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mmim 
 
C"\-->^^_.,Ar 
 
 MANUAL 
 
 v.- 
 
 FOR 
 
 BEING A GUIDE TO THEIR ORDINARY DUTIES 
 AS JUSTICES OF THE PEACE, 
 
 wrTH 
 
 Appendix of Forms : 
 
 BY 
 
 B. W. PBQWSE, Q. C, 
 
 Judge of the Central District Court of Newfoundland. 
 
 ST. JOHN'S, N. F. : 
 J. C. Withers, Qhebn's Printeb. 
 1877. 
 
mmmmmmm 
 
 BF" 
 
PREFACE. 
 
 This Little Work was prepared by me under the sanction 
 of the Government. It has been compiled principally from Eng- 
 lish Text Writers on Magisterial Law, which I have condensed 
 and made applicable to local requirements. My object has been 
 to give to Outport Magistrates as clear and definite instructions 
 and forms for all their ordinary duties as could be condensed 
 within the small space at my disposal. I have endeavoured to 
 be accurate, and in nearly every case I have given my authorities 
 and quoted reported cases. I have to thank His Honor Sir 
 Hugh W. Hoyles, the Chief Justice, for having kindly gone over 
 the whole work, partly in manuscript, and partly in print, and I 
 have his authority for stating that it meets with his entire ap- 
 proval. I also beg to thank Mr. Bennett's Government for 
 having authorized me to prepare, and the present Attorney 
 General for having allowed me to pubHsh the work, at the ex- 
 pense of the Government. If the perusal of this Manual should 
 tend to assist my brother Magistrates in the discharge of their 
 onerous duties, and enable them to carry out the Law°with more 
 accuracy and efficiency, I shall feel amply repaid for all the 
 labour and thought I have bestowed upon its preparation. 
 
 D. W. PUOWSE. 
 
 St. John's, Newfoundland, 
 January 10th, 1877. 
 
 I. 
 
c 
 
 2 
 
CONTENTS. 
 
 Chapters. 
 
 1. Office of Justice of the Peace— Duties, &c. 
 
 2. Nature of Duties of Justices 
 
 3. eTTjpnrioTioN of Justices as to Locality, &c 
 
 4. Actions against Justices 
 6. Stating a Case 
 
 6. Application of Cbii iinal Law op England 
 
 7. Indictable Offences 
 
 8. Enquiries before Justices in Indictable Offences ... 40 
 
 9. Indictable Offences— Proceedings in Imaginary Cases 79 
 
 ••• ••• •■• 
 
 • •• ••• ••• ,,, 
 
 Faoe^ 
 1 
 . 7 
 . 11 
 . 16 
 . 25 
 . 85 
 87 
 
 • • • • • • 
 
 • • • • • • 
 
 10. St;MWAKY Jurisdiction in Larceny 
 
 11. Small Penalties Act 
 1^. Quarter Sessions ... 
 18. SiTMMARY Jurisdiction and Forms 
 
 14. Plesep-v ation of Public Peace 
 
 15. Enquiries before Magistrates 
 
 16. Intoxicating Liquors 
 
 17. Bastardy 
 
 18. Deserted Wives and Children 
 
 19. Minors and Apprentices 
 JO. Masters and Servants 
 
 21. Evidence 
 
 22. Practice 
 
 23. Civil Business 
 Appendix of Forms of Offences, and Definition op 
 
 O^tEiiCEB 262 
 
 ••• ••• ••• ,,, 
 
 • • • ■ • I 
 
 ... 107 
 ... 121 
 ... 123 
 ... 183 
 ... 171 
 ... 187 
 ... 190 
 ... 208 
 ... 222 
 ... 227 
 ... 229 
 ... 231 
 ... 288 
 253 
 
 f m 
 
ADDENDA. 
 
 Page 87. — For the words, " the Jurors of our Lady, &c.," read 
 ** the Jurors Jor our Lady." 
 ** 104. — For " James S. Grieve," read " James J. Grieve." 
 
 ** 181, Sec. 23. — For " not exceeding one year," read "two 
 years." 
 
 " 237, Sec. 9. — This dicta has been altered by sec. 15, page 
 239, taken from Imperial Act 82 & 83 Vic, cap. 
 68, and on this point see Eosci e. Nisi Prius, 
 Evidence — Edition of 1875, p. 176, where it is 
 laid down " Promise and Declaration in lieu of 
 Oath." Until very recently, persons who from 
 defective education, did not understand the reli- 
 gious obligation of an oath, and also persons 
 who did not acknowledge an absolute Divine 
 Power, or acknowledging such a Power, did 
 not believe it would punish perjury, were equally 
 incapable of giving evidence ; but all objections 
 on these grounds have now been removed by the 
 above Statute. 
 
"^ 
 
JIANUAL FOR MAGISTRATES 
 
 m NEWFOUNDLAND. 
 
 CHAPTER I. 
 
 SacTioNS 
 
 OFFICE OF JUSriCE OF TKE PEACE, DUTIES, &C. 
 
 I Sections 
 
 1.— OflSce of Jnstioeof the T x. 
 
 2. -Justices, how appointed. 
 
 8.— Commission of Jusiioe of the 
 
 Peace. 
 4.- -Oaths to be taktu. 
 6. — Oath of AUegiance. 
 6.— Old form cf Oath of Office. 
 7.— Old form of Oaths abolished. 
 8.— Sections of Promissa j Oaths'Act, 
 
 1874, Form of Official Oath. 
 9.— Form of Judicial Oath. 
 10.— Oath of Allegiance, by whom to 
 
 be taken, 
 11.— Judicial Oath and Oath of AUe- 
 
 gian. >, by whom Co be taken. 
 1!?.— Official Oath, by whom to be 
 
 taken; proviso, not to apply 
 
 where Special Oaths provided. 
 
 13. — Oidcer declining or negleoiing to 
 
 take Oath, disc^uaMed, ' to 
 
 vacate office. 
 14.— Name of British Dot ivjn for 
 
 time being, to be atibstituted 
 
 from time to time. 
 15. — ^Affirmation may be made iu liea 
 
 of Oath. 
 16.— General observations on Oaths, 
 
 (ftc. Mandamus, Rule Nisi, of 
 
 Supreme Court. 
 17. — Justi.ies not to try cases when 
 
 interested. 
 18. — Justice must be impartial. 
 19.— Quarterly retoms of dnea, Ac. 
 20. — Bribery. 
 21.— Warrants mnst be executed by 
 
 Ccstables. 
 
 1. The office of J.^-iice of the Peace is one of great anti- 
 quity, and has always been considered. Loth in Great Britain and 
 in the Colonies, a highly honourable position. 
 
 2„ Justices of the Peace in thia Colony are appointed by 
 the Governor, as the Queen's Representative. The Gommisbiou 
 IS ispued under the Great Seal of the Island, and is headed — 
 -Victoria, by the Grace of God of the United Kingdom of Great 
 Britain and Ireland, Queen, &c." The meaning of this is, that 
 
Commission. 
 
 i- 
 
 by the theory of the British Constitution, the Sovereign is the 
 fountain of honor, of office, and of privilege, (a) and thus the 
 Sovereign alone (or her Eepresentative, as the Governor for ex- 
 ample,) has the power of conferring llo^lours, dignities, or privi- 
 leges upon Her subjects ; it will thus be seen that the office and 
 honourable position of a Justice of the Peace in this Island, 
 given to him by his Commission, is constitutionally as much 
 given and granted to him by Her Majesty, as the highest office 
 held under the Crown. Another reason also why the Commis- 
 sion is issued in the name of the Queen, is that Her Majesty is 
 the Fountain of Justice and the General Conservator of the 
 Peace in Her Eealms, (b) and from the Sovereign alone can any 
 of Her subjects receive authority to administer justice. 
 
 8. The form of the Commission, which was revised in the 
 latter part of the Eeign of Queen Elizabeth, and was then settled 
 nearly in the form now used both in England and in this Colony, 
 requires the Justice ** to keep and cause to be kept all Ordinan- 
 ces and Statutes, for the good of our peace and for the preser- 
 vation of the same ;" " to chastise and punish all persons that 
 offend against the form of those Ordinances and Statutes." The 
 next paragraph refers to the authority of Justices of the Peace 
 to bind over to keep the peace all persons who have threatened 
 violence against the persons or properties of their neighbours ; 
 then follows the authority and power to hold Quarter Sessiors, 
 the regulating of Public Houses, Weights and Measures, and 
 refers in antiquated language to various other subjects, all of 
 which are now regulated by Statute, and will I3 referred to 
 hereafter in their proper places. In the concluding portion of 
 the Commission these words are used, "and, therefore, we com- 
 mand you that to keeping the Peace, Ordinances and Statutes, 
 and all and singular other the premises, you diligently apply 
 yourself.^' 
 
 4. On receiving his Commission, a Justice of the Peace 
 has now, by law, to take two Oaths ; first, the Oath of Supre- 
 macy, which is in the following form : — 
 
 (a) Kerrs. Blafkstoue, p. 65. 
 (bj Ken' . Biackstone. n. C>4. 
 
Commission. 
 
 iign is the 
 i thus the 
 Dor for ax- 
 is, or privi- 
 ! office and 
 bis Island, 
 ■f as much 
 jhest office 
 e Commia- 
 Majesty is 
 itor of the 
 ne can any 
 e. 
 
 Lsed in the 
 ;hen settled 
 his Colony, 
 11 Ordinan- 
 the preser- 
 3rsons that 
 ites." The 
 
 the Peace 
 threatened 
 leighhours ; 
 r Sessiors, 
 isures, and 
 ects, all of 
 referred to 
 
 portion of 
 re, we com- 
 d Statutes, 
 lently apply 
 
 the Peace 
 1 of Supre- 
 
 • 5. I, A. B., do sincerely promise and swear that I will be 
 faithful and bear true allegiance to Her Majesty Queen Victoria, 
 (Her Heirs and Successors, according to Law,) * so help me 
 God. 
 
 6. Secondly, the Oath of Office, which xcas in the follow- 
 ing form : — 
 
 " You shall swear, that, as Justice of the Peace for the » 
 
 District of Newil/undland, in all articles in the Queen's Commis- 
 sion to you directed, you shall do equal right to the poor and to 
 the. rich, after your cunning wit and power, and after the Laws 
 and Statutes of this Colony thereof made : and you shall not be of 
 Counsel of any quarrel hanging before you : and that you hold 
 your Sessions after the form of the Statutes thereof made : and 
 the issues, fires and amerciaments that shall happen to be made, 
 and all forfeitures that shall fall before you, you shall cause to 
 be entered without any concealment or embezzHng, and truly 
 send them to the Keceiver General for the use of the Colony. 
 You shall not let for gift or other cause, but well and truly you 
 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 Queen, and fees accustomed and costs limited 
 by the Statute ; and you shall not direct or cause to be du-ected, 
 any Warrant (by you to be made) to the parties, but you shall 
 durect them to the Constables of the said District or other the 
 Queen's Officers, or Ministers, or other indifferent persons, to 
 do execution thereof. So help you God." 
 
 7. I have given the preceding form of Oath of Office as it 
 has been taken by a large number of Justices, and until 1874 was 
 the Oath required by Law .- it has been now abolislied by the 
 Promissory Oaths' Act, 1874, and the Oaths required by Law, 
 at present, are in a much shorter form, and are given below ; 
 they are quite as comprehensive as the old Oaths, and are lire' 
 cisely to the same effect : — 
 
 SECTIONS OF PROMISSORY OATHS' ACT, 1874. 
 
 8. The Oath in this Act referred to as the Official Oath, 
 
 • Note.— The words " Her Heirs and Successors accordhig to Law," are 
 i^aea lij accoruaiice with ' Tho Proiiiljjaurj' Oath Act, 1671.' 
 
I 
 
 4 Oaths. 
 
 ehall be in tho form following, that is to say ; " I 
 
 do swear that I wiU well and truly serve Her Majesty, Queev 
 Victoria, m the office of , so help me God." (Sec. 3.) 
 
 9. The Oath in this Act referred to as the Judicial Oath 
 
 shall be 'n the form following, that is to say ; " I, ■— do 
 
 Bwear that I will well and truly serve our Sovereign Lady Queen 
 
 ViCTORU, fin the office of Justice of the Peace for the 
 
 District of NeufoundlandJ and I will do right to all manner of 
 people, after the laws and usages of this Colony, without fear 
 or favor, affection, or iU-will, so help me God." (Sec. 4.) 
 
 10. The Oath of Allegiance, in the foregoing form, shaU 
 hereafter be tendered to, and taken by, all persons who are by 
 Law required to take the Oath of Allegiance. (Sec. 6.) 
 
 11. The Judicial Oath and Oath of Allegiance shall b© 
 taken by the Chiei Justi-^o and Justices of the Supreme Court 
 Judges of District Courts, and by all Stipendiary Magistrates,' 
 Justices of the Peace, or other Persons appointed to any Judicial 
 Office, as soon as may be after his acceptance of Office ; and 
 Guch Oaths shall be tendered and taken in the manner in which 
 the Oath required to be taken by such officer, previously to the 
 passmg of this Act, on entering his office, would Lave been 
 tendered and taken. (Sec. G.) 
 
 12. The Oath of Office shall be tendered to and taken by 
 all persors who are now, or hereafter may be, requu:ed by Law 
 to take an Oath of Office ; provided that this Section shall not 
 extend to persons holding Offices for which special Oaths have 
 been appointed under Acts of the Legislature. (Sec. 7.) 
 
 18. If any Officer required by law to take any of the 
 Oaths hereinbefore mentioned, declines or neglects, when any 
 Oath required to be taken by him under this Act is duly tendered, 
 to take such Oath, he shall, if he has already entered on his 
 Office, vacate the same ; and if he has not entered on the same, 
 be disqualified from entering on the same ; but no person shall 
 be compelled, in respect of the same appointment to the same 
 Office, to take such Oath or make such Affirmation more times 
 than one. (Sec. 8.) 
 
 14. Where, in any Oath under this Act, tho name of Her 
 present Majestv is expressed, thn nn,mn nf flio R.-i'tiai. Sp, 
 
 %\Tn»«/Mnf 
 
 s^n. 
 
shall 
 
 Commission, ■ a 
 
 for the time being, shall be substituted from time to time 
 (Sec. 9.) 
 
 16. When an Oath is required to be taken under this Act, 
 every person for the time being by law permitted to make a 
 solemn Affirmation or T "ilaration, instead of taking an Oath, 
 may, instead of taking such Oath, make a solemn Affirmation in 
 the form cf the Oath hereby appointed, substituting the words 
 " Solemnly, sincerely, and truly, declare and affirm," for the 
 word " swear," and omittmg che words, «' so help me God " 
 (Sec. 10.) 
 
 16. A careful 3onsideration of the Commission and Oaths 
 will shew how paramount and binding are the obhgations of a 
 Justice of the Peace to be loyal and faituful to his Sovereign 
 not merely as an ordinary subjecv, but also as one bound by the 
 solemn sanctity of an Oath to a sp3cial obligation, and one on 
 whom the Eepresentative of the Sovereign, reposing confidence in 
 his loyalty, integrity, and abihty, has conferred special power 
 and authority. The Comm-ssioa requires you diligently to apply 
 yourself to do your duty, and as you cannot do it without know- 
 mg how to do it, it is to be hoped that a careful study of this 
 httle work may in some smaU degree assist you ; for your 
 own credit and honor, and by your Oath, you are required to 
 do your duty whilst you hold the Queen's Commission ; and 
 I ^ay add, that if you refuse to do it, you may be com- 
 pclled by a Writ of Mandamus {a) from the Supreme Court, 
 to do what the Law imposes on you as a duty ; and in cases 
 where you refuse to do any act relating to your office, you 
 may be comp elled to do it by another proceeding called a 
 
 (a) «' Maidamusr from the Latin, means '♦ lae command." Whenev^ 
 drty IS cast upon a Justice, the Law requires that he shall promptly fmfil it- 
 and If bemg properly requested to perform an act within the scope of his m'- 
 thonty as a Justice, he without any sufficient reason declines to do so, the 
 
 h^tTdo hTsd'ut^! " '''""'"" '" *'^ ^'^"^' "^" '""'^''^'^ '^ --p«» 
 
 For further information refer to Oke, p. 46 & 47, 48 & 49, where the cases 
 are given where a Mandanr . issued and also where a Mandamus was refused 
 and under title •' Mandamu. ' iu this Manual. 
 
 .. (*) See p. 3, Appendix Consnl Sfat whern ,<?)/« r^7-t «- " ■> 
 
 inohty of Qaeeu'8 Bi«ch, &«:, and CouBoJ.ltaT, v!m?'' ""' *" ""' *''' 
 
! 
 
 " Commission. 
 
 Eulo Nisi r«|of the Supreme Oouit; (b) you must not allow 
 any consideration, whether political, sectarian, or personal, to 
 interfere m any way whatever with your Magisterial duties • you 
 mus have no regard to any man's position in society, but you 
 must 6.0 as your Oath compels you to do, equal justice to rich and 
 poor. -You shaU not be of Counsel of any quarrel hanging 
 before you, ' means that you must hear both sides, not prejudge 
 
 btfore'Vu "^ '''' ''^' '^ ^""^ '^'^'^*' *^^* ^^y ^' ^''''^^^ 
 
 ' *i ^'^'J''^ "'•'''* ''^''' ^' '^'"^^^ ^^'* *° *ry "r take any part 
 in the adjudication of any case in which you a^e pecuniaHly in- 
 terested, {c) either directly or indirectly. 
 
 18. I know it is a difficult matter for an Outharbor Magis- 
 trate to keep clear of aU the petty jealousies, quarrels and 
 disputes that naturaUy arise in all small communities, but if you 
 act with common sense, prudence and good judgment, and are 
 rigidly impartial in your decisions, you will manage it, and gain 
 Wie confidence and respect-of the community in which you reside 
 You should also specially avoid being a political partizan • you 
 have a perfect right to hold your own individual opinions,' both 
 in pohtical and other matters, and you have a right to express 
 them privately as an individual, but you should be specially and 
 particularly careful never to permit your political or vour reli-ious 
 bias to mterfere in any way whatever with your impartiaUty and 
 independence as a Magistrate. 
 
 19. You must make accurate and regular returns quarterly 
 {d) (each quarter ending on first day of January, April, July, 
 
 (a) From the Latm word "Nisi," unless, because the Rule conchules 
 With the words, " unless cause to the contrary be shewn within days " 
 
 (6) See Chap. 4, Sec. 5, and also Chapter 5 of this Manual, of statin- a 
 case for opinion of Supreme Court. ° 
 
 (c) No Justice of the Peace, however duly authorized, in aU other re- 
 spects can act judicially in a case wherein he is himself a party, or wherein 
 he has any direct or indirect pecuniary interest (either as principal or agent) 
 however small. The principle of Justice that " no one can he a Judge in his 
 ited/''"oke ^^'"^^"l^'^'^ ^''^°^ °^ *^« ^^^' ^^ is as ancient as the La^ 
 
 (<Q Consol. Stat., p. 44. 
 
The Duties of Justices of the Peace. 7 
 
 and October,) of all {n) fines, fees, and other monies you are 
 required by Law to return to the Receiver General, where there 
 is no Clerk of the Pea?e to do this duty, (i) and where there is 
 a Clerk of the Peace, you should revise and certify his returns. 
 
 20. The words " you shall not let (c) for gift, &c.," means 
 you shall not delay or put off a cause for a bribe ; let is an ob- 
 solete word, the original meaning was to retard. For the honour 
 of our Judiciary, both great and small, the crime is now as 
 obsolete as the word. 
 
 21. Lastly, all Warrants and other Process must be exe- 
 cuted by Constables, &c., never by persons interested. 
 
 CHAPTER II. 
 
 THE NATURE OF THE DUTIES OF JUSTICES OF THE PEACH. 
 
 Sections 
 
 1. — Authority, either Ministerial or 
 Judicial. 
 
 2. — Judicial functions. 
 
 3. — Ordinary Jurisdiction, 
 
 4. — Justices to have sp.me jurisdic- 
 tion as Justices in England. 
 
 5. — Jurisdiction in absence of Sti- 
 pendiary Magistrate. 
 
 6. — Criminal jurisdiction of Justices 
 in absence of Stipendiary Ma- 
 gistrate. 
 
 7. — Powers of Stipendiary larger 
 than English Stipendiary Magis- 
 trates, 
 
 Sections 
 8.— Examples of Power in Criminal 
 
 cases. 
 9. — Authority in Civil business— one 
 
 Stipendiary Magistrate may 
 
 hold Quarter Sessions for Civil 
 
 business. 
 10,— Stipendiary Magistrate out of 
 
 Session, like Jurisdiction, 
 11. — Civil Jui-isdiction of Quarter Ses- 
 
 sions, 
 12. — Authority to attach monies, «S!0., 
 
 after judgment. 
 13. — Power to grant Licenses, &o. 
 14.— Where no Clerk of the Peace, 
 
 Justice may act as such. 
 ^ 1. The authority of Justices of the Peace is either minis- 
 terial or judicial ; the ministerial functions of Justices consist of 
 
 (a) Fines— except in some special cases, referred to hereafter, half of 
 the fine is paid to the Informer, the other half to the Beceiver General. 
 
 (6) Consol. Stat., p. 43.— Where there i? no Clerk of the Peace, a Jus- 
 tice or Stipendiary Blagistrate may perform Lis duty. 
 
 (c) See Wcktor'a Dlvt., word " let." 
 
s 
 
 The Duties of justices of the Peace. 
 
 receiving informations or complaints for indictable offences which 
 can only be tried by a jury in the Supreme Court or the Supreme 
 Court on Circuit, or in some cases in the Quarter Sessions ; 
 also, for offences on matters triable in a summary manner' 
 causing the party charged to appear and answer, either by 
 Summons or Warrant ; levying rates under the Sheep Kilhng 
 Act, and many other Acts of the same character ;— these are the 
 ministerial functions of Justices of the Peace, as distinguished 
 from ih&ix judicial functions. 
 
 2. Their Judicial functions chijfly consist : first, of the trial 
 of offenders at Quarter Sessions and under their summary juris- 
 diction in small Criminal cases ; second, adjudicating or deciding 
 cases such as between master and servant, in the fishery, and 
 many other cases of a similar character, the first being called 
 their Criminal jurisdiction, whHst the second is described as 
 their Civil jurisdiction. 
 
 3. The ordinary jurisdiction of Justices of the Peace, 
 under the EngHsh Criminal Law, as applied to this Colony, is 
 given to Justices of the Peace in Newfoundland by the Section 
 following : — 
 
 4. "Justices of the Peace shall have and exercise, in 
 proceedings of a criminal or other nature, the like powers, 
 authorities, and jurisdiction, where the same shall not be inap- 
 plicabl3, as Justices of the Peace in England may now or here- 
 after by law exercise there, except as may be otherwise provided 
 by Local enactment."— (Cap. 13, Sec. 8, Consol. Stat.) 
 
 5. Justices of the Peace in Newfoundland have, besides 
 this ordinary jurisdiction, special powers conferred on the.*n. 
 In page 43 of the ConsoHdated Statutes, Chapter 13, Section 
 10, it is pro/ided that "in all places where th-- shall be no 
 resident Stipendiary Magistrate, or where he shall be absent, any 
 Justice of the Peace, in or near the locality, shall and may per- 
 form and exercise all the functions, powers and authorities which 
 are or might be exercised or performed by a Stipendiary Magis- 
 trate, under the provisions of these ConsoHdated Statutes." 
 
 6. At page 42, Section 6, of the same Chapter, it is also 
 provided " Any such Stipendiary Magistrate shall also have and 
 
The Duties of Justices of the Peace, 9 
 
 exercise the like power, authority and jurisdiction, in the hearing 
 and determining of summary proceedings on complaints, and; 
 the carrying out of any conviction thereon, as any two or more 
 of Her Majesty's Justices of the Peace now or hereafter may 
 exercise under any Law that may be in force in this Colony, and 
 shall have the same power and authority to require and compel 
 the attendance of witnesses." 
 
 7. These last Sections give very large powers to Stipen- 
 diary (or paid) Magistrates ; larger powers, in some respects, 
 even than are conferred on Stipendiary Magistrates in England ; 
 (a) for instance, under Section 4 of the same Chapter, (page 42, 
 Consol. Stat.) " The Court of Sessions for the transao.'on of 
 Civil business may be held by one Stipendiary Magistrate.'.' 
 
 8. These large powers, both in Civil and Criminal business, 
 are all conferred on a Justice of the Peace where there is no 
 resident Stipendiary Magistrate, or where he is absent. I will 
 just notice some of the powers thus conferred in Criminal cases., 
 By Consol. Stat., p. 228, he can try and convict persons stealing 
 codfish, of a value not exceeding twenty dollars. Under the Im- 
 perial Act, 24 & 25 Vic, C. 100, S. 42, he can give two months' 
 imprisonment for assault, or fine five pounds stg. ; and he can 
 give six months' imprisonment and twenty pounds stg. fine for 
 aggi-avated assaults on boys under fourteen, or females. 
 
 9. I will now notice some of the powers conferred by the 
 above 10th Section on Justices of the Peace in Civil business, 
 where the Stipendiary Magistrate is absent, &c. 
 
 Sec. 4, same Chapter, provides,—" The Court of Sessions 
 for the transaction of Civil business, may be held by one Stipen- 
 diary Magistrate." In the absence, &c., of Stipendiary, the 
 Justice of the Peace in or near the locality, might then hold the 
 Quarter Sessions for the transaction of civil business, bi places 
 where such Court was held. 
 
 10. Should there be no Court of Sessions, however, the 
 next Section gives all the Civil juris''action of that Court to a 
 Stipendiary Magistrate at all times, and this jurisdiction in the 
 
 «. Oke. 15 & le. 
 
 I 
 
 ~T1 
 
 B 
 
10 
 
 The Duties o/Jusfkes cfthe Peace, 
 
 thorities." oeasions, with the hie powers and au- 
 
 U The Civil jurisdiction of the Court of Ona, f» <j • 
 s given m 8rd Seo.of same Chapter — T ,/ T^ ''""" 
 is Quarter Sessions), may hear and'It * '''"^' "^" 
 
 way, aU Civil Action tor L recovl of .T'' f " ^"^^ 
 amount of twenty-fiv, doC, ^T/ ^^^ ™ '^""I'ges to the 
 any land or tenemenT mav bl '^"' " "'''''' *^ ««« "" 
 
 for libel or slandeTr p7el t'r ^""'*"'" = "^ '^"'P' Actions 
 agahist any .ustic; of IrCtrSror' ^°™ 
 
 the fisL^y.'the s™„Tba UarZ tm^ f''"^''^ 
 fishery." *'"' ""* '"^S of boats for «« 
 
 have'tfo^ri:;';^^^^^^^^^ 
 
 40. This power may also be exerledbv th A ^ '"'"^''■ 
 in the abseneo. &c., of the StipenXT-- "^ '"'"^ 
 
 Sessitor' S^endf;r^"^:^,t'l-b':f^ t '"' ^''^ ^""^ <>' 
 1.0 recovered, may attLh f ™ ' 1 " ''^°"' >''^B'^<"'t shall 
 
 tUehandsof^7thi a* TSs'" ' '''''^ ""' '*»*=' *» 
 ^ant, if necessary, tie aCLt of arr' r'^^' '!^ ^'«- 
 »d^makeand enforce the observan ceTJu^'olrr'*"' 
 to the said Courts or Mam^tr.*.. i, 11 ' '''™«™ as 
 
 tiiat no such AtrachmeS It T*^ '""'' •' ^'»'«^. 
 not actually due ' '^''"'"'^ '=°"'"''«*» « dobts 
 
 Ba.ot?xnVrrn;ii::runr.tz^^^^ 
 
 there ,s no Quarter Sessions for the D^wft t!!I ' '''^™'"" 
 where he resides ; he may also exerltXoth—L J':t' 
 nnnjstenaland judicial, which wiU be heX nZr* "" 
 
 «. See Chapter "Of Intoxicating lauora." 
 
Jnvisdidion of Justices of the Peace, 1 1 
 
 14. By Section 11, "A Stipendiary Magistrate or Justice 
 of the Peace, in any District or Place where there shall be no 
 Clerk of the Peace, or in his absence, may perform the duties of 
 such Officer." A Justice tlms acting, would be entitled to receive 
 the fees of the Clerk of the Peace, and also to ten per cent, on 
 all License money received. 
 
 CHAPTER III. 
 
 JURISDICTION OF JUSTICES OF THE PEACE A3 TO I,OCALITY, &/;. 
 
 Sections 
 
 1. — Justice's power confined to liis 
 District in certain cases. 
 
 2. — Central District defined. 
 
 3.— Northern District. 
 
 4.— Southern District. 
 
 5. — Labrador. 
 
 6 — Warrant may issue for ofienco 
 committed within jurisdiction, 
 no matter whew ofiender re- 
 sides in the Colony. 
 
 Sections 
 
 7.— Indictable offences on the High 
 Seas in British Ships. 
 
 8. — Accessories. 
 
 9.— Offences in British Ships. 
 10. — Larceny. 
 
 11.— Larceny from wrecks. 
 12.— Where title to land involved. 
 13,— In assault, example, 
 14.— Under Malicious Injuries' Act. 
 16.- Course to be pursued in such cases. 
 
 ft. Lt\^f°'f^"^'^' " generally appointed for „„e of 
 
 limits of eacli Jndicial Distriet (4) ' '" ^'^'"' "'" 
 
 2. Tbe Cenibal Distkkt inolaJos all settlements in tl,„ 
 ponmsala of Avalon, lying between an ima ^^^1 1 
 'i^^^^^^I-Manche^^ "Z^ 
 
 (a) See Stonop' Jus, Manual, p. 477. ' ' 
 
 (*) For fiiller mformatioa see iinf re 7? ir 1 , .. 
 &56. 102, se. uotcb, E. M. Archibald's Digest, pp. 55 
 
 fl 
 
 
1 
 
 ll 
 
 12 
 
 Jurisdiction of Justices of the Peace. 
 
 8. The Nokthebn District comprises anJ inclndos .ill ti,a» 
 porijon the Island, and the Bays and Biver ft e ,f T] 
 the Islands m or adjacent tlioToto, and dopondeut onTe gTv 
 moment hereof, situate and lying between the North „ ^d 
 
 ttrsdd Cape. ' '"°'™ "' "'^ '^'"^"-'^ -'"■^-- '» 
 4. The SonTHras District comprises and includes nil H„f 
 portion of the Island, and the Bays and Bivers of the am 111 
 the Islands m or adjacent thereunto, and dependent on t^e 
 Government thereof, lying and situate between 'cape N^man 
 aforesaid, and proceeding by the Western, Southern'ndEasto 
 shores to the La Manche Biver, aforesaid. 
 
 6. Labrador is thus defined in the Governor's Commis- 
 
 Z's f °r"°' ^*'""''' f™» «- ontrance of Hud. 
 8on s St aits to a line to be di-a,vn. due North and South from 
 
 Anse Sablon on tlie said Coast to the fifiy-socoud degree of No* 
 
 Coast of V";, "- "' 't""^ ^'^■^^^"' '° *"-' P"' " tbe s d 
 Coa Labr. .or as also of all forts and garrisons erected and 
 
 estabhshed, or which shall bo erected or established within or 
 on the Islands and Coast aforesaid, (a) 
 
 inri^Lr"-''- "" ^'"?'''' ™''' ''"'''' 8°°^ «"" tl'o Jortiee's 
 jurisaict on IS in general confined to the District named in his 
 Commission, (S) there are certain eases in which his juiMcUon 
 "--e^xtended^to^^ ,,, authoi^d to t" 
 
 E.v« St. «„, ^„. ,, t.eV4tt: ;t -"rr ;'sTr jr; 
 
 to lhatca». tLir STi,™ e21 "t"'"— '"^ «"<• "» Depenaencies = 
 
J iirisdidion of Justices of the Peace. 13 
 
 a Warrant (a) to apprehend and to commit for trial any perHon 
 charged on oath before them with having committed an (b) 
 indictable offence within their jurisdiction, no matter where such 
 person shall reside within the Colony and its Dependencies, (c) 
 
 7. The Justice is also authorized to issue his Warrant for 
 the arrest r * ,ny one who has committed an indictable offence on 
 the high seas, in a British ship, when the offender comes within 
 the Justice's jurisdiction, {d) 
 
 8. All acoossories (e) to any felony may be tried in the 
 same manner as the principal criminal. 
 
 9. All offences whatsoever, committed in British ships at 
 sea, or by British subjects in a foreign ship, may be taken cog- 
 
 (a) See Forms of Warrant in Appendix of Forms. 
 
 (6) 11 & 12 Victoriii, C. 42, S. 1, (Imperial Act), Oke, p. 21. The mean- 
 ing of the word Indictaole is explained in a subsequent Chapter ; see Index, 
 under head Indictable. 
 
 (c) The course to be pursued, when the offender has left the L strict, is 
 to send the Warrant by one of your Constables to a xif agistrate residing near- 
 est to where you believf offender is ; the Constable then can swear to your 
 Bignature— on proof of your signature the other Magistrate backs your War- 
 rant, (see Backing Warrants), and the Warrant then holds good for all the 
 District over which the Magistrate backing the Warrant has jurisdiction. You 
 would, of course, onJy send your Constable in impoi-tant cases, and where it 
 was necessary for him to identify the offender. In ordinary cases of assault, 
 and in bastardy cases, the practice is to send the Warrant by post to the Ma- 
 gistrate residmg nearest to where offender is, and generally there is some one 
 who can prove the signature and ideuoJy prisoner. 
 
 (d) A British ship la in law part of the Territory of the United King- 
 dom, and all on board are at all times and in all places, subject to English 
 Law. This is the general principle. This special power is given by Statute, 
 (see Arch. Grim. p. 30 & 31.) 
 
 (e) AccKssoBiES.— An accessory is a person who is not the principal actor 
 in a felony, nor even present at its perpetration ; but who is ji some way con- 
 cerned either before or after the fact. An accessory before the fact is one who 
 procures or counsels another to commit a crime, he himself being absent. 
 An accessory after the fact is a person who knowing a felony to havo been 
 committed, receives, protects, rir assists the felon. In sudden unpremeditated 
 crimes, there can be no accessories before the fact. There are no accessories 
 in crimes under the degree of felony, and there are no accessories in treason. 
 The word Felony is 'ixplained in the Chapter on Crimmal Law. 
 
 ¥ox fuller information about accessories, see Kcrrs, Blac. ii5, 446. 
 
 f 
 
 -; i| 
 
 T 
 
 4' 
 
 '■I 
 7l 
 
H 
 
 jfurisdictioH of Justices of the Peace. 
 
 i > t 
 
 111 
 
 tUe thief in auother, iu oiteDl^r't;;* '""""" "' 
 
 iDg; the word tried, all thro„ri i« '° "''"'=*'•"" "«» "djoin- 
 you are to amst the 1 J",- '""'' ""'^ »''"'« "^»' 
 
 the examinatL; of th!t-f„ ^ "'! "' '"" "» ^^-^ "»■'. «»<1 take 
 o. Indictabtoffeie: W ' ^^-^-P'^-^- the Chanter 
 
 tion/Lfee:";!';'::,''"'''''^" titU *« land ism, „os. 
 
 amp"' Joh'n'r'"'"" '"°' "'•'=' " * ™'^ "f »™>Jt; for ez- 
 ample . John Snow is m possession of land • William Bv' '„ . 
 tmg op a ne» fence on the In.n^ .j;„- ' °™ P"'" 
 
 S.^ow claims. Snowte Us Um if 7' """"' '" °" *■"> '"'' 
 -t to come in on ^he TJ^.ZIH^Hr '''"' ^°* 
 
 on those fact. tZ Ztl ^^2\ "T" *? '^^"''- "^^ ™- 
 
 ♦1,^ L- ' »"ewn 10 ms satisfaction • h^ pnnl/l ««* x 
 
 the question u ', v,' ni. ^t n x .. ' coma not try 
 
 better titlela.t.I;f ' '^" *"°' ^'"^ " Sno^, had tho 
 
 (a) Oke, 851, 852, Notes. 
 
 (b) Oke, p. 24. 
 
Jurisdiction of jfmttces of thf Peacr. yj 
 
 i4. A case of this kind may also arise under the Local (a) 
 Malicious Injuries' Act, and undor tht Imperial Malicious Inju- 
 ries' Act. ?'or instancy if Snow were to cut down a fence or a 
 gate which Brown had placed on lp.iid which Snow claimed ; if 
 the same claim weio honestly sec up as in the former .a^e 'he 
 coiUd not be tried by the Justice, sither under the Local or Im- 
 perial Act. " Whenever this question of title is raised, the Jus- 
 tice must determine from all the facfa'. an-l circumsLances ol the 
 cases, whether the Defendant proihues evidence or not, whether 
 the claim of right set up in himself or those under whom he 
 claims to act is made bona fide, that is in good faith, and with a 
 show of reason." {b) 
 
 15. I wou^ >. advise the Justi'' >. in all casas where it is 
 practicable, to determine this question, without going further 
 into the facts of the case than is absolutely necessary for him 
 to arrive at a decision whether the question of title is bona fid* 
 raised, or not-as it would be obviously out ( f place for him to 
 hear the w, lole cu.e, and then, after aU the time and labour be- 
 stowed on it, L^d at the end. that he had no right to deal with the 
 case at all. (c) 
 
 {a) Consol. Siat., 227. 
 
 (6) Oke, p. 38, 36. 
 
