'«i, Sec 1.'- Iw the toXvn meetings to vote njoney for the sup- port of the poor, not less than seven nor mora than twelve as- sessors may be appointed. POOR, (support.) 351 Sec. 2. No assessor of poor rates shall upon any pre- Assessors to tence whatsoever, be exempt from being assessed and paying ^'J'"""' ''"•'•' his just proportion of all such rates as shall be duly voted and assessed for the support of the poor ; and if any assessor shall refuse or neglect to rate and assess himself in a due and just proportion of all or any such rates and assessments as shall he duly voted or rated for the support of the poor, on the town- ship or settlement for which he shall be an assessor, he shall forfeit and pay the sum of five pounds, to be sued for, reco- vered, and applied in manner and form as is directed by the Act of which this is an amendment. Perpetual. By the a W. 4, c. 63. 4 V. 240, The General Sessions shall establish the rate of commission to the collectors of poor rates, the same not to exceed five pounds for every luindred pounds by him collected. Perpetual. 1. Of Overseers. -; Br the 5 G. 3, c. 1. 1 V. 106, The Grand Jury shall annually, at the General Sessions, nominate out of every town- ship, ten fit persons, out of whom the Court shall appoint five, to be surveyors of lines and bounds, and Overseers of poor of each respective township ; and if any person &o nominated and appointed shall leave the Province, change the town of his residence, or die within the period for which he was ap- pointed to serve, any two Justices for the county shall and may appoint a fit person or persons to act in such vacant of- fice, until another shall be appointed at the next ensuing General Sessions. Perpetual. tc -jot) !»» By 51 G. 3, c. 24. 2 V. 79, The Grand Jury at such term of the General Sessions as the Court shall direct, shall nominate such number of fit persons as the Court shall direct, to discharge the duties of town officers, out of whom the Court shall appoint such number as they may deem expedienti Perpetual,. ' r. -j • ;' > ".--.».... . Note. It will be seen by the beforeiirecited general Act concerning the support of the poor, that certain fines are imposed on persons refusing to serve as Overseers, and also for the neglect of certain duties of the office. For all neglects of duty, and abuses in office, they are pu- nishable by indictment. If an Overseer do not provide for the poor, he is indictable, and if he relieve the poor when there is no necessity for it, it is a misdemeanor. 4 Burnet., 28. No expenses of their own will be allowed to the Over- m • f rr:r#-i»'» ^i» »-»' >t -* liM-i^i 352 POOR, (support.) seers beyond what are barely necessary. A salary for their services is not allowable. When they have advanced money for the support of the poor, they may reimburse themselves oiit of any subsequent rate made during their year. Id. 1 83. .<> >#si«^« fi; ft: 2. O/" /Ae Poor iJate. ; and herein, mmv^^ Upon whom the rate may be made, i iii nluss ■( What property is rateable. rs*- u .{i ui i .<;; IVhere to be rated. Of the proportion in tohich the rate shall be made and paid. • •Appeal and tlu power of the Sessions thereupon. • Of distraining for the Poor Rate. t ' i 1. -,. 2. 'ji' 3. 4. .>!!<.• -.^,j lO ft. t5r. 6v< vtuti*r,' 1 . I7/)on wAom the rate may be made. y^ ,1 Shall assess the inhabitants.] By these words in the Statute, it is plain that all persons who have their residence within the township or settlement, and who possess within it any real or personal estate or property of any description, are liable to be rated, except as is mentioned in the Proviso,— *^ Persons who in the opinion of the assessors are not able to pay annually for this purpose, the sum of one shilling at least." Although this Statute mentions only inhabitants as liable to be rated, yet it would seem by the Statutes concerning non resident proprietors of lands, that they may be rated for such lands in the places where the lands are situated, towards the suppori of the poor in such places, for which see Title, — Ab- sentees. "^; '» » The occupier of land, in general, is to be charged with the rate, and the reason is that the poor rate is not a charge upon the land, but upon the occupier in respect of the land. 4 Bum's, 40. No inhabitant is to be taxed by a parish, in regard of any estate he hath elsewhere, in any other town or place, but only in regard of ttie visible estate he hath in the town where he dwells. The lessee of a stall in a market town, who comes weekly to the market to sell his wares, shall not, it would seem, be rated for the poor in such town : neither shall a man who takes up his lodging for a week in a town. If the owner of a house occupy a part thereof only, but his servants occupy other parts, and no one reside in tlie house but a poor person, permitted to do so out of charity, the owner is rateable as oc- cupying the whole. A corporate body ar^ occupiers and inhabitants for the purpose of being rated. POOR. (nuppoHT.) 353 A schoohnaster occupying a house ond garden belonging to the school is rateable, although heldiby him as a recompensfr tor teaching, &c.^ he being a bene6cial occupant. Where re*- sidence upon, or the use of a property, is, merely as a servant oC the Crown, and for, public offices or purposes only, the party so residing or occupying is not rateable for the property. 4 BmrH'Sf 41 to 46. lUl^ :4''-l i" ti,;-? "-na ,',:ynni n^n^im- rn;' > ...,_. ■ .i_} .... ;iv ■ ' - -• • -» rviii -i li' , ; .I' i>\ 1 i'; /,: ! 2.' ' H'liat property is rateable. •J) .1 According to the knoton estate either real or personal of such inhabitants.] These words, as far as they regard real estate, will of course include lands, and houses, and buildings of every description, withal! (he hereditaments, privileges, and appurtenances belonging or appertaining to real or landed pro- perty. As they regard personal estate, it seems equally clear, that ihey subject to the rate iill kinds of local and visible perso- nal property. It is true that iu England it has been determined that a farmer's stock, household furniture, and some other des- criptions of personal property, are not rateable to the poor, but the reason for such decisions seems to be, that the English Statute of the 43 of Elizabeth, c. 2., which is the general Act on the subject, does not contain a word about personal estate, but only provides that every inhabitant shall be rated. It is for this reason, therefore, it would appear, that it is said in 4 Burn's, page 51, that the Court of King's Bench, from the difficulties attending the matter in practice, have all along been averse from delivering any opinion upon the general question, whether or how far personal estate is liable to be rated to the poor, but hive determined the several cases, upon their own particular circumstances, or quashed the rates! for insufficiency in point of form- No such : difficulties, however, exist in thi4 Province, as our Statute contains the extremely comprehen'' sive words already cited as to personal estate. It appears quite clear, therefore, that herCy a farmer's stock and household furniture, which certainly are personal estate as much as any other description or part of a man's goods, and in short a9 aU ready observed, all articles and descriptions of personal pro- perty, of a local and visible nature, are by these comprehen- sive words of our Statute liable to be rated^] ' Stock in trade is liable to be rated, as yielding certain pro6ts. The bare, possession of personal property is evidence from which the conclusion may biie drawn that the possessor is rateable for it. Money, out at interest is not rateable, nor nto- ney vested in the public funds. Salaries, and the profits of an attorney are not rateable. • Rent is not the subject of a poor 4.'S 354 POOR, (support.) rate. Ltim* works are rateable in the hands of the occupier. So is a slate work. Where a farmer lets his dairy of cows, he may be rated for the profits, as part of the profits of the farm, or they may be rated in the hands of the dairyman, pro- vided the farmer be not rated for the profit he derives from let- ting them to hire. The profits of a mineral spring, or any other spring of water, are part of the produce of the land, and therefore the occupier is rateable for the whole, as one estate. Lands converted into a dock are rateable. 4 Burn's, 54 to 77. •,">>■»■>•*.{ * 3. Where property is rateable, n^n'-i^v U^: _ ■— For lands and tenements, the assessment is of course made where they lie. 3 Bum's, 83. rnr: •.(inthinrtHnv vx':. > i Note. It has been already mentioned, that the person who is in possession of personal goods is rateable for them. This of course, according to the Act, must be in the place of which he is an inhabitant. It has been expressly decided that vessels are liable to be rated in the parish where they are locally and visibly domiciled, although out of it at the time of making the rate ; but not where they have never been within the parish. It is not ne- cessary for the purpose of making property rateable in any pa- rish, that it must be permanent there, and produce profit there. 4 ^tim'a, 89. Of the proportion in which the rate shall be made. ■ill' 4' >" in just and equal proportion.'] A rate is not to be pre- sumed unequal, because lands and houses are not rated alike. There may be reason to make a. difference between them. For there are several charges incident to houses, which do not fall upon lands, to lessen their yearly value. Unless a rate be manifestly unequal, the Conrt will presume it equal. No ge- neral rule can be laid down as to the proportion to be observed in rating houses and lands. The proportion must ever depend on local circumstances. A person must be rated according to the present value of has f^otate, whether it continue of the same value as when he purchased it; or whether the estate be ren- dered more valuable by the improvements made upon it. If a person choose to keep his property in money, and the fact of bis possessing it be clearly proved, he is rateable for that ; but if he prefer using it in the amelioration of an estiate or other property, he is rateable for the same in another shape. In whatever way the owner makes his estate more valuable, he is POOR, (support.) 356 liable to contribute to the relief of the poor, in proportion to that improved estate ; and whatever be the proportion of rating in a parish, whether to the full value or otherwise, the rate must be equally made on all persons ; there cannot be one mediuiti of rating for one class of persons, and another for another class. Rent is not a certain criterion of value by which to determine a proportion of rate. Nor is the land tax a rule for the poor rate. 4 JBtim's, 95 — 7. nA ,-, fji!8i.yH!i>, 5. Appeal ; and the power of the Sessions thereupon. > Bt the words " next Sessions,** used in the Act, is to be understood the next Sessions to which the party can by pos- sibility appeal, after being aggrieved by the rate ; and this is always a question of fact. E'.»6vlj«i» * > i'.^> ;iyi iitoti On examining the provisions concerning appeals in our Remarks aa Statute, with reference to the English Statutes and decisions on *° a«nending the subject, it ueems doubtful whether, or how far, the Ses- gideanue. sions here, on an appeal^ have the power to quash or to amend a rate, especially to alter or amend it by adding to the rate the names and proportions of persons not previously included there- in. The following clauses of the before recited Statute of the 4 G. 4, c. 6, are the only provisions in force concerning such appeals. "ta^M^ i;;rijf»«K*<:| oi7 mt'i'^: j'S^im-fcrt^* ts^- yi'Mp Sec. 4. V* Provided, that if any person shall think him- self overrated, he may appeal for redress to the next General Sessions, or the next Special Sessions which may be held for the hearing of such appeals, and < the Justices are empowered to examine, hear, and determine such appeal and to give re- dress as they shall think equitable ; and their order and judg- ment shall be final and bind all parties." Sec. 15. *^ If the person so appealing shall make it ap- pear to the Justices that he hath been assessed more than his '\\ imm^Hf^^rr' 356 POOR, (support.) just propqi'lion of the amount of the assessment, it shall be Jawfui for the Justices to cause him to be relieved knd reim- bursed the excess of such rate, by order on the Overseers, who shall refund the same.'? By the English Statute of the 43 JUlizabeth, c. 2, it is provided, that the Sessions, on an ap- peal, may *' take such order therein as to them shall be thought couveniient, and the same to conclude and bind all the said par- ties." By the 17 G. 2, c. 38, it is further provided, that *' On all appeiil»* from rates and assessments, the Justices shall amend the same in sucti manner only as shall be necesssiry I'oi giving relief, without altering such rates, fi.c. with respect to other persons mentioned in the same ; but if upon an appeal from the whole rate it shall be found necessary, they may quash or set aside the same, and direct a new and equal rate to be made." But by the 41 G. 3, c. 23, Ample power is givea to the Sessions on appeals, '' to amend rates or assessments, either by inserting therein, or striking out the name of any person, or by altering the sum therein charged on any person, or in any other manner they may think necessary, without quashing the rate, orihey may quash it wholly." Previous to this Statute, but subsequent to the aforesaid one of the 17 G. 2, it was decided in one case mentioned in 4 Burn's, 52, lliat '' the Sessions ought not to have quashed a rale, but should have added those persons and that property which it was thouglii were illegally omitted," but in a subsequent case, stated in the same book, page 55, the Court decided, that ^' tiie Sessions on the Appeal could not add to the rate the names of persons who were left out of it, because thereby the proportion of every other person would be altered, but they were bound to quash the rate." In a much later case, reported in 16 £ast, 380, where the question was as to the rateabiiity o( stock in trade, which in assessing the owner, had been purposely omitted, the Court said, '•'' The Justices should have amended the rate, and not quashed it. The 41 G. 3, c. 23, was passed for the very purpose of enabling them to do sQi, in order to ureveni the in- convenience of the parish being without funds for the mainte- nance of its poor in the meantime." Now, as to our own Act, it has been seen, that it does not contain a /tvord about amend- ing R ratq in one way or another, or as to setting it aside, and therefore, reasoning by analogy, upon sl consideration of the before mentioned English Statutes and decisions, it does seem rather more then doubtful whether the words used in the be- fore recited clauses of our Statute, do convey suflicieut power to the Sessions, either to amend a rate by adding other names and sums to it, and consequently to alter the several proportions throughout) or to set aside the rate altogether. Jtls not known POOR. (SUPPOHT.) 357 that tlieso points have yot been decided upon, in the higher Court. It is indeed urovided in the Act, that '•'• tl)e Justices may cause a party to be reimbursed the excess beyond his just proportion of the amount of any asscssnient," but it is not easy to imagine how this can be done, whcio it is mnde to appear on the appeal that several persons who were liable have not been included in the rate. It may probibly be said that those words in the first of the before recited clauses, *' give redress as ihey in their judgment bhall think equitable," may be so construed as to convey to the Sessions n discretionary power to alter or amend a rate throughout, or to set it aside ; but on a view of the before mentioned English Statutes and decisions, it would much rather seem that such a conclusion could not be main- tained. Moreover, it does appear suiliciently plain, that these words, when considered in connection with the subsetpjent clause on the subject, arc only intended to relate to the grant- ing relief or reimbursement to the party appealing. Upon the whole it seems highly desirable that enactments should be made similar to those in the last cited English Statute, so as to remove the doubts and dilliculties here suggested. — ■"> -•"• - \> i)it» -!>v C. Of dklrainingfor the Poor Raid"* 'fc-' ' It is believed to be almost universally the practice in this Province, to issue a warrant or warrants of distress against par- ties, immediately on the representation, or oath of the Cof- leclor, that they have not paid their rates, without summoning them to answer for the alleged neglect ; but it will be clearly seen by the following authorities that such practice is altogether illegal, and will consequently render persons acting upon it liable to prosecutions for damages, or probably the Justice under certain circumstances, to proceedings of a crimini)' nature. The non feasance of the party shall not be left to the judgment of the oAicer, who may oirt of private resent njenl sell his neighbor's goods without sttfhcient cause, but oath of the refusal must be made before the Justice. And it is rea- sonable that the party should be heard in his defence, for he may shew cause, variously, why a distress should not be granted, as that the rate was not^ regularly allowed, or that he had given notice of appeal, or that no demand or refusal had been made, and the like. 4 Hum's, 109. A summons must precede a warrant of distress, which fs in the nature of an execution. On the summons the party may show a sufficient reason to the Magistrates why a warrant of distress should not issue ; as for instance, — that he has al- 35S POOR. (lUproRT.) ready paid the asseskment to one of (Ira parish officers, who 1)88 not accounted for it. But it is an invariable maxim in our law, that no man shall be punished before he has had an oppor- tunity of being heard : whereas, if a warrant of distress were to be issued, without any previous summons, the party would have no opportunity of shewing cause why the execution should not issue against him. 4 fium't, 110. It would be strange that a distress should be taken upon a man's goods without hearing him. Id. 115. No action of debt will lie for a poor rate. The Statute considers the person rated and refusing to pay, as an offender. And it gives no authority but to distrain the goods of the of- fender. Id. 114. ns't-^tttsivjfnii. itQ«t* :«4!r'ffttt*3be imiJM* . M!« . . ... /ts'' • 'nl/^•»•;oW 1 . ikf 3. Of Relief. >« . ((w ,» . vr This subject may be classed under four distinct beads ; as — 1 . Of the liability of Paretitt and Children to maintain each other. 2. Of the Order of Maintenance. uti^' rii? > 3. Of persona deserting, their families. 4. Of Relief in general, and herein lehat persons are lo N, be relieved^ and ojfthe Ordering oj the Poor. 1 . How far Parents and Children are liable to maintain each » The Statute of the 10 G. 3, c. 1, § 5. 1 V. 158, enacts, ** That the father and grandfather, mother and grandmother, and the children, and grand children, severally and respect- ively of every poor, old, blind, lame, and impotent person, or other poor persons not able to work, being of sufficient ability, shall at his, her, or their charges and expences, relieve and maintain every such poor person as aforesaid, in such manner as the Justices of the Peace at their General or Quarter Ses- sions shall order and direct, on the penalty of forfeiting and paying five shillings for each person so ordered to be relieved, for every week they shall fail therein, to be sued for, levied, and recovered in the usual manner, and to be applied for the use of the poor. " Perpetital. This provision only extends to natural relations ; there- fore it has been determined by the latest decisions, contrary to former ones, that a man is not obliged to maintain his wife's children by a former husband. Nor is a father obliged to main- tain bis son's wife, where the son had run away. Nor a son- POOR. (U'PPORT.) ;)59 I in-law to maintain his wife's mother. - Though the father he living, yet if he he unable, the grandfather, being of ability, may be compelled to keep the grand child, and also to pay so much money as the Justices shall think reasonable for the lime past. .'ih»',»9M»ia!iVp tt'^ \t nf^ The reputed grandfather or grandmother are not within the Statute, for a bastard isjiliut popuH. See 4 /^um't, 121. 2. Of the Order of Maintenance of Parents and Children. Of every poor^ old^ blindy /ante, and impotent person, or other poor persons not able to toork.] The order must set forth that the person is poor, &c., and not able to work. It must also state that the person on whom it is made is of suffi- cient ability. 4 Burn's, 122. v^ An order to pay indefinitely as to time, is good. The order must be made by the Justices of the county where such mfficient person dwells. The pauper is not to be sent to such iufficient person. It ought to appear in the order that the par- ty to be relieved is become chargeable to the parish, for un- less he be so, the parish has no ground of complaint. 4 Burn's liXr—3. ''itj ii. 'jiSTfn* ^Um^>'iJH\f\f i*itf^i "tH^HP' v.»«».vi*i '■&v < [Note. The order can only be made in the Sessions.] .>lil|W.9«,})ii tfill»'Ul'l3rt>^ ,.«Ha.'\?l^t» ' -lOi 3. Of persons deserting their families.^ :^f»\ The sixth clause of the last mentioned Statute enacts, — " That it shall and may be lawful for the Overseer or Overseers of the poor of any township, where any husband or father shall absent from and forsake his wife and children, or any widow shftll absent from and forsake her children, and leave them a public charge, to apply to two Justices of the Peace, and by warrant under the hands and seals of the said two Jus- tices, to take and seize the goods and chattels, and let out and receive the annual rents and profits of the lands and tenements of such husband, father or mother, so absconding, for and to- wards the maintaining, bringing 'up and providing for such wife, child, or children so left as aforesaid } and so soon as the said seizure shall be allowed of and confirmed by the Justices in their General or Quart or Sessions, it shall and may be lawful for the said Overseers, or any two of them, from time to time and as the case may require, to sell and dispose of so much of and so many of the said goods and chattels at public sale to the highest bidder, and to apply the money arising thereby towards the maintenance of such poor family left as aforesaid. m ,•? 3G0 l»0()R. (tlPPOHT.) RcinnrUi Sec. 8. Any peiKon n)!Ki't<'vof ^ For tiiu pnnislnnoiii of tlioso who desert their wiveit ntid uhiUh'on, see Tiiie, — Vu^^ranls. Ai» VA.» .10.., wii*\ 4. 0/ Relief in gmerftl ; and herein^ what Pernont unto be relieved, and 0/ Ike ordrvin^ nj ike Poor, Bv the 10 r. 3, c. 1. 1 V. l')?, " No town or town. ship shall bo obliged to maintain any poor person, nnless siicli person be u native of such town, or township ; or have served no appreniio«!ihip ; or have lived us an hired servant one whole year next before snob person's applicsilion for relief; or have uxecnted some publio annual ollioe ; or shiili have been asses- sed and paid his or her nbure of the taxes for the poor of siirli pincn, or any public tuxes, during one whole year at one time." Perpetual. i*^,.v .-.j m »'i i ,1 iihi , This climsc does not specify any particular descriptions of persons, who, with regard to poverty, sickness, or infirmity, are to be relieved, but only uses the general expression, poor person. However, as the clause which has been already reci- ted relating to parents and children relieving each other, de- clares, that relief shall be ordered in such cases,— ^*' to every poori old, blind, lame, and impotent person, or other poor persons not able to work," it would seem, that where there are no parents or children of such persons, on whom an order may be made, they should, and indeed must bo relieved by the Overseers, if they belong to the township. Moreover, it seems sufficiently clear that the general words *^ poor person" must be construed to include b11 persons who are so poor or unable to provade for themselves as to need public i*elief. Another question wliich arises upoo our Statutes concerning the poor, is thi8,-^Who are to discriminate and determine as to the indi- viduals who are to be considered poor and entitled to relief, or otherwise. In England, the laws provide in general that Jus- tices of tlie Peace are to examine and decide on the matter, and their orders to the Overseers are requisite for obtaining such relief. In our Statutes there is no such provision, nor POOR, (support.) .%l iiiileecl nny other on th« point, nnd tliereforo it fteeiina sufKcitMilly clear that the ninlter innsi rent entirely in the diHcretioit and judgment of thn Overseers. It is indeed gnnernlly, if not nni- vernally, the practice for the town meetings lo determine its to (he individuals who are to he relieved, hnt rerlninly there h nothing in the Inw to convey to them the power of doing so, or to sanction such a practice, hnt the proceeding is altogether irregular and improper. Many forcihio reasons may be urged to shew that it is much more suitable, and consistent with liiiniono considcrotions, that the discretionary judgment on the |)oint should rest with the Overseers, rother than with the town meetings. Indeed, as our Statutes stand, the Overseers alone are the persons who have a right to determine respecting it, and they are bound lo do so. The town meetings have miMely the power of grarjting the money deemed to bo reciui- sile, and of oppointing persons to assess it. It is very desira- ble that an amendment in this respect should ho made in our Statutes, whereby according lo the English Acts, the power and right of examining and determining on the subject sholl bo vested in a Justice or Justires, in conjunction with the Over- seers, and making an order of Justices requisite for obtaining relief. Under our present Statutes, the right and duty of de- termining as to the extent of relief to the poor, individually, and of the ordering of (hem with regard to situation, rest in like mnnner exclusively with the Overseers, subject to the control of (he Sessions as to their accounts, although on these points, also, the town meetings illegally and improperly undertake and arc allowed to decide. In these meetings the poor are gene- rally let at public auction, to be boarded, or rather to be starved and punished with the lowest bidder ; a practice which is not only without any sanction of law, but is revoking lo humanity, and in many instances is but adding to the afflictions of the poor. The Overseers should select suitable persons (0 board and take care of the poor, in all cases where such boarding is requisite, and where there is no public asylum for their reception. If an Overseer do not provide for the poor he is indicta- ble. 4 Bum'Sy 28. He has been holden to be indictable for neglecting to supply medical assistance, when required, to a pauper, labouring under dangerous illness, though such pauper was not in the perish work house, nor hod, previously to his illness, received or stood in need of parish relief. Id. 131. ■■'",. The Sessions have no power to order the Overseers to pay the bills of a surgeon or a nurse. These persons have a _ proper remedy by way of action against the officers. Id. Foreigners must be maintained where they are found. In Foreigners. 46 u n II 362 POOR, (support.) one such case the Judge said, *' You must keep them when you have them, for aught 1 know, for it seems to be a case omitted out of the Statute." Id. 197. «*"* ^ «*J » :'. »n Note. It has been already seen, by a clause in the be- fore recited Act of the 4 6. 4, c. 6, that where a pauper is possessed of any property, out of which the expences incurred by his relief may be recovered, the usual remedies by arrest or other legal process may be employed for obtaining such expences. 'r Form of the Sninmons on non-payment of Rate. County of) To A. O., of the township of •— — in the ) said county, yeoman. ; r I: [Seal.] I, A. M., Esquire, one of His Majesty's Justices of the Peace in and for the said county of , do hereby summon you personally to appear before mo at my dwelling house, at in the said county, on next, the — day of , at the hour of , in the forenoon of the same day, to shew cause why you refuse to pay the sum of — — , duly rated and assessed upon you, in the rate or assessment made for the re- lief of the poor of the said township of , for the present year, from the first Monday in , in the year of our Lord , until the first Monday in , in the year ; other- wise I shall proceed as if you had appeared. Given under my hand and seal at , the — day of — — ^, in the year of our Lord ■ • • "> ... - *i i'^n^i %t.A A. M., J. P. *•!■ The Warrant of Distress thereuponi may be thus : County of > To A. B., one of the Constables of the ) township of — ^ in the said county. [Seal.] .it.*^oi»/^i liv* .„ uniii:;' : ■ ;, n r Whereas in and by a rate and assessment made and as- sessed according to the Statute in that case made and provided, A. O., an inhabitant of the said township of , was duly rated and assessed for and towards the necessary relief of the poor of the said township for the present year, from the first Monday in — — , in the year of our Lord -, until the first Monday in , in the year , in the sum of . And whereas it duly appears unto me, one of His Majesty's Justi- ces of the Peace in and for the said county, as well upon the oath of A. C. a collector of the said rates, as otherwise, that POOR, (support.) tlie said sun of hath been lawfully demanded of the said A. O., and that he ttie said A. 0. hath refused and dotl) re- fuse to pay the same ; and whereas the said A. O. having ap- peared before me in pursuance of my summons for that pur- pose, hath not shewed unto me any sufficient cause why the same should not be paid : [Or, if he does not appear, say— And whereas it hath been duly proved to me, upon oath, that the said A. 0. hath been duly summoned to appear before me the said Justice to shew cause why the same should not be paid, but he hath neglected to appear ac- cording to such summons, and hath not shewed to me any sufficient cause why the same should not be paid ;] These are therefore to require you, forthwith, to make distress of the goods and chattels of him the said A. O., and if within the space of five days next after tiuch distress by you taken, the said sum together with reasonable charges of taking and keep- ing the said distress, shall not be paid, that then you do sell the said goods and chattels so by you distrained, and out of the money arising by such sale, that you do pay over the said sum of to tlie Overseers of the poor of the said township of , rendering to him the said A. O. the overplus upon demand, the necessary charges of taking, keeping, and selling the said distress being first deducted. And if no such distress can be made, that then you certify the same unto me, to the end that such further proceedings may be had therein as to law doth appertain. Given under my hand and seal, the — day of — — in the year of our Lord .-ti A. M., J. P. Note. The Forms in the case of an order by the Ses- sions on a parent or child for compelling relief, will be found in the Addenda to 4 Burn's, 683. This being a proceeding in the General Sessions, it is thought not requisite to insert them here. ,..*...,. , .„ t,. .^hv - ^ --■-.■ i Form of an Order to seize the Goods and receive the Rents of the Lands of Parents or Husbands who have run away. 363 County of u. To the Overseers of the poor of the township in the said county. Whereas it appears unto us whose names are hereunto set and seals affixed, two of His Majesty's Justices of the Peace for the said county, as well u{>on the complaint and ap- plication of the Overseers of the poor of the township of in the said county, a& upon due proof on oath before us made, that A. O. lato of the township of aforesaid, in the county '' * ki ■m if' m4> POOR, (support.) aroresaid, yeoman^ Iiath gone away from his place of abode at in the township aforesaid, into some other county or place, and halh left his wife and of their children upon the chari^e of the township of aforesaid, the place of their last legal settlement ; and that the said A. 0. hath some estate whereby to ease the said township oftheir said charge, iu whole or in part, — we do hereby authorise and command you the- said Overseers of the poor of the said township of , to take and seize and of his goods and chattels, and to re- ceive [specifying the sum] of the annual rents and profits of the lands and tenements of him the said A. 0. at afore- said, for and towards the discharge of the said township for the providing for his said wife, and bringing up and maintaining of his said children : and with this warrant you are to appear at the next General Sessions of the Peace to be holden for the said county, and certify then and there what you shall have done in the execution hereof. Given under our hands and seals at in the said county, the — day of , in the year of our Lord [Seal. J [Seal.] V f"fif IVV't H A. A. M., W., J. P. J. P. „ For the recovery of fines imposed by the first of the be- fore recited Acts, for the non-acceptance of office, or the neg- lect of duty, and which are directed to be recovered before Justices, the proceedings will be the same as in similar cases already mentioned in this work, and will be found under the respective Titles, — Information ; Summons ; Conviction ; Distress. ■ Uif II. Of the Settlement of the Poor. What persons cannot gain a Settlement. Who slial! have a Settle- ment and be relieved. ij'i There are several descriptions of persons who arc inca- pable of gaining a settlement by any acts of their own. This is the case with married women during their marriage state. What is their proper settlement will be considered in another place. The next description is, — infants under the age of seven years. It has been decided that an infant under seven years caimot be removed from the parish in which his property lies. A deserter, while he is such, can do no act to gain a settlement. Soldiers, while quartered in any place cannot gain a settlement by hiring and service. 4 Burn''s, 198—9. It will now be shewti by what methods a settlement may be gained. , .«;U »• -v. By the 10 G. 3, c. 1. 1 V. 157, No town or township shall be obliged to niaintaiii any poor person, unless such per- POOR, (settlement.) \M}5 son be a native of such town or township, or have served an apprenticeship, or have lived as an hired servant one whole year next before such person's apphcation for relief, or have executed some public annual office, or shall have been assessed and paid his or her share of the taxes for the poor of such place, or any public taxes during one whole year, «t one time. And every person within the said descriptions, shall be entitled to a settlement in the respective towns or townships wherein such person shall be qualified as aforesaid. Sec. 3. Any person or persons who shall apply to the I'.xaii.iiiaiiiui Overseers of the poor for relief, not having obtained a lawful "»i"St)nle- settlement in the township, shall be required to declare on jtu,",o'vi','i. oath before one Justice of the Peace for the said township, or county wherein such township shall be, his, her, or their last place of residence ; and if they are found to have gained any lawful settlement within this Province, a true copy of the said declaration, attested by the said Overseers of the poor, and certified by the said Justice of the Peace, together witii the amount of expense incurred, shall be transmitted to the Over- seer of the poor of the township to which the said person or persons shall belong ; and in case they refuse, or neglect to remove the said person or persons, and pay the expences in- curred, it shall be lawful for any two Justices of the Peace for the county or township where such person or persons have become chargeable, by a warrant under their hands and seals, to cause him, her, or them to be removed to the township, where they last obtained a lawful settlement ; and the Over- seers of the poor are hereby required to receive such person or persons, and to pay such sum and sums of money as shall have been necessarily expended as aforesaid, to the Overseers of the poor of the township from whence such person or per- sons have been removed. Provided, that in case such Over- seer or Overseers of the poor, shall not have money in their hands wherewith to answer said expense, such Overseer or Overseers shall stand charged therewith until the next assess- ment to be made on the township to which such poor person shall belong. Sec. 4. It shall be lawful for any two Justices, on com- plaint of the Overseers of the poor, to bind out any person or persons who shall be found begging or strolling about, for any term not exceeding one year. Sec. 7. In case of the death of the parents of any child or children, who have gained a settlement in any township as aforesaid, all and every such child or children shall be sup- ^ ported by such town or township wherein the parents so gain- ed a settlement. • "I* .rail ^J ..', r -a 366 POOR, (settlement.) Sec. 8. If any town or township, or person or persons, shall think themselves aggrieved by any proceedings had in virtue of this Act, such town or township, person or persons, may appeal for redress to the next General or Quarter Sessions of the Peace, held for the county wherein such town or town- ship shall be, or wherein such person or persons shall reside ; and the Justices thereof are hereby required and empowered to hear and determinne every such appeal or complaint, and to give redress as they in their judgment shall think equitable ; and such their order and judgment shall be final, and bind all parties. Perpetual. rrtt ;oocrojtr to «:*rs!n It has been seen that this Statute specifies six several modes by which a settlement may be gained, all of which, with various matters relating to the subject at large, will now be treated of in the following order : '< him-- «:h': oouin tr» ■r./.: 1. Settlement by Birth. ' ''tl h'^is/Jhw-'viSi,; fi 2. ►t }S 7. 8. ^Apprenticeship. ' ' '"' ' »rii -ni h Hiring and Service. >!j/>)o r;i Public Office. m UKiq oiit'l-.-i Payment of Taxes. Parentage, and herein of Emanci- ,i'l r^ulfi' ^*v'i!:>>.;!i potion. tMarriage. v i^f^^nvjuj -lo i/'jn''- ^ > vW) ji .n 1. Of Settlement by Birth. larJ yarli ■ The settlement by birth may be proved by the copy of the parish register of christenings, and by identifying the per- son. 4 Burn^s, 201. Also, the parents may prove the tirM of birth, and after their death their declarations are evidence of that fact. Id. 241. Of Removals. 1 . Of Bastards and their SettlemerU by Birth. rv i> ; 2. Of Legitimate Children and their Settlement by Birlh, ■ivm^'^i^ i>i--;:tmiin^g^il. Of Bastards* iti i I .h-.r^f':, ■Am- [Note. It is not in this place questioned, who shall or shall not be deemed a bastard ; but the settlement only is con- sidered of such as are first supposed to be bastards ; other mat- ters relating to them, as concerning their filiation and mainten- ance, and the like, are treated of under the Title, — Bastards.] lace of birth, from ne- cessity ; for being nullius filius, it cannot otherwise be pro- POOR, (settlement.) 367 vided for, except a reputed father can be found. But this rule admits of divers exceptions ; which are, — 1 . If a wonnan come into a place by privity and collusion of the officers where she belongs, and be there delivered of a bastard ; such bastard gains no settlement notwithstanding its birth. 2. Also a bastard bom after an order of removal of the mother is made, but before her actual removal, shall not be settled where so bom, but at the mother's settlement. 3. If a woman pregnant be removed by an order, and she be delivered, and there be an appeal, and the order be re- versed, the child must be sent back with the mother. 4. A bastard bora in the house of correction shall be sent to the place of its mother's settlement. The same of a bastard born in the county gaol. 5. A bastard born while the mother is removing under an order, shall go with her to the place to which she is remo- ved. 4 Bum's, 201-3. If the mother and the bastard child have different settle- ments, it seems that the child, even as all other children, shall go with the mother for nurture until the age of seven years, as a necessary appendage of the mother. But if she voluntarily desert it, it seems that the cause of nurture then ceases, and that then it may be sent to its place of settlement. Whilst the child continues with its mother as a nurse child, and during that time not removeable to its place of settlement, yet the place where the child's proper settlement is, shall maintain it in that other place where it is remaining with the mother. 4 Btirn'*, 208. »t'#j( ^t (n i-^w!5(^4ii(i*ti^jS.4».uiyiJt<^. v Parents may prove that they were liever married. Id. 243. 2. StUUment by Birth of Legitimate Children. :^*Ufe^,(((i>»;»i{l^,^ HU ji*i*ijt4^f *, !''.!.*>li The father's settlement is the settlement of a legitimate child, when it can be found out ; otherwise the birth of the child, prima facie f is the settlement of the child, until there is another settlement found out. If the mother of a child born in one parish, die in another parish, while passing to a third, such child shall be settled where it was born, and not in the parish where it was left destitute by the death of the mother. Where a child is first known to be, that place must provide for it till they find another. 4 Bwn% 210 — 11. To prove a marriage, in order to shew the legitimacy of children, the register of the marriage and proof of identity will be sufficient. "The parents may be examined as to the legiti- macy of their children, and their declarations on that subject will be evidence after their death. Id. 242. "- ..,. ■..( m ,;■} 1i iiGH POOR, (settlement.) n-*)!!*.! 2. Of Setllement by Apprenticeship, Vt^M iSH I id'. Illfuilt. Condition of the MaHter. rervioe. Rrsidonro. Place of Ser- vice. Service with !i «econd or third Master. Bv tl)e English Statutes relative to obtaining a settle inent by serving an apprenticeship, it is requisite that the ser- vice should be under an Indenture, but as our Statute already recited, says nothing about the binding, but uses only these general words — '' or have served an apprenticeship," it seems clear, that a settlement may be gained by such service, wlie- thor it was under a deed or otherwise. The question indeed as to this kind of settlement, seems to .depend altogether on the service, r^if *,. rir h: An infant may bind himself, and a service under such binding will gain him a settlement. An infant of eight years old may bind himself. Unfitness is a matter to be determined by the Sessions, on evidence. Service with a master, who is also an infant at the time of binding, will gain a settlement. The condition of the master is immaterial. A female may be bound apprentice by the parish to learn housewifery, and it will be good, unless it be found to be fraudulent. If an ap- prentice be bound to a master who has no right to take an ap- prentice, yet a settlement will be gained by service under such a binding. The apprentice will gain a settlement in the parish where he serves, although his master have no settle- ment there. 4 J3«rn'5, 379. , . It seems evident from the words used in our Statute, that there must be a service for the whole term agreed on for the apprenticeship, and also that such service must be within the township, otherwise a settlement cannot be gained by it. The residence is considered to be where the party lodges at night, even where the service by day is always in another township- Where the service is on board of ship, the resi- dence is held to be at the ship's proper home, and the settle- ment is gained there. . See 4 Burn's, 402. ,. ,.*•,- An apprentice bound to a person in one township, with intent to serve one in another township, is settled in the place where the service is. The same where an apprentice, by a verbal consent of his original master, serves a person in another township. A settlement is gained by a service with a third master, under the express consent of the second, to whom the first had assigned the apprentice. There must be by the master an express consent to serve a particular person ; mere know- ledge is not enough, nor a general license to serve whom the apprentice chooses. The consent of the first master may be implied from circumstances. Where the parties act under the idea that the indentures are at an end, no settlement can be gained as an apprentice under them, ,.„ .,„„ .^^... , POOR, (settlement.) If an apprentice be by parol transferred by the widow of Ills master, (she not having tniven out letters of administration,) service with the second master will be a service under the in- denture. So he may continue to serve under an indenture, by leave of the executor, and will gain a settlement thereby. An apprentice, assigned, by indorsement on the indenture, to a second master, gains a settlement by serving him. Indentures being exchanged between the master and ap- prentice, the apprentice cannot afterwards gain a settlement under them by serving another master, with the knowledge of ihe first, for exchanging the indentures is a virtual cancelling of them. But an apprentice agreeing with his master for his discharge, and quitting him, but leaving the indentures till the money agreed for is paid, the indentures are not thereby dis- charged, and service under a second master by the express consent of the first is a service under the indentures, and gains a settlement. 4 Burn's^ 411 to 430. '»^; ^■^M >.■ Where the indenture of a parish apprentice is delivered up by the first master to the father of the apprentice, and at the same time the master consents to the apprentice serving a sec- ond master, as being turned over to him, such service gains a settlement. The master of a parish apprentice merely agreeing that the apprentice shall work for his own benefit, doth not im- ply giving up the indenture. A parish apprentice when under age cannot consent to his discharge. Delivering up the inden- tures to a parish apprentice when he is under age, does not discharge the apprenticeship, although service elsewhere after- wards, will not be considered as service under the indenture so as to gain a settlement. A boy bound out as a parish ap- prentice, may, after his master's death, hire himself as a ser- vant. 4 Burn\ 434 to 439. If an indenture of apprenticeship be lost, other evidence may be received of its contents and existence. But it must most clearly be shown that it is lost. Id. 441. [For the evidence relative to indentures and other written instruments, generally, see Title, — Evidence.] 3G9 Canrclling Indentures. ri I'l *.\J 3. Of Settlement by Hiring and Service. vi!.- By the 57 G. 3, c. 9. 3 V. 9, relating to a settlement by hiring and service, and made in amendment of the before reci- ted Act of the 10 G. 3, c. 1, it is enacted, — " That to entitle a pauper of that description to a settlement, he or she shall have lived as an hired servant for one whole year, under an agreement to serve one whole year next before such person's application for relief." Perpetual. 47 370 POOR, (settlement.) Points fts to parties, hiring nnii Hcnicc. Contrnct of hiring. ^ ' There are several particulars which by the laws of England are requisite, to constitute such a hiring; and service for a year as will gain a settlement, which, according to the words of our Statute, it is conceived are not essential for that purpose. The following may be mentioned as the principal points of such dif- ference on the subject. By the express words of the English Statutes, no married man can by that method obtain a settle- ment, whereas our Act makes no such distinction. According to those Statutes, the case is the same with regard to married women, — a child under age living with its parents as part of (he family, — or any other person under a legal disability to enter into a contract, by reason of the words " lawfully hired" be- ing used in those Statutes ; but as our Act, contains merely these words, — " or have lived as an hired servant," it would seem that hereby the ability to contract is not essential, but that the stress is intended to be placed, merely on the service ; and therefore that these last mentioned persons may obtain a settlement by such hiring and service. This point, however, may probably be thought somewhat doubtfid, and as yet to be set at rest by an express decision in the higher Court. The following points which have been established by de- cisions upon the English laws on this subject, seem to apply as authorities in cases arising under our Statutes. As to the parties, it seems clear, that no nearness of re- lationship will prevent the gaining a settlement by hiring and service. A daughter who is emancipated may be hired as a yearly servant by her father. The master need not have a settlement of his own. One person may also, by the autho- rity of another, contract for that other. And a settlement may be gained by a hiring to, and serving two joint tenants. The master need not live in the parish where the servant serves. And an infant may'hire himself. A parish pauper, hired out by parish officers, cannot by such hiring, and service under it, gain a settlement. Compulsory hiring, and service under it, gains no settlement. There must be a contract. Where it appears that there was no contract, no hiring will be presumed, and no settle- ment can be gained ; but where a contract appears, it will be presumed to have been regular till the contrary appears. If it be proved that a person was seen and known to be in the ser- vice of another as servant in husbandry for a year, a yearly hiring will be presumed. Also, if a person remain in service after the expiration of the first year, a yearly hiring may be presumed, commencing with the second year. A retrospective hiring is not sufficient to gain a settlement. A liiring for a year may be presumed from a service for four years. A hiring POOR. (UETTLEMENT.) by indenture, executed by the servant, but not executed by the master, if there bo a service in pursuance of it for a yoar, will gain a settlement. If a person bo only hired for less than a year, and serve for three years, a contract for a year may be inferred. The yearly hiring must be by one entire contract, and there must be one entire service. One that serves by the week, or by the month, or any other parts of a year, though he serve for the whole year, cannot thereby gain a settlement. For such a term as a year, it is not supposed a master would hire one, unless able of body, and so a person not likely to become chargeable. Where there is a general hiring, and no lime mentioned, it implies a hiring for a year. Where no mention is made of wages, or of time, and the service is for a year, a hiring for a year is presumed. Where the pauper agrees to go and live with one for a particular purpose, and ir to receive clothes, &c., but no time is mentioned, and she re- mains two years and a half, going away in the middle of a year, a yearly hiring is presumed. Hiring for fifty-two weeks is not a hiring for a year. If an emancipated person go to her father for a year, *' to do the offices of a servant," it is a good hiring for a year, al- though it is agreed that she rtiny earn what she can by her own labour besides. The contract may be for the servant to work for himself, provided he be bound to do all his master's work. If a person go to live with a relation, " as such, and not under any hiring," and afterwards go to live with him as be- fore, this is no hiring for a year. A person's agreeing to live with his stepfather, to work with him, and to be paid at a cer- tain rate for what he should do, is not a general hiring for a year. 4 Burn's, 266 to 284. Hiring for a year, to spin yarn at so much per stone, will gain a settlement. If one agree to serve another for three years, to be taught a trade, and contract to do any work he may be set about, it is a good yearly hiring, and a settlement will be gained by a service under it for a year or more. Id. 284 — 6. Hiring for eleven months, gains no settlement, although it was so limited for the purpose of avoiding gaining a settle- ment. Hiring for a year, with liberty to be absent during the harvest month, gains no settlement ; not even where it is sti- pulated that the month shall be made up inmiediately at the end of the year. Id. 294. A hiring for a year, to work a certain stipulated number of hours each day, will not gain a settlement. A hiring at so much per week, is not a general hiring, and therefore for a 371 Service with- uut hiring. Hiring with leave of ab- sence. Hiring, with slipulntionH an lo working- hours, wages, "/, ,m \ j^Pl ■ fv^ 'i i HIm * i>ffi ]' . ,;' (• rni a 1 Bli i;- vm 372 POOR, (settlement.) Uctrospcctivc hiring. Servico under several hiriiigti, Absence or ill- ness of ser- vuut. nissolution of Contract. ill '"/ ■ ■.~,ll ' '• year ; but if there be any thing in thtt contract to shew thni the hiring was intended to bo for a year, there, a reservation of wceicly wages will not control that hiring. A hiring at so much a week for as long a time as the master and servant could agree, is only a weekly hiring, and no settlement can be gained by a service under it for a year or more. ^OX' A hiring by the month, at a month's wages, or a month's warning, will not be a yearly hiring. But a hiring at so much per week, and liberty to part on a month's notice, is a general hiring, and a service imder it for a year will gain a settlement. A hiring conditional as to liking, if the service continue, is a good hiring for a year. Hiring for a year, part of which was then past, gains no settlement A retrospective hiring is not sufficient for the purpose. Where a servant was hired for half a year, which time she served, and then was hired for a year, and served half of that, it was held that she gained a settlement. Where there is a hiring for a year, and a continued service for a year, though part of it is under another hiring, a settlement will be gained. If the master let his farm, and the lessee enter, and the servant continue with him by his master's desire for the re- mainder of his year, it will give him a settlement. So if tiic servant continue with an executor for the remainder of the year. 4 Burn's, 300 to 327. If a servant absent himself dgninst his master's leave, and his master receive him again, it is no interruption of the ser* vice. A servant while ill is still under the service of his mas- ter, and it is not such an interruption as to prevent a settlement. Service with other masters, by the 6rst master's consent, he taking him again, is service under a dispensation, and will not prevent a settlement being gained. »r>fts;s.J'ti. to a dispensation with his service ; but if the master has once *',"" "* *'"' parted with his control over the servant, there no settlement is **'*^''"''- gained, and the receiving the whole year's wages does not make any difference. 4 /turn's, 327 to 354. • !i>;ifTiE''i The residence of the servant is in the place where he HrsHicnc- of lodges at night, and the settlement will be there. The service ''"" '^♦''^"'•' may be in a parish where the master never lives, and a settle- ment will be gained there. The servant need not lodge in his master's house. Id. 260 to 308. - <•>* ¥. I [It will be observed that the Statute expressly requires, that the year of the service shall be the year *^noxt before," that is, — immediately preceding^ " the person's application for relief;" consequently it seems evident, that a year's hiring and service for any previous period will not be suthcient to gain a setUement.] a I'l 4. Of Settlement by semng an Office. Or have executed some public annual office.] By these words of the Statute, it is plain, that serving in any of the county or township offices to which persons arc aninially ap- pointed in the Sessions, or otherwise, under the Statutes for that purpose, will gain a settlement. It need not be a township office, but it must be a public annual office in the township. 4 iJurn'^, 540. ; :v . A situation to which a person is appointed by a contract with parish officers, who by Statute have authority for the pur- pose, is not a public office, and no settlement can be gained by a service in such situation. Id. fe*»'»"' The office must be executed for the space of a whole year at one time, serving part of a year at one period, and such tim>3 at another as makes up a year in the whole, will not be sufiicient. Id. 549. .»' k • r-if^hr Ht* >Hr««5ijtiwi}f«f<'« vii t.ktf }m^ i»-»»J;r,' S« 5. Of Settlement by paying Taxes. [ Or shall have been assessed, and paid his or her share of the taxes for the poor of such place, or any public taxes, during one whole year, at one time.] Although the rate be in form, or in the manner of making it, not strictly legal, but void, yet if the party be rated, and pay to such a rate, he shall gain a settlement. But if a person's name be inserted '''1 m I f)7t POOR, (settlement.) riiiMron of Vugrunts. in R rate after payment,, it is not such a rating as will gain a scttlonient. The person paying must also be the perton ratedy tor ihci'o must be both a rate made upon, and payment by the person claiming a settlement. The rate itself must be pro- duced as evidence of being charged. A landlord refunding to the tenant the amount of the tax paid, does not prevent the gaining a settlement. ,v.^t.jrj.»ki t» tn^ A church rate is a public tax. A rate made too narrowly is a good rate for the purposes of a settlement. 4 ^urn'«, 551 /o 557- €). Of Settlement by Parentage ; and herein of Emancipation. By Sec. 7 of the before recited Act of the 10 G. 3, c. I, ^^ In case of the death of the parents of any child or children, who have gained a settlement in any township as aforesaid, all and every such child or children shall be supported by such town or township wherein the parents so gained a settlement." The cases herein before mentioned, of the settlement by birth of legitimate children, are founded on the fact of the pa- rent's settlement being unknown. If, however, the father's last place of settlement be known, that is the legal place of set- tlement of his children, and they will take successively, every settlement which the father may from time to time acquire. HU last settlement being always their settlement, until they have acquired one by their own act, or are emancipated. And this rule holds good, wherever the father may be, or wherever he may die. ? ' ?i- ♦*** ^ v,\\'» •%'>♦**-*» *^v"'f? ; ,M ; ho/i". i^ A legitimate child born, or a child dropped in a place where a person is vagrant, gains no settlement by being drop- ped ; but where the father was last legally settled. A child after seven years of age is capable of acquiring a settlement of its own, distinct from its parents, but before that age a legitimate child shall necessarily (Vtllow the settlement of its parents, as a nurse child, or as part of the family ; and after that age it shall not be removed as part of the father's family, but with an adjudication of the place of its own last legal settle- ment, as being deemed capable after that age of having gained a settlement of its own. Proof of the father's settlement is sufli- cient to establish the settlement of the son, if nothing appear to the contrary. Wr'ty^'-'^-'''^'.'''' ''^i9f'^'i.Kf>'vi^f^"*^■■■■■ U the father die before the child is born, yet the child is settled where die father was settled before his death. The children shall have the father's settlement derived from their grandmother, in preference to the settlement of their mo- ther. 4 Burn's, 212 to 217. f , s u n. r ; i. POOR. (•BTTLEMGNT.) 375 I'on'igiH'r. Uli.T.' riiil- «lrt>ii hIiiiII liav<> ill*' Mo- iImt'h HoUIo- Whero the father, having no known scttloment, runs awny, ruihcr nm llie children shall he settled wl)ur«> llie mother was settled before "'"K "^vay, her marriage. The same is the ca»e where the father is a for- eigner and has no settlement. The father being dead and the mother a widow, the chil- dren will follow her settlemenr ac*|uir(ul biier \m de'.Mli. In- lermarrving with a second husband will not ciitfnge the settle- ment of the children by the first marriage ; but they will have ■>>ui>t> tlic last settlement of the father, if hu had one, but if he had none, then the last settlement of the mother, whether before her marriage or while a widow. Id. 2i7 to 219. A son at nineteen, leaving his father and going into another llnmnciimtion. parish, and marrying, is emancipated ; and his children can derive no settlement from their grandfather. Marriage by the son, is of itself an emancipation, although he continue to reside with his father's family. But where a son does not marry, his carrying on a business for himself will not constitute an eman- cipation, if he live with his father's widow as part of her family. A son is not emancipated by the circumstance of his being under some other control than that of his father. A child is not emancipated until he has gained a settlement in his own right, or has contracted a relation incompatible with that of a component part of his father's family ; and therefore a person at the age of nineteen, (his father having run away,) hiring himself for four years and not gaining a settlement there- by, is not emancipated, but is entitled to his father's settle- ment. 4 Burn's, 220 to 228. 7. Settlement by Marriage. i.: , ,.». Respecting the mode of gaining a derivative settlement by marriage, it seems to be a good general rule, that a woman marrying a man who hath a known settlement, shall follow the husband's settlement, though she never hved with him there. A wife can gain no settlement separate and distinct from her husband, during the coverture. The husband being dead and his place of settlement not known, the wife's maiden settlement remains. The same after the death of a husband who was a foreigner. If the husband be living, but have no known settlement, the wife may be re- moved to her maiden settlement. Where the husband having no setdement, runs away or is absent from the country, the wife's maiden settlement remains. A woman does not lose her maiden settlement by marrying a man who has none ; but her own settlement will continue until she get another. A settle- ment is a permanent thing, and in all cases lasts during life, IH li ll||l|IV|ill|UJJi.! 37G IVodfofMar- POOR. (settlement.) 01- until a new one is gained. No person can discharge his own settlement sooner, or by any odier means. 4 jBttrnV, 230 to 241. -i ^./; ■.:":■. .,v. _ r.,- A'i lu order to show a marriage, it is not necessary to prove a publication of banns, but it is enough for one present at the ceremony to prove the fact of marriage. Nor is it necessary to produce the copy of the register. Id. 253. uv^/- • v^'.:.' In all cases, except of prosecution for bigamy, and actions for crim. con., reputation is good proof of marriage, where di- rect proof cannot be obtained. A mother may be called to prove that she was never mar- ried to a person with whom she cohabited, and who was re- puted her husband, though by such evidence she bastardize her issue. Id. 250 to 258. ■-.( r*-.t. 8. Of Removals ; and. /icrein, i, ; J ri 'Til an 1 *' ■(( 1. 2. ; i!l! 3. •' ■ 1/ 4 • in.. * ■ •" •^ ';4f. Who may and who may not be Removed. Of the Declaration and Examination as to place oj Settlement. Of the Warrant or Order for RemovaLnuui i Of an ,dppeal against the same... ,...^,! h vj> t ; . ; ,uj 1 . Who may and who may not be removed.iu:. [ Who shall apply to the Overseers for reliefs not having obtained a lawful settlement in the township.] From these words of the before recited Statute of the 10 G. 3, c. 1, con- cerning settlements, and from the further words, " have become chargeable^^' contained in the same clause, it is evident that no person can be removed from any township before applying for relief, and becoming actually chargeable to such township, and also that no such person can be removed, whose lawful settlement, being his last one, is then in such township. It now remains to consider what individuals, by reason of certain other existing circumstances, are not removable. A township in which the last legal settlement is claimed, ceasing to have Overseers, a removal cannot be made thither, nor to any other township. A wife residing with her husband cannot be removed from him ; but if not residing with him, she may be removed to her last legal settlement, being that of her husband, i^i:, '. The wife and children of a foreigner cannot, when they become chargeable, be removed from him to the wife's parish. The wife may be removed without her husband, (he having no settlement,) if they consent to it. POOR, (settlement.) 377 A servant cannot, on the complaint of the parish officers, be removed from his master. 4 Burn's^ 598 to 606. 2. Of the Declaration and Examination as to Place of ' »*.«•»»<*< i'f-vi' j>MM'» M»»f Settlement. iKv'Hiiw ».')».• j:i..»t,Afjf [Shall be required to declare on Oath before one Justice^ his, /ler, or their last place of residence, and if they are found to have gained any laieful Settlement within this Province.] The Statute does not mention by whom, or on whose com- plaint the pauper shall be required to make the declaration, but it would seem that it must be understood to be on the requisi- tion or complaint of the Overseers of the township. Neither is it expressly said that the Justice is to make any examination, or to receive or hear any proof as to the settlement of the pau- per, but yet as it is declared, that if the pauper is ''^ found to have gained any lawful settlement within the Province, a copy of his declaration, and the amount of ex:^enses incurred, shall be certified and transmitted to the Overseer of the township to which he belongs," it seems sufliciently evident that the Jus- tice is empowered, and indeed that it is his duty, to make a full and particular investigation into the subject, by such proof as may be produced, otherwise the desired purpose, — that of ascertaining the last and lawful settlement of the pauper, could not be satisfactorily, if at all accomplished. The declaration of the pauper must of course be taken in writing, and, as re- quired by the Act, a copy thereof, attested by the Overseers of the place where he made the application, and certified by the Justice, with the amount of the expense incurred in re- lieving him, must be transmitted to the Overseers of the town- ship to which it has been ascertained the pauper belongs. The same Justice who took the declaration must be the one who certifies the said copy thereof. An examination of a pauper for the purpose of removal is not evidence upon an appeal against that order of removal, though the pauper cannot be found. Neither the hearsay of a pauper who is dead, nor his ex parte examination in writing, taken on oath before Justices, touching his settlement, are ad- missible evidence of such settlement. 4 Burn's, 630. For the Form of the pauper's declaration, on octh before the Justice, see at the end of the Title. 3. Of the Warrant or Order for Removal. 'M" ^'.•i [It shall be lawful for any two Justices of the Peace where such person or persons have become chargeable, by a ^ f hi 48 KM * >) 'M TMwr/vftv.r T'" 378 POOR, (settlement.) warrant under their hands and sealsj to came him, h&r, w then, to be removed to the township where they last obtained a lawful settlement.'] By the express words of the Statute, this warrant of the Justices cannot be issued until after the Over- seers of the place, to which the before mentioned declaration of the pauper has been transmitted, have neglected to remove him, and to pay the expenses incurred for his relief. As nothing is said in the Act respecting any examination by the two Justices, relative to the pauper's settlement, it may seem doubtful whether they are authorized, or it is requisite for them to make any examination, or receive any proof on the subject, or whether, merely by virtue of the previous proceed- ings before the single Justice, they are peremptorily to issue their warrant for the removal of the pauper to that township to which his declaration was transmitted as aforesaid. However, as no reference is made to any previous adjudication or deci- sion on the point, but the Justices are directed to remove him ** to the township where he last obtained a lawful settlement," it would rather seem, that they may and should investigate and examine, in order to ascertain and determine such lawful set- tlement. The warrant is to be executed by the Overseers of the removing township, and therefore it must be directed to them. The Justices ought to be both together at the hearing and de- termining as to the removal. '>- .* u < < a The pauper must be named in the warrant, if known, or if unknown, he must be stated to be so. A warrant to remove a man and his family, is not good, because too general, for some of the family might not be removable. Children should be described in the warrant by their names and ages. The virarrant must contain an express adjudication as to the place of lawful settlement. It must also state that the pauper is actu- ally chargeable to the place from whence he is removed. The examination must be by the same Justices who remove. The pauper himself ought to be heard before he be re- moved, for he may shew sufficient cause why be ought not to be removed, especially as he himself, perhaps, by the remov- al, is likely to be the greatest sufferer, and therefore natural justice requires that he be not condemned unheard. An order of removal, though to a wrong place, is conclusive, if not appealed against. 4 Burn's, 616 to 633. For the Form of a warrant to remove, see at the end of the Title. 5H(,«->ti.t i\jij- ii:i -i ■^y-' "jsi** ''I'v. .!« ■ff s'.&r 4. Of Appeal against the Order of Removal. If any town or township, or person or persons ichalsoever, POOR, (settlement.) t)ioM i\vkr*,k ihAW.9t^s ag^riwtd.^ The pauper himself may appeal, as well as the towaship to which he is removed. 4 iBtfni'«, 652. Mdky appeal for redress to the next General or Qiuirter Sessions of the Peace, held for the county wlurein such town or township shall be, or loherein such person or persons shall reside.'] It is plain from these words of the Statute, that where the removal is to a place in another county, the appeal must be to the Sessions in such county, and not in the county from whence the removal was made. Our Statute is different on this point from the English Statutes, by which latter the appeal is to be, to the Sessions in the county wherein the re- moval took place, r? Viv.; ■r-.i fc imi^ '<>.3 c 'jnrrrt The appeal must be to the next Sessions after the remov- al. By the next Sessions, is meant the next possible or prac- ticable Sessions for entering such appeal. 4 Burn's, 657. Note. Our Act does not require any notice of appeal to be given. In this respect also, it is difl'erent from the En- glish Statutes. It is certainly reasonable however, that such notice should be given, as well as expedient, as the inconve- nience of delay will be thereby prevented, and moreover it may probably be held to be requisite. An order, not appealed against, is final ; and there can be no second order reversing the first, excepting by appeal. But an order may be deserted and given up by consent, without appealing ; and in such case a second order may be made for removal to another township. An order of removal, unappealed against, is conclusive of the facts stated in it. So an order confirmed upon the appeal, is 6nal and con- clusive ; but an order discharged binds only the parlies. An order quashed for want of form only, is not con- clusive. The Sessions cannot make an original order of removal, but must either quash or aflwm. 4 Burn^s, 663 jo 675» Note. All the authorities herein before cited, where the word '•'• parish" is used, will equally apply to a township or settlement, having Overseers. 079 !, ►,,..„ ^ 'in: w By the 3 W. 4, c. 42. 4 V. 221, " If the Justices at their General Quarter Sessions, upon an appeal before them concerning the settlement of any poor person, determine in favour of the appellant, they shall, at the same or other G«ne- if ^,' 1 ■-■'; ■I n Ai 390 POOR, (settlement.) ral Quarter SessioDs, award to such appellant so much mouey as shall appear to them to have been reasonably paid, or to be due from the place on whose behalf such appeal was made, towards the relief of such poor person, between the time of tiie undue removal, and the determination of such appeal ; the money so awarded to be recovered as hereinafter mentioned. Sec. 2. The Sessions, upon any appeal concerning the settlement of any person, or upon proof of notice given of an appeal, which was not prosecuted, shall allow to the party suc- ceeding in the appeal, or to whom such notice was given, such costs as the Sessions shall think reasonable and just, to be taxed according to the rates fixed by law for costs in the Su- preme Court, to be paid by the Overseers or others against whom the appeal was determined, or who gave such notice of appeal. Sec. 3. If the Overseers, or others so ordered to pay such costs, shall, after service of the order of the Sessions in that respect, neglect or refuse to pay the same, the party in whose favour such costs were awarded, may sue for and re- cover the same in the Supreme or Inferior Court, or before a Justice or Justices, as for any debt of the like amount, and the production and proof of a copy of such order of the Sessions, and of the service thereof, on the party or parties upon or against whom such order was made, shall be sufficient proof of the said debt. Temporary. „, ■ ^.' ..U' .rf*.-* lM * J »^t*«*1.»"\ '. Form of the Examination of a Pauper, where the Settlement is by Hiring and Service. ;!;fc.^ii.;L:u« 'I, .HM.'rt^fpfl' County of ^ The examination of C. D., at present re- > siding in the township of in the said county to wit. ) of —-^ , labourer, touching the place of his last legal settlement, taken upon oath before me, A. M., Esquire, one of His Majesty's Justices of the Peace in and for the said county, the — day of , in the year of our Lord one thou- sand eight hundred and . ..riv* * '*''■ A. M., J. P. ) V M Form of the Examination where the settlement is by Birth. County of ) The examination of C. D., at present re- > siding in the township of in the said county to wit. ) of , labourer, touching the place of his last legal settlement, taken upon oath before me, A. M., Esquire, one of His Majesty's Justices of the Peace in and for the said county, the — day of , in the year of our Lord . Who upon his oath declareth and saith, that he is about — years of age, and was born, as he hath been informed and verily believes, in the township of in the county of where his father and mother were settled inhabitants. And this examinant saith, that he hath never to the best of his knowledge and belief, done any act whereby to gain himself a settlement in any other place than the said to\vnship of , and that on or about the — day of , in the year he was lawfully married to Sarah, his present wife, by whom he has two children, namely, Sarah aged — years, and William aged — months or thereabouts ; and that his said wife and children are living with him, and that he and they are now actually chargeable to the said township of in the said county of . ^liSBinKsH;)! i-ii in "if 'V ; ^f C. D. >(H: Taken and swforn before irte, the day and year first above written. A. M., J. P. If it appear that the last lawful settlement is by appren- ticeship, — serving an office, — or in any of the other methods, the examination must be filled up accordingly, stating the facts of the case. The foregoing Forms, with the slight al- terations obviously requisite, will also serve in the case of the examination taken before the two Justices, previous to their issuing the warrant or order of removal. n'-^x :?>««,' f..;i>fjf^^i;n P'. County of ) To the Overseers of the pobr of the town- Aunapolis. ) ship of Wilmot, in the said county of Annapolis, [Seal 1 ^ ^^ *^® Overseers of the poor of the township I Seal 1 °^ Falmouth, in the county of Hants, and to each and every of them. 393 POOR. (JJETTLEMEWT.) Mi Upoif the application and complaint of the Overseers ol the poor of the said township of Wilmot, in the county ot Annapolis aforesaid, unlo us whoso mimes are hereunto set and seals affixed, being two of His Majesty's Justices of the Pence in and for the said county of Annapolis, that John Thompson, Mary his wife, Thomas their son, aged eight years, and Agnes their daughter, aged four years, have come to inhabit in the said township of Wilmot, not having gained a legal settlement there, and that the said John Thompson, Mary his wife, and Thomas and Agnes their children, arc ac- tually chargeable to the said township of Wilmot. We the said Justices, upon due proof made thereof, as well upon ex- amination of the said John Thompson upon oath, as other- wise, and likewise upon due consideration had of the premises, do adjudge the same to be true ; and wc do likewise adjudge that the lawful settlement of them the said John Thompson, Mary his wife, and Thomas and Agnes their children, is in the said township of Falmouth, in the said county of Hants : We do therefore require you, the Overseers of the poor of the said township of Wilmot, or some or one of you, to convey or cause to be conveyed the said John Thompson, Mary his wife, and Thomas and Agnes their children, from and out of the said township of Wilmot, to the said township of Fal- mouth, and them to deliver to the Overseers of the poor, there, or to some or one of them, together with this our order, or a true copy thereof, at the same time shewing to them the original ; and we do also hereby require you the said Overseers of the poor of the said township of Falmouth, to receive and provide for them as inhabitants of your township. Given under our hands and seals at Wilmot aforesaid, the — day of in the year of our Lord — /--• ; •^ -ir .V. .