 (c) I have gone fuliy into this questfon of title, and have endeavonred 
 t^ make It as clear and intelligible as I possibly coald in the Ihnits Ttl^ 
 BmaU wori. I have done so because I am aware that much misapprehension 
 exists concerning the subject, and cases are constantly arising beZ Ou w t 
 M^istrates in which this question is involved. The presenTstat^ Si 
 this subject requnres some change. Land in England or Ireland is considered 
 ^mos a sacred thmg and its tenure is compUc^ted. In this cou^i^.eTpeS 
 
 ITfi ; 7 °' *^^ P"'"^*'' '"""^y ^° ""^^^ tli^ particular land ii 
 
 Identified, passes the seller's title to the purchaser, no matt/r what 1 valu^ 
 Generally .peaking, 20 years' undisturbed possession is good IgL I tT^ 
 world, excep the Crown. 60 years is good against the Crown aX .^ 'j 
 grant is eqmvalent to 60 years' possession. The Regucration LarisTnTe 
 Under our present Law an honorary Magistrate might try h wages casXli 
 involved any amount, but the smaUest d^ ,ute about'^^and not wort^tn 
 
 nSLTnS ; '' t"^'^'"^ *'^ '^'''"^^ ^«-*' *^^*^- - st lots : 
 
i6 
 
 Actions and other Proceedings against Justices. 
 
 CHAPTER IV. 
 
 ACTIONS AND OTHER PROCEEDINGS AGAINST JUSTICES* 
 
 Sections 
 1.— Observation on Act for protec- 
 tion of Justices. 
 2.— When Justices liable to an Ac- 
 tion. 
 3.— Acts done with jurisdiction. 
 4.- -Acts done without jurisdiction. 
 5.— Against whom Action to be 
 
 brought. 
 6. — Rule when discretionary power 
 
 is given to a Juctice. 
 7.— Rule Nisi of Supreme Court 
 
 when Justices refuse to act. 
 8. — No Action where conviciion or 
 
 order confirmed on aippeal. 
 9. — Judge may stay proceedings 
 where Action prohibited. 
 10. — Actions to be commenced in six 
 
 months. 
 11. — One months' notice to be given. 
 12.— Venue not applicable. 
 13. — Defendant under general issue 
 may give special matters of de- 
 fence in evidence. 
 14.— Tender and payment into Court. 
 15. — Nonsuit. 
 16. — Damages. 
 17.— Costs. 
 18.— Mandamus. 
 
 10 — Proper course to state a Case, 
 when Justice's decision errone- 
 ous. 
 
 20.— Mandamus disused ; Rule Nisi 
 instead. 
 
 Sections 
 
 21. — Certiorari. 
 
 22.~Certiorari defined. 
 
 23. — No special Law required. 
 
 24.— Difierence between Certiorari and 
 Appeal. 
 
 25.— Effect of express words tating 
 away Certiorari ; Attorney Ge- 
 neral's right, &c. 
 
 26.— No Certiorari whUst AppesJ de- 
 pending, 
 
 27.— Purpose of Writ; getting Justice's 
 
 defective order quashed. 
 
 28.— Not to be quashed, for want of 
 form. 
 
 29.— When jurisdiction shewn on face 
 of conviction, cannot enquire aa 
 to soundness of conclusion. 
 50.— When conviction good on face, 
 no evidence received to contra- 
 dict it. 
 31.— Must be sUbJ out within six 
 
 months — notice — security. 
 32.— How return made to Certiorari 
 
 by Justice. 
 33.— Words, " nor be removed by Cer- 
 tiorari," does not take away 
 right to state a case 
 34. — Habeas Corpus. 
 35.— Rule Nisi for Habeas. 
 36.— Amendments after issue of Rule 
 Nisi. 
 
 37.— Criminal Information or Indict- 
 ment against Justices. 
 
 1. Whilst Justices of the Peace are obliged by Law to 
 perform the various duties imposed upon them, they are very 
 
Actions and other Proceedings against Justices. 17 
 
 properly protected from vexatious actions for acts done by them 
 in the execution of their office. A heavy responsibility is im- 
 posed upon them, however, when they either wilfully or negli- 
 gently transgress the bounds of their authority. The principal 
 Act for the protection of Justices is the Imperial Act, 11 & 12 
 Victoria, Cap. 44, which has now become part of the Law of 
 this Colony, {a) and a summary of all parts of which, appli- 
 cable to the Colony, is given in tliis Chapter. 
 
 2. " The general rule of Magisterial responsibility is this : 
 if & 3u&iicQ]i&.a jurisdiction over the subject matter laid before 
 him, and acts judicially, he is not liable to an action for any act 
 done within it, however erroneous the conclusion at which ha 
 arrives may be." The great point, therefore, for a Justice to 
 consider, in all cases, is,— Have I jurisdiction in the matter ?" 
 *« But in cases either in which he has not jurisdiction, or exceeds 
 it, (ft) he will be liable to an action for damages to the party 
 aggrieved."— Olie. p. 38. 
 
 IMPERIAL ACT, 11 & 12 VICTORIA, CAP. 44. 
 
 PEOTECIION OF JUSTICES FROM VEXATIOUS ACTIONS, &C. 
 
 8. Acts done with Jueisdiction.— Every action against a 
 Justice for any act done in the execution of his duty with respect 
 to any matter withm his jurisdiction, must be by an action on 
 the case, as for a tort, and the declaration expressly allege that 
 the act was done mahciously and without reasonable and pro- 
 bable cause [see Basebe v. Matthews, 16 L. T. (N.) 417] ; and if 
 at the trial &uch allegation be not proved, the plaintiff shall ba v 
 nonsuit, or\^ verdict given for the defendant. [11 & 12 Vict., 
 c. 44, s. I'^Xaylor v. NesMd, 23 L. J. 169, and Walker v. 3. E. 
 .luilway Co., 23 L. T. (N. S.) 14.] 
 
 4. Ac^'DONE without Jurisdiction.— For any act done by 
 a Justices a matter of which he has not jurisdiction, or in 
 
 (a; Consol. Stat. p. 226. 
 ^ (h) Exceedinj* jurisdiction in some cases may mean not only where therj 
 w an absenco of juiisdiction in fact over the case, but also where some Sta- 
 tutable or formal reipiiaii^e haa lecc omitted, it such requisite be au esseBtial 
 wgreOient.— (Oke. p. 39./ 
 
i3 
 
 Actions and other Proceedings against Justices, 
 
 lof r on«i '"'''^'^ ^"^ ^'' jnrisdiction [seo^a» v. Parkinson, 
 7 ^;/- 208] , an action may be mainti ^ without an aUega- 
 tion that the act was done maliciously, u . without reasonable 
 and probable causr ; but no action shall be brought for anything 
 do e under a conviction (b) or order untU after the same shaU 
 have been quashed either upon appeal, or by the Supreme Court • 
 nor for anything done under a Warrant to procure the appear- 
 ance of a party, and whicb shall have been followed by a con- 
 viction or order, until after the same shaU have been (c) quashed 
 [see Bessell v. Wilson, 20 L. T. 233] ; or if the warrant were not 
 followed by a conviction or order, or if it were a warrant upon 
 an mformation for an alleged indictable offence, and a summons 
 were previously served and disobeyed, then no action can be 
 mamtamed against the Justice.— [Id. s. 2.] 
 
 5. Against whom Action to be bkought.— -"Where a con 
 viction or order shall be made by one or more Justices, and a 
 warrant of distress or commitment granted thereon by some 
 other Justice, bona Jide and without coUusion, no action to be 
 brought agamst the Justice who granted such warrant, by reason 
 of any defect in the conviction or order, or for want of jurisdic 
 tion m the Justice who made the same, but the action must be 
 
 («) Where Justices signed a conviction and commitment in which blanka 
 
 ™Tf ^.^^^"^ .«e "^Prisomnent commenced, it was held that this was not an 
 excess of jm-isdiction. but a mere irregularity. [^o« v. Ac.royd, 28 L, J, 
 
 Justiie "Tn T°^ 7' be amended even after action brought against the 
 tion frl t . ''r*'"'*^' "P'^^ ^P^^'^^^ion, to a copy of the convic- 
 
 tion from the convictmg Justice ; but the Justice is not bound by the cony he 
 has diihvered. Oke, p. 39. ^^ 
 
 ,-„,.• ^.T''!"''^' *^^ ^«™^1 J"<J?ment 0- the Justices, ruder their summanr 
 
 St'? "„ r """''' ^'^^ ''^'"''^ '° ^"""S "^<^^^ '^^^ ^^^^ and 
 
 Ed 159 et set ''""' "" "■''"' ""'^ ^"«''**^'*'^««. ^^« P<^ley, Sth 
 
 (c) Tlie effect of the 2nd and 8th sections of this Act is. that the convic 
 
 that the acUon must bo commenced within six months after the act complain- 
 ed of It may frequently occur that the conviction cannot.be quashed in suffi- 
 cient tmie to allow of an action being commenced withia the prescribed period 
 
Actions and other Proceedings against Justices . 19 
 
 against the Justice or Justices who made the conviction or order 
 lid. s. 3.] 
 
 6. DiscBETioNARY PowER.— In all cases where a discretion- 
 ary power shaU be given to a Justice by any Act, no action shall 
 be brought against him for or by reason of the manner in which 
 he shall have exercised his discretion, in the execution of any 
 such power. (See. 4.) 
 
 7. Kefusal op Justices to act.— In all cases where Jus- 
 tices shall refuse to do any {a) act relating to the duties of their 
 office, it shaU be lawful for the party requiring such act to bo 
 done to apply to the Supreme Court, upon an affidavit of the 
 facts, for a rule calling upon such Justices, and also the party 
 to be affected by such act, to show cause why such act should 
 not be done; and if, after service of such rule, good cause shaU 
 not be shown against it, the said Court may make the same ab- 
 solute, with or without or upon payment of costs, and the said 
 Justices, on being served wJ^h such rule absolute, shall obey the 
 same and shaF do the act requu:ea ; and no action shaU be com- 
 meneed or prosecuted against such Justices for having obeyed 
 such rule and done 3uch act so thereby required as aforesaid. 
 [Id. s. 5. See E. v. Paynter, 26 L. J. 102 ; R. v. Dmjmaii, 26 L. J. 
 128 ; 22. V. Brown, 26 L. J. 183 ; and Re Hartley, 31 L. J. 232.] 
 
 8. No action to be brought agamst Justices for anythmg 
 done under a warrant of distress or commitment upon any con- 
 viction or order which shaU be confirmed on appeal. ( Id, sec. 6.) 
 
 9. And a Judge may stay the proceedings in any action 
 where such an action is prohibited. {Id. s. 7.) 
 
 10. Every action must be commenced within six calendar 
 months after the act complained of. {Id. s. 8.) 
 
 11- O^e calendar {h) month's notice, in writing, must be 
 
 (a) n Justices have refused to hear an application for a sommons for au 
 indictable oftence, or if after hearing they refuse to grant it from a mistaliea 
 view of thek duty, the coui-t will grant a mandamm, but not, it seems where 
 they have heard and determined the application, and on the merits have de- 
 clmed to grant it. [ij. v. ^awcct, 19 L. T. (xN.) 396, and re Clec, 21 L. J. 
 (M, C) 112.J 
 
 (6) Calendar month meaas from a given date in one mouth, to a civcn 
 date ia another mouth.— (Oko. p. 40.) 
 
dO 
 
 Actions and other Proceeding, against Justices. 
 
 tZ *at\'!rr ^'^''' ''' ''"''" ''" ^' <^°"^«^enccd against 
 12. VENUK.-The next Sec, 10, refers to the bringing of 
 Actions in the Court («) witnin the District of which the act 
 complained of was committed. This would have no referen-. 
 here as such Actions would always be taken in the Suprer ^ 
 Court, which has jurisdiction over the Colony (Sec 3 ) 
 
 13 General IssuE.-Sec. 10 also provides, that the Dc 
 fendant may plead the general issue, and giv3 any special mat- 
 ters of defence excuse or justification, in evidence, under such 
 plea at the trial. (Sec. 10.) 
 
 14. Tender and Payment into CcTTRT.—The Justice may 
 tender a sum of money which he may think fit, as amends for 
 tne mj' ry, and may pay money into Court (Sec 11 ) 
 
 15 NoNsuiT.--This Section enumerates the "various ca^es 
 under which the Plamtiff wiU be nonsuited, if action not brought 
 ^vi hm the SIX months, or month's notice not given, or if he shall 
 not prove the cause of Action stated in such notice, &c. (Sec 12 > 
 16. DAMAGEs.-Where the Plaintiff shall be entitled to re- 
 cover, and shall prove the levymg or payment of any penalty o- 
 sum of money, under any conviction or order, as parcel of the 
 (damages he seeks to recover, or that he was imprisoned under 
 such conviction or order, and seeks to recover damages for such 
 imprisonment, he shaU not be entitled to recovsr the amount of 
 buch penalty or sum so levied or paid, or any sum beyond two- 
 pence for the imprisonment, or any costs, if it shaU be proved 
 that he was actually guilty of the offence of which he was con- 
 victed, or that ... vras liable to pay the sum so ordered, or with 
 respect to such imprisonment, that he had undergone no greater 
 punishment than that assigned by law for the offence of which 
 ha was convicted, or for non-payment of the sum so ordered. 
 
 i_XM, S. lo.j 
 
 r I 
 
 « 47 ; r r \ ^'r''°" " "°"*"^'^ ^° *^« ^'^^^^^^^ court Act., 
 
Actions and other Proceedings against Justices. 21 
 
 17. Costs. — If the Plaintiff obtain a verdict, or the De- 
 fendant (the Justice) allow judgment to pass against him by de- 
 fault, the Plaintiff is entitled to costs as before the act ; but if it 
 ])o stated on the proceedings that the act complained of was done 
 mahciously and without reasonable and probable cause, the 
 Plaintiff is entitled to costs as between Attorney and Client; and 
 in every action, if the Justice obtain judgment upon verdict or 
 otherwise, he is entitled to costs as between Attorney and Client. 
 [U. s. 14.] 
 
 18. Mandamus. — This high prerogative Writ, which can 
 issue from the Supreme Court, or the Supreme Court on Circuit, 
 is directed to the Judges of inferior Courts of Judicature, Cor- 
 porations, Pubhc Bodies, and others, upon whom the Law casts 
 a public duty, alleging that complaint has been made of their 
 rofiiRal to perform that du«y upon some particular occasion, and 
 commanding them in the Queen's name to do it. Mandamus 
 applies to every class of duty coming within the scope of the 
 Justice's functions. If a matter is properly brought under the 
 notice of Justices, and they have jurisdiction, they cannot de- 
 cline to interfere, but must, to the best of their judgment, adju- 
 dicate upon it. A mandamus wiU lie when they decline to enter 
 upon an enquiry, but not when, having entered upon the enquiry, 
 they arrive at a conclusion, however erroneous it may be. 
 
 19. The proper course to adopt, where their decision is erro- 
 neous, is to proceed by Eule to state a case under 20 & 21 Victoria, 
 Cap. 43, Sec. 5, which I shall refer to hereafter. 
 
 20. In most of the ordinary cases before Justices, the practice 
 now in England, instead of mandamus, is to proceed under the 
 Imperial Act, 11 & 12 Victoria, Cap. 44, (before noticed), by Sec. 
 5 of wliich Act a Eule Nisi can be taken out of the Supreme 
 Court calling upon the Justice, and also the party affected by such 
 act, to shew cause why such act should not be done, {a) 
 
 21. Certiorari, from the Latin, means to he certiorated, or 
 more fully and accurately inarmed oj. The Supreme Court has 
 a general superintending power over all Courts of inferior juris- 
 diction, and having all the power and authority, not only of 
 
 
22 
 
 Aciions aHd olher Proceedings agamst Justices. 
 
 the Qaeon . Bench, but also of the Common Pl«as HM r. , 
 of Chancery, &c., has this power both in rv ■? ' ,T °'""' 
 busmess. and oan exem,» T • ■ j .■ '^™' ^"^ Criminal 
 « "eoeasary, to restrlr tL . J"'"**''"' "''^'^ mterference 
 through theVrit "f X"^:/""""'^ "' ''^^"" ^"''-'^». 
 
 nai ;^t,'s::rthTQUizttrr^^ 
 
 at or out of Session. ^IT! r T ^ ""^ "'"'^S" <" J^^^'es, 
 records or pro "Zs ta ,- ? "^^'^ *° """» °' '^'"^ th^ 
 
 to the end Lr^trtht ^ ,7 ^f « '''^°- '^-' 
 and according to tLo Inw « ^ f *^^''®°'' ^^ ^f right, 
 
 seem fit tot'd^e^'ir^S TZofy ''-^°-^»^. -^ 
 victions, and therefore the W^a of C« • °° =''""»'"y «»" 
 
 r^i-:2- ------ ^rt^:st:^C 
 
 conse'tntriu ^rfor'Sc^ "''r ^ '^'" ^'" ' " - 
 proceedings -movelfrL^r t Ze ofT' '" '"^ "'^'' 
 the Supreme Court by Ce^iiZri ^ '''*'^"* '" 
 
 tc. aU inferior S^j™ ' , Tr ''''' "' " ™*'^'^ <"f """^o- 
 provision ' ™'''' "''' "^^ ''y«-P'e»» ^tatutabte 
 
 takef"r;2~f::e^-^ '^' C«.W does not 
 
 ted, or .he. the conviction uZZlZ^JH^' ""*• 
 
 there anT^o ftr"'" ''"r^^ ^' '"^ «-"- Sessions, ' 
 |;r.«ingltp :':Sth ^^^^^^^^^^^^ 
 
 Justices removed i^totts ^ Z^ " '=°°"""°° "' "'d^' <" 
 
 be «. ^^rdSizx: rf:r^' "- 
 
 («) Falej, on Convictions. nn-^^-Tui- ^.-.. ^ "^ — — • 
 
Actions and other Proceedings against Justices. 23 
 
 (a) it must be for some essential defect ; it must be wanting in 
 some essential ingredient, or -what Lawyers call "matters of 
 substance." Justices, however, should be particular in following 
 the forms in the precise words ; it is the only safe course for 
 them to pursue. 
 
 29. When it appears upon the face of the conviction that 
 the Justices had in fact jurisdiction, tho Supreme Court cannot 
 inquire into the question whether or not the Justices came to a ■ 
 sound conclusio7i ; the Supreme Court in those cases is not a Court 
 of Appeal, but merely a Tribunal to keep mferior Courts within 
 the Hmits of their proper functions, (i) 
 
 80. If the conviction is good upon its face, no evidence can be 
 received by the Supreme Court to contradict the statements con- 
 tained in such conviction ; the only evidence that can be received 
 by affidavit or otherwise, is to shew that the Justices had not 
 jurisdiction. 
 
 31. The Certiorari must be sued out within six months. 
 Six days' notice must be given to the Justice, and security must 
 also be given. 
 
 32. When the Writ of Certiorari is sent to the Justice he 
 must append to it the conviction or order mentioned in the 
 Writ, with the Information or Complaint, and make a returi: in 
 the form given in the Appendix undtr the head of Certiorari. 
 
 33. Where, in Acts of Parhament, the words only are used 
 " nor be removed by Certiorari;' (as in 24 & 25 Vic, C. 100. Of- 
 fences against the Person) ; this does not prevent a case being 
 brought before Supreme Court, under 20 & 21 Victoria, C. 43. 
 (The Imperial Act which provides for statmg a case for the opi- 
 nion of Superior Court.) It would have been different if the 
 words had been, nor be removed by Certiorari or otherwise, (c) 
 
 84. Habeas Corpus, (Latin), Have the body. There are seve- 
 ral Writs of Habeas Corpus ; the only one, however, with which 
 
 (a) Consol. Stat. p. 43. 
 \h) Olre, p. 51, 
 
 Oke, p. 53, where fuller information is given ; and see Paley, under head 
 
 Certiorari. 
 
 (c) Greaves' Crim. Law Conflolidation p. 92. 
 
a4 
 
 Actions and other Proceedings against Justices. 
 
 Justices of the Peace are likely to be ccncemed is caUed Halms 
 Corpus ad Subjiciendum, (Latin), means, that you have the body to 
 miswer. " When a prisoner is in actual custody, upon a Warrant 
 from a Justice upon a conviction or order, and bemg desirous to 
 test its validity, he wiU apply to the Supreme Court by Affidavit 
 for a Writ of Habeas Corpus, which, if sufficient ground be shewn 
 to lead the Court to believe that the imprisonment was illegal, 
 will at once be granted.*' 
 
 85. Sometimes a Rule Nisi is issued, and the Justices must 
 have notice served on them of the appHcation, and also of the 
 retuin of the Writ, so as to enable thjm to support their com- 
 imtment before the Supreme Court. It is important for them 
 personaUy, to attend to it, as an action agamst them for dama' 
 ges would bo the probable result of a successful appHcation for a 
 Writ of Habeas Corpus. 
 
 86. Where a Rule Nisi is issued m the first instance, it ap. 
 pears that an unsealed Warrant may be cured by the substitution 
 of a new Warrant, sealed, after service of a Eule for a Habeas 
 Corpus, (a) After the Eeturn to the Writ is put in Court, and 
 read, it is said to be filed, the Court may stiU amend it, (the 
 Beturn) but the commitment cannot be amended. (6) 
 
 87. Cbiminal Information or Indictment against Justices — 
 When the misconduct of Magistrates, besides bemg productive 
 of private injury to mdividuals, calls for punishment on public 
 grounds ; when they act from private resentment, or interest, or 
 from partial, mahcious and corrupt motives, the Supreme Court 
 WiU, on sufficient grounds bemg laid before it by Affidavits, cause 
 a proceeding, called a Criminal Information, to be filed by the 
 Clerk of the Court, against them, or they may be proceeded 
 against by Indictment, (c) 
 
 (a) Oke, p. 54. Note. 
 
 tv, ^^\^^7 °° ^°°^°*^°°«' 319. Commitment is the order in writing under 
 tte hand and seal of the convicting JuBtice. directed to a Constable, and to 
 the Keeper of the pmon^ which the party> to be committed. For further 
 information under head €onimitment, see Pa/:^.: *wf lurm.r 
 
 (<?) Oke, p. 55, Paley on Convictions,, 482. - 
 
 O 
 
stating a Case. 
 
 25, 
 
 CHAPTER V. 
 
 STATING CASE FOR THE OPINION OF THE SUPREME COURT. 
 
 Se07IONS 
 
 11. — Amendment of oasd. 
 
 12.— Judge ^i Chambers. 
 
 13.— Warrants to enforce decision. 
 
 14. — Certiorari not required. 
 
 15.— Supreme Court maj make Hales. 
 
 16.— Sections -3 & U not applicable. 
 
 17.— night of appeal to Sessiona aban- 
 
 doned. 
 18. — Schedule A. Fees. 
 '9.— Form of Notice to Justice. 
 20.— Form of case and observations 
 
 thereon. 
 21.— Form of Notice to Respondent ; 
 
 how framed. 
 22.— Form when Justice refuses casa 
 
 as frivolous. 
 
 Sections 
 
 1.— Imperial Act, 20 and 21 Vic, 
 Cap. 43, made part of Local 
 Law. 
 St.- Must be on point of Law ; what 
 
 case should contain. 
 3.— Must be on Complaint or Infor- 
 mation. 
 4. — General provision of Act. 
 6.— Justice may state case. 
 6.— Security and notice. 
 7.— When Justices may refuse a case ; 
 
 right of Attorney General. 
 8.— Supreme Court may order case. 
 9.— Decision of Supreme Court to be 
 
 final. 
 10 — Justice may file AflSdavi*. 
 
 1. The Imperial Act, 20 & 21 Victoria, Cap. 43 now maa« 
 part of our local law by the Consolidated Statutes 'pie pro 
 vides for he review of the decisions of Justices on points of law 
 and affords a ready mode of taking the opinion of Csu'Le' 
 Court on a case stated by the Justices ; as it is a very i^ZZnt 
 
 ^; AcrV r'*''""""^^*^ ^^P^^- ''^ proviLns Tut 
 This Act affords great protection to Justices as «ffpv «f t 
 
 case, they are not liable to any costs intsp^c V ^^^^^^^^^^^^ 
 ZZ:l:'T. *'1 determination, (sfc. 6) andTerrna; 
 without the risk of an Action, enforce their conviction or orde^ 
 
 ine same, has been made. (Sec. 9.) ^ 
 
 opinio !f ft "r™'^^'™ ""' •'"^''"^^ ""^ P°*^' "f "^-g the 
 opimon of the Court upon a point of ia«,; and the question fr.. 
 
 ■t wl.eth.r .tog was any eridouce in support of that conclu- 
 
26 
 
 stating a Casg. 
 
 Bion. In dra^fiiig up a special case, care should be taken that 
 it contains every question which it is desired to submit, as the 
 Court has no power to give an opinion on a question asked by 
 the parties, if it is not stated in the case by the Justices, (a) 
 
 8. It will be seen by the second Section of the Act that the 
 right of having a case stated exists only where the Justices' de- 
 termination is on a complaint or iv/ormation under their summary 
 jurisdiction, and ceases to exist where thoir decision is not founded 
 upon either of these proceedings, as where the decision is upon 
 an application for a license. (6) 
 
 4. This Act enables either party, if dissatisfied with the de- 
 termination of Magistrates, as being erroneous in point of Law, 
 to apply to the Justice within three days for a caso, stating the 
 facts and grounds of the determination. If the Justice is of 
 opinion that the application is frivolous, and not otherwise, he 
 may refuse to state a case, unless the apphcation be made under 
 the direction of the'Attorney General. Justices would do well 
 to act on their own judgment whether applications are frivolous, 
 and cases ought not to be granted u:ales8 some doubtful point of 
 law has been raised, fit to be referred to the Court. The case^ 
 if imperfectly stated, may be sent back for amendment. If a 
 case be refused by the Justice, the Supreme Court may ordsr it 
 to be stated. The Act requires security for costs to be given by 
 the appellant. 
 
 20 & 21 VICTORIA, CAP. 48. (Analysis.) 
 6. Justices may state Case. — After the hearing and deter- 
 mination by a Justice of the Peace of any information or com- 
 plaint which he has power to determine in a summary way, by 
 any law now in force or hereafter to be made, either party to the 
 proceeding before the said Justice may, if dissatisfied with the 
 said determination, as being erroneous in point of law (c) [and 
 the Justices ought not to state a case unless it be 071 a point of 
 
 (a) Hills V. Hnnt. 15 C. B., 1. 
 (6) Banndera, 378. 
 
 (c) Point of Law.~lt cannot be stated where the objection is, merely 
 the improper reception o£ eyidence. [Req. v. Yeomanf, I L. T. (N. S.) 369. 
 
 ijl^- 
 
 > 
 
StuUng a Case. 
 
 27 
 
 laiv,] appl-' in writing within three (a) days aftor the same to the 
 said Justice to state and sign a case, (b) setting forth the facta 
 and the grounds of such determination, for ihe opinion thereon 
 of the Superior Court, (c) to be named by the party applying, 
 and such party, hereinafter called the " appellant," shaU, withia 
 {d) tliree days after receiving such case, transmit the same to the 
 Court named in Lis application, {e) first giving [see Aahdoxm v. 
 Curtit, 31 L. J. 216,] notice in writing of such appeal, with a 
 copy of the case so stated and signed, to the other party to tho 
 proceeding [this being a condition precedent, Oloucester L. B. v. 
 Chandler, 7 L. T. (N.) 722] in which the determination wa-^ given, 
 hereinafter called the *' respondent." [20 & 21 Vic, c. 48, s. 2.1 
 6. Hbourity and Notice.— The appellant at the time of mak- 
 ing such appUoation, and before a case shall be stated and de- 
 hvered to him by the Justice, shall in every instance enter into 
 a recognizance (/) before such Justice, or any other Justice ex- 
 
 (a) Although Sunday is the last of tho three days, it must be counted ; 
 and if the hearing were on Thursday, the application case must be by Saturday. 
 [Ex parte Simkin, 29 L. J. 23 ; and V/ynne v, Ronaldson, 12 L. T. (N.) 711] . 
 (6) The defendant may have a case submitted although he is acquitted. 
 [Davys v. Douglas, 32 L. T. 283.] The death of the respondent will not, it 
 eeems, prevent the appellant's right of appeal. [Garnsworthy v. Pyne, 35 
 J. P. 21.] Justices are not bound to state a case when the application dis- 
 closes no point on which a case ought to be granted. [R. v. JJ. Rutland'Hre 
 13 L. T. (N.) 722.] 
 
 (c) Must be, here, < dupreme Court in St. John's. 
 
 (d) The provision as to three days is so far directory, and not a condition 
 precedent, that where the party has done all in his power to comply with the 
 statutory requirement, and compliance has been impossible, from the closing of 
 the offices of tlio court, the appeal will be heard. [Mayer v. Harding, 2 L. R. 
 (Q. B.) 410, thus qualiiying Morgan v. Edwards, 29 L. J. 108 ; Woodhoiue 
 V. Woods, 29 L. J. 149; and Pennell v. Uxbridge, 31 L. J. 92.] 
 
 (e) Must be Supreme Court in St. John's, and m.ust be ceut to the Chief 
 Clerk and Registrar of the Court there. 
 
 (/) The recognizance . "U be in time if entered into within the three days 
 allowed for applyirg for the case, and it need not be entered into simultane- 
 ously with the application [Chapman v. Robinson, 28 L. J. 30] , or befoi-c the 
 case is stated and delivered, although after the expiration of the three days 
 allowed for applyina for the caso. rflhinh^nfl v Ti„y,-^-h,. a=: r r iq-^i °-^ 
 I ost, ab' to the Local Law respecting recoguiaauces. 
 
as 
 
 67a/t»^' a Case. 
 
 'i 
 
 I; t'& 
 
 eroising the 8amo jurisdiction, with or without surety or sureties. 
 and in sucli sum as to the Justice shall seem meet, conditioned 
 to prosecute without delay such appeal, and to submit to tho 
 judgment of tho Supreme Court, and pay such costs a. may bo 
 awarded by the same ; and the apnellant sliall at the same time 
 and before he shall be entitled to have the case delivered to him' 
 pay lo the Clerk of the said Justice Iiis fees for and iii respect of 
 the case and recognizances, and any other fees to which such 
 Clerk shall bo entitled, which fees, except such as are already 
 provided for b) law. shall be according to the schedule to this 
 Act annexed, marked (A), and the appellant, if then in custody, 
 sha 1 bo liberated upon the recognizance being further cone iticned 
 for his appearance before the same Justice, or if that is imprac 
 ticablo, before some other Justice exercising the same jurisdiction, 
 who shall bo then sitting, within ten days after the judgment of 
 tho Supreme Court shAll have boon given to abide such judg. 
 mont. unless the determination appealed against be reversed — 
 [Id. 8. 8.] 
 
 ^ 7. When Justices may refuse a Case.— If the Justice be of 
 opinion that tho application is merely frivolous, but not other, 
 wise. ^^.3 may («) refuse to state a case, and shall, on the request 
 of the appellant, sign and deliver to him a certificate of such 
 refusal ; provided that the Justice shall nut refuse to state a case 
 where application for that nn- oso is made to them by or under 
 the directioa of Her Majesty's Attorney General. [Id. s. 4.] 
 
 8. Supreme Court .uAY ORDER Case.— Where the Justice shall 
 refuse to state a case as aforesaid, it shall be lawful for the ap- 
 pellant to apply to tho Supreme Court, upon an affidavit of the 
 facts, for a rule -ailing upon such Justice, and also upon the 
 respondent, to show cause why such case should not be stated 
 9- A +he said Court may make the same absolute or discharge it 
 
 _ I) Jr^stices cftnnot rrfuse to state a case, although the main point relied 
 on ,8 one which was not noticed by either j v^ty, but which goes to the root of 
 their jurisdiction. [Ex parte Markham, 34 u. P. 160.] The certificate should 
 merely state ihat the application is fri jlous. The justices cannot refuse a 
 case " m their discretion." as they have no discretion, unless they consider 
 tljft applicAtioa to be friTOlons. rWt-gt rrnm Case L '^ "qf- o--x ,«.,., , 
 
Siatiuii a Case. 
 
 39 
 
 with or without payment of costs, as to the Court .shall seem 
 meet ; and the Justice, upon beiug served with such rule absolute, 
 shall state a oase accordingly, upon the appellant er.cering into 
 such recognisance as is hereinbefore provided. [U. s. 5.] 
 
 9. Decisions to bk Final. — The Court to which a case is 
 transmitted under this Act shall hear (a) and determine tho 
 question or questions of law arising thereon, and shall thei-eipon 
 reverse, affira), or amend the determination in respe " of «vhich 
 the case has been stated, or remit tho matter to the Justice, with 
 the opinion of the Court thoroon, or may make such otlier order 
 in relation to the matter, and may make such orders as to costs, 
 as to the Court may seem fit ; and all such orders shall ^e final 
 and conclusive on all parties : Provided always, that no Justice 
 of the Peaco who shall state and deliver a case in pursuance of 
 this Act shall be liible to any costs in respect or by reason of 
 such appeal against his determination. [Id. s. 6.] 
 
 10. Justices may File Affidavip. — The Imperial Act, 85 & 
 86 Vic, Cap. 26, is in amendment of this Act, 20 & 21 Vic, 
 Cap. 43, and therefore applicable to the Colony. Its preamble 
 recites that, " whereas ex parte proceedings are frequently taken 
 in the Superior Courts to bring under review the decisions of Jus- 
 tices, and there is no fund at the disposal of such Justices to 
 defray the expenses of appearing by Counsel to support their 
 
 (a) The Conrt will not allow objections to be taken which were not raised 
 before the Justices. [Purkiss v. Huxtablc, 28 L. J. 221 ; but see Ex parte 
 MarkMm, p. 36, ante] The affidavits must be entitled in the names of tho 
 parties. [Johmon v. Simson, 23 J. P. , V5.] The rule now is, that the ap- 
 pellant shall have the right to begin. [Gardner ▼. Whitford, 4 C. B. (N. 8.) 
 665.] Costs, as a general rule, will be given to tho successful party, and be 
 paid by the respondent, if unsuccessful, and not by the Magistrates making a 
 • rong conviction. [Venables v. Hardiman, 28 L. J. 33.] The general rule 
 io, that costs follow the judgment, but when no one appears on behalf of the 
 respondent, that rule is not applied [Lee v. Strain, 28 L. J. 221]; and the 
 Crown pays costs when unsuccessful. IMoore v. SvHh, 28 L. J. 126.] Ti\o 
 costs of preparing the case are allowed beyond the fees of the Justices' Clerk^ 
 [GU)ver v. Booth, 31 L. J. 270.] The application for costs should be madu 
 immediately on the disposal of the case. IBudenberg v. Roberts, 2 L. B. 
 (C. P.) 292.] 
 
I' \h 
 
 30 
 
 Stating a Case. 
 
 decisions. And whereas it, is expedient that such Justices 3hould 
 without expense to themselves, have an opportunity in such cases 
 of mformmg the Court 01 the grounds of their decision and of 
 all material facts bearing upon the same." Sec. 2 provides _ 
 Whenever the decision of a Justice is called in question by a 
 rule to show cause or other process issued on an ex parte appli- 
 cation, such Justice may make and file (without fee) in sucn 
 Court an affidavit, setting forth the grounds of the decision 
 brought under review, and any facts he may consider to have a 
 material bearing upon the question at issue." The affidavit may 
 be sworn before a Commissioner of Supreme Court and forwarded 
 to Chief Clerk Supreme Court, by post, for the purpose of being 
 filed. [Sec 2.] '« The Court, before making the rule ..b.olute or 
 otherwise determining the matter so as to overrule or set aside 
 the acts or decision of the Justice, shall take into consideration 
 the matter set forth in the affidavit, notwithstanding that no 
 Counsel appears on behalf of the Justice." [Id. s. 8.] 
 
 11. Amendment op CASE.-The Court for the opinion of 
 which a case is stated shall have power, if they think fit. to cause 
 tae case to be sent back for amendment, and thereupon the same 
 shall be amended accordingly, and judgment shall be dehvered 
 atter it shall have been amended. [20 & 21 Vic, c. 43 s 71 
 
 12. Judge at CnAMBEEs—The authority aLd' jurisdiction 
 hereby vested in a Superior Court for the opinion of which ^ case 
 18 stated under this Act, shall and may (subject to any rules and 
 orders of such Court in relat ion thereto) be exercised by a Judge 
 
 .r...T'T ^'''?" ^•~'^'' applica"«^ to send back for amendment a case on 
 appeal under section 2 may be entertained by the Court before the day of ar 
 
 ot the Court as to amending special cases. In the particular case it w«, 
 
 teough they may do so if they find the materials to be insufflci^Bn^ ?r 
 tnd, App. Read Rosp. 4 L. T. {N. S.) 4i7. msufflcienv. [/ou^n*. 
 
Kli-^ 
 
 Staiins^ a Casg. 
 
 3X 
 
 of such Court sitting in Chambers ; and as well in vacation An 
 in term time. [Id. s. 8.] See Note to Sec. 8. 
 
 13. Warbants to enfohce Decision. — After the decision of 
 the Supreme Court in relation to any case stated for their opinion 
 under this Act, the Justice in relation to whose determinati' > 
 the case has been stated, or any oth^r Justice of the Peace ex- 
 ercising the same jurisdiction, shall have the same authority to 
 enforce any conviction or order which may have been affirmed, 
 amended, or made by such Supreme Court, as the Justice or 
 Justices who origin^.l^v decided the case would have had to en- 
 force his or their determination, if the same had not been ap- 
 pealed against ; and no action or proceeding whatsoever shall bo 
 commenced or had against the Justice or Justices for enforcing 
 such conviction or order, by reason of any defect in the same 
 respectively. [Id. s. 9.] 
 
 14. Cebtiorabi not bequirrd. — No Writ of Certiorari or other 
 Writ shall be required for the removal of any conviction, order, 
 or other determination in relation to which a case is stated, under 
 this Act or otherwise, for obtaining the judgment or determi- 
 
 Note to Section 8.— Thia Section 8 would apply, but for the following 
 Sections of the Consolidated Statutes : the effect o;' those Sections is that 
 cases can only be stated for the opiuion of the Supreme Court in St, John's, 
 not on Circuit, as they must be heard before two Judges. No doubt two 
 Judges could hear such cases in Chambers. 
 
 Conaol. Statutes, p. 226, Sec. 3.—" Where, by any Act of the Imperial 
 Parliament, any criminal jurisdiction, or authority, by way of appeal, adjudi- 
 cation of reserved points, removal or otherwise, is or shall be vested in the 
 English Courts of Queen's Bench, Common Pleas, and Exchequer, or any of 
 them, or the Justices or Barons thereof, or any number of such Justices or 
 Barons, or in any other Srperior Court or Judges, such jurisdiction or au- 
 thority shall ba exercised by the Supreme Court or the Judges thereof, as in 
 the case of appeals provided by the 3rd Section of the 9th Chapter, Consol. 
 Statutes." 
 
 Consol. Statutes, p. 30, Sec. 3.—" The Supreme Court may be held by 
 one Judge, who may hear and determine all matters, except cases of Treason 
 and Capital Felony, when three Judges shall be present ; and except motions 
 for and hearing of rules for new trials, motions in arrest of judgment, special 
 cases, appeals and re-hearings in Equity, probate, revenue, and other cases, 
 &c.,<X!c., * • * when at least two Judges shall be preeent." * * * * * 
 
\ 
 
 Staiino^ a Case. 
 
 nation of the Supreme Pnnvf ,.^. 
 
 [Id.s.lO.J " "^''' '-•''■'' "'^^«^' *'»'« Act. 
 
 to such oL: X „ ; ' ""' '"""""'"^^ "■- '^'-»- 
 
 to Q«ar4 S sstns Ml 1?^ "? 'f " -«««! to appeal 
 appeal. (Sec. 14 ) '' "•"""'<»">'> '■«ch 
 
 18. Schedule A., referred to in Scr. q „p.i r 
 
 ^'';7,^ case and copy, where the case does -^oi exceed 
 5 fohos, of 90 words each ... ^ 
 
 When case exceeds .'i fniino +i -^ i- $2 40 
 
 Becognizance . .' ^''^^ ^°' ''''^ "'^^''^''^^^ ^^lio 24 
 
 For every enlargement or renewal thereof 
 
 Certificate of refusal of case 
 
 TO 
 
 I». FORM OF NOTICE TO J^/STICE. 
 
 To J. S JEsqmre, one of Her Majesty^s Justice, 
 
 of the Peace for the Disf^:,. r 
 
 ■^ewfoundlajid. •' 
 
 .i..Xt(/*::^::s'z,f°'' '°;-r*^ "*™« tie u^der. 
 
 'ma,) or A. CZ Z£ZTl \ ^T'"'"'"'"'^ "»'' (', «« »W^. 
 i„ ,f ' , tJ«md"i>t, heard before and determined by vou at 
 
 -Z:Z2^^:^l^^^:^^^^^^^^^^~-i^lot . Belgdit 
 
 -ewe., „:rt;r;rr:r:a^tr:,^^^^^^^^^^^^ 
 
 n>.de t„; the olS^^ !th r '" ^"""''' '■ ""• ■"»""'"' » «">" 
 
 1 20 
 60 
 48 
 
stating a Case. 
 
 33 
 
 flaiisfled witli yoirr determination in the said case, aa being erroneous in 
 point of Law, I hereby, pursuant to the Statute, make application to you, 
 to state and sign a case, setting forth the facts and grounds of your de- 
 termination, in order that I may take the opinion thereon of Her Majea« 
 ty's Supreme Court of Newfoundland. 
 
 This 
 
 Residing at 
 
 day of 
 
 A. D. 187- 
 
 -, in the said District. 
 
 A. B., (Comprt. or, &o.) 
 
 20. FORM OP CASE AND OBSERVATION THEREON. 
 
 The Justices, though not bound to grant a case if they are 
 of opinion that the application is frivolous, ought nevertheless to 
 do m when it is shown that the party applying for it was asserting 
 a right, as a disputed right of way, and the proceedings arise out 
 of the assertion of that right. 
 
 "With regard to the manner in which a case should be stated, 
 it is to be observed that the Court expects such cases to be sub- 
 mitted to the Judges in a complete form ; and cases for the consi- 
 deration of the Judges under that Act are not to be lengthy nar- 
 ratives of the facts. 
 
 A case for the opinion of the Supreme Court, may be s' ed 
 according to the following form : — 
 
 NEWFOUNDLAND, 
 
 Supreme Court. 
 This was an information [or, complaint] preferred 
 by against , for that, [here state shortly the 
 
 Between 
 A. B., Appellant, 
 
 and 
 C. D., Respondent 
 
 suhiance of the information or complaint'], and after 
 hearing the parties and the evidence adduced by them, 
 the undersigned, being ore of Her Majesty's Justices of the Peace in and 
 
 '.or the District of , did thereupon [set out shortly the adjudication of 
 
 the Justice], And the said Appellant, alleging that he is dissatisfied with 
 the said determination, aa being erroneous in point of law, did, within 
 thr^ 1 days thereafter, apply to me, the said Justice, to state and sign a 
 case, setting forth the facts and the grounds of such determination for 
 the opinion thereon of the said Court. Wherefore I, the Justice aforesaid, 
 in compliance with the said request, and in pursuance of the Statute in 
 Buoh case made and provided, do heisby state and sign the following case 
 for the opinion of the said Court. 
 
 CASE. 
 
 At the hearing of the said information [or, complaint], and on the 
 
 close of the informant's [or, compiainaut'sj case, the said [or, the 
 
 a 
 
34 
 
 Stating a Case, 
 
 QUESTION. 
 
 premisM > ro, tr,. !• „ , *' "'"'' *'"•''' •>= done in the 
 
 .he «^d qnestionfo^r whe*rr;:: rT 1',°°"^ " -^^ "'-» 
 
 my detemination Z rfl^M P Id a °'i ^^ "t '"''T' "^ '=°™" » 
 
 Ply JforZ r°' T"* ""^ '^' ^»»«™; "■"■ the party .p. 
 
 „f«, ^ " " vioi. 0. 4», s. 3. Ii the case be for the oBinion 
 of the Court .t must be set down for argument, and copieTTt^ 
 
 as m the ordinary practice upon a special case. 
 
 is eas^ f^med j^on. the other for/^f ^o^ tTI 2.^" " 
 
 Ji When the Justice refuses the case as frivolous he mav 
 follow the notice nearly rerlaHu in the third ^Zn. Id"!! 
 
 „«„.*•' ""^ f** ■'■"''™' **»« "' '^PW™ '!>■>' the said a„. 
 
 4 tne aaid j ta^.^ given Lim this certificate of the fact 
 
 Id.l > 
 
 pursuant to the Statute. [Id.] 
 
 E. F,, J. P. for 
 
Criminal Law of England to this Colony. 35 
 
 CHAPTER VL 
 
 APPLICATION OK THE CRIMINAL LAW OF ENGLAND TO THi. COLONY., 
 
 Skctions 
 
 1 
 
 3. 
 
 4. 
 
 Sections 
 
 5. General rules for guidance. 
 
 6. English Criminal Law of Local 
 character not applicable. 
 
 7. Difficulties in applicaiion of Eng- 
 lish Criminal Law not arisen. 
 
 8. Criminal Law Consolidation Actg ; 
 effect of. 
 
 —Application of English Criminal 
 Law by Statute. 
 
 Criminal Law of England only to 
 apply. 
 
 Local Law bad better be followed. 
 
 Local mode of practice ; cumula- 
 tive remedy. 
 
 1. In the Consolidated Statutes it is provided ♦' That in all 
 cases not provided /or by Local enactment, the Law of England, 
 as to crimes and offences, shall bo the law of this Island and its 
 Dependencies, so far as the same can be applied, subject to such 
 amendments, alterations, and further enactments of the imperial 
 ParUament, as may hereafter be made ; and which shall, after 
 twelve months from the passing thereof, respectively, be the Law 
 of this Island and its Dependencies." (a) 
 
 2. It sometimes happens that a particular Imperial Statute, 
 respecting Criminal Law, applies only to Ireland or to Scotland, 
 and some apply only to England. It is well to bear this in 
 mind, as a good deal of the Criminal Law applied to Ireland 
 only is not the Law of this Colony, (b) The Law of England, 
 as to crimes and offences, being our Law, where it can be ap- 
 plied, must be taken to mean the Acts of the Imperial Parlia- 
 ment in criminal matters, applicable, generally, to England, 
 Ireland, and Scotland, or the British empire, and also the 
 Criminal Law, even when it is applicable to England alone. 
 
 3. Where there is a Local Law prescribing the mode of 
 procedure, and the punishment for any offen.e, the Local Law 
 
 (a) Consolidated Statutes 225. 
 
 (ft) I refer to this because the Justice may possibly get hold of an Act 
 applicable to Ireland only, or to a work ou the diif-iea of Justices iu lrt;Iar.d, 
 which would mislead him. 
 

 36 Criminal Law of England to this Colony. 
 
 had better be foUowed. and not the English Law, respecting such 
 offence. For instance, under the Local (a) Law, with respect 
 to malicious injuries to property, the Justice trying the case can 
 only adjudge the offender to pay a sum of money for the injury 
 and in default of payment to imprison. Under the English AcV 
 _<he pumshment is in the discretion of the Justice, either fine or 
 imprisonment. 
 
 4. [b) Where any mode of practice is or hereafter may be 
 prescribed by a Local Law, which may or can be applied for the 
 ^rrr f ff ^^^^^ °^* ^^^ provisions of an Imperial Act. which 
 shaU be held to extend to this Colony, such mode of practice may 
 
 remTd '^^^ ^' ''^^'^^^ ^' ^ cumulative (or addition J) 
 
 6. The first question which a Justice has to ask himself 
 Is this an offence provided for by Local Law ? If it is, he had 
 better follow the Local Law. If it is not, he must find out what 
 the Crimmal Law of England is, with respect to this particular 
 offence ; and having found it, he has then to ask a thu:d ques- 
 tion, " does the Enghsh Law apply to this Colony ?" 
 
 6. As a general Kule all English Criminal Law, of a special 
 ocal character, sur^i as the Laws with respect to offences against 
 
 the Game Laws, Fisheries, Stamp Acts, English Customs Laws, 
 Poor Laws, Turnpike Acts, and other kindred subjects, are not 
 apphcable here. It has been held that the Tippling Act applies 
 to this Colony,— whilst penal statutes, concerning Horse Racing 
 13 Geo. 2, C. 19 ; 18 Geo. 2, C. 24, were held not to apply, {c) 
 
 7. The applications of English Criminal Law to this Colony 
 would appear at first sight to present great difficulties, but prac- 
 ticaUy, as Mr. Archibald observes, {d) - Scarcely an instance 
 has occurred since the passing of the Act in question, in which 
 any difiiculty of this nature in the administration of the Law 
 has arisen in the Superior Courts." 
 
 8. It is theref ore very improbable that any difficulty of the 
 
 {a) Consolidated Statutes, p. 227. 
 
 (h) Consolidated Statutes, p. 226. 
 
 (c) Morris v. Berrigan, sea Note to E. M. Archibald, Dig. p. 40. 
 
 [d) E. M. Arobibaid'a Dig., p. 41- 
 
Of In die tabu Offences. 
 
 37 
 
 kind will arise before Justices of the Peace, and less so uow that 
 the Crimiual Law, Consohdatiou and Amendment Acts, 21 & 25 
 Victoria, from Cap. 94 to 100, have simplified the Law very 
 mich, and made its Local application very clear. 
 
 CHAPTER VIL 
 
 OF INDICTABLE OFFEXCKS. 
 
 Sections 
 
 5.— Reasons why this rule is not fol- 
 lowed. 
 
 6.— Prevention of vexatious Indict- 
 ments. 
 
 7. — Perjury. 
 
 8. — General observations. 
 
 Sections 
 
 1. — Division into Indictable offences 
 and Summary Convictione. 
 
 2. — Explanation of Indictable offen- 
 ces. 
 
 3. — Form of Indictment. 
 
 4. — Indictment may be preferred with- 
 out previous investigation. 
 
 1. The two great divisions into which the work of a Jufltic« 
 of the Peace, in respect of crimes, are divided, are, — 
 
 Indictable Offences and 
 Summary Convictions. 
 
 2. Indictable offences here, mean all offences ii: which a 
 Bill of Indictment must be presented to a Grand Jury, and a 
 True Bill found by them before the prisoner can be put upon 
 his trial. 
 
 3. An Indictment commences with heading. Supreme Court 
 of 'Newfoundland, or Supreme Court on the Northern or Southern 
 Circuit, and in the left hand corner, Newfoundland, (place of 
 trial) to wit. This is called the venue or statement of the place 
 where the crime was committed, or is tried. Next follows the 
 accusation, in the words—" The Jurors of our Lady the Queen, 
 upon their oath, present, that [here state the o fence] . When the 
 Foreman of the Grand Jury endorses on the Bill " a True Bill : 
 
 for self and fellow Jurors, Foreman ;" The prisoner is then 
 
 put upon his trial before another Jury, generalij a Petty Jury, 
 and if the Indictment ia marked on the back " Bill ignored," or 
 
38 
 
 Of Indictable Offences. 
 
 ♦' no Bill," the prisoner is discharged, unless there is another 
 Indictment or other charge against him. (a) 
 
 4. With the exception of the cases mentioned under the next 
 Section, prevention of vexatious Indictments, an Indictment may 
 be preferred for the offence at the Court having jurisdiction to 
 try It, without a previous investigation before Magistrates, (b) 
 
 5. Whilst this is the Rule of Law, there are many cogent reasons 
 why this course should not be adopted, (and, as a matter of prac 
 tice, Indictments are rarely so preferred) ; Ist, because the accused 
 would not be in custody, and might escape ; 2nd, witnesses would 
 not be bound over to give evidence; 8rd, there would be no depo- 
 sitions, and the accused would be unable to see what evidence 
 IS to be produced agamst him, a circumstance which has ever 
 been deemed one of great hardship, and which would be the cause 
 Of drawmg down strong animadversions from the Bench, (c) 
 
 6. Pbevention of Vexatious iNDicTMENTs.-For certain mis- 
 demeanors, hereafter enumerated, it is enacted by Acts 22 & 23 
 Vic. Cap, 17, and 80 & 81 Vic, Cap. 35, that no BiU of Indict- 
 ment for any of the following offences :— 
 
 Perjury, 
 
 Subornation of Perjury, 
 
 Conspiracy, 
 
 Obtaining money or other properi;y by false pretences. 
 
 Keeping a Gambling House, 
 
 Keeping a disorderly House, 
 
 Any indecent Assault, 
 shall be presented to or found by a Grand Jury, unless the Prose- 
 cutor or other person presenting such Indictment has been bound 
 by Recognizance to prosecute or give evidence against the accu- 
 sed, or the accused is in jaU or has been bound by Recognizance 
 to answer an Indictment, or an Indictment is presented by di. 
 rection or with the consent, in writing, of a Judge of the Supreme 
 
 ,•„ J^Im ^ff *^'' ^o^f<^n respecting proceedings before the Grand Jmy, 
 
 we Chapter on Quarter Sessions. (Post.) 
 (b) Oke, p. 822. 
 (e) San dera, p= 157. 
 
Of Indictable Offences. 3^ 
 
 Court, Oi- by the Attorney or Solicitor General ; or in case of In. 
 dictment for perjury, by direction of the person authorized by 
 Statute to direct a prosecution for perjury (see Post.) By second 
 Section, it is enacted, that where any charge or complaint shaU 
 be made before a Justice that any person has committed any r ^ 
 the foregoing offences, and such Justice shall refuse to commit 
 or bail the person charged, then, in case the Prosecutor shall de- 
 sire to prefer an indictment, the Justice must take the Prosecu- 
 tor's recognizance, and transmit it, with the information, depo- 
 sition, &c., if any, to the Court where the Indictment ought to 
 be preferred. Sec. 1, of the 80 & 81 Vic, Can. 85. amends the 
 foregoing, so as to prevent it extending to the case of joining 
 co'ints in an Indictment, with the consent of the Court, for any 
 of the above mentioned offences, founded on the facts disclosed 
 in the deposition taken before Justices. 
 
 7. By the 14 & 15 Vic, C. 100, Sec. 19, " Justices in Special 
 or Petty Sessions, may commit to the next assizes (which would 
 correspond to our Supreme Court on Curcuit or in St. John's) 
 any person who shall appear to them to have committed wilful 
 and corrupt perjury, («) in any evidence given or proceeding, taken 
 before them, unless they enter into a recognizance, &c." As 
 Justices here do not meet in Special or Petty Sessions, it is very 
 doubtful whether this Section applies ; and in aU cases of prose- 
 cutions f-- :^-.rjuiy, there should be a regular prehminary inves- 
 ligation before Justices, and a committal in the ordinary way of 
 deahng with Indictable offences. 
 
 8. I have thought it necessary, as this Httle work is princi- 
 pally intended for Justices of the Peace who have not had much 
 experience about Law, to give these very simple explanations 
 about Indictments, but it wiU be obvious to any of my readers 
 
 (a) Perjury is the wilfuUy false representation on oath, of some fact, ma- 
 terial to the question at issue, made before some authority legally competent 
 to admmister it, and having jurisdiction in the matter. Subornation of per- 
 jury IS procuring another to take such false oath. Both offences are misde- 
 meanors. [See Stone, 388, 389. Ofte, p.84,Perjui7.] 
 
 _. „ . , .,... „a^^^;c ^UB^ m- proTca Dy v»o wuuesses, or by one witness, 
 »nd other eyidence in confirmation, as, for instance, a imtten dociunent. 
 
 I 
 
4f> 
 
 Of Enquiries in Iiuliciahlc Offences. 
 
 that before any of these proceedings cau be taken, thero must bo 
 some one to try, and, like Mrs. Glasse's celebrated directions about 
 cooking a hare, " first catch your hare," so as regards criminal 
 proceedings, you must first catch your prisoner, and it is the 
 first and most important duty of the Magistrate, in all cases 
 where a crime is committed, to secure the u fender. 
 
 I I 
 
 iwl 
 
 ill 
 
 ila;; 
 
 111 
 
 CHAPTER VIII. 
 
 OF ENQUIRIES BEFORE JUSTICES IN INDICTABLE OFFENCES. 
 
 Sbctionb 
 
 /. — Preferring the Charge. , 
 
 1. — Preliminary obsei-vations ; im- 
 portance and difliculty of Ma- 
 gistrate's duty in respect of. 
 2. — Law regulated ' y Jervia Act, 
 
 &o. 
 ? — Arrangement of Rections. 
 i. — Limitation of time. 
 5. — Jurisdiction as to locality. 
 6. — The applications for process 
 
 should be heard in private. 
 7.— The Offenders. 
 8. — Lifacts. 
 9. — Lnnatics. 
 10.— Wife. 
 
 11. — Preamble tc Jervis Act. 
 12.— Power to issue Warrant or 
 
 Bummons. 
 13.— Oflfences on the High Seas 
 
 or abroad. 
 14. — Justices for adjoining Coun- 
 ties, sections 5, 6 & 7 not ap- 
 plicable. 
 15. — Information, 
 16.— No objection allowed for de- 
 fect iu sabstauce ox foriu. 
 
 Sections 
 
 17. — Any person may lay the in- 
 f or. aation. 
 J^I- — The Process to Issue againit 
 Offender?. 
 18.— Summons or Warrant. 
 19.— Service of Summons. 
 20.— ^Non-appearance. 
 21.— Defect in form ; objection 
 
 not allowed. 
 22.— Form of Warrant. 
 23.— Backing Warrants. 
 24. — Apprehension where an In- 
 dictment found. 
 25.— Apprehension in one District 
 
 for offence in anothvi?. 
 26.— Sundays — Warrants issued 
 
 and information taken on. 
 27. — Apprehension without War- 
 rant. 
 28.— Search Warrant. 
 29. — How to obtain a Search War- 
 
 rant. 
 30. — Mode of executing Search 
 
 Warrant. 
 31. — Importance of obtaining 
 Search Wan-aut. Forms 
 
Of Enquiries in Indictable Offences. 
 
 4X 
 
 8XCTI0K9 
 
 of Information and Search 
 Warrant. 
 
 ni.^Compelling the Attendance of 
 Witnesses. 
 
 82. — Attendance -* Witnesses by 
 
 Summons. 
 S3. — Warrant, wlien witness does 
 
 not appear on Summons, 
 34. — Warrant in lirst instance. 
 85. — Befusing to be examined. 
 
 IV. — The Hearing and Examination 
 of Prosecutor's IVitnesses. 
 
 36. — The Court — Place of exami- 
 nation. 
 37. — Examination of Witnesses for 
 
 Prosecution. 
 38. — Witnesses unable to travel, 
 
 &o. 
 39. — Examination for offenoti in 
 
 another jurisdiction. 
 
 V. — Statement f Accused and Ex- 
 amination of his Witnesses. 
 
 40. — Reading over Depositions in 
 presence of Accused. 
 
 41. — Caution to Accused. 
 
 42. — What Accused says to be 
 taken down. 
 
 43. — Second cauti^ri. 
 
 44. — Prosecutor not prevented giv- 
 ing evidciice of admissions. 
 
 45. — Observations on 30 & 81 Vic, 
 Cap. 35 ; application to Co- 
 lony. 
 
 46. — Witness* >8 of Accused — ex- 
 amination of 
 
 47.— Expenses ot auch Witnesses. 
 
 VI. — Binding over Prosecutor and 
 Witnesses by Recognizances. 
 
 48. — Recognizance. 
 49.— Witness ref-^sing to enter 
 into Eeoogx isance. 
 P 
 
 Sections 
 VII.— Remand. 
 
 60. — General Rules for Remand — 
 verbal, 8 days ; in writing, 
 8 days. 
 51. — Prisoner may be released on 
 
 bail during remand. 
 52. — Return, when Recognizance 
 
 forfeited. 
 53.— Form of Return. 
 
 VIII. -Bail. 
 
 54. — Bail in Felony and other mis- 
 demeanors. 
 
 55. — Bail in other misdemeanors. 
 
 66. — Observations on bail ; not 
 taken in murder, Ac. 
 
 67.— Taking bail ; judicial duty. 
 
 68. — General Rule ; object to se- 
 cure Prisoner's presence at 
 trial. 
 
 59. — Circumstances to be consi- 
 dered. 
 
 60.— Refusing bail; criminal of- 
 fence. 
 
 61.— When Prisoner has right to 
 bail, Justice not to dissuade 
 bail. 
 
 62. — Two Sureties, generally. 
 
 63, — Ability of bail ; how determi- 
 ned ; questions. 
 
 64. — Amount of bail. 
 
 66. — Prisoner may apply to Su- 
 preme Court, when refused 
 by Justice. 
 
 66. — Surrender of Accused by his 
 bail. 
 
 67.— Liberate to Gaoler, on Pri- 
 soner's admission to bail. 
 
 I^. — Bischar-' or Committal of Pri' 
 sone'i r Trial. 
 
 68. — Prisoner when to be dis- 
 charged. 
 69. — When Committed, 
 70.— Conveying Prisoner to jail. 
 
i:^! 
 
 42 
 
 MRCTIftffS 
 
 Of Enijiiiriff: in Indictable Offences. 
 
 ~MueeHnimm». 
 Tl.-Copies of DopofiitioM. 
 V:^.— FomiB in Schodule. 
 78.— Btijjcndiary MagistratoB. 
 74.— Depoflitiou of peraon danger- 
 ously ill. 
 
 Sf.ctions 
 
 75.-PriBonor'8 prcoencp. 
 
 Money found on PriBonrr. 
 Removal of Prisoner without 
 Eabeas Corpus. 
 78.— P.esnmc of the order of th» 
 various steps in an enquiry. 
 
 76. 
 77. 
 
 i.-rnEFEnmNo Tin: charge. 
 
 1. TliG dnties of Justices of the Peace, with respect to In- 
 dictable offences, are the most important and difficult duties 
 Magistrates have to perform; and as all their proceedings have 
 to come before the Supreme Court, or in some few instances 
 before the Quarter Sessions, and are hable to be reviewed by the 
 Judges, Law Officers of the Crown, and prisoner's Counsel ; 
 Justices, for their own credit sake, should endeavour to perform 
 these duties according to Law. And it is because c^ tlicir im- 
 portance that I have gone into every particular, and endeavoured 
 to give plain and clear directions about all that is necessary in 
 ordinary cases. 
 
 2. The Law regulating proceedings before Justices, with 
 respect to Indictable fences, u regulated principally by two 
 At , il & 12 Vic, Cap. A% knowi. as Jervis's Act, and made 
 part of the Law of this Colony, by Chapter 80, Consolidated 
 Statutes, Sec. 4 ; and another Act, 80 & 81 Vic, Cap. 85, which 
 is also undoubtedly part of our Criminal Law, as it is in amend- 
 ment, and a further enactment on the same subject; it is therefore 
 absolutely necessary that the Justices of the Peace in all such 
 proceedings sliould follow strictly the directions contained in 
 these Acts. I have, therefore, compiled, from English works, 
 an analysis of all parts of the Acts which have any reference to 
 this Colony. 
 
 8. For convenience, and to follow the order of the Acl.this 
 part of the Justice's work may be conveniently divided into the 
 following heads : — 
 
 I.— Preferring the Charge. 
 
 II.— The Process to issue agair-t offenders. 
 
 III. — Compelling tlie alteudauce ol "Witnesses. 
 
0/ Enquiries in Indictable Offences, 
 
 43 
 
 IV.— The hearing and examination of Prosecutor'a Wit- 
 H'Osscs. 
 
 V. — Statement of aocaaed, and examination of his witnessed. 
 
 VI.— Binding over Prosecutor and Wituesaea by Keoogni- 
 zances. 
 
 VII. — Remand. 
 
 VIII.— Bail. 
 
 IX.— Discharge or Jommittai of Prisoner for trial. 
 
 X.— Miscellaneous provisions of the Act not falling u: Ur 
 either of thobo heads. 
 
 4. There -a only one Indictable offence applicable to this 
 Colony, in wl -h the time for prosecution is limited, vir. : th« 
 Biot Act, 1 Geo. 1st., 2 c. 5, s. 8. Prosecutions must be com- 
 menced within twelve calendar months. 
 
 5. As Co che place where the oiTouce was committed. The 
 Justice's jurisdiction. [See Chapter III., on Jurisdiction, p. 10 
 to 14. J 
 
 6. Applications should be heard privatbly. — It is recom- 
 mended that all applications for a Summons or Warrant against 
 any person for an offence or cause of complaint, should not bo 
 pern, .ced to bo made in ope a Court ; and where the appHeation ia 
 for a.: indictable offence, an information in writing and on oath 
 should be required from the Prosecutor and his witnesses. The 
 reasons for this course are, that persons sometimes, from mali- 
 cious or revengeful feelings, or for some private object, go before 
 the Magistrates to make complaints, in order to have them pub- 
 hshed to the world, and without any intention of proceeclI;:g 
 further with them. This plan is also strictly m accordance with 
 law. 
 
 7. The Offenders.— The general rule is that all persons 
 are responsible for their acts done in violation of the law ; but to 
 this rule there are exceptions in favour of infants, insane per- 
 sons, persons under coercion, as married women and others, and 
 irresponsible agents ; in some cases also the accused, although 
 interested in the r)ropetty in respect to which the offence was 
 committe.1, (as in the case of a man setting arc to his own houyc), 
 is liable to be convicted. 
 
44 
 
 Of Enquiries in Indictable dffences^ 
 
 8. Infants.— An infant under seven years of age is not cri- 
 minally responsible, the law considering the mental capacity of 
 a child of such tender years to be too immature to enable it to 
 form a sufficient judgment of right and wrong ; but above seven 
 and under fourteen they are criminally responsible for their acts, 
 if it appear they had sufficient discretion, (a) 
 
 9. Lunatics.— In the case o a lunatic, the Law presumes 
 the offence to have been commit jd in a lucid interval, unless it 
 appears to have been committed in the time of his distemper ; 
 and where persons supposed to be lunatics are charged before a 
 Justice with an indictable offence, the course to take is to secure 
 their appearance at the trial, in order that, if they are insane, 
 they may be confined in the Asylum and taken care of. 
 
 10. Wipe.— A wife cannot be convicted of any larceny, bur- 
 glary, wounding, forgery, or uttering forged notes, if the offence 
 be committed in the presence of her husband, and with his 
 coercion and participation ; but in treason, murder, perjury and 
 robbery, and, according to the authorities, in misdemeanors ge- 
 ne-ally, except perhaps conspuracy, the preseme and coercion of 
 h husband will not avail her ; or where the wife was the more 
 active party, or her husband was incapable of constraining her 
 to commit the offence. A wii'e is not guilty of larceny, with re- 
 spect to her husband's goods ; but if her adulterer receive them, 
 knowingly, he would be guilty, and likewise if he took them iu 
 company with the wife, not if the property were the wearing 
 apparel of the wife, (i) [Oke, pp. 828, 829.] 
 
 (a) For exceptions to this rule, see R. v. FhilUps, 8 C. & P. 736 ; and JB. 
 v. Jordan, 9 C. & P., 118, where an infant may be found guilty of a felonious 
 assault. Under the summary jurisdiction in iai-ceny, (Post) persons under 
 and above sixteen may be punished summarily for simple larceny and other 
 felonies. 
 
 (6) On Summaby CoNvicTioNg.— A husband and wife may be jointly con- 
 victed and punished for every offence, punishable under summary conviction, of 
 which they have beou jointly guilty ; and if they are jointly prosecuted, the 
 wife alone may be found guilty, and if neither she nor her husband pay the 
 penalty, she must undergo the imprisonment awarded, as the penalty cannot 
 be levied on the goods of the husband ; and if she bo prosecuted alone and 
 found guilty, tie iaode of procupfjig mast be tae Bame j Mid »uo awy be proN> 
 
Of Enquiries in Indictable Offences. 
 
 45 
 
 11. Jervia Act, 11 & 12 Victoria, Cap. 42, «' An Act to faci- 
 litate the performance of the duties of Justices of the Peace out 
 of Sessions, within England and Wales, with respect to per- 
 sons charged with indictable offences," The Preamble sets 
 forth " that it would conduce much to the improvement of the 
 administration of criminal justice if the several Statutes relating 
 to the duties of Justices of the Peace, with respect to indictable 
 offences, were consolidated, with such additions and alterations 
 as may be deemed necessary, and that such duties should be 
 clearly defined by positive enactment." 
 
 12. Power to issue Warrant or Summons. — It is provided 
 in Section I., that, — In all cases where a charge (a) or complaint 
 (A) shall be made before a Justice that any person has committed 
 or is suspected to have committed any treason, felony, or indioti- 
 able misdemeanor, or other indictable offence whatsoever, within 
 the limits of such Justices, or has committed or is suspected to 
 have committed any such crime or offence out of the Justice's 
 jurisdiction, and the said accused or suspected person is residing 
 
 Becated alone, under the sommary jorisdictioo, for any offence of which she 
 alone has been guilty. [3 J. P. 46.] 
 
 Inconsistency of Pbotsciion.— The absurdity of the law throwing its 
 protecting shield over a woman, who, in the presence of her husband, commita 
 a crime of deep moral turpitude, and withdrawing it in those oSences which 
 imply a less degree of deliberation and criminality, requires only tn be stated 
 in order to be felt and acknowledged. If a husband and wife break the'r neigh- 
 bour's windovv s, the wife must undergo the punishment for such an cffcaoe 
 equally with the husband ; if the same persons, after long premeditation, 
 break at midnight into their neighbour's house and steal a thousand pounds, 
 the law, "out of tenderness," excuses the wife; but if these persons should, 
 whilst committing burglary, murder the inmates, in the hope of preventing 
 dbv<^ction, the law, forgetting its tenderness, orders the wife to be executed. 
 [Stone, p. 600.] 
 
 Note.— Under some of our Local Acts, sue*.' as the License Act, 1875, 
 Sec. 36, and also Game Act, Cap. 116, Gonsol. Stat., Sec. 12, married woman 
 are liable, as unmarried women or principals. 
 
 (a) Chabob. — The most approved course imder this Act, in all cases, is 
 to take an information in writing, and on oath, whatever process is issued 
 against the accused. [See Oke, p. 839.] 
 
 The letters A, B, C, refer to the forma under this Act, ia the Appeudix o{ 
 Forms ; eomo of the forms wi^ be found in Chapter U, * 
 
t 
 
 46 
 
 Of Enquiries in Indictable Offences. 
 
 or is suspected to reside within the jurisdiction of the Justice, 
 the Justice may issue his Warrant (B) to apprehend, or may is- 
 sue a Summons (C) in the first instance, directed to such person, 
 requiring him to attend, and in case he shall fail to appear in 
 obedience to the Summona, the Justice may issue his Warrant : 
 (a) Provided that nothing herein contained shall prevent the Jua- 
 tice from issuing the Warrant at any time before or after ihe time 
 mentioned in the Summons for the appearance of the accused. 
 [Sec. 1.] 
 
 13. Offences on the High Seas or Abroad.— In all cases of 
 indictable offences, committed on the High Seas, or in any har- 
 hour or place where the Admiralty of England have jurisdiction, 
 {or on land beyond the Seas, for which an indictment may be prefer- 
 red in England,) (b) any Justice of any District in which any 
 person charged with or suspected to have committed any such 
 offence shaU reside or be, may issue a Warrant (E) to appre- 
 hend such person, and to cause him to be brought before him or 
 some other Justice to answer the charge. [Sec. 2.] 
 
 14. Justices for adjoining Counties, &c., may act as such 
 for one County, whilst residmg in another. Here it would be 
 District, (bee. 5.) This Section and the two following Sections 
 6 and 7, refer to the County jurisdiction in England, and have 
 no reference to this Coloxiy. 
 
 TFarran*.— No Winrant can be issued to apprehend an offender, except 
 on an information, in writing, and on oath made before a Justice. 
 
 Summons.— May issue without information in writing and on oath, but 
 for the Justice's own protection, and in order to prevent needless Htigation 
 and the trial of frivolous complaints, the Justice should, in all indictable of- 
 fences, require the party laying the information to substantiate it on oath. 
 Experience in the Police Office, in St. John's, has taught us the expediency of 
 this Rule, which should always be followed. 
 
 (a) A case might arise where, after issuing the Summons, the Justice 
 found that the accused would not appear and might be trying to escape, the 
 course then to adopt would be to take a written information, on oath, and to 
 apprehend the accused at once, even before the time mentioned for the accn- 
 Bed'B appearance under the Summons, had expired. This Section under the 
 words before, d-c, giving this power. 
 
 (6) It is doubtful whether this part of the Section, in italics, applies. 
 See Imperial Act, 12 & 13 Vic, Cap. 96, m to Admiralty jurisdiction. »ad 
 AroiuDAla, Vriiu. Fkading, p. 31 to 3a. 
 
0/ Enquiries in Indictable Offences. 
 
 47 
 
 15. Information. — In all cases of charges for indictable of- 
 fences, where any Justice intends to issue a Warrant in the first 
 instance, an information and complaint, in writing, must be made 
 on the oath or affirmation («) of the informant or of some wit- 
 ness ; but where it is intended to issue a Summonf; in the first 
 instance, the information and complaint need not be in writing 
 or on oath, but by parole only. (Sec. 8.) 
 
 IQ. No OBJECTION shall be allowed to any such information 
 or complaint, for any alleged defect in substance or form, or for 
 any variance between the information and the evidence, {h) 
 (Sec. 8.) 
 
 17. Any Person may lay the Information for an indictable 
 offence ; the most usual course is to take the information in the 
 form of a deposition, stating shortly the facts, and not an infor- 
 mation of the offence, couched in the technical and formal lan- 
 guage necessary in an indictment or commitment. [Glen, p. 16.] 
 The reason of this is, because it is a preliminary proceeding when, 
 however the accused is brought before the Justice for the exami- 
 nation of witnesses, the charge against him must be stated with 
 precision, and it should be read as recommend°,d from the cap* 
 tion to the depositions. 
 
 II.— THE PROCESS TO ISSUE AGAINST OFFENDEES, 
 
 18. Summons or Warrant. — Upon such information and 
 complaint (A) being laid, the Justice receiving the same may 
 issue a Summons or Warrant (B) to cause the person to appear 
 before him, or some other Justice ; and every such Summons (C) 
 shall be directed to the party charged, and shall state, shortly, 
 the matter of the information, and require the party to whom it 
 
 (a) Affirmation, see p. 4, Consol. Stat,, and p. 154, sec. 27, and 155, sec. 29, 
 
 (&) Au objection may be made if the eyideuce prove a different ofFenco 
 
 from that stated in the Summons or Warrant, this not being a mere variance. 
 
 [Martin v. Pridgeon, 28 L. J. 179 ; and li. v. lirickhull, 33 L. J. 156.] 
 
 Hione, p. 4. 
 
 The information \b merely for the gniJancc of the Justice in issuing his 
 Warrant, and is in fact no portion of the proceedings so far as the Defendant 
 is concerned in his defence ; any obiection to the form or substance of the 
 information is absolutely prohibited by proviso. [UUn, p. 16,] 
 
 M?H 
 
 H* I J' (I 
 
 
 ;'1 
 
 rt! 
 
 ii 
 
 ;l , 
 
ii 
 
 m 
 
 48 
 
 Of Rnquirics in Indidahle Offences. 
 
 is directed to appear at a time and place therein mentioned, 
 before the Justice issuing the Summons, or before some other 
 Justice or Justices. 
 
 19. Service op Summons.— Every such Summons shall be 
 served by a Constable, or other Peace Officer, on the person to 
 whom it is directed, either personally, or if he cannot conve- 
 niently be met with, then by leaving the same with some person 
 for him at his last or most usual place of abode ; (a) and the 
 Constable or Peace Officer serving the same, shall attend at the 
 time and place mentioned in the Summons, to depose, if neces- 
 sary, to the service thereof. 
 
 20.— Non-appearance.— If the party summoned do not ap- 
 pear according to the Summons, a Warrant (D) may be issued 
 to apprehend and bring him before any Justice {b) to answer 
 the charge. 
 