■■■I A. M., J. p. A. K., J. Jr. ■ yn ■ ^>5j,C,^*vj,4-y., ?,'r«|y-gj»i* .'*■ I- POUNDS. ^^'^^^''^ u, t •• Bt the 40 G. 3, c. 7. 1 V. 424, ♦♦ The Grand Juries in the General Sessions in the several counties, shall from time to time present the number of pounds requisite in each town- ship, and the Justices in Sessions shall appoint !i ;.-nmission- ■er to contract for, and to see to the erection of such pounds ; md-when completed they shall be reported to the Sessions for approval. On the fieglect of the Girand Jury to present the | 3uros necessary to defray the expense of erecting such pounds. «i^ POUNDS. Wl'i 3S.i the Justices in Sessionn may amerce ibo several townships in Mich requisite sums, and the same shall be assessed on such townships, and be collected and levied in the same manner as county charges." Perpetual, (»,*?•» Vin ue»i.?-»! ••(1, M \-\i,u:iAi U) •:HiU iV .» *'• ^^^ I iR|i PROCESS, see,-~SUMMONS and WARRANT. PROMISSORY NOTES, see,— BILLS and NOTES. 1.1 1' (■■ <'V' u.'i' PUBLIC GROUNDS. Br the 4 W. 4, c. 12. 4 V. 263, it is enacted, *' That ihe General Sessions shall appoint three supervisors within every township, to take charge of all public landings, and public grounds within every such township respectively, for the regulation of which, provision has not already been made, and to preserve the same, and remove incumbrances there- from, and to prosecute persons who shall encroach on, or in- jure the same. Sec. 3. Where there shall be an encroachment on any road within a township for which such supervisors have been so appointed, and the lands on the opposite sides of such road are owned by different proprietors, and any doubt or dispute shall arise as to the true line of the road on which such en- croachment shall appear to liave been made, or as to which of the two sides of the said road is or may be encroached upon, it shall be lawful for the said supervisors, or the major part of them, after duo notice given to all parties interested in the said dispute, of the time and place of holding such investigation and enquiry, to repair to the place where such encroachment may be alleged to exist, and there to enquire into the facts relating to such encroachment, and by survey or otherwise, upon evi- dence of witnesses to be sworn and examined by such super- visors, or the major partof ihem, who are hereby authorised to administer oath to the said witnesses, to ascertain and settle the true and correct line of the road in question, and to detej*- mine upon which side thereof the said encroachment may have been made, and to order, direct, and cause, the fences, walls, and enclosures, or other encroachments, of any person or persons who may have encroached upon such road, to be moved or altered accordingly. .-im^mH-^i'^--^^''''*"^ ' ■h-tti'^Wit-' 'Vi Eneroaeh* incnts ou Roada. IVnaltiei t'ur Knci'onr.li- iiieiitii. 384. PUBLIC GROUNDS. Sec. 4. If any person shall neglect or refuse to remove or alter his, her, or their fence or enclosure, or other encroacli- inent within the time he, she, or they may be required so to do, by the order and direction of the said supervisors, or the major part of them, such person or persons shall forfeit and pay a fine or penalty of twenty shillings, to be sued for and re- covered by the said supervisors, or by any person who will sue for the same, in the same manner as debts of the like amount are by law recoverable, and to be paid and applied, one half to the person who shall sue for the same, and the otiier half to the Surveyors or Commissioners of Highways for such township ; to be applied for the improvement of the roads therein. And if such encroachment shall be sufiered to remain and continue for twenty days after such fine or penalty imposed and sued for, such continuance shall be deemed and taken to be a new offence, and shall subject the party or par- ties continuing .such encroachments, or suffering the same to continue, to the like fine as aforesaid, and so in like manner shall every further continuance of such encroachment for the further space of twenty days, be deemed and taken to be a new encroachment. yn^AJJf-iwl'V vty Sec. 5. The said supervisors or the major part of them shall apportion and order the payment of all costs, charges, and expences attending and incident upon the said proceed- ings, upon such persons, and in such manner and proportions as to the said supervisors or the major part of thera shall appear expedient and advisable ; and the same shall be recoverable and recovered by suit as for debts of the like amount as such costs or the respective apportionments thereof may be. Sec. 6. In any action either for the penalty, or costs aforesaid, the production of a copy of any such order made in writing under the hands of the said supervisors or the major part of them, and due proof made of their hand writing, shall be good and sufficient evidence of such order, and shall be suffi- cient to establish the claim of any person or persons to the a* mount of costs awarded to him or them. Appeal. ggg «7 If any person shall be dissatisfied with the order of the said supervisors, it shall be lawful for such person to ap- peal from such order to the nebit Sessions of the Supreme Court, or General Sessions of the Peace, at the option of the party so appealing, where the matters in dispute shall be tried and determined by the verdict of a Jury ; provided always, that pending any such appeal the fence or other encroachment shall not until the determination of such appeal be removed or altered, as ordered by the said supervisors." Temporary. As the fines and other sums of money mentioned in this Expense!) of proceeding!) respecting en- croachments. Copy of order ofHupervLsors to be evi- dence. PUBLIC GROUNDS. 385 Act, are directed to be recovered in the same manner as debts of the like amount, it follows that where the same do not exceed three pounds, they must be sued for before one Justice, and above that amount, but not exceeding five pounds, before two Justices ; the proceedings and Forms in which suits will be found under the Title, — Summary Trials. .„ . . . : ■ • ■ . .. .li 'n-'V-' ■ • , ., .„- QUAKERS, see OATHS "'"~ I) J;.> '^1 I' '({ itt r. j. . '/ }< • > Jr. Ill V »! Rape is when a man hath carnal knowledge of a woman by force, and against her will. The offence is no way niiti* gated by shewing that the woman at last yielded to the vio- lence, if such her consent were forced by fear of death, or of duress. Also, it is not a sufficient excuse in the ravisher to prove that the woman is a common strumpet, for she is still under the protection of the law, and may not be forced. Nor is it any excuse that she consented after the fact. The party ravished may give evidence on oath, and is in law a competent witness, but the credibility of her testimony, and how far she is to be believed, must be left to the Jury. All who were present and actually assist a man to commit a rape, may be indicted as principal offenders, whether they be men or women. 5 Burn'Sy 1-5. By the 32 G. 2, c. 13, § 7. 1 V. 16, If any person or persons shall by force, and against the consent of any woman, or infant above the age of twelve years, have carnal knowledge of her body, every such offender or offenders shall, on due conviction of such ravishment, suffer as a felon without benefit of clergy. Provided always, that if complaint shall not be made of a ravishment within ten days afterwards, before one of His Majesty's Justices of the Peace, or other Magistrate, that then such fact shall be adjudged to have been committed by and with the consent of such woman or infant. Sec. 8. If any person shall unlawfully have carnal know- Rape on a ledge of any female child under the age of twelve years, though Child under with her consent, every such unlawful and carnal knowledge *^^^ "^ ^*"'*" shall be felony, and the offender being thereof duly convicted, shall suffer as a felon without benefit of clergy. And every violent assault and battery committed on the body of such iJltent to com- woman or infant, with intent to ravish, shall be punished by mit a Rape 49 ► 1 »■ \ Tii f m ;i ,■ ill ■i 1 1 *Wi J 1 :f^ 'wBHr ';') ^M^B I^SSffl '^^^^B^HVt tmUmm^^^Bi '^^^^mi 'i^K^ffi ,>'i^pi^pi 386 lU RAPE, /i Vi DirtctioDi. adjudging the oflendcr or ofi'enders, upon due conviction there- of, to stand in the pillory, and the Judge or Judges of the Court wherein he shall be so convicted, may for further punish- ment fine and imprison, and require sureties, for the good be- haviour, at his or their discretion. Perpetual. The proceedings on complaints of rape will be the same as in other cases of capital felonies, and will be found, together with the requisite Forms, under the respective Titles, — In- formation ; Warrant ; Examination ; Commitment. Justices of the Peace cannot bail for this crime, but after taking the examinations as by law required, must commit the party to gaol, and send the examinations in to the Supreme Court, in the usual manner. If the complaint is only for an assault with intent to commit a rape, the party may be bailed by sufficient sureties, and may be tried in the Sessions. {■ I \ RATES. Ci.f(1'' v.: This very important title has reference solely to the rates made for defraying the county and district charges, and it will be treated of in the following order : -> . v7 I . UVJ II III k i^ ; Jf v.; - , Of appointing Assessors and Collectors. Of making the Assessment : and herein of the persons and property liable to be rated. Collection of Rates and Prosecutions for Of Appeals. " ' 'v- Expenditure of the Monev raised. "^^ < Recovery op Penalties. ti^Ui.*-! ^ »y •- Other Matters relating to Rates. >; It' I. Of the Purposes for which Rates may be made If.' and levied, i w..i- 'jir. ^* i.Tl . iit I't . By the 6 W. 4, c. 13. 4 V. 385, The Grand Jury in the General Sessions may present sums of money to be raised for the following purposes ; — for building or repairing a county pr district gaol, or the appurtenances thereof, or of a Court or Session House ; and for providing fuel for the use of RATES 38' ^TES MAY BE CUTI0N9 FOR AY BE MADE the same ; erecting or repairing stocks, pillories or notiiidji ; and providing bolts, bars and shackles; also for the conveying persons accused of any treason, or other criminal oflence, to the county or district gaol, being the distance of three miles or up^vards, and so as the same do not exceed six pence per mile ; also for the support of poor criminals, or other poor persons in gaol ; also for paying a salary to the treasurer of the county or district for his services in that station ; also for paying the Clerk of the Peace such annual sum, not less than twenty pounds, as shall be presented by the Grand Jury, and approved of by the Court of General Sessions, and be deemed neces- sary for the payment of such of his services in that office for which no provision is otherwise made ; also, (except in the county of Halifax,) to defray the charges of prosecuting in any Court of Sessions of the Peace, persons charged with larcenies, or other criminal offences or misdemeanors, (except for as- sault and battery only,) in cases where such proceedings shall be conducted by counsel, and wherein the Court shall tax and allow the said charges and direct them to be paid under this Act, but not to exceed two-pounds six shilings and eight pence in any one case ; also towards the maintenanre and support of a gaoler ; also to pay the crier of the several courts held in the county or district, such annual sum as may by the Court of Ge- neral Sessions be deemed necessary for payment of his services in that situation ; also to defray the expenses of poor witnesses on the trial, in any Court, of persons accused of any grand or petit larceny, or other criminal oflence ; the same to be paid pursuant to the provisions of the Provincial Statute 8 & 9 G. 3, chap. 2 ; also for defraying the charges of conveying crimi- nal offenders to the places of labour or con6nement, to which they have been sentenced to be conveyed ; also for procuring njaterials and defraying other expenses which may be necessary for selling persons at work who are confined in any such county or district under sentence to labour ; aldo to pay any allowance which may be made by the said Court of Sessions to any con- stables for extraordinary expenses incurred in the execution of their duty, in cases of riot or felony ; also to pay any allow- ance which may be ordered by the said Court of Sessions to be made to any special constable or constables, for his or their expenses, trouble, and loss of time, in executing or endeavour- ing to execute any warrant or warrants which such constable or constables have been appointed to execute, or to assist in ex- ecuting, in any case of felony or misdemeanor ; also for the payment of all such stim or sums of money as may be necessary to be raised, or expenses that may have arisen, for the build- ing or repairing bridges within any such county or district ; m ifH I 388 RATES. aUo to dutray the cliurges and expensuii altuiiding lliu leinovAl of aiiy of the said county or district rates, by certiorari or other- wise, or which may bo incurred in prosecuting or defending any action, suit, or proceeding at law respecting the aHairs ol such county or district ; such charges and expenses to be taxed and allowed by the said General Sessions ; and also for any expense incurred, or to be incurred in the executing or admin- istering of criminal justice in the county or district." II. Of appointing Assessors and Collectors. By Section 5 of the aibrosaid Statute, — The Grand .loiy shall present to the Court of General Sessions the names u( a certain number of freeholders, out of whom the said Court shall appoint as many ns may be deemed proper to be assessors and collectors, of the sums of money mentioned in any pre- sentment which has been coniirmed ; or where the said Court has ordered any amercement lo be made, such Court shall ap- point assessors and collectors for the same purpose ; amd the said assessors and collectors shall in each case aforesaid, be notified of their appointment by the Clerk of the Peace, nnd shall be sworn by the said Court or by any Justice of the Peace, to the due and faithful execution of their respective offices, and that without favour or affection, hatred or malice, and to the best of tlieir skill and knowledge ; and in case any person ap- pointed as assessor or collector as aforesaid, shall die, or re- move, or refuse to accept of such office, or negkct to act therein, another person shall immediately be appointed in his stead, by the Court or by any two Justices of the Peace ; and any person so refusing or neglecting to act, shall forfeit the sum of five pounds, to be recovered and applied as hereinafter directed. III. t !>:. Of making the Assessment, and herein of thk Persons and Property liable to be rated. By Sec. 6 of the same Statute, — " The Juslit^s in Ge- neral Sessions, by whom any presentment of money shall bu confirmed, or amercement shall be made, shall determine and appoint the proportion of the amount thereof which shall he borne by and assessed upon the inhabitants of the several town- ships, settlements, or places within the county or district in and for which such presentment or amercement was made ; and the assessors appointed as aforesaid for such townships* settlements, or places respectively, shall meet together to make such assessment al such time and in such central and HATES. ;)S9 coiiveniciil places u^ biiuil be apiiointt'd by iliu Clvik ol l\w Peace tor that purpose ; and tthall, wiiliiii twenty days al'lei- llijy have been sworn inlu o/licc, assess tbe sums so propor- lionod iipoii the iniialiMaiils us aforesaid, in the most just and nqual iiiavincr they tiie said assessors can devise, by an c'(|ual iMund rate on the rf;al and personal property whtM-eof such in- habitants shall be respectively in the occupation or possession wiUiin the county ; rt^urd being had to the value of the rents of the real estate, and the capability of the personal estate to produce profit ; in which assessment the said assessors iliein- selvcs shall be included ; and they the said assessors, within the said twenty days, shall make out and furnish to the Clerk uf the Peace of such county or district, rolls of the names of the inhabitants so assessed, specifying opposite to their names, the sums in which they have respectively been assessed, which assessment shall be made, and rolls ^hall be subscribed by a tnajority of the said assessors, and every assessor who shall neglect any part of the duty herein re possession, throughout the county. Regard being had to the value of the rents of the real es- tate^ and the capability of the personal estate to produce profit.] With regard to the real estate, it would seem from the words here cited, that the amount in rent, which under existing cir- cumstances any such estate, whether lands or houses, may fair- ly be estimated to yield or command, will, in every such case, be the value or amount of rent to be taken into account in ad- justing and making the rate. By the expressions used concerning personal property, \i doubtless to be understood its capability, under the existing circumstances of its possession, of yielding any profit to the possessor ; for strictly speaking, personal property of ©very 50 I'onsoMnioa of IVopoity. !*■< 392 RATES. description is capable of being so used or employed as to yield ii profit. If however, any such property, at the time of mak- ing a rate, is held or possessed by the owner under such cir- cumstances that it does not and cannot then yield him a profit in any waj , he is not at such time to be rated for it. Stock in trade, is liable to the county rate, if it be ascertained to he profitable. ■*!'a!.!li (' .Ilriv'1;f>f : IV. Collection op Rates, and Prosecutions for ; ' .,,;.., .,„ THE SAME. •■ \. ■•-.-.. ..,• '-...- ., By Sec. 7, of the aforesaid Statute, it is enacted, — "That upon the rolls of assessment being received by the Clerk of the Peace, from the assessors, warrants under the hands and seals of any two Justices of the Peace within the county or district, with the said rolls thereto respectively annexed, shall forlhwilh be issued, directed to the respective collectors, commanding them to collect from the persons named in such rolls, the sev- eral sums set opposite to their names respectively ; and the said collectors shall immediately proceed to make such collection, and within three months from the time of their receiving such warrants, shall return the same to the said Clerk of the Peace, and shall pay over to the Treasurer of such county or district the sum or sums of money so by them collected ; and if any such collector, who has received any such warrant, shall neg- lect, delay, or refuse to make such collection and payment within the period aforesaid, he shall forfeit and pay the sum of ten pounds, to be prosecuted for and recovered by the said Treasurer in a summary manner, before any two Justices of the Peace, or by bill, plaint, or information in any Court of Record in the Province, by direction of the Court of General Sessions or otherwise, and every collector, who shall have re- ceived and shall improperly retain any money by him collected as aforesaid, shall moreover by the direction of the said Gene- ral Sessions be prosecuted for the same by the said Treasurer, before any such Court of Record, in cases where the sura so improperly retained shall exceed the sum of five pounds, and for any lesser sum, in the same manner that debts of the like amount between party and party are now by law recovered. Sec. 8. Every person named in any such roll of assess- ment, who shall neglect or refuse lo pay the sum therein spe- cified to be paid by him, her or them, after demand thereof made by the collector as aforesaid, shall and may be prosecuted lot the same by the said collector, before any two Justices of the Peace within the county or district ; and on judgment being given against such person or persons for the said sum, or any RATES. 393 very of Rales. pail tliereof, the same shall, by wanaul ol distiess fruni the said Justices, be forthwith levied by the constable or consta- bles to whom the same is directed, on the goods or chattels of such person or persons, together with the charges of prosecu- ting and levying for the same ; and any overplus, after the sale of such distress at public auction, shall be returned lo such person or persons. Sec. 12. The Court of General Sessions in the several counties and districts, shall establish the rate of commissions to be allowed to the collectors of the said rates, the said com- missions, however, not to exceed five pounds for every hun- dred pounds by them collected." With regard to the proceedings for enforcing the payment Concerning of these rates, it may here be remarked, as has been done con- I-'"Jk'^''".%' earning poor rates, that the practice which has so generally pre- vailed, — of issuing and levying a warrant or warrants of distress against parties, without previously summoning them to appear and answer for their alleged default of payment, is altogether unjust and illegal, and renders the persons concerned in making such illegal distress liable to prosecution, and to the payment of damages, by the parties injured. Our former Statute, it is true, did not expressly require that delinquents should be so summoned, but still the common law required it, as being agreeable to reason and justice, but it has been seen that by the express words of one of the foregoing clauses of the present Act, it is required that the parties who have neglected to pay their rates, on demand thereof made, shall be prosecuted, that is, summoned for the same, before judgment can be given against them, or a warrant of distress be issued. The follow- ing authorities will abundantly prove, that in all cases such summoning ever has been, and still is, indispensaibly requisite. It is reasonable that the party should be heard in his de- fence, for he may shew cause why a distress should not be granted, as that no demand or refusal had been made, and the like. A summons must precede a warrant of distress, which is in the nature of an execution. On the summons, the party may shew a sufficient reason to the magistrates why a warrant of distress should not issue, a^i that he has already paid the as- sessment. But it is an invaric'M^"! maxim in our law, that no man shall be punished before he has had an opportunity of be- ing heard ; whereas if a warrant of distress were to be issued without any previous summons, the party would have no op- portunity of shewing cause why the execution should not issue against him. 4 Burn's, 109 — 110. .. '.■( .u^r.rh-B.'M. It would be strange that a distress should be taken upon a man's goods without hearing him. hi. 115. . _ , _ Summoning for non-puy nient. 394 RATES. In another case given in the same work, one of the Judges »aid, '•'• No Magistrate can be supposed to be so ignn- ' rant as not to know, that it is contrary to justice and reason to condemn a man in any case without giving him an opportu- nity of being heard in his defence." Directions. '^''^ demand of payment made by the collector of the rates should be a personal one, if possible, but at least it must be made to appear that the party had notice of such demnnri before being summoned. When any party refuses or neglects payment, after such demand thereof, the legal and proper course is, for the collector to apply to any two Justices, who, at his request and on his statement, which need not be in writing or on oath, must issue the summons for the delinquent ! party to appear before them on a subsequent day, allowing a , reasonable lime. The collector is not obliged to delay doina; this, nor should he delay it until after the expiration of the three months allowed for the return of the warrant to collect, but should proceed against such delinquent party in the way here pointed out, immediately on the demand and refusal of payment. On the hearing before the Justices, the collector may be admitted as a witness, and prove his demand of the ratC) and the neglect of payment. The party may, of course, produce evidence in his defence, if he wishes it, but, as in every other case, he cannot be admitted as a witness in his own behalf. Should he not appear on the summons, still the same evidence before mentioned must be afforded, of the de- mand and neglect of payment, and judgment may be given in the matter, notwithstanding his absence. On the hearing, the Justices cannot receive any evidence, or enter into any investigation as to the liability of the party to be rated, or his being overcharged, or there being any inequa- ' lity or defect in the rate, or as to any other such points, but ■ ' . , they are to hear and determine the matter merely with refe- rence to the party being included in the assessment roll, and the demand and neglect of payment. Objections to the rate, or the parly's liability, can be heard and determined only on an Appeal. There is no power given by the Statute to commit the party to prison, if the rate is not paid or levied, or in any event whatever, therefore no such commitment can lake place, aUhough no goods can be found on which to levy, or from which the judgment can be satistied. The tees on the summons and on the subsequent pro- ceedings, will be the same as in other summary prosecutions before Justices, and will be found luider the Title, — Fees. The charges attending ihe levying under the warrant of dis- RATES. 395 tress nuffet be taxed aud allowed by the Justices, as in similnr cases. Forms ol* the siimiiions and warrant of distress, will bo Ibund at the end of the Title, -u vnuiruiis; t );;:jw w U- i^i,;^. > As the prosecutions against the collectors, for neglecting to make collection and puyment, and for improperly relnining money collected by them, are directed, if before Justices, to be in a summary manner ; the proceedings and the Forms in such prosecutions will be the same as in suits beforo Justices lor the recovery of private debts, and will be found set forth tinder the Title, — Summary Trials. •lit-if; rtrJ M' tcj K t - . r jit •■ ■• •^-...Ur 7KB, li. .U'lJAJii • V. : f1 ivf Ki Of Appeals. ■ Sec. 8, of the aforesaid Statute, — '* Provided always, that if any person or persons shall feel aggrieved by any such assessment, or the levying thereof as aforesaid, he, she or they may appeal for redress to the next General Sessmns held in and for the county or district in which such assessment was made, or to any Special Sessions held therein, as hereinafter provided, for hearing. such appeals, giving at least eight days' notice thereof to the Clerk of the Peace, who is hereby re- quired to appear and support the rate or assessment made as aforesaid ; and on the hearing of such appeal, the said General or Special Sessions may, without setting aside the whole or any other part of the said assessment, either set aside or lower the rate assessed on such person or persons, or otherwise fin- ally determine the said appeal as to the said Justices shall seem lawful and right ; and in case any money has been paid by any such person or persons for or on account of such rate, or the levying thereof, and the said Justices shall adjudge that the same, or any part thereof, be returned to such person or per- sons, the same shal) by order of the said Justices be repaid to him, her or them, out of any money collected or received from the general assessment on the county or district wherein such appeal look place ; but no such appeal shall in any case delay or prevent the collection or recovery of the sum assessed upon any such person or persons as aforesaid ; but the same proceed- ings as herein before directed shall be had and pursued for the collection or recovery of the same, as if no such appeal had been made." Sec. 11. It shall and may be lawful for the Justices of the Peace in the several counties and districts, to hold Courts of Special Sessions, if they shall deem it proper and ex- pedient, for the purpose of hearing aud determining appeals as herein before provided, aud enforcing the assessment and col- fr m m iiiHiillWiilHtBWf^ii,' t WMf mr^^^vwnw.f ffn KMum. . SiHj HATES. Notic« of Ajt- peal. Directions!. lection of the said rates ; of the holding of which Sessions, eight days' notice shall be given, which Courts of Special Ses- sions ahull have the same power and authority that Courts of General or Quarter Sessions possess, to hear and determine any appeal made as aforesaid, by any person or persons against any rate or assessment to which he, she, or they may be rated or assessed, under and by virtue of this Act." By the direction in the Act, that the appeal shall be made to the " next Sessions," is to be understood, the next Ses- sions to which the party can by possibility appeal, alter being aggrieved ; and this is always a question of fact. If the appeal is not made to such next Sessions, at which it is practicable to lodge it efiectually, it cannot be allowed or heard at any sub* sequent Sessions. Sce4 Bitrn^s^ 103. Several parties having a joint grievance, may join in giving one notice of appeal. Id. 104. The notice of appeal should be in writing, and if the ground of appeal be, that certain persons are omitted in the rate, the names of those persons should be specified in the notice of ap- peal. /(/. 105. When the appellant objects to bis being rated at all, it is the practice for the respondents to begin ; but if he object to the amount of the rate, then the burden of proof lies on him. Where the appellant disputes before the Sessions the amount of his rates, it is not sufficient for the respondent to shew that the appellant is in possession of some rateable pro- perty, they must also shew some probable ground for the amount at which he is charged in the rate. Id. 106. The same determinations and authorities which have been given under the division concerning the making of the assess- ment, may be referred to, and will equally serve to guide and direct the Sessions, with regard to the liability of parlies or property to be rated ; as to apportioning the rate ; and on oth- er points which may be urged, or arise on the hearing of ap- peals. Those authorities therefore, as also the other informa- tion contained under that division, need not be here repeated. It has been seen that the appellant must give the Clerk of the Peace at least eight days notice of the appeal. If any shorter notice is given, and the objection is urged, the appeal cannot of course be heard, but must be dismissed. It may here be remarked, that the calling of Special Ses- sions for the hearing of appeals is not imperative on the Justi- ces, but they are only to call them, " if they deem it proper and expedient." - >-«UK.:i' ,M iU't ►?)(*(- »ii;i ,.fU-tv!>'yi V ■ ij'fl. I! RATES. 397 Vli Of the Expenditure of the Money raised. join in giving By Sec. 9, of the aforesaid Statute,—'* All money so raised by presentmentoraniercementns aforesaid, sliallbe paid into the hands of the Treasurers of the counties and districts respectively, and shall not be applied to any other uses or pur- poses than such for which the same was raised, or which is otherwise by law provided ; and if any person or persons who shall be appointed in the said presentment and order thereon, or amercement, to be director or directors, overseer or over- seers of the work, or a distributor or distributors of the money raised as aforesaid, shall not at the next General Sessions, and in a reasonable time, to be by such Sessions appointed, make ap- pear in his or their accounts, with good voucher:;, that the money so raised and received by him or them, has been expended pursuant to the said presentment or amercement, to the use of the county or district, as by law provided, he or they shall be chargeable with the same ; and every person, so accountable for any public money, shall, when required by the said Gene- ral Sessions, make up his accounts on oath ; and if any such accountant or accountants, when so required, shall neglect to make a fair and just account of all such public money, or shall, upon such accounts, be found to have such money or any part thereof remaining in his or their hands, he or they shall forthwith pay such money into the hands of such person or persons as shall by the Justices in the said Sessions, or by the Grand Jury, be named or appointed to receive the same, for the use of such county or district ; and in default thereof, such person or persons, so accountable, shall by the said Sessions, by their order or warrant, be committed to the common gaol, there to remain until such account be made, or balance paid, or sufficient sureties be given ibr the same." Sec. 10. The county or district Treasurers shall not pay out any money, raised as aforesaid and received by them, for any other purposes than those for which the same was raised, or for which payment may otherwise by law be made ; and such Treasurers shall make up their accounts upon oath, of all their receipts and payments, at every term of the General Sessions, to be approved or disapproved of by the said Court ; and such accounts shall be tiled with the Clerks of the Peace ; and no Treasurer shall compound for any money to be raised, nor make any deductions for any sums they shall pay to any per sons, but such as they shall account for by proper vouchers ; and if any Treasurer shall offend herein, or neglect to make up his accounts as aforesaid, he shall be incapable again to serve as such Treasurer, and shall by the Sessions be commit- Mf y:i 39S Directiun<). RATES. ted lo gaol, willioiit bail, U)fre lo reniaiit until he fairly ac- counts vviili such ('ourt, and receives liom the same, a cerii- licate of bis having passed liis accounts to their approbarion." »b«-»f»« ^H- ReCOVEHY OV PBNALTIE9»JM*iM^a,.i By Sec. 14, of the aforesaid Statute,-'-" All forfeitures and penalties imposed by this Act, the proseuution and reco- very of which have not been herein before provided for, may may be sued for and recovered by any person who will prose- cute for the sam«, or shall be sued for and recovered by the Clerk of the Peace for the county or district within, which the same were incurred, by order of the Court of General or Quarter Sessions, held in such county or district, by bill, plaint, or information in any Court of Record within the Province, in cases where such forfeiture or enalty shall be the sum of ten pounds or upwards ; and in all cases below the said sum of ten pounds,, befoie any two Justices of the Peace, in a sum- mary manner, as incaS;esof debt ; and on judgment being given for the recovery of any such forfeiture or penalty, the same, together with the charges of prosecution, shall and may, by warrant of distress, be levied on the goods and chattels of the offenders ; and in case, sufticient di)i>tress cannot be fouml whereon to levy the same, it shall be lawful for the Court or Justices by wbpm such judgment was given, to commit such offender to the common gaol of the said county or district, there to remain without bail or mainprize for any time not ex- ceeding three months, unless the said 'orfeiture and charges be sooner paid ; and all the said forf<^.iuires and penalties, when recovered, after deducting any expense incurred in prosecut- ing for the same, shall be paid to the Treasurer of the county or district within which the same were incurred, to be applied in aid of thd rates stssQssed and collected by virtue of this Act." ii^. As all the penalties which are by the Act directed to be recovered before Justices, are to be sued for in a summary manner, as incases of debt, the proceedings and the requisite Forms, until judgment, will be the same as in such cases, and will be found set forth under the title,^ — Summary Trials, The proceedings after judgment, being by Warrant of Distress and Commitment, instead of the common writ of Execution, the reqtiisite Forms, which may readily be filled up so as to serve, will be found under the Titles, — Distress, and Coinmitment., ,id04al kialfo Uiai* 'i^^ffc^j^iT rtju ti The costs in «uch prosecutions will be the same as in such summary causes for the recovery of debts. ., , . . RATES. 399 VIII. Other Regulations concerning County Rates. ce« in a sum- Sec. 13, ofthesamo Statute, — 'Mt shall be lawful for CompiMisution the Justices in General or Quarter Sessions, from time to '" (^ollcctorH, time, to order such allowances and compensations to be made to the assessors, collectors, overseers, overseers or direc- tors of work, distributors of money, and constables employed in the execution of this Act, or under and by virtue thereof, which have not herein before been provided for, from, by, or out of the monies assessed, levied, and collected by and from any rate under this Act, as to the said Justices in Sessions as nforesaid shall appear reasonable and proper.'' [Note. By the 6 W. 4, c. 22, No pecuniary allow- ance or emolument shall be thereafter made to assessors.] Sec. 15- '' No person shall be deemed incompetent to Witnesses, be a witness for he execution of tl>e purposes of this Act, or in any appeal or other proceedings instituted by virtue thereof, by reason of bis paying, or being liable to pay towards the aforesaid rates." Sec. 16. No action shall be brought against any person for any thing done under the Act, after six Calendar months next after the fact committed ; and every such action shall be brought in the county or district where the cause of action arose ; and the defendant may at his election plead this Act especially, or plead the general issue, and give this Act and the special matter in evidence on the trial ; and if the defend- ant shall succeed in any such action he shall recover treble costs. Sec. 17 &, 18. No rates, orders, or proceedings re- moved by certiorari shall be quashed for want of form only. And no action shall be commenced against any person who shall have collected or received any money or any rate which shall be quashed on a certiorari, cr otherwise, for any money collected or received on such rate before the certiorari was brought ; but the persons who have paid on such rate more than they ought to have paid, shall be repaid, or have the same allowed in the next rate." Sec. 19. All former Acts respecting county rates are hereby repealed. ^ -Ws(?«it 4»^ n -nK[ ^u "(^\n....ifr,'{.f -.^m? trm'^^-^ i^oo. Actions for proceedings under the Act. Removal of Rates, &c. on Certiorari. '**^^»»*w« ■. fne as m Note. The aforesaid Statute is at present limited in its duration. :iiM if«(y;»;cH» '>*^< ^''^'^r -T^rsr*? I-m^'*^''* '*fnt}i'H Al J. i^i. 51 400 RATES. Form of Summons for non-payment oj County Rale. County of) To A. D., of the township of , in \U& ) said county of , yeoman. [Seal. I , ' •• iv» *'■ ' "i^-'i-'^ t.i.f, r.*v<.< :4 <>' '^ V. .. ........ M/l, ■: A. M., J. p. /u '.ifivri-v.: "i '..[.'rM , . ..■■ ,.,u-.,. A. R., J. P. Warrant of Distress to levy the Rate., on Judgment against ^' : I -. v. -. .1 Party summoned. <.i.»j^.i.i^ .. the County of ^ To A. C. one of the constables of the town- ^ ship of , in the said county of [Seal.] '<.M -tiV'^s:?; Til. |.v;>.i, ^u , •;,< Ji^ fSeal.i Whereas in and by a rate and assessment duly made, as* sessed, established, and confirmed, pursuant to the Statute in that case made and provided, A. D. of the township of in the said county of , yeoman, was duly rated and assessed, for and towards defraying certain county charges upon the said county, for the year of our Lord , in the sum of . And whereas it duly appears unto us A. M . and A. R., Es- quires, two of His Majesty's Justices of the Peace in and for the said county, as well upon the oath of A. !J. a collector of the said county rates, for the said township of in the said county, as otherwise, that the said sum of hath been law- fully demanded of the said A. D., and that he the said A. D. hath refused and doth refuse to pay the same. And whereas it hath been duly proved to us the said Justices, that the said A. D. hadi been duly summoned to appear before us the said Justices, to shew cause why the same should not be paid, but he the said A. D. hath not shewed to us any sufficient cause why the same should not be paid ; These are therefore to require you fortii- UATKS. M)l with to make diiitrcss of tlio goods iinii cliatluU of him the said A. U., and if within the space ol' six days next after such dis- truss by you taken, the said sum of , niid also more for the legal costs of |)rosecution, making together the sum of , together with the reasonable charges of taking, keeping, nnd selling the said distress, shall not bo paid, that then yon do sell the said goods and chattels so by you distrained, and out of the money arising by such sale, that you detain the said sum of , and also your reasonable charges of taking, keep- ing, and selling the said distress, rendering to him the said A. D. the overplus on demand ; and if no such distress can be made, that then you certify the same unto us the said Justices, to the end that such further proceedings may be had therein as to law doth appertain, (jiiven under our hands and seals at — this — day of , in the year of our Jjord above written. „.,.,. ..; . ..-.. -....-,- A. M., J. P. •••■ *■'' • •' -^ ...firl*..'!!, ,. , A. U., J. P. •■•J .y*\'"i .i\ ■m- ','.;.>( % i:.. RECEIVERS, sec— LARCENY. ,f t M .}^■.if.■■.tUi'.: ^■:''.i !■..>, ■m- V ;■(■>' !• -; ;;,' ' ■■ * RECOGNISANCE. Recognisance is a bond of record, testifying the recog- IWeroiJu*- nisor to owe a certain sum of money to some other, and the i^f^foirnw" u^ acknowledging of the same is to remain of record ; and none cc«. can take it, but only a judge or officer of record. These re- cognizances in some cases the Justices of the Peace are ena- bled to take by the express words of certain Statutes, but in other cases, (as for the peace and good behaviour, and the like,) it is rather in congruity, and by reasonable intendment of law, than by any express authority given them either by their com- mission or by the Statute law. It is now settled, that a Jus- tice of the Peace is authorised to require surety of the peace for a limited time, (e. g. two years,) according to his discre- tion, and that he need not bind the party over to the next Ses- sions only. 5 Bum's, tj. o Lvii.Mt: uf A ;/;ft<4i Wheresoever any Statute gives them power to take a bond of any man, or to bind over any man to appear at the Assizes or Sessions, or to take sureties for any matter or cause, they. may take a recognisance : yea, wheresoever they have autho- rity given them to cause a man to do a thing, there it seems they have, incongruity, power given them to bind the party by recognisance to do it ; and if the party refuse to be bound, the im RECOGNISANCE. Of the Form of lluoogni- Hunce. Mnnnor of taking the Ke- cognitiunce. Justice may send liim to gool. But he can take no rocoKiij. lance, but only of such mntters as concern his office, and il he do, it seems to he void. Every ohhgotion and recognisance taken by Justices of the Peace, must be made to our Lord tlu King^ on pain of imprisonment of any person that shall take it otherwise. It must also contain the name, place of abode, and trade or calling, both of principal and sureties, and the sums in which they are bound. And it is most commonly subject lo a condition^ which is either indorsed or underwritten, or con- tained within the body of it, upon the performanoe of which, the recognisance shall be* void. Id. 6 — 7. mi»i>/ When the parties are to enter into recognisance, call them by their names thus ; ** you A. B. acknotdedge to owe to otir Sovereign Lord the King^ the sum of , and you C. JJ. acknowledge to owe to our Sovereign Lord liie King the sum of — — , to be levied on your respective goods and chattels^ landu and tenements^ for the use of our said Lord the King, his hf.in and successors, if default shall be made in the condition folloie- ing ; that is to say, if you the said *i. H. shall make defauh in appearing at ^c. But the parties need not sign it. And it is usual for the Justices to mark at the foot of the examina- tion, — A. B. in JE40 to appear, &c ; and from such short note make out a record afterward. Yet the recognisance is ii matter of record presently, so soon as it is taken and ackiiow ledged, although it be not made up. When it is i lade up, If the Justice shall only subscribe his name, without his seal to it, this is well enough ; and that may be in either of these sorts, — Acknowledged before me, Ji. M., or only to subscribe his name thus, — A. M. Id. 7-8. '.h ou*- jm Note. Where parties are bound over to the Session, the Justices should certify the recognisances to that Court, but in felonies, and in other cases where persons are bound over to the Supreme Court, the Justices must certify such recog- nisances there, at the first term of each Court respectively. The Judges of Oyer and Terminer are the proper Judges whether recognisances ought to be estreated or spared. And by parity of reason, it should seem, that the Justices of the F*eace in the Quarter Sessions should have the !ike power in respect of offences cognisable there. 5 Bum's, 8. '{ttfeii U'j4rt*;i#(?Hv5 , Recognisance loith Sureties. ■ . : ■ ■ -r I County of > Be it remembered, that on the — day of S in the year of the i eign of our Lord William the Fourth, of the United Kingdom of Great Britain IIECOUNISANCK. 10.) ognisance is a and IrelHiui, Kinc, Defuniior of the Fnitli, A. (). of , in tha said county of , yeomnn, mul A. S., of , in titu county nforesnid, yaoinan, ond B. S. of , in llm comity aforesaid, labourer, personally ciuiie bcforo me A. M., Es- quire, one of the Justices of our Lord the Kiuf;, assigned to keep the peace in the snid county, nnd ncknoulod^cd them- selves to owe to our snid Lord tlie King ; thnt is to sny, thu said A. O. the sum of twenty pounds, and tiie snid A. S. and B. S., each the sum often pounds, separately, and of g;ood and lawful money of the Province of Nova Scoliu, to he niiuli; and levied of their goods and chattels, lands and tenements, respectively, to the use of our suid Lord the King, his heirs and successors, if the said A. O. shall muko default in the con- dition hereunder written. ,,.. , , , . . ,. Acknowledged before me, au; r, i -i h 5,^^,1 I't »' 1 fr.vJ.Ui»< v!»( (»t >T» A. M. .•^f} 14-'.-* i'\:[' i'iU yt «?.' :.>.0(\ The condition of the above written recognisance \» such, that if (he above bound A. O. shall personally appear huforo the Justices of our Sovereign Lord the King, assigned to keep the peace within the said county, and likewise to hear and de- termine divers felonies, trespasses, and other misdemeanors in the said county committed, at the next General Sessions of the peace, [or before the Justices of His Majesty's Supreme Court for the Province of Nova Scotia, nt the next term of the said Court,] to be holden in and fur the said county, then and there to answer to our said Lord the King, for and concern- ing the [here state the offence charged against the party ^\ with which said offence the said A. 0. stands charged hcforo ine the said Justice, and to do and receive what shall by the Court be then and there enjoined him, and shall not depart the Court without licence, then the above written recognicancc shall be void. Recognisance to prefer a Bill of Indictment and give Evidence. '^ittJf* *-j^ai ; County of ] Be it Remembered, that on the — day of in the year of tho reign of our Lord William the Fourth, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, A. L of , in the said county, yeoman, personally came before me A. M., Esquire, one of the Justices of our said Lord the King assigned to keep the peace in the said county, and acknowledged him- self to owe to our said Lord the King, the sum of pounds, ofgood and lawful money of the Province of Nova Scotia, to ■I !^ hw i''i 401. IIK( OGNISANCE. I)u inuile aixl iuvied ul'iiis goods :uid chaltels, lands and tene- ments, to the use of our said Loid the King, his heirs and successors, if he the said A.I. shall Tail in the condition here- under written. Acknowledged before mo, »^t #• •>i^;i^ ^vt\«l^^lrt -^^wj! , /ii;.} The condition of the above written recognisance is sucli, that whereas one A. ()., late of- , was this present dav brought before the Justice above mentioned, by the above bounden A.' f., and was by him charged with the felonious tak- ing and carrying away three silver spoons, of the goods of hitn the said A. I., and thereupon was committed by the said Jus- tice, to the common gaol in and for the said county^ if ther«3- fore he the said A. I. shall and do, at the next term of the Su- preme Court to be holden in and for the said county, prefer, or cause to be preferred, one bill of indictment of the said felony, against the said A. O., and shall then also give evidence there concerning the sanie, as well to the jurors that shall then eii- (juire of the said felony, as also to them that shall pass upon the trial of the said A. O., that then the said recognizance to be void, or else to stand in full force for the King. County of Recognisance to give Evidence* ^=.^1 kv Be it Remembered, that on the — day of -, in the year of the reign of our Sove- reign Lord William the Fourth, of the United Kingdom of iireat Britain and Ireland, King, Defender of the Faith, A. VV., of , in the said county, yeoman, did come before me, A. M., Esquire, one of the Justices of our said Lord tlie King, assigned to keep the peace of the said county, and ac- knowledged himself to owe to our said Lord the King, the sum of ten pounds, of lawful money of the Province of Nova Scotia, to be made and levied of his goods and chattels, lands and tenements, to the use of our said Lord the King, his heirs and successors, if he the said A. W. shall fail in the condition hereunder written. ^ .. .. , ,, Acknowledged before me, - 5 -i r.4 -^. - The condition of the above written recognisance is such, that if the above bounden A. W. shall personally appear at the next term of His Mjijesiy's Supreme Court, to be iiolden at , in and for the said comity, and then and there givp such evidence as he knoweih, upon a bill of indiclment to l)« UECOGNISANCK. 405 exliibitcd by A. I., of against A. O., lale of — three silver spoons, , yeoman, to ihe (J rand Jury, liiboiirer, ibr feloniously stealing ibe property of the said A. I. ; and in case the said bill be found a true bill, then if the said A. W. shall then and there give evidence to the Jurors that shall |)as!i on the trial of the said A. O., upon the said bill of indictment, and not depart thence without leave of the Court, then this re- cognisance to be void ; otherwise to remain in its full force. If the parties are bound over to the Sessions, the recog- nisances must of course be filled up accordingly. Where the record of the recognisance is recpiired on an Estreat, or for any other purpose, it must be made up according to the fore- going form, in each case respectively. It will, however, be sufficient in the first instance to send into the Court Minutes of the Recognisances, after the following F^orms : — r ^m *,<.(*• Mfii v.\.vi,iOf the Party charged. y^^.iiuti:^t; County of J The King, ,;«,.«.; ^•h..-i^h-<- - A, 0., for — (state the offence.) Thk said A. 0., bound in £ , and A. S., and B. S., of , yeomen, bound as sureties in £ each, condition- ed for the appearance of the said A. O., at the next term of ;iv > for said county, to answer, &c. the 1837. Before me, [or us,] day of - A. M., J. P. Of the Prosecutor, or Witness. Coiinly of I s ^.y- A. I., of- at the next term of the — day of Before me, The King, if, A. O., for — '■ , yeoman, is bound in £10, to appear, &.c. — for said county, to prosecute, &c 1837. '■■^■-i^-''^--^ ■ A. M., J. P. ,n '.f i., i.-> REGISTRY OF DEEDS. i By the 4 W. 4, c. 14. 4 V. 266, Persons who have executed deeds of conveyance of lands within this Province, may appear before any Justice of the Peace, and acknowledge Dirt'ctioiio. 106 REGISTRY OF DEEDS. upon oath before him, their signing, seah'ng, and delivering such deeds ; and such Justice shall make and set down in writing, a memorandum signed with his hand upon the deed of conveyance, stating the day and year when the said acknow- ledgment and oath were taken ; Whereupon the Registrar of deeds, in the place where such deed of conveyance is required to be registered, shall register the same, together with the said memorandum of acknowledgement, in the same manner as deeds are by law directed to be registered. Sec. 2. The Registrar of deeds, or any of his deputies, may register any deed of conveyance, as heretofore, on the oath of one of the subscribing witnesses to the same, or upon a certificate on the deed, written and signed by a Justice of (he Peace, that one of the subscribing witnesses to such deed had personally appeared before the said Justice, aiid had made oath that the said deed had been duly executed by the party or parties by whom the same purported to be executed, in the presence of such subscribing witness ; and such certificate siiall express therein the day and year when such witness appeared and made oath to the execution of such deed, and such certifi- cate shall also be registered. Sec. 3. There shall be paid to the Justices taking the aforesaid acknowledgment, and making the said memoraiidum (hereof, or granting the said certificate, the fee of one shilling, and no more. PerpelnaL < v» * . II J 'ii4„ !. I; ^.'^\V!i •>; ■! REPLEVIN, see,— TRESPASSES. <( '*' RESCUE. s Rescue, signifies a forcible setting at liberty, against law, a person arrested by the process or course of law. It seems (hat it is necessary, that the rescuer should have knowledge that the person is under arrest for a criminal offence, if he be in the custody of a private person ; but if he be in the custo- dy of an ofHcer, there, at his peril, he is to take notice of it. A hindrance of a person to be arrested that has committed felony, is a misdemeanor, but no felony ; but if the party be arrested, and then rescued, if the arrest were for felony, the rescuer is a felon, if for treason, a traitor, if for trespass, fineable. 5 JSvrn's, 10. •''>•♦! ^' viV.! :» . •!<: >^I ■ (407) :*:«'':**t;* REVENUE. , \unr^»>m. n^\ *%• fiDE' Waiters. By the 4 W. 4, c. 48, § 23. 4 V. 312, If the mas- ter or owner of the ship, in which goods are entered for ex- portation as aforesaid, shall unnecessarily delay unlading the part or parts of her cargo entered to be landed, or shall, after the unlading thereof, delay for a space longer than ten days, proceeding on her voyage and departing from the Province, with the goods so to be exported, the said master or owner shall pay each and every day to the tide waiter employed to attend such vessel, during duch delay, the daily pay establish- ed for a tide waiter to receive from the Province, when on duty ; and on refusal, it shall be lawful for such tide waiter to recover the same in a summary way, uefore one Justice of the Peace for the county or place within which such tide waiter shall have been so employed. A^V" •MH *s IT. SMUGGLINiGr. .(■■• 'A By , W. 4, c. 50. 4 V. 320, All goods, and all ships, vess ' , and boats, and all carriages, and ail cattle, liable to forfeiture under any Act, relating to the Colonial revenue, shall and may be sei/.ed and secured by any officer of the Co- lonial revenue, or by any person employed for that purpose, with the concurrence of the Board of Revenue, and also by any sheriff or deputy sheriff of any county or district, or by any Justice of the Peace therein, or by any person who in any placu distant more than ten miles from any office of a Collector of Impost, shall by the warrant of any Justice of the Peace, granted upon information made on oath before him of any such forfeiture, be appointed to seize and secure any boats, car- riages, or cattle liable to forfeiture, and every person who shall in any way hinder, oppose, molest, or obstruct any officer of the Colonial revenue, or any person so employed as aforesaid, or any such sheriff, deputy sheriff. Justice of the Peace, or other person appointed by any Justice, in manner aforesaid, or any person or persons acting in their aid or assistance, shall for every such offence forfeit the sum of one hundred pounds. Sec. 5. It shall be lawful for any officer of the Colonial revenue to enter in the day time, into any house, shop, cellar, or other building whatsoever, wherein such officer shall have reasonable cause to suspect or believe any goods to be, or to be concealed or deposited, which are liable to forfeiture under 52 By whom Goods, &r. liable to for- feiture may be seized. Entering Hou- ses, &c. to search for Smuggled Goods. U f% fe^' m HlM 408 REVENUE. Assaulting or obstructing Officers. Prosecutions against Smug- gled Gnudii, FieforeJustices ■> j' any Act relating to the Colonial revenue, provided, that before such entry liiade, information on oath shall be given to some one Justice of the Peace, for the place where such house, shop, cellar, or other building is situate, that such officer has reason- able cause to suspect and believe, that goods liable to forfeit- ure as aforesaid, are deposited or concealed therein ; and im- mediately on such information being laid or given, such Justice shall, and he is hereby enjoined and authorised, forthwith, but at some time between sun-rising and sun-setting, to go with such officer to such house, shop, cellar, or other building, and then and there to enter with such officer, or to authorise him to enter and search for such goods, if the doors be open, but if the doors be fastened, and admission denied, then, after first demanding to be admitted, and declaring the purpose for which such entry is demanded, it shall be lawful for such Justice, and he is hereby required, to direct and order such officer, forcibly to enter into such house, shop, cellar, or other building, and to search therein for any goods forfeited, and to seize all goods liable to forfeiture under any Act relating to the Colonial revenue. Sec. 8. If any person shall, by force or violence, as- sault, resist, molest, hinder, or obstruct any officer of the Co- lonial revenue, or other person employed as aforesaid in the exercise of his office, or any person acting in his said aid or assistance, such person, being thereof convicted, shall be adjudged guilty of a misdemeanor, and shall be proceeded against as such, and punished at the discretion of the Court before whom such person shall be tried. Sec. 10. Subject in all respects to the control and or- der of the Board of Revenue, vessels and goods seized shall be delivered into the possession of the Collector for the dis- trict, who shall cause appraisement thereof to be made, by three competent persons on oath, and if on such appraisement, made and signed by the appraisers, it shall appear, that any goods, or any cattle, or carriages, used in the removal thereof, which have been seized, is, or are not, of the full and reasonable value of forty pounds, then and in every such case, but not otherwise, nor for any ship seized, an information in writing may, if the party who made the seizure think proper so to proceed, be exhibited in the name of such Collector, before any two Justices of the Peace, resident in the district of such Collector, charging the said goods or other thing seized, to be forfeited under some particular Section or Sections in the infor- mation to be referred to, of the Act under which the seizure is made, and praying the condemnation thereof ; and upon such information being exhibited to the said Justices, they shall, REVENUE. 409 under iheir liaiuls and seals, grant a summons, requiring all persons claiming or having any interest in the goods or things seized, to appear at the place, diiy and hour, in such summons to be specified, there to claim such goods, and answer the in- formatioi , otherwise the goods will be condemned ; and a copy of such summons shall, at least eight clear days before the time of appearance, be served upon the person from whose possession the goods were taken, or shall be left at, or affixed openly, to the house, building, or place, or the ship, vessel, or boat, if there remaining, from which the goods were taken ; or at two or more public places nearest to the place of seizure ; and if any party shall appear to answer such information, the said Justices shall hear and determine the same, and acquit or . . \ condemn the goods or things, as the right may be ; but if no person appear, judgment of condemnation shall be given, and the Justices shall issue a warrant to the Collector, requiring and authorising him to sell the goods seized, by public auction^ after such notice of sale as shall be appointed by the warrant, and after paying the expense of proceedings, to pay over one third part of the nett proceeds of the seizure, to the party who seized the goods condemned, another third part to the Over- seers of the poor of the town or place where the goods or things condemned shall be seized, for the benefit of the poor of such town or place, and the remainder, as the Board of Re- venue shall appoint. Sec. 11. If either the party prosecuting, or claimant. Appeal fmni be disatisfied with the judgment given on such information, he ^*''^'f'°" "' shall be entitled to appeal therefrom, to the Supreme Court, at its next sitting in the county or district for which the collector is appointed, and such appeal shall be allowed, upon sufficient security being given to the satisfaction of the said Justices, by bond, to abide the decision of the said Supreme Court ; and if the appeal be by the claimant, the security shall be given in treble the appraised value of the goods, and the proceedings shall be sent to such Court, and the said Court shall, upon such appeal, hear and determine the same in a summary manner, and confirm or reverse the judgment of the magistrates, and with or without costs, as to such Court shall seem fit ; and if there be judgment of condemnation, shall order the sale as aforesaid. Sec. 12. If any goods, or any ship or vessel, shall be Delivering seized as forfeited under any Act relating to the Colonial reve- ^" Security nue. It shall be lawful for the Judge or Judges ol any Court s,,ls seized. having jurisdiction, to try and determine such seizures, with the consent of the collector of impost, to order the delivery ,,., .. , thereof, on security by bond with two sufficient sureties, to be '■^■^'1:1^. •i :| ! f* li'r •! ;■ ;il- : 410 REVENUE. Entering and Exaiiiining Vessels and BouU. SeizingGooda, Vessels, &c. IN'iialty for obstructing Orticpis. first approved of by such collector, to answer double the value of the same, in case of condemnation ; and such bond shall be taken to the use of His Majesty, in the name of the collector of impost, in whose custody the goods, or the ship or vessel, may be lodged ; and such bond shall be delivered and kept in the custody of such collector ; and in case the goods, or the ship or vessel, shall be condemned, the value thereof shall be paid into the hands of such collector, who shall thereupon cancel such bond, and all the provisions of this clause shall ex- tend to prosecutions before two magistrates as aforesaid. tTinnUttL •^ut;^o*M\-.v' .-'n-.^i^'n.-y ..ris . •■•,..u jk , - By the 6 W. 4, c. 8, Sess 183G, it is enacted,— That it shall be lawful for the officers of His Majesty's Customs, the officers of Impost and Excise, the sherifi's and magistrates throughout this Province, and any person holding a commissio:) for that purpose from the Lieutenant Governor, to go on board any vessel, or boat, within any port, bay, creek, or harbour in this Province, and also to go on board of any vessel or buat hovering within three marine miles of any of the coasts, bays, creeks, or harbours thereof ; and in either case freely to stay on board such vessel or boat, as long as she shall r^ main with- in such port or distance ; and if any such vessel or boat be bound elsewhere; and shall continue so hovering for twenty- four hours, after the master shall have been required to de- part, it shall be lawful for any of the above enumerated officers, or person, to bring such vessel or boat into port ; and to search and examine her cargo, and to examine the master upon oath, touching the cargo and voyage ; and if there be any goods on board prohibited to be imported into this Piovince, such vessel or boat, and the cargo laden on board thereof, shall be forfeited ; and if the said vessel or boat shall be fo- reign, and not navigated according to the laws of Great Britain and Ireland, and shall have been found fi::;hing or preparing to fish, or to have been fishing within such dis- tance of such coasts, bays, creeks, or harbours of this Pro- vince, such vessel or boat, and their respective cargoes, shall be forfeited ; and if the master or person in command thereof, shall not truly answer the questions which shall be demanded of him in such examination, he shall foifeit the sum of one hundred pounds. Sec. 2. All goods, ships, vessels, and boats, liable to forfeiture under this Act, shall and may be seized and secured by any such officer of the Customs, officer of Impost and Ex- cise, Sheriffs, Magistrates, or other person holding such com- mission as aforesaid ; and every person who shall in any way oppose, molest, or obstruct any such officers, sheriffs, ma- I ' REVENUE. 411 gistrates, or other persons aforesoid, in the exercise of his office, or shall in any way oppose, molest, or obstruct any person acting in their aid or assistance, shall for every such offence forfeit two hundred pounds, w;^ &mVii*''M» ,ii)Ot{uii ju Sec. 3. All goods, ships, vessels, and boats, which shall be seized as being liable to forfeiture under this Act, shall be forthwith delivered into the custody of the Collectok and Comptroller of the Customs, at the Custom House next to the place where the same were seized. v* See's. 11, 12 & 13. No action shall be commenced against any officer as aforesaid, magistrate, or other person au- thorised to seize as aforesaid, for any thing done in the exer- cise of his office, until one calender month after notice in wri- ting of such action shall have been delivered to him, or left at his usual place of abode ; and every such action shall be brought within three calender months after the cause thereof ; and such officer, magistrate, or other person aforesaid, may within one calender month after such notice, tender amends to the party complaining, or his agent, and may plead such tender in bar to any action ; and if the Jury shall find the amends sufficient, they shall give a verdict for the defendant. ' ' ^ '' Sec. 15. If the Judge or Court before whom any such action shall be tried, shall certify upon the record, that the de- fendant or defendants in such action acted upon probable cause, then the plaintiff' shall not be entitled to more than two-pence damages, nor to any costs of suit. Sec. 18. This Act shall not go into force, or be of any eflTect, until His Majesty's assent shall be signified thereto, and an order made by His Majesty in Council, that the clauses and provisions of this Act shall be the rules, regulations, and re- strictions respecting the fisheries on the coasts, bays, creeks, or harbours of the Province of Nova ScoLia. Jlssented to. iJ.'i.i i) I Iwsi^i i vv* ,, )i:i\l -i M, v^tfUr ,rtj ,!:n<*i»i) •••:'; Custody of (loods and VcHsels sfizcd Actions a- trniiiHtOliicerii Certificate of probate cause. RIDING DISORDERLY. By the 4 G. 4, c. 23. 3 V. 166, " It shall not be law- ful for any person to ride at full speed, or gallop any horse, mare, gelding, mule, or ass, on any street or public highway in any of the towns within this Province. Every person of- fending against this regulation, shall upon conviction on the oath of one credible witness, before any one Justice of the Peace, forfeit and pay for each and every offence, the sum of ten shillings, and in case of refusal or neglect to pay, the same shall be levied bv warrant of distress on the goods and chattels 4\2 RIDING DISORDERLY. .•n of such offender, and for want thereof he shall be comuiiitcd by such Justice to the county gaol, for a period not exceeding forty-eight hours. All prosecutions tinder the Act, shall be commenced in forty-eight hours after the committing of the of- fence ; and all monies arising from fines under the Act, shall be paid into the hands of the Treasurer of the county, and be applied to the repair of highways in such county. Temporary. For directions with regard to prosecutions for the olTeiiro mentioned in the foregoing Act, and lor the requisite Forms, see respectively, Titles, — Information ; Summons ; Convic- tion ; Distress ; Commitment. L'tJj*!"' ; 'M h (v. Itii I'.i.i r. !I. ■m- RIOT. What is a Riot. How, AND By WHOM v\'!:M>V!i!,>; RESTRAINED. THE SAME MAT BE "I . ? 'Mic>.;i lyihLi ym:)': -, • n. ' ./ i<.ini} •■-I! 'v.M}. i' ,, ,?')■•! vr-'ff»M'>tf «• I. What is a Riot, ii .'" f ■.•.■.'>* ^ .'.Jj' tyJi'if.t i»- lii^*." •! 'i,; . ti iiiiil..' I'll I!. .11 ' < When three persons or more, shall assemble themselves together, with an intent mutually to assist one another against any who shall oppose them in the execution of some enterprise of a private nature, with force or violence, against the peace, or to the manifest terror of the people, whether the act in- tended were of itself lawful or unlawful, if they only meet to such a purpose or intent, although they shall after depart ol' their own accord, without doing any thing, this is an unlawful assembly. If after their first meeting they shall move forward towards the execution of any such act, whether ihey put their intended purpose in execution or not ; this, according to the general opinion, is a rout : And if they execute such a thing indeed, then it is a riot. 5 Burn's, 14. Three persons, or more.] There must be this number at least, for there can be no riot where there are no more per- sons than two. Women are punishable as rioters, but infants under the age of discretion are not persons within the aforesaid description, punishable as rioters. Id. 15. tjfif ,!>'-: Assemble themselves together.] It seems agreed, that if a numbeV of persons being met together at a fair, or market, or chur.'.h aisle, or on any other lawful and innocent occasion, happen on a sudden quarrel to fall together by the ears, lliey are not guilty of a riot, but of a sudden alFray only, of whicli HIOT. 113 !)'« Hi" -tfyi" ?■'.<' none are guilty, but those who actually ongai^o in it. Yet it h said, that if peisons innocently assembled together, i\o a(- terwards, upon a dispute happening to aiise among them, foini themselves into parties, with promises of mutual assistance, and then make an affray, they are guilty of a riot ; because upon their confederating together with an intention to break the peace, they may as properly be said to be assembled together for that purpose from the time of such confederacy, as if their first coming together had been on such a design. An assem- bly of a man's friends for the defence of his person against those who threaten to beat bin), if he go to such a market, Ulc. is unlawful ; for he who is in fear of such insults, must provide for his safety, by demanding the surety of the peace against the persons by whom he is threatened, and not make use of such violent methods. But an assembly of a man's friends, at his own house, for the defence of the possession of it, against such as threaten to make an unlawful entry, or for the defence of his person against such as threaten to beat him in his house, is indulged by law ; for a man's house is looked upon as his castle. He is not however to arm himself and assemble his friends in defence of his close. If any person encourages, or promotes, or takes part in riots, whether by words, signs, or gestures, or by wearing the badge or ensign of the rioters, he is himself to be considered a rioter, for in this case, all are principals. Id. 15 — 10. In the execution of some enterprise of a private nature.] It also seems agreed, that the injury or grievance complained of, and intended to be revenged or remedied by such an as- sembly, must relate to some private quarrel only ; as the in- closing of lands in which the inhabitants of a town claim a right of common, or gaining the possession of tenements, the title whereof is in dispute, or such like matters relating to the interests or disputes of particular persons, and no way con- cerning the public ; for wherever the intention of such an as- sembly is to redress public grievances, as to pull down enclo- sures in general, or reform religion, and the like, it is high treason. Id. 16. .ynmt'^A;i:^^f''. :jmtm n^ .'jm^-s^il f-fii^J^' u^ ■• r Jlgainst the peace., or to the terror of the people.] It seems to be clearly agreed, that in every riot there must be some such circumstances, either of actual force or violence, or at least of an apparent tendency thereto, as are naturally apt to strike a terror into the people ; as the shew of armour, threatening speeches, or turbulent gestures ; for every such offence must be laid to be done, to the terror of the people. And from hence it clearly follows, that assemblies at wakes, or other festival times, or meetings for exercise of common 4H UIOT. sports or divoraions, ns wrosilinc;, nrnl such lilcp, ore not riot- ous. But it ia not nccnssnry in order to eonstituto this crime, that personal violenco should have heon committed. From thn same ground aho, it seems to follow, that it is possible for three persons or more to assemble together with an intention to execute a wrongful net, and also actually to perform their intended enterprise, without being rioters ; as if a man assem- ble a suitable company, to carry away a piece of timber, or other thing, whereto he pretends a right, that cannot be car* ried without a great number, if the number be not more than are needful for such purpose, although another man hath better right to the thing so carried away, and that this act be wrong and unlawful ; yet it is of itself no riot, except there be withal threatening words used, or other disturbance of the peace. Much more may any person, in a peaceable manner, assemble a fit company to do any lawful thing, or to remove or cast down any common nuisance Thus, every private man, to whose house or land any nuisance shall be erected, made, or done, may in a peaceable manner assemble a fit company, with necessary tools, and may remove, pull, or cast down such nuisance, and that before any prejudice received thereby; and for that purpose, if need be, may also enter into another man's ground. Thus, a man erected a wear across a common river, where people have a common passage with their boats, and divers persons assembled with spades, crows of iron, and other things necessary to remove the said wear, and make a trench in his land who erected the wear, to turn the water, so as they might the better take up the said wear ; and they did remove the said nuisance ; this was holden neither any forci- ble entry, nor yet any riot. But in the cases aforesaid, if in removing any such nui- sance, the persons so assembled shall use any threatening words, (as to say they will do it, though they die for it, or such like words,) or shall use any other behaviour in appa- rent disturbance of the peace, then it seems to be a riot ; and therefore where there is cause to remove any such nuisance, or to do any like act, it is the safest, not to assemble any mul- titude of people, but only to send one or two persons, or if a greater number, yet no more than are needful, and only with fit tools, to remove, pull, or cast down the same ; and that such persons attend to their business only, without disturbance of the peace, or threatening speeches. Id. \6 — 17. Whether the act intended were of itself lawful or unlawful.] It hath been generally holden, that it is no way material, whe- ther the act intended to be done by such an assembly he of it- self lawful or unlawful ; from whence it follows, that if three RIOT. .'i III liii mlmv cuing hirnseir, because no single Justice is by tliis Statute made a judge of the said oftcncc. Id. 18. If a Justice acting as a Judge, by any Statute \vhatsoov(;i empowering him so to do, make n record upon iiis view of.) riot conunitted in his presence, such record shall not be trn- versed ; for the law gives such uncontrollable credit to all mat tors of record made by any Judge of record, as such, lliiit it will never admit of an averment against the truth thereof. /(/ ly. , m rM i\ M ' ,.!-. "ii ■X;' — m — (■ ■■'j^if.h''' i ^,'t • .vr!r'*r U HtUiit:irA< -m- i itJllsiiilf*! > U* !>-. / As to Fisheries in Rivers, see, Title,--FISHERIES. ROADS, see HIGHWAYS. ;il ■-^' o.jfo /^i t '^tl i»f^r*^)^':'t^>^'V \ >Mi^^''i^vn i©;^ .(vii 'jt-.ij y M!