 21.— Defect in Form.-No objection shall be allowed to 
 any Summons or Warrant for any alleged defect therein, in 
 substance or in form, or for any variance (c) between it and 
 the evidence ; but if the variance appear to such Justice to be 
 such that the party charged has been deceived or misled he 
 may, at the request of the party charged, adjourn the hearing 
 of the case to some future day, and in the meantime remand 
 the party charged, or admit him to bail. (Sec. 9.) 
 
 22.— Form of Warrant.— Every such Warrant (B) shall be 
 under the hand and seal of the Justice issuing the same, and may 
 
 (a) The Summons should be left with some one likely to give it to the 
 accused ; it should, therefore, be left with his wife, servant or parent, and not 
 with any one who will be indifferent about giving it to him. 
 
 (6) Where the Justice is only Justice of the Peace for one of the three 
 Districts, his Warrant must only be directed to the Constables of that District 
 only Where the Justice is a Justice for the Colony, after the words, " To 
 
 ttie Constables of the District," may be added, •• and to any other 
 
 Constables of the Colony." The word Colony would include Labrador and 
 eveij other place under the Colonial Government of Newfoundland. The 
 word '' Mand of Newfoundland- without adding " and its Dependencies- 
 might be held not to include Labrador. 
 
 (c) If the evidence prove a different offence from that stated in the Sum- 
 mens or Warrant, this is not a mere variance ; when this is the case, a fresh 
 
 ,„^^ »„^ ^ „„^ „ nirauv saouia Oe iSSUeU UH uuuu MS pOBBible. 
 
Of Enquiries in Indictable Offences. 
 
 49 
 
 be directed either to any Constable or other person by name, or 
 generally to the Constable of the District over which the Justice 
 has jurisdiction, and shall state, shortly, the offence, and shall 
 name or otherwise describe the offender ; and it shall order the 
 person to whom it is directed, to apprehend the offender and 
 bring him before the Justice issuing the Warrant, or some other 
 Justice, to answer the charge ; and it shall not be necessary to 
 make such Warrant returnable at any particular time, but it 
 may remain in force until it is executed, (a) (Sec. 10.) 
 
 23. — Backing Warrants. — If the person against whom any 
 such Warrant has been issued be not found within the jurisdic- 
 tion of the Justice by whom it is issued, or if he shall escape, 
 go into, reside, or be, or be supposed or suspected to be, in any 
 place (within the Colony) out of the jurisdiction of the Justice 
 issuing the Warrant, any Justice of the District into which such 
 person shaU escape, or be suspected to be as aforesaii, upon 
 proof alone on oath of the handwriting of the Justice issuing 
 the Warrant, may make an indorsement (K) on it, signed with 
 his name, authorizing the execution of the ,7arrant within hia 
 jurisdiction, and such indorsement shall be a sufficient authority 
 to the person bringing the "Warrant, and to all other per:jon3 to 
 whom it was originally directed, and to all Constables of the 
 District where the indorsement is made, to execute the same in 
 such other District, and to carry the offender, when apprehended, 
 before the Justice who first issued the Warrant, or some other 
 
 (a) When executed, ' e Constable cannot discharge himself of the offen- 
 der, otherwise than by tt him before a Justice of the Peace. The War- 
 rant to apprehend has been held to remain in force during the lifetime of the 
 Magistrate who granted it ; and it is now maintained that, under the words 
 " may remain in force until executed,^' a Warrant of apprehension, not of 
 ':ommitment, may be acted upon even after the death of the Magistrate who 
 signed it, 34 J. P., 509, quoted in Stone, 430. Where a Justice granting a 
 Warrant of Commitment, in execution, dies before it is executed, from the 
 Defendant having absconded, or other cause, the safe coarse would be to sum- 
 mon the Defendant, requiring him to shew cause why he should not pay the 
 penalty, and in default be committed, as it is very doubtful whether the War- 
 rant of Commitment of a deceased Justice can be safely executed. IStone, 
 p. 430. 
 
iff 
 
 II 
 
 111 
 
 50 
 
 Of Enquiries in Imhctahle Ofoices, 
 
 Justice for the same District, or before some Justice of the place 
 where the offence appears by the Wan-ant to have been co nmit- 
 ted ; but if the prosecutor, or any of the witnesses for the prose- 
 cution, shall then be in the place where the person shall have 
 been so apprehended, he may be taken, if so directed by the 
 Justice backing the Warrant, before him or some other Justice 
 havmg the same jurisdiction, who may take the examination of 
 the prosecutor or witnesses, and proceed in manner hereinafter 
 directed, &c. (Sec. 11.) Sections 12, 13, 14 & IS, refer to the 
 Backmg of Warrants in Jersey, &c., not applicable, (a) 
 
 FORM (K.) 
 Warrant (Baching aj. 
 
 Nkwfoundland. 
 Wheheas proof upon oath hath this day been 
 madf. before me, one of Her Majesty's Justices of 
 
 * T o X ., ■' *^^ ^^"^ '" ^^^^""^ *^® «»i«J [District] that the 
 
 name of J. S to the within Warrant subscribed is of the handwriting of 
 
 the Justice of the Peace within mentioned : I do, therefore, heret^^^^^^ 
 
 horize W T ho i,ri„gethto me this Warrant, 'and all other ^na 
 
 Ltr^'f ^nT* "" "^^"^"^ ^'''''^' ^"^ ^^- «" ConstaUen 
 
 DisW V; " L\"""l' *^" ^'"^^ ^^*^^" *^« '^^ lasi^mentioned 
 
 [District] (6)* and to bring the said A.B,. if apprehended within the same 
 
 NORTHERX DlSXniCT, 
 
 Island Cove, 
 
 to wit. 
 
 *>,. ^\ r T ^' *° ^^'^^^ ^""*"*« ^^"^^ i« tl^« Section, (No. 11 of 
 
 Itf ^' ''1 f 7 '°.' ""'^ ''^"''- ^^^ •^"^"''^ ^^« i««"^« tl^e Warrant hoJd 
 always send full particulars about the case, the witnesses' residence To toTbe 
 Just.ce who is to back, so as to guide himastothecom-sehe trp'^s^'e JJh 
 
 rZToia r""- ^r"''"^'-^^*-J«^-'M.eMagistratesba'"theWar 
 rant to have the prisoner brought before them, whether there are or are not 
 mtnesses to be examined in St. John's, as it is not always poTs b" to send 
 hun back to the Justice issuing the Warrant at once ; in such cas the pr^ 
 
 folded to the Justice who issued the Warrant, without any iumecessai-y 
 
 «.. Hl'J^Tt ^""'''^"^ ^^'' ''^''''^ '''' *« ^' "^^d «°ly where the Jug- 
 
 cTo e r W^^^^^^ ?' ^^' -y '^ "-^ ^' -^ cases :^ 
 
 before refened to, in St. John's, or where the witnesses were in the District 
 
 of the Justice who backs the Warrant, and before whom the case could, wUh 
 are m tne i>istiict of the Justice who issued the Wnwant a"-! "- -= 
 
Of Enquiries in Indictable Offencei. 
 
 51 
 
 [District] bef re me, or before some other Justice or Justices of tlie Peac* 
 of the same [District], to be dealt with according to law. 
 
 Given under my hand, this day of , 18 — . 
 
 J. L. 
 
 24. Apprehension wheris an Indictment is found. — Upon 
 production to the Justice of a certificate (F) from one of the 
 Chief Clerks of the Supreme Court, either in St. John's or on 
 Circuit, or from a Clerk of the Peace, that an indictment has 
 been found against a person, being either within the Justice's 
 jurisdiction or suspected to be so, the Justice must issue his War- 
 rant (G-) to cause him to be brought before him or sume other 
 Justice, and upon proof (which, of course, must be on oath,) thafc 
 the person apprehended is the same person named in the indict- 
 ment, the Justice shall, without further enquiry, commit (H) the 
 prisoner for trial, or admit him to bail ; and if the person so in- 
 dicted be already in prison for some other offence, such Justice 
 is required upon proof on oath that the person indicted and the 
 person <i prison are one and the same person, to issue a War- 
 rant (I) to the Keeper of the Prison, commanding him to be de- 
 tained until he shall be removed by Habeas Corpus or otherwise. 
 (Sec. 3.) 
 
 25. Apprehension in one District for Offence in another. — 
 Whenever a person shall be brought before a Justice charged 
 with an offence alleged to have been committed in any place 
 wherein such Justice shall not have jurisdiction, he shall exa- 
 mine such witnesses, and receive such evidence in proof of the 
 charge as shall be produced before him within his jm'isdiction ; 
 and if, in his opinion, the evidence shall be sufficient proof of 
 
 cin be brought on at once, the words followiug the asierisk are omitted, and 
 the prisoner, when arrested, is brought at once back before the Justice who 
 issued the Warrant. This latter course, however, is not usual, and •<i,^^kx not 
 ha found convenient. See note to Sec. (5, Cap. ,i, p. 13 ; and, also. Sec. 22 of 
 this Act, with respect to the duties of the Justice backing Warrant, when the 
 backing directs the prisoner to be brought before him as in the above form 
 after the asterisk. 
 
 Sec. 3. — In practice, this Section will not often be put in operation. The 
 nsual course, when an Indictment is found, is to isauo a Ucnch Warrant from 
 the Supreme Court ; this appliee over the whole Colony. 
 
 : 
 
52 
 
 Of Enquiries in Indictable Offences. 
 
 Ji 
 
 
 the charge, he shall commit the accused to the gaol or the place 
 where the offence is alleged to have been committed, or admit 
 him to bail, and shall bind over the prosecutor (if he have ap- 
 peared before him) and the witnesses by recognizance. If the 
 evidence shall not be deemed sufficient to put the accused party 
 upon his trial, the Justice shall bind over the witnesses to give 
 evidence, and shall by warrant order the accused to be taken 
 before some Justice of the District or place where the offence is 
 alleged to have been committed, and at the same time deliver 
 the information and complaint, and the depositions and recog- 
 nizances to the Constable who has the execution of the last- 
 mentioned warrant, to be by him delivered to the Justice before 
 whom he shall take the accused in obedience to such warrant, 
 and which depositions and recognizances shall be treated as if 
 they had been taken before the last-mentioned Justice ; and the 
 Constable or other person who shall have conveyed such accused 
 party under the warrant shall be entitled to be paid his costs of 
 conveying him before such Justice. On producing the accused 
 before such Justice and delivering to him the warrant, informa- 
 tion, (if any), depositions, and recognizances aforesaid, and prov- 
 ing by oath the handwriting of the Justice subscribing the same, 
 the Justice before whom the accused shall be produced shall 
 forthwith ascertain the sum which ought' to be paid to such Con- 
 stable or other person for conveying the accused, and also his 
 reasonable expenses of returning, and shall thereupon make an 
 order for payment thereof; and if such last-mentioned Justice 
 shall not think the evidence sufficient to put the accused on his 
 trial, and shall discharge him without holding him to bail, the 
 recognizance taken by the first-mentioned Justice shall be void. 
 \Id. s. 22.] 
 
 26. Sundays. — Justices may take information and grant or 
 issue any Warrant or any Search Warrant for an indictable 
 offence, on Sunday as well as on any other day. (Sec. 4.) 
 
 Note. — This Section does not in words authorize the execution of a War- 
 rant on Sunday, but it has been held that the 29 Car. 2, Cap, 7, Sec. 6, autho- 
 rizes the arrest, on Sunday, of all persons who have been guilty of indictable 
 offences ; therefore, a person guilty of an indictable offence, may be appre- 
 
 II u- 
 
0/ Enquiries in Indictable Offences. 
 
 53 
 
 27. Apprehension without a Warrant.— Any person who ia 
 present when a felony is committed, may at once appirehend the 
 party, and take him before a Magistrate to be deal' -nth accord- 
 ing to Law : in case of a private individual, howe , it is his 
 duty, if no Justice can at once be found, to hand the offender 
 over to a Constable. [3 Hawk, 5 56.] But when the offence is 
 not committed in the presence of the party, this distinction exists 
 between the powers of a Constable and a private individual. A 
 Constable may not only apprehend a person against whom a 
 reasonable charge of felony is made by another person, althou-^h 
 it may afterwards turn out that no felony has, in fact, been com- 
 mitted, but he may apprehend a person upon his own suspicion 
 alone, of having committed a felony, though in the result it ap- 
 pear that no crime has been committed, but he should act with 
 becoming caution, and on a reasonable ground of suspicion ; 
 and if, after the apprehension, the Constable is guLHy of any 
 unnecessary delay in taking the party before a Justice, or is guilty 
 of any excess or abuse of power, he will still be liable to an 
 action. But with regard to the arrest by private persons, with- 
 out a Warrant, although they are bound to capture, if possible, 
 a party committing a felony in their presence, [2 Haivk, c. 12, 
 s. 1,] yet, if a man choose to apprehend another without a War- 
 rant, upon suspicion alone, of felony, he will do so at his peril, for 
 should no felony in point of fact have been committed, an action 
 will lie agamst him for false imprisonment. A suspicion alone is 
 not enough to justify a private person in making an arrest, and 
 where the party be not detected in the actual commission of the 
 offence, and there is no fear of his absconding before a Warrant 
 can be obtained. The proper course is to get a Warrant, {a) 
 28. Search Warrant.— It not unfrequently occars that with- 
 
 hendedon Sunday, whether such offence involves an actual or only a construc- 
 tive breach of the peace. [Rawlins v. Ellis, 16 L. J. (N. S.) Exch. v. 16 
 M. & W. 172. 
 
 Note.— The arrest of persona under Malicious Injuries' Acts, Local and 
 Imperial, and under Local Telegraph Protection Act, and Imperial Coiuage 
 Act, are referred to in Chapter on Summary Convictions. 
 
 (a) Saunders, pp. 159 & 160, 
 
Iff 
 
 I 
 
 54 
 
 0/ Enquiries in Indictable Offences. 
 
 out any direct proof of guilt existing against a party, there is 
 nevertheless, evidence of his possession of stolen goods which 
 the owner is in a condition to identify. In such a case, criminal 
 proceedings are often initiated by an apphcation to a Justice for 
 a Search Warrant, which being granted, the suspected premises 
 are searched by a Constable, when, should the goods be discov- 
 ered, they are taken possession of. and the occupier of the pre- 
 mises whereon they are found is himself apprehended, and 
 brought before the Magistrate to answer the charge, either of hav- 
 ing stolen, or received them, knowing them to have been stolen. 
 29. .^jw TO OBTAIN A Search WAREANT.-When, therefore, a 
 party whose goods have been stolen, has reasonable grounds for 
 suspectmg that they are upon the premises of some particular 
 person, he should go before a Justice having jurisdiction in the 
 District where the premises are situated, and make oath, by him- 
 self or his witnesses, of the facts on which he founds his appli- 
 cation ; and upon satisfying the Justice either that the goods were 
 stolen or that there is reason to suspect they are stolen, and 
 that theve is also reason to believe they are upon the premises 
 indicated, he wiU grant his Warrant, not only to search the pre- 
 mises, and seize the goods, but to apprehend the party in whose 
 possession they may be found, (a) Under the Larceny Consolida- 
 
 (a) There are cases ^vhere ^rch WarT^^^^^^Tbel^ed, and the arti- 
 cles found under it, and y .t the party in whose possession they are found be 
 guilty of no offence. For .instance, a forged instrument may be in the pos- 
 Bession of a party who neither forged it nor intends to utter it ; or goods Ly 
 have been left m the house by the thief, without the knowledge of the owner 
 of the house. In such cases there can be no lawful authority to apprehend, 
 and therefore the Search WaiTant ought not to direct the Constable to apprel 
 hend the person m whose possession the articles mentioned in the Warrant 
 may be found. In every case, therefore, where a Search WaiTant is applied 
 for. the Justice should be satisfied that if the articles are found in the pos 
 session of the person suspected to have them, there is reasonable cause to be- 
 lieve tha he has been guilty of some offence in connection with the stolen 
 goods, either as receiver or thief, before he gra-.ts a Search Warrant anthori- 
 zmg his apprehension ; and in case of doubt, it will bo much wiser to leavo 
 out the authority to arrest. If the articles be found, and the facts warrant 
 It an ordinary Warrant for the apprehension of the party in whose possession 
 they were found may be afterwards issued, aod the case dealt with ia the 
 ordinary cnnraa r^r^y.,,^. -^ ^ni t ^ ** «* nuo 
 
Of Enquiries in Indictable Offences. 
 
 55 
 
 tion Acts, (24 & 25 Vic, Cap. 90, Sec. 108), it is enacted, " that 
 if any credible witness shall prove upon oath, before a Justice 
 of the Peace, a reasonable cause to suspect that any persoi) has 
 in his possession, or on his premises, any property whatsoever, on 
 or with respect to which any offence, punishable either upon in- 
 dictment or upon summary conviction by that Act, shall have 
 been committed, tho Justice may grant a Warrant to search for 
 such property a In the case of stolen goods." 
 
 30. Mode of executing Search Wabeant. — Great caution 
 should be observed in executing this Warrant ; the Constable to 
 whom it is directed will be the party intrusted with it, but he 
 should be accompanied to the premises by the owner of the pro- 
 perty or some other person who is enabled to point out and swear 
 to the goods in question. If the premises are closed, and the 
 Constable is denied admission after demand, and disclosing his 
 authority and the object of his visit, they may be forced open by 
 him. In making the search, care must be observed that no 
 other goods than those designated in the Warrant, or such as 
 have been actually stolen, be seized. Should the goods sought 
 for be found, the Constable will seize and keep them in his pos- 
 session, and he will then also, by virtue of his Warrant, appre- 
 hend the person upon whose premises they have been found, and 
 take him before the Magistrate to answer tho charge that shall 
 then be preferred against him. 
 
 31. Importance of obtaining Search Warrant. — In very 
 many cases, particularly where a charge is likely to mould itself 
 into one of receiving goods, knowing them to have been stolen, 
 the obtaining of a Search Warrant, in the first instance, will be 
 the most advisable course, since the prosecutor is thereby ena- 
 bled, at the same time, both to seize the goods upon the premises 
 before they are made away with (and so obtain cogent evidence 
 in support of his case,) and apprehend the party suspected of 
 guilt in the transaction ; whereas, if a Warrant to apprehend 
 merely be obtained in the first instance, great, if not insurmount- 
 able, difficulties may afterwards be experienced in getting at the 
 property, and thus a case otherwise almost conclusive, may entire- 
 ly fail for want of the necessary evidence for its support. («) 
 
 (a) Smnciers, p. 169 to 171. 
 

 iii> 
 
 1 
 
 56 0/ Knqniyin in hulidahlc Offences. 
 
 J'ORMH OF HEARCM WAltRANT AND INFORMATION. 
 
 FORM OF INFORMATION. 
 
 Newfoundlaka 
 
 I 
 
 District, ) Bk it remembered that on the day of , 
 
 To Wit. f A. D. 187-, at , in the said [Distrkc^ C. D., 
 
 of , in the said [Datrici] labourer, a credible witness, comes beifore 
 
 me, the underaijrned, one of Her Majesty's Justices of the Peace in and 
 for the said [District \, and upon his [oath] now duly made by him before 
 
 me the said Justice, informs me the said Justice that on the day of 
 
 , [or within days last past, as the case may he'] divers goods and 
 
 chattels of him the said C. D., to wit [ttco coats, twelve stiver spoons, ^c 
 desa-ile the articles stolen accurately], were feloniously stolen from [the 
 
 dwelling house or as the case may be] of the said C. D., situate at , in 
 
 the said District, and that he, this informant, hath probable and reason- 
 able cause to suspect, and doth verily suspect, that the said goods and 
 
 chattels are conceded in the Dwelling House of E. D., of in the 
 
 said District, Fishennalt, and therefore the said C. D. prays that 
 
 justice may be done in the premises. 
 
 (Sd.) CD. 
 Exhibited and sworn before me, at the ) 
 time ^;id place aforesaid, | 
 
 (Sd.) T. Wills, J. P. 
 
 FORM OF SEARCH WARRANT. 
 
 Nkwfoundla<nd, 1 
 
 District, i 
 
 To Wit. I 
 
 To , the Constable at , and to all others, 
 
 the Cs. xstables, for the sa^'d District (or Is- 
 iund.J 
 
 Whereas it appears to me, the undersigned, one of Her Majesty's 
 Justices of the Peace in and for the said District, [or Island of Newfound- 
 land and its Dependencies,] by the information, on oath, of 0. D., of 
 
 in the aaid District, a credible witness, that on the day of 
 
 divers goods and chattels, &c., [here copy the information.] 
 
 These are, therefore, in the name of our said Lady the Queen, to 
 authorize and require y^u, with necessary and proper assistants, io enter 
 
 in the day time into the said [diceUing-house] of the said E. F., at , 
 
 in the [Distrid^ aforesaid [this deacriptim must accord with the Infortna'" 
 
Of Enquiries in Indictable Offences. 
 
 57 
 
 tion], and there diligently to search for the said goods [< 3 m the Informal 
 tim], and if the same, or any part thereof, shall be found upon such 
 search, that you bring the same (a) * and also the body of the said E. F.' 
 before me or some other of Her Majesty's Justices of the Peace in and 
 for the said [District], to be dealt with according to law. 
 
 Given under my Hand and Seal, at — — , in 
 
 the md [District'] iiiiB day of , 
 
 A. D. 1'37— . 
 
 T. Wills, „. P. (l. a.) 
 
 III.— COMPELLING THE ATTE^^7 *NCE OF 
 WITNESSES. 
 
 82. — Attendance op Witnesses by Summons. — If it appear 
 to any Justice, by the oath or affirmation of any creditable r'"''- 
 son, that any person, within the jurisdiction of such Justice, j 
 hkoiy to give material evidence for the prosecution, and will not 
 voluntarily appear as a witness, such Justice is required to issue 
 a Summons (L 1) to such person, under his hand and seal, re- 
 quiring him to appear as a witness at a time and place therein 
 mentioned. 
 
 83. — If the person so summoned shall, withort just excuse, 
 refuso or neglect to appear, then (after proof on oath or affirma 
 tion of the service of the sumn^'^ns, either personally, or by 
 leaving the same for him with siv -n at his last or most 
 
 usual place of abode), the Justice .' .,hom he ought to have 
 
 appeared may issue a (L 2) Warrant to bring such person, at a 
 time and place therein mentioned, before the Justice issuing the 
 Summons, or some other Justice, and which Warrant may be 
 backed as before mentioned. 
 
 34. Warrant in first instance, — Or if the Justice be satis- 
 fied by evidence, upon oath or afiirmation, that it is probable 
 such person will not attend to give evidence without being com- 
 pelled to do so, .then instead of issuing such Summons, a War- 
 rant (L 8) may be issued in the first instance, an-^ such War- 
 
 (a) Omit the part between the asterisks wLerever the person in possession 
 of the things would b» guilty of no off ice. [See ante, note to sec. 28.] 
 Backing Warrantj, see ante, p. 49 & 50. 
 
58 
 
 0/ Enquiries in Indictable Offences. 
 
 rant may also be backed in order to its execution in another 
 jurisdiction, (a) 
 
 as. Kefuptng to bk Examned, Sec. 16.— If on the appear- 
 ance of such person, either in obedience to the Summons or by 
 Warrant, he shall refuse to be examined on oath, or, having taken 
 such oath, shall refuse without just cause to answer such ques- 
 tions as are put to him, any JustJof present and having juris- 
 diction, may, by Warrant, (L 4-) commit the person so refusing 
 to jail, Tor not exceeding seven days, unless he shall in the mean- 
 time consent to be examined, and to answer concerning the pre- 
 mises, {h) 
 
 IV.^THE HEARING AND EXAMINATION OF 
 PROSECUTOE'S WITNESSES. 
 
 36. The Court — Place of Examination. — The room or build- 
 ing where the examinations are taken shall not be deemed 
 an open Court for that purpose, and the Justices, in their dis- 
 cretion, may order that no such perso'j shall have access to or 
 remain iij liuch place without their permission, if it appear to 
 them tiiat t!\e ends of justice will bo best answered by so doing. 
 (Sec. 19.) (c) 
 
 (a) A witness cannot demand his expenses in the first instance in indict- 
 able offences ; he cannot refnse to attend upon being served with a Summons 
 or Subpoena, until b^s expenses are paid. [R. v. Jaihes, 1 C, & P. 222.] 
 
 (b) Any witness who is in Court without being subpcened, is bound to be 
 Bwom and give evidence, but as it appears doubtful whether he could be com- 
 mitted under this Section; it will therefore be the most pruden* ,'ourse to serve 
 8V 'i refractory witness with a Summons on the spot. Stone, p. 7, 28 J. P. 783 ; 
 but see Consol. Stat., p. 153, where any peison present in Court or before a 
 Judicial Officer may be required to testify in the same manner as if b 3 were 
 in attendance upon subpojna issued by such Court or Officer. 
 
 (c) This section only applies to the tf,king of the deposiacns, &c., against 
 a prisoner, upon which occasion the Justice may, if he deem it necessary to 
 
 Becure the ends of justice, exclude all strangers from the room. A JuFtice of 
 the Pdace acting under this statute, does not act as a Courf of Justice to de- 
 termine the guilt or innocence of a Defendant, but as an riilcer deputed by 
 the law to enter upon a preliminary inquiry whether the Defendant ought to 
 be committed for trial or not. Therefore a prisoner when examined before a 
 Magistrate on a charge of felony, is not entitled as of right to have a nnrson 
 skilled in the law present as an advoccte. It is la the discrotiou of tha Ma- 
 
 
 11! 
 
 hi 
 
0/ Enquiries in Indictable Offences. 
 
 59 
 
 
 tgainst 
 ary to 
 lice of 
 to de- 
 ied by 
 jht to 
 fore a 
 ifirson 
 
 87. Examination oe* Witnesses for the Prosecution, Sec. 
 17. — In all cases where any person shall be brought before any 
 Justice, charged with any indictable offence, whether he appear 
 voluntarily upon Summons, (a) or shall have been apprehended 
 with or without Warrant, or be in custody for the same or any 
 other j'ence, such Justice, before committing the piisoner for 
 trial or admitting him to bail, shall, in the presence of the accu- 
 sed, (who shall be at liberty to put questions to any witness 
 against him,) take the statement in the form prescribed in the 
 Schedule to the Act (M), on oath or affirmation, of those who shall 
 know the facts and circumstances of the case, and shall put the 
 same into writing, and such depositions shall be read over to and 
 signed re,- ^ectively by the witnesses and by the Justice taking 
 th'j same ; and such Justice shall, before any witness is exami- 
 ned, administer to him the usual oath or affirmation, [b] 
 
 gistrates in each partioolar case whether they will admit or exclude an advo- 
 cate for the accused. Cox v. Coleridge, 2 D. & R. 86 ; 1 B. & C. 37. Hex 
 V. Borrow, 3 B. & A. 432. Rex v. Stajbrdshire, JJ., 1 Chit. 218. Collier v. 
 Hicks, •* B. & Ad. 663. Upon other occasions, when the Justice acts judi- 
 cially, as in hearing a charge for an offence punishable upon summary oonvic- 
 tion, he docs so in public, atid in open Court, to which every person has a 
 right to resort. [See 11 & 12 Vic, c. 43, s. 12.] It i<' a very unusual thing 
 to exclude the prisouei-'s Counsel, and is not recommended. The legality ol 
 Buch a course is doubted also. 
 
 (a) A person attending before a M Istrate as a witness, on a charga of 
 felony, after a remand, is privilegec' rom srrest on civil process, eondo 
 MORANDc ET EEDEUNDo, though he w«s undor Recognizance or Summons to 
 appear ; eundo, &c., means going, staying, and returning witness in jail. By 
 16 & 17 Vic, c. 80, B. 9, a Judge of the Supreme Court, upon application, by 
 affidavit, may issue a Warrant or Order for bringing up any prisoner confined 
 in jail, &c., under any sentence or under commitment for trial, or otherwise, 
 (except under process in a civil action, suit, or proceeding,) before any Court 
 or Justice, to be examined as a witness in any cause or matter, civil or cri- 
 minal. 
 
 (b) Then'! is only one way, and only one safe way, of taldng depositions. 
 There .aould bs a charge made explaining to the prisoner what he is accused of. 
 It is always best to have this charge in writi ng, and to road it for the caption. Tue 
 witnesses should be sworn '-. his, the prisoner's, presence, and in the prefonce of 
 the Magistrate, and every woru of evideace they give should be taken down 
 in the presence of the accused and the Magistrat j, and the prisoner uhould be 
 asked to oross-examiae. No hurry of basiaess, cr any other matter, sbould 
 
6o 
 
 0/ Enquiries in Indictable OJfei}ccs. 
 
 88. Witnesses unable to Travel.— If, upon the trial of tlio 
 person so accused, it shall be proved by the oath or affirmation of 
 any credible witness that any person whose deposition shall have 
 been taken as aforesaid, is dead, or is so ill as not to be able to 
 travel, (a) and if it also be proved that such deposition was taken 
 in the presence of the accused, and that he or his Counsel or 
 Attorney had a full opportunity of cross-examining the witness, 
 then, if such deposition purport to bs signed by the Justice before 
 whom the same purports to have been taken, it shall be lawful 
 to read such deposition as evidence in such prosecution, without 
 further proof thereof, unless it shall be proved that such deposi- 
 tion was not, in fact, signed by the Justice purporting to sign 
 tlie same. (Sec. 17.) [b) 
 
 39. Examination i?OR Offence in another Jurisdiction.^ — 
 
 prevent the Magistrate or the Clerk of the Peace from always foUowm? tLio 
 rule. The prisoner must liear the words come from the lips of the witness. 
 He must bo present when the words are written down, and must be offered the 
 opportunity of cross-examining. This rule, and all other directions contained 
 in this Chapter, must be rigidly complied with ; and a failure to comply with 
 these rules will probably render the deposition inadmissible in evidence. And 
 ehould the witness die, or cannot be found, when the trial proceeds, may be 
 fatal to the prosecution, and subject the ^Magistrate to much blame. As soon 
 as the accused is in custody, and the witnesses are forthcoming, the depositions 
 should be taken as spcodily as possible, for the convenience of all parties. 
 " Delays are dangerous." 
 
 (a) Deposition can be read as evidence if the witness can travel but can- 
 not give evidence from paralysis, [R. v. Cockburn, 26 L. J. 13] but not if the 
 witness is absent and resident in a foreign country. [R. v. Amtln, 25 L.J, 48.] 
 It will be for the Judge to decide whether the proof of inability to travel is 
 Bufflcient. [R. v. Stephenson, 31 L. J. 147.] The deposition may be roa-I 
 before the Grand Jury as well as the Petty Jury. [See R. v. Clements, 20 
 L. J. 193, and R. v. Scaife, 15 J. P. 581, on the trial of the prisoner. Stone, 
 p. 8.] 
 
 (b) The deposit 'on of a witness taken on one charge may bo used in an 
 indictment for another, as in Reg. v. Beeston, 24 L. J, R., M. C. {N. S.) 5, 
 where the prisoner was charged before a Magistrate with wounding A, with 
 intent, &o., and A's deposition was taken. A afterwards died of the wound, 
 and the prisoner was indicted for his murder ; when it was held that on the 
 trial for the murder the deposition of A might be read in evidence, as although 
 it was not on the same technical charge it was taken in the same case, and 
 the prisoae-r had had '\ full opporiuiiity of ciOsH-cxaiuiattiiga. {Qien, p. 32.) 
 
0/ Enquiries in Indictable Offences. 
 
 6i 
 
 Whenever a person shall appear or shall be brought before a Jus- 
 tice, charged with an offence alleged to have been committed by 
 him in any District wherein such Justice shall not have juris- 
 diction, he shall examine such witnesses, and receive such evi- 
 dence in proof of such charge, as shall be proiluced before him, 
 within his jurisdiction ; and if in his opinion such evidence shall 
 be sufficient proof of the charge he shall commit him to the 
 common gaol for the place where the offence is alleged to have 
 been committed, or shall admit him to bail, and shall bind over 
 the prosecutor (if he have appeared before him) and the witnesses 
 by recognizances ; but if such testimony and evidence shall 
 not in the opinion of such Justice be sufficient to put the accu- 
 sed party upon his trial for the offence Avith which he is so charg- 
 ed, then such Justice shall bind over such witnesses as he shall 
 have examined, by recognizance, to give evidence, and such Jus- 
 tice, by warrant, (R 1) order such accused party to be taken 
 before some Justice in and for the District or place where and 
 near unto the place where the offence is alleged to have been 
 committed, and at the same time deliver the information and 
 complaint, and also the depositions and recognizances so taken 
 by liim, to the Constable who shall have the execution of such 
 last-mentioned warrant, to be by him dehvered to the Justice 
 before whom he shall take the accused in obedience to the said 
 warrant, and which said depositions aiid recognizances shall be 
 deemed to be taken in the case, and shall be treated to all intents 
 and purposes as if the^ had been taken by or before the said 
 last- mentioned Justice, and shall, together with such depositions 
 and recognizances, as such last-mentioned Justice shall take in 
 the matter of such charge against the said accused party, be 
 transmitted to the Clerk of the Court where the said accused 
 party is to be tried, if such accused party shall be committed for 
 trial upon the said charge, or shall be admitted to bail ; and in 
 case such accused par^^y shall be taken before the Jut-oice last 
 aforesaid by virtue of the said last-mentioned warrant, the Con- 
 stable to whom the said warrant shall have been directed, and 
 who shall have conveyed such accused party before such last- 
 
 .I'lrvn/^.l Ifr^Unn nl-ioll lin /^v>4'i 4-1 or] frk Vio liaid VllQ nnsfH ftfl H AT« 
 
 
 
 li .1 
 
 i' • ! 
 
 
 I \ 
 
 -t' 
 
 v/vM r\%\ 4<«i' 
 
63 
 
 Of Enquiries in Indictable Offences. 
 
 nil 
 nii 
 
 penses of conveying the said accused party before the said Jus- 
 tice ; and upon the said Constable producing the said accused 
 party before such Justice, and dehvering him into the custody of 
 such person as the said Justice shall direct or name in that be- 
 half ; and upon the said Constable delivering to the said Justice 
 the warrant, information (if any), depositions, and recognizan- 
 ces aforesaid, and proving b, oath the handwriting of the Jus- 
 tice who shall have subscribed the same, such Justice to whom 
 the said accused party is so produced shall thereupon forthwith 
 ascertain the sum which ought to be paid to such Constable or 
 other person for conveying such accused party and taking him 
 before such Justice, as also his reasonable costs and expenses of 
 returnmg ; and thereupon such Justice shall make an order (R 2) 
 if such last-mentioned Justice shall not think the evidence against 
 Buch accused party sufficient to put him upon his trial, and shaU 
 discharge him without holding him to bail, every such recogni- 
 .-ance so taken by the said first-mentioned Justice, as aforeraid, 
 shall be null and void. 
 
 V.—STATEMENT OF THE ACCUSED AND EXAMINA^ 
 TION OF HIS WITNESSES. 
 
 40. Beading over Depositions.— After the examination of 
 all the witnesses for the prosecution, the Justice or one of the 
 Justices before whom the examination has been completed, shall, 
 without reqmring the attendance of the witnesses, read or cause 
 to be read to the accused, the depositions jiakeu agarnsthim, and 
 say to him these words, or words to the like effect : 
 
 41. Caution to Accused.—" Having heard the evidence, do 
 you wish to say anything in answer to the charge ? You are 
 not obUged to say anything unless you desire to do so, but what- 
 ever you say will be taken down in writing, and may be given 
 in evidence against you on your trial." 
 
 42. And whatever the prisoner shall say in answer thereto, 
 snail be taken down in writing and read over to him, and be 
 signed by the Justice and kept with the depositions of the wit- 
 nesses, and transmitted with them, as after-mentioned; and on 
 
 the triftl siip.li fIpr>noifir>" vyintT i>« ~. ;_ -_•! • . .. 
 
 — , J;"^^,..ivJ« iu«jr wv jjiYcu iM cviuunce agaiiisi the 
 
Of Enquiries in Indictable Offences^ 
 
 H 
 
 accused unless it appear that the Justice (a) did not, in fact, sign 
 the same. 
 
 43. The Second Caution. — Provided always, that the Jus. 
 tice, before the accused shall make any statement, shall state to 
 him and give him clearly to understand that he has nothing to 
 hope from any promise of favour, and nothing to fear from any 
 threat which may have been holden out to induce him to make 
 any admission or confession of guilt, but that whatever he shall 
 then say may be given in evidence against him upon his trial, 
 notwithstanding such promise or threat. (/;) 
 
 44. Pbovided, nevertheless, that nothing herein contained 
 shall prevent the prosecutor, in any case, from giving in evidence 
 any admission or confession, or other statement of the person 
 accused or charged, made at any time, which by law would be 
 admissible as evidence against such person. 
 
 45. Obseevations.— The Act of 80 & 81 Vic, Cap. 85, was 
 passed to -"emedy certain defects and difficulties in the adminis- 
 tration of justice, especially with respect to witnesses for the 
 accused, and the perpetuation of the testimony of persons dan- 
 gerously ill. It contains a few other amendments of the law. 
 As it is applicable to the Colony (c) I have given an analysis of it. 
 
 (a) The Magistrate should always sign his name to the deposition, inime- 
 diately after the witness has signed it and been sworn. 
 
 (?;) The statement of a prisoner may be read if the caution were glTen, 
 and there bs no evidence that any threat or promise has been held out, to in- 
 duce a confession, although the Justice did not give him to imderstand that 
 he had nothing to hope or fear ; the words in the proviso are directory, and 
 not a condition precedent to the admissibility of the prisoner's statement. 
 iU. V. Sattsowie,l9 L. J. 143.] Justices are, however, recommended by the Chief 
 Justice, in all cases, to address the accused in the words of the proviso, besides 
 giviag the printed caution in the imaginary case, Chapter 9, to nullify the effect 
 of any promise or threat of which the Justice of the Peace may not be aware. 
 