^V"«>«j<|f — ROBBERY. «"«>^^'*«m' There are two kinds of robbery ; — from the person, and from the house. It is the former of these that is treated of un- der this Title ; the latter, namely robbery from the house, be- longs to the Titles, — Larceny and Burglary. Robbery, is a felonious taking of money or goods, to any value, from the person of another, or in his presence, against his will, by violence, or putting him in fear. Felonious.] For to make it robbery, there must be a fel- onious intention, and so it ought to be laid in the indictment. Statute madt ant ; Exaiiii- ROBBERY. Takintf. ] The lakint; iiuisl bo a^ninsi ilie will of ilie owiiur, nnd to coiistitnto tlio crime of robbery, the property must bo taken IVoin the person, either by violence, or puttinp; liiin in fear ; either of these circumstances is sufHcient. But no sudden takini; of a thing, unawares, from the porKon, as by siiutching any thing from the head, or liund, is sufiicient, un- less some injury bo done to the person, or unless there be some previous struggle for the possession of the thing taken- Violence. | Thus, whcro the prisoner, while a lady was stepping into her carriage, snatched nt her diamond cnr-ring, unci separated it from her ear, by tearing the ear entirely through ; but there was no proof of the ear-ring over having been seen in his hand, and upon the lady's arrival at home, it was found among the curls of her hair ; the Judges, on a caso reserved, wero nil of opinion, that there was a sufficient taking from the person to constitute robbery. They thought that it wns suilicient, as the ear-ring was in the possession of the pri- soner, separate from the lady's person, though but for a mo- ment, and though he could not retain it, but lost it again the same instant. So where one was indicted for taking a gentle- man's sword from his side, clam et secrete, it was holden to be a robbery, because the gentleman observing that the pri- soner had laid hold of his sword, laid hold of it himself at the same time, and struggled for it. 5 Burn's, 69. Against the will.] It is of the essence of robbery, that the goods bo taken against the will of the owner, although the circumstance of putting in fear need not be strictly proved ; for if a man be knocked down without any previous warning, iind thereby rendered insensible, or if he manfully resist and be overpowered without being under any fear at all, it is not the less robbery on that account. Putting him in fear.'] Robbery may also be constituted by putting in fear, as well as by force, or perhaps in strictness it may be said that fear will supply the place of force. A co- lourable gift, which in truth was extorted by fear, amounts to a taking and robbery in law. The same rule holds, although tlie thing taken were not really within the original contempla- tion of the robber, nor the object of his pursuit at the time. As where a man assaulted a woman, with intent to commit a lapc, and she, without any demand from him, oflered him money, which he took and put into his pocket, but continued to treat her with violence, to effect his original purpose, till be was interrupted by the approach of another person. This was holden to be robbery. It is robbery, to extort money Irom a person by threatening to charge him with an unnalinal 'rime ; though he parted with his money only from fear for his fharaclcr, and from no other fear. 417 a Kt f 418 ROBBERY. m Where the prisoners threatened to bring a mob from Birmingham, (then in a state of riot and disturbance,) and burn the prosecutor's house down, if he did not give them money, which he did under fear of that threat, it was held to be robbery. But money extorted by threats of being sent to prison for a pretended debt, but without fear of any other per< sonal violence, has been holden to be duress and not robbery. If the property be not taken by actual violence, and the owner only deHver it in consequence of prior threats, such de- livery must be enforced by terror actually felt at the time, to constitute the crime ; otherwise there is neither actual nor con- structive violence in the taking, and consequently no robbery. It is not enough that the fear arise from menaces after the property has been taken by stealth. Such taking only amounts to simple larceny. 5 Burn^s, 70 to 76. ,! iti *And taking from his person.] Taking a thing in a man's presence, is, in law, a taking from his person. Thus, if one take or drive my cattle out of my pasture, in my presence, this is robbery, if he make an assault upon me, or put me in fear. Id. 76» !ioroi.^'iiiiksa^la;-«-- ■^•n ..■!• ■. .e,r' *u - • ': ;; ^l^"; „, rogues, &c., see— vagrants. SliB^' SABBATH, see— LORD'S DAY. ...j^:.. (419) l^&(fr k •(ihi.oii^twj^', SAL* ^^'i& ' '(ido-A'' Miy'-js .,fmv»)L Br the 3^ 0. 3, c. 4. IV. 29S, All salt exposed to tale in any part of the Province, shall be measured by the officers appointed for that purpose ; and such officers shall be sworn to the faithful discharge of their duty, and upon refusal to accept of the said office, or being guilty of any neglect or misbehaviour in the execution of the duties thereof, they shall severally forfeit and pay, for the use of the poor of the town in which they reside, a sum not exceeding three pounds, to be recovered before any two Justices of the Peace for the same county. All salt imported into the Province shall be subject to the foregoing regulation." Perpetual. By the 56 G. 3, c. 4. 2 V. ^00, made in addition to, and amendment of the before mentioned Act, it is enacted, ^' That all salt delivered from any ship or vessel to any truck- man, or any other person, without having been duly and regu- larly admeasured by the proper officer appointed by the Court of Sessions to survey the same, shall be forfeited, or the value thereof, by the seller thereof, to and for the use of the poor of the township. Sec. 6. Every measurer of salt who shall undertake to attend the admeasurement of the same from more than one vessel, at one and the same time, shall forfeit for every such offence forty shillings, to be recovered before any one Justice of the Peace, by warrant of distress, and to be applied for county purposes. Sec, 7. Such measurer shall receive two pence, for every hogshead of salt measured by him, to be paid by the seller of the same. Perpetual, In prosecutions before Justices, on either of the foregoing Statutes, the like proceedings must be observed as in similar cases already mentioned in this work, directions concerning which, with the requisite Forms, which may readily be made to serve, will be found under the respective Titles,— Informa- tion ; Summons ; Conviction ; Distress. f > ; 'ui- ...... ■ ...,• , ,,, .i ; SCHOOLS. By the 6 W. 4, c. 92, Sess. 1836. " Whenever a majority of the freeholders and inhabitants of any school dis- trict, rateable, or subject to be assessed as hereinafter men- tioned, who shall meet at a public meeting of such freeholders SCHOOLS. and inliabiiants, to be held after sufficient public notice to Lc given, at least twenty days previous to such meeting, by tiie trustees of such school district, in at least five public places in the same district, shall agree at such public meeting, to raise the several sums required to be raised and provided by them, under the provisions of this Act, or the Act hereby continued and amended, by an equal rate or assessment upon each person, according to his ability, they shall certify the same to the next General Sessions of the Peace for the county or district wherein such school district is situated, and the same shall be assessed at the same time, and in the same man- ner, and under and subject to the several regulations, and by the same means, course, and proceedings, as by any Acts of the General Assembly now in force, or hereafter to be enact- ed, are or may be provided, for levying rates for the support of the poor, upon each of the freeholders and inhabitants of such school district, in a rateable and equal proportion, ac- cording to his abihty, and shall be collected and paid over lo the trustee or trustees appointed by the Board of Commission- ers for such school district, for which such assessment was raised." Temporary,ji i.^i, i„ .u.i>v. n i'^iiUt^^u^ 'J'A .le: .:\: Directions. '' ^^*'^ ^® sufficient to obscrve here, that where proceed- ings are required to take place before a Justice for the reco- very of any rates assessed under the foregoing Act, such pro- ceedings must, as directed by the Act, be the same as for the recovery of poor rates ; and for which, with the requisite Forms, see Title, — Poor. ,iii 'J:i f-Mi ■ .!••:. .It ■if I '.• '. V jO'! tfr 'i.-t ;-.i. in.' SEAMEN (merchant.) <•>■« 'j^oj- ' .f'6iV Tl"iii* ■,'*:'i''rf *■ !: hhi .':}hi Schedule in this Act referred to. t V i. An Agreement, made pursuant to the directions of an Act of the General Assembly of Nova Scotia, passed in the sixth year of the reign of his Majesty King William the Fourth, between the master of the ship , of the port of , of the burthen of tons, and the several persons whose names are subscribed hereto. It is agreed by and on the part of the said persons, and they severally hereby engage to serve on board the said ship, in the several capacities, against their respective names ex- pressed, on a voyage from the port of r- to [here Uu intended voyage is to be described^ as nearly as can be done, and the places at which it is intended the ship shall touch, or \f that cannot be done^ the nature of the voyage in which she is to be employed] and back to the port of and the said crew further engage, to conduct themselves in an orderly, faithful, honest, careful, and sober manner, and to be at all times diligent in their respective duties and stations, and to be obedient to the lawful commands of the master, in every thing relating to the said ship, and the material:^, stores, and cargo thereof, whether on board such ships, in boats, or on shore. [Here may be inserted any other clause which tk parties may think proper to be introduced into the agreement, provided that the same be not contrary to, and inconsistent teilh this »ffct.] In consideration of which services to be duly, honestly, carefully, and faithfully performed, the said master doth hereby promise and agree to pay to the said crew, by % or be deprived which seamen ship, the mas- t made contra- is Act, or any rego the right in the case of containing any y seaman sign- y be necessary tain a claim on >on the seaman 1 in any suit or vant of the pro- deposited copy ice to produce themselves in an manner, and to es and stations, f the master, in naterials, stores, ps, in boats, or claViSt which tht the agreement, inconaislent t«'ft les to be duly, the said master e said crew, by SEAMEN., (merchant.) way of compensation or wages, the amount against their names respectively expressed. In witness whereof, the said parties have hereto subscribed their names, on the days against theit' respective signatures mentioned, miyi,:^mmi'mm^y>>itrram . f^m. A ■■!•• ■■vAr tl!!flfj'2* * I , * - t " ' M ^'fli..: !#» -^^<^*^i:;|#f^-'J •j/'V -ft} ' ^'j' f '( f>**'^ t ■-Mi.*-' , ^lrf- ictiii ou u«:;...;. f'-t.:. 8 S a o 5 1 fj^.jj'jrmv ii;.m»i -.i**' 'htivi^pstjo^iiJ?' iiy«. '!**fc| >'»''' -joa' I 111' II f ^Mi>^i^ — — .^ tesT • o a o -^ 8 5 g § 5 S &. S § s M < C in cr 3 «. f* ^ .a -»•/♦! ■i»fOsr 423 ;.tii*/'«t»«"tT "HijiAilniVt V'Sl-ul' >1 '■1 ■l.'l! ■ ■.■! t E lii w ^«r'' I 424 SEAMEN, (merchant.) F.nteriiig tiit) Niivy. Kefusing to Join the Ship ni'ter eigniiig Agreeinont. Sec. 23. Nothing in this Act, or in any agreement, shall prevent any seaman, or person belonging to any merchant ship, from entering into His Majesty's Navy, nor shall such entry be deemed a desertion from such ship, or incur any for- feiture of wages, clothes, or effects, or other thing ; and no clause or matter shall be introduced into any ship's articles, or agreement, by which any penalty or forfeiture is agreed to be incurred by a seaman, upon his entry into His Majesty's Service. |f'- n. Absence and Desertion. ' j By Sec. 6 of the said Act, of the 6 W. 4, *' In case a seaman shall at any time, after having signed an agreement, as herein before mentioned, neglect or refuse to join the ship on board of which he shall have engaged to serve, or shall refuse to proceed to sea in her, or shall absent himself therefrom without leave, it shall be lawful for any Justice of the Peace in any part of this Province, near to the place where such ship shall happen to be, upon complaint of the fact, made upon oath by the master, mate, or owner thereof, and such Justice is hereby required, by his warrant, to cause such seaman to be apprehended and brought before him, and in case such seaman shall not give a reason to the satisfaction of such Justice, for his neglect, refusal, or absence, as the case may be, upon d e proof of such neglect, refusal, or ab- sence, it shall be lawful for any such Justice, to commit such seaman to the coimty or district gaol, or to the house of correc- tion, there to be kept to hard labour, for a period not exceeding thirty days. Provided always, that in case such seaman, on being apprehended and brought before the said Justice, shall consent to join the ship, and proceed on the voyage for which he shall have agreed, it shall be lawful for the said Justice, at the request of the master, instead of committing such seaman, to cause him to be conveyed on board the said ship, or to be delivered to the master, for the purpose of proceeding on the voyage ; and also to award to the master, such costs incurred in the apprehension of the seaman, as to such Justice shall seem reasonable, not exceeding in any case the sum of two pounds, exclusive of jail fees ; which shall be chargeable against, and may be abated from the wages to grow due to such seaman." Sec. 9. If any seaman, after having signed such agree- Ahsence from ment as aforesaid, or after the ship on board which he shall " ^' have agreed to serve, shall have left her first port of clearance, and before the period, for which he shall have agreed to serve, Forfeiture, on m SEAMEN, (merchant.) 4,25 shall be uoiniileted, shall wilHillyi and without Icuve, absent himself fioiii the ship, or otherwise froiu his duty, he shall, (in ail cases not of absolute desertion, or not treated as such by the roaster,) forfeit out of his wages, to the master or owner of such ship, the amount of two days' pay for every twenty- four hours of absence, and in a like proportion for any less period of time, or at the o])tion of the said master, the amount of such expenses as shall have been incurred in hiring a sub- stitute to perform his work ; and in case any seaman while he shall belong to the ship, shall without sufficient cause, neglect to perform such his duty as shall be reasonably required of him, by the master, or other person in command of the ship, he shall be subject to a like forfeiture for every such offence, and of every twenty-four hours continuance thereof ; and in case any such seaman, after having signed such agreement, or after the ship's arrival at her port of delivery, and before her cargo shall be discharged, shall quit the ship without a pre- vious discharge, or leave from the master thereof, he shall for- feit to the master or owner one month's pay out of his wages ; provided always, that no such forfeitures shall be incurred, un- less the fact of the seaman's temporary absence, neglect of duty, or quitting the ship, shall be duly entered or recorded in the ship's log-book ; which entry shall specify truly the hour of the day at which the same shall have occurred, and the pe- riod during which the seaman was absent, or neglected his duty, the truth of which entry it shall be incumbent on the owner or master, in all cases of dispute, to substantiate by the evidence of the mate, or some other credible witnesses." Sec. 11. Every seaman who shall absolutely deseri. the rorfeitmoH for ship to which he shall belong, shall forfeit to the owner or l^cseition. master thereof, all his clothes and eiiects, which he may leave on board, and all wages and emoluments to which he might otherwise be entitled, — provided the circumstances attending such desertion be entered in the log book, at the time, and certified by the signature of the master and mate, or other cre- dible witness ; and that an absence of a seaman from the ship, lor any time within the space of twenty-four hours immediately preceding the sailing of the ship, without permission from the master thereof, or lor any period, however short, under cir- cumstances plainly shewing that it was his intention not to re- turn thereto, shall be deemed an absolute desertion ; and in case any such desertion shall take place in pans beyond the seas, or out of this Province, and the master of the ship shall .^ • be under the necessity of engaging any seaman as a substitute lor the deserter, at a higher rate of wages than that stipulated in the agreement to be paid to the seaman deserting, the owner if w\ ■■ aw: 'i\ H' mn 426 SEAMEN, (mbrchant.) or master of the ship shall be entitled to recover from the de- serter, by summary proceeding, in the same manner as wages are by this Act made recoverable, any excess of wages which such owner or master shall pay to such substitute, beyond the amount which would have been payable to the deserter, in case he had duly performed his service pursuant to his agree- ment." :-.t. '..Ihl i n(;/fK;j3 ••'!■ ni. Wages. '' ^'-i <"i''l"'->'! "' f» lanbilitics of Sureties for •Scamun. Signnlurcs of Sureties, and actions against them. Sec. 7. Whenever any seaman who shall have received an advance in money, on his being shipped and signing tlic usual agreement, and for whom any person shall have become surety, and as such subscribed the agreement by this Act pre- scribed and required, shall neglect or refuse to proceed on liis voyage, such surety shall repay any advance made to such sea- man ; and if the master or owner of the ship shall bo compell- ed to procure another seaman, and thereby be put to any in- creased and additional expense, beyond the wages agreed to be paid to the seaman so neglecting or refusing to proceed on his voyage, the surety, in addition to paying the advance of money made to the seaman, shall also be obliged and required to pay, and shall pay any such additional expense incurred as aforesaid ; Provided^ the said additional expense do not ex- ceed in the whole, one half the sum of money so advanced to to such seaman, and which the surety is to return. Sec. 8. The signature of any party becoming such surety, subscribed to the agreement, opposite to the name of the sea- man for whom he shall become surety, in the proper column of such agreement, shall be sufficient, without any other agree- ment or contract, to render the said surety liabie to the respon- sibilities, and for the payments herein before mentioned ; and if any surety shall neglect or refuse to fulfil such responsibilities, or to make such payments as aforesaid, when thereto liable, it shall be lawful to sue such surety, in like manner and before the same Justice, Justices, or Court, as debts of the like amount are or may by law be recoverable ; and on production of such agreement, and on proof of the same being properly executed by the seaman, as herein before required, and on proof of the signature and execution thereof by the surety, and also on proof of the neglect or refusal of the seaman to pro- ceed to sea, on the voyage in such agreement mentioned, judgment shall be given against such surety, as well for the advance paid to siicli seaman, as for any such additional ex- pense as may have been incurred to the extent herein before mentioned, together with costs as allowed by law in cases of debt of the like amount. 5t Uv^i.:uur>n't- SEAMEN, (merchant.) Sec. 14. Every payment of wages to a seaman shall be valid in law, notwithstanding any bill of sale or assignment which may have been made by any such seaman, of such wages, or of any attachment or incumbrance thereon ; and no assignment or sale of wages, made prior to the earning thereof, nor any power of attorney expressed to be irrevocable for th& receipt of any such wages, shall be valid or binding upon the party making the same. •. ruii By the before mentioned Act of the 7 W. 4, c. 66, the following enactments are made with regard to wages : Sec. 1. Repeals the thirteenth, sixteenth, seventeenth, and eighteenth sections of the aforesaid Act of the 6 W. 4, c. 48. [These sections relate exclusively to the payment and recovery of wages.] Sec. 2. The master or owner of every ship, shall pay to every seaman entering into such contract as is provided in and by the said Act (of the 6 W. 4, c. 48,) the wages due to such seaman, if the same shall be demanded, within twenty four hours after the seaman shall have been discharged by the master or owner, or the cargo shall have been delivered ; and in case any master or owner shall neglect or refuse to make payrnent in manner aforesaid, he shall for every neglect or re- fusal, forfeit and pay to the seaman, the amount of two days' pay, for each day, not exceeding ten days, during which pay- ment shall, without sufficient cause, be delayed beyond the pe- riod at which such wages are hereby required to be paid as aforesaid ; for the recovery of which forfeiture, the seaman shall have the same remedies as he is by law entitled to, for the recovery of his wages ; Provided always, that nothing in this clause contained, shall extend to the cases of ships employed on voyages for which seamen, by the terms of their agreement, are compensated by shares in the profits of the adventure. Sec. 3. In all cases of wages not exceeding twenty pounds, which shall be due and payable to a seaman for his services in any ship as aforesaid, it shall be lawful for any two Justices of the Peace in any part of this Province, near to the place where the ship shall have ended her voyage, cleared at the Custom House, or discharged her cargo, or near to the place where the master or owner upon whom respectively the claim is made, shall be or reside, upon complaint on oath to be made to such Justices, by any such seaman, or on his behalf, declaring ihe amount of wages due to him as aforesaid, and that the same have been demanded and refused to be paid by such master or owner, to issue a writ of attachment, in the form annexed to this Act, and to cause the same to be levied on the goods and chattels of such master or owner, and for want thereof, on the 427 A(4);< nf On Writ of Summon*,— two shillings. •'» On Writ of Attachment and Aflidavit, — three shillings. On Judgment, for both Justices, — three shillings. On Warrant, — one shilling.' nfo^^i m uwou mi rcr/j cuh On Subpouna,— one shilling. -yicrKiii.jR •! w Iryjii* »: in sfy For attending Trial, if the sum awarded be less than ten pounds, — Eleven shillings and eight pence. If ten pounds or upwards,~--ono pound three shillings and four pence. i inmQ\iy.iUif> .im i a • SheriJPs Fees. ^ - •' ■ ... .,..j. yji For the service of every Writ of Summons, — ono shilling and sixpence. '-Wi irxr-nniin. uMUbi^ivf.i i;i »&» -uuc For levying under eveify Writ of Attachrtient arid Service, —six shillings and sixpence. For Attachment Bond, — three shillings, vx^i*.} t - ■ i.i... . Poundage on all monies received on Warrants, — one shil- ling in the pound. ,/;.::> .:iw„.Uw; ,.,.,.». For serving Warrant, — five shillings. 3 niisj ^s4 r;t :,c» .'in\ Travel per mile, — threepence. «rp „:.'».. K.t li. For the custody of any ship,' or the tackle or apparel thereof,— five shillings per day.' \»»-5 ' V. Sickness of Seamen. /\ By Sec. 19, of the same Act of the C W. 4, '* Every ship belonging to, and sailing from this Province, to any place out of the same, shall have and keep constantly on board the same, a sufHcient supply of medicines, suitable to accidents and diseases arising on sea voyages, which shall be renewed from time to time as shall be requisite, and in case any default shall be made in providing or keeping supplied such medicines, or in case any of the seamen shall receive any hurt or injury in the service of the ship, the expense of providing the necessary surgical and medical advice and attendance, and medicines, which the seaman shall stand in need of, until he shall have been cured, or shall have been brought back to some part of this Province, shall be borne and defrayed by the owner and master of the ship, or one of them, without any deduction what- ever on that account from the seaman's wages." • ' VI. DiSCHAROINO AND LEAVING SeAMEN ABROAD. jLiiiUfi boJn'jjiu*. •;( Sec 20 of the said last mentioned Act. " No master of any ship, belonging to, or owned in this Province, shall dis- charge any person of his crew, whether British subject, or fo- reigner, at any port or place in any of His Majesty's domi- nions out of this Province, without the previous sanction in writing of the Governor, Secretary, or other officer appointed in that behalf by the government there, or of the principal offi- cer of the Customs, or of two respectable merchants resident at, or nearest to the port or place where such ship shall be ; nor shall he discharge any such person at any other place out of this Province, without the like previous sanction in writing of His Majesty's Minister, Consul, or Vice Consul there, or of two respectable merchants there, all which said several func- tionaries and merchants, are hereby authorised, in a summary way, to enquire into the grounds of any such proposed dis- charge, by examination on oath,* and thereupon to grant or re- fuse such sanction, according to their discretion, having regard, to the objects of this Act. .')5 !■ fe m 4^2 i\i% SEAMEN. (.MERCHANT.) Sec. 21. No puch master shall be at liberty to leave behind at any place abroad, either on shore, or at sea, any per- son of his crew, as aforesaid, on the plea of such person not being in a condition to proceed on the voyage, or having de- serted from the ship, or otherwise disappeared, unless upon a previous certificate in writing of one ol' such functionaries oi mercnants as aforesaid, if there be any such at or within a reason- able distance from the place where the ship shall then be, if there be lime to procure the same, certifying that such person is not in such condition, or has deserted or disappeared, and cannot be brought ; and all such functionaries and merchants as n foresaid are hereby authorised, on the application of any sucn master, to enquire, by examination on oath, into the cir- cumstances, and to give or refuse such certificate, according to the result of such examination." VII. Penalties and Forfeitures. n- JMauncr of as- certaiiiin<; for- te it urns l>y dL-.inian. Sec. 4, of the same Act. " If any master of any such sliiii as aforesaid, shall carry out to sea any seaman, (apprentices ex- cepted,) without having first entered into such agreement as is hereby rc(|uired, he shall for every such oflence forfeit and pay the sum of five pounds, for, or in respect of evoiy such sea man he shall so carry out, contrary to this Act ; and if any master shall neglect to cause the agreement to be distincliy read over to each such seaman, as by this Act he is enjoined, he shall for every such neglect forfeit and pay the sum of five pounds ; and if any master shall neglect to deposit with the Collector of the Customs, a copy of the agreement hereby re- quired 10 be made and deposited as aforesaid, or shall wilfully deposit a false copy of any such agreement, he shall, for every such neglect or offence, forfeit and pay the sum of five pounds.' Sec. 10. In all cases where the seaman shall have con- tracted for wages by the voyage, or by the ran, and not byllic month or other stated period of time, the amount of forfeitures to be incurred by seamen under this Act, shall bo ascertained in manner following, that is to say : if the whole lime spent in the voyage agreed upon shall exceed one calender month, the forfeiture of one month's pay, expressed in this Act, s':yll bo accounted and taken to be a forfeiture of a ,3um of money bear- ing the same proportion to the whole wages, as a calender month shall bear to the whole lime spent in the voyage ; and in like manner, a forfeiture of two day's pay, or less, shall be accountjd and taken to be a forfeiture of the sum, bearing the same proportion to the whole wages, as the same period ot time shall bear to the whole time spent in the voyage ; and li ipplying ppn- SEAMEN, (merchant.) 433 the whole time spent in the voyage shall not exceed one calen- der month, the forfeiture of one month's pay shall be account- ed and taken to be a forfeiture of the whole wages contracted for ; and if such time shall not exceed two days, the forfeiture of two days' pay shall be accounted and taken to be a forfeiture of the whole wages contracted for, and the master is hereby authorised to abate the amount of all the forfeitures herein be- fore enacted, out of the wages of any seaman incurring the same." Sec. 15. " Upon the discharge of a seaman from the ship CeuiiiciUc to in which he shall have served, he shall be entitled to receive ^^(^nman on his from the master a certificate of his service and discharge, spe- ' ''■'^^"'''g''' cifying the period of service, and the time and place of the discharge of such seaman ; which ccriificatc shall bo signed by the master ; and if any master shall refuse to give such cer- tificate to any such seaman, without having reasonable cause for his refusal, he shall, for every such ofTence, forfeit and pay to him the sum of five pounds." Sec. 26. All penalties and forfeitures imposed by this Mannoi nf Act, and for the recovery whereof no specific mode is herein <=«^t^»''"j; before provided, shall and may be recovered, with costs of suit, in manner following, that is to say, — all penalties and for- feitures not exceeding ten pounds, shall be recoverable at the suit of any person, by information and summary proceeding before any three Justices of the Peace, in any part of this Pro- vince, for the county where the offence shall be committed, or where the offender shall be, which Justices shall have full power to levy the amount of any such penalty or forfeiture, and costs, by distress and sale of the offender's goods, or by com- mimicnt of the offender, for the non-payment of the amount ; and all penalties and forfeitures exceeding ten pounds, shall and may be recovered with costs of suit in any Court of Record ; and all penalties and forfeitures mentioned in this Act, for which no specific ..pplication is herein before provided, shall, when recovered, be paid and applied in manner following, — one moiety tlieroof shall be paid to the informer, or person up- on whose '^"jcovery or information the same shall bo recover- ed, and the residue shall be paid over to the Commissioners or Overseers of the poor for the town or place wherein the of- fence shall have been committed, or the offender shall be sued. Provided always^ that it shall bo lawful for tliu Court before wliich, or the Justice or Justices before whom any proceedings shall be instituted for :irllli;{ iVoiii scivicr is nol a iiiiijdciiicanur, anil nutliing cls^c is a cmisc oi' (iisdiar^M*. '} Burn's^ 114. t i r If a servant, retained for a year, happen within iht; time of his service to fall sick, or to he hurl or disahied hy the act of God, or in doing his maslei's husiness, yet (he master iiiiisl not therefore put such servant away, nor abate any |)ari of U\^ wages for such time. Sickness does not put an end to the service on the part of the servant. /(/. 115. The master is allowed by law, with moderation to chas- ( Iimsijmi •■ tise his servant, being under age, but if the master or niisiross ^"^'"'i- beat any servant of full ago, it may be a good cause of dis- charge, on complaint to the .Justices. Id. 121. [Notf.. See the Provincial Statute hereafter recited, by which two Justices may discharge a servant on comjiiaint and proof of ill usage, being similar to the English Statute on the subject. | If the servant shall depart out of his master's service, and (he master happen after to lay hold of him, yet the master may not beat, or forcibly compel his servant against his will to re- turn, or tarry with him, or do his service, hut either he n)iist complain to the Justices for his servant's departure, or he may have an action of covenant against his servant. /(/. 121. A servant may justify an assault in defence of his master. Id, 122. Also a master in defence of his servant. 1 Selw. ..V. P. 32. ^ • w: ■!,. wi- lt has been held, in a case of a servant hired by the year, tUsdungin;.', who refused to obey his master's orders, that the master was ^^"^ '»"'''• justifled in dismissing him before the end of the year, and that the servant could not recover any part of his wages ; for the year's service must be completed before the servant is entitled to be paid. A master may discharge his servant at a moment's warning, for misconduct, (c. g. for being absent when wanted, sleeping from home at night without his master's leave, &c.) and in such case the servant will only be entitled to such wages as are due at the time of his discharge. But if the servant has not been guilty of misconduct, and the master discharges him without warning, the servant in that case will be entitled to a month's wages beyond the wages due for the period of actual service. A master is justified in discharging a servant, for de- bauching or having a criminal intimacy with a female servant, while both are serving in the family. r> Burn's^ IG2. If a servant of his own accord, depart from his master, before his time expires, he shall lose all his wages ; but if he depart with the consent of his master, he shall have his wages for the time he served. Id. 1 83. When a Magistrate discharges a servant from the service of his master, it must appear on the face of the order itself, to be a case within the jmisdiction of the Magis('">te. /(/. 163. II ^ %r i(. I;. ■'' ii IMAGE EVALUATION TEST TARGET (MT-3) y/ ^ >. -^ kr 1.0 ^^ ta ^^S Itt lU i2.2 l_u_ I.-" Kfi lys lu 1,6 ii FhotogFaphic SdSices Carporation V^^^ ^ r m- SERVANTS. liiiibililieM >,i /f «' ius Liquors to Servants. By Sec. 3 of the before mentioned Statute of the 28 G. 3, c. 6. 1 y. 255, if any> master or mistress shall sell rum, or other spirituous liquors, to any: servant hired by him or her, such master or mistress shall forfeit and pay, for each and every such ofTeiice, on conviction before any one Justice of the aid Justices t*8 cause of I hereby re- ant, by dis- ise, as ihejr ied with the to the next 3 the matter Us. it No master any merchant in, or going lis Province, cure on board red or detain- twiug them to her master or ad and obtain- such offence; , as is directed B recovered by rd in this Pro- itute, "If any any person or f a Salter, split- incapable, and for which he i>n due proof of [eace, shall for- te in such em- vanis. le of the 28 G. lall sell rum, or [by him or her, leach and every 1 Justice of the SERVANTS. Peacey double the value of such rum, or other spirituous li- quors ; and it shall not be lawful for any master or mistress, to stop the wages or any part thereof, of any servant or labourer in his or her service or employment, for or on account of any rum, or other spirituous liquors sold to such servant or labour- er, while in his or her service or employment. r-*iit.t%m Sec. 4. All notes, bills, specialties, or agreements what- ever, which shall hereafter be given to any person or persons whatsoever, by any servant or common labourer, if it shall ap- pear that any part of the sum due or secured by such bond, note, bill, specialty, or agreement, was given for or on ac- count of any rum, or other spirituous liquors, the same, and every part thereof, shall be void and of none effect ; and all accounts or contracts, on which suits may be brought against any servant or common labourer, in which shall appear any charge, made directly or indirectly, for rum, or other spirituous liquors, the whole of such account or contract shall be null and void ; and the party suing the same shall become nonsuit. Sec. 5. If any tavern keeper or retailer, shall by him- nelf or any other person, buy, purchase, or receive in pawn, any wearing apparel, tools or iniplementa of trade, or husband- ry, or any household goods, or furniture made up, from any servant, or common labourer, such tavern keeper or retailer shall forfeit and pay for every such ofTeince, a sum not exceed- ing forty shillings, and the bargain, sale, or pawning, shall be ipso facto void ", and the articles so purcha'i^^^ki ■;<* i;'^* t ,rtiffi}«>ig»m5' 7. Certificate of Service and Discharge. By the aforesaid Statute of the 5 6. 3, c. 7. 1 V. 113, '^ AH servants bound by indenture, or hired servants for any time not less than six months, at the> expiration of the term for which they were bound or hired to serve, shall have from their master or mistress, a certificate or discharge of such ser- vants having served hit or her time, which shall be a sufHcient 57 \ 448 * SERVANT^.. warrant for any person to entertain or take such servant into his or her service, and the person hiring such servant, shall take his or her certificate or discharge, and keep it until the time then contracted for be expired ; and if any person shall know- ingly take into his or her service, or knowingly harbour or en- tertain any person who has been in any former service, with- out such certificate or discharge, such person, being thereof convicted, at the General Sessions held for the county or place where such ofience was committed, shall forfeit ten pounds ; to be levied by distress and sale of the offender's goods and chattels, by warrant from such General Sessions ; one moiety of which forfeiture shall be to the poor of the township where the offender resides, and the other moiety to the informer, who shall discover and prosecute the same. Sec. 2 Provided always, that in case any person shall refuse to give his or her servant a certificate or discharge as aforesaid, such servant may apply to some neighbouring Justice of the Peace, of the county wherein such master or mistress inhabits, who shall give notice to the master or mistress of such servant, and require from them respectively, the reason why such servant is refused such discharge and certificate of his or her service ; and in case no regard be paid to such no- tice, within five days, or that the Justice shall soonei;, by a re- ply to such notice, find that the cause of the refusal of such dis- charge or certificate was not sufficient, the said Justice is re- quired to give a certificate thereof, or of such reasons as the master or mistress gave for refusing such discharge or certifi- cate, that such person who is about to hire such servant, may be apprized of such servant's behaviour, and judge thereof, before he or she hires such servant ; for which certificate no fee shall be paid ; and the said certificate shall be as good as if the same had been given by such master or mistress ; and any servant who shall be convicted of counterfeiting, or producing a counterfeit certificate under the hand of any master or mis- tress, or Justice of the Peace, by the oath of one or more wit- nesses, or by such servant's own confession before two Jus- tices of the Peace, shall be publicly whipped at the discretion of such Justices." Perpetual. Complaint of a Master against a Servant for Misbehaviour ; on the 28. G, 3, c. 6. County of ) Be it Remembered, that this -r- day of ) in the year-——, A. C. of in the county aforesaid, husbandman, [or as the case may be,] complaineth before me A. M., Esquire, one of His Majesty's Justices of SERVANTS. 449 liabehaviow ; the Peace in and for the said county, tiiat A. S., late of— ^ aforesaid, in the said county, servant in husbandry to him the said A. G., hath in his said service been guilty of a certain wilful misbehaviour towards him the said A. C, in that he the said A. S., [here set forth the particular oflence,] and there- upon he the said A. C. prayeth that justice may be done. A. C. i Before me, *'' '^^^ fcnflrii«»» -^^r vmmi im*f%/^^ nwd A. M., J. P. -* brwl vtftt/isw'jtfaY Warrant for the Servant thereupon, County of) To A. B., one of the constables of the ) township of in the said county. Whereas information and complaint hath been made before me, A. M., Esquire, one of His Majesty's Justices of the Peace in and for the said county, by A. C. of in the said county, husbandman, [or as the case may be,] against A. S. late of aforesaid, in the said county, servant in husbandry to him the said A. C, that he the said A. S. hath in his said service been guilty of a certain wilful misbehaviour towards him the said A. C, in that he the said A. S. [here set forth the particular offence.] These are therefore to com- mand you forthwith to bring the i^aid A. S. before me, to an- swer unto the said complaint, and to be further dealt ' with ac- cording to law. Given under my hand and seal the — day of , in the year of our Lord one thousand eight hundred and luiif/^m iti^£bVH«irtn'i*4fi A. M., J. P. -'V Order thereon for alfatement of Wages. "'-' County of ) Whereas information and complaint hath been \ made before me A. M., Esquire, one of His Ma- (Seal.) jesty 's Justices of the Peace in and for the said county, by A. C. of in the said county, husbandman, against A. S. late of aforesaid, servant in husbandry to him the said A. C, that he the said A. S. hath in his said ser- vice been guilty of a certain wilful misbehaviour towards him the said A. C, in that he the said A. S. [here set forth the particu- lar offence.] And whereas in pursuance of the Statute in such case made, I have duly examined the proofs and allegations of both the said parties, touching the matter of the said complaint, and upon due consideration had thereof, have adjudged and de- termined, that he the said A. S. hath in his said service been guilty of a certain wilful misbehaviour towards him the said A. C. in that he the said A. S. [here set forth the particular offence.] I'? \'; 460 SERVANTS.' And I do Uierefure convict him the said A. S. of the said of- fence, in pursuance of the Statute in that case provided ; and I do therefore hereby order, as a punishment for the said offence, that the said A. C. shall stop and retain in his hands, from the wages to be paid by him to the said A. S. the sum of . And I do hereby discharge the said A. C. from the payment of the said sum of , as part of the wages of him the said A. S. Given under my hand and seal, the — day of- in the year of our Lord . , ''i'suJn;* HJrt''*Q' A. M., J. P. Complaint of a Servant against the Master, for ill usage ; on theb G. 3, c. 7. €ounty of ) Be it Remembered, that this — day of I in the year , A. S. of in the county afore- said, husbandman, [or artificer, handicraftsman, butler, coach* man, &c., as the case may be,] complaineth to us A. M. and A. R, Esquires, two of His Majesty's Justices of the Peace in and for the said county, that on the — day of last past, in the year of our Lord , he the said A. S. was hired, [or . bound as the ca«e may be,] by and to A. 0., of in the county aforesaid, yeoman, [or as the case may be,] to be servant in husbandry, [or artificer, &c. as the case may be,] to him the said A. 0. for the space of , and that he the said A. S. did accordingly on the said — day of aforesaid, enter upon, and afterwards until this present time hath contin- ued, and doth continue in the said service, and that he the said A. 0., during the said service, hath inflicted on him the said A. S. cruel and bad usage, and particularly, [here set forth the special offences.] And thereupon the said A. S. prayeth that justice may be done in the premises. ^ j»fV' A.. Alt, J. It. , . .(/tfi^^eHi A. R«, J* P. iK£l..iU: .4 Summons of the Master on the foregoing Complaint. County of |! [Seal] To A, B. one of the Constables of the town- ship of-' in the said county. [Seal-] Whereas complaint hath been made unto us A. M. and A. R., Esquires, two of His Majesty's Justices of the Peace in and for the said county, by A. S. of in the said county, husbandman, [or artificer, &c. as the case may be] that on the — day of , last past, in the year — — , SERVANTS. lie the said A. S. was hired, [or as the nase may bo] by and 10 A. O. of , in the county aforesaid, yepmaii, [or M the case may be] to be servant in husbandry, [or artificer &c. as the case may be,] to him tlie said A. 0., for the space of ; and that he the said A. S. did accordingly, on the said — day of ■■ ■ aforesaid, enter upon, and afterwards un- til this present time hath continued and dotii continue in the said service ; and that he the said A. 0., during the said ser- 4^1 men the said A. O. to appear before us, on next, at the house of in in the said county, at the hour of in the forenoon of tlie same day, to answer unto the said complaint, and be you then there to certify what you shall have done in the execution hereof. Given under our hands and seals, the — day of , in the year of our Lord A. M., J. P. ■Hi OV )» I A. R., J. P. l.ii •,U . Diaclutrge of the Servant thereupon, 'i-' ''- -W"' County of ) WheHeas complaint hath been made unto us, \ A. M. and A. R., Esquires, two of His M^esty's Justices of the Peace in and for the said county, by A. S., of in the said county, husbandman, [or artificer, &c. as the case may be,] that on the — day of last past, in the year — ^, he the said A. S. was hired, [or bound, as the case may be,] by and to A. 0., of in the county aforesaid, yeoman, [or , as the case maybe,] to be servant in husbandry, [or artificer, &c. as the case may be,] to hir< 'he said A. 0., for the space of , and that he the said A. S- did accordinsly, on the said — day of aforesaid, enter upon, and after- wards until this present time hath continued, and doth conti- nue in the said service ; and that he the said A. 0., during the said service, hath inflicted upon the said A. S. cruel and bad usage, and particularly, [here set forth the special offences.] And whereas the said A. 0., in pursuance of our summons for that purpose, bath appeared before us,i , to answer unto the said complaint, but hath not proved that he is not guilty of the said complaint and charge, but on the contrary, it hath been fully and duly proved before us, upon oath, to our satisfaction, that he the said A. 0. hath inflicted upon him the said A. S. cruel and bad usage in his service as aforesaid, and particularly, [here set forth the special offence or oflences.] [Or if the 452 SERVANTS. master neglects to appear on the stinfimons, then say. J And whereas it appears to iis, upon the return of A. B., one of the Constables of aforesaid, that he ihc said A. B., by virtim of our precept to hin) directed, did duly summon him the said A. O., to appear before us at a reasonable time therein prefixed, to answer unto the said complaint, and hel the snid A. O. hath neglected to appear according to the said summons ; and whereas it hath been fully and duly proved before us, upon oath, to our satisfaction, that he the said A. O. hath inflicted cruel and bad usage upon him the said A. S., in his service as aforesaid, and particularly, [here set forth the particular offence or offences] ; we do therefore hereby order, in pursuance of the Statute in that case made and provided, that he the said A. S. be discharged, and we do hereby discharge him the said A. S. from his said service. Given under our hands and seels, the — day of '« ^<- — , in the year of our Lord A. M., J. p. J. p. Uji.'Ki t|(f,«fftn1i!iA' >&^%)4b«iii^ SESS IONS As the present Wbi-k 'is chiefly desFgned for the use of Magistrates, when acting out of Sessions, and it is desirable to confine it within the most tnoderate limits, cousistent with that object, the Court of General Sessions, or the proceedings therein, will not be treated of unlder this Title. Moreover, it is considered unnecessary to do so, as there are gentlemen of legal knowledge presiding in those Courts, and time and faci- lities are there afforded for collective and mature consideration, which are seldom allowe^ to Ma£;istrates acting on other occa- sions ; and especially, because m the General Sessions a re- ference can be had to all the Provincial Statutes, as well as to that most valuable work, — Burn's Justice, and other useful treatises of the same nature. This Title, therefore, only re- lates to Special Sessions, and the proceedings therein. A; Special Sessions means a silling convened by reasona- ble notice to the other Magistrates of the division. Any occa- sional sitting of two Magistrates is not a Special Sessions. See 5 Burn 'ff, 215. There must always be at least two Justices present to con- stitute a Special Sessions ; or more, according as may be requir- ed by any particular Statute. By various Statutes of the Pro- vince, Justices of the Peace are empowered to hold a Special SESSIONS. 4&i Hpeciul ■iunu to Hiinple Sessions for especial purposes, as for tryiog viinple larcenies, and otiier lesser criininal ofjencesf—for making regtrfatious for bringing lumber clown rivers, — hearing appeals against rates,-— examining as to performance of contracts relating to roads and bridges, &c. &c. j 4 A Justice of the Peace ought not to join in an order in Sessions wherein himself is concerned. An order may be quashed for that reason. See 5 iium'«, 199. By the 26 O. 3, c. 2. 1 V. 243, It shall and may be lawful for the Justices of the Peace, in their respective towns and counties within this Province, or any three of them, one cenivs. whereof shall be of the quorum, to call a Special Court, or Courts of Sessions, between the stated tiroes limited by law for holding the said Courts, and proceed either by indictment, or in a summary way, by motion and order, to the trying and determining of all criminal offences which come under the de- nomination of simple larceny, or do not extend to life or limb. Provided always, that it shall not be lawful for said Justices to pass sentence, or inflict punishment on such offenders, unless they shall be first convicted at such Court by the verdict of a Jury, duly impannelled and sworn for that purpose. Perpetual. By the 46 G. 3, c. 15. 2 V. 6, *^ In every Special Ses> sinns of the Peace which may by law be held, the particular business for which such Special Sessions shall have been call- ed, (and which shall always be specified and declare(| at the call thereof,) shall only be done and transacted, any law or usage to the contrary notwithstanding." Perpetual, i •/ try I.ar- &c. (■f Ci NoTC. At least eight days' notice ought to be given of the holding of a Special Sessions. With regard to the regulations for enforcing the attendance of Justices in the General Sessions, and depriving them of their office on neglect thereof, and for their attendance at the sittings of the Supreme Court, see division No. 5, of the Title — Jus-^ tices.^ .; .ivi. SET OPf , see,— SOMMARY T]|IIALS. '^ ! v«li -H- MM5f •ii.it SEWj^RS. •'i Bv the Statute of the 4 G. 4, c. 13. 3 V. 156, The Qpvernor may appoint Commissioners of Sewers, who shall be ■*■" ,// <^/ \\ 454 Ami>miiii>iiU tor Iti'piiir of RiM-ovcry of LfltiiiK li»iiilf< for I'ayiiiuiit of KulUM. Soiling l.uti(U for I'ayiiiuiil of Kntffrt. Repniring In- Jury to Dyku Ity I'aHluring. HKWERS. »\voni to iho faiihlul liisclmrKe of iliuii* duty, aiiiJ siicli conitnis- siuiiers may froin liiiit to time aHUCHS tlio pro|irietorii of Uykml ntiJ mar^li Imids, tor the repair of dyken and wears, oiiil Cor cer- tain oilier purposes relating to suoli lands, and shall appoint colluuiors to collect the inoiio^ duu on such assessments, who shall also be sworn os aforesaid. Sec. 3. Upon complaint being made upon oath before any one Justice for the county whuru such lands lie, by such collector or collectors, it shall bo Inwftd for such Justice to grunt a warrant under his hand and seal, directed to any one of the conHtnblos in the county, to levy oil* and from the goods and chattels of the person or persons neglecting or refusing to pay his or their ))art or proportion of such assessment, by distreijs and sole of the said goods and chattels, the full sum so ossessed, with costs for prosecuting the same, which costs si)all not in any ono case exceed ten shillings. Sec. 4. If goods or ehatlels of the owner or possessor of londs dyked, drained, or improved, are not to be found with- in the county or distrioi whore such lands lie, to answer his, hor, or iberr proportion of the assotsmont made as aforesaid, it shall bo lawful tor any ono Justice for the county to let the same, or so much thereof as may be suHicient to pay sucji proportion, fir^it giving twenty days' notice in the township or place where the lands lie. By Sec. 0, If no person shall appear, to pay the propor- tion of any assessment, and no suflicient distress shall be found to satisfy the same, the Commissioners, after three months' notice of the sale of the said lands of the person so assessed, and such proportion being still unpaid, slioll sell at public auc- tion, to the highest bidder, so much of such delinquent's said lands as will be suffioient to pay such proportion, with the charges. io,(iwuu>j>.'«i>^'*"i'i''Jn''*l«n'."-' Ui;t»iru4i*.'ivvj n. See. 13. When any person shall pasture any part of the lond enclosed within any common, dyke, or any land without and adjoining such dyke, whereby any part of the dyke shall be injured, it shall be lawful for any two or more of the commis- sioners, as often as there shall be occasion, to make an order upon such person for the repairing of such injury, by a certain day named in such order, and in case of refusal to obey the same, such Commissioners shall cause the injury to be forth- with repaired. Sec. 14. The person neglecting or refusing to obey any such order, shall forfeit and pey for each olTence the sum of ten shillings, which sum, with the costs of such repair, to be recovered before any one Justice for the county, shall from time to time be levied by warrant of distress undor the hand and seal of such Justice. Perpetual. ..... .„...,»,. v.. - , 9UWKK8. •155 I)y flin 10 (i. 4, c. U7. 4 V. 64, Whero the tMoiBinent slinil 1)0 iiioro than five »hiliin(i^ per aoro, no wnrrant of diMtrosH shnll iiisiiu ngninst iiiiy party owning or possossingdykct' ninrsh land, on nrcormt ol' any asttusmnent mndo upon the laid land, unless iiiich party, or sotiic other or fornner owner of such Innd, Mhtill have assented to the building of the dyke for which the atisessinont was made ; but in ail cases, whether snch con- sent haili or hath not been given, the land of every snch actual owner or possessor, sliall be liable to such assessment, and may be proceeded against in the manner provided in the ninth Sec- tion of the aforesaid Act of the 4 U. 4, c. 13, without pre- viously iiisuing such warrant of distress. Sec. 2. After the issuin,'; of a Warrant of Distress against a party who did not assent to the assessment, the Com- missioners may discontinue proceedings against him, without titeir being liable to costs. Sec. 3. The outh by the aforesaid Act of which this is in amendment, directed to be administered to the suid Com- missioners of Sewers, Collectors, Assessors, and other per- sons therein named, shall bo made in writing by the party re- quired to make the same ; and this oath shall be odministered by some Justice of the Peace, in the presence of the Clerk of the Peace for the county or district wherein such commis- sioners have jurisdiction. Perpetual. By the 5 W. 4, c. 47. 4 V, 432, In any cause or pro- ceeding in any Court in the Province, or before any Justice or Justices of the Peace, wherein it may bo necessary to examine any clerk to Commissioners of Sewers, or collector, as a wit- ness, it shall be Itiivful for such clerk or collector, to be ex- amined as a witness, to prove any fact or facts arising from, or connected with the execution of the duties of such clerk or collector, notwithstanding such clerk or collector may bo a proprietor, or interested of and in the lands included in any such assessment, touching whichv or any rate thereon, or any proceeding taken for enforcing the same, any suit or question be depending ; provided that no such clerk or collector shall be a witness in any matter touching the taxes upon their own lands, or themselves respectively. Temporary. The proceedings and the Forms for the recovery of any dyke rates, will be the same iro in t^ case of poor rates, or county rates, for whipli, see either of those Titles. For the recovery of the 'penalty, and the other sum mentioned iu the 14th clause of the aforesaid Act of the 4 6. 4, the like pro- ceedings must be bad, as for the recovery of penal tics and sums in other cases of the ITke nature, for which proceedings, with the general Forms requisite, see respectively, Titles, — Infor- mation ; Summons V Conviction 5 Distress. : 38 Itnrovitry •••' llllO\ll fl\)1 •liiiluigH |Mr iicru. Ontli orC'oin* iiiiMNioncrH ami otIiurH. ClerkM nnil ( 'dlltictorn iiiiij Ihj Wit- Directiutii. '> .1 » i Si .-■. ■ -f. Dirif iiig BWftf Sheep clan- destinely. .;;0"1'iviiship, empowered Lu hold.Sessiqns of the Peace, shall be empowered in their Sessions ^s. aibresaid, and they are here|)y directed) tQ make regulations for the preventiQg the clandestine The.prpceedings an(| Forms fprtlierecpyerypf the, penal- ties mentioned -in the/oregoing Sk^iptes, yvijl bejthe.same as in prosecutions in ptlier ordinary pase^Jpr the, |-ecpvery, of pe- nalties, for which, see respectively ^.Tl^lcsj-^Information ; ^WW^Kh ^mymm^ir Pisiyfs?. i,u ,iHn.. , ,. I u.Y - - 'iiodi nat^o ^-ok-js ■ :;> ■ '■''•> ■ ^ -'.inr ^/ncs m •j^ioaSiw sadiiwk «!■ iilujjsinitl vfljB '\(% >VtKVOa£^'*fil O TT X? 1) T 17 '1? gl;' By- the ^i bi" 3,' c. 1/ Xy.j44, if lie Chief Justice,, or m l^is absence, the, senior juiige p;f the Supreme, Cpurt, shall annually, on the last day of Michaelmas Term, fiominate to the Governor^ three fit persons in each county, as qualified for th*) pffice pif High Sherin thp^eof ; pne ,of, wbqm In cfich county, the Governor shall appoint to be such Sherin, for the year en- fi ^iMinMir SREklFF. %sn Mi ■L suing', \Vlio, on reTMikl to sef ve,' shall fdrfeit fifty ^6uncls ; an(l if h« acdei^tis the office, sh»ll gite secilrity, and be sworn to discharge the duties thereof. ' ' ^edl 4.' It sliall be lawful for|'tbe spld Chief Justice, or setiior^^udge ad aforeisaid, in the said )ist of perisbns presented to the Ooverhbr as 'af(^e*aid, to reiurn 6ver again the name of such person as shall bie then in the office of sheriff for any county, in case such person shall have signified to such Chief JusticW or' senior Judge, his consent in writing to serve for the ensuing year ; irnless a representation signedTby a majority of the Jiratices, in iheif General Sessions assembled in any county, shall b6 filed in the Sujij-eme Court at Halifax, as'dfany Mi- chaelmas tefrii hereafter ensuing, praying thereby, t^iatthe per- son then serving the offide of sheriiff in such county, may not be returned in the Judges' list to serve the office of sherifi^for the then ensuing yeat*; in which case the Judge, who is to re- turn such list, shall not return the name of such persop so pe- titibned against. Perpetual J" ' I ' ,, ! The Sheriff, having the warratit of a Justice of (he Peace directi^d to him, shall execute the^ame, but he nee^ not go in pei'Soti to exectite'it, but may authorise another to do it. And it is no excuse to the sheriff to return that he could not execute a precept, because '6f resistance, for he may take with him the power of the county. The Sheriff, ort summons, "is bound to attebd the Ses- sions of the Peace there to return his precepts, — to lake charge of the prisoners,— -to deceive fines for the King, and the like. And it seems ■ elear froni the general reason of the law, which gives all Courts of Refcord a kind of discretionary power over abuses by their own officers, that the Sheriff is punishable by the Justices in Sessions, for defaults in executing their writs and preb'epts. Every sheriff is a principal conservator of ♦he peace, by the con^mon law« and may ear officio^ award process of the Peace;, and take surety for it. 5 Bum^s^ 223-4. Sherif)' shall execute the Warrant of a Justice. Shall attend the Sessions. Is punishabln by the Ses- sions. Kl) ■'MiiiV i3A0T.q 'idl iv: 'SHIPS . .'A I :^X.\ By the 25 G. 3, c. 6. 1 V. 241, Any person who shall take away,' cut down, or destroy, or aid or assist in taking, cutting down, or destroying in finy manner whatever, such buoys, beaiconS, or sea marksyVhich are placed, or shall be placed or sfet Ky order or direction of the Governor, Lieute- nant Governor, or > Comniander-in-chief, or any other person having authot-vtS^ sd to do, in any harbour, creek, or bay within Destroyiaig Beacons, &c. \ iit.;i i IW - 453 .?JiiU01.*M/. SHIPS. Improperly Bal- unlading last 8 Sit! ,«jUhe of- lall bo com- ity or place the space of to any, such lall, on due jding twenty o,f goods 01- jy the same, \y to the gaol e been cora- Perpetual. hies imposed similar cases ^orms, which found respec- ns ; Connie- it shall be un- , or boat, be- er, or creek same; and if any ship, ves- ird any ship, ark, into any J of the same, obliged to re- thereof shall pounds, to be iplaint, before erein such of- Q the Court of such offence osecuting the of the penalty nviction, as in (Q filled up so itles,— Infor- process of any ided to in the SHOOTING ATy^c. (maliciously.) Statute, it seems quite clear, that no such process can b« issued by the Justice9. ,i i " m : > > }/v^ — — m — ^ WU1 j< SHIPWRECK^ see \\JRECK. 459 !'4t^ ']}'M .0 ^.S- iWP'^ft SHQQXpa 4T,&C. (MALICIOUSLX,), 'By Section 21, of the 32 G. 2, c. 13. 1 V. 18, "Who- soever shall maliciously shoot at any person or persons, in any dvyelling house or other place, such offender or offenders, be- ing duly convicted thereof, shall sufier as ffelpns without bene- fit of clergy." Perpetual. vW;*r -n v*t| 7ry«»iMnv-^ii On a complaint of this offeuce, bemg made to, a ^MSlice, the same proceedings must take place as in other cases of ca- pital felonies; and forvvhich, with the requisite Forms, see, respectively, Titles,— Information ; Warrant; Examination; Commitment; Recognisance. Justices pf the Peace cannot bail persons charged with this ofience? it being a capital felony. SHOP-BREAKING, Mii-BURGLARV;,^*''^'^ SLAN^BE'R.' '7^'^^^^^ f>''"'^''"r^7 In general, it seems that words which directly tend to a breach of the peace, as if one m^h dhallbnge another, are cog- nisable before Justices of the Peiace ; for which the party may bd bound to the good behaviour,' ^nd eveil ihdtcted. 5 Burn'sy 243. [Note. This means co^msa6Zc, or to be determined before the Justices in Sessions, but not before one Justice or more out of Sessions, though one Justice may bind over to the Sessions, on a complamt of such offence.] But if the words do not tend directly to a breach of the King's peace,* but are matters only of private slander between party and party," which no way affect the public administration of justice, as in case where the common people are wont to call one another knaves, and rogues, and whores, artd thieves, it is not assert- ed by any good authority, that Justices of the Peace have any jurisdiction at all in such matters. Id. ,i-fc;)4if yfum vjlfi.iitrj f;4s; mn.O'i -jt f^r.dn-rjov] snr l TO ,t' VI. Si ^l. Oi XII. Ri -lii ah'..!: !• Lice By t Justice? ij ler Ses-sio for, th^sj^ and other suBipit^piy 's«iued,jan< proper pe 4op,,JV»|th <9SjellMQ lerson shall reoeiv^e any » ihe King, t, upon any s, shirts, or Biital neces- jed for such •bmmanding ' deductions \i baptain or Itiynged, the tic'e, the sum one or more iticiss of the nt imder the )f the goods h penalty to cer to whom ase any such ods and chat- the penalty not pay such then and in sir hands and , there to re- >r cause such of such Jus- u^amendment shall be law- !.tion shall be commit such before the ider shall en- personal ap- )ii q( i|ie said If ■. . . menlionetl m id ihe^rjit of tli^ foregoing StatikteS) and also subsequent to the conviqtipn of thi^ oU'end^r, wi^ithe requisite Forms which may be raad,e tp »erv^,, si^ respectively, Titles,-— Informaiipii ; Sum/iuous ; K^pnviution, ; . Distress ; Coinmitment>j^.;rjoi( i Iff. it r 'T mi if'ui^ , ;.; ;)'>•: -.■ !'n,. ,Jiiiiij) om; (iKii* i-aol , ^^PHi^^iTuoys LIQUOR^.: '"^ ,$,t;,pH ,9f tl)c,,^)naq^n?^nt^ relating to the sale Qf Spirituous Liq|j|m7»^'^s.it;is,d'ej^ip^iirequi^ite to sejt.for^h uod^r this Title^ may pe qopvejijientiy arranged uoder the ifollowing Divisions :; . .lili I, I^ICENSES FO.^ TH^ SaLE OF SPIRITUOUS l^I^UORS. II. Selling the same without. I^icei«3£).,0RoApter „^ ^'uyk-^'i^. •■THK:,^XPiBATlON:T;«^REqF..jjij-lJ. ' .b,>-:%3.^. Ill, Hanging/ OUT .Signs,; ,,;,^ „,, -nuum ;." r.l /ii..>-^ v^m IVv Selling in H.pi^sE NOT NAMED i^ License..' Y.,,Or^ER , IN LjCENSED HoUS^S AND S^OPS, ANQ 10 '.tat vi lYiHEiN, ANOiTp ,>vnpM Spi|HiT!upqs Lkjuqrs are .l.i,\>;..i:xi-. N,^T-,:T0BE S.OLD. .., .,i;r..n!)lij f^'iii^iui'l^'^IIttlsWtt VI. $ELLING jGpops IN TAVERflH. VII.,JlEGUJ,ATiON^ AS TO Q,UANTIXI;ES IN , YVJUA^H,. Spi-, ,,.. J.,, Ri.T.^ous Liquors mait be spld. ,/i«.iJ.,l..i^)4^i VUI., Pb,9secutions Fo|i Offence?. ij.,i:,;^f4;|} -itrK ,mjiaay« ,j|X., Witnesses pN PposECUTiON%, tnki'')^. ii^MmitwitU ,i.„APP.l'ICAT,|pi^„pF Pen'ALTI^,S. ^..,■ - ,i.Ui^«f>c' Ui;..w!«!i: # XI. p,B^TRt;c,T,|N,«.CJj*ERK8,,9fi LiqEN8P§fJ :v^i&Ui\ (>■• ,'.„.:.. XI.I,, ;ReCOVERT:,,PF LlCJi;N8E,:-]Q>UTIE;R,*.~,fiX, .t> ,!^hy. XI|],,i 3u.SPEND--.l.3RPVI^ITI^!»(.H«»NJD Pj^EI^^ItS^pOR THE SAME.-,i,. I. Licenses FOR t#e Sal^i op Spirituqvs Liquor,s. '.i>,'-< 111 •' By the Staluteof tbp 2" W. 4, c.,,3. 4 V, U.2, " The Justice? lA efbph , county or district, in theijr first General Quar- ter Sessions iu ^^yery year, may grant an^^order tavern licenses for thp si^e of wine, beer, al,e,.Gi4e;r, or perry, rum, brandy, and other strong or ^istijletl, spirituous liquprs, for use or conr supipji^pif io t^ctjt^vern or ,bqusq of the ,party licensed, to be issjue^iandgivi^p to ^^^i^i^ fa(vp|i|r,of sujP^ a^oid so rnany fit and proper persons, of good fame, and of sober life and conversa- MpPva^ith^jSa^jd Justicf;s s^al) judgii> pecessary to be licensed, tp sell f)^pi)Ji<}i;iQr§ ip,any.^«iaiitity,;^ubio, and (o k^cp (averns Granting Li- ceuMS. -Ut^. »UrfHJ •t.t trt y / 4U2 SPIRITOdOS LIQUORS. I'tirticulars to l)f contained iu Licenses. Granting Li- censes in Spe- cial SttssiuHM. General Li- censes. Wine and Beer License. Licenses gra- ft*. or Irouses of public entdmrirnnfint in the several towns, and on the several rcMids and streets of ^e Province, lying within their respective counties ' 6r districts , and also to grant and order shop licenses, for* the sble of such liquors, in a quantity not less than one quart, delivered at the same time, to such persons, keeping shops or vending goodsj as the said Justices shall deem (it and proper. Sec. S. In 6reiry strch tavern license and shop license, granted pursuant to this Act, there shall be inserted and con- tained, tne name, residence, and occupation of the person or persons to whonA the same is made, ind the particular house or shop for which the same license i? given, with the name of the county, and of the town, township, or settlement thereof, and of the particular road, street, or lane therein, in which such house or shop is sitUilte. Sec. 8. If after tlie first General or Quarter Sessions of the year, in any county or district, (except Halifax,) any per- son or persons shall apply for any such tavern license, or shop licence therein, it shall be lawfol for the Justices at any other General Session held in and for such county or district, or for any three Justices thereof, in Special Session assembled, to make an order for granting such license, if it shall be deemed expedient so to do, and th6 same shall be issued accordingly. Provided always, that every such application made to a Special Session, for a tavern license, shall be first recommended by three Justices of the said county or district, not of the said Special Session ; And provided also, that the issuing of such tavern license be first recommended by the Grand Jury. Sec. 9. The said several Licenses shall be made and is- sued in the terms, and according to the Forms prescribed in the Schedule to this Act annexed, and shall be signed by the Clerk of the Licenses, the 'Clerk of the Peace first certifying thereon, that security lias been given therefor as prescribed by the Act ; and such license shall continue and endure from the date thereof otitil tbe end of the Genelral or Quarter Sessions first held for the county or district, in the year next following thie grant of su6h licenses respectively. Perpetual. By the f W,4, c. 16, Sesst 1837, No general license wbatevef, shall b^ granted or Jsstiefd to any person or persons residing in any part of tlus Pfovince^ except only to persons residing in tbe town or- peninsula of Halifax. Sec. 3. No such liceniBe as heretofore called a Wine and Beer Licensie, shall heifeafter be issned or granted on any pre- tence' whatsoei^h ^-^Vr'^r^^'' :^'-^ tr^'-- Sec. 4. It slran^'la^lbl for the Justices of the Peaceof the several cotindto ot nfistricts, u^on the reconimendadon of SPIRITUOUS LIQUORS. 46S mS, Mtl Oil within tiieir and order juaniity noi ich persons, s sliall deem lop license, sd and con- tie person or liar house or name of the thereof, and I which such r Sessions of «,) any per- inse, or shop at any other istrict, or for [ssembled, to ill be deemed I accordingly. e to a Special mraended by tt of the said isuing of such d Jury, made and is- prescribed in signed by the first certifying prescribed by idure from the larter Sessions next following lal. general license son or persons jly to persons ed a Wine and ed on any pre- ^ftheFeaceof mmendatlon of ..•«iii>«i. i the Grand Jury, but not otherwise, to grant a license gratit^ or upon payment of such less duty or tax than is hereby irapos- ' ed, as may seem to them proper, to any person or persons living on roads which are little frequented, for the encourage- ment of such persons keeping houses of entertainment on such public roads, lor the aocommodation of travellers. Sec. 5. No Justice of the Peace shall hold a Tavern License for the retail of ardent spirits. Annual. II. Selling Spirituous Liquors without License, or AFTER TliE EXPIRATION THEREOF. By Sec. 15 of the aforesaid Act of the 2 W. 4, c. 3, Sellinp; with " If any person or persons whatsoever, either by themselves, °"^ Licen**. or their wives, or any of their children, or their known and re- puted servants, or substitutes under them, directly or indirect- ly, in any bouse, shop, warehousei, or other place whatsoever belonging to the father or mother of such child or children, or to the known or reputed master .or mistress of such servant or substitute, shall sell, barter, or exchange, or deliver upon credit, any rumj brandy, ale, wine, cider, perry, or other stronger dis- tilled liquors, mixed or unmixed, by whatsoever name or names they are or may be called, (without license first had and obtained for that purpose, in manner and form as herein directed,) whe- ther such wife, child, children, servant, or substitute, so sold, bartered, or exchanged, or delivered the same, or not, by the command of such father, mother, master or mistress, or shall hawk, sell, or expose to sale, barter, or exchange, or deliver upon credit, any such liquors, mixed or unmixed, by whatso- ever name or names they are or may be called or distinguished, about the streets, wharves, highways, lanes, or suburbs of the town or peninsula of Halifax, or in any other town or place whatsoever within this Province, in any manner whatsoever, or upon the water, in any ship, boat, or vessel, or in any other manner whatsoever ; or shall deliver upon credit, or sell, or barter, or exchange, or expose the same to sale, on any bulk or bulks, stall or stalls, or in any shed or sheds, or on, or in any other place or places, such person or persons, and the fa- ther or mother of such child or children, and the reputed mas- ter or mistress of such servants or substitutes, shall forfeit for every offence, a sum not exceeding twenty pounds, nor less than five pounds ; and it shall be lawful for any two Justices of the Peace, on their view, or on confession of the party, or by proof on the oath of one credible witness, to convict any person or persons so offending, and the person or persons so convicted, shall immediately, on such and every other like 59 .i:;l' 11; -¥ \ i 464 «#.j-. .J Selling after expiration of License. SPIRITUOUS LIQUORS. conviction, pay the amount of such 6nes or forfeitures into the hands of the Clerk of the Licenses ; and on such offender or offenders refusing or neglecting to pay the said sum, together with the charges of prosecution, it shall be lawful for such Jus- tices to issue a warrant under their hands and seals, for the le- vying the same by distress and sale of the offender's goods and chattels ; and if no sufficient distress can be found, then the said Justices shall, by warrant under their hands and seals, commit the offender or offenders to the gaol within the county where the offence shall be committed, there to remain in close confinement, or to be put to hard labour for the space of three months, or until he or she shall have fully paid and satisfied the said fine and charges as aforesaid, or otherwise, to be bound out by the Justices aforesaid, for pny time not exceeding three months, to serve and labour for any person who will pay the fine and costs. Provided, (hat all prosecutions in pursuance of this Act, shall be made within three months after the offence committed. Sec. 28. Every person or persons licensed as aforesaid, who shall continue to sell any such liquors as aforesaid, for a longer time than the period or date for or to which their res- pective licenses are or shall be limited to endure and be in force, without taking out a new license, shall be subject to the like prosecutions, penalties, and forfeitures, as persons selling spirituous liquors without license. [The Forms of Summons and of Conviction, in prosecu- tions, under the foregoing clauses, are contained in the Act recited under Division No. 8, and the other requisite Forms will be found at the end of the Title.] III. Hanging out Signs. Br Sec. 16, of the same Statute, Every person keeping a tavern, or retail shop, and having licoise to sell any spirit- uous liquors, wine, ale, be^r, cider, or perry, shall within ten days after obtaining such license, hang out a sign or inscrip- tion, with their names thereon, setting forth that spirituous liquors are there to be sold, on pain of forfeiting five pounds for every such neglect. [Note. As no mode of recovering this penalty is men- tioned in this Act, or in any other, it is clear that no prosecu- tions for the same can legally take place before Justices, but on complaint, the license of the offender may be suspended, pur- suant to Sec. 37 of this Act.] Sec. 17, If any person or persons, not having obtained SPIRITUOUS LIQUORS. 4ti6 res into the offender or n, together r such Jus- for the le- ler's goods bund, then Is and seals, 1 the county lain in close ace of three satisfied the to be bound ceding three will pay the n pursuance r the offence as aforesaid, )resaid, for a ch their res- e and be in lubject to the ersons selling , in prosecu- d in the Act uisite Forms erson keeping ill any spirlt- lall within ten n or inscrip- lat spirituous ig five pounds snalty is nien- t no prosecu- ustices, but on ispended, pur- aving obtained a license therefor, shall presume to hang out, or suffer to re- main, any sign or inscription whatsoever, importing that rum, or other strong or distilled spirituous liquors, wine, ale, beer, cider or perry, are there sold otherwise than by wholesale, upon proof thereof in manner and form herein described, such per- son shall be subject and liable to the like penalties and for- feitures as persons convicted of selling spirituous liquors with- out license. [In prosecutions on this c^ause, the Forms will be similar to those in the case of selling spirituous liquors without license, and some of which will be found in the Act set forth under Division No. 8, and the others at the end of the Title.] IV. Selling in ant other place than the one spe- cified IN the License. By Sec. 18, of the aforesaid Act of the 2 W. 4, c. 3, If any person or persons, either by themselves or their wives, or any of their children, or known or reputed servants or substi- tutes under them, directly or indirectly, shall presume to sell any rum, brandy, wine, ale, cider, perry, or other strong or dis- tilled liquors, mixed or unmixed, by whatsoever name or names .. ..- ■ they are or may be called or distinguished, by virtue of or under pretence of any license obtained as in this Act is directed, in any other place than at the house, shop, or place to be named in such license, where such person or persons themselves shall bona fide actually and constantly reside and dwell, or carry on the business of such shop, upon conviction thereof, such per- son or persons shall be subject and liable to the like pains and penalties as persons convicted of selling spirituous liquors with- * out license, and the same shall be prosecuted for, paid, levied and disposed of, in like manner as is directed by this Act. [The requisite Forms, in prosecutions upon this clause, will be similar to those in the case of selling without license, and can readily be filled up so as to serve.] •r V. Order in Licensed Houses, and when, and to WHOM Spirituous Liquors shall not be sold, OR furnished. By the 2 G. 3, c. 1, § 3. 1 V. 78, No retailer or per- Retailers har- son whatsoever, shall harbour or suffer any apprentice, bound bouring, &c. servant, or negro slave, to sit drinking in his or her house, nor Apprentices, sell or give him or them, nor suffer to be sold or given him or " '""' them, any wine, strong beer, ale, brandy, rum, or other spi- rituous liquors, without special order or allowance of their res- ■i i^' Tants. 4m SPIRITUOUS LIQUORS. Forfeiture of Master for •oiling Spirit! to Servant. Keeping Or- der in Licen- sed Houses. -t« son taking out surli Sliop License, shall cause the whole of this and the preceding Section of this Act, written or printed ill a plain legible manner to be affixed up in some conspicuous part of his or Iter shop, and there to remain during the con- tinuance of his or her UcenHe, m pain of forfeiture tiiereof. [Note No general iicen!^** can now be granted except in Halifax. The? preuedin| clause referred to, is the one which prohibits the sale uf goods and meriphandise in taverns. The Forms, in prosecutions on the foregoing clause, will be similar to those in the case of selling spirituous liquors without license.] Sec. 30. Provided that nothing in tnis Act contained shall what quAuii extend to prevent or debar any merchant, shopkeeper, or other tieimaybe person, (not licensed by any such license as aforesaid, to re- ^ Lice,',*,''J*"' tail any rum, or other strong or distilled spirituous liquors, wine, ale, beer, cider, or perry', in any part of this Province, other than the town or peninsula of Halifax,) from selling any quan- tity of such liquors, not less than ten gallons thereof, delivered at one and the same time, or not less than the contents of the original cask, package, or case in which the same was brought JDlo this Province. By the 7 W. 4, c. 15, Sess. 1837, It is Provided, that nothing in this Act, or any other Act contained, shall extend to prevent any person holding a tavern license, (except in the town of Halilax,) from selling any quantity of spirits, wine, or other liquor, not exceeding at any time one quart, to any per- son whomsoever, (excepting Indians,) whether the same is to be consumed in his house, or elsewhere. »Snnual. nt< V J r it VIII. Prosecutions for Offences. Br the 7 W. 4, c. 48. Sess. 1837, In all cases or pro- secutions under the Act passed in the second year of the reign ofhis present Majesty, entitled, — " An Act concerning Per- sons Licensed to keep Public Houses or Shops and the Du- ties thereon," or under any other Act relating to licensed bouses, or the license duties, or licenses, the summons to be issued against the person complained of, shall be in the form following, that is to say : — To either of the Constables of the (Town or County) of . Form of You are hereby commanded to summon A. B. of , to SummoiM. be and appear before us, at , on the — day of next, to answer to the suit of C. D., clerk of license for the county of , for a breach of the Act passed in the second year of the reign of his present Majesty, entitled " An Act concerning persons licensed to keep Public Houses or Shops and the Du- 470 SPIRITUOUS LIQUORS. Trial ofOfieu- cas Form of Coavictioa. ties thereon," in having, (here briefly state the nature and description of the offence, as the case may be,) contrary to the provisions of the said Act. Witness our hands and seals, at , this — day of , A. D., 18. A. B., [Seal.] Justice of the Peace. X,.-.- C. D., [Seal.] Justice of the Peace. Sec. 2. It shall be lawful for the Justice or Justices, before whom any person shall be summoned, to proceed on the summons aforesaid, to the trial of the offence complained of, as in case of an ordinary action or debt before such Justice or Justices, and thereupon to convict the offender or offenders, either by default or upon confession, or upon evidence to be 4' adduced before such Justice or Justices ; and such conviction shall be indorsed upon, or annexed to the original summons, in the form following, that is to say : — nv?eytbit^, The within named defendant, having been duly summoned, was this day convicted of the offence within mentioned, upon his own confession, or upon default, or upon the oath of A. B., a credible witness, as the case may be, stating the manner of ihe party's conviction, and the names of the witnesses who may be examined.] Witness our hands, this — day of , A. D. 183 — . Which when signed by the said Justice or Justices, shall be, and be deemed a good, valid, and legal record of such conviction, to all intents and purposes. Married Wo- Sec. 3. Any married woman, or servant, offending men and Ser- against the Act hereby amended, or any other Act in force res- pecting licenses, or license duties, for public houses or shops, shall be, and be deemed and held liable to any penalty for such offence, which shall be imposed by the Act, for a breach of which such married woman or servant shall be prosecuted ; Provided, that no other or second prosecution shall, for the same offence, be entertained against the husband or master of such person offending as aforesaid. Duration not limited. [The requisite Forms, after conviction, will be found at the end of the Title.] 1* •tV.'J- r>!-. ;•, 1 .sill;. IX. Witnesses on Prosecutions. vanti. mciv'. Br the aforesaid Act of the 2 W. 4, c. 3, § 31, When any information, presentment, or indictment, shall be made against any person or persons offending against this Act ; and any person or persons shall be summbned to give evidence re- lative thereto, and any such person, so summoned, shall neg- lect or refuse to give his or her attendance at the time and SPIRlttrbUS LIQtJORS; 471 place mentioned in the summons, not having any just catise therefor, to be allowed by the Justices before whom such in- formation, presentment, or indictment shall be made ; or shall wilfully withdraw himself or herself before sworn ; or shall wil- fully refuse to be sworn ; or shall refuse to give his or her evi- dence ; in every such case, the party so offending shall forfeit and pay the sum of ten pounds ; to be levied by warrant of distress and sale from the said Justices, on the offender's goods and chattels ; and for the want of such distress, such person or persons shall be committed to gaol, there to remain for three months, or until the said sum often pounds shall be paid ; pro- vided, nevertheless, that no person shall be obliged to give evidence on any information, before such person be paid or se- cured their reasonable charges for attendance, to be allowed of and ordered by such Justices, and payable out of the monies arising by virtue of this Act. -^*'; fi'mfj In the case of a witness neglecting to appear according to Directions, summons, or of his wilfully withdrawing himself before being sworn, the same proceedings must take place against him for the recovery of the penalty mentioned in this clause, before he can be convicted, as in other cases, that is, by complaint, and a summons to appear and answer. The Forms of the Sum- mons and Conviction, in prosecutions upon this clause, will be the same which are contained in the before recited Act of the 7 W. 4, c. 48. In the two cases of the witness refusing to be sworn, or to give evidence, it would seem that he may at once, on the spot, be convicted by the Justices, and in such ' " ,^ case the summons will of course be unnecessary. The requi- site Forms, after conviction, will be found at the end of the Title. X. APPtl^AtiOT* OP JPEiiALTIES. lid km m i'. ''C By Sec. 32 of the aforesaid Act of the 2 W. 4, c. 3, All the monies arising from the conviction of any person or per- sons for the breach of any part of this Act, shall, after deduct- ing the charges of prosecution, be paid by the Justices before whom the same shall be recovered, one half to the person or persons who shall inform and sue for the same, and the remain- ing half part to the Clerk of the Licenses, to be by him ac- counted for and applied as herein after directed. XI. Obstructing Clerks of Licenses. 'iji Mi Br Sec. 34 of the same Statute, — In case any person or persons keeping taverns, retail shops, or public rooms, or any persons being in or about such taverns, shop, or room, at the 60 472 '•!»'-.; li.:.ii; SHRTTUOUS LiaiTOttS. time the Clerk of License may be visiting the same, shall in- terrupt or assault the said Clerk, while in the execution of this Act, the said person or persons shall be liable to be indicted, and if convicted, fined or imprisoned for any such offence. Xn. Recovery of License Duties. hyxrnv'' Vu h [")i ']»• Bt Sec. 36 of the same Statute, — So often as one half yearly payment for a tavern or shop license, shall be due and unpaid to the Clerk of the License, ten days after the same shall be due, it shall be lawful for such Clerk of the License, to bring an action on such person's bond, against himself, or his or her surety or sureties, before any one Justice of the Peace, or in any Court of Record, for the amount of such li- cense duty, and such Justice shall give judgment for the same, and grant execution for such duty in arrear and costs against such debtor, and his or her surety or sureties. [The proceedings and the Forms in the'actions here men- tioned, before a Justice, will be the same as in suits for the recovery of private debts before Justices, and will be found under the Title, — Summary Trials.] ,„ ..j-; t. XIIL Suspending Licenses, for violation of Enact- ments. 'hn7 mfriyift'^v''^-':B!^ 7t Bt Sec. 37, of the same Statute, — If any complaint shall be made on oath, to any two Justices of the Peace for any county or district, that any person liceniied to sell spirituous liquors by retail, keeps a disorderly house, or shop, or hath in any other respect neglected or refused to conform to the rules and regulations of this Act, or any other Act relating to licensed persons, it shall be lawful for such Justices, if the complaint shall appear to them to be well founded, to suspend the license of such person so complained against ; and to direct notice of such suspension to be given to hiin, by the Clerk of the Li- censes ; and if, after such notice, the person whose license has been so suspended, shall presume to sell or retail any wine, ale, cider, or perry, or any rum, or other strong or distilled spirituous liquors, until such suspension shall be removed, such person shall suffer and pay the penalties and forfeitures imposed hereby on persons convicted of selling spirituous liquors without license ; provided always, that the person or persons whose license has been so suspended, may appeal from the order of the said Justices, to the next General Ses- sions for the county or district ; and the complaint being re- SPIRITUOUS LIQUORS. 473 >N OF EnACT- inoved into the said Sessions, the Clerk of the Peace shall prepare and file an information accordingly, to which the ap- pellant shall plead without delay, and the cause shall be tried by a Jury ; and if the appellant is acquitted, such suspension shall forthwith be removed ; but if he be convicted, his license shall be wholly taken away, and his license bond shall be put in suit against him and his sureties. [Upon a complaint on this clause being made to the Jus- tices, the party charged must be summoned to appear and an- swer, and the matter be heard and determined betore the Jus- tices, in the usual manner. The Summons must be in the Form given in the before recited Act of the 7 W. 4, c. 48.] XIV. Selling Spirituous Liquors on Credit, and Se- curities AND Pledges for Payment of the same. . By the 2 G. 3, c. 1. IV. 77, No retailer, inn holder, tavern, or alehouse keeper, who shall sell upon trust or credit, any wine, strong beer, ale, brandy, rum, or other spirituous liquors, mixt, or unmixt, to any soldier, sailor, servant, or day labourer, or other person whatsoever, to the amount of any sum exceeding the sum of five shillings, shall have any re- medy to recover the same, either at law or in equity, against any of the persons aforesaid, their executors or administrators. Sec. 2. In case any soldier, sailor, servant, apprentice, bound servant, or negro slave, or other person whatsoever, shall leave any pawn or pledge as a security for the payment of any sum exceeding five shillings, contracted in such manner, be or she, or the masters or mistresses of such servant, appren- tice, bound servant, or negro slave, may complain to any Jus- tice ^f the Peace where such retailer, inn holder, tavern, or ale house keeper, or any other persons whatsoever, receiving such pawns or pledges, usually resides, that such pawn or pledge is detained from him or her by such retailer, inn holder, tavern, or ale house keeper, or any other person whatsoever, and having made proof thereof upon oath, or otherwise, to the satisfaction of said Justice, such Justice is required by warrant under his hand and seal, to compel such retailer, inn holder, tavern, or ale house keeper, or other person, by distress and sale of his goods, to restore the aforesaid pawn or pledge to the party complaining, or to make him or her satisfaction for the lessor abuse thereof; and shall further be subject to a fine not exceeding twenty shillings, for the use of the poor, and costs of prosecution. Sec. 4. Provided always, that nothing herein contained shall extend to debar any retailer, inn holder, tavern, or ale i ": -I ! -J 4,74, SPIRITUOUS LIQUORS. Notes, &c. by Servants and Labourers, for Spirituous Li- quors, to be void. Wearing Ap- pai'el. Tools, &c. not to be bought or tak- en in pawn from Servants or Labourers. Directions. house keeper, from furnishing any traveller, or boarders in his family, with necessary refreshments on credit. Perpetual. [On a complaint being made of this ofience» the party chained must be summoned to appear and answer, and the mat- ter must be heard and determined by the Justice, as in other cases ; and if the charge is proved, the Justice should at the same time impose the fine. The Form of such a Complaint, and also of a Summons, may readily be framed from the gene- ral Forms under the respective Titles, — Information, and Sum- mons. As it is not specified to what extent, or for what va- lue or amount, the distress is to be made, there seems to be much difficulty as to filling up and levying a warrant for the purpose.] By the 28 G. 3, c. 6. 1 V. 255, All notes, bills, spe- cialties, or agreements whatever, which shall hereafter be given to any person or persons whatsoever, by any servant, or common labourer, if it shall appear that any part of the sum due or secured by such bond, note, bill, specialty, or agree- ment, was given for or on account of any rum, or other spiritu- ous liquors, the same, and every part thereof, shalLbe void, and of none effect ; and all accounts or contracts, on which suits shall or may be brought against any servant, or common la- bourer, in which shall appear any charge made, directly or in- directly, for rum, or other spirituous liquors, the whole of such account or contract shall be null and void, and the party suing the same shall become nonsuit. Sec. 5. If any tavern keeper shall, by himself or any other person, buy or receive in pawn, any wearing apparel, tools, or implements of trade or husbandry, or any household goods or furniture, made up, from any servant or common la- bourer, such tavern keeper, or retailer, shall forfeit and pay for every such offence, a sum not exceeding forty shillings, and the bargain, sale, or pawning shall be ipso facto void ; and the articles, so purchased or received, be immediately restored, or double the value thereof, on pain of imprisonment not ex- ceeding one month, at the discretion of the Justice or Justices before whom complaint shall be made ; and all persons keeping a tavern, or retailing spirituous liquors, after the publication hereof, are always to keep a fair, legible copy of this Act, pasted or hung up in some public and conspicuous part of their house, under the penalty of ten shillings for every day's neglect thereof, to be recovered before any Justice or Justices of the Peace, on the complaint of any person or persons what- soever. Perpettial. For the recovery of the fine of forty shillings, first men- tioned in the foregoing clause, the same proceedings must be SPIRITUOUS LIQUORS. 475 iiad as in similar cases, by information and complaint, and by summoning the party charged, to appear and answer. The complaint and prosecution may, according to the terms of the clause, be either before one Justice or more. The requisite Forms of Information ; Summons ; Conviction ; and Com- mitment, may be framed from the general Forms contained un- der those Titles respectively, filling them up according to the facts stated or proved. The penalty of ten shillings last men- tioned, must also be sued for and recovered in like manner, and under the like Forms. It must be observed, however, that as no 6nal process is mentioned for levying or enforcing pay- ment of this penalty, no such final process can be issued by Justices. As the before recited Statute of the 7 W. 4, c. 48, has given brief Forms of the summons, and conviction, in prose- cutions upon any of the Acts relating to licenses, or licensed houses, it is thought that it may safely be inferred, that on a complaint for selling spirituous liquors without license, or in- deed for any other offence under the License Acts, where on- ly a summons is required, a formal information in writing, such as has in general been heretofore used, is not indispensably requisite, especially as any such information has never been required by any legal provision, and also, as a formal record of conviction, is now, in all cases under the said Acts, dis- pensed with by the aforesaid Statute, which declares, that the brief Form therein given, shall serve ^' to all intents and purposes whatsoever." It is considered, therefore, that in every such case where only a summons is requisite, a verbal complaint and statement to the Justices, by the Clerk of the Licenses, or other person informing, will suffice ; and on his requisition, the Summons may be issued immediately. In the event, however, that it should at any time be determined, that such formal in- formation is requisite, the following is a Form thereof for sell- ing without License, which has been generally used, and which may readily be altered and filled up, so as to serve in any other case under the License Acts. lU n; MOJIn 'ft>i M-i Lii'l'M •iin^A ■ ua n Information jor selling Spirituous Liquors leithout a Ldcense. Hi Ktt County of hundred and Be it Remembered, that on the — day of -, in the year of our Lord one thousand eight -, at in the said county, A. C. of in the said county. Clerk of the Licenses for the said county, who prosecutes as well on the behalf of our Lord the King, to the use of the said county, for the purposes by law provided, as for himself in this behalf, in his proper person cometh be- 11' (MS; 476 SPIRITUOUS LIQUORS. Directions. fore (IS, A> M. and A. R., Esquires, two of His Majesty's Justices of the Peace for the said county, and as well on be- half of our said Lord the King, to the use of the said county as aforesaid, as for himself in this behalf, pursuant to the Sta- tute in such case provided, giveth us the said Justices to under- stand and be informed, that within three months next before the said day above mentioned, to wit, on the — day of , in the year one thousand eight hundred and , at in the said county, one A. O., of in the said county, yeoman, did sell rum, [or wine, brandy, or gin, &c., as the case may be,] by retail, in a quantity less than , in the house of him the said A. O., situate and being at in the township of , in the said county, without being licensed thereto ac- cording to law, whereby, and by force of the Statute in such case made and provided, the said A. 0. hath forfeited for hi!> said offence, a sum not exceeding twenty pounds, nor less than five pounds, and also the charges of the prosecution of him the said A. O. for the said offence ; the said penalty to be distri- buted and applied as by law provided ; and that A. W. and B. W. of in the said county, yeomen, are material witnesses to be examined concerning the premises. And the said A.G. hereupon prayeth, that the said A. 0. may be convicted of the said offence, and that tlie penalty which the said A. 0. may be adjudged to pay as aforesaid, may be distributed and paid as the law directs, and that the said A. 0. may be summoned to answer the premises, before us the said Justices, and that the said A. W. and B. W. may be summoned to testify before us, their knowledge therein. Ju ii?*iLK,i^fi^.;^4>>#'^^%#V'£>4^f*«'«^ A. C. The Form of the Summons to be issued in any such case, is contained in the before recited Act of the 7 W. 4, c. 48. The manner of proceeding, on the hearing of the com- plaint before the Justices, will be the same in general as on the trial of other penal prosecutions, and information and di- rections on the subject will be found under the Titles, — Infor- mation, and Conviction. The prosecutor must always, if pos- sible, have the Clerk of the Peace present as a witness on tiie trial, to prove that the defendant is not licensed, as this pioof has, by some of our Judges, b^en held to be requisite. The prosecutor himself cannot be u witness, as he is entitled, on a conviction, to a part of the penalty. The costs of the prose- cution must be taxed and allowed by the Justices. Where a conviction takes place, it may be indorsed on the summons, in the form set forth in the said last mentioned Act. The foi- m SPIRITUOUS LIQUORS. 477 lowing will serve as ihe form of a Warrant of Distress, for le- vying the penalty imposed. -I^MPrt • ; i- Warrant of Distress. ' - i' '^ a i.te ■ ■'.(*■ County of > To A. T. one of the constables of the lown- ^ ship of , in the said county. vm m, [Seal.] [Seal.] Whereas, on the — day of , in the year of our Lord one thousand eight hundred and , A. 0. of in the said county, yeoman, was duly convicted before us A. M. and A. R. Esquires, two of His Majesty's Justices of the Peace, in and for the said county of , on his own confes- sion, [or on the oath of as the case may be] of having sold rum, [or wine, &c. as the case shall happen to be,] by retail, at in the township of , in the said county, on the — day of in the year one thousand eight hundred and , without being licensed thereto, according to law ; And whereas the said A. 0., on his said conviction, was by us the said Justices, for his said offence, adjudged to pay the sum of pounds, pursuant to the Statute in such case provided, besides the costs of his prosecution before us for the said of- fence, which charges we have ascertained and assessed at the sum of , pursuant to the Statute in such case provided ; and whereas the said A. O. hath not yet paid the said sums, or any part thereof ; these are therefore to command you, to distrain the goods and chatttels of the said A. 0., wheresoever they may be found within our jurisdiction, and on the goods and chattels so distrained, to levy the said several sums of — — - pounds and , and if within the space of five days next, after such distress by you made, the said several sums, toge- ther with the reasonable charges of taking and keeping the said distress, to be allowed by us the said Justices, shall not be paid, that then you do sell the said goods and chattels, and out of the money arising by such sale, that you do pay one moiety of the said sum of pounds, and also the said sum of , being the charges aforesaid, to A. C. of in the said county. Clerk of the Licenses for the said county, who in- formed us of, and prosecuted for, the said offence, and that you also pay the other moiety of the said sum of pounds, into the hands of him the said A. C, to be by him accounted for, and paid over for the use of the said county, pursuant to the Statute in such case provided, returning to him, the said A. 0., the overplus on demand, the reasonable charges of taking, keeping, and selling the said distress, being first de- ducted ; and you are hereby commanded to certify to us the 1. ■:■ ;t'' M H 478 SPIRITUOUS LIQUORS. said Justices, what jou shall have done, by virtue of this our warrant. Given under our hands and seals, at in the said county, the — day of , in the year of our Lord . -,-, ,-i;r.. ,...A i - fi. .*>,¥fh)tv i^' r»'^'-,i*'i< A. M., J. p. .f~ : .>, . , , |.l, /„ ;. .-^.f J .f^ .. \f^r^ .it '•* )i Return to be indorsed upon the Warrantt when no Goods can ^' ■ ' be found. M • I DO hereby certify to A. M., and A. R., the Justices within named, that the within named A. O, haih not any goods or chattels belonging to him the said A. 0., within the jurisdiction of the said Justices, whereof I can levy the within mentioned sums of pounds, and — — , or any part there- of respectively, as within I am commanded. Dated this — day of , in the year of our Lord . ■WB NTiiMTj!, rtF»i3f<^^ A. T., onc of tho Constables tw/- r'»A¥} oM'rrt'itjuV'.hovr^t^t.,. of-— — within named. •*'it /', -I' ■ ■ ^^^:,. 5 , ■■'■. ■■"■•■ -■:' ., within the vy the within ly part there- )ated this — he Constables in named. ^e Penalty. itables of the y, and to the — , in the said le year of our 0., of , convicted be- His Majesty's ty of J on s the case may case shall hap- )f > in the ar of our Lord being licensed said A. 0., on for his said of- ds, pursuant to charges of his ich charges we — , pursuant to eas the said A. nd hath not yet (rhereas, on the rrant to A. B.i — , command- SPIRITUOUS LIQUORS. ing him to distrain the goods and chattels of the said A. 0., wheresoever they might be found within our jurisdiction, and that the said constable should certify to us the said Justices what he should do b^ virtue of our said warrant ; And whereas it duly appears to us by the return of the said A. B., dated the — day of last past, tiiat the said A. O. hath not any goods or chattels belonging to him the said A. 0., within our jurisdiction, whereof he could levy the said sums, or any part thereof ; these are therefore to command you the said consta- ble, to whom this warrant is directed, to apprehend him the said A. 0., and him safely to convey to the said gaol at , aforesaid, and there to deliver him to the said keeper thereof, together with this precept. And we do hereby command you the said keeper of the said gaol, to receive into your custody in the said gaol, him the said A. 0., and him there safely to keep in close confinement, or to be there put to hard labour, for the space of three months, or until he the said A. 0. shall have sooner paid and satis6ed the several sums aforesaid ; and for so doing, this shall be your sufficient warrant. Given un- der our hands and seals, at , in the said county, the — day of , in the year of our Lord . A. M., J. P. -'i >;'i..^vi A¥t- ;.i::4. V A. R., J. P. ' Summons for a Witness, on an Information for selling Spirit- tious Liquors without License. •n County of ) To A. T., one of the constables of the town ) ship of in the said county. .. [Seal.] ' '"'•"'" [Seal.] Whereas information hath been made before us A. M. and A. R., Esquires, two of His Majesty's Justices of the Peace for the said county of -, by A. C. Clerk of the Li- censes for the said county, that A. 0. of in the said coun- ty, yeoman, did within three months previous to the said in- formation, at in the said county, sell rum by retail, with- out being licensed thereto according to law ; and the said A. 0. hath been summoned to appear before us, to answer to the said information, on the — day of in this present year, at — o'clock in the forenoon, at in the said coun- ty ; And whereas \\e have been informed that A. F. and A. W. of in the said county, yeomen, are material witnesses to be examined and give evidence relative to the said information ; These are therefore to require you to summon the said A. F. and A. W., to appear before us the said Justices, on , the said — day of in this present year, at the hour aforesaid, 479 rvnx^-AV). M. Ii>: ■i ''-.■; i-:;i 480 SPIRITUOUS LIQUORS. at ——aforesaid, to testify their knowledge concerning the pre- mises. Herein fail you not. Given under our hands and seals at , the — day of , in the year . ^ A. M., J. P. At Id.} w. X. «^i DirectioDt. The foregoing Sumnoons may readily be altered, so as to serve in any prosecution upon any of the Statutes concerning spirituous liquors, set forth under this Title. If the witness fail to appear according to the summons, after the same has been duly served on him, upon application being made to the Justices, it will be their duty to issue a summons against such witness, according to the Form set forth in the aforesaid Act of the 7 W. 4, recited under Division No. 8, of this Title. It does not seem to be requisite to take any formal information, or complaint in writing, before issuing such summons, for the same reasons as have been given with regard to a complaint for selling spirituous liquors without license. In this prosecution against the witness, the summons must be served on him in the usual manner, and the same proceedings must take place as in the course, and on the trial, of any other prosecution before Justices. If the witness fail to shew any reasonable and sufficient ground for his non-attendance in the original suit, and he is thereupon convicted of such offence, the conviction shall be indorsed on the summons, in the form, and according to the di reckons contained in the said Act before recited, and a warrant ol distress in the following Form shall be thereupon issued. Warrant of Distress^ to levy the Penalty for non-attendance as htk m-^'mimu^'-- > *• Witness. County of > To A. B., one of the Constables of the ) township of • in the said county. [Seal.] A?is\%i wf'.^it > [Seal.] Whereas, oh the — day of , in the year of our Lord one thousand eight hundred and , A. O., of in the said county, yeoman, was duly convicted before us, A. M. and A. R., Esquires, two of His Majesty's Justices of the Peace in and for the said county of , for that he the said A. W. was duly summoned to appear before us the said Justices, at in the said county, on the — day of , in the year aforesaid, to give evidence as a witness, on the trial of a certain prosecution then depending, and then and there to be tried, on the information and complaint of A. C, Clerk of the Licenses for the said county, against one A. 0., of in the said county, yeoman, for selling spirituous li- SPIRITUOUS LIQUORS 4Sl attendance tu stable!} of the quors by retail, without being licensed so to to, and foi 'hat lie, the said A. W., having been duly summoned as aforobdid, wilfully, and without any just cause, neglected and refused to appear before us, on the day last aforesaid, as such witness on the said trial, and to give evidence thereon as aforesaid, con- trary to the Statute in such case provided ; and whereas the said A. W., on his said conviction, was by us the said Justices, for his said offence, adjudged to pay the sum of ten pounds, pursuant to the Statute in such case provided ; These are therefore to command you, to distrain the goods and chattels of the said A. W,, wheresoever they may be found within our jurisdiction, and on the goods and chattels so distrained, to levy the said sum of ten pounds, and if within the space of six days next, after such distress by you mode, tlie said sum, to- gether with the reasonable charges of keeping the said distress, to be allowed by us the said Justices, shall not be paid, that then you do sell the said goods and chattels, and out of the money arising by such sale, that you do pay the said sum of ten pounds, into the hands of us the said Justices, to be by us paid over and applied, as by law directed, rendering the over- plus to him the said A. W., on demand, the reasonable charges of taking, keeping, and selling the said distress, being first de- ducted. And certify to us what you shall have done by virtue of this warrant. Given under our hands and seals, at , the — day of , in the year of our Lord one thousand eight hundred and . ■■'■'" A. M., J. P. '<* A» Kit, •!• MTt If no goods can be found whereon to levy, the constable must make a return thereof on the Warrant, according to the form of such return already given under this Title, in the case of the warrant of distress for selling liquors without license. Commitment for toant of distress from which to levy the Penalty for non attendance as a Witness, County of > To A. \ ship of ' [Seal.] of the common gaol at [Seal.] Whereas on the — day of Lord one thousand eight hundred and B. one of the constables of the town- , in the said county, and to the Keeper in the said county, in the year of our A. O. of m the said county, yeoman, was duly convicted, [Here recite precisely as in the foregoing waiTant of distress down to the word "These" &c., and then proceed as follows,] And whereas on the — day of last past, we did issue our war- .lU- J ■.■i'.-jO u n 4S2 SPIRITUOUS LIQUORS. rant to A. B., one of the constables of the township of aforesaid, commanding him to distrain the goods and chattels of the said A. W., wheresoever they should or might be found within our jurisdiction, and that the said constable should cer- tilV to us the said Justices, what he should do by virtue of our said warrant ; And whereas it duly appears to us, by the re- turn ul' the said A. K., the said constable, that the said A. W. hath not any goods or chattels belonging to him the said A. W. within our jurisdiction, whereof ho, the said constable, could levy the said sum of ten pounds or any part thereof; These are therefore to command you the said constable, to whom this warrant is directed, to apprehend the saiU A. W., and him safely to convey to the said gaol, at aforesaid, and there to deliver him to the keeper thereof, togetlier with this precept. And we do hereby command you tJie said keeper of the said gaol, to receive into your custody in the said gaol, the body of him the said A. W., and him there safely to keep for tho space of three months, or until the said sum of ten pounds shall be sooner paid and satisfied, anJ for so doing this shall be your sufficient warrant. Given under our hands and seals, at in the said county, the — day of , in the year of our Lord . „e,^,, ,„, A. M., J. P. Dircctiooi. If the witness appears on the trial, according to the sum- mons, but refuses to be sworn, or to give evidence, the infor- mation and summons against him are of course unnecessary, and the Justices may at once, on the spot, convict him for such refusal, and adjudge him to pay the ten pounds penalty, and may immediately, if required, issue the warrant of distress, and proceed to commitment, by the same course as already prescribed. The warrant of distress, and the commitment ia such case, may reduily be framed from the foregoing Forms, making the partial alterations obviously requisite. M^'vti Complaint against a Tavern keeper, for suffering certain per- .f, sons to remain in or about his house, drinking, or idly j^,, spending their time ; on the 2 IV.4, c. 3, Sec. 25. Cjpunty of) The information and complaint of A. C. of ) , in the said county, yeoman, made on oath the — day of , in the year of our Lord one thousand eight hundred and , before me A. M., Esquire, one of His I Majesty's Justices of the Peace in and for the said county. The said A. C , saith, that A. O., of , in the saiid SPIRITUOUS LIQUORS. coiMiiy, tavern keeper, on llio — day of , in tlie year uforesaid, being the Lord's day, commonly called Sunday, did entffriain and suflcr one A. I., labourer, and divers other per- sonr all being inhabitants of the said town of , to remain drinking, [or idly spending their time, as the case may bc,| in and about the lavern and dwelling house of him the said A. 0., al t^G town of oforosaid — [or, if they are not inhabitants, say, -did entertain and suffer one A. 0., of in tho county of , yeoman, and divers other persons, to remain drinking, [or as tho cose may be,] in and about the luvurn and dwelling house of him the said A. O., at aforesaid, the said A. D., and the said othc r persons, not being strangers or lodgers in the said house of the said A. O., and not having then gone thither for necessary dieting and victualling only.] A. C. Before me, A. M., J. P. .i., • Warrant thereupon. County of To A. B., one of tho Constables of the township of in the said county. [Seal.] ^: '^' Whereas information and complaint on oath, hath been made before me, A. M., Esquire, one of His Majesty's Jus- tices of the Peace in and for the said county, by A. C, of in the said county, yeoman, that A. 0. of in the said county, tavern keeper, on the -■. dafy of , in the year of our Lord one thousand eight hundred and being the Lord's day, commonly called Sunday, did entertain and suffer one A. L, labourer, and divers other persons, all being inhabitants of the said town of , to remain drinking, [or' idly spending their time, as the case may be,] in and about the tavern and dwelling house of him the said A. 0., at the town of aforesaid, [or if they are not inhabitants, say, as before in the information, — did entertain and suffer one A. D., of in the county of , yeoman, &c.] contrary to the Statute in such case made and provided ; These are there- fore, in His Majesty's name, to require and command you, forthwith to apprehend the said A. 0., and to bring him be- fore me, to answer unto the said complaint, and to be further dealt withal according to law. Herein fail you not. Given under my hand and seal, at , the — day of , in the year above written. , A. M., J. P. . >h1 -^ 4S3 ' I.' .'lU r, I 484 SPIRITUOUS LIQUORS. Directions. When the party is brought before the Justice on the ivar- rant, if he produces a surety or sureties, to the satisfaction of the Justice, they raust, pursuant to the terms of the Act, be bound in a recognisance, in such respective sums as the Jus- tice in his discretion shall think reasonable ; conditioned for the appearance of the party at the next term of the General Sessions in the county, there to answer to the complaint, and in the mean time to be of good behaviour ; and the Justice must also, in the usual manner, bind over the witness or wit- nesses, to prosecute and give evidence at the same Sessions. The manner of taking such recognisances, and the Forms thereof, will be as in similar cases, and will be found under the Title, — Recognisance. If the party neglects or refuses to find such surety or sureties, and to be bound as required, the Jus- tice must, as directed by the Act, commit him lo gaol ; the commitment for which purpose, may be after the following Form : :.,'' .';y" -^^^ -^ .ift:J.'.t.-,!<.' Commitment. County of) To A. 5 township of 6., one of the Constables of the in the said county, and also to [Seal.] the keeper of His Majesty's f;aol for the said county. Whereas information and complaint hath been made before me, A. M., Esquire, one of His Majesty's Justices of the Peace in and for the said county, by A. C., of in the said county, yeoman, that A. 0. of in the said county, tavern keeper, on the — day of , in the year of our Lord one thousand eight hundred and , being the Lord's day, commonly called Sunday, did entertain and suffer one A. I., labourer, and divers other persons, all being inhabitants of the said town of , to remain drinking, [or idly spending their time as the case may be,] in and about the tavern and dwelling house of him the said A. O., at the town of aforesaid, [or, if they arc not inhabitants, say as before in the complaint.] And whereas the said A. O. was this day brought before me on my warrant, to answer unto the said complaint, uud on his being so before me, I did require him the said A. 0., to find one sufficient surety, and to enter with such surety into a re- cognisance before me, for the appearance of the said A. 0. at the next General Sessions of the Peace in the said county, there to answer to such complaint, and in the mean time to be of good behaviour ; and insomuch as the said A. O. hath re- fused to find any such surety, and to enter into such recogni- zance as aforesaid, I do therefore hereby require and command SPIRITUOUS LIQUORS. you the said constable, forthwith to convey the said A. 0. to the common gaol of the said county, and to deliver him to the keeper thereof, together with this warrant : And I do also re- quire and command you the said keeper, to receive the said A. 0. into your custody in the said gaol, and him there safely to keep, until he shall find such surety, and enter into such re- cognisance as aforesaid, or until he shall be thence delivered by due course of law. Herein fail not. Given under my hand and seal, at , the — day of , in the year above written. A. M., J. P. If the ofience takes place on the view of the Justice, the information is of course needless, and the warrant may be im- mediately issued, and on the party being brought before the Jus- tice, the same proceedings must take place as before directed. The warrant in such case may be in the following Form : JVarranL 485 one of the Constables of the • in the said county. County of ) To A. B. ) township of — [Seal.] Whereas A. O., of the town of , in the said county of , tavern keeper, on the — day of , in the year of our Lord one thousand eight hundred and , being the Lord's day, commonly called Sunday, did in the view of me, A. M., Esquire, one of His Majesty's Justices of the Peace in and for the said county, entertain and suffer one A. I., la- bourer, and divers other persons, &c. [here proceed exactly in the same words as in the warrant last given, quite to the con- clusion.] The commitment in this case, of the offence being on view, may be readily filled up from the aforesaid warrant, and the preceding Form of Commitment. If the complaint is, — for suffering disorderly persons, or hired servants, apprentices, or persons under the age of twenty- one years, to resort to a tavern, or shop, at any time through- out the week, to idle or misspend time, or to drink liquor therein, the information, warrant, and other papers, must be filled up accordingly, which may readily be done, with the assistance of the foregoing Forms. The other proceedings, in every such case, will be the same as before directed. i'J^'3 1 I » . ■. ■■' -■,*. ■ 11 •)■* « '■ 0MM^^{^^86) ''^^'^^ ^\fi.iji^i. :i*il ^ STABBING, see HOMICIDE. »1 Q'A.: .■:. STEALING, see LARCENY. ■■mifu ■ '^J»'^/6'i' SUMMARY TRIALS. This Title includes an extensive and most important branch of the jurisdiction and duties of a Justice of the Peace, arising under a general Statute of this Province, which gives them that jurisdiction with regard to the recovery of private debts of a li- hiited and small amount. The Statute referred to, is of a tem- porary description ; but the jurisdiction on this subject was ex- tended to Justices in the earliest period of our legislation, and has nearly ever since been prolonged, by various Statutes from time to time passed; and it is most probable will still be conti- nued. The divisions under which the subject is here arranged, and the manner in which it is treated of, will, it is hoped, be found the most useful and convenient to Magistrates. Such an extended and comprehensive consideration of the subject, seems indeed to be almost indispensable, in any attempt to af- ford them the requisite information on a part of their duty so important in itself, and which they are so frequently required to perform. It must be borne in mind, that in exercising this summary jurisdiction. Justices are not empowered to determine according to what tht\^ may deem to be equitable, but are to decide agreeably to the same rules of law which govern in the highest Courts ; and it is quite possible that as great a variety of such rules may apply, and as many legal doubts and diffi- culties may arise, in an action for the recovery of three pounds, as in one for the largest amount. In the next place, it can be no reflection upon the gentlemen in the Commission of the Peace to say, that but very few of them are even generally versed in the various branches of the law. It could not rea* sonably be expected to be otherwise. These things being considered, it is highly requisite that suitable information and directions should be afforded them, regarding this widely ex- tended branch of their jurisdiction, so that their decisions may at least be consistent with the general rules and principles of our laws. An endeavour to that effect is here made, and it is trusted that it will be found to be accomplished in some useful degree. f;'\'1 _ l( t s. >ortant branch ?eace, arising ves tiiem that ! debts of a li- ), is of a tem- ibject was ex- gislation, and Statutes from still be conti- here arranged, is hoped, be Urates. Such if the subject, I attempt to af- their duty so lently required exercising this d to determine le, but are to I govern in the great a variety )ubts and diffi- three pounds, ace, it can be mission of the even generally could not rea- e things being nformation and his widely ex- decisions may id principles of made, and it is in some useful . I. II. III. IV. V. VI. VII. SUMMARY TRIALS. The Several Statutes relating to the re- covery OP Debts before Justices of the Peace. Of the Persons who MAY, and those who MAY NOT Sue or be Sued in such cases ; AND HEREIN, OF THE JoiNDER OF PARTIES. Of THE Time limited by Law for the re- covery OF Debts, and establishing mat- ters of Defence. The Order and Manner op Proceeding in instituting and conducting such Actions. The grounds or causes of Action in gene- ral, with the general Rules of Law AND Evidence relating to the same, respectively, and herein, of the Sta- tute of Frauds. Of the Defendant's Set-off. Of Judgments, and the Proceedings at- tending AND following THE herein, — of ApPEALS.t ■■''^ Direction and Service (of Suniaiona. Justices not to have jurisdic- tion over cer- tnin cauyeii of action. 62 ' r * »^» ! ! M „•?.». T^rit 1" '0 488 SUMMARY TRIALS. Debts not ex- ceeding £3. to be recovered before one Justice, and not exceeding £5. before two Justices. Execution. I^roviao as to an Arrest. miting its duration, and therefore in its /dnn it may be consi- dered as Perpetual, yet it seems quite doubtful if any part of it is now in force, as one of the two Acts of which it is intituled to be in amendment, was soon after expressly repealed, and the other, which was only a temporary Act, has long since ex- pired, and various other enactments on the same subject have been from lime to time passed.] By the general Statute of the 3 G. 4, c. 30. 3 V. 134, it is enacted, that, — It shall and may be lawful for any person or persons, who have debts owing to him or them by any other person or persons, where the whole dealing or cause of action shall not exceed five pounds, to sue for the same in the manner following, that is to say, — if the sum demanded shall not exceed three pounds, to cause such debtor to be summoned to appear before any one Justice of the Peace of the county or district where the debtor shall reside ; and if the sum demanded shall be more than three pounds, but does not exceed five pounds, to cause such debtor to be summoned to appear before any two Justices of the Peace, of the county or district where the debtor shall dwell : and the said Justice or Justices, after such summons issued and duly served, is, and are hereby empower- ed to proceed to make up final judgment between the parties ; and shall allow the defendant to produce his account against the plaintiff, or any receipt or other discharges, for payment made, either in whole or in part ; and the said Justice or Jus- tices shall examine and enquire into the merits of both accounts, and of such discharges, and by such other proof as to him or them shall seem requisite, or upon confession of the debtor, to ascertain the debt due, and to decree the payment thereof; and to award costs as he shall find, whether for the plaintiff or defendant, without appeal, unless the debt, or cause of action, shall amount to twenty shillings or upwards, any law, usage, or custom to the contrary notwithstanding. Sec. 2. If any debtor, after being duly summoned to appear, shall, without just cause to be allowed of by the said Justice or Justices, refuse or neglect to perform such decree or judgment as shall be made, concerning such debt as afore- said, it shall and may be lawful for such Justice or Justices, to issue execution against the goods, chattels, or body of such debtor, for the sum awarded, with costs : which execution shall be returnable in twenty days from the day on which it shall be issued. Provided always, that no person shall be arrested in any case, for a debt due by him under twenty shil- lings, nor for any larger debt, not exceeding three pounds, un- less, in addition to the affidavit of the debt, the party applying shall also make oath, that he verily believes that, unless a writ of capias be allovt^ed, the debt will be lost. SUMMARY TRIALS. 489 Sec. 3. The summons or capias shall be served on such Time of Ser- clefendant at least three days previous to the day on which such ^'''®- writ shall be made returnable as aforesaid. Sec. 4. The Forms of the writs of the summons, ca- Concerning pias, and execution, to be used by the Justices of the Peace Forms of pio- under this Act, shall be the same in every respect as those '^'^'"*" described in an Act made and passed in the forty-eighth year of the reign of His Majesty King George the Third, entitled, " An Act Tor the Summary Trial of Actions." Sec. 5. The fees to be taken and received in all causes ?; before such Justice or Justices shall be as follow : Justice's Fees. On Writ of Summons,— Two Shillings. On Capias and Affidavit, — Two Shillings and Sixpence. On Judgment, — One Shilling. On Execution, — One Shilling. < ' Constable's Fees. Service, — One Shilling. Travel, — Three-pence per mile. ff'itnesses. Each, — Two Shillings and Sixpence, and Travel,— Three-pence per mile. > ^^m'mi \-myn'i-.\ Subpoena, — One Shilling. owiM' M Sec. 8. If any Justice or Justices shall ask, demand, or Excessive receive any greater or other fees than are herein allowed, he *^^'" or they shall forfeit and pay a fine of ten pounds, together with costs, to be recovered in any action or suit, by him or them that will sue for the same, in any Court of Record within the county, where such greater fee or fees than are herein al- lowed shall have been received. Temporary, v» The Forms of writs, mentioned and referred to in the foregoing Act, are as follow : — m Summons, .fSiS County of > To \ You aVe hereby required to summon A. B. of — , [Seal.] to appear before — — on the — day of , at — o'clock, in the , to answer to C. D., in the sum of 4.90 SUMMARY TRIALS. itip'.-h)' "V^ ..v^,'<5,i and make return hereof on or before said day. Witness - hand and seal, ihe — ^. ii/!;fioj>''ii!4;;ost»iijtvim' A. M., J. P. •i".i) V). ..'! • 'Capias. 'vU. County of To either of the Constables of [Seal.] You «re hereby commanded to take A. B. of ^ and him safely keep, so that you have him before , at , on the of , to answer to C. D., in — — . Hereof fail not, and have then there this writ. Given under — hand and seal, at , the — day of i ,, .:r^v.; -Cfif •-.n-.^; J iir- Execution. A. M., J. P. f^> : County of To yf »>:./■ ;M [Seal.] Whereas judgment hath been awarded against A. B., of , at the suit of C. D., for the sum of , and more for costs ; These are to command and require you, to levy from off the goods and chattels of the said A. B., the said sums, making together , by sale of the said goods and chattels ; and for want thereof you are hereby commanded to take the body of the said A. B., and him to commit to His Majesty's gaol in , there to remain until he pay the sum above mentioned, with your fees, or that he be discharged by the said C. D., or otherwise by order of law. Hereof fail not, and make return of this writ to me within twenty days. Wit- ness my hand and seal, the . 'ro •.'.•uu':-jt)« sJt!t)'mnir-3H».iM'a#«*>r a^'S|'#>. ^ A. M., J. P. [Note. The foregoing writs may be directed thus :— " To either of the Constables of in the said county ;" or in this manner, — " To A. C, one of the Constables of , or to either of the other Constables of in the said county No constable can execute any such writ out of the jurisdiction of the Justice, nor out of the township for which he is appoint- ed, unless specially named for that purpose in the writ. If the ^ji^ction is before two Justices, the writs must of course be filled up in the names of both, and be signed and sealed accordingly.] By the 6 G. 4, c. 10. 3 V. 210, made in continuation and m SUMMARY TRIALS. 401 ii *•■;•[ ected thus :-- jontinualion and amendment of the foregoing Act of »he 3 G. 4, c. 30, it is provided, that '* Nothing contained in the Act hereby conti- nued, shall extend or be construed to extend, to permit the trial of any action, in a summary way, which may involve the title to land. Duration not limited. The following is the Act of the 7 W. 4, c. 60, Sess. 1837. — Sec. 1, continues the two Acts herein before recited, except as hereby altered or amended. Sec. 2. It shall be lawful for any two Justices of the Peace, to proceed in and with, and to give judgment, and is- sue execution, in any action or suit, which, if the whole deal- ing or cause of action therein did not exceed five pounds, could or might now, under the Acts hereby continued, be tried and determined before such two Justices, in the same manner, and by the same course of proceedings, as by the said Acts hereby continued, or hereinafter is directed, notwithstanding the cause of action or whole dealing shall exceed five pounds ; provided, that the cause of action, or whole dealing in such action, do not exceed ten pounds. Sec. 3. In every case where the whole dealing or cause of action shall exceed five pounds, the summons or capias shall be served upon the defendant or defendants, at least six days before the day on which the same shall be returnable. Sec. 4. If either the plaintiff or defendant, in any action in which the whole dealing or cause of action shall exceed five pounds, shall, two days before the day on which the writ of summons or capias shall be returnable, notify any one of the said Justices, that it is the desire of such party, to have a Jury in such cause, then the said Justice shall issue a venire, direct- ed to any constable, not being a person of kin to either party in the cause, or interested in the event thereof, commanding such constable to summon a Jury of three fit and proper per- sons, of and from the neighbourhood, to appear before the two Justices who are to try such action, at the time and place when and where the defendant is summoned, or bound and re- quired to appear. Sec. 5. Every Juror, so summoned, who shall neglect to appear as required by the venire aforesaid, shall be held to be liable to a penalty of five shillings, which shall be levied by warrant of distress against the goods and chattels of such Juror, to be issued by the said two Justices, upon the oath of the said constable that he summoned such Juror, at least twenty- four hours before the time he shall be required to appear, un- less such Juror shall make it appear to the said two Justices that he had some legal and sufficient excuse for his absence. Sec. 6. Such Jury shall be sworn by one of the said Actions invul- viiig Titles to Loud nut to Ije tried liefui'tt Justices. D«bts bo- tween £5 and XlO may be recovered be- fore two Jus- tices. Service of I'rocess. Jury may be ordered. Juror not ap- pearing. Trial and Ver- dict. 4,d2 SUMMARY TRIALS. Cliallen^'ins; Jurors. Discharging Jury. Fees. Set Ofl. • i.."? . U,' two Justices, before whom such cause shall be tried, in the presence of both Justices, and in open court, well and truly to try the cause, according to the evidence, and the allegations of the parties ; and the evidence of the witnesses shall be made and delivered in the presence and hearing of the said Justices and Jury so impannelled ; and having heard the directions of the said Justices, the Jury shall, if they require it, retire to some convenient apartment, under the charge of some consta- ble, duly sworn to keep such Jury together without meat or drink, and not to suffer any one to speak to them, or to spcnk to them himself, without leave of the said Justices, and shall, when agreed, return their verdict ; whereupon judgment shall be given for the party in whose favour such verdict shall be re- turned, with costs. Sec. 7. Either party shall be permitted to make any le- gal challenge for cause, to any of the said Jurors ; and if any such challenge be allowed ; or in any case where any person shall not appear, who is summoned, the said Justices shall di- rect the said Jury to be filled up, by any person then present, who may not be liable to any such legal challenge, or by di- recting any constable to summon any other person, not liable to such challenge ; and if, after hearing the testimony and par- ties, and direction of the Justices before whom such trial shall be had, such Jury shall find it impracticable to agree on their verdict, they shall be discharged, and a new Jury summoned for another day, which shall be appointed for the trial of the cause. Sec. 8. The fees to be allowed, for and in respect of any cause tried by a Jury as herein before directed, over and above, and in addition to the fees already allowed by law, for causes between three pounds and five pounds, shall be as follows : — To the Justice, for the Venire, — One Shilling. »f To the Constable, for summoning the Jury, — One Shil- ling. To each Juror, — One Shilling. — t Sec. 9. Whenever, in any case, a defendant or defen- dants shall, before any Justice or Justices, as a defence, pro- duce a set-off, it shall be lawful for the Justice or Justices to enquire into and determine upon such set-ofi'; and in case of finding it sufficient in amount to meet the plaintiff's demand, to give judgment for the defendant or defendants, with costs of the defence, whether the amount of such set-of}" shall or shall not be greater than the sum for which a plaintifTcould or might maintain an action against the said defendant or. defendants. Provided always, that where such set-off shall be of greater SUMMARY TRIALS. 493 )n, not liable r-. i. ,. -li I nmount than the sum for which an action might he maintained hefore such Justice or Justices, the said Justice or Justices shall not give judgment in favor of the defendant or defendants, for any excess of such set-oft*, over the claim or demand of the plaintift'or plaintiffs, but only for the costs of the defendant or defendants- Sec. 10. In case of any appeal from the judgment of Appeal any Justice or Justices of the Peace, before such appeal shall be allowed, the party making the same, shall make and file with such Justice or Justices, an affidavit in writing, that he is really disatisfied with such judgment, and feels aggrieved there- by, and that such appeal is not prosecuted solely for the pur- . " pose of delay. Sec. 11. When any plaintiff or plaintiffs 'shall sue out Filing stntc- any writ of summons, or capias, such plaintiff or plaintiffs ment of de shall file with the Justice or Justices, an account or written '"""<^- statement of his demand against the defendant or defendants, at the time of issuing out such writ ; and if such action be brought on any written instrument, shall file the same with such Justice or Justices. Sec. 12. Nothing in this Act contained, shall extend to the counties of Cape Breton, Richmond, or Inverness. Dura- tion not limited. Note. It is proper to observe here, that no pert of any Summary tri of the foregoing Statutes is at present of any force or eftect als in the !s- within the counties of the Island of Cape Breton. The sum- ^iif ^^^^ mary trial of actions before Justices, for the recovery of debts, is established and regulated in all of those counties, by the Sta- tute of the 7 W. 4, c. 59, Sess, 1837, which is the only Sta- ' •;'= tute on the subject now in force therein, and the several enact- ments of which are as follows : tA.- ,.( if !v: Sec. 1. The Act for establishing Courts of Commis- sioners in the Island of Cape Breton, is hereby repealed, from •* and after the first Wednesday of May next ; on which day, and after the passing hereof, this Act shall come into opera- ,^ tion ; and the parties who shall have obtained judgments before that day, in any of the Courts established under the aforesaid Act, shall have power to issue execution thereon, and to en- force the same, in like thanner as if such Act had not been re- pealed. Sec. 2. After the first day of June next, all debts owing ^^^JJ^J^^ "JJ by any person within the said Island, where the whole dealing ceeding£5 in or cause of action shall not exceed five pounds, may be sued the island of for and recovered before one Justice of the Peace, if the ba- ^'^P^ Breton. 494 SUMMARY TRIALS. Uegulationa. Filing state- ment of de- niaud. Who ahall ■erve Writ. Service of Writ. Arrest. Certifying ser- vice of Writ. ,.;:i;-■M^v lance or sum demanded do not exceed three pounds ; and be- fore two Justices of the Peace, if the balance or sum demand- ed be more tlian three, and do not exceed five pounds ; and such Justices shall have no jurisdiction or cognizance whatever, of any other causes of action, excepting only for debts as aforesaid, and in such other ca^es as are now, or hereafter may be provided by law. Sec. 3. The following regulations shall be strictly ob- served and kept, in all civil suits to be commenced and prose- cuted before Justices of the Peace in said Island, that is to say : — 1. Every person applying to a Justice for process, shall, at or before the issuing of the same, file with the Justice before whom such process shall bo returnable, a statement or particular of his demand or cause of action, or the promissory note, or other instrument on which he sues ; and the defen^ dant shall be entitled to a copy of such statement, note, or in- strument, when he shall require the same to be furnished to him by such Justice, without fee therefor. 2. The writs of summons, capias and executions, to be used by the Justice, shall he in the Forms annexed to this Act. 3. Writs of summons and capias, may be served by any constable of the county where the defendant resides, or by any other person who can read and write, and may, at the instance of the plaintiff, be specially appointed by the Justice, and whose name shall be indorsed by the Justice on the writ, at or before the delivery thereof to such person ; provided, that no person other than a constable, shall be entitled to any fees upon the service of such writ. ij^iwrhiul 4. Writs of summons and capias shall be served at least six days before the time of appearance, by delivering a copy thereof to the defendant, and the constable or other per- son serving the same, explaining the meaning and contents thereof, if required so to do. 'S ..tu*t:! .u*r'# * 5. No person shall be arrested in any case, for a debt due by him under twenty shillings, nor shall any person be ar- rested for a debt exceeding twenty shillings, and less than three pounds, unless in addition to an affidavit of the debt, the plain- tiff or his agent shall also make oath, that he verily believes tlie debt will be lost if a writ of capias is not allowed. 6. The service of process shall be authenticated, by an affidavit to be made by the constable or other person serving the same, before any Justice, certifying that he has delivered a copy thereof to the defendant, and explained the meaning and contents thereof, if required so to do ; and without such affidavit, or the defendant personally appearing to answer the suit, the Justice shall not proceed therein. SUMMARY TRIALS. 495 4' e furnished to 7. When the plaintiff and defendant reside in the some township, the suit shall be brought before a Justice residing therein. Provided, there is a Justice residing' in such town- ship, and if not, the suit shall be brought before the Justice residing nearest to the limits of such township. 8. The hearing of nil suits shall be commenced between the hours often o'clock in the forenoon, and four o'clock in the afternoon, and shall always be open to the public. 9. In all cases where the plaintiif's demand or cause of action, is not confessed by the defendant, in person, or in writing under his hand, the same shall be established, whether the defendant appear oi no, on the oath of one credible wit- ness ; except only where the plaintiff sues on a promissory note, in which case, if the defendant do not appear, it shall be sufficient, when there is a subscribing witness, to prove his hand writing, by himself, or any other witness ; and when there is no subscribing witness, to prove the making of such note by the defendant. 10. Whenever the defendant shall establish a set off, arising out of a debt, and equal to the demand proved by the plaintiff, or any other sufficient defence thereto, the defend- ant shall have judgment entered for him, with costs. If the set off be less than the plaintiff's debt, the plaintiff shall have judgment for the residue only, with costs ; and if it shall ex- ceed the plaintiff's demand, as proved, and the whole amount of such set off do not exceed five pounds, the defendant shall have judgment for the excess or balance, with costs. 1 1 . Whenever a defendant shall prove that he has ten- dered the amount before suit, and shall pay the same, at or before the trial, unto the hands of the Justice, he shall be en- titled to a judgment for his costs, to be paid by him out of such money. 12. When any judgment shall exceed twenty shillings, either party may appeal to the Supreme or Inferior Court, at the next term of the one or the other which is to happen and be held, next after such Judgment has been given, in any of the counties, respectively, in said Island ; and such party appealing, or his agent, when he himself is absent, shall make and file an affidavit in writing, which the Justice shall administer, that he is really dissatisfied with, and feels aggrieved by such judgment on the merits, and does not appeal therefrom, solely for the purpose of delay ; and such party appealing, or his agent, when he himself is absent, shall likewise enter into a bond with two sufficient sureties, in a penalty of double the amount of such judgment, and with a condition thereto annexed, that the party, so appealing, shall abide by and perform the judgment of 63 Refore wli»t JuHtii-o Buit dIihII bfl. Time of lioar- iiig. Proyinji plain- till 'i deniand. Sflt ofl*. Tender. Appeal. ■j^5y> r.f'"*> ^ ,f". ' ; if, I If I mi SUMMARY TRIALS. •i' ' Procctlings un A{ipi>Hl. Return ofEx- Mution. iHuing Exe- cotioDt. Lerying Exe- •ntion. Selling Goodi taken. tlie Court to which such appeal shall be made and allowed, and which said bond and condition shall bo in the Form an- nexed to this Act. 13. When such ofTidavit and bond ore duly made, or offered to bo made, ot any time within one month after judg- ment, the Justice shall allow such appeal to the Supreme or Inferior Court, according as the next sitting of tho one or the other is to happen and be held, first after the allowance of the appeal ; and execution, if not issued, shall be thereafter en< tirely stayed ; anH on the first day of tho next sitting or term of the Supreme or Inferior Court, to which such appeal hath been allowed, unless he shall receive notice in writing, signed by both parties or their agents, to the contrary, the Justice shall retain and file, to and with the Clerk of such Court, all the papers and proceedings i.i the cause, with a transcript of the judgment, and the appeal bond, and affidavit aforesaid ; and the party appellant shall enter such appeal, upon the docket of sub-summary causes in said Court, and the Court shall proceed to examine the witnesses, and hear the said cause in a summary way, or shall order a Jury therein, if they shall think fit, and final judgment shall bo given on such appeal ; with the like costs as are now allowed in sub-sunin)ary causes ; and execution shall be issued thereon, for the amount of the judgment and costs : which judgment, in the event of the original judgment being reversed after the same has been enforced, shall include the full amount levied by virtue thereof ; but if the party appellant shall not enter his appeal in such case, the original judgment shall be affirmed, at the instance of the opposite party, on the last day of the Term, with sub-summary costs, and execution shall be issued thereon. 14. Every execution on any judgment, shall be return- able in thirty days from the day on which it issued. 15. No execution shall be issued by a Justice, after the expiration of one year from the time of rendering judgment ; and if it be returned in whole or in part unsatisfied, a further execution, for the amount remaining due thereon, may be issued. IG. The constable to whom any execution shall be deli- vered, shall proceed forthwitii to levy the same, and unless the debt and costs be paid, shall take sufficient goods and chattels of the party against whom the same is directed, to satisfy the same ; and shall advertise the said goods and chattels in two or more public places in the towrship, for sale by public auction ; and such advertisement shall describe the goods and chattels taken, and shall be put up at least five days before the time ap- pointed for the sale. 17. At the time and j^lace so appointed, if the amount SUMMARY TRIALS. 497 if the amount remain unpaid, tho constnblo shall expose the goods to sale at auction to the highest bidder — he shall forthwith return tho ex- ecution, und pay the debt and costs levied, to the plaintiff, or his agent duly authorised, returning the overplus, if any, to tho person against whom the execution issued, or his agent duly authorised, or in his absence to the Justice who issued tho same, for the use of such party ; if the goods shall remain un- sold for want of buyers, the constable may adjourn the time of sale for ony period not less than twenty-four hours, nor more than six days, and may in such case proceed to advertise anew, and sell tho same, after tho return day of the execution ; but immediately after such sale he shall make return and payment as above specified ; and whatever goods remain unsold, after the execution is fully satisfied, shall be restored to the party from whom the same were taken. 18. No constable shall, directly or indirectly, purchase any goods or chattels at any sale made by him upon execution, but every such purchase shall be absolutely void. 19. For want of goods and chattels whereon to levy, the constable, unless otherwise directed by the party in whose fa- vour such execution hath issued, i^hall take the body of the person against whom the execution is directed, and convey him to the common gaol of the county, the keeper whereof si)»ll keep such person in safe custody, until the debt and costs shall be paid, or he is thence, discharged by due course of law ; and for every person so committed to gaol on execution, the keeper shall be entitled to a fee of two shillings, and no more. 20. Every person so committed to gaol, shall be en- titled to the full benefit of the Acts made for the relief of In- solvent Debtors. 21. If a constable neglect to return an execution within ten days of the return thereof, unless with the consent of the party in whose favor the same was issued, or negleet to pay over the money received or levied thereon, for the space of five days after he shall have received the same, or to pay over the overplus as aforesaid, on demand, the party entitled thereto, may maintain an action for money had and received, against such constable, and shall recover therein the amount of the execution, or of the overplus thereon, with interest from the time such money was received ; and a Justice of the Peace shall have jurisdiction of such action, though the amount claimed exceed five pounds. "--. Sec. 4. The fees to be taken in all causes before such Justice or Justices, shall be as follows : — Constable not to purcliavo goods. Taking bodj OD Lxoculioo. InRolvent Debtorii. Constable Tail- ing in duty under Exeou- lion. t^-:*» '■ I I •! ^ .-J J 4,96 I . Excessiva Fees. Explanation of tenng. SUMMARY TRIALS. Justice's Fees. On Writ of Summons, — Two Shillings. ,1,0175..^ , On Capias and Affidavit, — Two Shillings and Sixpence. On Judgment, — One Shilling. On Subpoena, — Sixpence. On Exeaution, — One Shilling. Constable's Fees. Service of Process, — One Shilling. Travel, — Three-pence per mile, to be computed from the place where the process is returnable, to the place of residence of the defendant. Poundage on sale of goods, and paying over the pro- ceeds, — Sixpence per pound. Witnesses' Fees. Each, — Two Shillings and Sixpence ; and Travel, — Three-pence per mile, to be computed from the witnesses' place of residence within the county, to the place where the process is returnable. Sec. 5. If any Justice, or constable, or gaoler, shall ask, demand, or receive, any greater or other fees than are herein allowed, he or they shall forfeit and pay a fine of five pounds, together with costs ; to be recovered in an action of debt, by any one that will sue for the same, in the Supreme or Inferior Court for the county ; and such action shall be com- menced by a writ of summons, setting forth, that the defendant therein is indebted to the plainiift*, by virtue of this Act, in the amount of the said fine, and declaring the fees, in respect whereof the same is demanded ; and such action shall be heard and determined in a summary way, unless the party shall de- mand, or the Court shall think fit to order, a Jury to try the same. Sec. G. Whereas in the foregoing provisions, one Jus- tice is named, the same shall be understood as applying to the Justice who shall first sign the writ, in all cases where two Jus- tices must be present at the trial ; and whereas, words import- ing the singular number, or the masculine gender, are used ; yet the said provisions shall be understood" to include several matters, as well as one matter, and several persons as well as one person, and females as well as males. Sec. 7. This Act shall continue and be in force for two years, and from thence to the end of the then next Session of the General Assembly. ♦ SUMMARY TRIALS. Form of Summons. To either of the Constables of f (yeo- You are hereby required to summon A. iJ. of , man,) to appear before -, at , on the — day of , at — o'clock in the , to answer to C. D. in the sum of , and make return hereof on or before the said day. Wit- ness hand and seal, at , the — day of . *P- ''I. !■ rn A. M., [Seal.] J. P. Capias. 'ii^]'j.ii hnii ,.<{ ,>> >ti;j To either of the Constables of [Seal.] You are hereby commanded to take A. B. of , (yeoman,) and him safely keep, so that you have him before , at , on the — day of , to answer to C. D. in the sum of . Thereof fail not, and have then there this writ. Given under hand and seal, at , the — day of . By oath for . ..... A. M., J. P. : :^: Execution. 499 s H. 'ij'I M fi II" To either of the Constables of . [Seal.] Whereas judgment hath been awarded against A. B. of , at the suit of C. D., for the sum of , and more for costs ; These are to command and require you, to levy from off the goods and chattels of the said A. B., ihe said sums, making together , by sale of the said goods and chattels, after duly advertising the same ; and for want there- of, you are hereby commanded to take the body of the said A. B., and him to commit to His Majesty's gaol in , there to remain until he pay the sum above mentioned, with your fees, or that he be discharged by the said C. D., or otherwise by order of law. Therof fail not, and make return of this writ to , within thirty days. Witness — hand and seal, at -, the — day of . i as^ nt\^ A. M., J. P. Form of Jlppeal Bond. jJ-M /w Know all men by these presents, that we, A. B., E. F., and G. H., (names of appellant and sureties, with places of residence and additions,) are held and firmly bound to C. D., (name and description of party against whom the appeal is al- A 500 SUMMARY TRIALS. lowed,) in the penal sum of , of lawful money of i^ova Scotia, to be paid to the said C. D., (name of person agait?st whom the appeal is allowed,) his certain attorney, executors, administrators, or assigns ; for which paym^ent well and truly to be made, we bind ourselves, and each of us by himself, our, and every of our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and dated the — day of , in the year of our Lord one thousand eight hundred and Whereas in a certain cause the said CD., tried before county of , on — day of between the said A. B. and Justice of the Peace for the judgment was given for — [here state the judgment, and for whom given, with the sura,] and the said A. B. [name of party appealing,] has desired to appeal against such judgment : the condition of the above obli- gation is such, that if the said A. B at the next Term of — [here state the Term and Court to which this appeal is allowed,] shall duly enter, and prosecute with effect, his said appeal, and shall proceed therein, and shall abide by and fulfil the judgment of said Court, to be given on such appeal, then the above ob- ligation to be void, otherwise to remain in force. A. Signed, sealed, and delivered ) ■ ^^ in the presence of ) G. B. F. [Seal, [Sea! [The Act relating to setting off mutual debts, will be found recited under the division which treats of the defendant's Set- pff. The Act concerning the issuing of an execution after an appeal, also the Statutes which exempt wearing apparel, bed- ding, tools of trade and cert&in other articles from being taken on an execution, are appropriately set forth under the last di- vision, which relates to the proceedings after judgment ; and the Statute authorising the discharge of insolvent debtors, con- fined on executions upon judgments by Justices, with the pro- ceedings thereon, will be found under the title, — Insolvent Debtors.] 11. Of the Persons who MAY, and those who MAY NOT Sue or be Sued ; and herein, op the <'ivu, t Joinder of Parties. hU 1. Who MAr, and who may not Sue^ or be Sued. u'* »ja'.r:.y- An alien friend, that is one belonging to a country at peace with us, may sue or be sued here, for a debt contracted here by or with a subject of our government, but not if it was SUMMARY TRIALS. 501 loney of i^ova ' person agaii^st ey, executors, well and truly )y himself, our, ators, firmly by ated the — day i eight hundred said A. 6. and e Peace for the vas given for — with the sum,] has desired to r the above obli- ext Term of — peal is allowed,] said appeal, and Ifil the judgment m the above ob- e. A. B. [Seal,: E. F. [Sea' G. H. [Seal.j Its, will be found defendant's Set- secution after an g apparel, bed- rom being taken inder the last di- judgment ; and nt debtors, con- , with the pro- title, — Insolvent [osE WHO MAY SREIN, OF THE or he Sued. to a country at i debt contracted but not if it was Husband Wife. and men. contracted out of this Province. Sei Arch. P. Sf E. 3. 6. ^rch. Pr. 1 V. 43. ,.