 Prisoner's Witnesses.— Mtet the directions contained in this Section have 
 been complied with, the Justices must proceed as to witnesses for the accused in 
 the mode directed by 3rd, 4th, and 5th Sections of 30 & 31 Vict., Cap. 85, 
 Post. A case of Rape occurred lately, in which it was clearly shewn that if 
 the Magistrate Iiad examined the prisoner's witnesses he would never have 
 been committed for trial, the evidence for the defence having establiahed the 
 most conclusive evidence of the prisoner's innocence. 
 
 (c) This Act, having direct reference to the operation and exMUtion of 
 
 
 
 1 
 
 
 i 'HJ^I 
 
PI I? 
 
 64 
 
 Of Enquiries in Indictable Ofjences. 
 
 I; 
 IP 
 
 Analysis of Act. 
 40. Witnesses op Accused Peeson. — In all cases where any 
 person shall appear or be brought before any Justice, charged 
 with any indictable offence, whether committed within this realm 
 or upon the high seas, or upon land beyond the sea, and whether 
 Buch person appear voluntarily upon summons, or has been ap- 
 prehended with or without warrant, or be in custody for the same 
 or any other offence, such Justice, before he shall commit such 
 accused person for trial or admit him to bail, shall immediately 
 after obeying the directions of the 18th section of 11 & 12 Vic, 
 Cap. 42, demand and require of the accused person whether he 
 («) desires to call any witness ; and if the accused person shall, 
 in answer to such demand, call or desire to call any witness or 
 witnesses, such Justice shall, in the presence of such accused 
 person, take the statement on oath or affirmation, both exami- 
 nation and cross-examination, of those who shall be so called as 
 witnesses by such accused person, and who shall know anything 
 relating to the facts and circumstances of the case or anything 
 tending to prove the innocence of such accused person, and shall 
 put the same into writing ; and such deposition of such witnesses 
 shall be read over to and signed respectively by the witnesses 
 who shall have been so examined, and shall be signed also by 
 the Justice taking the same, and transmitted in due course of 
 law with the depositions ; and such witnesses, not being witnesses 
 merely to the character of the accused, as shall in the opinion 
 of the Justice give evidence in any way material to the case or 
 tending to prove the innocence of the accused person, shall be 
 bound by recognizance to appear and give evidence at the said 
 trial ; and afterwards, upon the trial of such accused person, all 
 the laws now in force relating to the depositions of witnesses for 
 the prosecution shall extend and be appHcable to the depositions 
 of witnesses hereby directed to be taken [30 & 31 Vic, Cap. 85, 
 Sec. 8] ; and all the provisions of the 11 & 12 Vict., Cap. 42, re- 
 
 Ij & 12 Vic, Cap. 42, ia made to apply to this Colony, under latter part sec. 
 4, p. 226. Conwl. Stat. 
 
 (a) li ibe Justice neglects to make tliia enquiry, the connnitment ini"ht 
 possibly be ']\\<Hhed on Certiorari. 
 
 i !( 
 
Of Enquiries in Indidahh Offences. 
 
 65 
 
 lating to the summoning and enforcing the attendance and com- 
 mittal of witnesses, and binding them by recognizance and com- 
 mittal in default, aud for giving the accused person copies of the 
 examinations, and giving jurisdiction to certain persons to act 
 alone, shall be read and shall have operation as part of this Act, 
 \ld. s. 4.] 
 
 47. Expenses of such Witnesses. — 'The Court before which 
 any accused person shall be prosecuted or tried, or for trial, be- 
 fore which he may be committed or bailed to appear for any 
 felony or misdemeanor, is hereby authorized and empowered, in 
 its discretion, at the request of any person who shall appear be- 
 fore such Court on recognizance to give evidence on behalf of the 
 person accused, to order payment, unto such witness so appear- 
 ing, of such sum of money as to the Court shall seem reasonable 
 and sufficient to compensate such witness for the expenses, trou- 
 ble, and loss of time he shall have incurred or sustained in at- 
 tending before the examining Magistrate, and at or before such 
 Court ; and the amount of such expenses of attending before the 
 examining Magistrate, and compensation for trouble and loss of 
 time therein, shall be ascertained by the certificate of such Ma- 
 gistrate, granted before the attendance in Court ; and the amount 
 of aU other expenses and compensation shall be ascertained by 
 the proper officer of the Court, who shall, upon the receipt of the 
 sum of twelve cents (a) for each witness, make out and deliver 
 to the person entitled thereto an order for such expenses and 
 compensation, together with the said fee of twelve cents. Such 
 witnesses' expenses shall be paid as part of the expense of the 
 prosecution. 
 
 VI.— BINDING OVER PROSECUTOR AND WITNESSES 
 BY RECOGNIZANCES. 
 
 48. Eecognizance. — The Justice before whom any witness 
 has been examined, may bind, by (0 1) Eecognizance, (b) the 
 
 (a) This fee is not to be taken where the officer is paid by salary, and in 
 certain other cases. [See 32 & 33 Vic, c. 89, s, 10.] 
 
 {b) Eecognizance is an acknowledgment, an obligation of record which a 
 naaa caters into before some Cosrt of Record or Magistrate, duly authorized^ 
 
66 
 
 OJ Enquiries in Indictable Offences, 
 
 prosecutor, and every such -witness, to appear at the next Court, 
 at which the accused is to be tried, to prosecute or to prosecute 
 and give evidence, or to give evidence, as the case may be, against 
 the accused ; and such Recognizance shall particularly specify 
 the profession or trade of the person entering into the same, 
 ■with his Christian and Surname, and the settlement or place of 
 his residence ; and if his residence be in a town, the name of the 
 street, (a) aid the number, if any, of the house in which ho re- 
 sides, and whether he is owner, tenant, or lodger ; and the Re- 
 cognizance, duly acknowledged, shall be subscribed by the Jus- 
 tice, and a (0 2) notice thereof signed by him given to the per- 
 son bound thereby, (i) The several Recognizances so taken, 
 with the written information, if any, the depositions, the state- 
 ment of the accused, and the Recognizances of bail, if any, 
 st .11 be delivered to the proper officer of the Court in which the 
 trial is to be had, before or at the opening of the Court, on the 
 first day of the Sitting thereof, or at such other time as the Judge 
 shall appoint. 
 
 49. Witness refusing to enter into Recognizance. — If any 
 witness refuse to enter into a Recognizance, such Justice may, 
 by his Warrant, (P 1) commit him to the jail for the District in 
 which the accused is to be tried, until the trial, unless the wit- 
 ness shall in the meantime enter into a Recognizance, before 
 some Justice of the Peace in the District where the jail is situa- 
 ted ; and if the accused shall afterwards be discharged by the 
 Justice, from want of evidence, or other cause, such Justice or 
 
 with condition to do some particular act, snch as to keep the peace, give CTi- 
 dence, &c. This is witnessed only by the record of the Court, or the signa- 
 ture of the Magistrate, and is not like a Bond signed and sealed by the party 
 bound. 
 
 (a) Many of these minute particulars of description can only be complied 
 with in some few places, like St. John's and Harbour Grace. So long as the 
 name, occupation, and residence, are given, so ac to identify the party, it will be 
 Buificient. When the Recognizances are completed, each party bound should 
 be handed the notice of the Recognizance. 
 
 (&) The papers should be forwarded, as directed, to the Chief Clerk and 
 Registrar Supreme Court, St. John's, or to tho Chief Clerk of the Circvit 
 where the case is to be tried. See note in Chanter on Practice, 
 
0/ Enquiries in Indictable Offences, 
 
 67 
 
 any other Justice may, by his order, direct the witness (P 2) to 
 be discharged from custody, (a) 
 
 VIL— REMAND. 
 
 50. Genkral Rules vor Bemand, — If deemed advisable, from 
 the absence of witnesses or other reasonable cause, the Justice 
 may, by Warrant, lemand the accused from time to time, for a 
 period noi ^^^oeding eight clear days, {b) to the nearest jail ; but if 
 
 (a) There seems to be no power to require witnesses, whether minors or 
 married women, to find sureties for their appearance. [Stone, p. 9.] It will 
 be advisable to get the husband or father as surety, if you can. Where such 
 a power as this is given to a Magistrate, there will be very little occasion for 
 its use. The Constable who has charge of the case should see that tho wit- 
 nesses are forthcoming in the proper time ; and if they leave the District or 
 Bettlement, should notify the Attorney General of their whereabouts in time. 
 
 Remand. — Justices are recommended, where there is a strong prima facie 
 case against a prisoner, to use this power of remand when there is a proba- 
 bility of their obtaining more evidence, and where they feel the ends of jus- 
 tice will be served by their doing so. The accused need not have been appre- 
 hended under process to warrant a remand, and slight evidence against him 
 upon the charge is sufficient for that purpose ; for it is generally impossible, 
 except in the most simple case, to have ready all the evidence, or to present a 
 prima facie sufficient to justify a. committal on first hearing, &c. [Oke, 
 p. 880, note. 
 
 Whilst an enquiry is pending before a Justice, or a prisoner is in gaol 
 nni&v remand, a Judge of the Supreme Court cannot interfere with that dis- 
 cretion, by ordering the accused to be admitted to bail, like he may do after 
 committal in any case. As a general rule, it may be said that, in practice, it 
 is not usual, on remand, to admit to bail, (especially where the precise nature 
 or extent of the charge u undeveloped, unless property involved is very small), 
 in those cases in which an accused is not entitled to be bailed after commit- 
 tal ; in other cases, it is. {.Oke, p. 881, note. 
 
 The reason for this caution is obvious; the accused, if at liberty, may 
 keep witnesses out of the way, secrete the stolen property, and in many waya 
 defeat the ends of justice, and prevent the tnie facts being brought out in the 
 case. Justices will, of course, make these remands as short as consistent 
 with the nature of the case, and the difficulty of bringing the evidence for- 
 ward. 
 
 (6) The limitation of eight days does not apply to adjournments in sum- 
 mary proceedings under 11 & 12 Vic, c. 43, s. 16. The course adopted in the 
 Metropolitan Police Courts is to remand at the latest till the day following 
 
 meaning of theae words •' clear days" would be eight intervening days be- 
 
 ^. 
 
68 
 
 0/ Enquiries in IndicL ,e Offences. 
 
 i i.i'" 
 
 II 
 
 « 
 
 i 'l 
 i 
 
 'i 
 
 
 the remand bo for a timo not exceeding throe clear days, the Justice 
 may verbally order the Constable, in whose custody the accused 
 may be, or any other Constable named by the Justice, to conti- 
 nuo to keep such party in custody until the time appointed for 
 continuing the examination, when any Justice may order the 
 accused to be brought before him, or any other Justice, before 
 the expu-ation of such period. 
 
 61. Instead of detaining the accused in custody during the 
 period to which he is remanded, any one Justice before whom he 
 Bhall be brought, may discharge him, upon his entering into a 
 recognizance, (0 2) and (0 8) with or without sureties, condi- 
 tioned for his appearance, at the time ami place appointed for 
 the continuance of the examination. («) 
 
 C2. And if the accused party do not appear upon the recog- 
 nizance, the Justice may make return of the recognizance, and 
 of the forfeiture thereof,* under his hand and seal, in the following 
 form : — 
 
 63. Form. — 
 
 I, Thomas Wills, of Island Cove, in the Northern District, one of 
 Her iMajesty's Justices of the Peace for tlio said District of Newfound- 
 land, do hereby certify and return unto the Honourable the Supremo 
 Court, that the Tlecognizance hereto annexed, marked by me, was on or 
 
 about the day of June, in tlie year 1875, taken before me ; and that 
 
 the same has become forfeited by breach of the conditioa thereof, by 
 Job Stiggins, therein named. 
 
 Given under my Hand and Seal, at I&land 
 
 Cove, this day of , A. D. 1876. 
 
 Thomas Wills. (Seal.) 
 
 rilL—BAIL. 
 54. Bail in Felony and certain Misdemeanors. — Where any 
 person shall appear or be brought before a Justice charged with 
 
 tween the day of romand aiul of hearing. Wo do not know ou what principle 
 H difforont rule of interpretation is noted upon in London.— S'ionc. 
 
 (rt) Coiii^ol, Stat. p. 170.— This is the rule to follow when the condition 
 of the Recognizance is not to appear in the Supreme Court, either in Saint 
 John's or ou Circuit. When the condition is to appear in the Supreme Court, 
 the course is regulated by Sec. 1, Cousol. Stat., p. 1G9. 
 
 1. Wlicncvcr any rccoguizauco returned into or given to the Supremo 
 
Of Enqtiiries in Indictable Offences. 
 
 69 
 
 any folony (except treason), assault with intent to commit any 
 felony, attempt to commit any folony, obtaining or attempting 
 to obtain property by false pretences, misdemeanor in receiving 
 property stolen or obtained by false pretences, perjury, or subor- 
 nation of perjury, concealing the birth of a child by secret 
 burying or otherwifc-e, wilful or indecent exposure of the person, 
 riot, assault in pursuance of a conspiracy to raise wages, assault 
 upon a peace officer in the execution of his duty, or upon any 
 person acting in his aid, neglect or breach of duty as a peace 
 officer, such Justice may, in his discretion, {a) admit such person 
 
 Court shall become forfeited by breach of tho condition thereof, the Court 
 may, by a rule nm, to be made upon sufficient affidavits, shewing the execu- 
 tion and forfeiture of such rccoKuizanco, aiul to bo served upon such of the 
 parties cxccutinjx tho sumo as shall bo within tho jurisdiction of tho Court, 
 require such parties to shew cause why tho said recognizance should not be 
 declared to bo forfeited, and tho amount of tho penalty thereof paid by them ; 
 and thereupon, after hearing tho parties to such rule, or such of them as 
 may appear upon tho same, or in default of appearance, make an order pro- 
 nouncing such recognizance forfeited, and directing the payment into Court 
 of the penalty thereof by tho parties liable, or discharging such rule nisi, as 
 may be lawful in that behalf : Provided that tho Court, upon sufficient spe- 
 cial cause, may, if they shall see fit so to do, lessen or altogether remit the 
 amount of such penalty. 
 
 2. When any recognizance for tho doing or not doing of any matter or 
 thing, other than tho appearance of any person before the Supreme Court, 
 afores! and made to any Justice or Court of Session, shall become forfeited, 
 such Juci/icc, or in case of his death or incapacity, any other Justice of the 
 district, or the Clerk of Peace or the Court of Session, as the case may be, 
 may make return of such recognizance, and of tho forfeiture thereof, under 
 his hand and seal, in the form substantially in the schedule annexed, (as ia 
 Form 53,) to th(. Supreme Court, and thereupon the like proceedings shall be 
 had for declaring the forfeiture of such recognizance and for the recovering 
 of the penalty as are hereinbefoi'o directed in other cases. 
 
 (If the return. Form 53, bo made by any other than the Justice before whom 
 the recognizance was entered into, or the breach of condition occurred, or was 
 shewn, let tho words " all which is satisfactorily proven to me," be added 
 after tho word " named.") 
 
 (a) Although it is discretionary with the Justice whether he will accept 
 bail or not, it has been held by Lush, J., and Brett, J., that a Judge has no 
 discretion in the case of » misdemeanor, as, for instance, obtaining cQods by 
 false pretences, bat is bound to admit to bail. [See U J. P. 701.] 
 
70 
 
 Of Enquiries in Indictable Offences. 
 
 to bail, upon his procuring such surety or sureties as, 'a the 
 opinion of the Justice, will be sufficient to insure tl\c ap- 
 pearance of the accusod at the time and pUce of trial, an 
 take the recognizance of the accused and his surety or sure- 
 tiea, conditioned for his apiaaranoe at the trial; and whert, 
 a person charged with any inchctable offencj shaii be com- 
 mitted for trial, the Justice who signed the warrant of com- 
 mitment may, at any time afterwards, and before the first 
 day of the sitting or session at which he is to be tried, or 
 before the day to which the same muy be adjourned, admii; 
 such accused person to bail in manner aforesaid ; or if the com- 
 mitting Justice or Justices shall be of opinion that, for any of 
 the offences aforesaid, the accused person ought to be admitted 
 to bail, he or they shall in sucli cases, and h. all other C9,ses of 
 misdemeanors, certify, on the back of the warrant of commit- 
 ment, his or their consent t such accused person being bailed, 
 stating the amount of bail which ought to be required ; and any 
 Justice attending or being at the gaol or prison («) where the 
 accused shall be in custody, on production of such certificate 
 may admit him to bail (i) in manner aforesaid ; or if it shall be 
 inconvenient for the sureties to attend at the prison to join m 
 the recognizance with the accused, then %? committing Justice 
 may make a dupHcate of the certificate, and on the sarnie 
 bemg produced to any Justice for the same District or place, 
 the last-mentioned Justice may take r?cognizance of the sure- 
 ties ; and on Ruch recognizance bein^ transmitted to the keeper 
 of the prison, and produced, together with the certificate of the 
 commitment, to any Justice attending >/ such gaol or prison, 
 Buch last-mentioned Justice may take the recognizance of the 
 
 (a) The gaoler will not, it seems, be iustified in taking the prisoner from 
 the gaol to the Magistrate. [14 J. P. lOii.] 
 
 (6) A single Justice, being the committing Justice, may admit to bail in 
 all felonies; and if such committing Justice certify on tho back of the com- 
 mitment that such person ought to be admitted to bail, and the amount of bail, 
 any Justice attending or being at the prison may admit such person to bail. 
 Jf the application for bail be made to a Judge at Chambers, a copy of the 
 depositions should be brought before the Court ia tl'" Iret instAnce, [Ex parte 
 
 it' 
 
 it' 
 
 jiiicl 
 
 tf\ T Tk nn 
 
 IJ/C, i.9 tf. £-. O 
 
 75.] 
 
Of EnquirUs in Inc'ctable Offences. 
 
 71 
 
 ap- 
 
 
 accused, and order him to be discharged as to that commitment. 
 Hd. 8. 23.] 
 
 65. Bail in other Misdemkanors. — Where any person shall 
 bfl ci.arged before any Justice with any indictable misdemeanor 
 othei' than those before mentioned, such Justice, after taking the 
 examiuations in writing, shall admit him to bail instead of com- 
 mitting him to prison, or if he shall have been committed to 
 prison, and shall apply to any one of the visiting Juetices of the 
 px 'on, or to any other Justice of the same District, before the 
 first day of the sitting or SDssions at which he i'^ to be tried, or 
 before the day to which the same may be adjourned, such Jus- 
 tice shall accordingly admit him to bail. And in all cae^s where 
 such accu^'.ed person, in custody, shall be admitted to ball (a) by 
 a Justice other than the committing Justice, the Justice so ad- 
 mitting to bail shall forthwith transmit the recognizance to the 
 committing Justice or J".stices, or one of them, to be by him or 
 them transmitted to the proper officer. [Id. s. 23.] 
 
 66. Bail — ObservatioxNs on. — The 28rd Section of this Act 
 enumerates the different offences in which the Magistrate may^, 
 in his discretion, take bail ; in all other cases, if sufficient bail is 
 offered, he is bound to take bail. Bail is not to be taken in trea- 
 son, and bail is never taken by a Magistrate in cases of murder 
 or manslaughter. In the Appendix of Forms of Indictable Of- 
 fences, I have given a list of the most common offences, and in 
 each case it is shewn when bail is discretionary or compulsory. 
 
 67. It has been laid down by an eminent authority, that the 
 power of a Magistrate to accept or refuse bail, even in cases 
 where the accused has a right to be bailed, is a judicial duty ; 
 and an action will not lie against him for refusing to take bail, 
 in such cases, without proof of express malice, even though the 
 sureties tendered are found by the Jury to have been sufficient;. 
 Sinford V. Fitzroy, 18 L. J. (N. S.) M. C. 108 ; 13 Q. B. 240 ; 
 Oke, p. 916. 
 
 (a) From Linford v. Fitzroy, 18 L. J. 108 '' appears that a Magistrate is 
 not liable to a .y action for refngiog to tako tail without proof of f ^|/reflB 
 laaUce. 
 
if 
 
 72 
 
 Of lifitjuirics in Ind'tubU Offences. 
 
 C8. In coining to a docifih-n wIicIIkh' an accusoil hJiouUI or 
 Hlionld not bo adniittod to bail, tbo Justico Hbouul rcnionibor that 
 Lho only purpose of u («)nijnittal to priison, b»!loro trial, iw to 
 •' tnmiiii i/ii* opin'armicti of tho turmed penon at the tivui <i\\d plitca 
 t(7u7.' Olid ivhn; li,< is to ho tritul." The ju int, tborrforo, lliat the 
 Ma^MHtratr hIiouM t'ar(>t'ully couHidcu-, OH])iicially \\\wi\\ bail is diH- 
 croiionary, is (lun-o Mulliciont noonrity fcr (ho prisoncr'H a/i/war' 
 once at bin trial ; and if tho Justice iVc'ls watisliod that by adniit- 
 tinj'; tho a«icuHod to bail, his appoaranoo to take hia trial will nofc 
 be imperilled, Ins duty is <d)vi(Mis. 
 
 CD. Upon such a (luostion, nuvny cinnunstancos have to bo 
 taken into consideration by the Mnxistrate, and the probability 
 of tho jirisoners surrendering (o take his trial Avill be nu)re or 
 less inllnenced by his position in li.o, liia wealth, ^U\, the nuig- 
 nitude or specially dis<'r,vceful ciiaracter of the charge against 
 liini, its elVect upon him m society, thn nature of the evidence, 
 Avlu^ther it is very stronti, so as to niiUve Ida conviction almost a 
 oortainty, eoutradiciory or doiihi/nl, so as to give him a chancy 
 of aocpiittal, or tmr/r, so as to niake his ac(piittal ahnost a cer- 
 tainty. Another importnnt i>lement to consider is the ]U'obablo 
 Beventy of the pmnshment ; ai'd 1 nuiy also mention another con- 
 pideration, and a very important one in this country. The ao- 
 ousod's opportunities of escnping, ami the ties tJnit bind him to 
 tho country, his wife and cIiiKlren, parents, tte. ; all these nuit- 
 tors Avill alTect the Justice's judgnuvnt in taking bail, lie nuist 
 rcuembor, liowover, that whilst the probability of a conviction 
 increases, tho doubt of tho priBoner's tsurrender, hia actual or 
 admitted guilt, ia iu)t, of itself, a couclusivo reason against ad- 
 initiing him to bail. 
 
 00. To rc'iise bail in a case in wliich the Defendant is oiti- 
 thd to it, is in the eye of the law a serious dereliction of duty, 
 and may subject the Justice to a criminal inftunuition. [lirx v. 
 Jnid.icr, •! Q. r>., -liiS ; licij. v. Suiindcn, 2 Cm; c. c. '2-1!). J 
 
 CI. Vhen bail is oiVered in a case iu which the Defendant 
 luis a ii<iht to be bailed, *he Justice should bo careful not to say 
 anything by way of dissuasion, a Wugistrate not being justiiiod 
 ill iiitcrloriii;; to prevent u uiuu ji-om iiyyistinj,' Lis liciijhbour ; 
 
Of Enquiries in Indictable Offences, 
 
 73 
 
 licillior in Huoh a caao should Iho Maf^'iHtrato allow himsolf to bo 
 infliioncod in rcjocling i)crHonH olTcrcd an bail, on any viowB of a 
 politioal naturo. Tho cbiol' coiiHidoration Avill bo Iho subHtantial 
 charactor of Iho bail, and Ihoir ability to porforni the conditioua 
 of their rocof^nizanco. [/iV//. v. ikmnden, Sa}tra.] 
 
 02. It in UHual to have two HurotioH, though if ono will . •- 
 euro tho appoavaiico of tho accuHod, ono may bo taken, (a) Thoy 
 nhould bo houHoholdora, though thoro ia no imperative rule upon 
 the Hubject ; however, aH Much HuretioH only Hhouldbe received aa 
 may bo made anHWorablo in caHo of dc.ault, it in oljviouH that a 
 porHon who in not a houHeholder, havhig a bottled habitation 
 wherein u living may bo made, can answer tho purpoue intended 
 by admitting to bail. ISuuiulan, p. 220.] 
 
 Oy. For the purpose of determining tho ability of tho pcr- 
 Hon or persons tendered as bail, whoHo names the Justice may 
 reciuiro to bo given to tho prosecutor some time previously, say 
 twenty-four or forty-eight hours, the Justice may administer to 
 thorn an oath, in this form : — " To all such quodtions as may bo 
 demanded of you, you shall true answer make ; so help you Oou." 
 Tho Justice uuiy then ask thorn of their means, jproperty, and 
 liabilities, ko. 
 
 01. As regards tho amount of bail, tliis will depend upon 
 tho magnitude of tho oilenco, and the position and wealth of tho 
 parties, and will, in every case, bo a lit subject for tho exorciso 
 of a wise discretion. No precise rule can bo laid down ; caro, 
 however, should be observed, that whilst tho amount ia not un- 
 necessarily heavy, it is nevortholess sulliciontly large to make its 
 forfeiture a matter of serious inconvonion{'r> to tho parties. Tho 
 rocognizanco of tho accused himself is usually double that of 
 each of his surotios. 
 
 05. Should tho Justice doclino to tako bail, tho prisoner 
 may apply to tho Supremo Court, or to ono of tho Judges of that 
 Court, for permission to bo admitted to bail. 
 
 {(t) On romantl, tho acouafid'a own rocogni/.anco, (if tho Justice conscnta 
 to baU Iciug tnkou,) ia Buflicicut. [S. 2.' 11 & 12 Vic, c. 42. Oke, 880, 
 B81. 
 
 , ; .11 
 
74 
 
 Oj Enquiries in Indictable Offences. 
 
 66. At any time during which the responsibility of the bail > 
 continues, they may surrender the Defendant to custody, and so 
 release themselves of their liability ; to do this, they should either 
 apprehend him, and take him before a Justice, who thereupon 
 will commit him or require him to give fresh bail, or the bail 
 may make a complaint, on oath, before a Justice, of their belief 
 that the Defendant will abscond, and thereupon a Warrant will 
 be granted for his apprehension, and this would seem to be the 
 better course of the two, as it precludes a chance of a breach of 
 the peace. 
 
 67. Liberate to Keeper. — Where a Justice shall admit to 
 bail any person after commitment, such Justice shall send to the 
 keeper of the prison a warrant (S. 5) of delivei-ance under his 
 hand and seal requiring him to discharge the person admitted 
 to bail, if he be detained for no other offence, ild. a. 24.] 
 
 IX.—DISCHARGE OR COMMITTAL OF PRISONER 
 
 FOR TRIAL, 
 
 68. Discharge. — If, after hearing all the evidence against 
 the accused, the Justice tlien present shall bo of opinion th'it it 
 is not sufficient to put such accused party upon his trial, he shall 
 order him to be forthwith discharged. 
 
 69. Committal. — But if the evidence is, in the opinion of 
 the Justice, sufficient, or if it raise a strong or probable presump- 
 tion of the guilt of the accused, such Justice shall, by warrant, 
 (T 1) commit him to the gaol for trial, or admit him to bail. 
 [Id. s. 25.] 
 
 70. Conveying Prisoners to Gaol. — The Constable, or a"'y 
 of the Constables to whcm the Warrant of Commitment is di- 
 rected, shall convey the accused to prison, and deliver him, to- 
 gether with the Warrant, to the Keeper, who shall give a rece i 
 for such prisoner, settiig forth the state and condition in which 
 he was delivered ; and in all cases where such Constable shall be 
 entitled to his expenses for conveying such person to pr:, n, tL3 
 committing Justice, or any Justice for the District whc jui the 
 offence is alleged in the Warrant to have been committed, shalS 
 ascertain the sum which ought tc be paid to the Constable for 
 
Of Enquiries in Indictable Offences, 
 
 75 
 
 tL3 
 
 conveying the accused to prison, and also his expenses in return- 
 ing, and make an order for payment thereof. But if it appear 
 to the committing Justice that the prisoner has money sufficient 
 to pay the expenses of conveying him to prison, he may order 
 such money, or a sufficient p'^ thereof, to be applied for the 
 purpose. [Id. s. 26 ] 
 
 X.-MISCELLANEOUS. 
 
 71. Copies op Depositions. — At any time after the examina- 
 tions are complete'', and before the first day of the sitting of tho 
 Court at which any person so committed, or admitted tc? bail, is 
 to be tried, such person shall be entitled to have, ff om the offi- 
 cer having the custody of the same, (a) copies of the depositions 
 on which he shall have been committed or bailed, on payment o^ 
 a sum not exceeding l^d. British sterling-, for each folio of 
 90 words. (Sec. 27.) 
 
 72. Forms in Sohedule.— -The several forms in the Sche- 
 dule to the Act, or forms to the like effect, shall be deemed vaUd. 
 (Sec. 28.) 
 
 73. Stipendiary Magistrates, &c. — Every Stipendiary Ma- 
 gistrate shall have power to do, alone, whatever is authorized by 
 this Act to be done by any one or more Justices. Powers of the 
 same character are given to Btipendiary Magistrates, under the 
 6th Section, Cap. 13, Consol. Stat., quoted ante, Cap. 2, page 8, 
 Manual. 
 
 74. The remaining Sections of this Act refer to Berwick- 
 upon-Tweed, and ihe non extension of the Act to Scotland, Ire- 
 laud, &c , and to the repeal of Statutef. 
 
 75. Deposition op Perscn danokrously III. — Whenever it 
 shall be made to appear to the satiafr lion of any Justicf %at 
 any person dangerously ill, and ' ' t-io opinion of some register- 
 
 (a) This section does not apply to dopoaitions on which the prisoner has 
 been remanded [Ex parte Fletcher, 13 L. J . 67] , but only to persons bailed 
 or committed for suine oli'onco ior which they are to be tried, and with the 
 view of enabling them tc prei>are for trial ; and not to a person committed for 
 default of sureties, and who has been discharged at the sessions. [Ex parte 
 
I 
 
 76 
 
 0/ Enquiries in Indictable Offences. 
 
 ed medical practitioner (a) not likely to recover from such illuegg, 
 is able and willing to give material information relating to any 
 indictable offence, or relating to any person accused of any such 
 offence, and it shall not be practicable for any Justice to 
 take an examination or deposition in accordance with the pro- 
 visions of 11 & 12 Vic, c. 42, s. 17, of the person so being HI, 
 jt shall be lawful for the said Justice to take in writmg the state- 
 ment on oath or affirmation of such person so being ill, and such 
 Justice shall thereupon subscribe the same, and shall add thereto 
 by way of caption a statement of his reason for taking the same, 
 and of the day and place when and where the same was taken, 
 and of the names of the persons (if any) T)resent at the taking 
 thereof, and, if the same shall relate to any indictable offence 
 for which any accused person is already committed or bailed to 
 appear for trial, shall transmit the same with the said addition 
 to the proper officer of the Couif. for trial at which such accused 
 person shall have been so committed or bailed ; a^d in aU other 
 cases he shall transmit the same to the Clerk of the Isace of the 
 District in which he shall have taken the same, who is hereby 
 required to preserve the same, and file it of record ; and if after- 
 wards, upon the trial of any offender or offence to which the 
 samei may relate, the p^srson who made the same statement shall 
 be proved to be dead, or if it shall be proved that there is no 
 reasonable probability that such person will ever be able to travel 
 or to give evidence, it shall be lawful to read such statement in 
 evidence, either for or against the accused, without further proof 
 thereof, if the same purports to be signed by the Justice by or 
 before whom it purports to be taken, and provided it be proved 
 to the satisfaction of the Court that rca,sonable notice (see R. v. 
 Quigley, 18 L. T. (N.) 211), of the intention to take such state- 
 ment has been served upon the person (whether prosecutor or 
 accused) against whom it is proposed to be read in evidence, and 
 that such person, or his counsel or attorney, had or might have 
 had, if ho had chosen to be present, full opportunity of cross- 
 examining the deceased person who made the same. [Id. s. 6.] 
 
 (a) This meana a Doctor with a regular medical diploma. 
 
0/ Enquiries in Indictable Offences. 
 
 17 
 
 70. Prisoner's Presence. — ^Whenever a prisoner in actual 
 custody shall have served or shall have received notice of an in- 
 tention to take such statement as hereinbefore mentioned, the 
 Judge or Justice by whom the prisoner was committed, or the 
 visiting Justice of the prison in which he is confined, may, by 
 an order in writing, direct the gaoler having the custody of the 
 prisoner to convey him to the place mentioned in the said notice 
 for the purpose of being present at the taking of the statement ; 
 and such gaoler shall convey the prisoner accordingly, and the 
 expenses of such conveyance .ihall be paid out of the funds ap- 
 plicable to the other expenses of the prison from which the pri- 
 soner shall have been conveyed. [Id. s. 7.] 
 
 77. Money found on Prisoner. — Where any prisoner shall 
 be convicted, either summarily or otherwise, of larceny or other 
 offence which includes the stealing of any property, and it shall 
 appear to the Court by the evidence that the prisoner has sold 
 the stolen property to any person, and that such person has had 
 no knowledge that the same was stolen, and that any monies 
 have been taken from the prisoner on his apprehension, it shall 
 be lawful for the Court, on the application of such purchaser, 
 and on the restitution of the stolen property to the prosecutor, 
 to order that out of such monies a sum not exceeding the amount 
 of the proceeds of the said sale be delivered to the said purcha- 
 ser. [Id. s. 9.] 
 
 78. Removal op Prisoner without Habeas Corpus. — Where 
 recognizances shall have been entered into for the appearance of 
 any person to take his trial for any offence at any Court of cri- 
 minal jurisdiction, and a bill of : idictment shall be found against 
 him, and such person shall be then in the prison belonging to 
 the jurisdiction of such Court, under Warrant of Commitment, 
 or under sentence for some other offence, it shall be lawful for 
 the Court, by order in writing, to direct the governor of the said 
 prison to bring up the body of such person in order that he 
 may be arraigned upon such indictment without Writ of Habeas 
 Corpus, and the said governor shall thereupon obey such order, 
 [Id. s. 10.] 
 
 As a reminder to Justices in taking examinations in indict- 
 
78 
 
 Of Enquiries in Indictable Offences* 
 
 able offences, under this Act, I now give a brief note of the 
 various steps of the procedure, taken from Oke, p. 887: — 
 
 1. — Prosecutor's Counsel or Attorney to open case. 
 
 2. — Depositions of Prosecutor's Witnesses taken. 
 
 8. — Accused invited at the close of each examination to put 
 queitions to the witness ; such cross-examination being distin- 
 guished in the deposition from the examination in chief. 
 
 4. — When case for prosecution completed, depositions read 
 over to and signed by the witnesses, (it is generally more conve- 
 nient to read over each deposition to the witness, when finished, 
 and have it then signed and completed) ; when examinations are 
 completed, depositions must all be read over, but the witnesses 
 need not be present at the reading. 
 
 5. — In long cases, or where there have been several exami- 
 nations, it is convenient to hear jProsecutor's Counsel or Attorney. 
 At this stage sum up the evidence, and give his reasons for the 
 committal of the accused on the charges alleged, (a) 
 
 6. — If evidence insufficient, and not calling for an answer, 
 • accused discharged. 
 
 7. — If evidence sufficient for an answer, Attorney of accused 
 to address the Magistrate, if case for prosecution completed ; or 
 if not completed, and remand intended, to state his objections to 
 a remand. 
 
 8. — If evidence incomplete, accused remanded or bailed 
 until a future day. 
 
 9. — If evidence sufficient, and case completed, depositions 
 read as No. 4, and the Magistrate or Clerk of the Peace has in- 
 formed accused of the precise legal charge against him, (as in 
 the form in caption.) 
 
 10. — Justice to caution accused, as explained at page 62, 
 Manual, and under 30 & 31 Vic, c. 85, s. 3, p. 63. 
 
 11. — Accused's statement to be taken down and read over 
 to him. 
 
 (a) There is no right of reply to the prosecution (unless the Magistrate 
 allows it) after the acoused has made hia statemeat and called his wituesses, 
 if any. 
 
Proceedings in an Imaginary Case. 
 
 79 
 
 12. — Accused's witnesses, if any, heard, and their deposi- 
 tions taken. 
 
 18. — If accused calls witnesses, Prosecutor or his Attorney 
 to cross-examine them. 
 
 14. — If case not safificient to put accused on his trial, accu- 
 sed to be discharged, if otherwise committed or held to bail for 
 trial. 
 
 15. — Bailing accused. 
 
 16. — Binding over prosecutor and his witnesses to prosecute 
 and give evidence, and also accused's witnesses. 
 
 CHAPTER IX. 
 
 INDICTABLE CvrENCES — PROCEEDINGS IN AN IMAGINARY CASE. 
 
 Sections 
 
 1. — Introductory observationa. 
 
 2. — Imaginary case. 
 
 3. — Information. 
 
 4. — Warrant. 
 
 5. — Commencement of hearing, 
 
 6. — Charge — Form of. 
 
 7. — Reading charge to prisoner. 
 
 8. — Caption. 
 
 9. — Swearing witnesses at hearing, 
 10. — Directions to prisoner when to 
 
 cro^s-examine. 
 11. — Taking depositions. 
 12. — Mode of stating cross-examina- 
 tion. 
 13. — Reading over and signing depo- 
 sitions, &c. 
 14. — Discharge or commitment. 
 15. — Observations of Prisoner during 
 examination to be taken down. 
 
 Section 
 
 16. — Statement of accused — Form. 
 
 17. — Examination of accused's wit« 
 nesses. 
 
 18. — Commitment or bail — Recogni" 
 zance, &o. ; for^varding deposi- 
 tions. 
 
 19. — Remand. 
 
 20. — Form of Remand. 
 
 21. — How to prornre prisoner's at- 
 tendance before expiry of re- 
 mand. 
 
 22. — Form to bring up prisoner. 
 
 23.— Bail. 
 
 24. — Recognizance of Bail — Form. 
 
 25. — Condition to be endorsed— Fonn» 
 
 26. — Notice to be given. 
 
 27. — Form of such Notice. 
 
 28. — Commitment. 
 
 29.— Form of Commitment. 
 
 1. In order to make the course of proceeding under the fore- 
 going Chapter 8, as clear and intelligible as possible, I explain 
 in this Chapter what should be done by a JusUce of the Peace &% 
 
 <i 
 
8o 
 
 Proceedings in an Imaginary Case. 
 
 m 
 
 each step in a suppositious case of larceny. I have left out all 
 about remand, bail, binding over prosecutor and witnesses, &c., 
 which are all explained under the various heads under Chapter 
 8, which must read togetlier with this Chapter ; but bearing in 
 mind the rules with respect to those subjects mentioned in the 
 previous Chapter 8, exactly the same course must be followed by 
 the Justice, as he is directed to do in this Chapter ; in other cases 
 of indictable offences, such as murder, manslaughter, conceal- 
 ment of birth, &c., the only difference will be in the charge in 
 the caption (or heading) of the depositions. 
 
 2. We will suppose, then, that John Jones, Planter, of Island 
 Cove, in the Northern District, has had ten pounds stolen out of 
 his box, and that William Smith and Jane Butler, his servants, 
 can give evidence respecting the thief, whom we will call Job 
 Stiggins. 
 
 8. John Jones goes before the next Justice, whom we will 
 call Thomas Wills, and states the facts to his Worship. Mr. 
 Wills immediately prepares an information, in accordance with 
 Form (A) in the Appendix of Forms. As soon as it is prepared, 
 and WilUam Smith, the witness, or John Jones himeelf, has signed 
 it, or placed his mark to it, Mr. Wills hands William or Jones 
 the Testament, Wi.ich William is to hold in his right hand, and 
 repeats the following oath to him : — " You make oath that tho 
 contents of this, your information, which has been read over to 
 you, and to which you have signed your name, (or placed your 
 mark) is correct and true in every particular ; so help you God." 
 William then kisses the Testament, and Mr. Wills fills in the 
 date, and writes his name, with J. P. after it, under the 
 words, " sworn, &c.," at the left hand corner of the informa- 
 tion. 
 
 4. Mr. Wills then prepares his Warrant (B) or his Sum- 
 mons (C) gives it to the Constable who arrests or summons Job 
 Stiggins, or Job Stiggins attends before Mr. Wills, without either 
 Summons or Warrant ; it makes no difference so long as he ia 
 before the Magistrate, and there is a charge against him. 
 
 6. Mr. Wills then commences the proceedings by charging 
 Job Stiggins with the offence. 
 
Proceedings in an Imaginary Case. 
 
 8i 
 
 6. Chaboe. — You, Job Stiggins, stand charged before me, 
 one of Her Majesty's Justices of the Peace for the Northern Dis- 
 trict of Newfoundland, for that you, Job Stiggins, on the fifth 
 
 day of June, in the year eighteen hundred and seventy , 
 
 at Island Cove, aforesaid, certain money, to wit, ten pounds, or 
 forty dollars, the property of John Jones, feloniously did steal, 
 take, and carry away, against the form of the Statute in such 
 case made and provided. 
 
 7. Reading Charge to Pbisoner.— Mr. Wills reads this 
 charge to Job, the prisoner, from the caption or heading to the 
 depositions of the witnesses, William Smith and Jane Butler, 
 which he is about to take, and which is in the following form :— 
 
 8. Caption. — 
 
 FORM (M.) 
 
 Newfoundland. 
 
 The examinations of William Smith, of Island 
 Cove aforesaid, Fisherman, and Jane Butler, of 
 same place, single woman, taken on oath this 
 
 Northern District, 
 
 Island Cove, 
 
 to wit. 
 
 day of June, in the year of Our Lord One Thousand Eight Hundred and 
 
 year.— Consol. Stat. p. 3. Year alone, means year of our Lord. 
 Money.— This includes notes and all other descriptions of money. lOke, 
 
 p. 848. 
 
 Time.— Whilst it is well to be accurate about the time when an offence 
 was committed, and also as to the amount stolen in larceny, it is not neces- 
 sary to prove any particular value ; there must be some value. Where, how- 
 ever, in summary proceedings, the jurisdiction is limited to a specified amount, 
 a sum not exceeding the limits of the summary jmisdiction must appear on 
 the face of the proceedings. The offence need not be stated in the informa- 
 tion to have occurred on a particular day. It vnll be sufficient if the pai-ty 
 laying the information state that the offence was committed between a certain 
 day and some day prior to the information being laid. A conviction stating 
 any day between these dates will be good. IStone, p. 423.] 
 
 Caption. — The practice is to have the Caption a fly sheet, and the differ- 
 ent depositions taken on the one day follow in the order of being taken, each 
 
 commencing, " this Deponent, , on his oath, saith." When, however, 
 
 the examinatioa goes into a subsequent day, it is necessary to have a second 
 Caption, as all depositirns rnunt have a Caption, only that instead of setting 
 out the charge again, you may abbreviate it ; thus, after the words " in the pre- 
 sence and hearing of Job Stiggins, who stands charged this day before me," 
 add " with the before-meutioned offence," instead of setting out the whole 
 charge again. 
 
82 
 
 Proceedings in an Imaginary Case. 
 
 j'l, 
 
 Seventy , at Island Cove, in the District aforesaid, before theander- 
 
 Bigned, one of Her Majesty's Justices of the Peace for the said District, 
 in the presence and hearing of Job Stiggins, who stands charged this day 
 before me, for that he, the said Job Stiggins, on the fifth day of Jane, &c. 
 faa in the foregoing charge.) ' 
 
 9. Swearing Witnesses at Heabino.— Mr. Wills then, in the 
 presence of Stiggins, swears William Smith in this manner :— 
 
 " The evidence you shall give on the present enquiry, shall 
 be the truth, the whole truth, and nothing but the truth,— So 
 help you God." 
 
 10. Directions to Prisoner when to Cross-examine. Mr. 
 
 Wills then tells the prisoner that after each witness has been 
 examined he may ask him any question he thinks fit ; but that 
 he must not interrupt the witness whilst giving his evidence, 
 and that after all the witnesses have been exammed, he may 
 make his own statement. 
 
 11. Taking Depositions.— Mr. Wills then proceeds to take 
 down the evidence, commencing the Deposition thus :— 
 
 This Deponent, WiUiam Smith, on his oath, saith as foL 
 lows :— '« I saw Job Stiggins go into the room," and so on, in the 
 first person. It must also be taken down exactly as William 
 Smith tells it, omitting what is irrelevant and not strictly evi- 
 dence. As soon as the evidence of the witness is finished, Mr. 
 Wills will then ask the prisoner. Job Stiggins :— Do you wish to 
 ask the witness any questions ; if he says " no," then Mr. Wills 
 proceeds with the next witness, Jane Butler, precisely in the 
 same manner. 
 
 12. Mode of stating Cross-examination.— If, however, the 
 prisoner wishes to ask any questions, Mr. Wills writes in the 
 left hand corner of the Deposition thus :— 
 
 Cross-examined by the prisoner, Job Stiggins; and he will 
 then proceed to take down the evidence given by Smith in 
 answer to the prisoner's questions. 
 
 13. Beading over and Signing Depositioks, &c. — When the 
 evidence is all taken, the caption, and the different sheets of 
 paper, must be tied together, and then Mr. Wills proceeds to 
 read them all over in presence of the witnesses and the prisoner; 
 when all this is done, each witness signs his deposition, and after 
 
Proceedings in an Imaginary Case. 
 
 83 
 
 he has signed it, Mr. Wills will swear him again in this man- 
 ner, — (or it mr y be read over and signed by each witness and 
 sworn, as each witness's evidence is completed.) " You mako 
 oath that the contents of this, your Deposition, which has been 
 read over and explained to you, and to which you have signed 
 your name, (or placed your mark), is correct and true in every 
 particular, — So help your God." When this is done, Mr. Wills 
 then writes at the foot of the Deposition what is called the 
 " Jurat," from the Latin " Juro,'' I swear. 
 
 Taken and sworn before me, at Island Cove,\ 
 
 thia day of , A. D, 1876, (adding, 
 
 in case of a marksman, having first been L 
 read over and explained to the said Depo- 
 nent.) / 
 
 (Sd.) THOMAf Wills, J. P. 
 
 14. DiscHAEGE OR COMMITMENT. — ^Wheu theso formalities 
 have been gone through with both witnesses, Mr. Wills has then 
 to consider the question, is there sufi&cient evidence to warrant 
 him in committing the prisoner to jail to take his trial for the 
 offence ? (a) 
 
 15. Observations of Prisoner during Examination to be 
 TAKEN DOWN. — We will suppose in this case that Mr. Wills having 
 heard the whole case, and possibly remarks from the prisoner 
 also, for it has been decided that the caution mentioned further 
 on is not necessary until all the Depositions are tak^ down, 
 
 (a) A Magistrate is clearly bound, in the exercise of a sound discretion, 
 not to commit any one unless a prima facie case (this means a case which 
 prima facie on tLe first face or first ippearance) is made out against him by 
 witnesses entitled to a reasonable decree of credit. Justices ought not, there- 
 fore, to balance the evidence and decide according as it preponderates, for 
 this would, in fact, be taking upon themselves the functions of the Petty Jury, 
 and be trying the case ; but they should consider whether or not the evidence 
 makes out a strong or probable or even a conflicting case of guilt, in any one 
 of which oases they should commit the accused to trial. If, however, from 
 the slender nature of the evidence, the unworthiness of the witnesses, or the 
 conclusive proof of innocence produced on the part of the accused, they feel 
 that the case is not sustained, and that if they sent it for trial he must bo 
 acquitted, they should discharge the accused. [Per Justice Bayley. Cox v. 
 Coleridge, (1 B. & C. 50). Oke, p. 898.] 
 
IMAGE EVALUATEON 
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 23 WEST MAIN STREET 
 
 WEBSTER, NY. 14580 
 
 (716)872-4503 
 

 Ux 
 
84 
 
 Proceedings in an Imaginary Case. 
 
 and the case for the prosecution completed. «' Everything oc- 
 currmg before the Magistrates should be taken down in writing 
 and returned with the depositions, as where the prisoner volun! 
 tarily makes a remark or statement which is material during any 
 penod of iiie examination, for it is admissible as evidence, although 
 tne prisoner's statement is afterwards taken in writmg." {a) 
 ^ 16. Mr. Wnis, as we have baid, then being satisfied that there 
 18 suacient evidence against the prisoner to commit him for trial 
 a.nd having read over aU the depositions to the prisoner, he then 
 reads this paper to the prisoner, which is fastened to the depo- 
 Bitions ; ^ 
 
 f ORM (N.) 
 
 NeW30UNDI,AK1>. 
 
 NoBTHERN District,] You, Job Stig^na, stand charged before the 
 
 ^' to wi?"'' ^ "^deraigned, one of Her Majesty's Justices of the 
 
 m. A \r ■ ^T® '" *°*^ ^""^ ^^^ Northern District aforesaid, 
 
 this day of June, m the year of Our Lord One Thousand Eight 
 
 _ (a) Example op how boch observations should be NOTED.-When the 
 pnsoaer. therefore. Job Stiggins. in the course of WiUiam Smith's e"a. 
 tion say., or instance. « There was not ten pounds in the purse.'- T^I 
 be obvious that this statement is material, and it should be taken do J thT 
 and distinguished in the deposition. Ihe prisoner. Job Stiggms here volnn 
 ^arily said. " There was not ten pounds hi the purse ;" or s.^^. w wt, 
 
 IS true," It will thus be mserted in the deposition : The prisoner. Job StigZ 
 
 area^irin^d:^:tr;e:^.s::;^,;^-- -"-^^- 
 
 Should the prisoner at this stage of the proceedings, (that is before 
 the examination of prosecutor's witnesses are finished,) desL to make a state 
 ^ent he should be informed by the Magistrate •• that he was not oMged to say 
 anythmg now. but that whatever he did say would be taken down in wrTtinT 
 and migh be used m evidence ngamst him." If. after this, he makes a statt 
 
 Z'n tt ;""*1 " *'^ depoBition. thus .-..The prisoner at hs 
 
 Btage o the proceeding said he desired to make a statement, and having been 
 given clearly to understand that he was not obliged to say anything now, but 
 that whatever he did say would be taken down m writing, and might be used 
 inevidence agamst him. voluntarily saith as follows." (here put his very words ) 
 When the Magistrate re-examines, after the prisoner or his counse^^rross 
 examination it should be distinguished thus.--. Ee-examined by the rgt 
 trate." When the prisoner cross-examines, the questions as weU as ZZ 
 Bwers may be taken down, if desirable. 
 
lerx confessions 
 
 Proceedings in an Imaginary Case. gg 
 
 Hundred and Seventy , for that you, Job Stiggins, on the efth day of 
 
 June, in the year Eighteen Hundred and Seventy , at Island Cove 
 
 aforesaid, (a) certain money, &c., and the said charge being read td 
 
 the said Job Stiggins, and the witnesses for the prosecution, WiUiam 
 Smith and Jane Butler, being severally examined in his presence, the said 
 Job Stiggins is addressed by roe as follows :-« Having heard the evi- 
 dence, do you wish to say anything in answer to the charge ? you are not 
 obliged to say anything unless you desire to do so; but whatever you say 
 wUl be taken down in writing, and may be given in evidence against you 
 upon your trial. And you are also clearly to understand thht you have 
 nothing to hope from any promise of favour, and nothing to fear from 
 any threat which may have been holden out to you, to induce you to 
 make any admission or confession of yciu: guiU ; but whatever you shaU 
 now say may be given in evidence against you upon your trial, notwith- 
 standing such promise or threat. Do you desire to call any witness P if 
 you do, it must be done after you have made your own statement." 
 
 Here put down whatever Job Stiggins may choose to say, 
 and in his very words as nearly as possible ; get him to sign it,' 
 if he wiU do so. If Job Stiggins says anything, put it down 
 thus : — 
 
 Whereupon the said Job Stiggins saith, « I have nothing more to 
 Bay J I have no witnesses to call," 
 
 his 
 Job X OxiGoiWB. 
 
 Taken before me, at Island Cove, aforesaid i 
 the day and year first above-mentioned. ' J 
 
 Thomas Wills, J. P. 
 17. As TO THE Examination op Accused's Witnesses.-— Thb 
 OBDEB of Peooeedings, &c. See Ante, p. 63 and 64. 
 
 If the accused, after making a statement, caUs witnesses to 
 account for his possession of the stolen property or the like, write 
 as follows at the foot of his statement :— 
 
 "The above named prsoner, Job Stiggins, after making the fore- 
 going statement in answer to the charge, calls the foUowing witnesses to 
 
 be examined on his behalf, namely : G. H., of , in the said District, 
 
 Fisherman, and . The said G. H. on his oath, saith as follows." (Sta- 
 ting his very words, and so on, as in taking the depositions of Prosecu- 
 tor's witnesses.) 
 
 (a) This charge is a copy of the charge is the Caption, 
 
86 
 
 Proceedings in an Imaginary Case, 
 
 13. Mr. Wills then prepares a Commitment to send Stig- 
 gins to the jail, (see under the head Commitment,) oradmits him to 
 Bail. (See Bail, page 68.) Takes the Recognizances of Jcnes, 
 and the two witnesses, and forwards the depositions and all. 
 other papers to the Chief Clerk and Registrar of the Supreme 
 Court, on the Northern Circuit, at Harbour Grace ; (a) he should 
 also write the Attorney General, and send him copies of aU the 
 papers. Should the ease be of a very serious character, as to 
 where he is to send the prisoner and depositions.— 5«e Post, 
 Sec. 28 of this Chapter respecting Commitment. 
 
 19. We will suppose, in our imaginary case, that Mr. Wills 
 has not all the witnesses present, and he wishes to remand Job 
 Stiggins for not more than three days ; he teUs the prisoner that 
 he is remanded for three days, and he directs the Constable 
 either to keep him in his custody, where there is no jaH, or else 
 to take him to jail, (any place of security wiU answer where there 
 is no jail, but the prisoner must be properly fed and treated 
 humanely), and to briug him back at the expiration of the time. 
 Mr. WiUs also wHl write, after the last deposition taken before 
 the remand, — 
 
 " The prisoner was then remanded for three days." 
 Supposing that Mr. Wills wished to remand the prisoner for a 
 longer time, he would then have to fill up this Warrant, which must 
 not be for a longer period than eight days. See p. 67 " Remand." 
 
 20. 
 NoETHERN District, 
 Island Cove, 
 to wit. ' 
 
 FORM (Q 1.) 
 
 Newtoundland. 
 
 To the Constables of the Northern District, and 
 
 to the Keeper of the Jail at , (the nearest 
 
 Jail in the Districts (b) 
 Whereas Job Stiggins, hereafter caUed the accused, waa on the - 
 
 (a) If the case is to be tried on the Northern Circuit. When the case is to 
 be tried on the Southern Circuit, the papers must be Bent to the Chief Clerk of 
 the Supreme Court on the Southern Circuit, St. John's ; and when the case is 
 one for the Supreme Court, then to the Chief Clerk and Registrar Supreme 
 Coui't, St. John's. 
 
 (6) With respect to this Form, and all other Forms of Warrants and Com- 
 BttitmcntB, obaerye the note, p. 48.— The Police are aU sworn in for ie Colony. 
 
 C/^' 
 
\ 
 
 Proceedings in un Imaginary Case. g^, 
 
 day of — , charged before the undersigned, one of the Justices of the 
 Peace tor tae Northern District, for that the accused, on the fifth 
 
 day of June, in the year Eighteen Hundred and Seventy , at Island 
 
 Cove, aforesaid, certain money, to wit, forty dollars, the property of John 
 Jones feloniously did steal, takr nnd carry away, against the form of the 
 Statute, m such c-se made and provided. These are therefore to com- 
 mand you, the said Constables, in Her Majesty's name, forthwith to con- 
 vey the said accusod to the said Gaol, and there to deliver him to the 
 Keeper of the said Gaol, together with this Precept ; and I hereby com- 
 mand you, the said Keeper of the said Gaol, to receive the said accused 
 into your custody, in the said Gaol, and there aafely Keep him until the 
 
 day of , when I hereby command you to have him, the said 
 
 accused, before me or some other Justice for the said District, as may 
 then be there, to answer further to the said charge, and to be further 
 dealt with according to Law, unless you shall be otherwise ordered in the 
 meantime. 
 
 Given under my Hand and Seal, at Isla'^d Cove, 
 
 aforesaid, this day of , in t ■ j year of 
 
 Our Lord One Thousand Eight Hundred and 
 Seventy . 
 
 T. Wills, J. P. (t. g.) 
 21. Should it be desirable to have the prisoner before the 
 Magistrate prior to the expiration of the eight days, the Magis- 
 trate might send a written message to the Keeper of the Gaol, 
 by the Constable, requesting such Keeper to dehver the prisoner 
 to the Constable, or, to be more formal and correct, he should 
 send this order : — 
 
 NOETHEEN DiSTBICT, 
 
 Island Cove, 
 to wit. 
 
 22. 
 
 } 
 
 Nbwfoukdland. 
 
 To the Keeper of the Gaol at 
 m the said District, 
 
 WHERK4S on the day of , Job Stiggins, hereafter called 
 
 the accused, was commi^.ted by me to your custody on a charge of larceny, 
 as mentioned in my said Warrant, for a period of eight days, unless he 
 should be otherwise ordered in the meantime ; and whereas it appears to 
 me, the undersigned Justice of the Peace for the said District, that it is 
 expedient the said accused should be further examined before the expira- 
 tiou of the said remand ; these are therefore to order you, in Her Majes- 
 tys name, to have the »aid accused at , in the said District, before 
 
88 
 
 Proceedings in an Imaginary Case. 
 
 me or some other Jiwtice of the said District, at o'clock in the fore- 
 noon of (state day), to answer further to the said charge, and to be fur- 
 ther dealt with according to Law. 
 
 .Given under my Hand and Seal, at Island Cove, 
 
 aforesaid, this day of , in the year 
 
 Eighteen Hundred and Seventy . 
 
 T. Wills, J. P. (i . s.) 
 
 23. We will suppose that Mr. Wills is satisfied that there is a 
 Bufficient case against Stiggius to commit him for trial, but that 
 Sdggius can obtain Bail. Should it be a case in which the 
 Magistrate would take Bail, (see various observation 3 on Bail, 
 AntCy p. 68), and the Magistrate makes up his mind to accept 
 Bail ; (in such a case as Stiggin's, of course, if satisfactory Bail 
 were forthcoming, Bail should be taken). The next thing to be 
 done is to inform the prisoner thai Bail will be taken, teUing 
 him the amount. Stiggins sends to his friends, either by the 
 Constable or some one else, who come before the Magistrate, 
 and if he is satisfied with them he then prepares the Becogni- 
 zauce of Bail in this Form : — 
 
 (FOBM SI.) 
 
 24. Newfoundland. 
 NoaxHEBN District,) ^® ^* remembered that on the day of , 
 
 Island Cove, I in the year Eighteen Hundred a^d Seventy — , 
 to wit. J jQJj stiggins, of , in the said District, Fish- 
 erman, and — — , of same place, Planter, and , of same place, Fish- 
 erman, personally came before me, the undersigned Justice of the Peaco 
 for the said District, and severally acknowledged themselves to owe to 
 Her Majesty the Queen the several suras following, that is to say, Job 
 Stiggins, dollars, (the other two sureties, generally half the priso- 
 ner's amount) the said , and the said , dollars each, to be 
 
 made and levied of their several goods and chattels, lands and tenements, 
 respectively, to the use of Her Majesty, if the said Stiggins fail in the 
 condition endorsed. 
 Taken and acknowledgod th^ day and year > 
 
 Arst above-mentioned at , before me, > 
 
 T. Wills, J. i*. 
 
 25. The following is written on the back of the Eeoognizance 
 of Bail :— 
 
 The condition of the within written Recognizance ia such that where- 
 
Proceedings in an Imaginary Case. 
 
 89; 
 
 as the said Job Stiggins was this day chai'ged befow me, the Justice 
 withia mentioned, for that he, the said Job Stiggins, on the fifth day of 
 
 June, in the year Eighteen Hundred and Seventy , at Island Cove, 
 
 aforesaid, certain money, &c., {and following out the chatgfi as in Cation.) 
 Tf therefore the said Job Stiggins will appear at the next term of the 
 Suprpme (a) Court of Newfoundland on the Northern Circuit, to be 
 holden ftt Harbor Grace, in the District aforesaid, and there surrender 
 himself into the custody of the Keeper of the Common Gaol there and 
 plead to such indictmeiit as n.ay be found agalhst him b^ the Grand Jury 
 for an*' in respect of the ohargt aiforesaid, and take his trial upon the 
 same, and not dapart the said Court without leave, then the aaid Hecog- 
 nizance to be void or else to stand in full force and virtue. 
 
 26. Notice of Eecognizanoe to be given to Accused and 
 Bail. As soon as the Eeoognizance is completed the Justice 
 should give to Stiggins and each of his Bail the following notice, 
 and on the copies he should note the day whfen they were deliver- 
 ed to them : — 
 
 FORM 2.) 
 
 27. Notice of the said Recognizance to be given to the Accused and his BaU. 
 
 Tako notice that you, Job Stiggins, of Island Cove, in the Northern 
 
 District, are bound in the sum of dollars, and your Sureties, 
 
 of , and of in the District aforesaid, , in the 
 
 sum of dollars ; that you the said will appear on the first day of 
 
 tne next term of the Supreme Court on Circuit, to be holden at Harbor 
 Grace, in the said Northern District, and there surrender yourself into tho 
 
 custody of the Keeper of the Common Gaol at , aforesaid, and there 
 
 plead to such indictment as may be found against ywu by the Grand Jury, 
 for and in respect of the ofifence whereof you stand charged, and take 
 your trial upca the same, and not depart the said Court without leave ; 
 and unless you, the said Job Stiggins, personally appear and piead and 
 take your trial accordingly, the Recognizance entered into by you and 
 your Sureties shall be forthwith levied on you and them. 
 
 Dated this day of — ^, A. D. 187—. 
 
 T. Wills, J. P. 
 '2h.Q Justice of the Peace before whom 
 the said Recognizance was taken. 
 
 (a) When in St. John's say, " at the next term of the Supreme Court of 
 Newfoundland, to be holden at St. John's." 
 
 u 
 
go 
 
 Proceedings in an Imaginary Case. 
 
 28. If Bail is not forthcoming for Stiggins, Mr. WiUs will 
 commit him to jail; and as respects the jail to which he wiU 
 send the prisoner, he will be guided by the consideration of 
 where '.p is to be tried ; of course, if the crime was committed in 
 the wmter months, he would send the prisoner to Harbour 
 Grace, that bemg the only place or the Northern Circuit 
 where a term is held in May. Should a crime be committed 
 either m the Northern or Southern Districts, the Justice wiU 
 have to consider whether the Supreme Court on Circuit or the 
 Supreme Court in St. John's could most conveniently dispose 
 of the case, taking into consideration the obtaining of witnesses, 
 then: expenses, &c. ; and where there is any doubt as to which ia 
 the best course to adopt, the Justice should communicate aa 
 soon as possible with the Attorney General, by whose instruc 
 tions he will have to be guided ; in all cases the Attorney Gene- 
 ral should be mformed by the very first opportunity of a crime 
 havmg been committed, and what has been done in the matter 
 We mil suppose that in Stiggin's case, then, he is committed to 
 Harbour Grace jaH. The Commitment will be in the foUowing 
 Form : — * 
 
 FORM (T 1.) 
 
 29, WARRANT OF COMMITMENT. 
 
 NoRTHEHN District, ) 
 
 Island Cove, \ 
 
 to wit. j 
 
 Newfoundland, 
 
 To the Constable of 
 
 — , and the Keeper 
 
 of the Gaol at Harbor Grace, in the said 
 District. 
 
 Whereas Job Stiggins, hereafter called the accused, was this day 
 charged before me, Thomas Wills, one of Her Majesty's Justices of the 
 Peace for he said District, on the oath of William Smith and others, 
 for tJiat, [here state the offence as in charge in Capti(m.-\ These are, there- 
 fore, to command you, the said Constable, to take the said accused, and 
 him saf e y convey to the said Gaol, and there to deliver him to the Keeper 
 thereof, together with thi. Precept ; and I do hereby command you, the 
 said Keeper, to receive the said accused into your custody in the said 
 
Appendix of Forms. ' gn 
 
 Gaol, and there safely keep him untU he shaU be thence deUveredby due 
 oourae of Law. (a) 
 
 Given under my Hand and Seal, at Island Cove, 
 
 thia day of , in the year 187~. 
 
 T.Wills, J. P, (l.s.) 
 
 APPENDIX OF FORMS 
 
 Under Jervis's Act, :i & 12 Vic., Cap. 42, referred to m 
 
 Chapters 8 & 9. 
 
 (A.) 
 
 Information and Complamtfor an Indktable Offence. 
 
 The information and complaint of 0. D. of , [i%Ae>-m«n], taken 
 
 thia day of in the year of our Lord, 187-, before the under- 
 
 Bigned, [one] of Her Majesty's Justice of the Peace in and for the said 
 
 [Distrtcf] of , who saith that [<^c., stating the offence^, (h) 
 
 Sworn before [we], the day and year > 
 
 first above mentioned, at . \ 
 
 J. S., J. P, (Signed) C. P 
 
 (B.) 
 Warrant to apprehend a Person charged with an Indictable Offence. 
 "Zi^toX'f Newfoundland. 
 
 To the Constable of , and to all other Constables 
 
 in the said [Distnct'] of -i — . 
 
 Whereas A. B. of [Fishermanl hath this day been charged upon 
 
 oath before the undersigned, [o«e] of Her Majesty's Justices of the Peace 
 in^and^for the said district of , for that he, on at did, 
 
 {a) It wiU be observed that no time is stated when prisoner is to be tried, 
 and It has been noticed as a defect in this Form by Eaglish Text writers ; but 
 "^•ul ''f f/\*^« Ci'-<"^i*3 no time can be fixed exactly beforehand when they. 
 
 .M T I ^^^"^' ""^ *^' Proclamatioa and sometimes on the weather. 
 • J .X *'^^°^^'' " "^'■^'y suspected to have committed the offence, 
 
 msert after "saith," " he hath just cause to beUeve and suspect, and doth 
 beheve and suspect that." 
 
92 
 
 Appendix of Forms. 
 
 IH, stating shoHhj the offencel • These are therefore to command you, 
 in Her Majesty's name, forthwith to apprehend the said A. B., and to 
 bring him before | mej, or some other of Her JMajesty's Justices of tho 
 Peace in and for the said IDistrict-], to answer unto the said charge, and 
 to be further dealt with according to law. 
 
 Given under my Hand an;3 Seal, this 
 
 day of , in the year of our Lord 
 
 , at , in the [JDiatrict'] afore- 
 said. 
 
 J. S. (L. 8.) 
 
 (C.) 
 
 Summons to a Person charged with an Indictable OJence. 
 
 District, I Newfoundland . 
 
 , to wit. J 
 
 To A. B., of , [Fisherman], 
 
 Whereas you have this day been charged before the undersigned, 
 [one] of Her Majesty's Justices of the Peace in and for the said [Dtsiricf] 
 
 of , for that you on , at [^c, stating shortly the ojmce] : 
 
 These are therefore to command you, in Her Majesty's name, to be and 
 
 appear before me on , at o'clock in the forenoon, at , or 
 
 before such other Justice of the Peace for the same IDistrict:] as may 
 then be there, to answer to the said charge, and to be further dealt with 
 according to law- Herein fail not. 
 
 Given under my Hand and Seal this day 
 
 of , in the year of our Lord , at 
 
 -, in the District aforesaid. 
 J.S. 
 
 (D.) 
 
 (L, 8.) 
 
 Warrant where the Summons is disobeyed. 
 
 To the Constables of , and to all other Constables 
 
 in the said [Districi] of . 
 
 Whereas on the last past, A. B., of , [Fishermanl was 
 
 charged before the undersigned, [one] of Her Majesty's Justices of the 
 Peace in and for the said [District] of , for that [^c, as in the Sum- 
 mom] : And whereas [/] then issued [my] Summons to the said A. B., 
 commanding him, in Her Majesty's name, to be and appear before [me] 
 
 on -— ,at o'clock in the forenoon, at ,or before such other 
 
 Justice of the Peace for the same [District] as might then be there, to 
 answer to the said charge, and to be further dealt with according to 
 
 ini 
 
Appendix of Forms, 
 
 93 
 
 law : And whereas the said A. B., hath neglected to be or appear at the 
 time and place appointed in and by the said Summons, although it ha.h now 
 been proved to me upon oath that the said Summons was duly served upon 
 the t.aid A. B. : These are therefore to command you, in Her MajVsity'a 
 name, forth with to apprehend the said A. B., and to bring him before me, 
 or some other of Her Majasty's Justices of the Peace in and for the said 
 [District], to answer to the said charge, and to be further dealt with accord- 
 ing tp law. 
 
 Given under my Hand and Seal, this day 
 
 of — . — , in the year of our Lord , at 
 
 , in the District aforesaid. 
 
 J.S. (l.s.) 
 
 (E.) 
 
 Warrant to apprehend a Person charged wtth an Indictable Offence com' 
 
 mitted on the High Seas vr Abroad, 
 
 For offences committed on the high seas the Warrant may be the same 
 as In ordinary ccses, but describing the offmce to have been committed " on 
 the high seas, out of v-his Colony, and within the jurisdiction of the Admi- 
 ralty of England." 
 
 (F.) 
 Cerf.ifinate of Indictment being found. 
 I hereby certify, that in the Supreme Court of Newfoundland (or the 
 
 Supreme Court of Newfoundland on the Circuit at , or a Court 
 
 of General Quarter Sessions of the Peace, holden at , in the said 
 
 llslani], on a bill -^f indictment was found by the Grand Jury 
 
 against A. B., therein described as A. B., late of . \laborer'], for that he 
 
 [8^0., stating shoHly the offeree,'] and that the said A. B. hath not appeared 
 or pleaded to the said indictment. 
 
 Dated thia ^ day of- — , 187—. 
 
 J. D. 
 0. C. & Reg., or 0. Supreme Court on the — — 
 Circuit, &c., or Clerk of the Peace at . 
 
 (G.) 
 Warrant to apprehend a Person indicted. 
 
 To the Constable of , and to all other Constables 
 
 in the said IDistrwt] of in Newfoundland. 
 
 Whereas it hath been duly certified by J. D., C. C. & Reg., &c., or Clerk 
 of the Peace at in the said Island [that ^c, stating the Certificate']', 
 
94 
 
 Appendix of Forms. 
 
 These are therefore to command you, in He. Majesty's name, forthwith to 
 
 ZtT««'"f .1 p"^*^^' ""'Tf *" ^""^ ^^"^ ^«^°^« t-°]' -^^'^e other 
 Juattce of the Peace m and for the said IDistricf], to be dealt with accord- 
 lug to law. 
 
 Given n i^,er ir.y Hand and 3eal, this day 
 
 ^^ in the year of our Lord , at 
 
 , in the [District] aforesaid, 
 
 J.S. (L.S.) 
 (H.) 
 Warratit of Commitment of a Peram indicted. 
 
 — — District, [ 
 —— to wit. J 
 
 Newfoundland. 
 
 To the Constable of and to the Keeper of the 
 
 Gaol, at , in the said [District] of . 
 
 *^ . Y^^IT ^^ ^"^'^^ '''''''*"*' ^^^ ^^^ ^^y of > '^fter reciting 
 
 ttat It had been certified bj. J. D. [^c, as in the certificate], [I] command- 
 
 edtheCons-eibleof , and all other Constables of the said District, in 
 
 Her Majesty's name, forthwiia to apprehend the said A. B., and to bring 
 him before [mc\ the undersigned, [on.] of Her liajesty's Justices of the 
 Peace m and for the said iDistnet}, or before some other Justice of the 
 Peaxie in and for the said iD^strict■\, to be dealt with according to law- 
 And whereas the said A. L. hath been apprehended under and by vir-' 
 tua of the said warrant, and being now brought before [/«e], it is he-e- 
 upon duly proved to {me^ upon oath, that the said A. E. is the same 
 person who is named and charged iu and by the said indictment : The", 
 are therefore to command you, the said Constable, in Her Majesty's name 
 forthwith to take and safely convey the said A. B. to the said [Gaol] at 
 
 in the saiu [District], and there to deliver him to the Keeper thereof 
 
 together with this precept : And I hereby command you the said Keeper 
 to recexve the .said A. B. into your custody in the said Gaol, and him 
 there saliely to keep untU he shall be thence delivered by due course of 
 law. 
 
 Given under my Hand and Seal, this 
 
 day of , in the year of our Lord 
 
 , at , in the District aforesaid. 
 
 J.S. (L. 8.) 
 
Appendix of Forms. 
 
 95 
 
 (X.) 
 
 Warrant to detain a Puson indkted who is already/ in Custody >■ 
 
 DisT«rCTJ -notner Offence. 
 
 , to wit. \ Aewh-oundland. 
 
 To the Keeper of the Gaol at , in the said 
 
 District of 
 
 Clerk of ho Peace at _, that ^.^c, staUnr, the certificate^ : And wh re- 
 
 Gaol at aforesaid, charged with some offence or other matter: and 
 
 t bouig now duly proved upon oath before [mej that the said A. k so 
 indicted as aforesaid, and the said A. B. in your custody as aforesaid, are 
 one and the same person : These are therefore to command you, in Her 
 M.jesty B name to detain the said A. B. in your custody in the Gaol 
 aforesaid until by Her Majesty's Writ of Plabeas Corpus he shall be re- 
 moved therefrom for the purpose of being tried upon the said indictment, 
 or until he shall otherwise be removed or discharged out of your custody 
 by due course of law. "ow^jr 
 
 Given under my Hand and Seal, this 
 
 day of , in the year of oiw Lord 
 
 —— , at , in the District aforesaid. 
 
 J. S. (l. s.) 
 FORM (K.) given at page 60. 
 
 (L. 1.) 
 
 Summons of a Witness. 
 
 To E, F,, ot , Fisherman. 
 
 Whereas information hath been laid before the undersigned [oMel of 
 
 HerMaje8ty'sJusticesofthePeaceinandforthesaid[2)ii,^nc^]of that 
 
 ^. B. [8^c, as in the Summons or Warrant against the accused] , and it hath 
 been made to appear to me [upon oath if so, though it is not necessary 
 that this information should be given on oath,] that you are likely to give ma^ 
 Wial evidence for the prosecution : These are therefore to require you to 
 
 be and to appear before me on next, at o'clock in the forenoon 
 
 at or before such other Justice of the Peace for ihe same District 
 
 ai may then be there, to testify what you shall know concerning the said 
 charge so made against the said A. B., as aforesaid. Herein .aU not. 
 
 Given under my Hand and Seal, this day 
 
 of — _, in the year of our Lord , at 
 
 — , in the District aforesaid. 
 
 J.S. (i„e.) 
 
96 
 
 Appendix of Forms, 
 
 (U2.) 
 'Warrant tohere a Witness has not obeyed a Summons. 
 
 To the Constable of , and to aU other Constables in 
 
 the said District of , in Newfoundland. 
 
 Whereas information having been laid before the un<'ersigned, one 
 
 of Her Majesty's Justices of the Peace in and for the said District of , 
 
 that A. B., l^c, as in ike Summom'\ ; and it having been made to appear 
 to me upon oath that E. I'., of , \.Fisherman\ was likely to give ma- 
 terial evidence for the prosecution, I did duly issue ray Summons to the 
 
 said E. F., requiring him to be and appear before me on - — at , or 
 
 before such othei- Justice or Justices of the Peace for the same District 
 as might then be there, to testify vvhathe should know respecting the said 
 charge so made against the said A. B., as aforesaid : And whereas proof 
 hath this day been made befo'^j me upon oath of such Summons having 
 been duly served upon the said E. F. : And whereas the said E. F. hath 
 neglected to appear at the time and place appointed by the said Summons, 
 ^nd no just excuse has been offered for such neglect : These are therefore 
 
 1,0 command you to bring and have the said E.F. before me on , at 
 
 ■ o'clock in the forenoon, at , or before such other Justice of the 
 
 Peace for the same iDistrict^ as may then be there, to testify what he 
 Bhaii know concerning the said charge bo made against the said A. B. aa 
 aforesaid. 
 