-' rt,.. An idiot, or lunatic, and also a deaf or dumb person, may sue or be sued for debts, and may be arrested for the same, in the same manner, and under the same circumstances as other persons. In the case of an idiot plaintiff, any one who prays to be admitted as his friend may sue for him, and if defendant, any one who can make a better defence, shall be allowed to defend for him. 2 Arch. P. 149. [It would seem that the same must be the case with regard to lunatics, and deaf and dumb persons.] A man cannot sue his wife, or a woman her husband, in any form of action whatever, for reasons sufficiently obvious ; and even if one have a cause of action against the other, before marriage, their intermarriage is a release of the action. Arch. PI. S^ Ev. 37. A married woman cannot sue or be sued alone, for a debt 'l^*^'®*^ ^^' contracted before marriage. Her husband must join or be joined in the action. Neither can she sue or be sued alone, for a debt incurred during m&;riage ; whether she live with her husband, or apart from him, even under articles of separation, with a separate maintenance. But she may sue or be sued alone, if the husband be in exile, — have abjured the realm, — be transported, — or be an alien enemy, out of the realm, — or if they have been divorced. In other cases, the husband alone must be sued for debts contracted by the wife during marriage. Id. 39— 5G. 2 Arch. P. 147. For the labour or service of the wife, or contract or pro- mise to her during marriage, the husband alone may sue. ^rch. P. ^ Ev. 39. If a debt arises from the labour or services of a child un- der the age of twenty-one years, living with the father as part of the family, and labouring for him, the action for the recovery of such debt should be by the father, in the same manner as if the service were by himself. But if such child be living away from his father, and labouring or acting for himself, or if his parents be dead, and in other cases, he may bring an action for any debt which has become due to him. See Bac. Ahr. 3 V. 141. An infant, or person under twenty-one years, is not liable to be sued for any debt contracted by him, unless it be for ne- cessaries ; such as necessary meat, drink, apparel, proper in- struction, medicines, medical attendance, washing, and the like. Necessaries for such infant's wife, or child, are neces- saries for him, and he shall be sued for them, as if they were furnished to himself. If, however, an infant is living under the Infant. In'* % h\ 1^* 502 SUMMARY TRIALS. .!»/ Partners in Trade. Husband and Wife. roof of his parent, who provides every thing v'hich in his judgment appears to be proper, the infant cannot bind himself to a stranger, even for such articles as might, under other circumstances, be deemed necessaries. Contracts entered into by infants for the maintenance of their trade, are not binding on them, as in the case of goods bought by them to be sola again- If, however, goods which are not necessaries are de- livered to an infant, who after full age ratifies the contract, by a promise to pay, he is bound, and may be sued for such debt. 1. Selw. JV. P. 122. One partner cannot sue another, for money received or paid, or goods furnished, or service performed, on account of the partnership. iSee drch. P. Sf E. 37. mM^^i^y :.;. nswiitj >-v,.,^.lacvf»^ yij',* '|i'^7^' . a..4»'» 2. Of the Joinder of Parties. y:.'i\..*}A In the case of partners in trade, and in all other cases where a debt is due to several persons jointly, they should ail join in an action for the recovery of it. But if only one, or a certain number of them sue, and no objection is taken to it, he or they may recover. See Arch. P. ^ Ev. 48 — 51. ^'=' Where a debt is due by partners or others jointly, they must all be sued in an action to recover it. Id. 67. But in the case of a joint and several contract, as on a joint and seve- ral note of hand, either one alone, or both may be sued. Where the wife is the meritorious cause of action, as where labour or service has been performed by her during marriage, she may join with her husband in bringing the action, or he may sue alone. So upon a promissory note made to the wife during coverture, she may join with him in bringing the action, or he may sue alone. Id. 40. [Note. In these cases it will be most convenient and proper for the husband alone, to sue.] Husband and wife must join as plaintiffs, in an action for the recovery of a debt due to the wife before marriage. Id. 37. So actions for debts due by the wife before marriage, must be against husband and wife. Id. 56. III. Of the Time LiMitEo by Law for the reco- »«m^» iu< VERY op I>EBTS, AND ESTABLISHINO MATTERS -i^i^-roi (^ OF Defence. ,.,i.^;.,.^^,.fe.,^.u ,.,._^,,., .. , Br the Statute of the 32 G. 2, c. 35. I V. 35. Sec. 4. All actions of account, and upon the case, (other than such accounts as concern the trade of merchandise between mer- chant and merchant, their factors and servants,) all actions of convenient and SUMMARY TRIALS. debt, grounded upon any lending or contract without specialty, or any of them which shall be sued or brought, shall be com- menced and sued within six years next after the cause of such action or suits, and not after, (jf. .^ u,-imn oirf* <,^n,4w <,<.>«; ... Sec. 8. Provided, nevertheless, that if any person or persons that is or shall be entitled to any such actions of debt, be, or shall be, at the time of any such cause of action given or accrued, fallen or come within the age of twenty-one years, or a married woman, or insane, or imprisoned, or beyond the seas ; that then such person or persons shall be at liberty to bring the same actions, so as they take the same within such time as is before limited, after their coming to or being of full age, discovert, (loosed from marriage,) or of sane memory, or at large, and returned from beyond the seas, as by other per- sons having no such impediment should be done. Sec. 9. If any person or persons against whom there is or shall be any cause of suit, or action of debt grounded upon any lending, or contract without specialty, shall at the time of any such cause of suit or action given or accrued, fallen, or become, be beyond the seas, that then such person or persons, who is or shall be entitled to any such suit or action, shall be at liberty to bring the said actions against such person and per- sons, after their return from beyond the seas, so as they take the said actions, after their return from beyond the seas, within the said time of six years, limited for the bringing of the same by this Act. Perpetual. '/ t;. nri 'v fv*^^.rT i*'*" This Statute extends to actions of assumpsit upon bills of exchange, or promissory notes, as well as to other cases of debts or promises. If a bill of exchange, or order, or note of hand, be given for money lent, or the like, the time of limita- tion begins to run, not from the time of the loan, but from the time the bill, order, or note became due ; and in the case of a note, &c. payable after sight, not until after it has been pre- sented for payment. But a promissory note payable on de- mand, is payable immediately, and this Statute of limitation runs from the date of the note, and not from the time of de- mand. If the promise be to do a thing upon request, or upon the happening of a certain event, the time of limitation does not begin to run until after request made, or the event have happened. So if the consideration be executory, as in the case of contracts for seamen's wages, or the like, the time of limi- tation does not commence until after tlie;qonsideration has been executed. '*,,»((; The exception in the Statute, — of actions upon accounts concerning the trade of merchandise between merchant and merchant, their factors and servants, extends only to cases 64 503 •4t. ! Cnses in which tlin Statute of Limitations applies. Accounts be- tween Merch- ants and Tradesinon. m 1 1' iff ' Persons be- yond Seas. , 1% i -' I ^' i 504 SUMMARY TRIALS. Acknowledg- ment after iix years. / 'N' where there ore mutual accounts and reciprocal demands, and where the accounts are still open and running, and not to cases where the account has been stated and the balance struck ; nor to cases where the items are all on one side. If any of the items in such mutual and open account, be within six years of the comnrencement of the action, it is immaterial whether the par- ties are merchants or not, because such item is deemed equi- valent to a subsequent promise reviving the debt, but if none of the items be within six years, it is necessary that the parties be merchants, and the account relate to the trade of merchan- dise, to bring it within the above exception. Where the case does not come within this exception in the Statute, yet if any of the items be within six years, the plaintiff shall recover for them, although not for the others. Also, although the time limited by the Statute hava elapsed before any action is brought, yet if the defendant promise to pay the debt, or even acknowledge it within rhe six years, the debt is thereby revived, and the case taken out of the Statute ; even although such promise or acknowledgment be after the commencement of the action. And the slightest acknowledg- ment has been deemed sufficient f( / this purpose ; such as this, " I am ready to account but nothing is due to you," or, " If he has any demand on me it shall be settled," or, '* What an extravagant bill you have delivered to me ;" or where the de- fendant says, *' I do not consider myself as owing Mr. B. a farthing, it being more than six years since I contracted, — I have had the wheat I acknowledge, and I have paid some part of it, and £26 remain due ; or where the party says, "The bill of exchange is out of date, and it is not in my power to pay it," or the like acknowledgments. Even when the defend- ant, on being served with a writ, wrote a letter to the plaintiff's attorney, couched in ambiguous terms, neither expressly ad- mitting or denying the debt, it was left to the Jury, to say whe- ther it amounted to an acknowledgment. But merely saying,— ** I acknowledge the receipt of the money, but she gave it me." or, referring to his attorney, who said that " if the plaintiff had any letter which would bind the defendant, the debt should be paid," does not amount to an acknowledgment or promise. ' *'^ If one of several makers of a joint and several promissory note, acknowledge the debt, or pay a part of it, within the six years, it is sufficient to take the case out of the Statute, as against the others, and may be given in evidence in a separate action against any of them. ^rch. P. ^ Ev. 27, 28. 1 Selw. J^. P. 135—9. ■iMit.tr;. ,' (M- (1^;. .!iV4ri«'»Mr iif>^'" Note. It may be well to mention here, that the rules of SUMMARY TRIALS. 505 ^'^ or, " What an that the rules of law, arid the decisions contained uiKler thiii division, and the preceding one, are set forth, as well by way of information and caution to the Justice, previous to his issuing any process, as to guide him on the trial, i^ <.ii j" >i^ mfvfrmt'v IV. The Order and Manner of Proceeding in in- stituting AND CONDUCTING SUCK AcTIONS. ■*nr.':> n unc'!>*»x mti, :>;;i,j! f)'.;i»»-' If a plaintiff commences his action by writ of summons, no previous affidavit of the debt is requisite, and this mttst be lite process in all cases where the amount or balance actually due, is under twenty shillings ; as it has been already seen, that by the express words of the Act, no person shall be ar- rested for a debt imder that sum. Neither can he be arrested for any larger sum, not exceeding £S, unless the creditor shall also state in his affidavit, that he verily believes, that unless a capias be allowed, the debt will be lost. This latter part of tlie affidavit is not requisite where the sum due is above three pounds. AVhere a creditor concludes on proceeding by a writ of capias, the affidavit must be made previous to issuing the writ, and it may be in the following Form. '. ,i> County of A. C, of in the said county, yeoman, AflkiaTii if maketh oath and saith, that A. D. is justly indebt- l^^bt. i ed to this deponent in the sum of , upon a note of. hand made by the said A. D., payable to this deponent or order at a certain day now past, [or on demand, as the case may be,] [or, for goods sold and delivered by this deponent, to the said A. D., or, — for work and labour done and performed by this deponent for the said A. D., or, for money paid and expended by this deponent for the said A. D., or, — for money lent, or, — - money had and received, or according as the case may be] And this deponent further maketh oath, that he verily believes, that unless a writ of capias be allowed to him against the said A. D., the said debt will be lost, a^^^^rimii'i .mr. c .-,. ^.• .j'^ijnirT'/ f.: .•11 A. C. ,. ■;, %:. Is, 1 Sworn before me, the — day of 183. M -j-i\h'\A. M., J. P. J-vw? Where the action is brought before two Justices, it will Diieitions. be sufficient for the affidavit to be made before, and to be signed by one only, but the writ must be signed and sealed by both. The sum sworn to, should be endorsed on the writ and copy. In every case, the summons or capias should be made returnable at such a time as that it may be served at least three full davs before the return. It is not mentioned in l\ 506 SUMMARY TRIALS. any of the Acts, whether a party arrested on a capias sliall be let to baii for his appearance at the return of the writ. Some of the former and expired Acts concerning such Summary Trials, contained a provision to that effect, but as it is not mentioned, or even alluded to in any of the Acts on the sub- ject, now in force, it would seem, that the defendant is not entitled to claim such privilege of being released on bail, but must be committed to guol on the capias, and remain in custo- dy until the trial, unless any arrangement to the contrary is made with the creditor, at his own risk. In every case, the writ should be returned to the Justice before the trial comes on, with a return thereon by the constable, of his having serv- ed it. The Justice will of course attend to hear the cause at the place mentioned in the writ, and it will be proper for him to do so, as nearly as can be made convenient, at the hour appointed, and on the writ being returned as aforesaid, the plaintifi* may produce and prove his demand and have judg- ment, although the defendant does not appear. In such case, the defendant should previously and openly be called to appear and answer. If the defendant appears, and applies to have the cause adjourned for trial on another day, on account of the absence of a witness, or any other cause, the Justice may ' grant or refuse the application, as he may in his discretion think just and equitable, according to circumstances ; and if such adjournment is granted, both parties must be informed by the Justice of the subsequent day, hour, and place ap- pointed for the trial. When the cause is brought on for trial, the defendant should not be interrogated, or particularly ques- tioned as to the claim of the plaintiff, but may simply be ask- ed, what he has to plead or answer to the action ; and if he voluntarily confesses the demand, judgment may of course be given for the plaintiff, for the amount so confessed, without any further proof. If he denies the debt, the plaintiff must then be called upon to produce his proof. It must here be observed, that neither the plaintiff or defendant can in any case, or under any circumstances, be either obliged, or be permitted, to be sworn and give evidence. It is believed that this has been frequently permitted, or indeed, may rather be said to be very generally practised, but such a proceeding is altogether illegal and improper. Ithas already been mentioned, "' ■ that the same rules of evidence apply in these summary causes before Justices, as on trials before the higher Courts. For such rules at large, and especially, as to tclio may, and icho may not be admitted as witnesses, when objected to, reference must be had to the Titif; — Evidence, in this Work. It may be sufficient here, briefly to say, that a person who does not ■believe in the existence of a God, in u future state of rewards w :h'' SU^fMARY TRIALS. and punishments, and iu the moral obligntioii of an oath, — also young children, or others who have not discretion sufficiently to understand the nature and obligation of an oath, shall not he allowed to give evidence. Also, that a wife cannot be a witness for or against her husband, and that no person can be permitted to give evidence, if objected to, who to a certainty will either gain or lose by the event of the cause, whether such &;ain or loss be direct and immediate, or consequential only. The defendant is of course entitled to question and cross exam- ine the witnesses of the plainlifF, and when the plaintifi* has closed his proof, the defendant must be allowed to make hh defence, to produce any receipt or discharge, or any account he may have as a set off, and to prove the same in like manner, and under the like rules of law and evidence, as in the case of the plaintiff. When all the evidence on both sides is closed, and the Justice, on a consideration of the testimony, and the law relating to it, has concluded what bis judgment shall be, he must declare it openly, so that both parties may be apprised of it. If either party is dissatisfied with the judgment, and desires an appeal, this is the proper time to make it, and by the words of the Act, it may be done in any case where "the debt or cause of action," amounts to twenty shillings or upwards. More particular information respecting such appeals, and as to other proceedings after judgment, will be found under the last division of the Title. V. The grounds or causes of Action in gene- ^' ^f RAL, WITH THE GENERAL RuLES OF LaW ffi'!!;^ AND Evidence relating to the same, iw tVM, RESPECTIVELY, AND HEREIN, OP THE StA- u>-' i>t>viy*^hi- TUTE of Frauds. -^i^litM f>f/.4---,i;»?«cjt:>?">;v;il=',v:i.> '^Wj; '- -W'i ,?>|{|fJ «3iii/!it 30ft mv .73 1. Of Promissory JSTotes. v *5>du-;' mi^M\''f m 2. Of Orders or Inland Bills. *« *h?T fc* iairfe'ttf*' 3. Of Goods Sold and Delivered, vci li i i\y. b*ssuy 4. Of Work and Services, tlrifr* -^ ;;»!(^vf -lo, •>iji«, 6. Of Money paid and expended, mite yj iso <'rU' 6. Of Money had and received. 7. Of JWcessaries furnished, — Freight, — Awards, — wm\ 'hbtsr* and other grounds of J[clion.-f'Kmm--''w'm « 8. Of Account Stated. ?. -r- •• t ji^-. vd!-^*;!! mAm i ti.,. Of the Statute of Frauds. » f( 'h'-'mvi^W"-'::rf ; rs >-h, 1. Of Promissory Mtes.mhxif I uliimnm A pROMissoRy Note is a promise in writing, to pay lo A. or order, or to A. or bearer, a sum of money, either at -.0 V S.'J 507 1 I ft*^ »**■'? ."J *1 Mj-S-^a -^' «^- 506 SUiMMARY TRIALS. Desciiption of Notes wliich are valid uiid negotiablu. Noted not ne- gotiable. sight, or at a ceriaiii lime alter sight, or after date, or on de- mand. By the 8 G, 3, c. 2. 1 V. 134, Promissory Notes made payable to a person, or his order, may be assigned by indorse- ment, the same as an inland hill of exchange ; and ih'^ person to whom such note is payable, may maintain an action against the maker thereof; and so may the indorsee have his aciioii either against the maker or indorser, the same as in the case of such inland bill ; and the ))laintifi', if he recover, may have execution for his debt, and also his costs. The action must be brought within six years. Ptrpttual. This Statute is to be construed liberally. A note promising to (wcount voxth I. S- or order, has been construed as a promise to pay I S. or order. So a promis- sory note payable to B. (omitting the words, " or order") three months after date, is a good note. So where tiie pro- mise was by A. to pay so much to B. for a debt due from C. to B. it was holden that it was within the Statute, being an ab- solute promise, and every way as negotiable as if it had been generally for value received. A promise, " to deliver money," or a promise that I. S. shall " receive money," or a promise to be *^ accountable," or^^ responsible" for money, will be a sufficient note. \u\'. ni<,<': .;!,.;(! •••,5«''i',.-q •^;s made, may sue the maker and recover, on proving that the SUMMARY TRIALS. 509 money had lieoome duo by the happening of tlie contingent event, although it would seem that he could not do 90 in a summary form before Justices, as il»e words, — " whole dealing, or cause of action," in the Act relating to Summary Trialei> seem to refer only to absolute and unconditional debts. | A promissory note must he payable for money only. Hence, where the promise was to pay J. S. so much money, or to render the body of J. N. to prison before such a day, the note was l)olden bad,. because the note was not necessarily and originally for the payment of money. Tl>e same, where the promise in the note was, to pay £300 to A., or order, in good East India bonds. A promissory note to an infant when he should come of age, namely, on such a day, in such a year, is good, for hcie is no condition or uncertainty, only the lime of' payment is postponed. So where the note was to pay within a certain time after such a ship was paid off, it was holden good, be- cause the ship would certainly be |)aid oiT, one time or other. *' A note beginning thus, — •* I promise to pay," and signed by two or more persons, is a several as well as joint note, and one or both may be sued. If a promissory note appears on the face of it to be the separate note of A. only, A. and B. cannot be «ued thereon as for their joint note, although it was given to secui^ a debt for which A. and B. were jointly liable. If an action is brought on a note made jointly, but not se- parately, and some of the persons making the note are not made defendants, advantage can be taken of the omission. It will be presumed that a note has been given for a good and valuable consideration, until the contrary appear. A note is good without the words " value received," also without any witness subscribed to it. A note payable generally, without naming any time, is payable on demand, and may be sued upon immediately, with- out any previous formal demand of payment. wain; A note payable to Nearer is good. The name of the maker of the note must either be sub- scribed, or inserted in the body of it, but (be laliter will be suf- ficient, if written by him. \^ '^vi-imm*^ siil v:. It is not necessary that any place should be named where the note is to be paid, but if any such place is nan>ed in the body of the note, and as a part of it, application should be made at such place, for payment. ohm iU> . Unless a note contain the words " or order," " or bear- er," or some other equivalent words, authorising the person to whom it is made, to as»ign it, such note cannot be transferred, Must ho piiy- nl>le tor niu- iiey uiily. Note!) pnyaltiv on nil evaiit certnii), ur«t good. . ;'t>(M Joint ami se- veral Noteit. Consideratiou. *' Value re- ceived." Witness. Time of pay ment. Nome of maker. ''-•'•' Place of pay- ment. Negotiability. 610 NUMMARY TRIALS. • iiduritenitMil. <|-] "■ Ml It C(»ll 1l^ •.1,1 . Notice of non- pajniont. Altsration of Note or Bill. .i.i>i"i.' i.^- fill' ' • ...!>./ • ... ., ft vi.ij it 'ii.i'r so R» to give tliR assiii;n«e a ri|i;lit of action against tha inakftr, or any other pursoii except the one who indorsed it tu him, unless the negotiable words were omitted by mistake, in which case they may bo supplied. Where a note has been made payable to, or indorsed to a single woman, who afterwards marries, or where it is made during the marriage, the right of transfer rests in her husband, and he thereby virtually becomes indorsee, and may sue theruon in his own name, and need not prove any indorsement. <..,U Where there arc several partners, an indorsement may be made by one only, but if the note is to several persons nut in partnership, it cannot be transferred by one only, but all must concur in doing it. <»i-, Where a note or bill is payable to a certain person, or bearer^ it is transferable by mere delivery. Where u note is in the hands of an indorsee, and he de- mands payment thereof from the maker, who refuses or omits to pay the same, notice of such refusal or default ought to \ie given by the indorsee himself, to the prior indorser or indor- sers, (if more than one) within a reasonable time ; otherwise the indorser will be discharged. But in such ca^e if the in- dorser, subsequently, with a knowledge of all the circumstan- ces, promise payment, he will be bound by it. ,i.(t>,/ If a bill or note be allered without the consent of the par- ties, in any material part, as in the date, sum, or time when payable, or consideration or place of payment, such alteration will render the bill or note wholly invalid, as against any party not consenting to such alteration ; and this is the case, al- though it be in the hands of an innocent holder. Selic. JS'. P. 378 /o 38Gv. Chitty on Bills, Sfc 0M<» , \bov»4'^riT *i{jh:v • ' fiHr '* i*f bvj^ w '^Hjn A w ticed. The evidence on the part of the plaintiff may be first no- Producing Note ill £vi' dence. It is a general rule, that the original note must be produc- ed in evidence. This rule is dispensed with in special cases only, as where it can be proved that tiie note has been lost, or destroyed by the defendant, or that it is in the hands of the \in\ \- L< >i!iM defendant, and that he has had notice to prodiue it. In these """ cases, a copy of the note, or parol evidence of its contents may be received. Proving Note. In an action against the maker of a note, by the person to whom it is made, the hand writing of the maker must be proved by the subscribing witness, if there be any, if not, by some person who is competent to prove such hand writing. In SUMMARY TUIALS. 511 f am person, or ime ; otherwise (ini'/Mift vr.s! - on action by the first indorsee Rgoiust tlic iuak( r, tlie sRme ev- idence as ill tlio procodini; cnsu, together vviih proof of the in- dorsement to the plaintitr, will be necussni-y. In an action against an indorscr of a note, proof of the hand writing of the maker, or of any indorscr | iur to the de- fendant, (except the first,) is not necessary ; bin m this case it must be proved that payment was duly demaiided of the maker, and that the maker refused to pay, or made default therein, and that notice of such refusal or default was given to the defend- ant within R reasonable time. Where two joint makers of a promissory note are sued, one of them is a competent witness to prove the siijnaturo of the other. ' . if ,':»•< ai.ci, If there be uny mistake in the date or circumstances of the note, necessary to be explained, evidence must be adduced accordingly. The admission of one of several makers of a promissory note, is sufKcient to take the case out of the Statute of limita- tions, in a separate action against the other. If there be a subscribing witness to a note, he must be produced by the plainlifi' to prove it, if his attendance can be procured, and it is insisted on by the defendant. In other cases it will suffice to call a witness who is acquainted with the defendant, and who from seeing him write even his sur- name or other writing, or even from correspondence with him, has acquired a knowledge of his hand writing, and can swear to his belief that the subscription is the defendant's, even although he has only seen him write once. Where there are several subscribing witnesses, It is suffi- cient to call one of them, iiiti. inu ,iiiu>.a Lt. cj.i If the subscribing witness be dead, proof of his death and hand writing, it seems is sufficient, without proving the hand writing of the maker, or any other proof whatever of the iden- tity of the parties ; and this, even where the defendant signed by mark. In general, the signature of a party to a bill or note, may be proved as against him, by his admission ; but in general it only operates against the party making such admission. Hence, in an action by the indorsee of a note against the maker, proof of the acknowledgment of an indorser, is not sufficient evidence to prove his indorsement. In an action against the indorser of a note, tl>e hand writ- ing of the maker need not be proved, nor can it be contradicted by the defendant. 1 Seliv. JV. P., 390-2. Cli. on Bills, Sfc. Some general rules of evidence, on the part of the De- fendant, may now be mentioned. — , , 05 ' t Mo t'^. \ Proof ill ex- plaiiiition uf Notes. Admission b/ one of joint , makers. Hul»Hcril)iiig WiliieMsi. ' .... . "i; iffi!/:.11 Proof where Subscribing ^\'itnes!^ in duiul. Admission of party. t: 512 SUMMARY TRIALS. ceases in which II Note shall be void. Verbal agree- ment concern- ing Note. Indorsement of a Note. Statute against Uaury. In general, there will be a sufficient defence between the original parties^ when it is shewn, that the note or bill was ob- tained by illegal imprisonment, or constraint, or by fraud or circumvention, and whilst the defendant was in a state of in- toxication, — or by false pretence, that the party would do something which he immediately after declared he would not perform, — or where there has been no consideration, or only the sembluiiCe of it, — or where there has been an agreement all on one side, — or where there has been a consideration only for apart. [In this last instance, however, the plainlift" may re- cover before Justices to the amount of such part consideration, unless there were any fraud.] None of the foregoing circum- stances however, will be a sufficient defence against an inno- cent indorsee or holder of any such note, having given a valu- able consideration for it, and not knowing of any such fraudu- lent or illegal circumstance, or want of consideration, at the time of his receiving the note. • • ^ rti :>*i The defendant cannot give in evidence a parol or verbal agreement, entered into when the note was made, that it should be renewed when it became due. When a promissory note is indorsed, its resemblance to a bill of exchange begins, for then it is an order by the indorser upon the maker of the note, to pay to the indorsee ; the in- dorser is, as it were, the drawer, the maker of the note, the acceptor, and the indorsee, the payee. From this resem- blance it follows, that nearly all the rules which are applicable to bills of exchange, hold also in the case of promissory notes. 1 Selw. JV. P. 391—2. €h. on Bills, Sfc. 83. By the Statute of the 10 G. 3, c. 5. 1 V. 160, "All bonds, contracts, and assurances whatsoever, for payment ot any principal, or money to be lent, or covenanted to be per- formed, upon or for any usury, whereupon, or whereby, there shall be reserved or taken above the rate of six pounds in the hundred, for a year, shall be utterly void." Perpetual. By virtue of this clause, every note of hand, order, or bill, whereon more than the aforesaid rate of interest is ex- pressed and reserved, is altogether void. / ;, ! , '. .. 2. Orders or Inland Bills.., V ' -^ ( ■ r It may here be first observed, that all the foregoing rules concerning promissory notes, with regard to consideration,— signatures, and proof thereof, — competency of witnesses, — in- dorsement, — notice of non-payment, — alteration of dates, &c., fraud and usury, apply and govern equally in the case of orders or bills. A repetition of such rules is therefore unnecessary- # SUMMARY TRIALS. 513 It will be useful, however, to mention some points, which ex- clusively, or in a moh? especial manner, relate to the orders or bills here treated of. Such bill, is a written order from A. to B., directing B., (who has, or is supposed to have in his hands, sufficient ef- fects belonging to A.,) to pay a sum of money to C. or order, or to C. or bearer, either at sight, or at certain number of days after sight, or after date, or on demand. The person making the bill is called the drmoer, the person to whom it is directed, the drawee^ and the person in whose favour it is made, the payee. When the drawee has undertaken to pay the bill, he is styled the acceptor, and his undertaking to pay it, is called an acceptance. Bills payable to order, are assignable by indorsement. The person making an indorsement, is called the indorser, the person in whose favour it is made, the indorsee, and the party in possession of the bill, and entitled to receive its contents, the holder. Bills payable to bearer, are transferable by delivery, with- out indorsement. An infant cannot bind himself by an order drawn in the course of trade, or even for necessaries. But infancy is a personal privilege. Hence the drawer of an order cannot set up the infancy of the payee and indorser, as a defence to an action. [Note. The infant may be sued for the necessaries, though not on the order.] If a bill is drawn upon a firm, and one of the partners ac- cept it in his own name, this acceptance binds the partnership. It is not essentially necessary to insert in a bill, the words, — "value received." The indorsement of a bill which does not contain the words, — " or order," will not make him that drew the bill chargeable to the person to whom it is indorsed, but the in- dorser is chargeable to such person. If an usurious security be given for a legal subsisting debt, although the security is void, the debt is not extinguished. Where a bill is partly given for an illegal consideration, the whole bill is void. Due diligence must be used, and care taken* that a bill be presented for acceptance or payment, within a reasonable time. This point of due diligence, must depend upon facts, such as, the situation of the parlies, their places of abode, and the facility of comnnunication between them. A bill may be accepted, by subscribing the name, or only writing thereon the word, — " Accepted." or a promise to ac- cept, written in a letter, or even a verbal acceptance will be sufficient. An acceptance after the day on which the money is to be paid, is binding. Nature of an Inland Bill. Infant, party to a Bill. Partners. Words, " or Order." Usurious Security. Acceptanc«, 1 « ^^ 514 SUxMMARY TRIALS. Notice of non- If a bill is refused acceptance, notice of such refusal acceptunce. should be given to the drawer in a reasonable time, by the holder, otherwise the drawer will be discharged, if he had ef- r, ,. , , fects in the hands of the drawee, but not if he had no effects '^ '^ in his hands. A subsequent promise of payment, will, how- ever, in ail cases, make a drawer or indorser liable, being a waver of the objection for want of notice. Where the holder of a bill intends to sue any of the in- dorsers, it is incumbent on him first to demand payment from the acceptor, and in case of refusal, to give due notice thereof within a reasonable time, to the indorser. If the holder of a bill enter into a composition with the acceptor, he thereby discharges the indorser. Receiving Receipt of part of the money from an acceptor, will not part payment, discharge the drawer, if timelv notice be given to him, that the bill is not duly paid. 1 Selio. JV. P. 297 to 370. Notice of non- payment. Evidence. Proving hand- writing. When Ac- ceptor is a Witness. When Indors- er is a Wit- ness. In an action by the indorsee of a bill against the acceptor, it is not necessary for the plaintiff to prove the hand writing of the drawer, for when a bill is presented for acceptance, the acceptor is supposed to look at the hand writing of the drawer, and on that account he is precluded from disputing it afterwards. But the hand writing of the first indorser must be proved in such action. In an action by the holder of a bill against the drawer, the acceptor is a competent witness to prove that the drawer had not any effects in his hands, and thereby to relieve the holder from the necessity of proving notice of dishonour. In an action by the indorsee against the drawer, the payee and indorser is a competent witness to prove that the defen- dant had acknowledged his liability, and promised to pay the bill. Seho. JV. P. 370—3. Bg:;^;~i [Note. Although in all the foregoing rules and decisions, the word, " bill" is used, they are to be understood fully to relate and apply to the instrument or paper, in this country usually called an " order," or a " draft," which, wher it is for the payment of money onjy, and payable to any person, " or order," is in fact, and in law, an inland bill of exchange.] 3. (jootls Sold and Delivered. Selling Goods If goods are sold on a credit agreed upon, the price of onaCndit. them cannot be recovered in an action, until the time of credit if such refusal time, by the I, if he had ef- had no effects jnt, will, how- liable, . being a any of the in- payment from ; notice thereof osition with the ceptor, will not to him, that the 370. ist the acceptor, 3 hand writing of acceptance, the ig of the drawer, ling it afterwards, ust be proved in ;t the drawer, the the drawer had ilieve the holder lour. rawer, the payee b that the defen- [iiised to pay the |es and decisions, iderstood fully to in this country ich, when it is for (any person, " or exchange.] \d. Ion, the price of llhe lime of credit SUMMARY TRIALS. has expired. Care must be taken to distinguish cases of this kind, from cases in which goods are sold, and a bill or order taken in payment, payable at a future day, but without any ex- press agreement Jor time^ for the payment of the goods ; in this last mentioned case, if the bill is refused acceptance, the debtor may be sued immediately for the price of the goods, without any regard being had to the uw^^ which woujd elapse before the bill would become due, for tl ere being no 515 agreement as to ■•: (•- time, the party takes the bill as payment, and therefore if it turn out to be good for nothing, the creditor has not received that which which the other undertook to give him, and there- fore he may sue the debtor immediately. A debtor is not discharged by giving a check [or order] which produces nothing. Where a party agrees to deliver a certain quantity of any article, at a certain time, and delivers a part only before such time, he cannot immediately sue for such part, for the con- tract being entire, cannot be split, and therefore the party cannot sue and recover until the whole quantity is delivered, or until the time for delivering the whole has arrived. A party can sue and recover as for goods sold and deli- vered, where his goods have been obtained by the defendant, by fraud. If a man deliver goods to another by his order, without expressly agreeing for the price, the seller shall recover for the real value of the goods. [The Justice must determine this value, if the parties cannot agree on it.] A delivery of goods to a third person, by order of the buyer, is a delivery to the buyer, and the buyer may be sued, as for goods sold and delivered to himself. A delivery to a servant who has been employed by his Liaster to take up goods for him on credit, will make the mas- ter answerable for goods subsequently supplied, although he may have given his servant money for payment, which the servant neglected to pay. But if he has not been employed in any instance to buy on credit, and has always received money beforehand, to pay as he bought, the master will not be answerable. A delivery also to a carrier appointed by the defendant, or if none has been appointed, according to the most usual and convenient mode, will entitle the plaintiff to recover, al- though there is no proof of the goods having come into the defendant's possession. 1 Seltc. .V. P. 73-4. 2 Phillips on Kt'. 124. neliveriiig piii't ot'(joods under u Cou- tract. Goods obtain- ed by i'raud. Price of gooda not nuined. Delivery of Goods. Lis ■■}•,■<■ ■-.rV. I':'S Fi: 516 Who rniinot hf! a Witness to prove de- livery of goods Proving bad quality of Goods. Book of Ac- counts. Special agree- ment. Work, vary- ing from ori- ginal Agree- ment. SUMMARY TRIALS. Evidence. '•*,. .1^/^ '■ - In an action for goods delivered by the defendant's order to a third person, that person is not a competent witness to prove the credit given to the defendant. If the plaintiff has proved a sale of goods to the defend- ant and another person, that person cannot be a witness to prcive that the goods were sold to himself alone, and that the defendant was only concerned as his servant. A defendant will be allowed in answer to the whole de- mand, or in abatement of it, to give evidence of tiie bad quality of the articles supplied, unless he has precluded him- self from such a defence, by neglecting to give to the seller a reasonable notice of their inferiority ; and this evidence will be admitted, whether the goods have been sold at a stipulated price or otherwise. 2 Phill. on Ev. 124 — 5. A man's book of accounts is no evidence for him, though it may be against him ; for it cannot be better evidence than his own testimony, which cannot be admitted. 1 Espin. J\\ P. 142. Work and Services. With respect to debts for work and labour, or other per- sonal services, it is a rule, that however special the agreement was, yet if it was not under seal, and the terms of it have been performed on the plaintiff's part, and the remuneration was to be in money, the plaintiff may recover by suing in a general form for work and labour ; and in some cases, though the ori- ginal agreemeijt be not performed by the plaintiff, yet if the de- fendant has derived any benefit from the part performance, he may be sued in such general form, and be compelled to pay whatever sum such part performance is worth. It frequently happens that the work which is the subject of a contract, is enlarged, or some alterations are made in the plan, with the consent of the contracting parties ; the true prin- ciple with respect to such alterations appears to be, that the contract is to be used as the measure of payment, so far as it has been acted upon by the parties, and that all the work out of the contract, is to be paid for according to the usual rate of charging ; in other words, the plaintiff is to be paid up to the extent of the estimate, according to the estimated prices ; and beyond the estimate, he is to be cotnpensated to the amount which in justice he ought to receive. And if the plan specified in the contract, has been so entirely abandoned by the parties. that it is impossible to trace the contract, or to ascertain to SUMMARY TRIALS. what part of the work it can be applied, in such case the work- man will be permitted to charge lor the whole work, by mea- :>ure and value, as if no contract had existed. A master njay sue a person who has enticed away or har- boured his apprentice, for the work and labour of such appren- tice. A plaintifi' may recover against a defendant, for work done for a third person, at the defendant's request. 1 Ch. on PL 88, 303. 2 Phil, on Ev. 123. A master may discharge his servant at a moment's warn- ing, for misconduct, (for instance, for being absent when wanted, sleeping from home at night without his master's leave, &c.) and in such case, the servant will only be entitled to such wages as are due at the time of his discharge. But if the ser- vant has not been guilty of misconduct, and the master dis- charges him without warning, the servant in that case will be entitled to a month's wages beyond the wages due for the pe- riod of actual service. 2 Selio. JV. P. 1064. If a servant, hired for a year, wilfully refuse to obey his master's orders, the master is justified in dismissing him before the end of the year, and the servant cannot recover any wages for the time he has served. 5 Burn^s, 160. 2 Stark, JV. P. 256. In an action to recover for work and labour done, the de- fendant will be at liberty to prove the badness of the work, or that it was executed in such a manner as to be of no value to him, or not of the value charged. 2 Phill. on Ev. 125. 517 Suing for Work of an . Apprentice. Work done for n tliird person. Wuges of n Servant, vvliiMi Discharged for niishelia - viour, and when other- wise. Servant refus- ing to obey Orders. I; ,fi u ::f ; i"« to ascertain to 5. JMoney paid and expended. Where a person has laid out his own money for the use of another, either with the express or implied consent of such other person, the law implies a promise of re-payment, and it can be recovered as a debt, in an action. -a , , As where one person is surety for another, and compellable to pay the whole debt, and such surety is called upon and pays, it is money paid to the use of the principal debtor ; and may be recovered against him in an action for money paid, even though the surety did not pay the debt by the desire of the principal. So where two persons are sureties for another, and the obligee compels one of the sureties to pay the whole debt, such surety may maintain an action against his co-surety, and thereby compel him to contribute his proportion towards the payment of the debt. In such case it does not appear to be necessary that the insolvency of the principal debtor should he proved. Payment by a Surety. f {."■'i iflil' ;i8 SUiMMARY TRIALS. Bail paying for their prin- cipal. Consent of party, for whom Money i8 paid. Contribution ill the cuso of Joijit Parties. Illegal trans- action. Money un- justly n.'ceiv- "ed. Money paid under niistako But where one of two sureties has been prevailed on to become a surety at the instance of the other, and such other has been compelled to pay the debt, he cannot oblige his co- surety to pay a contribution. Bail may sue their principal, as for money paid for him, for the recovery of such sums as they, from their situation as bail, and in order to secure themselves, have been fairly and necessarily obliged to expend. i. It is observable, that the mere circumstance of one per- son having received an advantage from the payment of money by another, is not sufficient to raise a ground of action against the former ; the consent of the party, either express or imphed, is essentially necessary to the support of an action to recover such money. An officer, guilty of a breach of duty, cannot recover mo- ney which he has paid in consequence of it, though for the be* nefit of the defendant. If A. recover in an action founded on a trespass or wrong against B. apd C, and levy the whole damages on B., B. can- not maintain an action against C. for a reimbursement of a moiety ; for a contribution cannot be claimed as between joint wrong doers. A different rule holds in the case of a joint judgment against several defendants, in an action on a promise. In such case, if one defendant has been compelled to pay the whole amount, or more than his proportion of the judgment, he may recover from the other defendant his proportionate part. In the case of an illegal transaction, if one partner pay money for another, without an express authority^ he cannot re- cover it back in an action against the other. 3 7\ /2. 418. fft 1- ii :■..»:! iQ^ Money had and received. ' .f.'j< A.-i action to recover money had and received, to the use of, or belonging to the plaintiff, is founded on all the equitable circumstances of the case between the parties, and consequent- ly, in order to recover in such action, the plaintifi' must shew that he has equity and conscience on his side. ;;; .' '• + ..4 If I pay money to a person who claims an authority to re- ceive it, but really has not any such authority, and afterwards I am compelled to pay it again to the person lawfully entitled to receive it, an action will lie against the person unjustly receiv- ing the money, to recover it back. '...' lUtti ! Where money, to which there was not any ground of claim in conscience, has been paid under a mistake, the party may recover it back aj^ain. P SUMMARY THIALS. 519 "fti • an authority to re- , and afterwards I awfully entitled to )n unjustly receiv- Where a party has been sued for a sum he had before paid, and for which he had obtained a receipt, but not be- ing able to 6nd it, and not having any other proof of pay- ment, he has been obliged to submit in the action, and pay the money again, if he afterwards fnid the receipt, still he cannot recover back the money, the payment of which was so wrongfully enforced ; because it was recovered by process of law, and there must be an end of litigation. Where a party pays money to another, voluntarily, with full knowledge, or full means of knowledge of all the facts of the case, the party so paying cannot recover it back again, on account of his ignorance of the law. But where a payment has been made, not with full knowledge ol the facts, but only under a blind suspicion of the case, and it is found to have been paid unjustly, the party paying may recover it back again- , _ ,« ... , ,• iJ Money due in point of honour or conscience, though a person is not compellable to pay it, yet if paid, shall not be recovered back. Where money has been paid without consideration, or on a consideration which fails, an action will lie for the recovery of it. If an undue advantage be taken of a person's situation, and money obtained from him by compulsion, such money may be recovered in an action. Where money is paid, and the thing contracted for not delivered, it is money had and received to the use of the party who paid it, and he may recover it back. . ff It is a general rule, that in cases of payment to a known agent, the action for money had and received ought to be brought against the principal. Where money has been paid by one of two parties to an illegal transaction, to a third person, for the use of the other party, an action will lie against such third person, by the party lor whose use it was paid, to recover the money. If A. agree to give B. money for doing an illegal act, B. cannot, (although he do the act,) recover the money by an action, yet if the money be paid, A. cannot recover it back Monoy reco- vored by a Judgiiiciit. Voluntary payment. again- ' J^ V iVf 'i:«ij ■;■,» -^i^'i'i: ,>f;.'itl t- 0: 7. JSTecessaries furnished, — Freight, — Awards, — and other It. .-,f !-..„ grounds of Action. .. ,. . *,. , ... [For necessaries furnished for the use of any person, such as meat, lodging, &c. by an inn keeper, or any other, to a traveller, boarder, or other person, — medicines to a sick per- Monny due iii coiiscieiico. No considera- tion. Money ob- tained by compulsion. Payment and no delivery, &c. Agent. Payments on illegal trans- actions. J il (I ; ' %i4 ■it 1 'I ( ■ r w f V' ii li ^"'A' w W 520 Infant. Husband aud Wife. SUMMARY TRIALS. son, — wearing apparel, and in all other like cases, where par- ties are of full age and capable of contracting, actions may be brought before a Justice or Justices, the same as for the reco- very of other debts, where the whole dealing or cause of ac- tion does no; exceed j£10 ; and in such cases the same general rules of law and evidence will apply as in actions for the reco- very of other debts.] An infant, or person under twenty-one years may be sued and obliged to pay for necessaries furnished to him, such as necessary meat, drink, apparel, proper instruction, medicines, and the like. And even if goods, not necessaries, are deli- vered to such infant, and after full age he ratifies the contract by a promise to pay, he is bound. Necessaries for such infant's wife or child, are consider- ed the same as necessaries for him. If an infant is living under the roof of his parent, who pro- vides every thing which in his judgment appears to be proper, the infant cannot bind himself to a stranger, even for such ar- ticles as might under other circumstances be deemed neces- saries. Goods supplied to an infant to trade with, cannot be re- covered for, as necessaries. 1 Selw. JV. P. 122 — 7. While husband and wife are living together, the husband is liable to pay for necessaries, suitable to his degree and es- tate, furnished to his wife, and the misconduct or even adultery of the wife, during that period, will not discharge him from such liability. The law is the same where the husband deserts his wife, or turns her away without any reasonable ground, or compels her by ill usage or severity to leave him, in all which cases he gives the wife a general ^redit. And in such cases he will be liable, though he advertises her, and cautions all per- sons not to trust her, or even if he give particular notice to in- dividuals, not to give her credit. But if husband and wife are living together, and any particu- lar person is warned not to give her credit, and such person af- terwards furnish her with apparel, even of a suitable descrip- tion, the husband is not liable to pay for it. Also, if the wife elope from her husband, and live in adultery, the husband cannot be charged by her contracts. So if a woman elopes from her husband, though she does not go away with an adulterer, or in an adulterous manner, any person trusts her at his peril, and the husband is not bound. If a man cohabits with a woman to whom he is not mai- iied, and permits her to assume his name, and appear to the world as his wife, and in that character to contract debts for necessaries, hfi will be liable, although the creditor knew of Jier real situation. 1 Selic. M P. 270 — 8. fill'. SUMMARY TRIALS. 521 The owners of a ship are liable for necessaries furnished for it, by order of the master, though they were furnished without the knowledge of the owners, or without their being known to the persons who supplied them. Covp. R. 636. A master is not liable to pay for medical attendance on a servant who has met with an accident in his service, unless he has expressly undertaken and promised to do so. 2 Bos. ^ Pul. 247. For the freight of goods, the owner of the vessel may sue and recover, or the master may sustain an action for such freight in his own name, where the contract was in terms made with him. The person who consigns goods may be primarily liable for the freight, but the consignee or purchaser, if he accept the goods in pursuance of the usual bill of lading, may be sued for the freight, unless it be known to the master of the vessel that he acted only as agent for the person who consigned the goods. 1 Ch. on P. 5. 37. A submission of all matters in difference between parties, to the award of arbitrators, may be made without writing. An award regularly made by an arbitrator, to whom mat- ters in difference are referred, is conclusive in an action at law, upon the parties to the reference, as to all the matters en- quired into, within the submission. In an action to recover a sum awarded, it will be neces- sary to prove both the submission and the execution of the award. It is not necessary for the plaintiff* to prove that the de- fendant had notice of the award, the fact of the making of the award, being as much within the knowledge of the one party as the other, unless it is expressly provided that the award should be notitied to the parties, in which case the notice must appear to have been regularly given. Nor is proof of a demand of payment necessary, except where the payment is of a collateral sum, upon request. 2 Phill. on Eo. J 11. ■,, .,••!> Actions may also be brought before Justices, to recover for money lent, and for the use or hire of goods, or personal property of any kind, for the pasturage or keeping of horses or other cattle, and in various other instances, where the debt does not concern or relate to the title to land, and is not in the nature of damages arising from the non performance of any co- venant or special agreement, but is of the nature of a simple debt. Also, by several Statutes of the Province, certain fines and penalties, and other sums, are directed to be recovered before a Justice or Justices, in the same manner as debts be- tween parly and party. In all such instances therefore, the NecfiMaripd for utte of a Ship. I^Iedica! at- tcnduncH on a Hcrvuiit. Freight. Arliitration and Award. Other cases in which Actions may be brought be- fore Justices. I'i \\ :'■ ■■■■l\ I K hijluH Iitraiit. Question, as tu original credit. SUMMARY TRIALS. like Forms must be used, and the like course of proceedings he observed, and the same general rules of law and evidence; will apply, as in the case of such private debts. . f, , i,> .,',»4.. ;v, w 8. .Account Slated. ' -'♦i' • WiiERK a plaintiff sues to recover the balance of an ac- count slated and settled between him and the defendant, he will not be obliged to give evidence of the several items constituting the account, but only that an account was stated. Proof of an acknowledgment by the defendant, of a debt due upon any ac- count, or of an admission of a debt upon a single article, will be sufficient to enable the plaintiff* to recover. On the other hand it will be open to the defendant to dispute the charges n the several items, for although an account stated, strictly speaking, is aii agreement by both parties, that all the articles are true, and for- merly this was held to be conclusive, yet a greater latitude has of late prevailed, in order to remedy the errors which may have crept into the account in overcharging the items. 1 Selio. JV*. P. 71-2. Phill. on Ev. 128. An infant or person under twenty one years, cannot bind himself bv an account stated. 1 Selio. JST. P. 129. A party can only recover upon the ground of an account stated, when a certain and precise sum is admitted is due, and where a debt is actually in existence. 1 Chill, on P. 308. 9. Statute of Frauds. *• By the 32 G. 2, c. 18. 1 V. 25, No action shall be brought whereby to charge the defendant upon any special pro- mise to answer for the debt, default, or miscarriages of ano- ther person, or to charge any person upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing, and signed by the parly to be charged therewith, or some other person thereunto by him lawfully authorised. Per- petual. Where the question is, respecting the debt of another person, the true consideration is, whether the credit was ori- ginally given to the defendant alone, or whether the third per- son was liable as the debtor, and the defendant only guaranteed or became surety for the payment. Tlie latter case is within the Statute and void, the established rule being, that if the person for whose use the goods are furnished, is liable at all, .# SUMMARY TRIALS. 523 any oilier promise by a third person to pay tlnit debt must bo in writing ; but in the former case, namely, whore the debt is exclusively the debt of the defendant, a written memorandum will not be necessary. As for example, suppose a man comes with another into a shop to buy, and the shopkeeper should say, " I vvill not sell him the goods, unless you will under- take that he shall pay me for them," and the other promises to that effect, such a promise is within the Statute, and the par- ty is not liable upon it ; but if a party is originally liable to pay for the goods, as if he sends an order to another, requesting him to deliver goods to I. S. and that he, (the party sending the order) will pay him the amount, here, the credit is given to such party alone, and not to I. S., and consequently such party is liable for the payment. Where a plaintiff had delivered goods to one I. S., in Verbal imd consequence of a verbal promise by the defendant in these eollaterul i»ro- words, "I will pay you, if I. S. will not," (which undertak- "'""'• ing was before the delivery of the goods,) and it appeared fur- ther, that I. S. had been entered as the debtor in the plaintiff's books, the Court was of opinion that the case was clearly with- in the Statute, and the defendant was not liable upon such pro- mise, for the credit in the first instance was given to I. f^. There is no distinction between a promise to pay for goods furnished for the use of another, made 6e/brc they are ilelivered, and one made after. In both cases, if the credit is in any degree given to him, or he is at all liable, any promise, not in writing, made by a third person, relative to payment, is within the Statute, and such person is not liable on it. A promise in these words, " If you do not know him, you know me, and I will see you paid," not being in writing, is void by the Statute, and the party cannot be made liable to payment. Also this promise, — " You must supply my mother-in-law with bread, and I will see you paid," is not binding, but void by the Statute. ■> •• A promise to pay money due from J. S., in consideration Promise, on that the plaintiff would not sue J. S. for the debt, or that he fo-^bearance to would stay the suit, if already commenced against him, is clearly within the Statute, and cannot be made the subject of an ac- tion, without proof of a written promise to that effect. So a promise to pay damages which the plaintiffhad sustained from iin injury done to his horse, by a third person, in consideration that the plaintiff would not sue that person, has been held to be a collateral promise, and not binding without a written memo- landum. But if the plaintiff were to commence a suit against J. S., »v 1 i| '!|':l i^M |. k[ 1 1 l; ■ 11 1' : III (i ji*''-[- " 'i- }c'''i' ' ;m ■ '■ ,,! ." " 't . ||| P H ^! ■Pi' 1 n' P - m Biu ' 5241 SUMMARY TRIALS. i I'roiiiiMfl nil fiMiilition to iliMcoiitinuo a iiiit. rroiniiio, when under u h'gnl obligQ- tiuii. Consideration of jiroinide. Agreements not to 1)6 per- fornied within a year. noi for the recovery of a debt, but for some oilier cniise, (m for an assault, &c.) and tbe defendant, in cuiisideration that lite plaintiff would discontinue \m suit, proniiso to pay a sum of niu- ney, together with the plaintiff's costs, (his would not be avoid promise, but the party could be compelled to make the payment, for this is not a promise to answer lor the debt, default, or mis- carriage of J. S. within the meaning of the Statute; for (he cause not being tried, J. S. does not appear to have been guilty of any default, or miscarriage, or to be liable to (he particuJur debt, damage, or costs. A verbal promise by the defendant, to pay the plaintifTlur his having provided necessaries for u third person, will be binding, where the defendant was under a legal obligation to provide them, as where a medical man was called in to attend upon a pauper, without the previous re(piest of the overseers, any one of them afterwards verbally promised payment, lie was held liable ; for the overseers were under a legal obligation to provide such relief for the pauper. But if a party is not under any such obligation of law, he will not be bound by any Fuch promise, unless it is in writing. In order to make a party liable, upon any promise to an- swer for another, even where it is in writing, there nuist be a good consideration lor such promise. 2 Selw. A*. P. 808 to 817. 2 T. R. 80. 2. Phill. on Ev. 72— G. The clause of the Statute relating to agreements, not to be performed within a year, applies to those cases only, where by the express agreement between the parties, the thing is not to be performed, that is, completed within the period of a year. Cases depending upon contingencies, which may or may not happen in the course of a year from the time of making the agreement, are not within the Statute, and consequently, in a case of that kind, a party may be liable on his promise. 2 Phill. on Ev. 79. : ! Directions. In here closing this division relating to the grounds of the plaintiff's action, it may be well to observe, that in general, ai the least, the several before mentioned legal objections or de- fences to such actions, such as, — the improper or non-joinder of parties, — the Statute of limitations, — infancy, — the Statute of frauds relating to promises, and other like objections, are to be made or brought forward in the first instance, by or on be- half of the defendant, and that it does not seem to be the duty of the Justices to slate and give efi'ect to any such legal objec- tion or defence, where a defendant does not bring it forward, or deny the debt, but admits it to be due. The same obser- SUMMARY TRIALS. 525 vntinn will in general equally npply to siniilnr lethal objftclinns 10 the set-ort', or other (lefonco )(' the defcndont. VI. The Dicfkndant's Sf,t-off. ■ • By the general Act, " lor the Summary Trial of Actions," already set forth, it is provided, that the Justices '^ shall allow the defendant to produce his account against the plaintill', or any receipt or other discharges lor payment made ; either in whole or in part." And by the 3 V/. 4, c. .')8. 4 V. 236, " Where there Mutiml ilnbt.. nre mutual debts between the plaintifi' and defendant, in any action connnenced in any Court, or before any Justice of the Peace, or if either party sue or be sued as executor or admi- nistrator, where there are mutual debts between the testator or intestate, and either party, one debt may be set against the other, and such matter may be given in evidence upon the ge- neral issue, or pleaded in bar, as the nature of the case shall refjiiire, so as at the time of pleading the general issue, notice be given of the particular sum intended to be set off, and on what account it became due. Sec. 2. Mutual debts may be set against each other, and given in evidence, although they are deemed in law to be of a different nature, unless in cases where either of such debts accrues by reason of a penalty contained in any bond or specialty, in all which cases the debt intended to be set ofT shall be pleaded, in which plea shall be shown how much is justly due on either side, and in case the plaintiff shall recover in any such action, judgment shall be entered for no niore than shall appear to be justly due to him, after one debt being set against another as aforesaid." Sec. 3. If upon trial of the issue between the parties, before any Court, or Justice of the Peace, the said Court, or the Jury, or such Justice of the Peace, shall not assess damage to the plaintifi", beyond the debt or sum which shall have been so pleaded, or of which notice of set-off shall have been given as aforesaid, then the plaintifi' shall have no costs, but shall pay costs to the defendant, to be taxed as in other cases ; and if upon such trial, it shall appear that the sum due by the plaintiff to the defendant, exceeds the sum due by the defen- dant to the plaintifi', judgment shall be given for the defendant, for such sum as the plaintiff shall be found to be indebted to the defendant over and beyond the sum due by the defendant to the plaintiff; and the defendant may sue out execution for the sum for which judgment was so given in his favour, toge- ther with costs of the action, in the sanie manner as he might 1 • .1 1 1 1 1 ■ ■ t , 1 [■ .1 •1 1. m i) I, B i •fli m 526 SUxMMARY TRIALS. heretofore liave done, in cases where judgment was given for liim for costs <)nly. Perpetual. [But see Sec. 9 of the bo- fore recited Act of the 7 W. 4, c. GO. Sess. 1837, which prohibits judgment being given for any sum in favour of a de- fendant, where tiie whole amount of the set-off jiroduced ex- ceeds the amount over which the Justice or Justices have ju- risdiction.] Notwithstanding this Statute, the debts sued for, and the debts intended to be set off, must be mutual, and due in the same right. Hence a joint debt cannot be set against a sepa- rate demand, nor a separate debt against a joint demand, but a debt due to the defendant as surviving partner, may be set against a demand on defendant in his own right. A debt barred by the Statute of limitations cannot be set oft', and if it be given in evidence on a trial, it may be object- ed to by the plaintiff", on that ground. 1 Selw. J\\ P. 149. VII. Of Judgments, and the Proceedings attend- ing AND FOLLOWING THE Appeals. same, and herein, — OF All the evidence adduced in the action being closed, and the Justice having duly considered the case, should openly declare his judgment, so that both parties may be apprised of it. He should then tax and allow the costs, and inform the party against whom judgment is given, (if he is present) of the whole amount of the debt and costs to be paid by him. It has already been seen by the Statutes relating to mutual debts, set forth under the preceding division, that in cases where the whole amount of the set off* produced shfaM not exceed the amount over which the Justice or Justices have jurisdiction, if it shall appear that there is a balance due to the defendant, judg- ment for the same, with costs, may be given in his favour, in the same manner as if he had brought an action to recover it. The Justice should, in everj' case, file and preserve as a re- cord, the original writ returned to him, and mark 'liereon the respective sums of debt and costs for which judgment has been given, and also the date of the judgment. The following are the fees establishef and allowed in sum- mary causes before Justices, by the before recited Act of the 3 G. 4, c. 30. 3 v. 134. ' J. .- . ' Justice's Fees. On Writ of Summons, — two shillings. On Capias and Affidavit, — two shillings and sixpence. SUMiMARY TRIALS. 521 was given for . 9 of ihe bo- 1837, which favour of a de- ■ produced ex- islices Imve ju- ed for, and the and due in the against a sepa- nt demand, but er, may be set IS cannot be set : may be object- w. JS\ P. 149. DINGS ATTENH- D HEREIN,— OK )eing closed, and ;, should openly jy be apprised of , and inform the is present) of Ipaid by him. Il to mutual debts, cases where the not exceed the e jurisdiction, if defendant, judg- in his favour, in |on to recover it. jreserve as a re- mark 'hereon the ludgment has been Id allowed in sum- lecited Act of the On Judgment, — One Shilling. On Execution, — One Shilling. Supboena, — One Shilling. ^;'Jf^i :.r; i<: Constable's Fees. ■ V ' • ' and sixpence. Service, — One Shilling. Travel, — Three-pence per Mile. ■ ( .. . JVitnesses. -i • Each, — Two Shillings and Sixpence ; and travel, — three- pence per mile. i; The fees for the travel of Constable should be calculated from the place of residence of the Justice, to where the writ is served on the defendant ; and the fees for the travel of the witness should be allowed for the whole distance he travels from his home to attend the trial, and in returning. If the judgment is in favour of the defendant, the only costs to be taxed and allowed for him, are, the r^ne shilling for the judgment, and the fees of the witnesses on uis part. The fees for the writ, and to the constable, must be paid by the plaintiff, and are not to be made any part of the defendant's judgment, as he has nothing to do with the payment of the=5 fees. For the additional fees, where there is a Jury, see the before recited Act of the 7 W. 4, c. 00, under Division 1. It has been already observed, that if either party desires Appeal, an appeal, the proper time to make it, is, on the giving of the judgment, but as nothing on this point is mentioned or inti- mated in the Act, it would seem that a party may make such appeal at any future period. There can be no appeal, how- ever, unless the debt or cause of action amounts to twenty shi'''ngs or upwards. At the first view, it may seem quite doubtful, whether these words of the Act, '' debt or cause of action," refer to the original demand of the plaintiff, or to the sum ascertained and stated as the debt on the judgment, and as contradistinguished from the costs. If the former is to be understood, then an appeal should be granted in a case where such original debt or cause of action amounts to twenty shil- lings, although the debt awarded by the Justice may be a less sum. It would rather appear, however, that it is not intended by the Act that an appeal shall be granted, unless the debt really due, as found by the Justice, amounts to twenty shil- lings, as the words of limitation in the first part of the clause, are, " whole dealing and cause of action," and in the latter part 07 528 SUMMARY TRIALS. Concerning Security on Appeaiintr. Taking out Execution. Execution af- ter Appeal respecting llie appeal, the word *' debt" is used, which expres- sion seems to refer to the sum found by the Justice to be actually due, as such sum is, in truth, the only real " cause ofaction." It may also be observed, that the Act does not contain a word as to the |)arty appealing giving any bond or security to prosecute the same, or respond the final judgment. A former and expired Act, directing such Summary Trials, contained a clause expressly requiring such security on appeals, but as it is omitted in the present Act, nearly all the other provisions of which appear to have been almost literally copied from such former Act, it would seem, that the Legislature intended that such security should no longer be requisite. Notwithstanding, therefore, it is the usual practice to require and take such bond or security, yet it seems quite clear that the party appealing cannot legally be compelled to give the same, but is entitled to his appeal without it. By Sec. 10 of the 7 W. 4, c. 60, recited under the first Division, before the appeal is allowed, the party must make affidavit that he is dissatisfied with the judgment, and feels ag- grieved thereby. If there be no appeal, the party in whose favour judgment has been given, may take out his execution immediately, or at any time thereafter. In the case of an appeal, the Justice, be- fore, or at the next term of the Court to which the appeal is made, should send in to the Clerk of such Court, the writ, and all the other papers in the cause, which remain in his hands. After an appeal, no execution can be issued, or further pro- ceedings take place on the judgment, until after the first term of the Court to which such appeal has bee made, and where the determination thereof is postponed by the direction of such Court, then the execution cannot be taken out, until such de- termination, or until the issuing thereof is otherwise by law permitted. For the Form of the Execution, see the first division of the Title. With regard to issuing an execution after an appeal, it is provided by the second clause of the Act of the 5 W. 4, c. 2. 4 V. 354, that, " When an appeal shall have been had against any judgment or conviction, on either a civil or criminal case, and no proceeding therein be had during the next ensuing Term of the Court appealed to, either by entry of the cause there, or otherwise, it shall and may be lawful for the Justice or Justices, having given such judgment, or ordered such con- viction, to issue his or their execution or warrant against the party so having appealed, in the same manner as if no such ap- peal had been taken." Perpetual. SUMMARY TRIALS. 529 first division of It is proper to recite here, certain enactments relating to What Goodt the levying of writs of execution. By the iu' G. 3, c. 25. shall not bo 3. V. 21,— It shall not he lawful for the sheriff or his deputy, E^eTutuT/" or coroner, or other officer, to attach or lake upon any writ of mesne process, or execution, the necessary uearing apparel or - • hedding of any person or persons, or of their children, against whom such writ shall be issued, nor the tools or implements of his trade, of any mechanic, necesiary for his, and ordinarily used by such mechanic in his trade and business ; nor the cow of any person, unless he or she shall have more than one, in which case it shall be lawful to attach or take all over and above one. Perpetual. By the 4 and 5 G. 4, c. 7. 3 V. 182,— It shall not be lawful to take under, and by virtue of any writ of attachment, execution, or other process, (except for rent,) the grain, hay, potatoes, or other article growing in the ground, before the same shall be severed from the ground. Terrporary. The Statute and proceedings relative to the examination and discharge of insolvent debtors, confined on writs of execu- tion issued by Justices of the Peace, will be found under the Title, — Insolvent Debtors. . — m — . . SUMMONS. In all legal proceedings the person complained of ought to Where a have notice of the charge laid against him, and to have an op- ^umwoM poriunity of being heard in his own defence. Consequently, where a person is accused before the Justices, they ought to summon him to appear, or issue their warrant to bring him be- fore them. The manner of conveying the parties is sometimes directed by the Statutes creating the respective offences, which therefore ought to be pursued accordingly. In other cases, where it is left discretionary in the Justices, it seems most agreeable to the mildness of our laws, to put the party to no more inconvenience than the occasion makes unavoidable ; pnd therefore, where the case will bear it, a summons seems more apposite than a compulsory process. But in cases of sureties of the peace, petty larcenies, and other felcnies, and generally, where the King is party, and also in cases L-Jtween party and parly, where the body of the offender is liable, a warrant is the regular process, and not a summons. • ■ In the summons it is usual, and upon many accounts convenient, to fix not only a day, but a particular time of the Hay, for the appearance of the party ; but if he shall appear at |ii ^- :f ' f ' 'f 530 PerHuii ISuiJi- iiiunud iiiuidt wuit. Service of tJuiiununs. SUMMONS. • the time, and the Justice shall not attend, he is not to go awuy, but must wait during the remaining part of the day, lor many things may happen to hinder the immediate attendance of the Justice. It has been made a qjiestion in some cases, whether the service of the summons must be personal It seems in gene- ral necessary that it should be so, unless where personal ser- vice is expressly dispensed with by the Statute. The provi- sions, specially introduced into many Acts of Parliament, to make a service at the dwelling house sufficient, seem to justify the inference that the law in other cases is understood to re- quire a service upon the person. 5 /?itrn's, 282. [Note. In the case of sunmnary trials before Justices for the recovery of debts, it would seem from the terms of the ge- neral Statute on the subject, that a personal service on the de- fendant is requisite. The summons should be served at least three full days be- fore the day for the appearance of the party.] ' . . General Form of a Summons. County of) To A. C, one of the Constables of the ) township of in the said county. [Seal.] Whereas information and complaint hath been made before me, A. M., Esquire, one of His Majesty's Justices ol the Peace for the said county, that A. 0. of in the coun- ty aforesaid, labourer, on the — day of , now last past, at in the county aforesaid, did — [here set forth the offence, precisely as charged in the information.] These are therefore to require you, forthwith to summon the said A. 0. to appear before me at in the said county, on , the — day of , at the hour of in the forenoon of the same day, to answer to the said information and complaint, and to be further dealt with according to law. And be you then there to certify what you shall have done in the premises. Herein fail you not. Given under my hand and seal, the — day of , in the year of our Lord . A. M., J. P. The Form of a summons for a witness will be found un- der the Title, — Witnesses. SLPERVISOllS, sec PLULIC GROUNDS. ill be found un- (531) n:}.t I H:\- •^p ■•'f ta. ' i|'-kj*l; • .