 Given Under my Hand and Seal, this day 
 
 of — , in the year of our Lord — — , at 
 — ^-, ia the District aforesaid. 
 
 J. S. (l. s.) 
 
 (L. 3.) 
 
 Warrant for a Witness in the first instance. 
 
 To the Constable of — -, and to all other Constables 
 in the said District of . 
 
 "Whereas information hath been laid before the undersigded, f owe] 
 of Her Majesty's Justices of the Peace in and for the said IDtsti-icf] oi 
 -*^, that [i^c, Oi in Summons'] 5 and it having been made to appear to 
 [inel upon oath, that E. F., of -— , [Fiah^rmanl is likely to give mate- 
 rial evidence for the prosecution, and that it is probable that the said 
 E. F. will not attend to give evidence without being compelled so to do : 
 These are therefore to command you to bring and have the said E. F. 
 
 befort me on , at o'clock in the forenoon, at , or before 
 
 Buch other Juaticeof the Peace for the same IDistricf] as may then be 
 
Appendix of Forms, 
 
 d^ 
 
 there to testify what he shaU know concerning the said charge so mado 
 against the said A. B., as aforesaid. 
 
 Given under my Hand and Seal, this day 
 
 *** — ~i ia the year ot our Lord ^, at 
 
 — — . in the District aforesaid. 
 
 J. 3. (l. 'j.) 
 
 (L. 4.) 
 
 Warrant of Commitment of a Witness for refusing to he 
 
 Fmdence. 
 
 anom or to give 
 
 To the Constable of , and to the Keeper of 
 
 the Gaol at ; in the said District of 
 
 in Newfoundland. ' 
 
 H«. M '^Tf t ?• """^Y^^^^ '^"'^^ '^^°^^ ^^"^ undersigned, ione^ of 
 for hat [^c., OS m ifA« ^mmtm.] ; and it having be.n made to appear to 
 M upon oath, that E. F., of _, fhereaftef called tfe wLT^w : 
 hkely to give material evidence for the prosecution, I duly issued Ty 
 Summons to the sa.d witness, requiring him to be and appeL before me 
 
 fT~T'!u '°' ^°''® such other Justice of the Peace as should 
 
 hen be there to testify what he should know co.:enu^g th^s^d 
 charge so made against the said A. B., as aforesaid; and the Sd 
 witness now appearing before me [or being brought befoi me b" 
 of a Warrant mthat behalf, to testify as afor^d], and being reqS 
 to make oatn or affirmation as a witness in that behdf, hatrnL reS 
 so to do [pr being duly sworn as a witness doth now ref utt anZ c^ 
 tarn questions concerning the premises which are here put to himT^^^^^^^ 
 out otfering any just excuse for such his refueal : These are therefore to 
 ommand you the said Constable to toke the said witnessTnd h f If e y 
 to convey to the said Gaol at—, and there deHver him to tl^J 
 
 foXe^^K' °'f """'*'^^P""^*' '^"'^ I ^- hereby comm'd 
 
 said Gael, and him there safely keep for the space of davs for hi! 
 
 s^d contempt, unless he shaU in the meantime' consent to bTexamiiit' 
 b:;trZLrr2^^^^ andfor you^sodol^gthiTlS 
 
 Given urder my Hand and Seal, this day 
 
 ^^ — p ^^ *he year of our Lord , at 
 
 , in the Diatriat aforesaid 
 
 N 
 
 J. o. 
 
 (L. B.) 
 
 -^. , V 
 
 A 
 
98 
 
 Appendix of Forms, 
 
 (M.) 
 Deji-naitur^ ef Witnm^'a, yivm at pnge .51, 
 
 ' • (N.) 
 
 Statement of the Acctniedf given at page 84, 
 
 (0.1.) 
 
 Itecoynizance to prosecute or give Evidmce, 
 
 Newfoundland, 
 
 *~^ District, ? - Be it remembered, Ifcat on the — day of ^ in the 
 
 to vit. $ ye?.r of owr Lord , C. D., of , in the said Dis- 
 trict, Fisherman, personally came before me, one of Her Majesty's Jus- 
 tices of the Peace for the said District, and acknowledged himself to owe 
 
 to our Sovereign Ladv ihe Queen the sum of dollars, to be made 
 
 and levied of his goo d chattels, lands and tenements, \o ihe use of 
 our said Lady the Quv . . Her Heirs and Successors, if the said 0. D. 
 shall fail in the condition indorsed. 
 Taken and acknowledged, the uay and year > 
 first above mentioned, at , before me. \ 
 
 J. a. 
 
 dendition tn prosecute. 
 Hie condition o! the within written recognizance is such, that whereas 
 one A. B. was this day charged before me, J. S., Justice of fie Peace 
 within mentioned, for that [^c, as in the caption of the depositions;'] it 
 therefore he the said C. D. shall appear at the next sitting of the Supreme 
 Court of Newfoundland, in St. John's, or at the next si -^ of the Su- 
 preme Court of Newfoundland on the Circuit at , [or at the 
 
 next Court of General Quarter Sessions of the peace] to be holden at 
 
 • , and lihere prefc or cause to be preferred a bill of indictment for 
 
 the offence aforesaid against the said A. B., and there also duly prosecute 
 such indictment, then the said recogi. jince to be void, or else to stand ia 
 full force and virtue. 
 
 Condition to prosecute and give Evidence* 
 Seme at the last form to the asterisk*, and then ^few;— "and there 
 prefer or cause to be prefwred a bill of indictment against the said A. B. 
 for the offence aforesaid, and duly prosecute such indictment, and give 
 evidence thereon, as well to the Jurors who shall then inq.iire of the said 
 offence as also to them who shaU pass upon the trial of the said A. B. ; 
 then the said iwognizance to be void, or else to stand in full force and 
 vitlue." 
 
 'I 
 
Appendix of Forms, qq 
 
 Condition to give Hoidence, 
 aame a$ th» last form but one, to tho atCeriak; tmd thmtkntf^ and 
 toew give suoli evidence as he knoweth upoa » biU of indiotinent t» La 
 then and there preferred against the said A. B. for the offence afbcwai^ 
 as weU to the jurors who shall there inquire of the said offence as alsoto 
 the jurors who shall pass upon the trial of the said A. B* if the said lull 
 BhaU be fouadatrue biU.; then the said reoogniainoe to be void, or ds© to 
 stand in full f orae and virtue;" 
 
 (0. 2.) 
 
 Notice of the said Recognizance to he given to the Proaecwtor and hi$ 
 
 —: 1 Take notice that you, C. D., of , are bound in the 
 
 «> wxn. J aum of doUara to appear at the next sitting of 
 
 Court at , in Newfoundland, and then and there [proaecute aruT] give 
 
 evidenr. against A. B. J and unlessyou then appear there, and [prosecute 
 •ndl give evidence accordingly, the recognizance ooteied into by you wiU 
 be forthwith levied on you. 
 
 Dated this day of , 187—, 
 
 J.S. 
 
 (P. 1.) 
 
 Commitment of Witness for refusing to enter into the Recognisance. 
 
 .... ^ - NEWFOUNnXAND. 
 
 — — — Jiatiict, } 
 , to wit. J 
 
 To the Constables of , and to the Keeper of the 
 
 Gaol at — -, in the said Distvict of . 
 
 Whereas A. B. was lately charged before the undersigned, [one! of 
 
 Her Majesty's Justices of the Peace in and for the said [District} o^ 
 
 for tlxat [c^-c, ns in the Hummnns to the witness], aul -t having been ni'da' 
 
 to api^r to [m.], upon oath that E. P., of , was likely to give ma- 
 
 tan^evidence for the prosecution, [/] duly issued [ray summons to the 
 
 saidE. F., requmng him to be -tnd appear] before [me] on at 
 
 or before such other Justice of the Peace as shouU then be there 'o 
 testify what he should know concerning the said cLarge so made against 
 the said A. B., as aforesaid; and the said E. F. now appearing before 
 M, [or being brought before [ma] by virtue of a warrant in that be- 
 half, to testify as aforesaid, hath been now examined by lme^ touohig.. 
 
xoo 
 
 Appendix of Forms, 
 
 the premisea, but being by [we] required to enter into a recognizance 
 conditioned to give evidence against the said A. B. hath now refused so 
 to do : These are therefore to command you the said Constable to take 
 
 the said E. F., and him safely to convey to the said Gaol at , in the 
 
 Didtrict aforesaid, and there deliver him to the said Keeper thereof; 
 together with this precept; and I do hereby command yea the said 
 Keeper to receive the said E. F. into your custody in the aaid Gaol, 
 there to imprison and safely keep him uotU after the trial of the 
 aaid A. B. for the offence aforesaid, unless in the meantime such E. F. 
 
 shall duly enter into such recognizance as aforesaid in the sum of 
 
 dollars before some one Justice of the Peace for the said District, con- 
 ditioned in the usual form to appear at the next sitting of the Supreme 
 Court of Newfoundland, at St. John's, (or at the next sitting of the Su- 
 preme Court on Circuit at , or General Quarter Sassions of the 
 
 Peace,] io be holden at ,) and there to give evidence before the Grand 
 
 Jury upon any bill of indictment which may then and there be preferred 
 against the said A. B. for the offence aforesaid, and also to give evidence 
 upon the trial of the said A. B. for the said offence, if a true bill should 
 be found against him for the same. 
 
 Given under my Hand and Seal, this day 
 
 of ) in the year of our Lord , a(; 
 
 , in the District aforesaid. 
 
 (P. 2.) 
 
 Subsegwnt Order to Discharge the Witness. 
 
 Tc the Keeper of the Gaol at , iu the District 
 
 of , Newfoundland. 
 
 Whereas by imy] order dated the day of , instant, reciting 
 
 that A. B. was lately before me, charged before [we] for a certain 
 offence therein mentioned, and that E. F. having appeared before [me,] 
 and being examined as a witness for the prosecution in that behalf, refused 
 to enter into a recognizance to give evidence against the said A. B., and 
 I therefore thereby committed the said E. F. to your custody, and required 
 you safely to keep him until after the trial of the said A. B. for the 
 offence aforesaid, unless in the meantime he should enter into such re- 
 cognizance as aforesaid : And whereas, foi: want of sufficient evidence 
 against the said A. B., the said A. B. has not been committed or holden 
 to bail for the said offence, but on the contrary thereof has been since dis- 
 charged, and it is therefore not necessary that the said E. F. should be 
 detained longer in your custody : These are therefore to order and direct 
 
Appendix of Forms, 
 
 ^01 
 
 you the said Keeper to discharge the said E. F. out of your custody aa 
 to the sa.d commitment, acd suffer him to go at large. 
 
 Given under my Hand and Se^d, this day 
 
 of > in the year of our Lord ——,- at 
 
 — — , in the Distric*- aforesaid. 
 
 J.S. rL.s.) 
 
 (Q. 2.) 
 
 Recogrizance of BaU inotead of Remand, <m cm Adjoummmt of 
 
 Examination. 
 
 FoUow the Form (S. 1,) page 88, and then endorse this condition 
 on it. 
 
 Condition, 
 The condition of the rithin-writteu recognizance is such, that whereas 
 
 the withm-boundea A, B. was this day [or on last past] charged 
 
 before me, for that [^c, as m the warmnt] : And whereas the examina- 
 tion of the witnesses for the prosecution in this behalf is adjourned until 
 
 the day of , instant; if therefore the said A. B.shaU appear 
 
 before me on the said day of . instant, at o'clock in the 
 
 forenoon, or before such other Justice of the Peace for the said District 
 as may then be there, to answer further to the said charge, and to be 
 further dealt with according to law, then the said recognizance to be void, 
 or else to stand in full force and virtue. 
 
 (Q. 3.) 
 
 mice of such Reooffnizance to be given to the Accused and his Sureties. 
 
 ■=::t^OwS!*'} NKWrOINDLA^D. 
 
 Take notice, that you A. B., of , are bound in the sum o? . 
 
 and your sureties L. M. and N. 0. in the sum of each, that you A B 
 
 appear before me J. S., one of Her Majesty's Justices of the Peace for 
 
 the Distrioo of , on _, the — day of , instant, at 
 
 oclock m the forenoon, at , or before such other Justice of the Peace 
 
 for the same District -s may then be there, to answer further to the 
 charge made against you by C. D., and to be further dealt with according 
 to law ; and unless you, A. B., personally appear accordingly, the recog- 
 nizances entered into by yourself and sureties wiU be forthwith levied on 
 you and them. 
 
 Dated this — day of , 187-<. 
 
 T q 
 
IQZ 
 
 Appendix of Forms. 
 
 (Q,4.) 
 
 (•) Ceriifioate of Nm-appearmce to be indorsed on the Recognizcmct.^ 
 I hereby certify to the Supreme Court of Newfoumlland that the 
 aaid A. B. hath not appealed at the time and place in the above condition 
 mentioned, bat therein hath madt, default, by reason whereof the wiihiu- 
 vritten ceoognisianoe is forfeited. 
 
 (H. 1.) 
 
 Warrtmi to convey the Accused before a Justice of the Bisttict, ^c, in 
 
 which, the Offence was committed. 
 
 To W. T., Constable of , and to all other Constables in 
 
 the said District of , Newfoundland. 
 
 Wheueaa A. B., of , labourer, hath this day been chained Before 
 
 tho undersigned, [one] of Her Majesty's, Justices of th^ Peaoe in and 
 
 for the said District of , for +,hat [<^(j., as in the warrant to apprehendl ' 
 
 And whereas [/] have taken the deposition of CD., a witness examined 
 by [»M],iathi8behal£; but inasmuch as [J] am informed: that the prin- 
 cipal witnesses to prove the said offence against the sa:a A. B. reside in 
 
 the District of , where the siid offence is alleged to have, been com^ 
 
 mitted,. These are therefore to command you, the said Constablej in 
 Her Majesty's name, forthwith to take and convey the said A. B. to the 
 
 said District of , and there carry him before some Justice of the 
 
 Peace in and for that District, and near unto where the offence is alleged 
 to have been committed, to answer further to the said charge before him 
 and to be further dealt with according to law; and [J] hereby further 
 command you the said Constable to deliver to the said Justice the infer, 
 matibn in this behalf, and also the said deposition of 0. D. now given 
 into your possession for that purpose, together with this precept. 
 
 Given under my Hand and Seal, this day 
 
 of , in the year of our Lord , at 
 
 —— , in the District aforesaid. 
 
 J. S. (li. s.) 
 
 . FOEM (S» 1.) given at page 88. 
 JRecoffnizanoe of BaU, 
 
 (a) This is the Form to be observed when the Recognizanee is to appear 
 in the Supreme Court, either in St. John's or on Circuit. Form given at 
 page 68, is wheu the Becogm^^aoce ia tOiappew beftnethe Josiifle.oE Quarter 
 Sessions*. 
 
Appendix of Forms, 
 FORMS (S. 3 & 4*) not need. 
 
 ltJ3 
 
 (S. 6.) 
 
 Wa trant of Deliverance on Bail being ffwen for a Prisoner 
 already committed. 
 
 To the Keeper of the Gaol at , in the said District 
 
 of , in Newfoundland. 
 
 Where-is A. B,, late of , I'isherman, hath before me, one of Her 
 
 Majesty's Justices of the Peace iu and for the said District, entered into 
 hj8 own recognizance, and found sofficiont sureties for his appearance at 
 the next term of the Supreme Couri; or of the Supreme Conri; on the 
 
 Circuit, to be holden at , [or Couri; of General Quariier Sessions 
 
 of the Peace] at , to answer our Sovereign Lady the Queen, for that 
 
 [8rc., fsiiaecommH.imntl for which he was taken and committed to 
 your said Gaol : These are therefore to command you, in Her Majesty's 
 name, that if the said A. B. do remain in your custody in the said Gaol 
 for the said cause, and for no other, you shall forthwit'i suffer him to go 
 at large. 
 
 Given under my Hand and Seal, this day 
 
 of , in the year of our Lord — — , at 
 
 ■ "I in the District aforesaid. 
 
 J. S. (L. 8.) 
 
 (T.L) 
 Warrant of Commitment given at page tJO. 
 
 TARIOtJS FOEMS NOT GIVEIT IN THE APPENDIX 
 TO JERVIS'S ACT. 
 
 Mode of describing, technically, diferent descriptions of Property, 
 Live Animals. — One horse ; 
 
 One tame duck. 
 Dead Animal.— One dead fowl. 
 Bank Noxb.— One Bank note for the payment mi, of the 
 
 value of dollars. 
 
 Money.— Certain money to the amount of doUftW, or 
 
 the Bum (rf doliars in moae^. 
 
 4. «a»B ur AiJTiwiiBs.— Xm«e {JMiri? 01 ghoes. 
 
i 
 
 104 
 
 Appendix of Forms. 
 
 Hkavy Articles — (Weight.) 
 
 pounds and the half of 
 
 another pound weight of flour, the 
 goods, (fee. 
 Articles— (Capacity.)— One gallon of molasses. 
 
 •• —(Length.)— Ten yards anci ^he half of another 
 
 yard of calico, &c. 
 
 Mode of descnbing Otvner's Property : 
 Two Partners in a Firm.— For instance, property belonging 
 
 to the firm of Messrs. P. & L. 
 Tessier, would be described as 
 " Of Peter Tessier and ano- 
 ther." 
 More than Two Partners.— Property belonging to a firm, 
 
 Buoh as Baine, Johnston & Co., 
 would be described as "the 
 property of James S. Grieve 
 and others." 
 Person unknown. — A certain person whose naiL cs is unknown. 
 Single Woman Married.— Mary Smith, now Mary Jones. 
 
 A Person Deceased before Administration Granted. 
 
 The property of John Smith, smce deceased. 
 Memorandum to he written on JDocuments produced in Hviuence. 
 This is the plan, (or as the case may be) produced to me, the under- 
 signed Justice of the Peace for the District of Newfoundland, on 
 
 the examination of A. B., charged with (arson, forgery, &c.,) and refer- 
 red to in the examination of 0. D., touching the said charge. 
 
 Taken before me, tlia day of , 187—. 
 
 T. Wills, J. P. 
 
 D^osUion of Witness dangerously ill and unable to travel, {referred 
 
 to in page 76.) 
 
 — — — District, I Newfoundland. 
 
 — — , to wit. f 
 
 The examination and deposition of L. M., of , in the said Dis- 
 trict, Fisherman, taken on oath this day of , in the year 
 
 ** > ia tlie said District, before the undersigned, one of Her Majes- 
 ty's Justices of the Peace f^ %e said District, pursuant to Section 6 of 
 the Imperial Act of the 30th and 31st years of Her Majesty, Chapter 
 
Appendix of Forms. 
 
 ^051 
 
 35, intituled " An Act to remove some defects in the administration of 
 the Criminal Law," it having been made to appear to my satisfaction that 
 the said L. M. is dangerously ill, and unable to travel, and in the opinion 
 of E. F. (a regintered Medical Practitioner are the ivorda of the Acf, 
 but any medical man holding a medical diploma recognized by La^o in 
 England, Scotland, or Ireland, would satisfy the Act) not likely to recover 
 from such illness, and it not being practicable for a Justice of the Peace 
 to take an examination or deposition of the said L. M., in accordance 
 with the provisions of the Act 11 & 12 Victoria, Chapter 42, in the pre- 
 sence and hearing of A. B., (the accised) and of the said E. F.,* and 
 — — , (the said accused having been committed or bailed to appear for 
 
 trial in the next Supreme Court, or Supreme Court on the Circuit, 
 
 or Quarter Sessions, at , to answer to a charge of having on, &c., at, 
 
 &c., stating the offence shortly) [or if no ]. -^rson charged, say from the 
 asterisk*, relating to a certain indictable offence, narcely, the offence of 
 
 , stating it shortly, alleged to have been committed on, &c., at, &o., 
 
 for which no person has already been accused, (or committed, or bailed), to 
 appear for trial]. This deponent, L. M., on his oath, saith as follows, &o. 
 
 L. M. 
 The above deposition of L. M., was taken and i 
 
 sworn before me, at , on the day and> 
 
 yeai- first above-mentioned. ) 
 
 J. S., J. P. 
 
 Notice of intention to take Deposition of Witness lU. 
 
 To A. B., (the accused or the prosecutor,) I, C. D., of &c.. Constable 
 of , being the prosecutor of you, the said A. B., (or being the per- 
 son accused of the offence of ,) hereby give you notice, pursuant to 
 
 the Imperial Statute, 30 & 31 Victoria, Chapter 35, Section 6, that J. S., 
 one of Her Majesty's Justices of the Peace for the District of New- 
 foundland, intends, on the day of , at ,in the said District, 
 
 to take the statement of L. M., who is there dangerously ill, and unable 
 to travel, and who it is alleged is able and willing to give material infor- 
 
 ' nation relating to the offence with which you were charged on the 
 
 day of , before the said Justice, (or relating to me the said accused.) 
 
 Dated this day of - — , 187—. 
 
 C. D. Constable, the Prosecutor in this case, (or the accused.) (a) 
 
 (a) It will be neoe2!"'-.y for the Magistrate carefiOIy to bear in mind the 
 dureotions given by the Statute, p. 75, 76, & 77, as to how this Deposition is 
 to be ta: eu. it may be taken on a notice from the Prosecutor, who is gene- 
 
 
 yj 
 
 B. 
 
io6 
 
 Appendix of Forms. 
 
 Order to conwy a Prisoner to place of tahmy a Deposition of Witness lit. 
 
 District, } Newfoundland. 
 
 — — , to wi'j. 5 
 
 To the Keeper of the Gaol at , in the aaid 
 
 District. 
 Whereas it appears to me that one A. B., now in your custody, 
 (under my commitment) has duly served, or has received from one 0. D. 
 a notice pursuant to the Imperial Act, 80 & 31 Victoria, Chapter 85, Sec- 
 tion 6, that I, J. S., one of Her Majesty's Justices of the Peace for the 
 said District, intend, &c., (as in the last form to the end). Now, I, the 
 said Committing Justice, by virtue of Section 7 of the said Act, direct 
 you to convey the said A. B. to the place mentioned in the said notice, 
 for the purpose of being present at the taking of the statement of the 
 8aid L. M. 
 
 Given under my Hand and Seal, at , aforesaid, 
 
 this day of , A. D. 187—. 
 
 J (J: istico's Signature and Seal.) 
 
 Form op Dyincv Declaration in Murdkr or Manslaughter. 
 No particular Form is tiecessary, but it may be as well to 
 state its principal ingredients, in order to its admissibility in 
 evidence against the prisoner ; it shruld only be iaken when the 
 Declarant is in imminent danger of death, and when he might 
 expire at any moment. Whenever there is time, and there is a 
 suitable opportunity for doing so, the prisoner should be brought 
 into the injured man's presence, and the depositions taken by the 
 Justice in the usual way, as described in Chapters 8 and 9. 
 When a dying declaration is taken, the three following points 
 are necessary : — 
 
 1. The cause of the death of the declarant must be the 
 subject of inquiry. 
 
 rally the Constable, or on notice from the accused. When the prisoner is 
 present at the examination, he must be asked to cross-examine, and where in 
 the form of taking such a deposition the words at the end occur " to answer 
 to a charge of having, on, d-c, the charge must be' stated as in page 81, and 
 the eddence taken down with the same care and pai-ticularity. Ihe notice 
 must be ser'ied on the accused or the prosecutor within a reasonable time. 
 Great care should be taken to serve it personally, and the person serving 
 Bjould keep a copy of the notice, and mark on it the day and hour when 
 
 . ^ 
 
Summary Jurisdiction in Larceny. 
 
 107 
 
 2. The oircumstanco of the death ; the subject of the de- 
 claration. 
 
 8. It must appear to have been made at a time when the 
 declarant (the deceased) was perfectly aware of his danger, and 
 entertained no hope of recovery 
 
 The declaration must not be on oath, but might be taken 
 somewhat in this form : 
 
 District, j 
 
 Newfoundland. 
 
 , to wit. 1 
 
 I, A. B., of , in the said District, Fisherman, being aware that 
 
 my end is approaching, and entertaining no hope of recovery, do hereby 
 solemnly and sincerely declare,, that [Acre 8ei out the statement in the very 
 words used]. (It is well, if possible, to get the injured man to sign it, if 
 he is able, and in all such cases it is advisable to have some one present besidea 
 the Magistrate to hear and confirm the injured man's statement.) 
 
 Taken before me, at , in the said District, 
 
 thia day of , 187—. («) 
 
 T. Wills, J. P. for the said District. 
 
 CHAPTER X. 
 
 summary jurisdiction in larceny. 
 Sections 
 
 Sbciioh 
 
 1. — General observations on Crimi- 
 nal Justice and Javenile Offen- 
 ders' Act. 
 
 2. — Special character of proceedings. 
 
 8. — Practice — General directions. 
 
 4. — Criminal Juatica Act ; Table of 
 offences. 
 
 6. — Analysis of Sections of Act. 
 
 6.— Proceedings in offences 1, 2, 3, 
 and 7. 
 
 7.— Offences 4, 5, 6 & 7, defined. 
 8. — Course of proceeding respecting 
 
 them. 
 9.— General clauses of Criminal Jus- 
 tice Act. 
 10. — Juvenile Offenders' Act. 
 11.— Table of offoucea and punish- 
 ments. 
 12. — Procedure. 
 13. — Appendix of Forms. 
 
 1; Under the Imperial Acts, 18 & 19 Victoria, c. 126, and 
 
 (a) Whilst it is beat to have it taken by a Magistrate, it may ue made 
 orally, or in writing, to a Surgeon or Pol;;ce officer, or other competent per- 
 son; and aftc the death of the dying peroon, proved by the person who heard 
 the expressions used. [Ohc. n. 834.1 
 

 toB Summary Jnrisdiction in Larceny, 
 
 81 4 82 Victoria, o. 116, sec. 2, known as the Criminal Justice 
 Acts, and Uie Juvenile Offenders* Acts, 10 & 11 Vic, c 82 ex- 
 tended by 18 & 14 Vic, c 87. and 84 & 85 Vic, c 78, sec' 18 
 power is given to Just'" as in Petty Sessions, (notice to be given 
 where sue. Sessions are held) and to Stipendiary Magistrates to 
 adjudicate mmmi^y upon certain felonies and indictable mis- 
 demeanors, the Criminal Justice Acts applying to certain offen- 
 ces where the property in respect of which the charge is made, 
 18 of Hmited value, and where the accused pleads gmlty, and the 
 Juvenile Offenders' Acts to the same and certc^n other offences 
 where the accused is under sixteen years of age ; under all the 
 / Its this jurisdiction cannot be exercised unleaa the accused con- 
 aenta. 
 
 2. As the proceedings under thij Chapter differ from both 
 indictable offences, and those under summary jurisdiction, I have 
 thought it necessary , to explain +.hem fully. It appears to me 
 thr.t as no Petty Sessions are held in this Colony, and as the Act 
 is very definite about the holding of such Sessions, .he notice to 
 be given to inform the Public, &c,) that two hororaiy Justices 
 could not safely exercise this jurisdiction ; it wiU make no 
 difference as the powers may be exercised by a Stipendiary Ma- 
 gistrate alone, who should try all offenders under this Chapter, 
 in the Court House, or such other buildmg as is commonly used 
 for the exercise of his Magisterial duties, the provisions men- 
 tioned in (sec 5, page 8 of this Manual), will apply, and the 
 honorary J. P. may, in the absence, &c, of the Stipendiary, 
 act ; but he should be very careful to attend to aU the directions, 
 and to try the offenders at tLe same place as the Stipendiary 
 would have tried them, not in his own private house or office. 
 
 8. It should be observed, tliat the practice in all cases up 
 to the period when the depositions of the witnesses for the pro- 
 secution are completed, wHl be precisely the same as directed in 
 Chapters 8 & 9 ; it is not until then that the special procedure 
 comes into operation. I have given from Oks an abstract of the 
 different offences under the Cri-.inal Justice Acts, and the pun- 
 ishments ; also, an abstract of different offences and punishments 
 under the Juvenile Offenders' Act. 
 
 rrrr; 
 
Summary Jun'zdictio.i iu Larceny. 
 4. Sbo. 1.— the criminal JUSTICE ACT. 
 
 log 
 
 Offkncks. 
 
 Any pe sou charged with having 
 
 1 . Committed simple larceny , the 
 value of the whole of the property 
 stolen not exceeding one dollar and 
 twenty cents {and offender above 
 ^lixtoen.) 
 
 2. A i;^ -mpted to commit larceny 
 from the person, (no limitatum of 
 vai,ue or age of offender.) 
 
 ii. Attempted to commit simple 
 larceny, (a) (no limitation of value, 
 and offender above sixteen.) 
 
 Memo. Nos. 1 & 3, are likewise 
 pnnishable ander the Juvenile Of- 
 fender Acta. — {Pnst.) When of- 
 fender not exceeding sixteen the 
 offender muej consent to the sum- 
 mary disposal of the case, but no 
 plea of guilty is necessary as in 
 next offences, 4 & 6. 
 
 Any person charged with — 
 
 4. Simple larceny, the property 
 stolen exceeding in value one dollar 
 and twenty cents, (offender above 
 sixteen and pleading guilty.) 
 
 6. Stealing from the person (no 
 limitation of value or age of offen' 
 der, but pleading gu 'Hy.) 
 
 6. Larceny as clerk or servant, 
 (no limitation of value or age of 
 
 Statutes, &c. 
 
 Imperial Act, 
 18 & 19 Vic, 
 c.126, a. 1, noli 
 mitationoftime, 
 U & 12 Vic, 
 c 43, s. 11, not 
 applying. 
 
 offender, but pleading guilt% 
 7. Embe^ilement ae clerk 
 
 ) 
 
 vant. 
 
 orser- 
 
 Id., Sec. 3. 
 
 c. 
 
 81 & 32 V:c5., 
 116, s. 2. 
 
 PUNISHMKNT. 
 
 Ormmitment to gaol 
 not exceeding three 
 calendar months, or 
 if charges proved 
 and Jus*-lce thinks 
 it inexpedient to 
 inflict any punish- 
 ment; may dismiss 
 person charged with- 
 out proceeding to 
 oonvictioii.. 
 
 Commitment to gaol 
 for any t^rm not 
 exceeding six calen- 
 dar months. 
 
 Imprisonment as of- 
 fencep 1—3, where 
 amount embezzled 
 not exceeding $1 .20. 
 Imprisonment as of- 
 iences 4 — 6, if am't 
 exceeds $1.20. 
 
 6. Analysis op Sections of Act. — ^When any person is 
 charged before any Stipendiary Magistrate, with having committed 
 
 (a) Simple Larceny is the larceny of the goods only ; Compound Larceny 
 is a larceny from the person or nabic^tion of ths oifVv^er. 
 
no 
 
 Summary Jtmsdiction in Larceny. 
 
 /^ y 
 
 Bimplc larceny (No. 1) (a) (or with embezzlement {b) as a clerk 
 or servant, (No. 7) or person employed for the purpose or in the 
 capacity of a clerk or servant, 31 & 32 Vic, c. 118, s. 2,) and the 
 value of the lohole of the property alleged tc have been stolen does not 
 in the judgment of such Magistrate exceed one dollar and twenty cents, 
 or with having attempted (No. 2) (c) to commit larceny from the 
 person, or simple larceny, (No. 3) it shall be lawful for such Ma- 
 
 (a) The Larceny Consolidation Act of 24 & 25 Vict., c. 96, does not 
 appear to make any alteration with regard to the offences punishable by .lua- 
 tices under the Criminal Justice Act. Justices ma>, it is considered, convict 
 of simple larceny, although the offender might be charged with the more seri- 
 ous offence of stealing from his master, or from the person, if the charge 
 actually preferred be that of simple larceny. The Act does not apply to re- 
 ceivers or accessories after the fact, nor (as in the Juvenile Offenders' Act) 
 to ofleuces punishable &i simple larceny, but a bailee of property guilty of 
 larceny under 24 & 25 Vict., c. 96, fi. 3, is within its operation. [Ofte's Syn., 
 and Treat. 35 J. P. 145.] 
 
 (6) Casos of embezzlement may, according to Oke's Syn. be dealt with in 
 either of three modes,— Ist, under section 3, on a plea of guilty,— 2nd, under 
 section 1,— or, 3rd, where the amount embezzled does not exceed five shillinga 
 Btg., under section 3 ; but the third course is recommended, which we beUeve to 
 be the meaning of the Act, and to be the most just course towards an oflender- 
 If there be more than one act of embezzlement, the prosecutor may, we con- 
 ceive, choose that as a subject of prosecution on which he has the clearest 
 evidence. He cannot, as in indictments, include three senaate oftences of 
 st-aling or embezzlement committed within six months, in one charge against 
 the same individual ; but the defendant ma, in certain cases be charged with 
 embezzling a gross sum, and the charge bo proved by evidence that several 
 smaller sums, making together the gross sum, had been embezzled. [See 
 iJ. V. Balls, 24 L. T. (N.) 760. 
 
 (c) If the oQence charged be that of attempting to commit larceny, the 
 Justices are, it seems, competent to decide the case summarily, if the party 
 consents, without reference to the question whether the value of tiie goods 
 attempted to be stolen is more or less than five shillings, stg. Indeed it 
 would, in attempts to steal from the person, be obviously impossible to 
 state what amoiiut the party intended to steal. If a person puis his hand 
 into the pocket of another with intent to steal what he can find there, and it 
 tm-ns out that the pocket is empty, he cannot be convicted of an attempt to 
 steal. iR. V. Collins, 33 L. J. 177.] So in an indictmeat for an attempt 
 to steal goods in a dwelling-house, it was held iu R. v. Johnson, M L. J. 24, 
 that it was not necessary lo specify in the indictment what the goods were, 
 but that it wag necessary to proyo that goods were there which the prisoner 
 eould steal. 
 
Summary JtirisdicUon in Larceny. ritr 
 
 gistrate (-) to hear and determine the charge in a summary wq-y • 
 ard if the person charged shall confess che same, or if such Ma' 
 gistrate, after hearing the whole case for the prosecution and for 
 the defence, shall find the charge to be proved, the Magistrate 
 may convict the person charged, and commit him to the gaol, 
 for not exceeding {h) three calendar mouths ; and if he find the 
 offence not proved, he shall dismiss the charge, and make out 
 and dehver to the person charged a certificate undjr his hand 
 8tatmg the fact of such dismissal. The conviction and certificate 
 may be m the form given in the Schedule to the Act, or to the 
 hke effect. But if the person charged do not consent to have 
 the case heard and determined by such Magistrate, or if it ap- 
 pears to him that the offence is one which, (c) oiving to a pre- 
 vious conviction of the offender, is punishable by law with impri- 
 Bonment not exceeding iv:o years, or that the charge ib from 
 any other circumstances fit to be made the subject of prosecu- 
 tiou by indictment, rather than to be disposed of summarUy 
 the Magistrate shall, instead of summarily adjudicatiag thereon' 
 deal With the case as if this Act had not been passed ; provided 
 also, that if, upon the hearing of the charge, such Magistrate 
 shall be of opinion that there are circumstances m the case 
 which render it inexpedient to inflict any punishment, he shall 
 have power to dismiss the person charged without proceedmg 
 to a conviction. [18 & 19 Vict., c. 126, s. 1.] 
 
 6. The course of proceeding in offences 1, 2, 3 & 7, (d) is 
 as follows, under Sections 1 & 2. 
 
 {a) If goods be stolen in A., and afterwards carried by the tt^ender to B 
 he may, ^e conceive, be tried in either A. or B., the co-.tinuance of the aspor! 
 tation being in law a new caption. The Criminal Justice Act does not make 
 any difte-nce in regard to jurisdiction, although it alters the procedure 
 [34 J. P. 127.] 
 
 (&) The power to order consecutive periods of imprisonmeut applies we 
 conceive, to cases of conviction under the Criminal Justice Act. ' 
 
 (c) The wordD in italics were inserted at a time when the oftence of 
 eunple lai.-eny was not punishal)le, as here mentioned, on ^ first conviction. 
 
 {d) Sec. 7. Okc recommends that cases of embezzlement by clerk or ser- 
 vant should be dealt with where not exceeding $1.20 under the above rules. 
 snu wiiCii oTor that amount under Sec. s,^08f. 
 
 
 :i| 
 
 hi 
 
 \ i 
 
112 
 
 Summary jurisdiction in Larceny. 
 
 (1.) After the completion of the depositions of the prosecu- 
 tor's witnesses, the Stipendiary Magistrate or Clerk of the Peace 
 says to the accused: " Yvu stand charged with, <&c., as in the 
 Caption, p. 81. Do you consent that the charge against you shall 
 he tried by me, or do you desire that it shall he sent for trial hy a 
 jury at the Supreme Coui't, in St. John's, {or on Circuit, or at Quar- 
 ter Sessions, as the case may be.") 
 
 (2.) If the accused consents, then the Magistrate or Clerk 
 says to him : — " You have heard the charge against you read ; are 
 you guilty or not guilty of that charge?" If he plead guilty, con- 
 sider the punishment. If he plead not guilty, thdn ask him : — 
 " What is your defence to the charge ?" Then hear the defence. 
 If offence proved, consider the punishment ; if offence not pro- 
 ved, dismiss the charge, and give the accused a certificate of 
 dismissal. 
 
 (8.) If the accused do not consent, the summary jurisdiction 
 cannot be appHed, and the Magistrate must caution him in the 
 usual mode directed for an indictable offence, pp. 62 & 85. 
 