• iif ♦-' .: i ' rfJf^ll ■ l| V«ti t ll>1! IH-f SURETY FOR THE PEACE AND GOOD BEHAVIOUR. ' Surety for the peace is the acknowledging of a recogni- sance or bond to the King, taken by a competent Judge of re- cord, for keeping the peace. And this Surety every Justice of the Peace may take and command as a Judge, and by vir- tue of his office, derived from his commission. 5 Burn^s, 283. On this subject will here be shewn, — I. For what cause Surety of the Pl:ace shall BE granted. 11. At whose request, and against whom it shall be granted. III. In what Manner it shall be granted. IV. How the Peace Warrant shall be executed. V. Of the Recognisance for the Peace. I. For what cause Surety of the Peace shall be GRANTED. By the Commission of the Peace, Justices of Peace have pov/er " to cause to come before them, or any one of them, all those, who to any of the King's people, concerning their bodies, or the firing of tht-r nouses, have used threats, to find sufficient security for the peace, or their good behaviour to- * * wards the King and his people, and if they shall refuse to find such security, to cause them in the King's prisons to be safely kept, until they shall find such security." Upon which it has been observed, that it seems clear, that Ft> ar oicorpo- wherever a person has just cause to fear that another will burn ^al hurt, or his house, or do him a corporal hurt, as by killing or beating i|""^"'^ him, or that he will procure others to do him such mischief, he * may demand the surety of the peace against such person, and that every Justice of the Peace is bound to grant it, upon the party's giving him satisfaction upon oath, that he is actually under such fear, and that he has just cause to be so, by rea- son of the other's having threatened to beat him, or laid in wait for tliat purpose ; and that he doth not require it out of malice or for vexation. It seems also the better opinion, that lie who is threatened Tlncat df un- to be imprisoned by another, has a right lo demand the surety P"so""'c"' ol the peace ; for every unlawful imprisonment is an assault and wrong to the persiun of a man. i ■ "> ,' ff-i'i -i*f l'> Jr. ■4' f ' i i f t lb 532 SURETY FOR THE PEACE, &c. Demanded through ma- lice or ve.'^a- tion. Fenr of harm to Servants or t'atllc, &c. Threats of hurt to a wife or child. Must be a fear of present or future danger. Other causes for requiring Surety. And although the fact from which the fear arises, be par- doiiecj, the Court will receive it as a ground upon which to grant the security. But if the Justice shall perceive that surety is demanded merely of malice, or for vexation only, without any just cause or fear, it seetTis he may safely deny it. Also, if a man will require surety of the peace, because he is at variance or in suit with his neighbour, it shall not bo granted. Also, it is said to be somewhat clear, that a Justice may not by the Commission award a precept of the peace in behalf of a man, because he fears another will do harm to his servanlSy or cattle, or other goods. The reason why a man may not have sureties of the peaco against another for that he fears he will do harm to his servants, seems to be, because it should be the servant's fear in such case, and not the master's ; and the servant's own oath before the Justice is necessary. And as to his goods, it seems clear that no sureties of the peace ought to be granted in that case ; for the recognisance of the peace when taken, is only, that the party shall keep the peace towards the King and all his liege people. But Mr. Dalton says, that if a man shall threaten to hurl another's wife or child, he thinks such person may crave sure- ties of the peace, by the words of the commission, and that the Justice ought to grant it- Note also, the surety of the peace shall not be granted but where there is a fear of some present or future danger, and not merely for a battery or trespass that is past, or for any breach of the peace that is past ; for this surety of the peace is only for the security of such as are in fear ; but the party wronged may punish the offender by indictment, and the Justice, if lie see cause, may bind over the affrayer, to answer unto the in- dictment. 5 Burn's, 284, — 5. A Justice may also bind to the good behaviour, rioters, common breakers of the peace, — such as in the presence and hearing of the Justice misbehave themselves in some outrageous manner of force or fraud, or such as abuse a Justice or consta- ble in executing their offices, or use words of contempt to n Justice at any time. Id. 300. II. At whose requkst, and against whom, it shall BR GRANTED. Who niJi) (Ic- innnfl surf tn's. It seems to be agreed, that all persons whatsoever undfif lli(.' King's protection, being of sane mcmnry, whether they be SURETY FOR THE PEACE, &c. 55i$ Infant under fourteen voars. natural and good subjects, or aliens, or attainted of treason, &c., have a riglit to demand surety of the peace. And it is certain a wife may demand it against her husband, threatening to beat her outrageously, and that a husband also may have it against his wife. Upon which it is observed, that if the wife in such case cannot find sureties, she shall be committed, and so a man may get rid of a shrew. An infant under the age of fourteen years may demand this surety, and it shall be granted to him. But as to a person of insane memory, this surety shall iVmne pur neither be granted against him nor to him, upon his own request ; «»"• but yet if there shall be cause the Justice ought to provide for his safety. There seems to be no doubt but that surety of the peace Against ought upon a just cause of complaint to be granted by any Jus- ^'^"'h "n "b " tice of the Peace, against any person whomsoever under the granted, degree of nobility, being of sane memory, whether he be a magistrate, or private person, and whether he be of full f^e, or under age. But persons under the age of twenty-one years, and married women, ought to find security by their friends, and not to be bound themselves. It is said, the fear of one cannot be the fear of another, and therefore every recognisance must be separate. 5 Burn's, 285 — 6. . ' . III. In avhat Manner it shall be granted. If the person to be bound be in the presence of the Jus- tice, he may be imtnediately committed unless he offer sureties ; and from hence it follows, that he may be commanded by word of mouth to find sureties, and committed lor his disobedience ; bu?. it is said, that if he be absent, he cannot be committed wihout a warrant from some Justice, in order to find sureties ; and that such warrant ought to be under seal, and to shew the cause for which it is granted, and at whose suit, and that it may be directed to any indifferent person. A Justice cannot enjoin another to keep the peace under a penalty. Nor comnnt for not finding security, until the party has been required and refused so to do. The articles of the peace must be verified by the oath of the exhibitant, an affirmation therefore is not sufficient. Affidavits shall not be received on the part of the defend- ant, to prevent his giving surety. The Justice may make the warrant to bring the party be- fore himself, or some other Justice, or he may make it to bring the party before himself only. It is said, that if one who fears that the surety of the peace Proceedings when party u before the Justice and when ho t< iibscDt. Cannot he en- joined under a penalty. Oath requi- site. Warrant to bring up th« party. «;i«f ffiif' i'l 534, SURETY OF THE PEACE, &c. SiipprsfuU'dS l)y tiiidiiii; SuretiiiH Ik'- lom arn'.>il. will be demanded ngainst him, find sureties before nny Justice- of the same county, either before or after a warrant is issued against him, he may have a su|)erscdeas from such Justice, which shall discharge him from arrest from any other Justice, at the suit of the same party for whose security he has given such surety. 5 iinrn's, 2SG — S. IV. How THE Peace Warrant shall be executed. Who shall «xf;ctit(! it. • t ..ii s.^— Breuking open (lours to arrest. Before whom the party shall he curried. Supersedeas on surety heing given. ronmiitment on refusal to find Sureties. Insufficient Hu relies. It can be executed only by the persons to whom it is di- rected, or some of then), unless it be directed to the Sheriff, who may either by parole, or by precept in writing, authorise an officer sworn and known, to serve it, but cannot empower any other person, without a precept in writing. Where a person authorised to arrest another, who is shel- tered in a house, is desired quietly to enter il, in order to take him, it seenis generally to be agreed, that he may justify break- ing open the doors, upon a warrant from a Justice of the Peace, to compel a man to find sureties for the peace or good behaviour. But no one can justify breaking open another's doors to make an arrest, unless he first signify to those in the house, the cause of his coming, and request them to give him admittance. If the warrant specially direct, that the party shall be brought before the Justice who made it, the officer ought not to carry him before any other ; but if the warrant be general, to carry him before any Justice of such place, the officer has the election to bring him before what Justice he pleases. And if the party be carried before another Justice, and not before him who issued the warrant, such other Justice must take the surety, and bind him by recognisance in all points as the form of the precept doth require : and thereupon, such other Justice, having so taken surety of the peace, may and ought upon request to make his supersedeas to all officers, and to all other Justices of the same county : and thereby the said party shall be discharged from finding other surely, and from any other arrest from the same cause ; but by such supersedeas, the other Justice cannot discharge the warrant of the first Jus- tice, until the party be bound indeed, nor give any other day to the party to appear. It is the best way, and now the usual practice, to direct the constable in the first instance to take the party before the Justice, who in case of refusal or neglect to find sureties, com- mits him to prison. If the Justice was deceived in the sufficiency of the sure- ties, he, or any other Justice may afterwards compel the par- ty to find and put in other sufficient sureties, and may take a new recognisance for the same. SURETY FOR THE PEACE, kc. 535 I m EXECUTED. mot empower ll'ilie smc'tios die, the party principal shall not be com- Donih of polled to find new sureties, because their executors and admi- ^^''''otieH. nistrntors are liable. But if a man that was hound to keep the peace, hath hro- Binding nncw ken his bond, tiio Justices ous;ht, of discretion, to bind him "" ^^^?*^^ "^ ■n -1 I I 1 /• "III e- recognisance, anew, liut not until lie be tliereot convicted by due course ot law, for before conviction he stands indifterent whether ho hath forfeited liis recognisance or not. 5 Burn's^ 288-9. V. Of the Recognisance for the Peace. As to the form of such a reco2;nisance, where it is taken Form nnd before a Justice upon a complaint below, it seems that it may '"•'ce °' "c- be ree,ulated by the discretion of such Justice both as to the number and sullicicncy of the sureties, and the largeness of the sum, and the cotWittuitnco of the lime for which the jiarty shall be bound. And it hath been said, that a recognisance to keep the peace as to any person, for a year, or for life, or without expressing any certain time, (in which case it shall be intend- ed for life,) or without ilxing any time or place for the party's appearance, or without binding him to keep the peace against all the King's people in general, is good. However, it seems, to be ihe safest way to bind the party to appear at the next Sessions of the Peace, and in the mean time to keep the peace as to the King and all his liege people, especially as to the party, according to the common form of precedents. But in a recent case it has been determined by the Court For what of King's Bench, that a Justice of the Peace is authorised to ti'>'e, liindiag require surety of the Peace for a limited period, (e. g. two years,) according to his discretion, and that he need not bind the party over to the next Sessions only. But if a recogni- sance to appear at the Sessions be taken, and an order of Court for finding sureties applied for, articles of the peace must bo exhibited. The act that shall cause a forfeiture of such recognisance Forfeiting Re- must be done or intended unto the person as is aforesaid, or in cognisance, terror of the people. Therefore, to enter into lands where he ought to bring his action, or to disseise another of his lands, or to enter into lands or tenements with force, being without offer of violence to any man's person, and without public terror, or to do a trespass in another man's corn or grass, or to take away another man's goods wrongfully, so it be not from his person, or to steal another man's horse or other goods leloniously, be- ing not from his person ; all these, and the like are breaches of the peace, and yet these will make no breach of this re- cognisance, nor breach of the peace within the meaning of th^ commission of the peace. 68 W \'^ : ' l;-.. 5.% SURHTY rOH TIIK PKACK, &r. J ! I Kxciuo for not iippcuring at Hns.siuns. Forftiitiirc by violenoe. Unlawful As- sembly, threutfl, &c. Cases wlioro actual Assault is no Forfei- ture. T^il tlio recognisance' is rorfeilctJ if the parly make dcfuiilt of appearance, and the same default shall he recorded. Ho\vPVf>r, if the p;Miy have any excuse for his not appear- ing, it si'cnib that the Sessions are not boiuid peremptorily to record his default, bnt may equitably consider of the reasona- bleness of such excuse. Tiicr ^ !•; M' > doubt but that it may be forfeited by any actiinl violence to ilio person of another, whether it be done by the party himself, or by otliers through his |)rocnrement, as inan- slanghtcr, rape, robbery, unlawful imprisoimient, and the like. Also it has been holden, that it may be forfeited by any indawfid assembly in lerrorem ■jwpnll, and even by words directly tending to a breach of the pence, as by challenging one to fight, or in his presence threatening to beat him. Otherwise it is, if the |)arty be absent, and yet if the party so bound shall threaten to kill or beat a person who is absent, and after shall lie in wait for him, to kill or beat hini, this is a forfeiture of the recognisance. Also there are some actual assaults on the person of another which do not amount to a forfeitiu'e of such recognisance, as if an officer having a warrant against one who will not sufier hitnself to be arrested, beat or wound him in the attempt to take him, or if a parent in a reasonable manner chastise his child, or a master his servant, being actually in his service ai the time, or a schoolmaster his scholar, or a gaoler his prisoner, or if a man beat one who makes an assault upon his person, or that of his wife, parent, child, or master, or if a man figlit with, or beat one who attempts to kill any stranger, or if one imprison those whom he sees fighting, till the heat is over, and many other like cases. He who is bound to the peace and to appear at a certain day, must appear at that day and record his appearance, al- though he who craves the peace comes not to desire ihnt it may be continued ; otherwise the recognisance cannot be dis- charged. The non-appearance of the party at whose complaint tlic recognisance was taken, in order to pray the continuance of it, will be a good inducement to the Court to which such a recog- nisance shall be certified, to discbarge it, and yet it is said, that the Sessions in that case may in their discretion refuse to discharge it. Continuing If a man be bound to keep the peace towards the King and Recognisance. aH bis people, and especially towards a certain person, there, though such person comes not to desire that the peace may be continued, yet the Court by their discretion tnay bind him over till the next Sessions, and that may be, to keep the peace to- Discharging Recognisance. y f SURliTV FOR Till: I'KACK, kc. mi wards lliut person only, if tliey shall think good ; for it may hoiliat the person who llrst ciavt'•"'«- lo die, it seems the Justice n)ay make his liiberale or War- "'^'i'"*'' rant lor the delivery of snch prisoner, for alter snch death there seems no cause to continne the other in prison. Also any .Justice may upon the oli'er ol" such prisoner take surely ol" liim for the |)cace, and may thereupon deliver him. ;"> ZJuru's, J8U lo 2yj. Form of Complaint lo vcijnirc Sunly for lite Peace and ^ood Heliavionr, County of I The Information and com[)lainl of A. C of ^ in the said county of yeoman, taken upon oath before me A. M. Escpjire, one of His Majesty's Justices of llie Peace in and for the said county, the — day of in the year of our Lord one thousand eight hundred and The said complainant saith, that A. D. of in the said county, yeoman, did on the — day of now last past, at in the said county, threaten to [here state the precise threats and words used] and that from the above and other threats used by the said A. D. towards this complainant, he this complainant is afraid that the said A. D. will do him some bodily injury, and therefore prays that the said A. D. may be required to find suliicient sureties to keep the peace ami be of good behaviour towards him this complainant. And the said A. C. also says, that he doth not make this complaint against, nor require such sureties from the said A. D. from any malice or ill will, but merely lor the i)reservaiion of his person from injury. A. C Sworn before me, A. M., J. P. Warrant on the Foregoing Complaint. ^ County o( I To A. B. one of the Constables of the Town- i| ship of in the said county, and to the other j Seal. I constables of ihe said township. Wni:uKAs A. C. of in the said coutity, yeoman, liaih this day made oath before me A. M., Escpiire, one of His Majesty's Justices of the Peace, in and for the said county, ihat A. D. of in tiie said county, yeoman, did on iJi-j — day of last, al in the said county, threuieu to I ^*^. 1 '4 mm X*-'* IMAGE EVALUATION TEST TARGET (MT-3) A ^ 1.0 1.1 Sf |«£ 12.0 u p^ y HiotDgrafiiic Sciences Corporalion %^ V <> ^. ^\ ^-V >^^^ ^ ^^<^^ ^.^ ;\ 23 WBT MAIN STRUT WiUTIR.N.Y. 14SM (?I6)«72-4S03 i 538 SURETY FOR THE PEACE, &c. &c. [here recite the words of the complaint] and that from the above and other threats used by the said A. D. towards the said A- C, he the said A. C. is afraid tiiat the said A. D. will do him some bodily injury ; and therefore the said A. C. hath prayed, thai the said A. D. may he required to find sufficient sureties to keep the peace and be of good behaviour towards him the said A. C. ; I do therefore hereby require and com- mand you, to apprehend and bring the said A. D. before me, or some other of His Majesty's Justices of the Peace in and for the said county, to answer the said complaint, and to find sufficient sureties to keep the peace and be of good beha- viour towards His Majesty and all his liege people, and espe- cially towards the said A. C. for such term as shall be then enjoined him. Given under my hand and seal, at the — day of in the year of our Lord one thousand eight hun- dred and iS. i#»t' A. M., J. P. ti«*>» [If the Justice intend to bind the party to appear at the Sessions, the form of the warrant must be altered thus : — " To find sufficient sureties, as well for his appearance at the next General Sessions of the Peace to be held for the said county, to answer the said complaint, as also in the mean time to keep the peace and be of good behaviour towards His Ma- jesty and all his liege people, and especially towards the said A. C] .) K,X.' Commitment for icant of Sureties, for a limited Period, fixed - by the Justice. County of ^ To A. B. one of the constables of the town- ^ ship of in the said county, and also to the [Seal.] keeper of His Majesty's gaol for the said county. Whereas A. C. of in the said county, yeoman, hath made oath, &c. [here recite the complaint precisely as in the foregoing warrant, and then proceed thus :] And whereas the said A. C. was this day brought before me, to answer the said complaint, and I the said Justice have ordered and ad- judged, and do hereby order and adjudge, that the said A. D. shall enter into his own recognisance, in the sum of j£50 with two sufficient sureties, in the sum of JE25 each, to keep the peace and be of good behaviour towards His Majesty and all his liege people, and particularly towards the said A. C. for the space of twelve calender months now next ensuln;;, : And insomuch as the said A. D. hath refused to enter into such recognisance, and to find such sureties as aforesaid, I do here- by require and command you the said constable, forthwith to SURETY OF THE PEACE, kc. 589 •convey tho said A. D. to the common gaol of the said county, and to deliver him to the keeper thereof, together with this warrant : And I do also require and command you the said keeper, to receive the said A. D. into your custody in the said gaol, and him there safely to keep, for the space of twelve calender months, unless he in the mean time enter into such recognisance with such sureties as aforesaid, to keep the peace in the manner and for the term aforesaid. Herein fail not. Given under my hand and seal, at the — day of ihs year one thousand eight hundred and ni A. M., J. P. Commitment Jor voant of Sureties to appear at the Sessions. County of) To A. B. one of the constables of the town- ) ship of in the said county, and to the keeper [Seal.] of His Majesty's gaol for ihe said county. Whereas A. C. of in the said county, yeoman, hath made oath, &c. [here recite the complaint, as in the pre- ceding form of warrant to the constable :] And wheieas the said A. D. having been this day brought before me the said Justice, to answer the said complaint, and, having been re- quired by nie to find sufficient sureties, as well for his ap- pearance at the next General Sessions of the Peace to be held in and for the said county, to do what shall be then and there enjoined him by the Court, as also in the mean time to keep the peace and be of good behaviour towards His Ma- jesty and all his liege people, and especially towards the said A. C, hath neglected and refused to find such sureties ; I do therefore hereby require and command you the said constable, forthwith to convey the said A. D. to the common gaol of the said county, and to deliver him to the keeper thereof, together with this warrant : And I do also require and command you the said keeper, to receive the said A. D. into your custody, and him there safely to keep until the next General Sessions of the peace to be held in and for the said county, unless he in the mean time find sufiUcient sureties, as well for his appear- ance at the said Sessions, as in the mean time to keep the peace as aforesaid. Given under my hand and seal, at the day of one thousand eight hundred and ■ <»v4 ■■-' ^-i-- j«. .i-i.- ■ .,■ ' j^' VI A. M., J. P. Recognisance for the Peace and Good Behaviour, -'f County of } Be it remembered, that on the — day of ij in the — year of the reign of our Sovereign Lord 544) SURETY OF THE PEACE, &t. King Willinm the Fourth, and in the year of our Lord one thousand eight hundred and , A. D. of in the county atoresaid, yeoman, A. S. of the same place, yeoman, and B. S. of the same place, yeoman, camehefore me A. M. Esquiie, one of His Majesty's Justices of the Peace, in and for the said cotmty, and acknowledged themselves to oueto our said Lord the King, to wit, the said A. D. the sum of pounds, and the said A. S. the sum of pounds, and the said B. S. the sum of poimds, of lawful money of the Province of No- va Scotia, to he respectively made and levied of their several goods and chattels, lands and tenements to the use of our said Lord the King, his heirs and successors, if he the said A. D. shall fail in performing the condition underwritten. Acknowledged before me, A. M., J. P. . The condition of this recognisance is such, that if the above bounden A. D. shall keep the peace and be of good be- haviour towards the King and all his liege people, and especially lowardjf A. C. of in the said county, yeoman, for the term of twelve calender months, now next ensuing, then the said recognisance shall be void, or else remain in its force. [If the Justice bind the party to appear at the Sessions, the condition of the recognisance must be thus, — that if the said A. D. shall personally appear at the next General Sessions of the peace to be held in and for the said county, to do and re- ceive what shall be then and there enjoined him by the Court, and in the mean time shall keep the peace and be of good beha- viour towards His Majesty and all his liege people, and espe- cially towards the said A. C. Then this recognisance shall be void, or else to remain in its force.] The manner of calling the parties and binding them, when in the presence of the Justice, will be found described under the Title, — Recognisance. Form of Discharge of one CommiUed for icant of Surclics. County of ^ To the Keeper of His Majesty's gaol for the ^ said county. i -l-jc [Seal.] DisciiARGE out of your custody the body of A. D. of — in the said county, yeoman, he having this day entered into a recognisance before me, one of His Majesty's Justices of the Peace in and for the said county, in the sum of pounds, with two sureties in pounds each, to keep the peace .and be of good behaviour towards His Majesty and all his liege pco- SWEARING. pie, and especially towards A. C. of in the said county* veonian, for the space of twelve calender months now next en- suing. Given under nny hand and seal, the — day of one thousand eight hundred and . - ■> ■ •' .^1 -i-i'ii. • i-»*^j' ;i'.*»«^.rs A. M , J. P. '.!« W.M. J- v> 541 if^ I- I' III SWEARING. Br the Statute of the 32 G. 2, c. 20. 1 V. 28, If any person shall profanely swear or curse, in the presence or hear- ing of any Justice of the Peace, or shall be thereof convicted by the oath of one credible witness, or by the confession of the party before any Justice of the Peace, every person of- fending shall forfeit to the use of the poor of the town where such offence shall be committed, for the first offence, two shil- lings, and in case such person shall, after conviction, offend a second time, he shall forfeit double, and if a third time, tre- ble the sum to be paid for the first offence ; and upon neglect of payment, the Justice shall issue his warrant to a constable, commanding him to levy the said forfeitures, by distress and sale of the goods of such offender ; and the forfeiture, when paid or levied, shall be delivered to the Overseers of the poor, ibr the use of the poor as aforesaid ; and in case no distress can be had, such offender, being above the age of sixteen years, shall by warrant of the Justice be set in the public stockn for one hour, for every single offence ; and for any nui.iber of offences for which he shall be convicted a: one time, two hours ; and if the party offending be under the age of sixteen years, and shall not pay the forfeitures, he shall, by warrant of the Justice, be whipped by the constable, or by the parent, guar- dian, or master of such offender, in presence of the constable ; Provided always, that every such offence be proved or prose- cuted within ten days after the offence committed." ^' Sec. 4. The Justices of the Peace shall register all the convictions made before them, of such profane swearing and cursing, and shall certify the same to the next Quarter Ses- sions, to be kept upon record by the Clerks of the Peace, to be seen without fee. ' -•' w i.^ ,;^h Sec. 5. If any action shall be brought Against dny Jus- tice of the Peace, or officer, for any proceedings on the said offences, in pursuance of this Act, the defendant may plead the general issue, and give the special matter in evidence ; and if the plaintiff shall be nonsuit, or a verdict shall be found for the defendant, such defendnnt shall have treble costs. Per- petual i tl •'■^: 'tMml V f' !;'■ V . i ] m ttli : 542 SWEARING. [Note. This Statute does not extend to common swearing in general, although this, in every kind and form of it, is a base and wicked practice, and a direct breach of the Divine com- mand. By the profane oaths and curses mentioned in the Act, are intended, only those oaths and curses in which any Divine and sacred name, attribute, or object, is profanely used and expressed.] Information. ' i>j County of \ The information of A. C. of in the said ^ county, yeoman, made on oath this day of in the year of our Lord one thousand eight hundred and before me A. M., Esquire, one of His Majesty's Jus- tices of the Peace in and for the said county* The said A. C. saith, that on the — day of now last past, at in the township of in the said county, he heard A. 0. of in the said county, yeoman, swear one profane oath, [or curse one profane curse] in these words, to wit Before me, ..../ ., m • >. -df A* C. ni. ..>i)i( •,'ki-. County of A. M., J. P. 1 y Summons thereupon. .i! '■■i-'i- '■tr'f u To A. B. one of the constables of the township in the said county. r/'T V.W it! i!^r [Seal.] Whereas information hath been this day made before me A. M. Esquire, one of His Majesty's Justices of the Peace for the said county, upon the oath of A. C. of in the said county, yeoman, that on the — day of this present month of yeoman, at he heard A. 0. of in the township of' , in the said county, — in the said county, swear one profane oath, [or curse one profane curse.] These are therefore to command you, forthwith to sumnoon the said A. 0. to appear before me, on next, the — day of this present month of , at — o'clock in the forenoon, to an- swer the premises, and to be further dealt with according to law. Given under my hand and seal, the — day of , in the year of our Lord . 'H v>! , r'\riil ■^ If A. M., J. i. Note. The summons should be served, (if possible) three days before the day fixed for the appearance of the par- ty. The Form of Conviction will be fouiid under the Title, — Conviction. SWEARING. if the Justice convicts for an ofTencb committed in his own presence and hearing, tlie Information and Summons are needless, and the Conviction may be in the following Form : Coanty of) Be it remembered, that on the — day of — — ) in the year of our Lord ono thousand eight hnn- [Seal.] dred and at the township of in the said county of A. O. of the township of in the said county, yeoman, did swear one profane oath, in the fol- lowing words, to wit, in the presence and hearing of me A. M., Esquire, one of His Majesty's Justices of the Peace in and for the said county ; Whereupon it is considered and adjudged by me the said Justice, that the said A. O. be con- victed, and he is accordingly by me hereby convicted of the offence aforesaid, in my Own presence and hearing, according to the form of the Statute in that case made and provided ; And I do hereby adjudge, that the said A. 0. for the said of- fence hath forfeited the sum of two shillings, to be paid and applied as the law directs. In witness whereof, I the said Justice have to this present conviction set my hand and seal, at in the said county, this — day of in the year above written. -" -tf .'-. > A. M., J. P. Warrant of Distress ^ on a Conviction for Profane Swearing. County of ) To A. B. one of the Constables of the town- \ ship of in the said county. [Seal] WB2REAS, on the — 5l;j in the year of our -, A. 0. of , — day of — Lord one thousand eight hundred and - in the said county, yeoman, was duly convicted by and before me, A. M., Esquire, one of His Majesty's Justices of the Peace in and for the said county, for that he the said A. O. on the — day of , in the year aforesaid, at the township of -— — , in the said county, did swear one profane oath, in these words, to wit, whereby he hath forfeited the sum of two shillings, according to the Statute in such case made and pro- vided 'j And whereas the said A. O. hath not yet paid the said sum of two shillings, or any part thereof, but still neglects and refuses to pay the same ; These are therefore to command yoH, forthwith to levy the said sum of two shillings, by dis- training the goods and chattels of him the said A. 0. whereso- ever they may be found within ray jurisdiction, and if within the space of five days next after such distress by you taken, the said sum, together with reasonable charges for taking and •it" iii'1 IH i 544 SWEARING. keeping the said distress, shall not bo paid, that then yon do sell the said goods and chattels so by you distrained, and out of the money arising by such sale, that you do pay the said sum of two shillings to the Overseers of the poor for the said township of in the said county, for the use of the poor of the said township, rendering to him the said A. 0. the over- plus upon demand, the necessary charges of taking, keeping and selling the said distress being 6rst deducted ; and if sufTicient distress cannot be found, whereon to levy the said sum, that you certify the same to me, together with the return of this warrant. Given under my hand and seal, at in the said county, the — day of in the year aforesaid. A. M., J. P. Certificate by the Constable of want of Distress. County of) I, A. B. one of the constables of the township ) of in the said county, do hereby certify to A. M., Esquire, the Justice within named, that I have made diligent search for, but do not know of, nor can fmd any goods or chattels of :he within named A. O. whereon to levy the within sum of two shillings. A. B. Before me the said Justice, A. M., J. P. Commitment to the Stocks^ for Profane Swearing ; for teanl of goods tohereon to levy the Penalty. County of To A. B. one of the constables of the town- ship of , in the said county. [Seal.] Whereas A. O. of was on the — day of , in the said county, yeoman, , in the year of our Lord one thou- , convicted by and before me, A. sand eight hundred and M., Esquire, one of His Majesty's Justices of the Peace in and for the said county, for that he the said A. 0. on the — day of , in the year aforesaid, at the township of in the said county, did swear one profane oath, in these words, to wit, contrary to the Statute in such case provided ; whereby he hath forfeited the sum of two shillings ; And whereas it duly appears to me, that the said A. O. is not able to pay the said sum of two shillings, and the same is not yet paid ; These are therefore to require you, in His Majes- ty's name, to set him the said A. O. in the public stocks, at , in the said county, there to remain for the space of one SWEARING. hour. Given under my hand and seal, ut aforesaid, tiic — day of , in the year of our Lord one thousand eiglit liundred and A. M., J. P. -m- TANNERS, see HIDES. 545 TAVERNS. The greater part of tlie regulations concerning taverns, contained in our Statutes, relate and apply equally to all shops and other places where spirituous liquors are sold under licen- ses. It is therefore thought most appropriate as well as conve- nient, to set forth all such regulations under the general Title, — Spirituous Liquors. Moreover, it being highly desirable to keep this work within the most moderate compass, consistent with all requisite information and assistance to Magistrates, all needless recitals and repetitions will by this arrangement be avoided. Reference therefore, when required, can be had to the general Title just mentioned, and under it will be found the several enactments relating to the granting and suspending of licenses to keep taverns, — hanging out signs, — preserving order in taverns, — prohibiting the sale of liquors therein to servants and certain other persons, — against selling spirituous liquors on credit, — taking pledges for payment of the same, and various other regulations concerning taverns, together with (he requisite Forms and Directions as to the recovery of pen- alties. The present Title includes only such egulations, con- tained in our Statutes, as relate, either excL;s vely, or more particularly, to taverns, together with certain other matters, concerning inns and taverns in general, which it will be useful for every magistrate to know. L Certain Regulations concerning Taverns ; BY several Statutes. > n. Other Matters relating to Inns and Taverns, IN general. I. Certain Regulations concerning Taverns ; by several Statutes. , , . Bv the Statute of the 2 VV. l, c. S, ^22. I V. 110, The lb;- 1 '. ; if 5W> TAVERNS. Ac'ominodii- lioiiH in Ta- vfriis. Scllinj; (looils ill 'ravfrns. Justices in Sessions shall not grnnt a tnvern license to any per- son (except in the Town of Halifax,) unless he, she, or ihoy shall keep a house of public entertainment for travellers ; and every person obtaining such tavern liciMise, shall cause a sign to ho sot up, over or near the door of such tavern, with his or her name thereon, and a plain inscription, setting forth that entertainment may be had there for man and horse ; and shall also keep and have in his or her house, two good beds, over and above what n)ny be recpiircd for the lodging of his or her family and servants ; and shall also be provided with good and wholesome victuals and drink for the accommodation of travel- lers, and with stables, hay, and provender for horses ; in de- fault whereof, it shall be lawful for the Justices in Sessions, en complaint thereof by one or more witnesses upon oath, to take away such licenses as forfeit. Sec. 2G. It shall not be lawful for any tavern-keeper, or person holding a tavern license within this Province, unless such person also holds a general license, hereafter to sell, vend, or expose to sale, in or about his or her tavern, any goods, wares, or merchandize whatsoever, other than the victuals or drink necessary to be used and consumed, and which are usually used and consumed in taverns ; nor shall it he lawful for such tavern keeper, or person holding a tavern license, to suffer the same to be done ; and any person or per- sons offending against the provisions contained in this clause, shall forfeit and pay the penalty of twenty pounds for each and every offence, to be recovered and applied in the manner herein mentioned. Perpetual. [Note. This penalty is to be recovered before two Jus- tices, in the same manner, and by the like proceedings as in the case of selling spirituous liquors without a license, as to which proceedings, with the requisite Forms, see Title,— Spirituous Liquors.] By Sec. 5 of the Act of the 7 W. 4, c. 15, Sess. 1837, No Justice of the Peace, (except in the Town of Halifax,) shall be allowed or considered eligible to hold or take out any tavern license for the retail of ardent spirits- Sec. 6. Nothing in this Act, or in any other Act con- tained, shall extend to prevent any person holding a tavern license, (except in the Town of Halifax,) from selling any (juantity of spirits, wine, or other liquor, not exceeding al any one time, ojie (|nart, to any person whomsoever, (exce|)t- ing Indians,) whetlier the same is lo be consumed in liis house, or elsewhere. '' x^lnnual TAVERNS 517 II. Other Matters rrlatinu to Inns and Taverns, IN GENERAL. Innkeepers are bound by law to receive guests who come to their inns, and are also bound to protect the property of those guests. They have no option either to receive or reject guests ; and as they cannot refuse to receive guests, so neither can they impose unreasonable terms on them. Inns being intended for the receiving and lodging of tra* vellers, may be indicted, suppressed, and the innkeepers fined, if they refuse to entertain a traveller without a very sufficient cause. If one who keeps a common inn, refuse either to receive a traveller as a guest into his bouse, or to find him victuals or lodgit)g, upon his tendering him a reasonable price for the same, he is not only liable to render damages for the injury in an action at the suit of the party grieved, but may also be in- dicted and 6ned at the suit of the King. " ' ' ' < An innkeeper may also be compelled to receive a horse, although the owner do not lodge in his house ; because by keeping the horse he has gain ; but it would be otherwise of a trunkf or other dead thing. 1 Burn's^ 51. ' An innkeeper may detain the person of the guest who eats, or the horse which eats, till payment. And this he may do without any agreement for that purpose. But a horse committed to an innkeeper, may be detain- ed only for his own meat, and not for the meat of the guest, or of any other horse. An innkeeper may detain for bis keep, a horse left with him to be kept, though the person who left him had no right to him, and though such person did not stay in the inn ; for leaving his horse at an inn makes a man a guest there. Also, a horse committed to an innkeeper to be kept, and put by biro to pasture, may be detained for the pasturage. An innkeeper that detains a horse for his meat, cannot use him. The taw obliges an innkeeper to keep safely the goods of persons coming to his inn as guests. And although the guest doth not deliver his goods to the innkeeper to keep, nor ac- quaints him with them, yet if they be stolen the innkeeper shall be charged. 5 Burn's^ 55 to 57. A gues-t removing, in the night, goods out of his chamber in an lull, and carrying them to the stable, intending to ride off with iliem, is guilty of felony. Id. 51). Iniikerpcrs lioutul to n;- (•(•ivo gllOHlM, iiiui may bo proHUCutml i'ur refuHiiig. Detaining I'erHon or (loodn for Diet. Detaining fur Pasturage. Liability of Innkeeper fur goodH of guest. m * > I. ( 548 ) TAXES, see— RATES. TENANT, aoc-LANDLORI) AND TENANT. THISTLES. Uv the 31 G. o, c. 0. 1 V. 285, In all such countieii wlicre it may be necessary, the Justices in their General Ses- sions of the peace, held in the beginning or spring of the year, sliult make such regulations as to them shall seem proper and necessary, for |)reveniing the growth and increase o( thistles on the lands within such counties respectively, and the regulatioiiti so made shall be published, by posting the same in the most public places in each township within the said county. Sec. 2. The said Justices in their Sessions as aforesaid, shall appoint two or more proper persons in each township within such county, to be inspectors for the purpose of carry- ing into execution the regulations so made, and if the person!) so to be appointed, shall refuse to accept such office, or hav- ing accepted the same, shall neglect their duty therein, they shall forfeit and pay a fine not exceeding three pounds. Sec. 3. Every person who shall refuse or neglect to pay due obedience to such regulations so made by the said Justices, shall forfeit and pay a fine of forty shillings, for each such re- fusal or neglect. Sec. 4. The several penalties and forfeitures aforesaid shall be recovered on complaint and due proof before the Ge- neral Sessions of the Peace, and on non-payment thereof, he levied by distress and sale of the offender's goods and chattels, by a warrant from the said Court ; one moiety thereof to the person or persons who shall prosecute the same to effect, the other moiety to be applied to the purpose of repairing the roads in the township wherein the offence shall have been commiiled, at the discretion of said Court. Sec. 6. This Act shall be publicly read at the first Ses- sions of the Peace in every year after the Grand Jury are sworn. Perpetual. - ' ■I ■ > r< ■' : TIMBER, see— LUMBER. TOLLS, see— GRAIN. (54-9) TOWN OFFICERS. Br llto :> (;. 3, v.. I. 1 V. lUG, The Grniul Juries fur the several counties in this Prnvincs, shall, anniinlly, at the first term of the Court of General Sessions, nominate out of every township in each county, respectively, ten fit persons, out of whom the said Court nhall appoint five, to be Surveyors of lines and bounds of each respective township, who are hereby empowered to survey, examine, and ascertain the lines and bounds of their said respective townships, agreeable to the several grants thereof, and who shall also be Overseers of the poor of the said township ; and at the said time, the said Grand Jury shall in like monner nominate two persons, one of whom the Court shall appoint to be Town Clerk of the said town, who shall be sworn, truly to enter and record all such matters and things as shall relate to the said township, and shall appertain to his office ; and shall also nominate four or more Constables, of whom the Court shall appoint two or more os they shall see convenient, to be constables in the said town- ship ; ond shall also nominate four Surveyors of Highways, of whom the said Court shall appoint two, to be surveyors of high- ways in the said township ; and also shall nominate four Fence Viewers, of whom the said court shall appoint two, to be fence viewers in the said township ; and shall also nominate two Clerks of the Market, of whom the said Court shall appoint one, to be clerk of the market in said township ; and shall also nominate four Pound Keepers, of whom the said Court shall appoint a sufficient number in their discretion, to be pound keepers in the said town- ship ; and shall also nominate four or more Cullers and Surveyors of Fish, of whom the said Court shall appoint a sufficient number in their discretion, to be cullers and surveyors offish, in the said township; and shall also nominate four Surveyors of Lumber and cordwood, of whom the said Court shall appoint two, to be sur- veyors of lumber and cord wood in the said township ; and shall also nominate two Sealers of Leather, of whom the said Court shall appoint one, to be sealer of leather in the said township ; and shall also nominate four Guagers of Casks, of whom the said Court shall appoint iwo, to be guagers of casks in the said town- ship ; and shall also nominate four Hogreaves, of whom the said Court shall appoint two, to be hogreaves in the said township ; who shall respectively be sworn to the faithful discharge of their duty, in manner as is already prescribed by the laws of this Province, and shall in every respect conform to the said laws ; and upon their, or any of their refusal to accept, or being guilty of any neglect or misbehaviour in the execution of the duty of \uiiiiiiiiliii)( itiul it|)|H)ini- iiiK I'ifrtiiiii Tuwii olli<>i>i>i Siirvi'VOM of ittiiiniis mill OviTXIHTi* III* I'oor. Town ( 'li'rk. Conintiilili.'H. Survoyors of IligliwiiyH, [''l'iici! vii'wcrs Clerks uf lliif Market. Pound Keep- urH. Cullers uiiil Surveyors of Fish. " Surveyors of [ ' l- ; ; . ^ .: .' > . ■ :.' [For the allowances to the several officers named in this Act, see respectively, Titles, — Bricks ; Coals ; Grain ; Lime ; Salt.] By the 51 G. 3, c. 24. 2 V. 70, The Grand Juries in the several Courts of General or Quarter Sessions of the Peace, at such term as the Justices of such Courts shall direct, shall, ill future, annually nominate such number of fit and proper i)er- sons for each township and district, as the said Justices shall direct, to execute and discharge the duties of town ofticers for such township or district as they shall be appointed for, respec- tively ; out of whom the said Court of Session shall appoint such number as they may deem expedient, to serve in the several offices to which they shall be so appointed, any law, usage or custom to the contrary notwithstanding. Perpetual. [This Statute was repealed in the year 1820, but was revived by the 7 W. 4, c.61, Sess. 1837.] The Statute of the 3 W. 4, c. 53. 4 V. 234, Directs the inspectors of appointment of Inspectors of smoked herrings, and prescribes Smoked Her- regulations concerning the office and the duties thereof; as to ""S'*" all which, see Title, — Fish. The 4 W.4, c. 12. 4 V. 263, Directs, that the General Supervisors Sessions shall appoint Supervisors of public grounds in every ^f l'"i'li« township, for which see Title, — Public Grounds. Assessors and Collectors of county rates are appointed un- der the 5 W. 4, c. 13. 4 V. 385, and regulations respecting the said offices, and the manner of recovering the penalties re- lating to the same, are therein prescribed, for all which, see Title, — Rates. The penalties imposed by the two Statutes first mention- Directions ed under this Title, for refusing to accept office, or neglect of duly therein, are to be recovered in the same manner as other penalties of the like nature, on the information of any person who will prosecute for the same. The party complained of must be summoned in the usual manner, to ajipear and answer, and on conviction, a warrant of distress is the only final pro- ' - ' -* cess which can be issued. Directions as to such prosecutions, , > . • with the general Forms requisite, which can readily be filled ^ up so as to serve, will be found under the respective Titles, — '.' ' • "' Information ; Summons ; Conviction ; Distress. • • i "J<'>'ti'-'i TO i 1' 1' ' 1 1 u i fli'' I^J Wi '"l V :^'l ;.. 552 TOWN OFFICERS. With regard to the penahy in the Statute relating to the Measurers of grain, and certain other articles, and the In- spectors of bricks, the proceedings and Forms, in prosecu- tions for the recovery thereof, will also be the same as in sin>i- lar cases, until after conviction. As no final process, either of distress, commitment, or other description, is directed or alluded to in the Act, no final process of any kind can be is- sued by the Justices for levying or enforcing the penalty for the same ; for reasons which have already been given under several Titles of this work, with reference to other cases of similar omissiot). ' - . • ; TOWNSHIP LINES. Running boundary lines of Townships. Raising Mo- ney to defray expense of running Lines of Townships. By the 5 G. 3, c. 1. 1 V. 107, The original boundary lines of every township or district within this Province, shall be run betwixt township and township, and marks renewed once in three years, namely, on the first Monday in March, by the surveyors of lines and bounds appointed for the respective townships, as directed by this Act, or the major part of them ; and the persons so appointed for each respective township are iiereby enopowered and directed to give six days' notice to the persons appointed for the adjacent townships, of the time and place of meeting for si»ch survey, and any person or persons appointed as aforesaid, refusing or neglecting to attend at the place mentioned in such notice, being duly served therewith, shall forfeit and pay the sum of forty shillings each, to be re- covered on complaint before any two Justices for the county where such complaint shall be made ; and one half of the for- feiture shall be paid to tlie person ojr persons who shaU com- plain and prosecute for the same, and the other half to the Over- seers of the poor for the use of the poor of such towns from whence the complaint was made ; and whenever the surveyors of any township, which shaJl have had notice as aforesaid, shall refuse or neglect to attend the said business, the surveyors who shall have given such notice shall, aiiid they are hereby em- powered to proceed in running and making such line, which shall be as e^'ectual as if the surveyors of both townships had joined. Perpetual. By the 51 G. 3, c. 4. 2 V. 67, The inhabitants of the several townships shall, at the periods prescribed by law for providing for the poor, vote such sum or sums of money as may be necessary to defray the expense incurred by running or perambulating the bounds of such township, which sum or suios TOWNSHIP LINES. 553 of rrtcmey shall be first approved of and allowed by the Court of General Sessions for the county or district of which such township fonns a part, and being so approved, allowed and certified, shall be assessed and collected in the same manner as the money voted for ibe support of tlie poor, and shall be applied for the purpose aforesaid." Sec. 2. " All appeals fi"om the rate -so to be made shall be beard and determined in the same manner as appeals frotii the poor rate are heard and determined. This Statute is made perpetual bv the 1 & 2 G. 4, c. 9. 3 V. 104. Tbe proceedings and Forms for recovering the penalty Direciions. imposed by the Statute first mentioned under this Title, will be the same as in similar cases, until after conviction, and are set forlh under tbe respective Titles, — Information ; Summons ; Conviction. As no final process for enforcing payment of the )>eaalty, is mentioned in tbe Act, no such process can be issued by the Justices. TREASON. By the Statute of tlie 32 G. 2, c. 13. I V. 15, it is enacted " That if any person or persons shall compass or imagine the death of the King, or shall levy war against him, or adhere to his enemies, or give them aid or comfort, or shall forge or counterfeit the King's money, being gold or silver coin of England, or of Great Britain, or shall counterfeit tbe King's Great Seal, or Privy Seal, or the Seal of this Province ; and shall thereof be duly convicted, the person or persons so oifending are hereby declared, and shall be adjudged to be traitors and shall suffer as in cases of high treason ; and that all treasons declared by the Acts of Parliament of England, or of Great Britain, shall be deemed and adjudged to be trea- son within this His Majesty's Province, and none other ; and that such Acts of Parliament as direct the proceedings and evi- dence against trials of such traitors, shall have their full force and effect, and be observed as the rule in all trials for treason in this Province. Perpetual. Notwithstanding that treason and niis-prision of treason How a Justice are not within the letter of the commission of the peace, yet shall proceed inasmuch as they are against the peace of the King, and of oi»achargn tlw realm, any Justice of tlie Peace may, either upon bis own «• Treason, knowledge, or the complaint of others, cause any person to be 654 Bare Words do not ainouiit to Treason. No Accessa- ries in Trea- son, but all are Principals. Misprision of Treason. TREASON. appreliendetl for any such offence. And such Justice may take the examination of the person so apprehended, and the infor- mation of all those who can give any material evidence against him, and !)iit the same in writing, and also bind over such who are able to give any such evidence, to the Court of gaol delivery ; and certify his proceedings to such Court. He must also commit the prisoner to gaol, for Justices of the Peace cannot by any means let to bail, in a case of treason. It seems to be clearly agreed at this day, that bare words spoken, do not amount to treason, but are only a high mis- demeanor. In high treason there are no accessaries, but all are principals ; and therefore, whatsoever act or consent will make a man accessary to a felony before the act done, the same will make him a principal in case of high treason. 5 Burn's. 481. 3. Misprision of treason, in legal understanding, signifies, when one knowing of any treason, though no party or con- senter to it, yet conceals it, and doth not reveal it in con- venient time, /rf. 487. Note. The proceedings by and before Justices on an information of any treason will be similar to those in cases of capital felonies, and for nhich, see respectively. Titles, — Infor- mation ; Warrant ; Examination ; Commitment. ' (u f »:'/ TREASURERS (County.) By the 5. W. 4, c. 13. 4 V. 385, The Grand Jury in each of the several coimties and districts, except the county of Halifax, shall annually at the Court of General Sessions held for said county or district, present to the said Court of Ses- sions, the names of three fit and proper persons, being free- holders in such county or district, one of whom the said Court shall appoint to be a Treasurer for the said county or district for the year ensuing, who shall forthwith enter into a bond lo the King, with sureties to the satisfaction of the said Court, for the faithful performance of the duties of the said office, and who shall thereupon be sworn to the due execution of the said duties, and be invested with ail powers and trusts herein after mentioned. Temporary. iiJ.tJfc/lJ i^ifl '*.• 'l.'i}' '1*!, ■■Tr;,y-lK /V; -»■:,> ;,■, ■^- ? !*?■'; a 1i"'*. ! -ii TREASURY NOTES,— see Titles,— FORGERY and :■ ., .. ..- :..,.,., LARCENY. iti iSl-M-- 'i3*!lW'vfO' f \i: (555) ■■ trespasses! r-in f ■ ■ Mr. ^ ^_ ^^ _ 1 1 ''Mint 1 ''\*< • i In treating of the matters which fall within this title, an arrangement of them under the following divisions will, it is thought, be found convenient. I. Regulations concf-uning Funcks, and of the > RECOVERY OF DaMAGES FOR TRESPASSES BY Cattle. II. Impounding Cattle trespassing, and herein OF Rescue, Pound Breach, and Replevin. III. Regulations concerning Cattle going at large. IV. Destroying Fences, Walls, &c. ■ • ' . V. Trespasses on Commons. '^m r > r' i VI. Persons Trespassing on enclosed Ground. VII. Trespasses, by cutting down, injuring, or carrying away Trees. VIII. Proceedings after Judgment against a Tres- :.:-■;■' r PASSER. I'^ii' t ■.■[*!■>>-' -Mr. ■!.>.-•'•.•?■•>■.' !l '. )i -1 i! I. Regulations concerning Fences, and of the RECOVERY OF DAMAGES FOR TRESPASSES BY CaTTLE. By the Statute of the 3 G. 4, c. 32, 3 V. 136, " All jyilfb^T^' fences belonging to any enclosed lands shall be built or made \'J^ *^ *^^' with stones, pickets, boards, logs, poles, brush, or posts and rails, unless the lands are bounded by ponds, unfordable rivers, or the sea, or surrounded by good and sufficient hedges ; and such fences and hedges shall be at least four feel and a Jialf high, except on the peninsula of Halifax, where four feet in height shall be adjudged a legal fence under this Act ; and if any damage be done by breaking such enclosures and destroy- ing any of the product thereof, by horses, sheep, hogs, and break enclo- neat cattle, if such enclosures shall at the time of such damage sures aiul do be enclosed by a good and sufficient fence agreeable to this «li*"'"Se- law, in the judgment of the fence viewer who is hereby ap- pointed to view the same, the owner of such cattle so trespas- " ' ■ ' sing shall pay to the party injured the value of all such damages, 1 , .„ lo be ascertained on an appraisement thereof by three credible ■'•-'i ' persons living in the neighbourhood, being first sworn before ' ' " one of His Majesty's Justices of the Peace in the county where such lands lie, truly to value the same ; and in case the owner of the said cattle or hogs shall refuse to pay the value of such appraisement, upon notice thereof given lo him, the injured Proceedings, where Cattle ■4; :i!i I 550 TRESPASSES. Uuilding ami iiiuinlaiiiiiig Feiures l)»i- Iweeii 111 om- iiig Lunds. not be kept on wood, l)iirren, or burnt land. What rivers, &c. shall be considered a sutticient leuce. Application to Sessions from the Judgment »)f a Fence Viewer. party may have and maintain his action therefor before any one or more of the said Justices, av before the Inferior Court ol Common Pleas, according to the value of such damage." Sec. 2. The proprietor of any iield adjoining to another, enclosed and improved, shall build up and maintain h'rs part oi proportion of fencing, with a good and suHicient fence of four feet and an half high, on that part of such land as is adjoining to his ov/n ; and in case he neglects so to do within the space of ten days after notice given lum, it sliall be lawful, and any oik; of the fence viewers upon application being made to him, in siioh case, is hereby empowered forthwith to cause such defi- cient fence to be raised or made, or otherwise to repair any fence akeady made, if in his judgment tlie same ts insufHcient ; and the person or persons that of right ought to build and main- tain the same, shall pay double th« costs ^nd charges expended for the closing thereof; and incase of refusal sucb fence viewer may recover the same by action >on the case,, according lo the value, in manner aforesaid Provided always, that no fence viewer shall be allowed more than three shillings per day in liis accoiMit, for his own trouble nnd time expended (therein. And if any fence viewer, when notified, shall neglect bis duty herein, he shall forfeit fdrty shillings for every offence. [By the 9 G. 4, c. 12. 4 V. 29, the fence viewer OMy build or repair the fence, after three days' notice, instead of the ten days men- tioned in this clause.] Sec. 3. Provided that nothing herein contained shall be construed to extend to compel any owner or proprietor of any wood, barren, or burnt land, and not under improvement, to make any part of the fence against or on the said wood, barren, or burnt land, any law or usage to the contrary notwithstanding. Sec. 15. Such rivers, creeks, bays>, harbours, and in- lets of the sea only sliall be deemed sufficient and lawful fences, as in the judgment of the fence viewers of the township or place where such lands lie, shall be sufficiently deep and inaccessible to prevent the passing of cattle. Temporary. In amendment of this last clause, and also of the preceding regulations relating lo damage done by cattle breaking into en- closures, the Statute of the G W. 4, c. 40. 4 V. 46, enacts, " That if any person or persons shall feel aggrieved with the judgment given by the fence viewers, under the fifteenth clause of the said Act l»erebv amended, or shall desire to obtain the judgment and decision of the Court of General Sessions instead of the fence viewers, then and in either of such cases, it shall be lawful for such person or jyeisons to make application to the General Sessions of the peace in and for the county or district wherein sucii fence viewers may have authority, and lliereiipoii or swme. WliPii OwiiKi of Cattle sliiiU be liable for damuge done by them, al- though part of a Fence la defective. TRESPASSES. 557 it shall be lawful for the said Geneml Sessions to enqtiiro into the subject matter of sucli ap|>lication, and npon hearing tht* parties interested, and examination of witnesses, to make such order and judgment in resjiect to such application, as may bo deemed by the said Court to be just and reasonable ; and the order and judgment of the said Court s)»all be binding and con- clusive upon all fence viewers, and other parties interested or concerned. Sec. 2. In every case where any damage shall be done to the enclosed lands of any person or persons, by any horse, cattle, sheep, or swine breaking through the fences enclosing such lands, the owner or owners of the horse, cattle, sheep, or swine, shall be liable for the damage so done, under the said Act Itereby amended, in case that part of the fence vvliere- on the said Iiorse, cattle, sheep, or swine have made a breach, shall be a lawful fence, notwithstanding some other part of the fences surrounding said enclosed lands may not be a lawful fence. * ' Sec. 3. The owner or owners of any horse, cattle, sheep, or swine breaking through any division fence which the said owner or owners shall be bound to repair and keep up, shall be liable for the damage done by such horse, cattle, sheep, or swine upon the land of any other person or persons, enclosed or partly enclosed by such division fence, notwith- standing the same may not be a lawful fence. »SnnuaL By Sec. 12 of the before mentioned Act of the 3 G. 4, c. 32, In all cases where a trespass, or supposed trespass sbU have been committed by horses, neat cattle, sheep, goats or swine, and that the value of the damage alleged to be suffer- ed shall not exceed the sum of three pounds, the same shall be beard and tried before one or more Justices of the Peace, who shall summon tlie parties before him or them, and proceed thereon, as in cases of debt, to determine the amount of the damages and costs, and give judgment accordingly. By the 4 & 6 G. 4, c. 8. 3 V. 182, it is enacted, That it shall be lawful for any person or persons entitled thereto, to commence prosecutions under the aforesaid Act of the 3. 6.4, c. 32, at any time within one year from the time of the committing of the offence. [The duration of this Act is not limited.] By the provision in the first clause of the first-mentioned Directions. Act, relative to the fence vewer recovering the sum expended by him for making up any dehnquenl's proportion of a division fence, is to be understood, that if such expense does not ex- ceed three pounds, it may be recovered by the fence viewer, before one Justice, in the same manner and by the same forms Own** of cat- tle, liable I'im- daniage on Lands of ano- ther, through his own neg- lect of repair- ing division fence. Recovering Damages not exceeding £'i before a Jus- tice. Limitation of Prosecutions m 558 TRESPASSES. Impniinding Ciittlo and prucoediiigH lliercoii. as privaie debts are now recovered bel'ore u Justice. If such expense exceeds tliatauiount, it must be sued forintbe Supremo or Inferior Court. As no mode of recovering tbc penalty for neglect of duty by a fence viewer is mentioned in any of the beforementioned Acts, or in any other, no prosecution for the same can ut pre- sent legally take place before n Justice or Justices. With regard to the actions mentioned in one of the before recited clauses, to recover damages not exceeding three pounds, for trespasses done by cattle, the proceedings and Forms '.vill be the same as in suits for the recovery of private debts before a Justice, and for which, see Title, — Summary Trials. II. Impounding Cattle Trespassing ; and herein, OF Rescue, Pound Breach, AND Replevin. B Sac. 4, of the aforesaid Act of the 3. G. 4, c. 32, " If any damage shall be done by breaking any enclosure, and destroying any of the product thereof, by any horses, sheep, goats, swine, or neat cattle, it shall be lawful for the person or persons whose fence or fences shall have been so broken, and whose enclosures shall have received such damage, to cause the said horses, sheep, goats, swine, or neat cattle, to be im- pounded, until the owner or owners of such cattle so trespassing shall claim the same ; and the keeper shall cause the same to be cried or advertised in three of the most public places in the township or settlement wherein the trespass shall be committed, as soon as may be, in order that the person or persons injured may proceed against the said owner or owners of such horses, sheep, goats, swine, or neat cattle refusing to pay the damages done by their said horses, sheep, goats, swine, or neat cattle, as is directed by the first clause of this Act ; and the owner or owners of such horses, sheep, goats, swine, or neat cattle, shall pay to the keepers of the pound over and above the damages which shall be adjudged to have been done by the said horses, sheep, goats, swine, or neat cattle, for the support of the same, for each and every day the same shall have been impounded, one shilling for each and every horse and head of neat cattle, and six-pence for every sheep, goat, or swine ; and if the owners thereof shall refuse to pay the same to the keeper of the pound, together with the charge of crying or advertising the same, within eight days after the same shall be impounded, the said horse or horses, neat cattle, sheep, goats, or swine shall be publicly sold, and the money arising from such sale, after deducting therefrom the pay of the keeper for supporting them, and the damage done by the horse or horses, neat cattle, TRESPASSES. 559 sheep, goals or swine, the remninder shall be paid to the owner ; aud if no owner shall appear within thirty days, then to the Overseers of the poor for the township or settlement wherein the trespass has been committed." Sec. 5. If any person or persons shall rescue any swine, horses, sheep, goats, or neat cattle, from any hogreave or other person driving the same to the pound, the oH'ender shnll forfeit and pay for such rescue, the sum of twenty shillings, over and above all damages tliat may be sustained by the trespass of such swine, horses, sheep, goats, or neat cattle, which penalty and damages shall be recovered by the oath of one credible witness before any one Justice, and to be levied by warrant of distress and sale of the offender's goods and chattels. And if any person or persons shall make any breach of the said pound, or shall by any other indirect means deliver any swine, horses, sheep, goats or neat cattle, out of the same, the person or persons so offending, being duly convicted thereof before any two Justices of the Peace, shall forfeit and pay five pounds, to be levied as aforesaid ; and the said penahies for every res- cue and pound breach, shall be paid to the Overseers of the poor for the township or settlement in which the offence shall have been committed, for the use of the poor of such town- ship or settlement, after deducting the charges of repairing any such breach of the pound. Sec. 13. In all such cases where it may be necessary, the Justices of the Peace shall grant replevins, and take secu- rity for prosecuting the same with effect, within a term not exceeding seven days, which replevins shall be in the form following, — " You are hereby commanded to replevy to A. B. his which C. D. unjustly, as is alleged, detains, under pretence of having committed a trespass, not exceeding the sum of three pounds ; and also to summon the said C. D. to be and appear before me, the — day of at o'clock in the there to answer such things as shall be objected against him by the said A. B. Witness my hand and seal, this — day of A. D. " and shall hear the merits of the case between the parties, and shall give judgment and grant Execution as in cases of debt ; and shall receive no more or greater fees than Justices of the Peace have been heretofore allowed in such cases. By the 3 W. 4, c. 3, 4. V. 193, It is enacted, that upon any conviction under the fifth Section of the aforesaid Act of the 3. G. 4. c. 32, before any Justice or Justices of the Peace, of any person or persons for rescuing any swine, horses, sheep, goats, or neat cattle, from any hogreave or other person driv- ing the same to pound, or for any breach of pound, or delivery of any animal or animals aforesaid out of the same, upon and 71 Rescuing nii- tle in cuDtody for treHpiisM. Brenkiiij; I'uunil. Replevying, und proceed- ingH thereon. Form of Writ of Replevin. Coininitment for Rescue, &c. on failure of Distress. •I '; .560 TRESPASSES. under the warrant or execution issuing upon such conviction, the offender or offenders, for want of goods or chattels of him or them to be found, to satisfy the amount specified in such warrant or execution, with the fees thereon, shall be commit- ' ted to gaol, there to remain until he or they shall pay such amount and fees, or otherwise be discharged by the order of such Justice or Justices before whom the conviction shall have taken place, and such warrant or execution shall specify 10 that effect. Sec. 3. It shall be lawful for such Justice or Justices, to discharge such offender or offenders from gaol, upon its being made to appear to him or them that such offender or offenders is or are wholly unable to pay such amount and foes, and hntii not been guilty of any fraud to escape payment thereof. *9n- nual. Direction!. The proceedings and Forms for the recovery of the before- mentioned penalties, for rescue and pound breach, will be the same until after conviction, as in other ordinary cases of pro- secutions before Justices, to recover penalties, and will be found under the respective Titles, — Information ; Summons, Conviction. The Form of a warrant to levy the penalty, on a convic- tion for either of the said offences, will be found at the end of the Title. As it is directed that upon a replevin the merits shall be heard and determined, and execution be granted, as in cases of debt, suitable directions as to the hearing of any such case of replevin, and the form of an execution, will be found under the Title, — Summary Trials. III. Regulations concerning Cattle going at large. Making regu- lations to pre- vent Trespas- ses. Fine for trans- gressing regu- lations. By Sec. 6. of the aforesaid Act of the 3. G. 4, c. 32,— The General Sessions, in the several counties and districts, are empowered and directed to make regulations for preventing trespasses by horses, swine, sheep, goats, and neat cattle, go- ing astray or at large, in manner as shall be most agreeable to the county, or districts, or townships therein. Sec. 7. If any person shall transgress any regulations made by the Justices in the Sessions as aforesaid, for the pre- venting of trespasses as aforesaid, he shall be subject to a fine not exceeding forty shillings ; to be recovered on complaint or information before any two Justices of the Peace for the coun- ty wherein the offenc6 shall have been committed, or before the Sessions in the said county. Sec. S. It shall be lawful for any person whatsoever, TRESPASSES. 5G\ to take and seize ail swine and gouts going at large within any Sti/mg nnd township or settlement, and upon proof thereof on the oath of """'"g f^jvinn one credible witness, before any one Justice of the Peace for *°'"^ " "*" tiio county or district in which such township or settlement shall be situated, the same shall be by him declared forfeited ; one third of the value of which to be paid to the prosecutor, and the remainder to and for the use of the township or settlement wherein the same shall have been so seized and taken, and shall be accordingly disposed of by him, for their use. Provided, ihe General Sessions shall not have made regulations to the con- trary under the provisions of this Act. The proceedings and the Forms, for the recovery of the r'"^«''"»n« penalty of forty shillings, mentioned in the second of the fore- going clauses, will be the same, until conviction, as in other prosecutions before Justices to recover penalties, and will be iound under the respective Titles, — Information ; Summons ; Conviction. ./.,.. As no final process for levying this penalty is any where mentioned, no such process of any kind can be issued by the Justices. IV. Destroying Fences, Walls, &c. By Sec. 9, of the last mentioned Act, " If any person or persons (not being the proprietor or proprietors, or having legal authority,) shall throw down or remove any fence or stone wall, or any part thereof, enclosing any parcel of ground with- in this Province, or shall carry away any rails, posts, gates, bars, boards, or any other materials whereof fences are made, or shall level any ditches, or cut down any hedges, such per- AT LARGE. ■ son or pcrsons shall, upon conviction thereof before the Gen- eral Sessions of the Peace, or before any Court of Record within this Province, (over and above the damages given to the party injured,) forfeit and pay a sum not exceeding ten pounds ; one half to His Majesty for the support of the Government of the Province, and the other half to the prosecutor ; and if such person or persons shall be unable to pay the same, he or they shall be committed to the house of correction or gaol, there to he kept to hard labour for two months, or to be whipped at the discretion of the Court. Sec. 22. If any person or persons shall cut, pull down, damage, or injure, any railing, stonewall, or fence of any kind, plnced on the side or sides of any public square, bridge or i;auseway, throughout the Province, such person or persons, lor each and every oflence, shall forfeit and pay a penalty not Puniiilimont tor injuring or removing Fences, &c. Injuring rail- ing or wall on sides of public squar*'. bridgo. &r. ^1 I H m 'r n m 662 TRESPASSES. Icsd limn five shillinf;!!, nor greater tlinn I'orty bhillinf^s, the siinic to be recovered as directed in and by the twentieth Section ol this Act, and shall be expended by the proper oHicor or olli- cers, in repairing; the damage and injury so done." Note. As to proceedings lor the recovery ol' penalties under this clause, see the observations and directions concern- ing the said twentieth Section, at the close of the seventh divi> sion. ' \ V. Trespasses on Commons. Writ of Exe- cution. By Sec. 14, of the sani? Statute last mentioned, " Any person or persons who shall cut or curry away any soil or sods, irom off any common in the Province, whereby the pasturage shall be injured, or the ground defaced, he or they shall on conviction forfeit and pay for every such ofience a sum not ex- ceeding twenty shillings, to be recovered on due proof before any one Justice of the Peace, and be for the use of the prosecu- tor ; and in case the party convicted shall be unable to pay tlic fine imposed, it shall be lawful for such Justice to commit liini to the common gaol of the county, there to remain for ciglit days, or until he pay such fine. " Note. On a complaint of this oHence, a formal informa- tion in writing need not be taken, but a sinnmons may be im- mediately issued, according to the general Form under the Ti- tle — Summons. The course of proceeding after conviction, and the pun- ishment here prescribed, ure altered by the Statute of the 4 & 5 G. 4, c. 8. 3 V. 182, by which it is provided, that "In ail cases of the recovery before one Justice, of any sum ot money, under the Act of 3 G. 4, c. 32, executions shall issue as in other cases of debt." See the last Division under this Title. The same Form of Execution therefore must be issued on a conviction for this offence, and the same subsequent pro- ceedings take place, as are set forth, respecting debts, under the Title, — Summary Trials. ^ asr. s'.-i VI. Persons Trespassing on enclosed Ground. c. 3J, By Sec. 19 of the aforesaid Act of the 3 G. 4, " If any person or persons shall be found trespassing in any meadow, garden, orchard, or fenced field, under culiivation and improvement, in any township or place in this Province, with a gun or otherwise, unless by leave of the owner or occii- J ROUND. TRRSP..38ES. ')(».) ))ior, ho or they, for every such otlenct;, shall I'orrtMt iiikI piiy ii siitn not nxccAMiing ten shillings, nor less than iivt* Hliillin^s, will) costs ; to hi! rernvcrcil on due proof heloro any .Instici; uf thu Peace of ilie cuuiily or (iistrict in which such nieudow, orchard, garden, or fenced fn li. shall lie ; one half for ilic iis(! of the owner or uccufici of tiio Itind and the other half for the poor of the lowiisi'ji|) or (ilore Mhero ilie trespasses shall he com- mitted. As prosecutions under this cause may he ronsidcrcd chief- nimiious. ly in the nature of Civil Snitii hy the owners of (he j.ind, to recover compensation for the dnmugr done^ especially, as (he suhsccpient Statute of the 4 & .''). Ci. i. v., S, provides, iliai upon a recovery, the same execution shall issue as in eases of ^^ other debts," it does not seem recpiisite on a complaint of this olfence, that the Justice shoidd take any lormal informa- tion in writing, hut he may inmiediately issue u sinnmons a!i;air.Ht the party complained of, a Form of which will be found at the cad of the Title. The for nt of the writ of execution, and the other proceedings after judgment, will be the same as in cases of debt. See the observations at the close of the preceding; division, which observations equally apply on a conviction for the present offence. ,. ...... ,. .. VII. Trespasses, by cutting down, injuring, or CARRYING AWAY Trees. > . • i By Sec. 20, of the last mentioned Act, "If any person or ('uiiini; down persons shall cut down or injure any tree or trees growina; on •*'^ iii.i"f'"K •> To A. B., one of the constables of the town- \ ship of in the said county. [Seal.] You are hereby commanded to summon A. O. of in the said county, yeoman, to appear before me, A. M., one of his Majesty's Justices of the Peace in and for the said county, on next, the — day of , at — o'clock I in the forenoon of the same day, at my dwelling house at in the said county, to answer to the suit of A. C. on the com- plaint of the said A. C. against the said A. O. for cutting down and carrying away the trees of the said A. C. off and from a certain tract or piece of land of the said A. C. situate at in the said county, and which said trees were so cut down and carried away by the said A. 0. as is alleged, between the — day of last past, and the — day of in this present year, contrary to the Statute in such case made and provided. Herein fail not, and make due return hereof to me, on or be- fore the said day first mentioned. Given under my hand and seal, at aforesaid, the — day of , in the year . A. M., J. P. Form of a Warrant to levy the Penalty^ on a Conviction for Rescuing Cattle distrained for n Trespass ; on the 3 G . 4, c. 32, § 5, and 3 JV. 4, c.3. . , . - County of ^ To A. B., one of the constables of the township ^ of in the said county, t - - .-, [Seal.] Whereas, on the — day of , in the year of our liOrd one thousand eight hundred and , A. 0. of , ill 5(J6 TRESPASSES. in the said county, yeoman, was duly convicted by and before me, A. M., Esquire, one of His Majesty's Justices of tho Peace iu and for the said county, for that he the said A. on the — day of , at , in the said county, did for- cibly and unlawfully, and contrary to the Statute in such case provided, rescue and take away, from and out of the custody and possession of A. C. of , in the said county, yeoman, certain cattle, to wit, two cows and one steer, which he the said A. C. had distrained for trespassing and doing damage on the land of him the said A. C. at- , aforesaid, and which cattle he the said A. C. was then and there driving and taking to the public jjound at , in the said county, to be there impounded for such trespass and damage, according to law ; whereby the said A. O. hath forfeited, and hath by me, on the said conviction, been adjudged to pay the sum of part thereof, to wit, tweuty shillings, as and for the penalty im- posed by the said Statute for the said rescue of the said cattle, and the remainder, being the sum of for damages sustain- ed by the said A. C. by reason of the said trespass by the said cattle, pursuant to tho Statute in such case provided ; And whereas the said A. O. hath had due notice of the said conviction, but hath hitherto altogether neglected and refused to pay, and hath not yet paid the said several sums, or any part thereof respectively ; These, are therefore, in His Ma- jesty's name, to command you to distrain the goods and chat- tels of the said A. O., and on the goods and chattels so dis- trained, to levy the said several sums ; and if within the space of five days next after such distress by you made, the said se- veral sums, making together the amount of , together with the reasonable charges of taking and keeping the said dis- tress, shall not be }»aid, that then you do sell the said goods and chattels, and out of the money arising by such sale, that you do pay the said penalty of twenty shillings, to the Over- seers of the poor of the said township of , in which the said offence was committed, for the use of the poor of the said township ; and also the said sum of to the said A. C. being for the damages as aforesaid, returning to him the said A. O. the overplus on demand, the reasonable charges of tak- ing, keeping, and selling the said distress being first deducted; and if, upon diligent search by you made, you cannot find any goods or chattels of the said A. O. whereon to levy, for satisfying the said several sums, together with the fees on this warrant, you are hereby further commanded to take the body of the said A. O. and to commit him to the common gaol ot the said county, there to remain until he shall pay the said several sums, making together the said amount of and TRESPASSES. also the fees aforesaid, or until he shall otherwise be discharged from the said gaol by me the said Justice ; and for so doing this shall be your sufHcient warrant ; and certify to me what you shall have done in the premises. Given under my hand and seal, at aforesaid, the — day of in the year above written. * A. M., J. P. If the conviction is for breaking a pound, or delivering cattle out of the same by any indirect means, the foregoing warrant may readily be altered and filled up according to the facts of the case. 567 M. I VAGRANTS. I. Who shall be deemed Vagrants, Idle and Disorderly Persons, &c. II. Of their Apprehension, Examination, and Punishment, i III. Neglect of Duty concerning Vagrants, Rescuing them, or Assisting their Es- cape, &c. IV. Punishment for Lodging Vagrants. ; V. Charges of their Conveyance and Mainte- nance. VI. Appeal, VII. Treble Costs. I. vl^HO SHALL BE DEEMED VaGRANTS IdLE AND DIS- ORDERLY Persors, &.C. By the 33 G. 2, c. 1, § 2. IV. 42, which relates only to the town of Halifax, — It shall be lawful for the Justices of the Peace in their General Sessions, or for any one Justice out of Court, to send and commit to the said house of correction, to be kept, governed and punished, according to the rules and orders thereof, all disorderly and idle persons, and such who shall be found begging, or practising any unlawful games, or pretending to fortune telling, common drunkards, persons of lewd behaviour, vagabonds, runaways, stubborn servants and children, and persons who notoriously mispend their time, to the neglect and prejudice of their own or their family's ^jpport, upon due conviction of any of the said oftences or disorders. Perpetual. 73 '!i=s 5f58 VAGRANTS. This clniisc is oxtended throughout the Province, by the 32 G. 3, c. 5. 1 V. 293, by which it is enacted, " That it shall be lawful for the said Justices in their Sessions, or for any one Justice out of Court, in any of the counties or dis- tricts in tiie Province, to commit to such work-houses, or houses of correction, all or any person or persons of the de- scription mentioned in the second clause of the Act hereby altered and amended, in the manner specified in the said clause, which is hereby extended to the wliole Province." Perpe- tual. Note. — The work houses, or houses of correction men- tioned in this clause, are buildings of that description, which the Justices in Sessions, and the Grand Jury, are authorised to provide in the several counties and districts. See Title, — Bridewell. Soltliers, Sea- men of the Navy, ami certitin otiiers trnvclliiig without ii Pass. Who shall be deemed idle and disorderly persons, and how to be pun- ished. By the 14 & 15 G. 3, c. 5. 1 V. 186, All soldiers be- longing to His Majesty's troops, in this Province, or seamen or mariners belonging to any of His Majesty's ships or ves- sels, who shall be travelling or wandering within the said Pro- vince, and shall not have a Pass from the commanding officer of the regiment, company, or ship or vessel to which they belong ; and all idle and wandering persons, who shall not have a pass or testimonial from some Justice of the Peace, set- ting forth the place from whence such soldier, seaman, or mari- ner, or such other idle and wandering person shall have come, and the place to which they are to pass ; every such soldier, mariner or seaman, or other person, shall be deemed idle and disorderly persons, and shall be proceeded against as herein after directed. Sec. 2. All persons who run away, or threaten to run away and leave their wives or children upon any township, and all persons who unlawfully return to such township or place from whence they have been legally removed by order of two Justices of the Peace, without bringing a certificate from the township whereinito they belong ; and all persons who not having wherewith to maintain themselves, live idle, and refuse to work for the nsual wages ; and all persons going about to beg alms, shall be deemed idle and disorderly persons ; and it shall be lawful for any Justice of the Peace, to commit such offenders, (being convicted by his own view, or by confession, or by the oath of one credible witness,) to j)rison, or to the house of correction, there to be kept to hard labour for any time not exceeding one month. Note. A lunar month of twenty eight days is here meant. which a month always means unless otherwise exjjressed. The 1 soldiers be- VAGRANTS. 569 uanant of coininitineni must specify a definiliv u lime, which must never exceed twenty-eight days. -See 5 Burn's^ 492. 11. Of their Apprehension, Examination, and Punishment. By Sec. 3 of the same last mentioned Statute, " It shall Apprehending be lawful for any person to apprehend ofienders against this Act, ^>'l'^n*'t'''«- and convey to some Justice of the Peace, the persons so ap- prehended, to be proceeded against as is hereinafter directed ; and in case any constable or other such olHcer refuse or neg- lect to use his best endeavours to apprehend or convey to some Justice any such offender, it shall be deemed a neglect of duty, and he shall be punished as is hereinafter directed ; and in case any other person, charged by any Justice so to do, refuse or neglect to use his best endeavours to apprehend and deliver to the constable or such other oOicer, or to carry such ofTeuder before some Justice, where no officer can be found, being con- victed upon view, or by the oath of one witness, before a Jus- tice, he shall forfeit ten shillings, to the use of the poor of the township ; to be levied by distress and sale of goods by war- rant from any Justice. Sec. 4. Any one or more Justices of the Peace, on re- Searching for ceiving information that deserters, or any idle and disorderly «iL"-iert(>rs and persons are in any place within his or their jurisdiction, shall '""""'y issue his or their warrant to the constables to search for and apprehend such deserters, or idle and disorderly persons ; and in case any person apprehended upon any such search, be charged before such Justice or Justices with being a deser- ter fronj His Majesty's Navy or Army, or an idle and disor- derly person, or with suspicion of felony, (although no direct proof be then made thereof,) to examine such person, not only as to the place from whence he canie, and where he was last legally settled, but also as to his manner of livelihood ; the sub- stance of which examination shall be put in writing, and be sign- ed by the person so examined ; and the said Justice or Justices shall sign the same, and transmit it to the next General Sessions of the Peace for the county, or Special Sessions for the dis- trict where such Justice or Justices reside, to be filed and kept on record ; and if such person make it not appear to such Jus- tice or Justices, that he is not a deserter, and that he has a lawful way of getting his livelihood, by labour or otherwise, or procure not some responsible housekeeper to appear to his cha- lacler, and give security for his appearance before such Justice or Justices, at some other day, (in case the same be required,) 10 coimnit such person to some prison or bouse of correction, persons, ap- preliending, iind examin- ing them ]i li ; 1 ill || Hi k il [^ 670 VAGRANTS. Binding out strolling bog- gart and other disorderly persons. Examination as to place of settlement. Directions. for any time not exceeding fourteen days, and in the meaniinic to order the Overseet s of the poor of the township or place in which such person is apprehended, to insert an advertisement in the pubhc newspaper, describing such suspicious person, and any thing found upon him or in his custody, and which he is suspected not to have come honestly by, and mentioning the place to which such person is committed, and specifying wiien and where such person is lo be again brought before the said Justice or Justices to be examined ; and if no accusation be then laid against him, such person shall be discharged, or oth- erwise dealt with according to law." By the 2G G. 3, c. 6. 1 V. 256, All disorderly and beg- gaily persons, who shrjl be found strolling in any part of this Province, and who, on examination before three Justices of the Peace, shall not be able to shew any visible means whereby he or they obtain a sober and honest livelihood, it shall be law- ful for such Justices, to commit such person or persons to the next gaol or bridewell, and to provide a master or mistress for such person or persons, and to execute an indenture or inden- tures in the usual form, to bind such person or persons to any master or mistress who shall appear to hire him or them, for such term of time, and on such conditions as such Justices in their discretion shall think fit, not exceeding seven years ; and all persons receiving indentures as aforesaid, shall be entitled to the entire service and labour of the person or persons so in- dented or bound, and may sell or assign the unexpired term of such servant or servants, and the assignee or purchaser shall be as fully entitled lo the entire service and labour of such servant, as the person who assigned the same. Provided, such assign- ment shall be made in the presence of, and with the approbation of three Justices of the Peace> and security given, if required, not to carry such servant out of the Province. Perpetual. By the 32 G. 3, c. 5, § 5. 1 V. 294, The Justice of the PSace committing any offender to a work-house, or house of correction, shall examine him or her, as to his or her place of settlement, if any, and note the same in the warrant of com- mitment. Perpetual. The Fornjs for the apprehension, examination, and com- mitment of a vagrant or disorderly person, under any of the beforementioned Acts, will be found at the close of the Title. The fine of ten shillings, mentio*?pd in Sec. 3, first recited under this division, must be sutJ lor and recovered in the same manner as in other ordinary cases of prosecuting for penalties, the requisite directions and Forms in which cases will be found under the respective Titles, — Information; Summons; Conviction ; Distress. VAGRANTS. III. Neglect OF Duty CONCERNING Vagrants, Rescuing TiiEM, OR Assisting THEIR Escape. By Sec. 5, of the beforementioned Act of the 14 & 1 5 G. 3, c. 5, — " If any constable or other officer, or master of any liouse of correction, be neghgeiit of his duly in the execu- tion of this Act, or in case any person disturb the execution of this Act, or rescue any person apprehended, or passing by virtue thereof, or be assisting to his or her escape, and be con- victed thereof, upon the oath of one credible witness, before one Justice of the Peace, where such oftence is conitnitied, the person so offending, for every such offence shall forfeit any sum not exceeding five pounds, nor less than ten sliillings, to the use of the poor of the township ; to be levied by distress and sale of the offenders goods, by warrant from such Justice ; and if sufficient distress cannot be found, it shall be lawful for such Justice to commit the persons so off'ending to prison, or to the house of correction, there to be kept to hard labour for any lime not exceeding two months." With regard to prosecutions for ihe recovery of penalties under the foregoing clause, the general directions will apply, and the general Forms can readily be made lo serve, which are contained under the respective Titles, — Information ; mons ; Conviction ; Distress ; Commitment. .571 IV. Punishment for Lodging Vagrants. By Sec. 6, of the last mentioned Act, " If any person shall knowingly permit any deserter, or idle and wandering servant or vagabond, to lodge in his or her house, barn, or other outhouse, or buildings, and shall not apprehend and carry such deserter, or idle servant or vagabond, before some Justice, or give notice to some constable or other officer so lo do, such person, being thereof convicted, either on confession, or upon oath of one credible witness, before a Justice, where such of- fence is committed, shall forfeit any sum not exceeding forty shillings nor less than ten shillings ; one moiety to the informer, and the other moiety to the poor of the township ; to be levied by distress and sale of goods, by warrant from such Justice ; and if any charge be brought upon any township or place by means of any such oftence, the same shall be answered to the said township, by such offender, and be levied by distress aud sale of goods ; and if sufficient distress cannot be found, such offender shall be committed to prison, or lo the house of cor- rection, by ihe Justice, for any time not exceeding one month. Such directions as are suitable, and the requisite Forms, m 572 VAGRANTS. How olVond- cis shall be inaintuiiied in Work lloudo. which can be tilled up so us tu servo in proscciiticNis upon ilie foregoing clause, will be I'onnd under the respective Titles, — Informulion ; Summons; Conviction ; Distress ; Connnitment. V. Charges of their Conveyance and Maintenance. By Sec. 3, of the same Act last mentioned, *^ In case any person, not being a constable, or oHicer, apprehend any deserter, or idle wandering servant, or other person, and deliver him to a constable, or convey him to a Justice, or if any con- stable so apprehend and convey such deserter or idle wander- ing servant, it shall be lawful for such Justice to reward any such constable, by making un order under his hand and seal on the Treasurer of the county, to pay ten shillings lo the person so apprehending him, on producing such order and giving a receipt, and the Justices at the General Sessions shall allow the same to such Treasurer, in his accounts, upon his producing the vouchers aforesaid." By Sec. 5, of the Statute already mentioned, of the 32 G. 3, c. 5, *' When any person committed as above, shall be unable to labour, by reason of sickness or otherwise, or that his or her earnings shall be found insufficient for his or her sup- port, if such person shall have a legal settlement in any town- ship within the county where such work house may be situated, the expense of keeping and maintaining such oftender, or such part thereof as may exceed the amount of his or her earnings, shall be defrayed by the township to which such oflender may belong, and shall be paid by the Overseers of the poor of such township, on the certificate of the Clerk of the peace, by order of the Justices in their Sessions, that such expense has been fairly incurred ; and in case such ofiender shall have no legal settlement in any township within the county, the expense of maintaing him or her, or the part thereof exceeding the amount of his or her earnings, shall be defrayed by said county ; ami the Justice of the Peace committing any offender, shall exa- mine him or her as to his or her place of settlement, if any, and note the same in the warrant of conmiitment." VI. Appeal. By Sec. 8, of the last mentioned Act, " Any person or persons aggrieved by any Act of any Justice or Justices of tlie Peace, out of Sessions, in or concerning the execution of this Act, may appeal to the next General Sessions of the peace for the county or district, giving reasonable notice thereof, whoie order thereon shall be final." LlNTEMANCE. VAGRANTS. VII. TREnLF. Costs. Bv Sec. 11, of the same Act, " Persons sued Cor any thing done in the execution of this Act, may plead the general issue, and give the special matter in evidence, and if the action terminates in their favour they shall have treble costs. Order for Payment of Reward for apprehending a Vagrant ; pursuant to the 14 cy 15 G. 3, c. 5. \ V. Void. Countvof^ To A. T., Treasurer of the said countv. S [Seal.] Whereas it duly appears unto me, A. M., Esquire, one of His Majesty's Justices of the Peace in and for the said county, that A. O., an idle and wandering person, was found wandering and begging, [or as the case shall be,] in the town- ship of in the said county, which said A. 0. was this day apprehended and brought before me by A. I. of , yeoman, in order to be dealt withal according to law, I do hereby order you to pay unto the said A. I. as a reward for the apprehend- ing and bringing before me the before named idle and wander- ing person, the sum of ten shillings, upon the said A. I. produ- cing and delivering to you this order, and giving unto you his receipt for the same. Given under my hand and seal, at in the said county, the — day of in the year . A. M., J. P. Warrant to Search for and Apprehend Deserters^ and Idle and IHsorderly Persons; pursuant to the i4 Sf lb G. «5, C Oi County of ) To A. C, one of the constables of the town- ) ship of in the said county, and to the other [Seal.] constables of the said township. Whereas information hath been given to me A. M. Es- quire, one of His Majesty's Justices of the Peace in and for the said county, that certain deserters, or idle and disorderly persons, are lurking or wandering about within the said town- ship of in the said county ; you, and every of you, are hereby required, in His Majesty's name, commanding and tak- ing to your assistance, sufficient men within the said township (who are hereby required'to assist you accordingly,) to make a general search throughout the said township, for the finding and apprehending of deserters and idle and disorderly persons ; and such as you shall so find upon such search, you are to bring forthwith before me, or some other of His Majesty's Justices 573 'I. ;■ ' im It". I. {4 ; IMI M 'M i hi W4 m 574 VAGRANTS. of (ho Pence in ond lor tin; saiiJ coiiiuy, to bo dcnll with ac- cording to law. Herein luil you not- («iven under my hatui and seal, at in the said county, liie — day ol* in llm year of our I^ord . A. M., J. P. hhamination of a Fagrant. County of ) The examination of A. 0. an idle and disor- ) derly person, taken before me A. M., Esquire, one of His Majesty's Justices of the Peace in and lor the said county, the — day of in the year of our Lord one thou- sand eie;lit iiundred and . The said A. O. on his said examination sailh, that he wns born at in (and so proceed to trace out the history of iiis life, so far as to ascertain the place in which he was last legally settled, and also as to his manner of livelihood.] Taken and signed, the day and year first ^ A. 0. above written, before mo, > his >*« mark. A. M., J. P. ) The Form of the conviction of any person as a vagrant, or an idle and disorderly person, can be framed from the gene- ral Form given under the Title, — Conviction. Commitment of an Idle and Disorderly Person to a Prison, or House of Correction ; under the 14 «I^ 15 G. 3, c. 5. County of ) To A. C. one of the constables of the township \ of in the said county, and to the Keeper of Seal. 1 the House of Correction at in the said county. Whereas A. 0. was this day duly convicted before me A. M., Esquire, one of His Majesty's Justices of the Peace in and for the said county, of being an idle and disorderly per- son, for that l)e on the — day of in the year of our Lord at in the township of in the said county, did go about from door to door, and did place himself in streets, highways, and passages, to beg and gather alms in the said township, in which the said A. 0. then dwelt, [or as the cir- cumstances of the case may be,] contrary to the form of the Statute in such case made and provided ; and the said A. 0. not having made it to appear to me that he has a lawful way of j getting his livelihood, by labour or otherwise, he the said A. 0. was by me adjudged to be committed for the said offence to the house of correction at in the said county, there to be Icall with ac- ider my liaiiil jf in lli« ., J. P. lie nnd disor- M., Esquire, id for the said ,ord one thou- ih, ihat he wns )ul the history which he wns of livelihood.) A. 0. is X mark. Ill as a vagranl, from the genc- VAORANTS. kept to iiard iaimur for days, joi* one mondi, o« tin.' i asc may he, | according lo the form of the suid Stntutc. Tliuvu are therefore lo command you (he said constuhle, lo convey tlie said A. 0. to tin; said house of correction, und him lo du- liver to the keo|)er thereof, toguiher with this warrant. And I do hereby command you the said kee|)er, to receive the said A. 0. into your custody, in the said house of correction, and biin there safely keep to hard labour, for the space of . And for so doing this shall be your sufTicient warrant. Givaii under my hand and seal, at in the said county, the — day of JQ the year of our Lord one thousand eight hun- dred and . A. M., J. P. Note. — If ilicre is no house of correction, the party may, by the terms of the Act, be committed to prison, that is, to the common joil. By the 32 G. .'3, c. f). 1 V. 293, The Justices in General Sessions, with the concurrenco of the Grand Jury, may appropriate a part of the county or district jail as n house of correction or work-house, for which ot largOi see Title, — Bridewell. The period of commitment, according to the words of the Act, cannot in any case exceed one month. TIhs means a Junar montii of twenty eight days. « > ...^ .•, 575 to a Prison, or Cr. «Jj C. O. of the township the Keeper ot - in the said cted before me ss of the Peace disorderly per- ear of our Lord laid county, did mself in streets, ilms in the said , [or as the cir* the form of the the said A. 0. a lawful way of I the said A. 0. said offence to auity, there to be WAGGONS, sec CARRIAGES. ' WARRANT. I. Search Warrant. U. Warjbiant TO Apprehend. 1. Search Warrant. ' . ., • A GENERAL Warrant to seoich in all suspected places, is not ORneral good, but only to search in such particular places where the faxiy assigns before the Justice his suspicion, and the proba- ble cause thereof; for these warrants are judicial acts, and roust be granted upon examination of the fact. Searches made hy pretence of such general warrants, give no more power to tie officer lor party than what they may do by law without them. Likievvise iif on a bare surume, a Justice cannot make a 73 - .-. ..-.-^-.. H«aroli War- runt not law- ful. 57(5 WARRANT Mffircliiiiffiiim- |)ucted iiluccH. Time of Heuri'liiiig, 'I'u wiioin Wnrraiit hIiuII be directed. F.ntering houHe to aearcli, the doors being open. Breaking open doorH, udiiiit- tiiiice being re- fused. How goods found on search shall be disposed of Proceedings ns to party in whose posses- sidu goods arc found. warrnnt to break any man':) house to senrcli lor a felon, or ror stoleii ^oods. ' • < But in case of a complainf, and oaili made of goods stolon, and that the party suspects that goods are in such house, am/ sheiea the cause of his su/ipicion^ the Justice of the Peace may grant a warrant to search in those suspected places mentioned in this warrant, and to attach the goods and the party in whoHo custody they arc found, and bring them before him or some other Justice of the Peace, to give an account how he came by them, and farther to abide such order as to law doth appertain. It is fit that the warrant express that search be made in the day titne ; and though thoy are not unlawful without such a restriction, yet they are very inconvenient without it. But in case, not of probable suspicion only, but of positive proof thereof, it is right to execute the warrant in the night time, le^t the offenders and goods also be gone before the morning. Furthermore, such warrant ought to be directed to con- stables,. or other public officer, and not to any private person ; though it it is fit the party complainin:g should be present and assistant, because he knows his goods. 5 Burn's^ 108, 9. With regard to the execution of the warrant, whether the stolen goods are in a suspected house or not, the officer and his assistants, in the day time may enter, the doors being open, to make search, and it is justifiable by the warrant. If the door be shut, and upon demand it be refused to be opened by them within, if the stolen goods be in the house, the officer may break open the door If the goods be not in the house, yet it seems the officer is excused that breaks open the door to search, because he searched by warrant, and could not know whether the goods were there, till search made : but it seems that the party that made the suggestion is punishable in such case ; for as to him, the breaking of the door is, in the event, lawful, or unlawful, to wit, lawful if the goods are there, unlawful, if not there. On the return of the warrant executed, the Justice hath these things to do. ' ' As touching the goods brought before him, if it appears they were not stolen, they are to be restored to the possessor; if it appear they were stolen, they are not to be delivered to the proprietor, but deposited in the hand of the sheriff or con- stable, to the end the party robbed may proceed, by indicting and convicting the offender, to have restitution. As touching the party that had the custody of the goods ; if they were not stolen, then he is to be discharged ; if stolen, but not by him but by another, who sold and delivered them to him, if it appear that he was ignorant that they were stolen, WAIIUANT. lie may be diMuliaiged as iiii uIUmkUm., iiiuI be bound over (n give evidence as h witness a^uinht biin that sold iheni ; il' it upptMu- he was knowing iliey were sinlen, lie must be coniinit- led >r bound over to answer the felony. T) liurn^Sy KM), 1 10. Information C(J Goods being Stolen, ami oj Supitosed Place oj 1a, ^' , Concealment. t County o( ) The information and compluintof A. I. of ) in tlio said county of , yeoman, made on oath before me A. M., KH(|uii'c, one of His Majesty's Justices of the Peace in and for the said county, the — day of ill the year of our Lord one thousand eight hundred and . The said A. I. saith, that within days \f\^l past, the following goods of him the said A. 1., to wit, — six silver table 3|)Oons, one plated ladle, and one pair of plated candlesticks, have, by some person or persons unknown, been feloniously taken, stolen, and cmried away out of the house of the said A. I. at aforesaid, in the county aforesaid ; and that he the said A. I. hath just cause to suspect, and doth suspect, diat the said goods, or part thereof, are concealed in the dwel- ling house of A. O. of in the said county, yeoman. And thereupon he the said A. 1. prayclh that justice may be done in the premises. A. I. Before me, A. M., J. p. , . w . . / •. ■■• • Search JVarrant thereon. < 577 County of > To A. C. one of the constables of the township ) of in the said county. [Seal.] ■ .: ; ■ •• • .. Wherf.as it appears to me A. M., Esquire, one of His Majesty's Justices of the Peace iii and lor the said county, by the information on oath of A. I. of in the county aforesaid, yeoman, that the following goods, to wit, six silver table spoons, one plated ladle, and one pair of plated candle- slicks, of him the said A. I. have, within days last past, by some person or persons unknown, been fc^niously taken, stolen, and carried away out of the house of tlie said A. I. at aforesaid, in the county aforesaid; and that the said A. J. hath probable cause to suspect, and doth suspect, that the said goods, or part thereof, are concealed in the dwelling house of A. 0. of in the said county, yeoman. These are there- lore, in the name of our Lord the King, to authorise and re- 579 WARRANT. quire you, with necessary and proper assistants, lo enter in the day time into tlie said dwelling house of the said A. O. at— — aforesaid, in the county aforesaid, and there diligently to search for the said goods ; and if the same or any part thereof sIkiH be found upon such search, that you bring the goods so found, and also the body of the said A- O. before me or some other of His Majesty's Justices of the Peace in and for the said county, to be disposed of and dealt withal according to law. Given under my hand and seal, at in the said county, the -— day of in the year of our Lord one thousand eight hun- dred and . A. M., J. P. Manner of ap- prehending the offender. Where a Suunnons is moBt proper. • II. Warrant to Apprehend. ;• »> V If a Justice see a felony or other breach of the peace committed in his presence, he may in his own person, appre- hend the felon. And so he may by word, command any per- son to apprehend him, and such command is a good warrant without writing ; but if such felony or breach of the peace be commited in his absence, then he must issue his warrant in writing. Concerning such warrant, the following points are requisite to be known. 1 . For ichat causes it may be granted. 2. What is to be done previously to granting it, * ■'■■■ 3. How far it is grantable on Suspicion. 4. The Form of it. 5. Indorsement of a Warrant in another county. 1. For what causes it maybe gra/nted. ■■■ i There seems to be no doubt but that a warrant may be la'.vfully granted by any Justice, for treason, felony, or any otliei offence against the peace ; also it seems clear, that wherever a Statute gives to any one Justice a jurisdiction over any of. fence, or a power to require any j«jfson to da a certain thing ordained by such Statute, it implrroly gives trpowc to every such Justice to make out a warrant to bring h^ifore him, any person accused of such offence, or compellable to do anything ordained by such Statute, for it cannot but be intended, that a Statute giving a person jurisdiction over an offence, doth mean also to give him the power incident to all courts, of compelling the party to come before him. " ' '» < '^ But in cases where the King is no party, or where no corporal punishment is appointed, as in cases for servants' lases for servants" WARRANT. 579 wages, and llie like, it seems that n Summons is the mure proper |>rocess, and for default of appearance the Justice may proceed, and so indeed oftentimes it is directed by special Statutes. Indeed, as a warrant deprives a man of bis liberty, a summons only ought to issue and not a warrant, without infor- mation upon oath. 5 turn's, 532, 3. ' 2. What is to be done previowly to granting it. It is convenient, though not always necessary, titat the party who demands the warrant be first examined on oalh, touching the whole matter whereupon the warrant is demanded, and that such examination be put into writing. 5 iitirn's. 533. 3. How far it is grantt^le on Suspicion' « A Justice of the Peace hath power to issue a warrant to apprehend a person suspected of felony, before he is indicted, and aldiougli the original suspicion be not in himself, but in the party that prays the warrant. For the Justice is a judge of reasonableness of the suspicion, and when he has examined the party accusing, touching the reasons of his suspicion, if he find the causes of suspicion to be reasonable, it is now become the Justice's suspicion as well as the party's. Yet since the undue execution of this power of the Justice may prove so highly prejudicial to the reputation, as well as the liberty of the party, a Justice cannot well be too tender in his proceedings of this kind, and seems to be punishable not only at the suit of the King but also of the party grieved, if he grant any such war- rant groundlessly, and maliciously, without such a probable cause as might induce a candid and impartial man to suspect the party to be guilty. But a general warrant, upon a complaint of robbery, to apprehend all persons suspected, and to bring thcni before u Justice, hath been ruled void, and false imprisonment lies '. against him that issues such a warrant. 5 Burn's^ 533: — 4. I .. 4. Tlic Form of it. . * }• . ,. . It is safe, but perhaps not necessary, in the body of the pij,,.,., ^vlnue warrant, to shew the place where it was made ; yet it seems muUc. necessary to set forth the county in the margin, at least, if it be not set forth in the body. It may be directed to the sheriff, bailiff, constable, or To whom to to any indifferent person by name, who is no officer, for the ^^ ttiructed. I l'\ "*■ I ( I ";' !| W,',' BMir' ' m f i 580 WARRANT. Ill whose iiuiiie to he iiiudo. Cause of granting War- rant to he specially stat- ed therein. Name of parly must he men- tioned in the Warrant. Day and year nf making niutit be staled Justice may authorise any one to be hh officer whom he pleases to make such ; yet it is most advisable to direct it to the constable of the precinct wherein it is to be executed, for no other constable, and much more no private person, is com* pellable to serve it. But in the case of an Act of Parliam*^ it, it is said, that if the Act direct that a Justice shall grant a warrant, and do not say to whom it shall be directed, by consequence of law it must be directed to the constable, and it cannot be directed to the sheriff, unless such power be given in the Act. The warrant may be styled in divers manners ; as, — 1. In the name of the King, and yet the teste must be under the name of the Justice that grants it out. Or, — 2. It may be styled or made only in the name of the Justice. Or, — 3. It may be made without any style, and only under the teste of the Justice, or only subscribed by him. Wheresoever the warrant is made in the King's name, there it ought to be directed to all peace officers, for the King is made a party. And so it may be done in all other warrants, especially for felony, or for the peace and good behaviour, because it is the service of the King. Regularly, the warrant, especially if it be for the peace or good behaviour, or the like, where sureties are to be found or required, ought to contain the special cause and matter whereupon it is granted, to the intent that the party upon whom it is to be served, may provide his sureties ready, and take them with him to the Justice, to be bound for him ; but if the warrant be for treason, murder, or felony, or other capital offence, or for great conspiracies, rebellious assem- blies, or the like, it hath been said, that it need not contain any special cause, but the warrant of the Justice may be lu bring the party before him, to niake answer to such things or matters generally, as shall be objected against him on the King's behalf. The wariant ought regularly to mention the name of the party to be attached, and must not be left in general, or with blanks to be filled up by the party afterwnrds. It may issue to bring the party before the Justice who granted the warrant, specially, and then the officer is bound to bring him before the same Justice, but if the warrant be to bring him before any Justice, then it is in the election of the officer to bring him before what Justice of llic county he thinks fit, and not in the election of the prisoner. It ought to set forth the day and year wherein it is made, that in an action brought upon an arrest by virtue of it, it may appear to have been prior to such arrest. ; and also in case where WARRANT. 581 Must bo un- der liund ami seal of Jus- lice. llie Statute directs the prosecution to he within such a time, that it may appear that the prosecution is commenced within such time limited ; hkewise where a penahy is given to the poor of the parish where the offence shall be committed, or the like, it ought to specify the place where the offence was com- mitted. Finally, it ought to be under the hand and seal of the Jus- tice who makes it out. The warrant of a Magistrate is not returnable at any par- ticular time, but continues in force until it is fully executed and Duration of obeyed, though it were seven years, provided the Magistrate ^^"'■'■«"'*- so long live. A warrant to arrest the party, " to the end that he may Arrest may !>« become bound, &c. to appear at the next Sessions, &c. " means '•f'^'' '''«' '^*'*'- the next Sessions after the arrest, and not after the date of the ^'""'' "*"'' ,*"'" warrant, fherelore the othcer executing it, may justify an ar rest after the Sessions next ensuing the date of the warrant. ' Bttrn's, 534—7. ^ - ■ ^ :- ' v V ' ' General Form of a Warrant to Arrest. 4)f the War- rant. [he name of the leneial, or with County of To A. C. ship of one of the Constables of the tovvn- in the said county of , and to [Seal.] all other peace officers, respectively, in the said county. Forasmuch, as A. I- of — , in the said county, yeo- man, hath this day made information and complaint upon oath, before me A- M., Esquire, one of His Majesty's Justices of the Peace in and for the said county, that A. 0. of , in the said county, labourer, on the — day of , instant, at , in the said county, [here state the crime or of- fence, as charged in the information.] These are therefore to command you, in His Majesty's name, forthwith to appre- hend and bring before me or some other of His Majesty's Jus- tices of the Peace in and for the said county, the body of the said A. O., to answer unto the said complaint, and to be fur- ther dealt withal according to law. Herein fail you not. Given under my hand and seal, at , in the said county, the — day of -, in the year of our Lord one thousand eight hun- dred and •■'■•:• i " '.i:-- .^- ;..' >i '-' ■ ---' '. A. M., J. P. Indorsement of a Warrant in another County. 5. By the 54 G. 3, c. 15. 2 V. 122, If any person against whom a warrant shall be issued, be out of the jurisdiction of the Justice or Justices granting the warrant, any Justice or WARRANT. Justices of ihe comity, district, or place \virei-e such person shall escape, go into, be, or reside, upon proof on oath of the hand-writing of the Justice or Justices granting such war- rant, shall endorse his or their nanie or names titereon ; which shull be a sufficient authority to the person bringing such warrant, and to all other persons to whom the same was origi- nally directed, to execute the same in such other county, dis- trict, or place, and to carry the offender before the Justice who indorsed the warrant, or some other Justice or Justices of that county or place, and in case tlie offence be bailable, and the offender be ready and willing to give bail for his ap- pearance at the next sitting of the Supreme Court, or next General Sessions for the county or place wiiere tbe offence was committed, such last mentioned Justice or Justices shall take bail accordingly, and shall deliver the recognisance, to- gether with the examination or confession of the offender, and all other proceedings relating thereto, to the constable or other person apprehending such offender, who shall (under the penalty of ten pounds,) deliver over the same to the Clerk of the Supreme Coui't, or Clerk of the Peace of the county or district where the offender is required to appear. And if the offence be not bailable, or the offender shall not give bail to the satisfaction of the Justice or Justices before whom he is brought, the constable or other person aforesaid shall carry the offender before a Justice of the proper county or place where (he offence was coounitted, tliere to be deak with according to law. Perpetual. Before whom The Justice indorsing the warrant, may (if lie tiunk fit,) carrLf '^" '" Order the party, according as be shall appear bailable or not bailable, upon the face of the warrant, to be brought beiore himself, or some other Justice or Justices of that county, or to be -carried back into the county from whence the warraot issued. It has been determined^ that proof on oath of tlie hand-writing of the Justice who granted the warrant, made before the Justice of any other county to whom the saiMe iviis tendered for indorsement, is sufficient to oblige him to indorse the same for execution within his jurisdicttoD< The Justice by whom the original warrant is issued has a discretioa to ex- ercise upon die matter submitted to him ; but the naagistrate who merely indorses the warrant of another, is not answerable for the legality of it, which remains at the hazard of him who first granted it. 5 Burn^s, 537-8. The Indorsement may be in the following Form. County of ^ Forasmuch as proof upon oath hath been made before me, A. R., Esquire, one of His Majesty'^ WARRANT. 58J Justices of the Peace in and for the said county of that the name of A. M. is of the hand writing of the Justice of the Peace within mentioned ; I do hereby authorize A. C. who hringeth to me this warrant, and all otiier persons lo whom the said warrant is directed, to execute the same witliin the said county of . Given under my hand, tiio — day of in the year . 1) t ^1 A. R. J. P. m Concerning tlie execution of this warrant, see Title, — Arrest. — m — WEIGHTS AND MEASURES. By the 32 G. 2, c. 21. I V. 32, " All weights and mea- sures used in this Province, shall be according to the Standard of the Exchequer of England ; and the Treasurer of the Pro- vince, as soon as may be, shall procure a sett of measures, long, liquid, and dry, and a sett of brass weights and scales, and until such weights and measures shall arrive, the weights at His Majesty's Ordnance store shall be the Standard. And the clerks of the market for each town shall procure therefrom a sett of weights according to such standard, which shall remain with them as assay weights, and shall be marked with the let- ters Gii : R." Sec. 2. Every inhabitant of each town, respectively, making use of weights and measures in the sale of any com- modity, shall in one week after public notice given by such clerks respectively, bring, or cause to be brought, their weights and measures to be assayed ; for each of which assay he shall have two pence for his trouble, and no more ; and thu said clerk shall cause such weights and measures to be brand- ed or stampt with the initial letter of the town where such as- say shall be made. And whosoever shall thenceforward sell or vend any commodity by weights or measures not so branded or n)arked, shall forfeit for every such ofience, twenty shil- lings, on due conviction thereof before any one Justice of the Peace for the county wherein the ofl'ence shall be committed, 10 be levied by warrant of distress and sale of the offender's goods. Sec. 3. The said clerks shall inspect all weights and measures, and for that purpose, once in three months, or of- lener if they see cause, shall visit every inhabitant selling pub- licly by weights and measures, and shall have full power and V4 Staiulaitis of Weights aiitl Mciisurtis. Assavinrr Weights, &c. Penah} for i^elliiig by \V'eiglils or INIeasiirt's not iiiarUcd. Inspecting W'oiglits, &c. ^m 5SI WEIGHTS AND MFfiASURES. Penalty lor Selling liy VVeiglit.s,"&<' le:>is than the S^landard. No goods ex- cept Hay to be sold by Hteel yards. Clerks of Mar- ket to inspect and assay Weights, ^^easures,&c. nutliority lo seize all siicli, not stamped or branded as aforesaid, and may assay, and mark, and dispose of the same for their use, as a satisfaction for their trouble therein ; and if any per- son shall hereafter he convicted of selling by weights and mea- sures less than the standard hereby established, he shall forfeit the Sinn of ten pounds ; to be recovered by bill, complaint, or information, in any Court of Record. Perpetual. By the 33 G. 2, c. fi. 1 V. 50, No provision or goods of any kind shall be sold within the Province by steelyards, (except hay,) under the penalty of twenty shillings, lo be paid by the person or persons offending, for each and every default, and to be recovered before any of His Majesty's Jus- tices of the Peace. Sec. 2. The Clerks of the Market are empowered (o inspect all beams and scales, weights and measures, as well of brass as of other meials, and also the steelyards used for weighing hay, once in every three months, or oflener as they shall see cause ; not only those used by the inhabitants selling publicly by weights and measures, but also those used on board any ships or vessels, lying at any wharves, or at anchor in any harbour, or by any person or persons selling as aforesaid, within the Province ; and the same to assay and stamp, and dispose of as in said Act is directed, and under the same penal- ties ; and all masters of ships or vessels, refusing admittance to the said Clerks of the Market, shall be liable to the same pe- nalties as any inhabitant, in manner and form as prescribed by the said Act, and to be recovered in the same manner. Per- petual. Note. The Act here referred to, is the previously re- cited Act of the 32 G. 2, c. 21. ,, . . Appropriatx)n of Fines, &c. Directions. By the 7 G. 3, c. 4. 1 V. 12G, made to explain and amend the foregoing Acts, it is enacted, — " That for the future, all fines and forfeitures incurred on the said Acts shall be ap- plied, one half to the Clerks of the Market or informer, and the other half to the poor of the town where the offence shall be committed." Perpetual. The proceedings for the recovery of the penalty of twen- ty shillings, imposed by the first of the before recited Acts, will be the same as in other ordinary cases of prosecutions be- fore Justices to recover penalties, and are described, and the requisite Forms, which may readily be filled up so as to serve, are given under the respective Titles, — Information ; Sum- mons ; Conviction ; Distress. The same will be the case with regard to the other penalty of twenty shillings, for selling as aforesaid, me for their d if any \tcr- hts and men- shall forfeit , complaint, hial. ion or goods y steelyards, llings, to he ch and every lajesty's Jus- m powered to es, as well ol urds used for ftener as they ibitants selling used on board • at anchor in y as aforesaid, id stamp, and je same penal- ng admittance I the same pe- prescribed by anner. Per- [previously re- explain and for the future, ^s shall be ap- iuformer, and offence shall lalty of tweii- recited Acts, )secutions be- iribed, and die 30 as to serve, hation ; Sum- be the case ks, for selling WELLS AND PUMPS. by steelyards, until after conviction. As no final Process is mentioned for levying or enforcing payujent of this penally, no fjticli process of any kind can legally be issued by the Justice. 585 I-., WELLS AND PUMPS By the 36 G. 3, c. 9. 1 V. 379, The inhabitants of towns, ^"'«i."g '»»- .1 • . • . (• 1* • 1 • >"'V for aiuli- ni then* town meetnigs, may vote sums ol money lor smknig ■ ^j„j ^j,_ wells and furnishing pmnps, and keeping the same in repair ; pairing Wells which monies shall be assessed and collected in the same man- ""'^ Pumps, ner as poor rates, and shall be paid into the hands of the Fire- wards, who shall apply the same for the aforesaid purposes, and shall account for the expenditure to tiie next General Ses- sions, and pay over the balance to their successors. Persons who think themselves overrated, may appeal to the next General Sessions, where the matter shall be finally determined as may be judged equitable. If the inhabitants of any town neglect to vote money for the aforesaid purposes, the General Sessions, on the complaint of any three inhabitants, may amerce such town in the sum requisite, which shall be assessed, col- lected, and paid in the manner aforesaid. Sec. 3. Whoever shall be found guilty of wilfully injur- I"J""ng "r ing or destroying any pump or well, in any of the public ^VeTls^o"^ streets or lanes of any of the towns of the Province, shall, on I'lunps. conviction thereof before any two Justices of the Peace, forfeit and pay a sum not exceeding five pounds, nor less than forty shillings ; the one half thereof to the prosecutor, and the other half to the Firewards of the town wherein such offence shall be committed, for the purpose of repairing such pumps and wells within such town ; and in case the party so convicted, shall be unable to pay the fine imposed, it shall be lawful for such Justices to commit the offender to the house of correc- tion, there to be put to hard labour, for a space not exceeding ten davs nor less than five days. This Act is made perpetual by the' 48 G. 3, c. 24. 2 V. 23. The proceedings for the recovery of the penalty under the Directions, foregoing Statute, will be the same, until conviction, as in other cases of prosecuting before Justices to recover penalties, and will be found, together with Forms which can readily be made to answer, under the respective Titles, — Information ; Sum- mons ; Conviction. Asa warrant of distress to levy the penalty is not mentioned, it would rather seem that no such warrant can be issued, notwithstanding the words of the Act,' coirCerning ilie commitment of the parly, " on his being unable to pay." r m 111 th .; 58(> WELLS AND PUMPS. He shotjld however bo notitied of the fine imposed, iind ilic same should be domnndod from him, aiul on neglect of pay- ntent, the warrant of connnitmeni may be issued. A suitable Form then'of, may be easily framed from the general Form under the Tillo, — Connnitment ; or from the Form of a com- mitment to the house of correction, under the Title, — Vagrant, and also under other Titles. • ? ', -L^- WIFE Wife; comniit- ting Clime in company with or I)} coercion of lit-r hiis- liuiul. Ifl iinhln for <)fl»>nccs not rapital. Wife cannot commit felony in takin8- telx ur goods. Injuring or obstriii'ting person endea- vouring to Buve property. Putting out lulme lights. Stealing vvreekeil goods under ■10 iiliilling.s. Searching for stolen ship- wrecked goods, and securing the ollendcr. shall give imiDcdiato notice to nny one or more of the several uniccrs hereafter named, viz. to the bherin'oi' the cotinty, cor- onor, oilictM's of the customs, ofliccrs of impost aiul excise, oi Jiisliccs of the Peace, whichsoever of them, or cither, or nny of them sliull be nearest at hand, and such oflicer orolMccts, oi n niiijority of them, if more than one sliull attend, shall inmic- diaicly take all necessary nieasures for securing and prcservini; of all such ships, vessels, goods, fcllects, and properly of every kind, and shall proceed therewith as hereinafter directed. If any |)crson shall plunder, steal, take away, or destroy, any wrecked, stranded, or abandoned ve.H.sels, or any kind of goods, wares, or merchandise, which shall be wrecked, lost, stranded, or cast on shore, on the coasts of this Province, or of the Island of Sable, or shall steal or take away any kind of shipwrecked or lost goods, wares or merchandise, which shall be found Heating in the rivers, bays, or harboms of this Pro- vince, or contiguous to the shores thereof, except so far as may be necessary to bring the same to the shore, for security, or shall plunder, steal, or take away any of the tackle, apparel, furniture, or provision of any vessel, so found wrecked, strand- ed, or cast away as aforesaid, (whether there be any living creature on board such vessel or not,) or shnl! beat, wound, or otherwise wilfully obstruct any person endeavouring to save his or her life from such vessel, or shall put out any false light, with intention to bring any vessel into danger, in all such cases the person or persons so ofi'ending shall be deemed guilty of felony, and being lawfully convicted thereof, shall sufler death as in cases of felony, without benefit of clergy. Sec. 2. Provided always, that when any goods or cflects which are under the value of forty shillings, shall be lost, stranded or cast on shore as aforesaid, if the same be stolen without any circumstances of cruelty, outrage, or violence, the person con- victed of such stealing shall suffer only the punishment which the laws direct in cases of petit larceny. Sec. 3. All and every of the Justices of the Peace through- out the Province, shall, upon information made before liiin or them on oath, that any kindof losi ur shipwrecked goods as aforesaid, or anything belonging to any vessel lost or stranded as aforesaid, has been carried away or concealed in any place what- soever, such Justice or Justices slinii issue his or their warrant or warrants, for sejirching of all [ilaces where the same shall be suspected to be concealed, and if any such goods be found in the custody or keeping of any (icrson or persons whatsoever, who shall appear to such Justice or Justices to have wilfully concealed, or kept such goods from being found, with a frau- dulent intention, it shall be lawful for such Justice or Justices lliR scvnrat )iinty, cor- oxcise, oi licr, or nny olficers, oi jhnll imnic- pieseivini; '{y of every •ccied. or destroy, any kind ol' ecked, lost, 'rovince, or any kind of ^ which slinll of this Pro- ?pt so far as for security, kle, apparel, :;ked, strantl- >e any living leat, wound, luring to save iiy false light, dl such cases ned guilty of I sufTer death ds or effects osl, stranded n without any ; person con- hment which eace through- lefore him or \ed goods ns jr stranded as [y place what- 1 their warrant Isame shall be be found in whatsoever, [have wilfully with a fran- |c or Justices WRFXK. 501 ('oiuniaailiiiit aMMii4tuiiiN> u> |Mt!nt'rvi; |M'i- HOIIH mill |tlO pitrtv, iiiiil |llllll.slllll i-h 59^2 WRECK. # How gaodf saved shall be disposed of, when no per- son appears to claim, and to paj expenses. same, by the commander, principal oflicer, mariners, seamen, or owners of the vessel, goods, or properly preserved as afore- said ; and the goods and property so saved, or in default there- of, the vessel or her materials, shall remain and be held in the custody of any or either of the herein before named officers, until such charges be paid, and the officer or officers, and all others who shall aid in performing sucii service, shall be rea- sonably gratified for the assistance which he or they have actu- ally and fairly given concerning the premises. Provided always, that no person shall be entitled to receive any gratification for his service, if during the time thereof, he shall have been guilty of dishonesty, misbehaviour, or disorderly conduct of any ivind ; and unless the officer or officers, if any such shall attenci and direct the making of such salvage, shall certify the services actually performed by each and every person who shall demand gratification ; and the quantum of such reward or gra- tification to be paid to the officer or officers, person or persons claiming the same, shall be adjusted and settled on a reference to be made to three of the neighbouring Justices of the Peace, to be mutually chosen by the parties ; which Justices shall ad- just the quantum of the reward or gratification to be paid to the i persons employed in making such salvage, and such adjustment shall be binding to all parties, and shall be recovered in an ac- tion at law to be brought in any Court of Record, by the par- ties to whom the same shall be allotted. ,,: , ; In case it shall happen that no person shall appear to make his claim, to all or any of the goods that shall be saved, then the officer or officers in whose custody the same shall be, shall sell so much thereof as will be sufficient to pay the sum oi sums of money adjusted and allowed for the salvage thereof, with incidental charges incurred ; or if the goods are in danger of perishing, or of being otherwise lost by delay, then the whole to be sold ; and shall put some principal officer of His Majesty's customs, or some other responsible person, in case no such officer is present to receive the same, into immediate possession of the goods or money remaining after payment of j the salvage and costs aforesaid, first taking an account in writ- ing of the said goods or money, to be signed by the officer of the customs, or person receiving the same ; and if the said money or goods shall not be legally claimed within twelve months next ensuing, by the owner thereof, such of the goods as may be on hand shall be forthwith sold at public auction, and the money arising from such sale, reasonable charges being j first deducted, with a fair and just account of the whole, shall be paid into the Treasury of this Province, there to remain for the benefit of the rightful owner, when appearing, who, U'inei's, seamen, served as afoie- in default ihere- i be held in the named officers, officers, and all :e, shall be rea- • lliey have actu- ?rovided always, : gralification for shall have been lerly conduct of if any such shall i , shall certify the person who shall ;h reward or gra- )erson or persons 3d on a reference ces of the Peace, Justices shall ad- to be paid to the i such adjustment covered in an ac- icord, by the par- 11 appear to make ill be saved, then ime shall be, shall » pay the sum or 3 salvage thereof, lods are in danger ir delay, then the pal officer of His e person, in case e, into immediate after payment of n account in wiit- by the officer of ; and if the said | ed within twelve luch of the goods it public auction, ible charges being | the whole, shall I, there to remain appearing, who, WRECK. upon affidavit or other proof made of his or their right or pro- perty therein, to the satisfaction of the Chief Justice, or one of the Justices of the Supreme Court, shall, upon his order, receive the same out of the Treasury. Sec. 5. Provided always, that it shall not be lawful for any person whatsoever, under pretence of making salvage un- der the authority of this Act, or under any pretence whatso- ever ; to meddle or interfere with any kind of property, if there be found any person in the charge or custody thereof, unless such person sliall require his assistance ; in which case notice shall be immediately given to one or more of the offi- cers herein before named, that such assistance is wanted, and it shall be lawful for the master or other person or persons hav- ing charge of any vessel or property so wrecked, or in distress, or for the officer or officers who shall come to his or their as- sistance, to repel by force any person who shall dare to enter such vessel, or to meddle with such property without his or their consent or orders ; and the person who shall molest or disturb those having charge of such property, and employed in making salvage thereof, or who shall molest, insult, or dis- turb the officer or officers herein before named, and those acting under his and their authority, in and about the premises, such person, if convicted thereof in the Supreme Court, or General Sessions of the Peace for the county or district, shall be punished as for a misdemeanor. Sec. 7. If any person shall make, or assist in making, any hole in a vessel, whether in distress or otherwise, wiih an in- tention, wilfully to increase the distress, or to produce tlio loss or destruction of a vessel, not being in distress, or shall steal, take away, or destroy, or wilfully render useless, llio pump of any vessel, whether in distress, or not, if done with a w ilful intention to produce the loss or danger of such vessel, or shall wilfully do any other thing, tending to produce the immediate loss or destruction of any ship or vessel whatsoever, every such person shall be, and is hereby made guilty of felony, with- out benefit of clergy. Sec. 9. The Clerk of the Peace on the first day of every General Sessions, in every county and district, shall immedi- ately on the opening of the Court, and helbre the Grand Jury shall depart from the Court, distinctly read aloud, every matter in this Act contained, and for every neglect of doing so, he shall forfeit twenty shillings, to the person who shfill inform against him, the same to be recovered on conviction before such Court of General Sessions. This Act is made perpetual by the 1 & 2 G.4, c. 19. .'3 V. HI. The proceedings before Justices, on informations for en- 593 Property in charge cf an- other not to bo interfered with. Persona en- deavouring to destroy, or cause the loss of vessels, to sutler death. Act to be read by liie Clerk oi'the Peace. ! I , ! : ] I' ■i Directions. ■' ^4i >' 3 594 WRECK. r:; (Jeavouriiig to produce wrecks, — for stealing wrecket! goods, and, for other felonious acts, mentioned in the foii'i^oing Statute, will be the same as in other cases of felonies, nnd will be found, with the requisite Forms, under the respective Titles, — Information ; Warrant ; Examination ; Commitment. Justices cannot let to bail a party charged with any of the said felonies, but must commit him, for trial in the Supreme Court, and send thither the examinations taken. With regard to the offence of refusing to attend and ren- der assistance towards preventing wrecks, preserving lives of shipwrecked persons, or saving wrecked goods, on complaint being made to any Justice, he must take the same on oath, in the form of an affidavit, stating the facts, or according to the general Form under the Title — Information, — setting forth therein the facts of the case. The requisite warrant in siicli case can be framed from the general Form under the Title- Warrant, — filling it up according to the facts stated in the In- formation. When the party charged with this offence is brought before the Justice, if he offer sufficient bail, they must be bound with him, in the manner, and according to the Form given under the Title, — Recognisance. If he neglect to fur- nish such bail, he must, as directeci by the Act, be committed to gaol, to take his trial at the nekt General Sessions. 1. commitment can be readily framea from the general Vorrr r der the Title, — Commitment. Order of Justices^ for payment of Reivard to persons rendering assistance to Vessels in distress^ and at Wrecks ; pursuant to the before recited Act. County of) The order and award of A. M., A. N., and ^ A- R., Esquires, three of His Majesty's Justices of the Peace in and for the said county, made the — day of , in the year of our Lord one thousand eight hundred and . Whereas it has appeared unto us the said Justices, upon the complaint and claim of A. C. of in the said county, mariner, that on the — day of last past, at in the said county, the ship or vessel called the of in the A. T. master, bound from in to in was stranded at — — in the said county of and that he the said A. C. with great labour and expense, did dur- ing — days, assist in saving the crew, landing and preserving the cargo, and getting the said vessel from the shore where stranded, [or as the nature of the service may have been.] And whereas the said A. T. the said master, [owner or owners, oi his or their agent, as the case may be,] together with the said s. WRECK. 595 A. C. are now present before the said Justices, for the pur- pose of having the claims and demands of the said A. C, for such services as aforesaid heard and determined ; We, there- fore, the said Justices, having examined into the cause and cir- cumstances of the premises, upon oath, and all matters relating thereto, do hereby order and award, that he the said A. T., the said master [or owner, as the case may be,] shall, upon notice of this our order and award, pay unto him the said A. C. the sum of for his services of every description, as aforesaid. Given under our hands and seals, at — in the said county of , the day and year first above written. A. M., J. P. [Seal.] A. N., J. P. [Seal.] A. R., J. P. [Seal.] f ■■ II ^1 ; I iil '.'I . ' ■':'■■ Miw' '^t ■'' ', M- . ■, ■■■ '1 '■■'■'. I : ' "' ; ; " 1 ' ' iO'*- ' .|i ' '• 'rt ■ I- I ID '. - V 1 or owners, rat '^^^ ' ( 596 ) The following Enactments relating to Common Fields, .;. r.. -' .. were omitted under that Title: — " ' "I" .-..-■, ''• By the 8 G. 4, c. 26. 4 V. 12, Every brand or mark adopted by the proprietors of any Common Field, in and by their regulations concerning such common field, or otherwise for the purpose of branding or marking the horses, or cattle, turned, or to be turned into such common field, before the same shall be used for that purpose, shall be entered by such proprietors in a book to be kept by the town clerk of the town- ship or settlement wherein such field may be situate, who shall receive for so recording the said mark or brand, the sum of one shilling. Sec. 2. Provided always, that such town clerk, after entry of any such brand or mark, shall not so enter any other brand or mark similar thereto, under penalty of ten pounds ; to be recovered by any person who will sue for the same by bill, plaint, or information in any Court of Record ; to be applied, one half to the use of the person who shall sue for the same, and the other half to the use of the poor of the township, par- ish, or settlement in which the office of such town clerk may be situate. .^ - . Sec. 3. If any proprietor or proprietors of any common field, or any person or persons by him or them, or any of them, duly authorised or appointed, shall brand or mark any horse, ox, or cow, or other cattle whatsoever, for the purpose of turning them or any of them into any common field, with any brand or mark not duly entered or recorded by the town clerk, in manner aforesaid ; or if any person or persons shall imitate, counterfeit, or use any such brand or mark, so entered and recorded as aforesaid, for the purpose of branding or marking a horse, ox, coav, or any other beast of the description afore- said, except such person or persons as may be authorised and entitled so to do, under and by virtue of the regulations of tlie proprietors of the common field, so having adopted and entered Giich brand or mark with the town clerk as aforesaid, every person so offending, or being accessary thereto, on conviction thereof, before any two Justices of the Peace for the county or district wherein the offence was committed, shall at the option of such Justices, be adjudged, either to be committed to the common gaol of such county or district, for a term not exceed- ing three months, nor less than one month, and be accordingly committed, by warrant under the hands and seals of the said Justices ; or shall be adjudged to forfeit and pay a sum not cx- t;ocding five pounds, nor less than three pounds, with costs ol' suit ; to be levied by warrant of distress and sale of the offon- ;j.lv jT.«« IS a, I (597) der's goods and chattels, and to be paid, after dcdnciing such costs, to the Overseers of the poor, for the use of the poor of the township, parish, or settlement, wherein such ofience shall have been committed' Perpetual. The proceedings before Justices, under this last clause, will be the same as in like cases, and, together with the requisite Forms, which may readily be filled up so as to serve ; are set forth respectively, under the Titles, — Information ; Warrant ; Conviction; Commitment; and Distress. It will be observed, that two modes of punishment are mentioned, either of which the Justices, in their discretion, may impose, but they cannot adjudge both. If they impose that of a fine, it would seem, that in default of distress, they cannot commit the party, as no such power is, in that event, given to them by the Statute. DireclioiH tn W "'%^ '^f I'lfldDOdyjiiJ il 4/1 r\ • I , 'f\ riU ■""•• ••''!^ '>i'f !; .f'i'r.:) v^-i*!! ■!T"n! 'H i^ A'ir>ii. [M ( UUill 0' JKi ^f"; .1:: 1 J ii:<| !)i ,■■! 'i„'V/(':.i; ;,'4i. Tttg.>'./<(«mtaT»#-ittHfewrfb;W«t> ^^^^^^>WSW^^**' ^ ^ '^ ■^^J.^^n■^ -^N*s* •M^^J««l ■■(•."I :m1 •i, i ]*A ,:• '. ,.i,.ti /I' ''1 .c»t^ ,r::>;jiii I'lie '^^■^^ INDEX. ^_j ..f.. a; fij^!^ { I ! .! ic's'f ■' n ABSENTEES, liable to rates and labour on highways, 1. Muse, no assault, see Assault, &c. 21, Slander, 459, Affray 9. Jlccess^ see Bastards, 40. ACCESSARY, only in capital felonies, 2. before the fact, 3. after the fact, and receivers, 5. * - '" ' proceedings against, 8. Accident, hurt by, sec Assault, &c. 22, and Homicide, 241. Accomplice, see Evidence, 167. Account, false, see Cheat, 85. Account Book, see Evidence, 162. ' '" Accusation, false, see Conspiracy, 103. Accused, not to be on oath, see Examination, 180. Actions, against magistrates, see Justices of the Peace, 276 Adultery, see Marriage, 318. Affidavits, voluntary, see Oaths, 340. Affirmation, of quakers, see Oaths, 341. ". AFFRAY, what it is, 9. ' ; .';; suppressing by a private person, 10. ', , ' by a constable, 11. ' . . by a Justice, 11. ' ' . r Allegiance, oath of, see Oaths, 341. ' ... Appeals, see Poor, 355, 378, and Rates, 395. Apprehending Offenders, see Arrest, 13. Apprentices, see Servants, 442. Apprenticeship, gaining settlement by, see Poor, 368. Army, see Soldiers, 460. ARREST. Who may or may not be arrested, 13. for what causes of suspicion an arrest may be, 14. by whom it shall be made, 15. „, the manner of an arrest, 16. ' V ,,i -. what is to be done after it, 20. , ^ '' ' ' , Arson, see Burning, 80. '^ . 'n>.tY ^^ ASSAULT AND BATTERY. What is an assault, 21 what is a battery, 21. in what cases they may be justified, 22, J; how punished, 23. "* ; t : ««vv\uft Forms, 24. .;■ - ' ''''"'■''' '^''''''^'^ 76 :s'\ 1.1- : •(. 600 INDEX. Jlssembly, unlawful, see Riot, 412. Jisscssinent, see Poor, 347, 352, and Rates, 388. Jissize of Bread, see Bread, 71. BAIL. Of bail in general, 27. excessive bail, denying, improperly bailing, insuffi- ciency, number of sureties and amount, &c., 28. for what offences justices cannot bail, 29. ^ ,j . ,. where two justices may bail, 32. , , , , where one justice may, 34. . ;, ■-, , where a justice ought to bail, 35. personating bail, by the 1 1 G. 3, c. 3. 1 V. 166, a felony, .36. ^ J, of the recognisance of bail, 36. " ' Forms, 38. - , .', ', Bakers, see Bread, 72. , , . ■,% Ballast, see Ships, 458. Bank Js^otes, forging, circulating counterfeit, and stealing of, see Bills and Notes, 70. Banks of Rivers, breaking down, a felony, see Rivers, 416. BASTARDS, who shall be deemed, 40. evidence of parents as to illegitimacy, 40. ,\i! securing the maintenance of the child, 41. ,, , securing the reputed father, 41. bond of indemnity, 41. , .. . directions, 42. order of filiation and maintenance, 43. Form of order, and directions, 47,48. appeal from such order, 49. right of the father or mother to the custody of the child, 49. making a false accusation of bastardy f 50. .,,^ „y murdering a bastard child, 50. : ;^ , \ i! orms, 51. .. •• ; , ' • Battery, see Assault, &c., 21. '" ,,. ,,■ Beacons, see Ships, 457. ■,,,,= ,t Beasts, trespassing, see Trespasses, 555. ..... - ; * BEEF and PORK, Weighing of beef, 6b. Inspection of beef and pork for exportation, 66. , „ ), Forms, 66. ; ,• ^^ Beggars, see Bridewell, &c. 75, and Vagrants, 567. Behaviour, see Surety, 531. . . . ... ,., i .. . Bigamy, see Marriage, 317. ; ,. Billeting, soldiers and militia, 68. INDEX. BILLS and NOTES, issue and circulation of, under 26. shillings, prohibited, except trea'='nry notes, or notes between debtor and credilor, under penalty, 70. directions, 70. forging, altering, or stealing bank bills or notes, 70. Binding in Jipprenticeshipy see Servants, 442. Binding to good behaviour, see Surety, &c. 531. '' ' ' Births, Registry of , see Marriage, 318. Biscuit, see liioad, 71. BLASPHEMY and PROFANENESS, punishment of, 71. Bond, see Bastards, 54. BREAD, to be sold by weight only, 71. assize of, 71. quality of, and punishment for adulterating, 72. deficiency in weight of, 72. marking of, 72. searching for defective bread, 73. hearing concerning offences and punishments, 73. ' Breaking into a Shop, Sfc. see Burglary, 78. Breaking open doors, see Arrest, 17, and Warrant, 576. BRICKS, size and quality of, 74. seizure and forfeiture of, when not according to stand- ard, 74. BRIDEWELL, &c., who may be committed to, 75. sessions, providing, &c. 75. \ '. . BRIDGES, sessions may raise money for building or repair- ing of, 76. BUGGERY, punishment of, 76. Buoys, see Ships, 457. BURGLARY, what it is, 77. what shall be deemed a breaking, 77. entering, 77. '-' mansion house, &c. 78. what shall be deemed night, 78. ' ' ' ^' provincial statute concerning, 78. ". > - directions, 78. ^ < ' Forms, 78. BURNING, houses, barns, buildings, corn, hay, wood, &c. felony without clergy, 80. directions, 80. threats of burning a house, SO. ,' • ' t -i y i CARRIAGES, regulating rates of carriage, 80. '-^ rules as to driving carriages, 81. , m n: ,^ 601 ii f'\ ' "hi & ■'• -d ■ it ; 602 INDEX. CARRIAGES, (continued.) "..;'<'<>/ ii •«■ r.'.LJi., .... , standing in streets, &c. 82. penalty for breacli of rules, and application thereof, 82. lockins; wheels on driving down hills, 83 directions, 83. i ,• iw- • .. ,, '. 'i'«iAv and annual allowance, 89. ,, •,,.. jxi? ,^'*>i m .1,,, . duty in certifying fines, 89. ^ ^' .'-»'. t.... •.••,,..-■. registering licences for sale of spirituous liquors, 89. registering marriages, 90. certifying attendance of justices in sessions, 90. COALS and Coal Mines, measuring coals, 90. i setting fire to coal mines, 91. ,,• ,, ,| COIN, counterfeiting British, 91. ,, , ;,.,/ ,/;in Foreign, 92. • .,j buying clippings of, 92. importing or circulating base copper, 92. directions, 92. Collectors of Rates, see Poor, 349, and Rates, 388, 392. Combinations among workmen, see Conspiracy, 104. Commission of the Peace, see Justices of the Peace, 260. COMMITMENT, who may be committed, 93. .,.,|io to what i)lace, 94. ■.., . ,^.Hi amons; workmen, by statute of the Province, 104. CONSTABLES, how to execute warrants, 100, and see titles. Arrest, IG, and Warrant, 576. appointing deputies, lOG. I ,: si ,-; /r' •• i, •>•.«') actions against, lOG. , .« i- . d • „,''..' fees of, see title. Fees, 18.'). CONTAGIOUS DISEASES, quarantine concerning such diseases, 107. health wardens, 109. regulations, &c. by sessions, where no board of health, or health wardens, 109. recovery of penalties in statutes concerning such dis- ■ n\\ eases, 111. ^.,,n »i.i. ;;^ .'. > ''w, directions, 112. CONVICTION, general rules and directions concerning it, 112. provincial statute relating to, and containing a form, 113. stating the day of information, 115. naming the informer, 115. .■.,•..■<,' convicting a married woman, 115. ,>..!!) day of the offence, 116. ■■"■)■ ,'i'.\ uiw m'k ' describing the offence, 116. / > ji-i v .).v -i^J^J « summoning party, 117. 'ui., i- •>.■'', defence, 118. jiii . .. "> '/.I / . <^\\i'\ ■"i'h 1(! i- /,■- i'! punishment, 119. costs, 119. t . ,1,,. : must be under hand and seal of justice, 120. direct'ons, 120, Form of bond on appeal, 121. Coppers, see Coin, 92. Copij, how far evidence, see Evidence, 156, 159. ^.J'l^J Corny see Grain, 224. CORONER, his duty and proceedings in taking inquisi- tions, 121 . statute concerning his duty and lees, 122. li Forms, 124. = ^':^^ v^^'t-ji -^ol mamyjr ' (m •'I } :,■( GOi INDEX. Correction, house ol", see BridowoU, &c. 76. >:,'»i\, *> »mi .. / Costs, SCO Fees, 184. i ;i • ", u-i ' ..m^ ♦> j County Rates, sco Kntcs, iWfi. ' # '«» County Treasurer, see Treasurers, r)54. Criminal Offenders, see Cornmitiiicnt, 93. 1 ' - ' ' Cruelty to Jhvimals, see Cattle, 84. '■ • < Cursing, sec Swearing, .041. Cutting or Maiming a person, see Homicide, 243. ' ,1 M '.'ii;! 1/ I i»'v D. I I ' ")).r''. ! DFiBTORS, absconding, &c. statute concerning, 127. JJcfamntion, sec Slander, 4.59. DESERTERS, from navy, 128. ' :i'.-h-:.^ ■ It /rom army, 128. expenccs of apprehending, maintaining, and conveying them, 130. -'■"^'^- Forms, 131. '• ' ..:..'r ». ■;.<•■■ /;•*'»"»...■.■■, DISTRESS, for levying fines and penalties, 132. I making at several times, 132. what goods maybe distrained, 133. ' ' breaking open doors to make it, 133. ' selling, and charges, 1.33. 5 s sn. it,."'? Forms and directions, 133 — 5. "< . rv! DOGS, &c. killing or worrying sheep, 136. - •'' mad, going at large, 136. " / directions, 137. 'n 'j nyi. • •: .. Doors, breaking open in criminal cases, see Arrest, 17, and Warrant, 576. DOWER, statute concerning, 138. v'lij^i ^' • Driving Carriages, see Carriages, 81. ''' '>^' "' ' ■'• DRUNKENNESS, penalty for by statute, 138. 't ^ Forms, 139. ' ., Duties, see Revenue, 407. DYKES, maliciously breaking down, punishable with death, 143. i- • directions, 144. ii> • ' ■'■■ !"'•'•* " ■> -*' : ''"'•^ t > )'.) 0', EELS, sec Fish, 196. rM/ .• h;! 7/0. Embezzlement, see Larceny, 284,291. " ■'■■ ESCAPE, what it is, 144. ' '' retaking, 145. *^'^ ^^r^^rj breaking open doors to retake, 145.' • -iiw.J. warrant for retaking, 145. ■-' ri^'si'x^'^ INDEX G05 EVIDENCE, or evidence ill seiiei-ul, iVi. )/iiAi\\i'A the best cvicloncc ip(juir«ul, 140. number of vvitiicsbus, 147. »»*/.! it of proving time and place, 147. »1 ii . •, adinissiuns in criminal cubCs, 147. ,•' ., :, lubnissions in civil cases, 149. .<■] presumpliuns, 152. > , -.t-i •■ Of icritlen EoidencCy 153. acts of parliament, 153. . . records, 153. -, .» -.: > .,•.-, u^ verdict, 154. ,. , ,. ; judgment, 154. . . ' , ' , ; aflidavits, 155. i ' .;. »■ depositions of witnesses, 155. < >-,i,hu'i convictions, 156. I ^ probate of a will, 156. t; If) J Pistil, "» \C\ copies of records, 156. warrant, 156. clturch book, 157. > gazette, 157. rule as to depositions of deceased witnesses, 158. Deeds, 1 58. in possession of the adverse party, 158. ..^i destroyed, 159. - ni'ii r.iif>,j: scaling, essential to a dfeed, 169. ^ ; proof and admission of, 159. ,..,-... *^.j proving hand writing of witness to a deed, 160. ( > proving hand writing of a party to a deed, 100. evidence relating to the contents of a deed, 161. fraud in deeds, 161. Entries, 162. Vik - iTv tradesman's book of accounts, 162. )fnd entries in books, 162. « /i(no.vv t^>tnmi» ' Handwriting, 163. '^^-i :i(no'l «iir| similitude of, 164. '-' ^ i}VV IXi/.^. Of the Evidence of Witnesses, 164. :{ incompetency, 164. i ./'J)\'lilx\l //J husband and wife, 165. Ui r loi-iwi (ti want of discretion, 165. lunatics, 166. infidels, 166. • ,, '} quakers, 166. judge or juror, 166. ■> ■f;t:>R ,jiiiinJirf i^-jjmtf^, 'n\4vV accomplice, 167. - •" < > , .5 ,,(,?)-» »r>J!cv'\ v/Ao''l conviction of felony, &c., 167. Miog^. ;^3:Aui ■>^\^H incompetency from interest, 168. jireuj lo .'i'A3'i 606 INDfiX. 1 0. .■ ;• •• ;ri(ii!; .< p' .'l/i; ". 'lU,- ) 1^ .... ''■'"!; 1' - • •!,' ; .•■;i/-f ' IKJ- .ii;-.()(!)i> EVIDENCE, (Continued.) -' ' plaintiff a witness, 169. *< ' trustee, 169. heir at law, 169. ; l^ '. prosecutor, 169. 'V-**-' 'J •: ' ' expectation of benefit, 170. agent, 170. evidence contrary to interest, 170. attorney, 170. Of examining Witnesses^ 171. ' questions as to character, 171. to try credibility, 172. leading questions, 172. character of witnesses, 173. evidence on a former trial, 173. contradictory testimony on the same side, 174. hearsay and reputation, 174. parties in a suit being witnesses, 176. ' Of the manner of giving evidence, 176. • ' examining witnesses apart, 176. affirmative to be proved, 176. Of Process for appearance of witnesses, 177. forms of Subpoena and Ticket, 177. staiuteconcerningajustice summoning a witness, 178. see further under title, Witnesses, 587. EXAMINATION, suspicion of felony, 179. •t« statute directing examinations, 179. ! n>; how to be taken, 179. • ''''■•'{ iOi manner of examining, 180. ' ' ' ' subscribing them, 180. ' " certifying, 181. -*'f binding by recognizance to give evidence, 181 . * married women and infants, 181. forms 182. >.-,«,>. a i EXECUTION, see titles. Summary Trials, 628, and Tres- passes, 562. ■...;.*/■*.. t ;».ir. V" EXTORTION. What it is, 183. by officers of justice, 183. i(,. lll'.V' I •>(), .1 False Money, uttering, see Coin, 92. ' i ' >.;'" i. False Pretences, see Cheat, 85. t , •MUuf'<> i^; False Tokens, see Cheat, 86. FEES, of justices, constables, and witnesses, 185. .U> "Si de, 174. 177. a witness, 178. ce, 181. 28, and Tres- 18&. INDEX. Felony, see Burglary, 77 ; Coin, 93'; Homicide, 242 ; Lar- ceny, 280 ; Rape, 385; Robbery, &c., 41G. Feme Covert, see Wife, 586. ''''' Fences, see Trespasses, 555. FERRIES, regulations concerning them lo be made in ses- sions, 180. Filiation, see Bastards, 47. Fines, see Clerk of the Peace, 89, and Trespasses, 565. ■ FIRES. Firewards for Halifax, 189. , regulations concerning fires, 189. " ' ' : • stealing at, 190. ' sweeping chimnies, 191. removing or altering chimnies, 191. ' acts extended to Shelburne, 192. to Windsor, Annapolis, Lunenburg, 192. to Liverpool, 192. engine men exempted from working on the highways, 192. providing implements for firemen in Halifax, 192. constables attending at fires, 193. fire bells, 193. chimney sweepers, 193. - r, , pulling down bouses, &c. at fires, 193. several acts and regulations concerning fires, extended to certain towns, 194. Firewards, sec. Fires, 189. Fireworks, making, selling, or firing ofF, prohibited, 195. FISH, Pickled, acts for inspection o(, under penalties and for- feitures for selling or removing without inspection, 196. act for inspection of smoked herrings, 200. Forms, 202. FISHERIES, act prohibiting the throwing of fish offal into the sea, 206. act for regulation of river fishery, 207. ' stopping the passage of eels, prohibited, 207. ' act to prevent coasting vessels running foul of nets, 208. FLOUR. Flour, biscuit, and ship bread, to be sold by weight only, 209. flour and meal of every kind to be sold or bartered by weight only, 209. inspection and branding of flour and meal, 210. quantity to be contained in a barrel of flour, 210. price of inspection, 210. ((uantity to be contained in a barrel of meal, 21 1. reshipnient of flour or meal, 212. 77 607 1} i 6 I '^ i 608 INDEX. •«,i • FLOUR, {Continued.) . erasing brands before repacking, 212 directions, 212. Forcille Entry and Detainer^ statute concerning, 213 -V what is a forcible entry and detainer, 213 Forms, 215. . -i , directions, 216. Foreigners, seitlement and relief of, see title Poor, 061 FORGERY, what it is, 217. , : ;': forging memorials of deeds, &c. 217. :;!ff vf- deeds and wills, 217. if;i: treasury notes, 218. , .. bank bills and notes, 218. ■;,. directions, 219. m.:; . forging certificates of quarantine, 220. directions, 220. Fortune tellers., see Bridewell, &c. 75, and Vagrants, 567. Frauds see Cheat, 85. FREESTONE, inspection of, 220. G. '• r- *• ■ GAMING. Gaming tables to be removed or broken down, and persons keeping them to give security for good behaviour, 221. GAOLS AND GAOLERS. The sheriff to have the custody and keeping of gaols, 221. who are to be confined therein and in what manner, 221 .,, appropriating part of a gaol as a work house, 222. who may be committed to such work house, 222. building and repairing gaols, 222. selling or using spirituous liquors in gaols, 222. directions, 223. Gates on private ways, see Highways, 235. .;' Good Behaviour^ see Surety, &.c. 531. ,; GRAIN, measurers of, to be appointed, and standard weiijhi thereof established, 224. ; inspection and measurement of grain, 224. ■■' hot to be delivered from any vessel without admeasure mem, 225. measurers to attend only one vessel at a time, 225. fees of measurers, 225. directions, 225. -^.t, , , tolls at grist mills established, and regidalions concern ing grinding of grain, 226. ..,,,., J,, directions, 228, .. , . ir r ;*,i : ui adineasnre- [ions cor.ccni- INDEX. '.Ti i ■ ^^h Grand Larceny^ see Larceny, 280. */-^; '•- (iriNt JMills, SCO Gniin, 22(3. ..^tstSV- (jiUAGEIlS, liovv to bu appointed, llieir duly and f«e3, 229. diieclions, 229. ... Guide Posts, see Mile Posts, 319. "■■ '"^ " • ' GUNS, (iring of, in any towns, or snbuib:> thereof, prohib- ited, 230. ' rv .'''J^''' ■ '^ ' ■'■^'''- %.■ Mu- ll. :)1 .■,S:.l llawken, see Pedlars, o43. ^•' ' '* l Health Wardens, see Contngious Diseases, lOI).' Hearsay, see Evidence, 174. Herrings Smoked, see Fish, &c. 200. " ' HIDES, cutting or injuring of, by butchers, 231 inspection and niarknig o( hides, 231. High Treason, see Treason, 553. Highwayman, see Robbery, 4IG. IliGliVVAYS, Injnring or Obstructing of , 232 altering illegally, or encroaching on, 233. side paths, 233. trailing lumber on highways, 233. cutting down trees on the sides of highways, near to any river, lake, &c. prohibited, 2.34. regulations concerning injuring or encroaching on streets &.C. in Halifax and certain other towns, 234. gales and bars on private ways, 235. directions, 23G. • ■•• ■''' • Labour on Highicays, 230. who are liable to labour and furnish carts, &c. 236. summoning persons to work, &c., 237. reducing lal)our, 237. ' '' ' jjersons above sixty years to fnrnish carts, &c. 237. surveyors not to alter roads without consent of two Justices, 237. clearing snow from roads, 237. labour on roads on islands, 233. >■• ■ ■'.'*'»• \ recovery of fines, 238. i , • • Sessions may grant permission to individuals to work •H I , ^-i on certain roads, 238. note, and directions, 238. Expenditure of Public Money for repair of Roads and Bridges, 239. Forms, 240. " • -■ • ' HOMICIDE, justifiable, 241. '; •;■ '• ' ■'' '; ■ *' ■■'- by misadventure, 241. — , i • ■' c -u . vr:!;- - 609 " i t .' 1 I i ii- l! 1 i ' t' itfl; (JIO INDEX. HOMICIDE, (Continued.) ,., * » :, self defence, 242. ,^s: t , '. ,"? • • .;>•,, manslaughter, 242. ,.i. ., ;' , v. , , i:*;, murder, 242. ' ' ■ ^* ' ^ ■ - •■ provincial statute concerning killing, maiming, and stab- bing, 243. ,: ..I . , -,., , . Horses., see Cattle, 83. ,: .i i House Breaking, see Burglary, 77. Home Btirning, see Burning, 80. House of Correclion, see Bridewell, &c. 75, and Vagrants, 567. HUE AND CRY, wliat it is, and how to be made after fe- lons, 244. HUSBAND AND WIFE, how far they may give evidence for or against each other, see Evidence, 105, Surety, &c., and Wife, 58G. Hydrophobia, see Dogs, &c. 136. r I. . V. , Idle and Disorderly Persons, see Vagrants, &.c. 507. Imprisonment, see Arrest, 13, Commitment, 93. INCEST, statute for punishment of it, 245. INDIANS, statute prohibiting sale of spirituous liquors to In- dians, 246. two justices may order their instruction at schools re- ceiving allowance from the Province, 246. INDICTMENT, what offences are, and what are not indict- able, 247. Indorsing a Warrant '\n another county, see Warrant, 581. INFANTS, how far answerable for crimes, 249. their civil incapacities, 249. ,, , : their civil capacities, 250. Injidels, oaths of, see Evidence, 166, and Oaths, 341. INFORMATION. Directions as to the course of proceed- ings in prosecutions by information before justices, 251 . Forms of Information in various cases, 253 to 256. Inns and Innkeepers, see Taverns, 547. Insane Persons, see Lunatics, 312. --.. . ... INSOLVENT DEBTORS. Discharging them from impri- sonment on executions, upon judgments by justi- ces, 256. note referring to statutes, 256. statute for their discharge from airett on mesne pro- cess, 257. ..M.- ., ;.- notice to creditors, 257. examination of the debtor, and form of his oath, J57. remanding to prison upon cause shewn, 259. INDEX. INSOLVENT DEBTORS, (Contmued.) assigning property, 259. •' refusing discharge, 259. .< v 61L M "v«;,.j>'.; [■.i^ J. s, 341. .1 ■■ '" e of procecd- jusiices, 251. 53 to 250. n from iinpri- II. lenis by jus^ii- III. i -rty iiiesnc juo- lis oath, 257. 1 250. 1 Journeymen, combinations among them to raise wages, &,(.*., see Conspiracy, 104. labouring on highways, see Highways, 236. Jury, see Summary Trials, 491. JUSTICES OF THE PEACE, Their authority in mak- ing and certifying records of acts done by or be- fore them, 259. cannot appoint a deputy, 2G0. . Form of their commission, 2C0. quali6cation, 263. where one justice may act, two may, 2G3. of the King's demise, 263. how far a justice is limited to his own county, 264. indorsing a warrant issued in another county, 264. powers as to keeping the peace, &c., 265. to compel the giving of sureties, in cases of threats, 266. •' time for which justice may bind to keep the peace, 266, to what places he may commit offenders, 266. has authority in cases of libel, 266. Powers assigned to Justices in Sessions, 266. i I in felonies, 266. trespasses, 267. . ,1 forestallings, regralings, &c., 267. -^ extortions, 267. other crimes and offences, by statutes, 268. riots, routs, and unlawful assemblies, 268. weights and measures, 268. misbehaviour of officers of the court, 268. inspecting and proceeding upon indictments, 268. making and continuing process, 269. hearing and determining on offences, 269. awarding punishments, 269. .;;).•. OcUhs oj Office to be taken by Justices, 270. y J Some general directions relating to Justices, justice not to act in his own cause, 271. assaulting or abusing a justice, 271. where justices should be together, when aclitig jointly, 271. justice refusing to act, 272. ;7 ii making records of acts done, 272. V . i ; /i / I I itf ! I I'l u ! f ■' .* ilii: :i: ii (512 INDEX. IV. v.! JUSTICES OF THK PEACE, (CoiUinued.) i'^rt'/ in what cases u jusiicc sliall issue a wunaitt, and where a t^iimmoiis, 272. jusiices failing to attend the sessions, without siif- firient excuse, shall bo repoiicd, and removed from ofiice, 2713. ' '. sliall attend the tenus of the supremo court in thw county, 273. rannot hoUl a tavern licence, 273. ^i: ■ i Their indemnity and Protection in the right extcn- lion of their Office, and their Punishment for the omission of it. wjjen jusiico may commit for abuse, 273. Forms of such commitment, 274. Jojt .< where a justice is, and wiiere he is not punishaMi? for ofticial nets, 275. action ai;ainsi liim, must be in the county where tli« act complained of was conm)iited, 27G. no such action to be brought against him, until a month's previous notice has been given, 27G. may tender amends in such action, or pay n)oncy into court, 27(5,' !: m .r^ mH')' :•;' action must be commenced within six months aftui the act complained of was done, 277. in actions against them, for any of their proceed- ings under British or provincial statutes, tiiay give such proceedings in evidence, under any brief plea, 277. action against a justice for a malicious convic- tion, 277. their punishment for misbehaviour, 277. justice committing the first assaidl, 27rt. acts of a justice who has not duly (pialified, arc not absolutely void, 278. ■• .'*' '•>! . ''»: L. .;•'.! li".' Labourers, soe llighwavs, 236, and Servants, 447. LANDLORD AND TENANT. Tenants overholding, may V *' be arrested by warrant from a justice, and boumi to appear and answer at the supreme court, 278. warning to quit to be given to tenants, 279. the same warning for houses and lands, 279. Forms in the case of over-holding, 279. directions, 280. . . - • 'I, LARCENY. v-..^!iv.r.,>'f.ji»!U)mn L Of Grand Larceny. '.'• INDKX. 6IJ court 111 tlut 5 ri{][hi extcn- cious convic- alilied, arc not I.AUCKNY, {Continued.) ...,/< , .■ .^A V. r 5'.t.\ what constiiutC) n felonious and fraudiilont taking il ; of goods, 280 . . ,, „; , j taking on a claim of rifi;hl, no felony, i2Sl. .!i i .' . ' '.' whero a taking of goods, only amounts to a troti- pass. 2S\. ■fd^if•^)•^^ I ■il tUi(i|' .V.::, 1 i-y finding goods, 282. actual taking, requisite, 2Po. possession of the owner, 2S.i. .^ where goods arc only in charge of anoduir, "283. taking hy a carrier, 284. i embezzlement by servants, 284. where goods have been delivered to ihe prisoner, il 285. no J' l'^ 'u: r<\-iz . goods pledged, 28C. V'here goods have been obtained by fraud, 2S(>. where they have been lawfully delivered, 287. felonious carrying away of goods, 287. by whose taking larceny maj/, and by whose il cannot be committed, 287. ,. taking by a wife, 288. of what properly larceny may be coinmittcd, 288. stealing goods of a person unknown, 289. provincial act concerning larceny, 289. Of Petit Larceny. stealing under the value of 20 shillings, 280. when bailable, 289. i;;,/ ,vj,'iri-,v Larceny from the Person,, 290. -t > !! u' IV. Larceny from the House, 290. V. Larceny and Embezzlement from Lodgings, 291. VI. Larceny of Bills, JSotes, and oi\cr Writings for payment oj Money, 2^1. Punishments of Grand and Petit Larceny, 292. Receiving Stolen Goods, 293. Taking a Reward to help to Stolen Goods, 293. : ,: ,_. . compounding a Larceny, 294. Forms of Information and Warrant for Larceny, 294. Leather, see Hides, 231. ...... i,. ! m..,. Letters Counterfeit, «Si*c. see Cheat, 86. LETTERS THREATENING, sending threatening letter, demanding money, &,c., made felony by provincial statute, 295. LIBEL, what it is, 296. if how punished, 296. power and duty of justices, in cases of libel, 296. III. TIL VIII. IX. 1 *'\ ' ' I ir> i GU INDEX. Licensed Houses, see Spirituous Liquors, 461, and Taverns, &c. 545. LIGHT HOuisES. Collectors of fight duties, may call to their aid, magistrates, constables, and other peace -^ ' ' ■ ' officers, for carrying into effect the laws relating to light houses, 297. LIME, exposed to sale, shall be measured and inspected by the proper officer, 297. penalties and forfeitures for lime not of sufficient quali- ty, or for deficiency in casks thereof, 297. allowance for inspection, 297. Lines of Totonships^ see Township Lines, 552. LORD'S DAY. Goods, &c. not to be sold or offered for sale on the Lord's day, (except milk and fresh 6sh, within certain hours,) 298. ' working, or practising sports or games, &c. thereon, 299. resorting to taverns, &c. 299. • '.'iv-ui. - church wardens and constables preventing or suppress- ing disorders in time of divine sarvice, 299. attending public worship, 300. conviction and punishment for offences, 300. reading the statute publicly, 300. opening shops or selling goods, &c. 300. resorting to taverns, &c., and idling, and drinking spi- rituous liquors, not to be permitted by retailers, SOI . serving process on the Lord's day, 301. bail cannot take their principal on that day, 30] . forms and directions, 301. LUMBER. vwjynA I. Survey of Lumoer. dimensions and qualities of different kinds of tim- - V ber and lumber, prescribed, and regulations concerning the survey thereof, 307. ■ ■■''- II. Bringing Lumber, S^c. down Rivers. regulations concerning the same, may be made in the sessions, 311. LUNATICS, may be taken by a warrant from justices, and confined, or sent to the last place of settlement, and be there secured, 312. ' ■ ■ Form of Warrant and of Order for obtaining payment of expenses concerning Lunatics, 313. M. JMadness, see Dogs, 136, and Lunatics, 312. 7/ .' j7 '•• INDEX. MAIM, what it is at common law, i)\4. provincial statute concerning it, 314. V 11^ malicious intention, and lying in wait, requisite to be shewn in cases upon the statute, 31.'). justification of, 315. directions, 315. MALICIOUS INJURIES, I. To Cattle, 315. ' ' II. To Real or Personal Property, 310. ' ■ ' directions, 317. i tManner. Being taken with the manner, what, see Bail, 30. Mansion House, what, see Burglary, 78. Manslatighter, see Homicide, 242. MARRIAGE, provincial act concerning polygamy, incest, and adultery, 317. registry of marriages, 318. MaUer, see Servants, 441. ' Measures, see Weights and Measures, 583. MILE POSTS, stiitute prescribing punishment, for defacing or destroying them, 319. iro - -. MILITIA. 1. Enrolment of , 320. 2. Arms, 320. - -. ■ 3. Training, 322. - - 4. Watching and Warding, 323. "i -^ 5. Refusing Appointments, 323. G. Clerks of Companies and Battalions, 324. 7. Commitment Jor improper behaviour, 324. i 8. Certificates of Surgeons, ^c. 324. 9. Reports of Officers, 325. 10. Boards of Officers, 325. II. Actual Service, 325. 12. Recovery of Fines, 32G. Note, concerning several expired enactments, relating to the militia, 326. musters for drill, &c. dispensed with, 327. returns respecting companies and battalions, 327. in case of war or other emergencies, certain expired enactments may be brought into operation, 327. how fines concerning the militia shall be recovered and apphed, 328. "^ ■■■■•■■ directions, 328. " ' Mills, see Grain, 226. Millers, see Grain, 226. Mines, see Coals and Coal Mines, 91. Minors, sec Infants, 249. 7S GI5 ii| ti i i \ ;ii ^ i 016 INDEX. JMisailventure^ see Honiicitle, '241- .m^ MISDEMEANOR, uIim, ,m. jyiittimua, see Coinmitinem, 1)0. ^'Murder, see Ilomiciile, 242, Uaslanls, ;')«). N. JSi'avigatiun, sue Ships, 457, and Wreck, 589. ' . NAVY. 'V .'•' 1. Deserters from, ii2\). 2. Selling or Receiving Slop Clothes, S:]0. o, s.. , JS'ets, see Fisheries, 207 — 8. , .• • i J\*ight, when it commences, see Burglary, 78. ^~> nrrestins; in the night, see Arrest, IG. / i' NUISANCE.^ - • ^ -u I. »^f Common Law. what acts or things amount to a nuisance, i,il. how punisheii, 3ol. i how it u)ay be removed, 3.^1. II. Ihj Statutes. I. .JSTiiisances in Rivers, 331. 'i. Miisances concerning Health, 332. sessions to make regulations, 3.'J2. . removal of nuisances, 333. i:'specting and examining as to nuisances, 333. jiroseculioris for penalties on the 3 W. 4, c. 40, 333 charges of removing nuisances, 334. sessions to appoint health inspectors, 334. special court formed, to have power concernin|^ nuisances, 334. powers and duties of health inspectors, S34. examining drains, docks, and other places, 334. constructing drains, privies, &c. 335. cleansing and repairing privies, 335. regulations concerning opening privies, 33G. foul or infectious substances, not to be placed in streets and certain oilier places, 336. r ' removal of nuisances from streets, &c., 330. removing nuisances from houses, &c. 330. selling, or having unwholesome provisions, 337. regulations as to the removal of nuisances, 337. entering houses and other places, to examine as to nuisances, 337. punishment for violation of enactments concerning nuisances, 338. i ' ' - . , limitation of penalties, and prosecutions for the same, 33S. IN mix. 617 NUISANCE, (cuHtinued.) ' " " ''^ wlio sliull (troijeciite i'oi' poiiuliiea, &c UJ8. upplicatinii nf pcriultics, 3iiU. '- ^' v,k ' appeals iVoiii decision;:) concerning nuisances, 339- niudc of staling ufFuncc, in indictmcntii for nui- sances, 'o3\). Directions, 3J1). •i"^«^ '' ■" ' ' >#. l! 1 1 !!' OATIliS. Power of justices to adniiiiisler them, .'J 10. nfiinnation of (|uakers, allowed, instead of their oath, except in criminal cases, 341. oath to be administered according to the ceremonies of the |)ariy's religion, 341. Form of the Oath of Allegiance, 341. ' OJj'set^ see Summary Trials, 525. OflPHANS, poor, may he bound out as apprentices, by overseers of poor, will) consent of two justices, 34i. ' . • . !i . ( • . ;'i ■ t'V' 9, ■- -.■'■'■• Parents and Children^ to maintain each other, sec Poor, 358. PARTITION. IIow expences of executing writs of parti- tion of lands, shall be assessed and recovered, 342. Note on the subject, 343. Paupers, see Poor, 34G. ,, . . Peace, see Surety of Peace, 531. ' ! ■ . PEDLARS, must give bond, take out license, and pay cer- tain duties, 343. penalty and forfeiture of goods, for selling without li- cense, 344. justices, sheriffs, and constables, enjoined to put iu execution the law concerning pedlars, 344. exceptions as to certain persons and articles, 344. money arising under the act relating to pedlars, to be applied in the same manner as money from licen- ces for sale of spirituous licpiors, 344. PERJURY, by the common law, 344. by the provincial statute, 32 G. 2, c. 20, sec. 9. 1 V. 30, 344. siibornaiion of, by the same statute, 345. |)unishment of perjury, and subornation of, 345. party charged may be bound over to the sessions, by one justice, 345. Pelil Larcenv, see Larceny, 2S1>. ' ' ! i w m . (il8 INDEX. Pickpocket, sou Larceny Iroin ilic Person, 2*^0. Pillory, see Incest, 245, and Perjury, J45. Plague, see Contac;ious Diseases, 107. Pleadings, see Justices of tlie Peace, 277. Polygamy, see Marriage, 317. POOR. *(> I I. II. 1 Support of the Poor. general statute of the 4 G. 4, c. G. J V. I 19, respecting the support of the poor, 34G. voting money at pubhc meetings, 340. assessment and collection of rates, 347. appeals against rates, 347. appointment and duty of overseers, 347. examination of overseers' accounts, 348. fines on overseers for neglect of duty, 348. amercements by the sessions, 348. proceedings, on assessors refusing to serve, 349. collectors refusing to serve, 349. fines on collectors for neglect of duty, 349. recovering from a pauper's estate, expences of his relief, 350. levying for rates, pending an appeal, 3.50. reimbursement on appeal, 350. what number of assessors may be appointed, 350. assessors shall assess themselves, 351. Of Overseers. their appointment in the sessions, 351. may be indicted and punished for neglect of pro- viding for the poor, and other neglects of duty, 351. no expences to be allowed them beyond what are barely necessary, 351. ;. . salary not allowable, 352. how to be reimbursed money advanced bv them, 352. Of the Poor Rale. Upon lohom the rate may be made. Occupiers only, are in general to be charged, 3.52. Inhabitants only are to be rated, and only for visible property in the place where they dwell, 3.52. corporate bodies to be rated, 352. schoohuaster to be rated for premises occupied by him, belonging to the school, 353. fjcrson residing as servant of the crown, in build- ings used for public purpoties only, not to be rated tor them, oo3. INDICX. 61!) M ' POOR, (support of ^ continued.) * 2. IVhiit property is rateable. stock in trndo is rnieiible, ti5J. ' - • ' iiioiiey at interest or in the public funds, — sulnrioii, —the profits of an attorney, and rent, arc not rntcablu to the poor, 'Xu\. lime works and slate works are rateable, J54. I'arnier may be rated for his dairy of cows, let to a dairyman, or the dairyman may be rated for the same, or)4. the protits of mineral or other springs of water are rateable, 354. docks are rateable, 354. 3. Where property is rateable. real property must be assessed where it is situa- ted, 354. the person in possession of personal properly nuisi be rated for it, in the place of which ho is uri inhabitant, .^54 . , vessels must bo rated in the place where they are locally and visibly domiciled, although out of it at the time of making the rate, 354. 4. OJ the proportion in which the Rate shall be made. lands and houses may be rated differently, 354. property mirst be rated according to its present value, 354. . a person may be rated for money, proved to be in his possession, 354. < I ' rate must be equally made on all classes of persons, 355. rent not a certain criterion of value by which to ap- portion a rate. 5. t^lppeal ; and the power of the Sessions thereupon. appeal to be to the next practicable sessions after bein^ aggrieved, 355. Qm. Whether notice of appeal is requisite .•' 355. which party shall begin, on the hearing of an ap- peal, 355. ' *'■ • remarks as to amending, or setting aside a rate, 355. 6. Of distraining for the Poor Rate. party to be summoned in order to his being heard, before issuing warrant of distress, 357. action of debt will not lie for a poor rale, 358. no remedy against defaulter but by distraining his goods, 358. III. Of Relief f)2() INDEX. POOR, (support oj\ continued.) 1 o. Of tiie liabiUty of parents and children to main- tain each other. piuviiicinl statute oil the subject, 10 G. .J, (-. I, § 5. IV. 158, 358. extends to iiatuial relations only, 358. U'iiai persons me not bound to inaitiiniu certain others, 358. reputed grandfather, or grandmother not bound to maintain a bustard, 359. Of the Order of JVJaintenance of Parents and Children. what particulars must be set fortli iu the order, 351). order can only be made in the sessions, and in the county vvliere the person oir whom it is made dwells, 351). Of persons deserting their families. section on the subject, in the statute, 10 li. 3, c. 1, 359. certain particulars which must be stated in the order of the justices, 3G0. [ For punishment oi those who desert their wives and children, see title, — Vagrants.] Of relief in general^ and of the ordering of the Poor. section of the statute 10 G. 3, c. 1. 1 V. 157, declaring what persons shall be entitled to relief and where, 360. remarks as to who shall be relieved, ami who have the right of judging '.nd ordering as to the relief and management of the poor, 360, overseer indictable if he do not provide for lliu poor, 361. sessions cannot order overseers to pay bills of a siugeon or nurse, 361. foreigners to be relieved where found, 361. Forms of Summons, Warrant, and Order, o*>J. 11. Settlement of the Poor. what per.-sons cannot gain a settlement, 364. statute 10 G!. 3, c. 1, 1 V. 157, declaring who shall have a settlement in a township, and be entitled to relief, 364. examination as to settlement of a pauper, and ol removals, 365. justices may bind out beggars or strollerf:, 36-), children shall be supported where their deceased parent? gained a scltlement, 365. w INDEX. iy2{ ildren to muiii- 10 G. ii, c. I, !58. laiiitniu I't'itain I' not bound to ^ Parents and the Older, 359, 3ssions, and in oir whom il U s. ilute, 10 ii. o, i stated in the sert their wives Its.] ordering of the 1. IV. 157, intiiled to relief ved, and who ering as to the )or, 3G0. trovide lor llie pay bills of a ind, 301. d Order, 'S*^2. ent, 304. declaring wlio nship, and be pauper, and nl follern, 305. their deceased POOIt, {settlement of, continued.) parties grieved may appeal to next sessions, ;J00. I. Settlement by Birtk. how birth may be proved, 300. 1 . Bastards. settlement of bastards, where born, as a general rule, 300. Exceptions — mother coming into a place by collision — birth after order, but be- fore actual removal, — the same pending appeal, on which order of removal is reversed, — bast- ard born in the house of correction or jail, — born while the mother is removing under an order, 307. bastard not to be removed whilst a nurse child, except when deserted by the mother — how to be maintained whilst a nurse child, 307. parents may prove they never were married, 307. 2. Of Legitimate Children. father's settlement is that of legitimate children, when it can be found out ; otherwise, prima facie, the place of their bir'' 307. settlement by birth of legitimate children, 307. child born in one parish, whose mother dies in another, while passing to a third, shall be set- tled where born, 307. proof as to legitimacy of children, 307. parents may be examined on this point and their declnration.s concerning it will be evidence after their death, 307. II. Settlement by Apprenticeship. remarks as to this kind of settlement being gained by a service not under indentures, 308. service in the case of infant masters and appren- tices, 308. condition of the master immaterial, 308. remarks as to the time and place of service, 308. where the residence shall be held to be, 308. cases where settlement shall be in the place of ser- vice, 308. service with a second or third master, 308. cancelling indentures, 309. evidence may be given of contents of indou!ures )roved to be lost, 309. III. Hi Settlement enactment as to retuarks thereon nns and this kind o , 370. Service. ttlcment. J 309. INDEX. POOR, (settlement oJ\ continued.) ' ' points determined as lo parties — hiring, — and ser- vice, 370. concerning ilie contract of hiring, 370. service without hiring, does not gain a settlement, 371. service by hiring, with stipulations as to work, 371. hiring for eleven months gains no settlement, 371. hiring with leave of absence, does not gain a set- tlement, 371. hiring, with stipulations as to working hours, wa- ges, &c. 371. retrospective hiring, 372. service under several hirings, 372. absence or illness of servant, 372. dissolution of contract, 372. distinction between a dispensation with the service and a dissolution of the contract, 373. residence of the servant, 373. note, as to the time of the expiration of the ser- vice, preceding the application for relief, 373. IV. Settlement by Serving an Office. need not be a township office, but must be a pub- lic annual office in a township, 373. a situation by contract with parish officers, not a public office, 373. office must be executed for one whole year, at one time, 373. V. Settlement by paying Taxes. party rated to illegal rate, and paying, gains a set- tlement, 373. where the name is added to a rate after payment, no settlement is gained, 373. person paying must be the one rated., 374. rate must be produced as evidence of being char- ged, 374. rate paid by tenant, though refunded by landlord, gains a settlement, 374. church rate a public tax, 374. rate too narrowly made, sufficient to gain a settle- ment, 374. \'l. Settlement by Parentage^ and iierein of Emanci- pation. enactment for support of children in their deceased parent's place of settlement, 374. g, — and sei- 0. a settlement, as to work, lement, 371. ot gain a set- ig hours, wa- th the service 373. )n of the ser- r relief, 373. nust be a pub- 73. fficers, not a He year, at one g, gains a set- ifter payment, I, 374. ^f being char- by landlord, gain a settlc- qf Emanci- Iheir deceas(Ml INDEX. POOR, (settlement oJ\ continued.) father's last settlement is that of the children, until they acquire one of their own, 374. children of vagrants, 374. child may gain a settlement of its own after seven years of age, 374. proof as to child's settlement, 374. posthumous children, 374. father's derivative settlement. 374. father running away, 375. father a foreigner, 375. where children shall have the mother's setllement, 375. emancipation of children, 375. VII. Settlement by Marriage. a wife follows her husband's settlement, 375. wife can gain no settlement distinct from her hus- band, 375. settlement of a woman where her husband dies, runs away, or is absent from the country, 375. woman does not lose her maiden settlement, by marrying a man who has none, 375. a settlement lasts during life, or until a new one is gained, 375. proof of marriage as to settlement thereby, 376. mother may give evidence to bastardize her issue, 376. VIII. Of Removah. I . Who may and who may not be removed. person not removeable before applying for relief and being actually chargeable, 376. no removal to a township not having overseers, 376. a wife cannot be removed from her husband, but if not residing with him, may be removed to his last settlement, 376. wife and children of a foreigner not to be removed from him to the wifo's settlement, 376. wife may be removed horn her husband who has no settlement, if they co.isent, 376. servant cannot be removed I'om his master, 377. 2. Declaration and Examination lij to place of Settle- ment. enactment on the subject. 377. manner of taking and certifying declaration of pau- per, 377. inadmissible evidence as to selilomcnt, .377. 79 6^3 li i* h H ,; if' il tiSA INDEX. 1*0011, (rtvioval oj\ continued.) 3. JVarrant for Revwval. remarks on theenacti^ient concerning removal, '176. warrant to be executed by overseers of the remov- ing township, 378. justices to be together at time of hearing, 378. what particulars must be slated in the warrant, 378. examination must be by the same justices who re- moved, 378. pauper must be heard before being removed, 378. 4. Jippeal against the order of Removal. pauper may appeal as well as the township, 379. appeal must be to the next sessions after removal, 379. note, as to notice of appeal being requisite, 379. legal efi'ects of an order of removal, 379. sessions cannot make an original order, 379. statute concerning expenses of relief, and costs o!" removal, 379. Forms of Examinations and Warrant of Removal, 380. Posse Comilatvs^ see Arrest, 17. POUNDS, statute concerning the building and repairing ot them, 3S2. Prison, see Gaols, 221. Process, see Summons, 529, and Warrant, 575. Profaneness, see Blasphemy, 71. Promissory jVotes, see Bills and Notes, 70. PUBLIC GROUNDS. Statute concerning encroachments on public roads, landings, and grounds, and for ap- pointment of supervisors thereof, 233. Pumps, see Wells and Pumps, 585. Quakers, see Oaths, 341 Q. R. RAPE. What it is, 385. may be committed on a strumpet, 385. consent afterwards no excuse, 385. party ravished may give evidence, 385. all present and assisting, are principal offenders, 385. provincial statute concerning the oft'ence, 385. directions, 386. emoval, ^378. )f the remov- ing, 378. warrant, 37B. lices who re- jnioved, 378. ,'nship, 379. kfter removal, Oi :]iiisite, 379. er, 379. r, and costs of It of Removal, id repairing ol in ^roachmeiits fds, and for ap- !3. INDEX. RATES, (County.) IfFenders, 385. I, 38.0. - I. Purposes for tchicU rates may be made and levied. clause of tiic statute on the suhject, 386. II. Appointing Assessors and Collectors, 388. III. Making the tUssessment, and herein of the persons and property liable to be rated. enactment on the subject, 388. who are, and who are not to be considered inha- bitants, for the purpose of being rated, 389. of proportioning the rate, 389. of the kinds of property liable to be rated, 390. exceptions as to hability lo the rate, 390. occupation of real property, 390. of the possession of property, real and personal, 391. how pnrty is to be rated, as to the locality of his property, 391. concerning rents, and as to profits of personal pro- perty, 391. of the rateability of stock in trade, 392. IV. Collection of Rates and Prosecutions for the same. enactments concerning the same, 392. remarks as to legal proceedings for recovery of rales, 393. summoning for non-payment, 393. direction' concerning prosecutions for rates, and agaii.si collectors, 394. V. Of Jlppeah. enactments on the subject, 395. appeal must be to the next sessions at which it can be lodged, 396. several parties may join in notice of appeal, 396. nature and form of notice, 396. proceedings on hearing appeals, 396. calling of special sessions, discretionary in justi- ces, 396. VI. Expenditure of the Money raised. enactments on the subject, 397. VII. Recovery of Penalties. enactment concerning the same, 398. directions respecting prosecutions, 398. VIII. Other Regulations concerning Cotinty Rales. compensation to collectors ar:d others, 399. witnesses, 399. actions for proceedings concerning rates, 309. removcjl of rales, &c. by certiorari, 399. Foi'nts of iummon? nnd warr;int of distress, 400. 625 \\''' I li I :>l 62^ INDEX. Receivers, see Larceny, 293, ' : RECOGNISANCE, what it is, 401. power of justices to take recognisances, 401. of the essential parts thereof, 40i. manner of taking the same, 402. - how to be certified, 402. of estreating a recognisance, 402. Forms of recognisances in several cases, 402. Forms of minutes thereof, 405. Record, see Justices of the Peace, 259. REGISTRY OP DEEDS, statute on the subject, 405. Registry of Marriages, Births, and Deaths ^ see Marriage, ol8. Replevin, see Trespasses, 559. ' RESCUE, what it is, 40G. rescuer incurs the same oflence as that of the party rescued, 406. Restitution of Stolen Goods, see Larceny, 293. REVENUE. 1. Tide Waiters. their compensation in cases of delay of lading and unlading, on entries for exportation, and how to be recovered, 407. 2. Smuggling. statute of 4 W. 4, c. 50, on the subject, 407. goods, &c. liable to forfeiture may be seized by a justice, and certain other officers, 407. entering houses, &c. to search for smuggled goods, 407. assaulting or obstructing officers, 408. prosecutions before justices, against smuggled goods, 408. appeal from decision of justices, 409. delivering up on security, property seized, 409. statute of the C W. 4, c. 8 — entering and exa- mining vessels and boats, 410. seizing goods, vessels, &c. by magistrates and other officers, 410. penalty for obstructing officers, 410. custody of goods and vessels seized, 411. actions against officers for acts done under the sta- tute, 411. certificate of probable cause, 411. RIDING DISORDERLY, statute 4 G.4. prohibiting it, 411. RIOT, rout, and unlawful assembly. I. Defmilion of them severally, 412. II, IIo\c, and by whom the same may be rcslraincd 401. 402. ct, 405. [aiiiage, ol8. of ilie party of lading ami ,lon, and how Dject, 407. be seized by s, 407. for smuggled ist smuggled seized, 409. ring and exa- ^gistraies and 411. Iiinder the sta- jilingit, 411 , rest ruined. iNi)i:x. UIOT, iSif. {coulinned.) ' fey u private person, U.'). by a sherift', constable, or other peac«; ofiit-LT, 4 i ;'>. by a justice or justices, 4 1 ."i. justice may record a riot in his view, 4 Hi. Ill VERS, breaking tjje banks of rivers, felony without bjnc- frt of clergy, by the & 7 U. iJ, c. 1, 4l(). directions, 41G. Roadsy see Highways, 232. ROBBERY, from the person, 410. what particulars are essential to consliuiK; the of- fence, 410 to 418. j)rovincial enactnient concerning it, 4 IS. justices of the peace cannot bail for it, 4 IS. directions, 418. Rockets, see Fireworks, 19.'). Rogues, Sfc, see Vagrants, 507. Roitt^ see Riot, 412. /turn, see Spirituous Licpiors, 401. S. Sabbath, see Lord's Day, 298. SALT, statutes concerning the measurement of it, 119. directions, 419. SCHOOLS, statute authorisiu&: the assessment and levviuu; of rates for the establishment and support of com- mon schools, 419. directions, 420. Sea Banks, see Dykes, 143. SEAMEN, (Merchant.) 1. Agreement. nature and particulars of it, 420. stipulation as to the sale of the vessel, 421. reservation as to means for recovery of wages, 422. Form of the agreement, 422. clause as to seamen entering the navy, 424. 2. Absence and Veserlion. seaman refusing to join the ship, after signing agreement, 424. forfeiture on absence from dutv, 424. forfeitures for desertion, 425. o. IVages. liability of sureties for seamen, 420. actions agdinst such sureties, 420. assignment or sale of wagcb, 427. ()27 n 'I I ill ' ii ■4! . t V)2S INDEX, SEAMEN, (conlinued.) stntiit(.' of iIkj 7 W. 4, c. 00, in uiiieii(Jiiient as to wai^os, 427. foireiiiufs by owner or njasler, on witljliolding; Wfii^es, 427. roooverini:; \vn;.;es in aclions before justices, 427. table of fees in such aetions, 429. suits for the recovery of wages under .£20, not to be brought in ihe courts of admiralty or eoni- nion pleas, 429. )iroviso as to coasting vessels, 430. directions, 430. 4. Sccrclinf^ Scuiucn. euactu)enl against secreting seamen, or detaiuiu;; their clothes, &lc.^ 430. T). Sickness of Seamen., 43]. (>. J)iscliargin<( and having Seamen abroad, 431. 7. PenaHics and Forf'eilures. (Miiuiinent, prescribing certain penalties for certain specified olfences, 432. manner of ascertaining forfeitures by a seaman, 432. |»enaliy for refusing a certificate to a seaman, on his discharge, 433. manner ol' recovering and applying penalties, &.c., 433. directions as to their recovery, 434. Forms of Complaints, Warrants, Order, &c. 434. directions, 438. Scfirch Warrant., see Wurrant, 575. Self Defence., see Homicide, 342. i ' : Self ,J\fnrder., sec Coroner, 12G. ' SERVANTS. I. tlppr entices. must be bound by deed, 441. I apprentice, whether infant or adult, must be parly to the deed, 441. master may be an infant, 441. where indenture is, or is not voidable bv an infant, on his coming of age, 441. master may correct apprentice for misbehaviour, 441. statutes for setting to work, or binding out, chil- dren of poor persons, or poor orphans, 442. assignment of apprentices, 442. IF. Hired Servants. retainer and service, 4 12. ;iiiliiient as to I witliliolditig; iistices, 427. r .£20, not lo ralty or coiii- or (ieluiiiiui, abroad^ 4JI. ties lor certain aseiiman,432. seaman, on hi^ ^)cnalties, &c., ei', &c. 434. mnst he party e bv an infant, misbehaviour, ing ont, cbil- ins, 442. INDKX. SERVANTS, {continued.) servRnl becoming sick or (lisablcd, 4 1;». chastising servant, 44o. ilcparling from service, 44.J. discharging servant, 443. leaving service without consent, a forfeiture of wages, 443. (hscharge of servant by a magistrate, 443. habihties of master for acts of servant, 44 I. III. RegtUations concernim^ Apprentices ami Hired Servants ; by certain Slutntcn. I. Contract oj Hiring. agreement for more than a month must be in writ- ing, and express the terms, 444. bow remainingtimeofserviccmay be assigned, 441. 'y), Desertion and JMishelutrinur. what satisfaction servant shall make for desertion or absence, 444. mode of obtaining it, 445. proceedings in cases of misbehaviour, 445, sessions to make regulations concerning refractory or rimaway servants, 445- 3. /// treatment of Servants. enactment on the subject, 44'). 4 . Harbouring and detaining Servants. penalty on masters of vessels for so doing, 44G. f). Incapacity of Servant in the Fi.<>liery. such servant, on proof, shall forfeit all wages, 44G. f). Selling Spirituous Liquors lo Servants. forfeiture for so doing, and wages not to be stop- ped, 446. all securities given by servant for spirituous liquors to be void, and party suing on account, &c. whereof part is for such, liquors, shall be non- suit, 447. punishment of retailers, for buying or receivitig clothes &c. from servants or labourers, 447. 7. Certificate of Service and Dischai'ge. enactments on the subject, 447. Forms of Complaints, Warrant, Order, Summons, Discharge, 448. SESSIONS, (Special.) What is a special session, 452. what number of .Justices shall form the same, 452. may be held to try for simple larcenies, &c. 453. notice as to holding special session*, 453. Set Off, see Summary Trials, 525. i)2i) i! Hi k I (m ' INDKX. SIlWDllS. OominissiomMs ofspworg to he appomtcd, 4r>.l. assossiDoiiis to Ijo made foiropaii" of dykes, &c., 4r)1. rocovery of dyke rates, 454. h'tlinu; IhikU lor pnyment of rates, 454. selling lands for same purpose, 454. persons, whose cattle ut pasture injure dyke, to repair the same, inider certain penalty, 454. mode of recovering assessment ahove n certain sum per acre, 455. oath of couunissioners nnd others shall he in writing, 455. clerks and collectors may he witnesses, 455. directions as to recovery of rates and penalties, 455. .SriKr'jP. Driving away sheep, clandestinely, 45G. keeping dogs accuslomed to kill or worry them, 450. directions, 45(5. SHERIFF. How and when appointed, 456. shall execute the warrant of a justice if directed to him, 457. shall attend the sessions, 457. is punishahle hy the sessions for defaces in executing their precepts, 457. is a conservator of the peace and may award process and take surety thereof, 457. Shipmasters^ see Seamen, 420. SHIPS. Punishments for destroying buoys, beacons, &c. or making fast to the same, 457-8. penalty for improperly unlading ballast, 458. Shipwreck^ see Wreck, 589. SHOOTING AT A PERSON, (Maliciously.) Statute mak- ing the offence a capital felony, 459. justices cannot let to bail, on a charge of this offence, 459. Shop Book^ how far evidence, see Evicionce, 1G2. Simp Breaking, see Burglary, 78. SLANDER, how far cognizable byjusticesof lire peace, 459. Smuggling, see Revenue, 407. SOLDIERS, Statute prohibiting the buying or receiving from soldiers, clothing, or certain other articles ; and imposing punishment for such offence, 4G0. directions as to prosecutions for the offence, 460. SPIRITUOUS LIQUORS. 1 . Licenses for the sale thereof. granting licenses in general sessions, 4G1. particulars to be contained in licenses, 462. granting licenses in special sessions, 462. T^ "1 f directed to fXDKX. SPIRITUOUS LIQUORS {continw.il . ) no gunoiiil license except in llalit'ax, 402. wine and beer license not to Ix; gninted, IfJJ. licenses mntis, 4G2. justice ol the peace not to hold a tavern license, 403. 2. SeUing Spiritvous Liquors icillwtit TAceuse, or after the. expiration thereof. enactnient against selling without license, lO.}, selling after the expiration thereof, 4G4. 3. //rmffins- out Signs. enactments on the subject, 404. 4. Selling in any other place than the one specified in the License. enactment prohibiting it, 405. r». Order in Licensed Houses, and when and to whoin Spirituous Liquors shall not be sold or fur- nished. retailers liable to prosecution and prescribed pun- ishment, for harbouring, &c. apprentices or bound servants, 40.'). forfeitures of master, for selling spirits to servant, 400. keeping order in licensed houses, 400. opening shops, or selling goods, (except bread or milk) on the Lord's day, prohibited under a penalty, 400. j)ersons licensed, to be prosecuted and punished in the sessions, for certain specified oflences, 407. certain enactments to be posted up in licensed housfcs and shops, 408. 0. Selling Goods in Taverns. enactment on the subject, 408. 7. Regulations as to Quantities in which SpiriiHona Liquors may be sold. not less than a quart to he sold under a shop li- cense, 40S. what quantities may be sold vvithoul a license, 409. any quantity, not exceeding a quart at one time, may be sold in a tavern, 400. l^. Prosecutions for Offences. statute of the 7 W. 4, c. 48, prescribing and giving forms, to be used in prosecutions undei the license acts, 40i>. mode of proceeding on trial of oflences, 470. ''80 &M \ IMAGE EVALUATION TEST TARGET (MT-3) /. ^ A ^ 1^ A^T^ 4^ ^ 1.0 1.1 itt IM 12.2 S; L£ 12.0 L25 mu 1 1.6 I ^ r A* '/ PhotDgraphic Sciences Corporation <^ 33 WIST MAIN STRHT «VnSTIR,N.Y. USM (716) •72-4503 4^ 6^ G32 INDEX. 9. 10. II. SPIRITUOUS LIQUORS {continued.) ' married women nnd servants, liable to penalties under the license acts, 470. Witnesses on Prosecutions. penalty on witnesses, and recovery thereof, for non-attendance agreeably to summons, 470. directions, 471. Jipplication of Penalties. enactment on the subject, 471. Obstructing Clerks of Licenses. punishment for this offence, 471. 12. Recovery of License Duties. how they shall be recovered, 472. 13. Suspending Licenses for violation of enactments. may be done by two justices, on complaint, sub- ject to appeal to the next general sessions, 472. 14. Selling Spirituous Liquors on Credit, and Securi- ties and Pledges for Payment of the same. retailers to have no remedy to recover above 5 shillings, for spirituous liquor sold on credit, 473. person receiving pawn or pledge for payment of spirituous liquors above 5 shillings, shall be compelled, by warrant, to restore the same, and be fined, 473. proviso as to travellers and boarders, 473. securities and demands, by and against servants and labourers, for spirituous liquors, to be void ; and party suing thereon, to be nonsuit, 474. wearing apparel, tools, &c. not to be bought, or taken in pawn from servants or labourers, on pain of imprisonment, 474. act to be posted up in houses of retailers, under a penalty, 474. directions as to prosecutions and penalties, 474. Forms of complaints, warrants, &c. with corres- ponding directions, 475 to 485. Squibs, see Fireworks, 195. Stabbing, see Homicide, 243. ' .' Stealing, see Larceny, 280. Stock in Trade, whether chargeable to the Poor, see Poor, 353, and Rates, 392. Submission to ,9rbitration, see Summary Trials, 521. Subpana to give evidence, see Witnesses, 587. Suicide, see Coroner, 126. INDEX. «33 ) penaliies liereof, for IS, 470. actments. plaint, sub- ssions, 472. and Securi- e same, fer above 5 1 on credit, payment of gs, shall be e the same, 473. Inst servants , to be void ; fsuit, 474. bought, or ibourers, on liiers, under ilties, 474. with corres- |r, see Poor, .521. SUMMARY TRIALS, before Justices, Introductory re- marks on the subject, 48G. I. The Several Statutes relating to the recovery of Debts before Justices of the Peace. statute concerning the direction and service of writs of summons, 487. in what cases justices shall not have jurisdic- tion, 487. general statute for the recovery of debts nut exceeding JE5, 488. summoning, hearing, and making up judgment, 488. execution, 488. proviso, as to arresting a party, 488. summons or capias to be served at least 3 days before the return, 489. clause prescribing forms of writs, 489. table of fees, 489. taking excessive fees, 489. Forms of summons, capias, and execution, 489. actions involving titles to land, not to be tried before justices, 490. statute 7 W, 4, c. 60, authorising two justices to try cases of debts between £o and £10, 491 summons or capias in such cases to be served six days before the return, 491. jury may be ordered on request, 491. juror not appearing, 491. trial and verdict, 491. challenging jurors, 492. discharging jury, 492. fees on trial by jury, 492. set off, 492. plaintiff to file statement of demand, or copy of instrument sued on, 493. statute 7 W. 4, c. 59, for the recovery of debts not exceeding jE5, before justices, in the Island of Cape Breton, 493. regulations concerning recovery of such debts, 494. Filing statement of demand. Concerning forms of writs. "^ Who shall serve writ. Service of the same. Arresting defendant. Certifying service of writ. 1. 2. 3. 4. 0. i 1 i "■■•(* (m INDEX. SUMMARY TRIALS, (continued.) 7. Before what justice, suit shall be. H. Time of hearing cause. D. Flow plaintiff's demand shall be proved. 1 0. What judgment when there is a set ofl'. 11. Tender. 12. When, and how, appeal shall be granted. 13. Bond and proceedings on appeal. 14. Return of execution. 15. Issuing execution. 16. Levying execution. 17. Selling goods taken on execution. 18. Constable not to purchase goods sold under execution. 19. Body to be taken on execution, for want of goods. 20. Party committed on execution, may have be- nefit of acts for relief of insolvent debtors. 21. Proceedings against constable, for failure of duty under execution, 494-7. table of fees, 498. taking excessive fees, 498. (explanation of terms used in the Act, 498. duration of Act, 498. forms of writs and appeal bond, 499. II. Of the persons teho may^ and those who may not sue or be sued ; and herein, of the Joinder of Parties. 1 . Who mayy and icho may not^ sue or be sued. in what cases an alien friend mav sue or be sued, 500. when and how idiots, lunatics, and deaf and dumb persons may sue or be sued, 501. husband and wife cannot sue each other, 501. when a married woman may, and when she may not sue or be sued alone, and when the huti- band alone may sue or be sued, 501. suing for the services of achild under 21 years, 501. in what cases infants shall be liable on their con- tracis, and when otherwise, 501. one partner cannot sue another, for money, goods. or services on account of the partnership, 502. 2. Of the Joinder of Parties, where joint parties must all join, or be joined in an action, 502. on joint and several contract, either one alone, oi all mav be sued, 502. INDEX. pir; SUMMARY TRIALS, {continued.) where ihc husband and w'rfc must join, oi* be join- ed in an action ; and wliere he alone may sue, or she may join, 502. III. Of the time limited by law for the recovery of Debts and establishing matters of defence. limitation of actions for debts by statute 32 G . 2, except in certain cases, 502. cases in which the statute of limitations, ap- plies, 503. of the exception respecting accounts between merciiants and tradesmen, 503. promise or acknowledgement within six years, revives the debt, 504. where acknowledgment by one of joint parties, will bind each and all, 504. 1 V . Order and manner of proceeding in instituting and conducting Summary Jictions. where only a summons can be issued, 505. Form of affidavit, where a capias is requir- ed, 505. directions, — concerning service of writ, — ar- rest and bailing, — return of writ, — hearing cause, — adjourning trial, — establishing de- mand and defence, — witnesses and dence, — judgment, — and appeal, 505. V. The several grounds of Jlction^ in general., and herein, of the Statute of Frauds. I . Of Promissory JSotes. description of such note, 507. statute making them negotiable, 508. what notes are negotiable, 508. .; notes which cannot be negociatcd, being payable on a contingency, 508. promissory note must be, payable for money only, 509. payable on an event certain, is good, 509. joint and several notes, 509. consideration of note, 509. note is good without the words " value receiv- ed." Also, without a subscribing witness, 500. time of payment not named, note is payable im- mediately, 509. name of maker, 509. ' place of payment, 509. concerning negotiabiliiy of notes, 509. evi- lS-c. I I •■ i *T h ': > (>3(> INDEX. SUMMARY TRIALS, {continued.) who may indorse, 510. note payable to bearer, trandferuble by mere de- livery, 510. notice of non-payment, 510. alteration of note or bill, 510. Evidence in action on note. For plaintiff — when production of note may be dispensed with, 510. how it shall be proved, 510. proof in explanation, 511. admission of one of joint makers, sufficient in action against the other, 511- proving by subscribing witness, or otherwise, 511. proof, where subscribing witness is dead, 511. admission of party to a note, 511. For defendant — cases in which a note shall be void, 512. verbal agreement to renew note, cannot be given in evidence, 512. rules concerning bills, apply, in general, to notes, when indorsed, 512. statute against usury, 512. 2. Orders or Inland Bills. what rules concerning notes equally govern as to bills, 512. nature of an order, or bill, 513. infant, party to a bill, 513. acceptance by one partner, binds all, 513. words " value received" not requisite, 513. omission of words *' or order", 513. usurious security does not extinguish legal debt, 5J3. bill for illegal consideration, void, 513. concerning acceptance, 513. notice of non-acceptance, 514. , notice of non-payment, 514. receiving part payment, 514. Evidence i/i Miction on Bill. proving hand- writing, 514. when acceptor is a witness, 514. when indorser is a witness, 514. o. Goods sold and delivered. selling goods on a credit, 514. check producing nothing, no discharge of de- mand for goods, 615. INDEX. GM lem as to SUMMARY TRIALS, {continued) delivering part of goods under a contract, oh'), goods obtained by fraud may be sued for as sold, &c. 515. price not named, value may be recovered, .')l *>. delivery of goods, 515. Evidence in ^ctiona^ Sfc. who cannot be a witness to prove delivery, r>ir». proving bad quality of goods, 516. party's book of accounts no evidence for him ; but may be against him, 516. Work and Services. where action for work need not be on special agreement, 516. work varying from original agreement, 516. master may recover for the work of apprentice, enticed away, or harboured, 517. recovery may be had, for work done for third person, at defendant's request, 517. concerning wages of a servant, when discharged without cause, and when for mishehaviour,517. work may be proved bad, or of little value, or of 4. none, 517. 5. Money paid and expended. surety may recover from principal, the money he paid for him, 517. so may bail, from their principal, 518. as to consent of party for whom money is paid, 518. contribution in the case of joint parties, 518. recovery in case of payment on illegal transac- tion, 518. G. Money had and received. action for, must be founded in equity, 518. money received without authority, 518. paid under a mistake, 518. recovered by a judgment, 519. paid voluntarily, 519. due in conscience, 519. paid without consideration, 519. obtained by compulsion, 519. paid, without delivery of thing contracted for, 519. paid to an agent, 519. paid on illegal transactions, 519. 7. .^Tecessaries furnished^ Freight^ Awards, and certain other grounds of action. ,ii K n UJS INDEX. SUMMARY TRIAI.S, {continued.) remarks as to anions hefure justices, to rf>cover for necessaries, 519. infant, when liable for necessaries, r)2(). no recovery from infant, for goods supplied liiiu to trade with, 520. when husband is liable, and when not, for neces- ries for wife, 520. necessaries for a ship, 521. when master is liable for medieal attendance on servant, 521. Freight — who shall be liable for it^ 521. Jlward — submission may be without writing, 521 . award conclusive upon parties, as to all matters enquired into, within the submission, 521. submission and award must both be proved, in an action to recover sum awarded, 521. when notice of award and demand of payment are requisite, 521. certain oilier cases in which actions may be r brought before justices, 521. H. Jlccount Stated. > proof in actions thereon, 522. infant cannot bind himself by account »tated, 522. recovery thereon, only where a debt actually ex- ists, and a precise sum is admitted, 522. y. Statute of Frauds. section thereof, relating to promise to answer for debt, default, or miscarriage of another, 522. concerning origiiral credit given, 522. verbal and collateral pi'omise, 523. promise, on forbearance of suit, against another, not binding, 523. promise, on condition of discontinuing a suit for other cause than a debt is binding, 523. verbal promise when under a legal obligation, is good, 524. consideration must be good, to make written pro- mise for another, binding, 524. agreements not to be performed within a year, 524. directions and remarks, 524. VI. The Defendant's Set-Off. enactments concerning settrng off mutual debts, 525. debt sued for, and the one set olT nuKt be due in the same right, 52(>. SIJ> SUM? Sunday Supcrvi SUUE' II — " > INDEX. (m I ipcover ilied liiiw Di' neces- dance on ting, 521. 11 matters , 521. troved, in >21. payment s may be ated, 522. dually ex- 522. answer for ther, 522. 3t another, a suit for )23. Iligation, is [ritten pro- lyear, .524. mutual Inst be ^w SUMMARY TRIAI.S, {continued) debt barred by tjiu statute of limitations cannot be set ott*, 52G. VII. Of Judf^menlSf and tke Proceedings allcndlng and follotcing the same^ and herein^ — Of JJppcah. directions as to making up judgment, taxing costs, and preserving memorandum of judgment, 520. table of feeo by 3 G. 4, c. 30, 520. how fees shall be taxed and allowed, 527. directions and remarks concerning an appeal, .')27. as to giving security, on appealing, 52S. taking out execution, 528. when execution may be issued after appeal, 52H. what goods, &c. shall not be taken on an execu- tion, 529. SUMMONS. Where proper, instead of a warrant, 529. party appearing on summons, must wait till justice is ready to hear cause, 530. personal service requisite, unless expressly dispensed with, 530. should be served at least 3 days before day for appear- ance, 530. Form of summons, 530. Sunday^ see Lord's Day, 29S. Supervisors^ see Public Grounds, 383. SURETY FOR THE PEACE and GOOD BEHAVIOUR. I . For tchat cause it shall be granted. authority and duty of justices on the subject, 531. shall be granted, upon just cause of fear of corporal hurt, or burning house, 531. also for threat of imprisonment, 531. demanded, merely through malice or v*^ .;vjon, may be denied, 532. . ,[ shall not be granted for fear of harm to servants or cattle, 532. , . may for threats of hurt to a wife or child, 532. shall be granted only for fear of present or future harm, 532. rioters, common breakers of the peace, and corlaiii other offenders, may be bound to the good be- haviour, 532. II. Jit tolwsc request^ and against whom it shall be *• granted. ■ • i >i who may demand it, 532. , , shall be granted to infant under 14 years, 533. not to or against insane person, at his own ro'piest, Mi ,; 010 INDKX SURETY FOR THE PEACE, kc. (continued.) agninst wlioiii, surely Hhall be grnnted, fiiUi. 111. In what JManner it shall be ffranled. proceedings, when pnrty is before the justice, and when absent, 533. cannot be enjoined under a penahy, ftSii. no commitment until surety required, and refnsod, 533. oath requisite, 533. affidavit on part of defendant, cannot be received, 533. of warrant to bring up the party, 533. supersedeas by finding sureties before arrest, 5.34. IV'. /low the Peace f^t^arrant shall be executed. who shall execute it, 534. breaking open doors to arrest, 534. before whom the party shall be carried, 534. supersedeas ou surely being given, 534. commitment on refusal to find sureties, 534. insufficient sureties, 534. sureties dying, 535. binding anew, on breach of recognisance, 53.>. V. Of the Recognisance of the Peace. form and force of recognisance, 535. for what time party may be bound, 535. forfeiting recognisance, 535. excuse for not appearing at sessions, 536. forfeiture by violence, 530. by unlawful assembly, threats, &c. 5.30. where actual violence is no forfeiture, 530. discharging recognisance, 536. continuing recognisance, 536. death of party demanding surety, 537. Forms of Complaint, Warrant, Commitment, Re- cognisance, and Discharge, 537. Suspicion of Felony^ see Arrest, 14, also Warrant, 579. SWEARING, (Profane.) Statute prescribing punishment for it, 541. Forms, on proceedings for the ofl^ence, 542. T. TAV I axes Tenan Theftl THIS Threa Timbe Tolls., TOWJ Tanners.^ see Hides, 231. TAVERNS. Preliminary remarks, 545. I. Certain Regulations concerning Taverns ; by seve- ral Statutes. accommodations in taverns, 540. INDEX. (Ul sticp, and tl lefiisoil, recpived, I. 534. 534. ?, 535. 6. &c. 5.%. 30. ment, Re- 579. )unishmein 2. s ; 6t/ sci'C- TAVKllNS, (continued.) sulliiig goods tlioi'ciii, pioiiibiled, wiili ccrtuin ex- ceptions, 54G. no magistrate to iiold a tavern license, 546. what quantity of spirituous liquor may be sold at one time, in a tavern, 54G. n. Other Matters relating to Inns and Taverns, in general. innkeupers bound to receive guests, and may hu prosecuted lor refusing, 547. guest or goods may be detained for diet, 547. detaining for pasturage, 547. liability of innkeeper for goods of guest, 547. gue^t stealing goods, for bis use in inn, 547. Taxes, see Poor, 347, and Rates, 380. Tenant, see Landlord and Tenant, 278. Theflbote, see Larceny, 294. THISTLES. Statute, directing regulations to be made to prevent their growth, 54S. Threatening Letters, see Letters Threatening, 295. Timber, see Lumber, 307. Tolls, sec Grain, 220. TOWN OFFICERS. Statute 5 G. 3, c. 1, directing the appointment of, — surveyors of bounds and overseers of poor^ — town clerk, — constables, — surveyors of highways, — fence viewers, — clerks of market, — pound keepers, — cullers and surveyors of fish, — surveyors of lumber, &c. — sealers of leather, — guagers of casks, — ond hogreaves, 549. fines for refusing to accept office or misbehaving, 549. fdling up vacant office. 550. note respecting appointment of surveyors of highways, 550. statute, 17 G. 3, c. 1, directin;; appointment of sur- veyors of hay, 550. .statute, 32 G. 3, c. 4, for appointment of measurers of corn, salt, coals, and lime, and inspectors of bricks ; and imposing fine for not accepting office, or for misbehaviour, 550. general statute of 51 G. 3, c. 24, directing appoint- ment of such number of town officers as may be deemed requisite, 551. [F r appointment of inspectors of smoked herrings, see title, — Fish ; and for appointment of Supervi- sors of Public Grounds, see title, — Public Grounds.] directions as to the recovery of fines on town officer?, 551. i)\,2 INDEX TOVVNSllll* LINES. Stntutc, direcling the running llicrc- of, and imposing fine on surveyors for nuglecl ul «luty, 5r)2. HCt for raising inonuy, to defrny expense of running such lines, 552. dirccliuns as to prosecutions for fines, 553. TREASON. Provincial enactment concerning the oflcnco, 55.J. how a justice shall proceed on a charge thereof, 553. hnn; words do not amount to treason, 554. no accessario',, but all are principals, 554. misprision of (reason, 554. TREASURERS, (County.) Enactment for appointing them, 554. Treasury J\otes. See Titles, — Forgery, 218, and Larceny, 21)1. 7Vct's, (destroying,) see Trespasses, 5G3. TRESPASSES. L Regulations concerning Fences, and of the recovery of Damages for Trespasses by Cattle. enactments of 3 G. 4, c. 32, 555. what fences shall be deemed lawful, 555. proceedings, where cattle break enclosures and do damage, 555. building and maintaining fences between adjoining lands, 556. fence need not be kept on wood, barren, or burnt land, 556. what rivers, &c. shall be considered a sufficient fence, 556. application to sessions from the judgment of a fence viewer, 5^6. where owner of cattle shall be liable for damat^c done byjhem, although fence is defective, 557. recovering damages not exceeding JE3, before one justice, 557. prosecutions to be within one year, 557. directions as to recovery of penalties, 557. n. Impounding Cattle, trespassing ; and herein of Rescue, Pound Breach, and Replevin. impounding cattle and proceedings thereon, 558. rescuing cattle in custody for trespass, 550. breaking pound, 559. replevying, and proceedings thereon, 550. Form of writ of replevin, 550. commitment for rescue, on failure of distress, o^)9. , directions as to prosecutions, 560. TR ling; tluTc- iicglucl ol o( running jc oflcncc, Dof, 553. uing ihcni, d Larceny, !/ic recovery urcs and do n adjoining n, or burnt sufTicicnt t of a fenco for damage jtive, 557. I before one 7. herein of |on, 558. >50. lo. [tress, 550. •lUt, IV TRKS1»ASSI<:S, (cnnlinuc.il.) lit. Regulalioni concerniuif Cattle f*ninj* nt lurffc. !>essi()n9 to uiaku regulations to prevent trespassea by cattle, 501). fnie for transgressing regulations, and bow to be recovered, 5G0. seizing and selling swine going at large, 5CI . directions, 5(51. ■ . Destroying Fencen., Wrt//s, c*Vc. Funislmient for injurins; or removing fences, iVc. 501. fine for injuring railing or wall on sides of |niblic square, bridge, &c. 561. V. Trespasses on Commons. enactment imposing penalty for the same, and bow to be recovered, 562. execution for such penally, 562. V I . Persons trespassing on enclosed ground. enactment imposing fine for such offence, and di- ' reeling mode of recovery, 562. Directions as to prosecutions, 663. VII. Trespasses by cutting dotcn, injuring^ or carrying away Trees. cutting down or injuring trees on private lands, 56.3. ; • cultrng down or injurmg ornamental trees on sides of public squares. Sic. 563. limitation of fines for cutting down or injuring trees ' '• on private lands, to be recovered before one justice, 564. directions as to recovery of fines, 564. VIII. Proceedings after Judgment against a Trespasser. all penalties recovered under Act of 3 CI. 4, c. 32, to be levied as in cases of debts, and by same form of execution, 565. Forms of Summons and Warrant, 565. V. VAGRANTS. I. Who shall be deemed Vagrants, Idle and Disorder- ly Persons .f S^c. statutes, directing that idle and disorderly persons, beggars, and certain others, shall be committed to house of correction, 567. soldiers, seamen of the navy, and certain others travelling without a pass, to be deemed idle and disorderly, 568. ()l^) ^!il.,i 4 (rU INDEX. VAGRANTS, (con//n««/.) ... - -...c other persons who shall be deemed such, and how to be punished, 5()8. II. Of their ^B^: prehension'^ Examination, and Punish- ment. apprehending them, and fine for neglecting to do so, when required, 569. searching lor deserters, and disorderly persons, apprehending and examining them, 569. binding out strolling beggars, and othe: disorderly persons, 570. examination as to place of settlement, 570. directions as to recovery of fines, 570. 111. jyeglccl of duly concerning Vagrants, Rescuing them, or *^issisting their Escape. enactment, prescribing punishment for such oflen- IV ces, 571. Punishment for lodging Vagrants. enactment prescribing it, 571. V. Charges of their Conveyance and Maintenance. constable or other person apprehending them, shall be rewarded out of the county treasury, 572. how they shall be maintained in work-house, 572. VI. Appeal. party aggrieved by any act of a justice, may appeal to the next sessions, 572. VII. Treble Costs. shall be allowed to person succeeding it; suit aguiiisl him, for any thing done under the act, 573. Forms of Order, Warrant, &c. with Directions, 573, ■ ' ■ ' W. ..V, . Wages, see Servants, 443. IVuggons, see Carriages, 81. WARRANT. I. Search Warrant. general search warrant, not lawful, 575. pot to be granted on a bare surmise, 575. when to be granted to search suspected places, 576. ■.-?: .'■;,••, ..'^ -l time of searching, 576. to whom warrant shall be directed, 576. entering house to search, the doors being oprn, .576. breaking open doors, admittance being refused, 576. ■v^'^ INDEX. UI5 11 4. WARRANT, (conlintted.) how goods found on scarcli, shall be ihsposed of, 576. ' ^' proceedings as to -f)arty in whose possession . • ' goods are found, 576. Forms of information and search warrant, 577. Warrant to ,^p})rehenil. ntanner of apprehending an ofTender, 578. 1 . For what causes it may be granted, and where a summons is most proper, 578. 2. What is to be done previously to granting it, 570. 3. How far it is grantable on suspicion, 570. The Form of the IVarrant, 570. place where made, to be stated, 570. to whom to be directed, 570. in whose name, and in what style to be made, 5S0. cause of granting it, to be specially stated there- in, 580. name of party to be arrested, must be mentioned in it, 580. day and year of making it, must be stated, 580. must be under hand and seal of the justice, 581. duration of warrant, 581. arrest may be, after the sessions next ensuing the date thereof, 581. Form of warrant, 581. Indorsement into another County. enactment directing it, 581. before whom party, taken on indorsed warrant, shall be carried, 582. Form of such indorsement, 582. WEIGHTS AND MEASURES. Statute, directing how standards thereof shall be established, 583. assaying them, by clerks of market, 583. penalty for selling by any, not marked, 583. inspecting them, 583. penally for selling by any, less than standard, 584. no goods, except hay, to be sold by steelyards, 584. clerks of market, every 3 months, to inspect beams, scales, weights, measures, and steelyards, and assay and stamp them, 584. appropriation of fines and forfeitures, 584. directions as to prosecutions for fines, 584. WELLS AND PUMPS. Statute concerning the raising of money for making and repairing them, and pre- scribing punishment for injuring them, 585. directions regarding prosecutions, 585. 5. '■■:%r. f *??l ' 046 INDEX. WIFE. Commuting crime in company with, or by coercion of her husband, 580. is hable for offences not capital, 586. . cannot commit felony in taking her husbaod's goods, 586. is punishable for a riot, trespass, or other wrong, 586. feiuale servant marrying, shall serve out her time, 587. may demand sureties of the peace against her husband, and he against her, 587 . i.iuh cannot be bound herself by recognisance, but her sureties only, 587. WITNESSES. Enactment, that poor witnesses, in cases of felony, shall be allowed their fees from the county treasury, 567. enactment, that witnesses, residing raore than 5 miles from a court, may be summoned by a justice, and I • giving form of such summons, 587. punishment of witnesses for not attending court or jus- tice according to summons, 588. witness to be paid his fees, before giving evidence, 588. Form of Summons for a witness, 588. WOODS. Regulations to be made, annually, in sessions, concerniiig setting fires in clearing land, 589. Work Houses^ see Bridewell, 75. WRECK. Statute of the 41 G. 3, c. 14, 1. V. 446, for. securing wrecked vessels and goods, &c. 589. plundering or destroying wrecked vessels or goods, 590. injuring or obstructing person endeavouring to save property, 590. putting out false lights, 590. : •• • stealing wrecked goods, under value 40 shillings, 590. searching for stolen shipwrecked goods, and securing the offender, 590. commanding assistance to preserve persons and proper- ty, and punishment of such as refuse it, 591. rewarding persons who assist at wrecks, or in securing property, 591. how goods saved shall be disposed of, wlien no person appears to claim, and to pay expences, 592. property in charge of another, not to be interfered with, 593. persons endeavouring to destroy, or cause the loss of vessels, to suffer death, 593. act to be read publicly, by the clerk of the peace, at opening of every general sessions, 593. j . directions as to prosecutions for offences, 593. Form of Order, for reward to, persons rendering assist- ance, 594. il- • by coercion '3goods,586. wrong, 586. 3r time, 587. her husband, ice, but ber es, in cases es from the than 5 miles justice, and court or jus- dence, 588. in sessions, 589. ^. 446, for. . 589. ;oods, 590. ng to save lings, 590. id securing md proper- 591. in securing r. I'i ! no person )92. interfered he loss of .:# peace, at 13. ng assist- m