 7. Offences 4, 5, 6 & 7, Defined. — "When any person is 
 charged before a Stipendiary Magistrate with simple larceny 
 (No. 4) (or with embezzlement as a clerk or servant^ (No. 7) or per- 
 son employed for the purpose, or in the capacity of a clerk or ser- 
 vant, 81 & 82 Vict., c. 116, s. 2), the property alleged to have been 
 stolen exceeding in value one dollar and twenty cents, or stealing from 
 the person, (No. 5) or larceny as a clerk or servant (No. 0), and 
 the evidence, when the case on the part of the prosecution has 
 been completed, is, in the opinion of the Magistrate, sufficient to 
 put the person charged on his trial for the offence, such Magis- 
 trate, if the case appear to him to be one which may pro- 
 perly be disposed of in a summary way, and adequately pun- 
 ished under this Act, shall reduce the chai -^ into writing, 
 and read it to the person charged, and ask him whether he is 
 guilty or not ot the charge ; and if he shall say tliat he is 
 guilty, the Magistrate shall thereupon cause a plea of guilty to 
 be entered upon the proceedings and convict him of the offence, 
 and commit him to the gaol, for not exceeding six calendar 
 mouthc*. and the conviction may be in the form siveu in the 
 
 llMli 
 
Summary JiirisdicHcn in Larceny. u. 
 
 Schedule or to tho liL feet : Provided always, that the Ma- 
 ms rate, before ha ask such person whefter he is guUt/or not 
 ahaU explam to him that he is not obUged to plead or answer" 
 before h,m at aU, and that it ho do not plead or answer before 
 lam he w,ll be c„na.nitted for trial in tho usual oou^-se. [K s 3 
 n 1 ^■,,:7'^'"""= """^ ^^'=- 8. i-OB OPPKN0.S 4. 6, 6 & 7.- 
 
 ictutd "7 f"??'" '^"'""'™'' '"» "-8'="" -y^ 
 
 iUonsp 8n ^""'"f "'«"-^<''-. Nin Caption, to Depo- 
 
 not of, he cUrge; but before I do eo I have ,0 tdl you that Juar. 
 .... o«.W to vleai or an..er to the chanje at all, Li that TZ 
 d not pleaU or ane,eer before «, ,„„ Ml be co^t^ittei for uJl 
 * -a .ay T ,.0. a,, you. are yoa „uilty or not of Lett " 
 
 8 Tf 'Tf f "" *"''* """^^ «■« punishment. 
 (3.) If accused plead not guilty, the summary jurisdiction 
 
 ^62 .«?■"":'' """ ''"' ^^«''«^ --' cautioVh m * : 
 8. General CLAUSES.-The accused shall be allowed to maka 
 
 «ecut.„n and defence, and the statement of he utd are't 
 
 missal for the offence m any legal proceedings. Ud s 7 1 
 Ma:,istrates may order (o\ r<>Q+i+,,f;. c ±, '■ ''J 
 ___J^^oiaev^) restitution of the property stolen, 
 
 over 
 
 
 Just: 
 
 'iC^x 
 
114 
 
 Summary Jurisdiction in Larceny. 
 
 taken, or obtained by false pretences, («) in those cases in which 
 the Court before whom the person convicted would have been 
 tried but for this Act, may be by law authorized to order resti- 
 tution. [Id. s. 8.3 
 
 10. Juvenile Opfendeks under Sixteen. — Any person char- 
 ged with having committed, or (b) attempting to commit, or with 
 having been an aider, abettor, counsellor, or procurer, in the 
 commission of any ofifence, now or hereafter deemed or declared 
 to be simple larceny, (c) or punishable as simple larceny, and 
 whose age, at the time of such offence, shall not, in the opinion 
 of the Magistrate, exceed the age of fourteen years (rf) shall, on 
 conviction, upon his own confession, or upon proof before a S; ■ 
 pendiary Magistrate, in open Court, be committed to the gaol, 
 for not exceeding three calendar months, or in the discretion of 
 Buch Magistrate, forfeit any sum not exceeding fourteen dollars 
 
 (a) The words •• taken or obtained by false pretences,' seem to have been 
 left in the Act through inadvertency, the Justices having ao power to convict 
 for such offences. 
 
 io) On an indictment for attempting to steal goods in a use, it was 
 held, in B. v. Jchnson, 34 L. J. 24, that it was not necessary to >ecify what 
 the goods were, but that it was necessary to prove that goods „ere in the 
 house, which the prisoner could steal. 
 
 (c) The jurisdiction of Justices under this Act, will, we conceive, be 
 confined to those cases where the accused shall be charged with having com- 
 mitted, or having attempted to commit, or with havrag been an aider, &c., in 
 the commission of simple larceny, or any oflences made punishable, as in 
 the case of simple larceny, by the 26th, 27th, 31st, 32nd, 33rd, or 36th sec 
 tions 01 24 & 25 Vic, 0. 96, i. «., stealing oysters, s. 26— stealing any valua- 
 ble security other than a document of title to lands, s. 27— stealing glass, 
 wood-work, fixtures, &c., fixed to house or land, s. Sl—etealing trees, &o,, in 
 pleasure grounds, of the value of one pound, stg., or elsewhere of the value 
 of five pounds, stg., s. 32— third ofience, for stealing trees, &c., wheresoever 
 growing, above t'ae value of one shilUng, stg., s. 33— second ofience, for steal 
 ing vegetable productions growing in gardens, &c„ b. 86. The Act does not 
 extend to cases of embezzlement, but a juvenile delinquent may be convicted 
 of embezzlement under the •' Criminal Justice Act," as extended by 81 & 82 
 Vic, c 116. 
 
 {d) Extended to sixteen years b^ 13 & 14 Vic, c. 87, s. 1, with a proviso 
 that whipping shall not be inflic-ed on any offender abrve the age of fourteen 
 years. 
 
Summary Jurisdiction in Larceny. 115 
 
 and fifty ctnts ; or if a male, be once privately whipped, (a) 
 either instead of or in addition to such imprisonment, or impri- 
 sonment with hard laborr ; and the Magi " ate is to appoint a 
 fit person, being a Constable, to inflict ^ aipping, when or- 
 dered to be inflicted out of prison [lb & 11 7io., c. 82, s. 1] • 
 with a proviso, that if the Magistrate think the offence is' not 
 proved, or that it is nor, expedient to inflict any punishment, he 
 may dismiss the party charged, either with or without finding 
 surety or sureties for his good behaviour, and dehver a certificate 
 under his hand, stating the fact of such dismissal in the form 
 set forth in the Schedule. If, however, the Justices are of opi- 
 nion that the charge is, from any circumstances, a fit subject for 
 prosecution by indictment, 01- if the person charged shall object 
 to the case being summarily disposed of under this Act the 
 Stipendiary Magistrate may deal with the case as if' this 
 Act had not been passed ; [Id. ss. 1, 2] and such certificate, or a 
 conviction under this Act. is a bar to other proceedings. Ud 
 s. 3.] Stone, p. 269. 
 
 (a) The conviction must specify the number of strokes and the instm- 
 ment to be used, and where the oftender's age does not exceed fourteen (as in 
 aU cases of whippi;ig under the Juvenile Oftender's Act) the number of strokes 
 must not exceed twelve, and .he instrument used be a bL-ch rod ; and no of- 
 fender 18 to be whipped more than once for the siune offence. [25 & 26 Vio. 
 0« lo, B3> 1, 2. J * 
 

 i 
 iiSiliBl 
 
 ii6 
 
 Summary Jurisdiction in Larceny. 
 
 ll.~TABLE OF OFFENCES AND PUNISHMENTS UNDER 
 IHE JUVENILE OFFENDERS' ACT. 
 
 Offences. 
 
 ^11^ I-eraon whose age, at the 
 penod of the commission or at- 
 tempted commission of the offence, 
 BMll not, m the opinion of the Ma- 
 ptrate before whom he shaU be 
 brought or appear, exceed sixteen 
 years, 13 & 14 Vic, c. 37,8.1. 
 
 1. Committing simple larceny. 
 
 2. Attempting to commit simple 
 larceny. *^ 
 
 3. Aiding, abetting, counjelliijg 
 or procunng the commission of 
 Bunple larceny. 
 
 4. Committing any offence de- 
 clared to be punishable as simple 
 larceny, *^ 
 
 6. Attempting to commit any 
 offence declared to be punishable 
 as simple larceny. 
 
 6. Aiding, abetting, counselling, 
 or procunng the commission of anv 
 offence declared to be punishable as 
 w^ple larceny. 
 
 SxATTrXES, &c. 
 
 10 & 11 Vict., 
 c. S2, s. 1. 
 
 PtTNlSHMENT. 
 
 Either imprison- 
 ment not exceeding 
 three calendar mo's., 
 or in Magistrate's dis- 
 cretion, to forfeit and 
 pay not exceeding 
 $14 50. Time may 
 be given for payment 
 f.nd detainer, unless 
 security given till day 
 appointed; in default 
 of payment, commit- 
 ment not exceeding 
 three calendar mo's., 
 reckoned from time 
 of adjudication, un- 
 less sooner paid. 
 
 Or if a mala, and 
 not exceeding four- 
 teen years of age, 
 (13 & 14 Vic, 0. 37, 
 s. 2} to be once pri- 
 vately whipped,either 
 instead of or in addi- 
 tion to such impri- 
 sonment, under s. 1, 
 and the INIagiatrate to 
 order a CJonstable to 
 inflict the whipping, 
 when ordered to be 
 done out of prison. 
 
 Or if offence not 
 proved, or if Magis- 
 trate deems it not ex- 
 pedient to inflict any 
 punishment, accused 
 may be (a) dismissed, 
 or may be required 
 to find surety for fu- 
 ture good behaviour, 
 md a certificate of 
 dismissal to be given 
 to him. 
 
 andilirir^''^''^',^''^^^""' ^^^''^ *PP"«« *° *^° Criminal Justice Act 
 and also to the Juveuile Oflenders Act, enables the Magistrate in petty crimes 
 
Summary Jurisdiction in Larceny. uy 
 
 ...f ?* ^^°"=°^«^-One Justice may issue summons or war- 
 rant, to summon or apprehend any person charged on oath with 
 
 fr.?"'"''''' ""'" *'" ^'' ^''- «• '^ ' '-^ -^-y remand 
 
 urfr* r'rT^'^' ^^ '"^^"^ ^^ *° ^^ ^^ i^^^^. <>« finding 
 
 surety to be bound by recognizance for the appearance of such 
 person for further examination or for trial, which recognizance 
 may be enlarged from time to time. [Id. s 6 ] («) 
 
 .ftp JT"w ,'"'' ^^«"^^"o^- (*)-No conviction shaU bo 
 a^ ended with forfeiture, and it shall be lawful for the Stipendiary 
 Magistrate to order restitution of the property to the owner, and tf 
 not forthcommg. whether he award punishment or dismiss the 
 complaint, he may ascertain the value thereof in money, and 
 order payment to the owner, either at one time or by instalments, 
 and the sum 30 ordered may be recovered as a debt in any Court 
 of Law, with costs of suit. [Id. a. 12.] 
 stated '^1°°''''^ of procedure at the hearing may be thus briefly 
 
 1. The Magistrate, after taking the depositions of the pro- 
 secutor's witnesses, to say to accused : The charge against you is 
 
 for that you, on the 0/ , did (stating offence as in Caption 
 
 to depositions, p. 81.) 
 
 2. The Magistrate then (pursuant to 18 & 14 Vic, Cap. 87, 
 
 Sec. 2,) , " I shall have to hear whzt you ivish to say in answer 
 
 to this charge, but if you wish the charge to he tried by a Jury, you 
 must object now to my deciding upon it at once." 
 
 i^.) If the accused or his parent do not object, then the 
 
 and in cases of first oftences, and in cases of young offenders, to admonish 
 and discharge the ofiender. instead of perhaps ruining him for life by sending 
 him to jaU. {This is not tJie same as when a certi;.cate is given.) In EnR. 
 land, and m some of the Colonies, juvenile oftenders can be sentenced to so 
 many years in a Reformatory School; such a School is a very valuable insti- 
 tution m large towns, and untU such a School is established in St. John's I 
 never have, and I trust I never will be. compelled to sentence a juvenile of- 
 fender, under this Act, to imprisonment for a first oflence. 
 
 (a) See Bail, p. 7I & 73. 
 
 (5) The Magi8trat3 may likewise order the purchaser of the stolen pro. 
 perty to be reimbursed out of the monies found on the prisoner ; this appUes 
 « — .._ _.iaiiB,,. sfUomuc: ^vii. Limp, ^oj^ ^jy ^ jji Vic, 8. 9,j 
 
ii8 Summary Jurisdiction in Larceny. 
 
 Magistrate must say :-^Now, I must ask you, are you guilty or not 
 guilty of the charge? If he plead gudty, consider the pun..,h- 
 mont ; if he plead not guilty, hear his defence, and witnesses if 
 any, and condider the judgment. ^ 
 
 (4.) If the accused or his parent object, t'le summary 
 jurisdiction cannot be applied, and the Magistrate must caution 
 him in the usual form directed for an indictable offence, (see pp. 
 62, 84 & 85) ; if the evidence be sufficient to send the accused for 
 trial. 
 
 APPENDIX OF I'ORMS UNDER CHAPTER 10. 
 1. Conviction under CnminalJusti.e Act and Juvenile Offenders Act. 
 ^^^*"''*» ^ Newpoundland. 
 
 \ 
 
 1 to wft. 
 
 Be it remembered that on the day of , in fche year , at 
 
 — , m the said District, A. B., being charged before the undersigned 
 
 Stipendiary Magistrate for , at the Court House at , aforesaid, 
 
 and consenting to my deciding the case summarily, {add, if the case, and 
 p^ading guUtrj) is convicted before me, for that he the said A. B,, &c., 
 (staiing offence, and the time when and where coi-mitted,) and I adjudge 
 
 the said A. B., for his said offence, to be imprisoned in the gaol at , 
 
 m the said District, (and there kepi to hard labour) (a) for the space of 
 — , (m the case of a Juvenile offender ordered to be whipped en prism) 
 {b) add, md during said term of imprisonment, to be once privately 
 
 trhippsd, strokes, with a birch rod, to he inflicted on him, (in case of 
 
 punishment being only whipping mt of prism). After the words, I ad- 
 judge, &c., for his said offence, add, to be once privately whipped out of 
 
 prison, by one Constable, nnm.ber of strokes to be inflicted on 
 
 him with a birch rod, (c) or I adjudge the said A. B., for his said offence. 
 
 (a; Hard labour may be added to all sentences of unprisonment, under 
 summary conviction. [Consol. Stat., 231.] 
 
 (6) Juvenile Offenders, see p. 1U& 115, must be under fourteen to be whip- 
 ped ; the words " mt in the opinion of the Justices exceed the va. of sixteen," uo 
 not give junsdictioa where proof is adduced that offender is" above that ace 
 they are merely intended to dispense with strict proof of age. 
 _ (c) Lifants, see also p. 44.-Between the ages of seven and fourteen there 
 IS no fixed rule maw as regards the infant's liability; it depends upon the 
 ripeness of his intellect and his oapabiUty o! discerning between right and 
 tarong ; the presumption of law, however, between these ages, is stiU in the 
 child 8 favour, which, aevertheless, may be rebutted by evidence of a miichie. 
 
Summary Jiirisdiction in Larceny. 
 
 119 
 
 to forfeit and pay dollars, {her-i state the penalty actually imposed) 
 
 and in default of immediate payment of the same, to be impriaoned 
 
 in the gaol at ,for the apace of days, unless the same shall be 
 
 sooner paid. 
 
 Given under my Hand and Seal, at , aforesaid, 
 
 the day and year first above mentioned. 
 
 2. Form of Certificate of Dismissal. 
 District, I Nkwpoundland. 
 
 ' District, I 
 , to wit.. \ 
 
 ■ , to wil".. 
 I, the undbrsigned Stipendiary Magistrate for the ssid District, at 
 
 ■ , (M^gisti'ate's residence) do hereby certify that on the day of 
 
 , A. D. 187—, A. B. was brought before me, at , charged with 
 
 the following ofifence, that is to say, (here state briefly the particulars of 
 the charge) and I, the said Magistrate, thereupon dismissed the charge. 
 
 Given under my Hand and Seal, at , aforesaid, 
 
 the day and year first above mentioued. 
 
 FORMS OP STATEMENT of OFFENCES UNDER CHAPTER 10. 
 Form No. 3. — Simple Larceny by Juvenile Offender. 
 
 For that he the said A. B., on the day of , at , in the 
 
 said District,* (then being under the age of sixteen years, to wit, of the 
 age of (twelve) years*J feloniously did steal {describing property stolen) of 
 
 the value of , the monies, goods and ch '^'^^els of the said 0. D., 
 
 against the Peace, &c. {When under Criminal Justice Act leave out 
 words between asterisks,) and be careful about inserting value not exceed- 
 ing $1.20, under offence No. 1, in Table under th. ■• Act. . 
 
 4. Attempt to commit Simple Larceny. 
 
 Instead of feloniously did steal, say, " unlawfully did attempt felo- 
 niously to steal." 
 
 vovs discretion, the oapaoity to do evil and contract guilt being measured not 
 80 much by years as by the strength of the child's understanding and judg- 
 ment, and upon this principle many children under fourteen years of age have 
 been hung ; but m all cases where it is intended to rebut the presumption of 
 law by evidence of a vicious discretion, that evidence should be clear and 
 strong, {Rex v. Owen, 4 C. P. 236.) quoted m Saunders, p. 249. In some old 
 authorities it is laid down that an infant cannot be convicted w^n his own 
 ooi^essxon. This doctrine in modern practice is never acted on, and under 
 thid Act it is expressly enacted that the child may be convicted upon his own 
 confession. These considerations will, however, strongly weigh with Magis- 
 trates in not very readily ac^g upon a confession of gmlt, without strictly 
 esamiaing iato tl.e facts w tho case. iSaunders, p. 249.] 
 
120 
 
 Summary Jurisdiction in Larceny. 
 
 6. Stenli/iff from the Peison. 
 m« person of O. D„ (d«icrj>m!, propert,j) of Ih. value of , f„„»„,>^ 
 
 6. Larcemj as Clerk or Servant. 
 
 For that he, the said A B on -?>n «+ f xv 
 
 Servant) to 0. D., felomont dLl sW ' ;!,''' ^ ' "'"* ^'" 
 value of — , (ul„*.io y^^^~. iducnlmg „ror^,j) «, jt, 
 
 QENEKAL DIKECTIONS. 
 
 tM hft-Ka«i o<ner, Diatriot, N^^o^mand i and in 
 
 vietlone, Order,, Con.;:^Xi,''^:^^^^'X^'-'fOon. 
 
 go.„g ,„™, . a in „, for™, of Indictable offence. ' "" '""^ 
 
 ,K- «, , " °' I-'''"'^'''' OBencea, puniah™.n«. jt<, ,. ju, . . , 
 
 ooder Criminal Justic: a 'dX^'^y^^^^^^^^ ^' ^ ^^'^ °^ ^^^°"- 
 U the ofitncea under these Acts Th« ^ ^A '^ ''^ """^y ^^P*^^ to 
 must be inserted ia ^ cats Idl t ? - ''" *^' ''*'"'^'' ^ N°- ^' 
 fence specifies a U^itot Zl oT^I ^TT Tr^''' '''''■ ^-« *h« «'' 
 .tated. and not exceelg tL a^:^^^^^^^^^ 
 
 throughout this Manual. tL charrsrould h«l .. *"• ^''"'' '' ^^^"^'^^ 
 directions. Newfoundland L ^' ^'"^'^ "' ^° *^« ^''o^^ g^^^^l 
 
Small PenaHiei' A:L 
 
 X2Z 
 
 CHAPTER XI. 
 
 SMALL PENALTIES' ACT. 
 
 BRCTIOUa 
 
 1.— Application oil Act to thia Co- 
 
 lony. 
 2.— Object of Act. 
 S.—Genoral apiUoation of Act. 
 
 Sbotions 
 
 4.— Constrnction of its terma, 
 6.— Cases to which Act appliea. 
 6. — Penalty defined. 
 7. — Scale of Imprisonment. 
 
 1. The Imperial Act 28 & 29 Vic, c. 127, known as the 
 Small Penalties Act, and referred to throughout this Manual, 
 under the initials (S. P.) was made part of the law of this Colony, 
 by the 4th Section of Cap. 89, Consolidated Statutes, p. 226,' 
 " so far as the same can be applied." 
 
 2. This Act regulates the period of imprisonment in all cases 
 whore the penalty does not exceed twenty-four dollars (£5 stg.) ; 
 the Statute was passed in order to prevent any great dispropor' 
 tion between the amount of the fine and the period of imprison- 
 ment, in the event of non-payment, .",nd with this view it pro- 
 scribes a scale of imprisonment graduated according to the 
 amount of the penalty. 
 
 3. It will be seen that this Act " applies to penalties, in- 
 eluding costs, recoverable in a summary manner, in pursuance of 
 any Act of Parliament passed before or after the commencement 
 of this Act ;" the Magistrate must therefore, in all cases, bear in 
 mi^d the scale, and proportion the imprisonment to the aggregate 
 amount of penalty and costs, that is the sum of money which 
 the penalty and costs together amount to; for instance, if he 
 fined one dollar, and the costs were one doUar, he could not give 
 a longer imprisonment than seven days. 
 
 4. Many difficult questions have arisen in England on the 
 construction of this Act, which cannot be discussed here for 
 want of space, and some questions might arise as to the course 
 to be pursued when this Act conflicts with our Local enactments ; 
 
122 
 
 Small Penalties' Act. 
 
 but I consider all difficulties wUl bo practically ma by invariably 
 pj'oportiouing the imprisonment to the penalty, according to the 
 Bcalo here given ; penalties are now almost invariably (a) stated 
 as not excoedhuj such a sum, a Justice may therefore fine any 
 sum below that ataount. and so under this scale the imprisonment 
 18 not to exceed a certain period ; a J ^ce may tlierofore, in all 
 cases, imprison for a shorter time th^ prop-^iouate penury 
 
 would give ; the scale h a good guide for Justices, m all cases, 
 and should invariably be followed. (6) 
 
 6. It has been held, that this Act applies only to penalties 
 adjudged upon a conviction, as distinguished from an order io pay 
 a rate, wages. &o. Mr. Oke considers, however, it applies to all 
 cases where an Act directs sums to be recovered as penalties or 
 m other like terms, {Oke, p. 186,) it would apply to the 4th and 
 6th Sections of Masters and Servants Act, (p. 508, Consol. Stat ) 
 which gives imprisonment as the alternative for non-paymenL 
 although the word " order," is used in the latter part of sec. 6. 
 
 6. Penalty DEPXNED.-The word penalty includes any sum 
 of money recoverable in a summary manner. [28 & 29 Vict. 
 
 v» JLZ/, S. o,J 
 
 7. Scale of Imprisonment.— Where, upon summary oo: • ic 
 tion, any offender may be adjudged to pry a penalty not exceed- 
 
 (a) AmongBt the exceptio is to this rule, see 522 C^l. Stat., where the 
 fineisno* U»s thau two dolu-s for each head of game killed. &o. Also 
 License Act, 1875. sec. 2. where penalty is mt less than $.0 for selling !«: 
 toxicdting Liquor without License. ^ 
 
 ty,« f i ^""^ "l"'"''' '^" '"*'* *^^ ^""^ •'^ ^^^"y« ^^S the offender in 
 the fuU amoun given by the Act. This should not be the case, the full 
 amount of iine is only intended to meet bad cases. In cases where the a^ 
 cusea IS charged for the first time, or there are other circumstances in hiB 
 favor, or his means are very smaU. the fine should be proportioned to the 
 circumstances of the offender, and the character of the offence A -v^olthv 
 merchant knowingly buying a partridge in Augrgt, should be fine-' .^est 
 
 penalty, whilst a poor fisherman ignorantJy dicing the same thii at be 
 
 suthciently fined the least sum. No invariable rule, however, can be laid 
 down as respects the amount of fine. The Justice must decide each case ac- 
 cording to Its merits and the surrounding circumstances. A fine or penaltv 
 s.^ould ho r, punishment proportioned to the offence, and the oflender's means 
 —of course keeping within the amount prescribed by law. 
 
Quarter Sessions. 
 
 123 
 
 ing twenty-four doliars, such offender, in case of non-pftymont 
 thereof, may, without any Warrant of Distress, be committed to 
 prisoa for any term not exceodmg the period specified in tho fol- 
 lowing Boale : — 
 
 SCALE OF IMPttlSONMEN'i. 
 
 Tonalty not exceeding $2 40, 
 
 Penalty exoeeding $2 40, and not 
 
 exceeding $4 80. 
 Penalty exceeding $4 80, and not 
 
 exceeding $9 00. 
 Penalty exceeding $0 00, but not 
 
 exceeding $24. 
 
 Iraprisonmen: not exceeding seven 
 days. 
 
 Imprisonment not excos^ding four- 
 teen daya. 
 
 Imprisonment not exceeding one 
 calendar month. 
 
 Imprison.nent not exceeding two 
 calendar raonths. 
 
 CHArTER XII. 
 
 QUARTER SESSIONS, 
 
 Sections 
 
 1 larter Sesaioaa deHned. 
 2. — How established. 
 3.— Where to be holden. 
 4.— Time for holding. 
 6.— Places named for holding. 
 6.— Now only held in St. John's, Ac 
 7.— Division of Justices' duties. 
 8.--Offenoes excluded from jurisdio- 
 
 tion. 
 9-— Offeaoes triable at Sessions. 
 10. — Summoning Jury. 
 
 Sections 
 
 11, — Form of Precept. 
 
 12.— Opening the Court. 
 
 13.— Swearing Grand Jury. 
 
 14.— Charge to Grand Jury. 
 
 15.— Trial of Indictable oftenoes. 
 
 16. — ^Appeals under License Ait. 
 
 17.— Appeals in Bastardy. 
 
 18.— Regulation of Ferries. 
 
 19.— PubUc Wharves. 
 
 10.— Ruleu for Skating and Sliaing. 
 
 21. — Nuisanoes. 
 
 1. Co. ts of General Quarter Sessions of the Peace are 
 defiuec^ to be that species of General Sessions which is held 
 under authority of th e Oommission of the Peace (a) by two or 
 
 (/A IWoniin] n O 
 \-v "^7 1'' •" 
 
124 
 
 Qmrtev Sessions. 
 
 more Justices at some place within the District, fixed by their 
 precept, once in every quarter of a year, as directed by Statute. 
 The Court is a very ancient Court, and was defined by Lord 
 Tenterden in R. v. Smith and others, (8 B. & C, 848^ to be "a 
 Court of oyer and terminer, and a Court of Record, and not a 
 Court of Infer; ( t a. -7 lotion, (b). 
 
 Commission cr :aE Peace.— In the Central District, foUow- 
 ing the English practice, there is a General Commission of the 
 Peace for the District in which the Court is held. 
 
 2. The Courts of General and Quarter Sessions were esta- 
 bhshed in this Colony by the Imperial Act, 5 Geo. IV, Cap. 67, 
 Sec. 22, known as the Judicature Act, it was therein provided 
 that these Courts shall be holden at Newfoundland and its De- 
 pendencies, at such times and places as the Governor shall, by 
 his Proclamation, appoint ;— this provision was continued and 
 re-enacted by the Consolidated Statutes with a slight variation, 
 and this is now the Law. 
 
 8. Courts of General and Quarter Sessions shall be holden 
 in this Island and its Dependencies at such places witli jurisdic- 
 tion over such extent of District as hath been heretofore ap. 
 pointed, or as may be hereafter appointed, by the Proclamation 
 of the Governor. Consol. Stat. p. 41. 
 
 4. The next Section of the Consolidated Statutes provides 
 for the times when the Court shall be holden. 
 
 " The Courts of General and Quarter Sessions shall be 
 holden on the first Monday of January, April, July and October, 
 and shall sit, by adjournment, from time to time, until the busi- 
 nr pending therein respectively shall be disposed of, and there 
 shall be no necessity /or any Proclamation thereof." (b) 
 
 (a) Dickinson, p. 63. 
 
 (6) 'Ihia means that the Court may be adjourned without a formal Pro- 
 clamation ; but the Justices should always state, if thore is adjourned business, 
 to what time they adjourn the Court. The formal way to adjourn is for the 
 Chairman to di-ect the Crier or Constable to adjourn the Court to such a day. 
 The Constable then calls out in a loud voice,— " This Court stands adjourned 
 ontil to-morrow, at 11 o'clock. God gAVE xhe Queen." 
 
Quarter Sessions. j^s 
 
 «!.. n ^^^?^fr ''^'''' *^'' Proclamation ordered such Courts 
 
 Bngus, Tnmty, Bonavista, Greenspond, TwilHngate, Feri:yland 
 Trepassey, St. Mary's, Placemia, Burin, Grand Bank and Har! 
 bour Bnton. 
 
 «• The Courts of Quarter Sessions are now held only in St. 
 John s, Harbour Grace, Carbonear and Brigus, and have fallen 
 into disuse m all the latter places. The machinery of the Quarter 
 Sessions is used in the other Colonies for many useful pubhc 
 purposes, but in order to make this Tribunal of any practical 
 benehtin this Island, It will be necessary in the first place to 
 define the territorial jurisdiction of each Court, (a) 
 
 7. The duties of Justices at Quarter Sessions are fourfold 
 1st. Criminal Jurisdiction. 2nd. Civil Jurisdiction, (b). 8rd' 
 Appeals. 4th. Framing Regulations as for PubHc Wharves 
 and Ferries. ""«*¥oa 
 
 8. The Jurisdiction of the Court of Quarter Sessions in 
 Criminal mat ers is large, but the following offences are excluded 
 from Its jurisdiction ; by the Imperial Act, 5 & 6 Vic , c 88 s 1 
 the Sessions have no jurisdiction to try for any of the offences 
 u:adermentioned, namely:-!. Abduction of women or girls 
 2. Bankrupts,— offences against any provision of the laws rela- 
 ting to Bankrupts and Insolvents. 8. Bigamy, and offences 
 agamst the law relating to marriage. 4. Blasphemy, and of- 
 fences against reHgion. 5. Bribery. 6. ConoeaUng or endea- 
 vourmg to conceal the birth of a child. 7. Conspiracy or com- 
 bmation,-except conspiracies or combinations, to commit an 
 offence of which the sessions have jurisdiction, when committed 
 by one person. 8. Deeds, &c.,-stealing or fraudulently taking 
 or injuring or destroying any document or written instrument 
 
 (a) The Proclamation under which the Coarta are now held is a very old 
 one, and no new one has been issued since ; but during that time there have 
 
 thnrTTn f -f ''r*^ "«^ '' ^'^^^^ ^' ^^^y 'iifflculi to define, except in 
 the Central District, where the territorial jurisdiction of each Court of Quartrr 
 Sessions commences and terminates. 
 
 (6) CivU business is mostly done either by the District Courts or by the 
 Maoristrate out of 0"^!'^n irrl— " - - ""vi. ny mo 
 
 - „*-vi„!.i. ju!, jj ^,vBSiOB, onatx mo powers mojiUyuod at page lu. 
 
126 
 
 Quarter Sessions. 
 
 being or containing evidence of the title to any real estate, or 
 any interest in lauds, tenements or hereditaments. 9. Felony, 
 punishable with death. 10. Felony, which (when comraitted by 
 a person not previously convicted of felony) is punishable with^ 
 transportation for life. 11. Fire, setting, 'j crops of corn, 
 grain or pulse, or to any part of a wood, (r) coppice or planta ' 
 tion of trees, or to any heath, gorze, furze or fern. 12. Libel, 
 blasphemous, seditious or defamatory,— composing, printing, or 
 pubhehing. 13. Misprision of tieason. 14. Murder. 16. Oaths, 
 unlawful, administering or taking. 16. Farhament, offences 
 against either house of. 17. Perjury and subornation of perjurv; 
 also, making or suborning any other person to make a false oath! 
 affirmation or declaration, punishable as perjury or as a misde- 
 meanor. 18. PraBmunire, oflfences subject to the penalty of. 
 19. Queen's title, prerogative, person, or government, oflfences 
 agamst. 20. Records, or documents belonging to any court of 
 law or equity, or relating to any proceedmg therem,— steahng, 
 or fraudulently takmg, or injuring or destroying them. 21. Trea- 
 son. 22. Wills or testamentary papers, steahng, or fraudulent- 
 ly destroying or conceahng them. 
 
 9. The Criminal Jurisdiction of the Quarter Sessions, not- 
 withstandmg these exceptions, is very large, a->d embraces a 
 grf t variety of (6) o£fences, but as the Indictable offence on 
 
 {a) By the Coneol. Stat., p. 228,-" If any person aball wilfnUy or care- 
 lessly set on fire any of the woods, forests, trees, or underbush, whether pub- 
 ho or private property, he may be tried summarily before a Justice, or indict- 
 ed before any Court of Record. The .Quarter Sessions being u Court of 
 Record, it would be triable there notwithstandmg this Act." 
 
 (6) For instance, all cases of larceny can be'tried before Sessions, except 
 as mentioned before. Stealing deeds or documents, giving title to lands 
 or stealing Wills and Government Records. Persons armed with oftensive 
 weapon, robbing or attempting to rob, or one or more combined for the pur- 
 pose. |[OAe. 1,034 to 1,044J; also all assaults, except malicious injuries to 
 shipwrecked persons, &o. [24 & 25 Vic. c. 100, s. 17.] Malicious wounding 
 or shooting, with intent to disable or disfigure or prevent lawful apprehension 
 [24 & 25 Vic;, c. 100, s. 18.] Attempts to choke, suffocate, or strangle. 
 [Id. fl. 21.] Attempts to injure or disfigure, by exploaioa of guapowdor, &o. 
 
Quarter Sessions. 
 
 127 
 
 the Supreme Court n+ <a+ t i, . , *^"""^ vjrace, or lu 
 
 cases at Quarter Sossions-it will oulv b7» 1, . '"'' 
 
 some of the principal Rules "^ ^' " '''°" ^""""'^ "' 
 
 .othe^QutrLrsTrtetrrBfr: ^-r;' ^'- 
 
 Graee) the Quarter Sessi„„rL fc Ibfe ll ""'' H-"""" 
 e«rcise its jurisdictiou through aeinteveitiofor' T °l'^ 
 
 11. FOBM OF PfeCEPT. 
 
 ■ to^wS. ' I Newfoundland. 
 
 land, and also to hear anrl^!f } I>«tnct of Newfound- 
 
 To the Sheria of the sam. District, Greeting . 
 
 youth:t':r„:Lrt ta^TT "^^ "■°<*"^-'' ™ -»"•">«»<> 
 
 »id Dirtrict courted! r^I^°!!l''°/°'i""'"™'^''" » «>» 
 at the hour of Eleveu in thef„«„o„nof f/imlZTrC "'^'tT*"* 
 
 in , aforeMM, twentv and four ™„J . ]?^T' ''° ''°"'' "ouse 
 
 theDirtriot.fo,«^aid,Z2; tri°*!°. '''^°' """ "' "^ '"^^ ■>' 
 provided, then and iT;°:'';*':^°r T T ""* °°<' 
 «.^ar ,„oh thing,, „hieh on LJi 'o;-™'^ "l^^l.'^' »" 
 
 iii 
 
128 
 
 Quarter Sessions. 
 
 QuREN shall be enjoined to them ; also that you malco known to all 
 Coroners, Keepers Of Gaols, Constables, and Bailiffs within the District 
 aforesaid, that they may be then and there to do and fulfil the things 
 which, by reason of tLeir oflices, shall be to be done. Moreover, that you 
 cause to be proclaimed througl he said Dietrict the aforesaid Session of 
 the Pea".o, to be holden at the day and place aforesaid ; and do you be 
 then there, to do and execute those things which belong to your office. 
 And have you then and there, as well the names of the Jurors, Coronersj 
 Keepers of Gaols, Con',oables Pnd BaiUffa aforesaid, as also this Precept. ' 
 
 Given under our Hand and Seal, at , aforesaid 
 
 this — day of in the year of our LOED 
 
 one thousand eight hundred and . 
 
 _J.P. o 
 
 J. P. o 
 
 On this Precept the Sheriff endorses this form and attachea 
 to it the het of Jurors who have been summoned. 
 
 "The Execution of the within Precept appears by the Schedule 
 hereunto annexed". 
 
 The answer of . gj^^^^^ 
 
 12. Opening of the CouRT.-The Court should assemble 
 before Twelve, at noon, on the day for which it is summoi^ed 
 and the Session in England is usuaUy proclaimed by a Bailiff 
 in the following terms : — 
 
 "Oyez, Oyez, Oyez. The Queen's Justices do strictly charge and 
 command all manner of persons to keep silence whilst the Queen's Com- 
 mission of the Peace for the District of , ia openly read, upoa paia 
 
 of imprisonment." 
 
 There were also several Statutes which ought to be read by 
 the Clerk of the Peace in an audible voice, but the ceremony of 
 reading them has fallen into disuse. The Queen's Proclamation 
 IS, however, read at the opening of the Court in England. As 
 in most of the Courts of Quarter Sessions in the Colony there 
 IS no regular Commission of the Peace, this part of the cere- 
 mony must be dispensed with, and the best form of Proclama- 
 tion to adopt wiU be for the BaHiff or Constable to call out,— 
 
 « Oyez, Oyez, Oyez. The Court of General Quarter Gessione of the 
 Peace for , is now open, God Save the Queen". 
 
 I 
 
Quarter Sessions* ' j^g 
 
 The Clerk of the Peace then calls over the names of the 
 Grand Jury ; there should not be less than thirteen nor mot 
 
 twelir^ '^^' "'^ '"""'^ ^"^ "^""^^ ^® ^"'^^ ^^ ** ^«*s* 
 18 SwEABiNo Grand JuBY.-When the Grand Jury have 
 taken their places in the box, the Clerk of the Peace asks them 
 Gentlemen, whom do you name for your foreman r 
 
 After they have named then: foreman, the foUowing oath is 
 administered to the foreman by the Clerk of the Peace •-- 
 
 « Fou, as foreman of this inquest, sLall diligently inquire and fn,« 
 
 m charge The Queen's councU, your feUows', and your own, you sLu 
 
 nlh^f n ^''J '''" P""°* °° ™^^ ^°^ envy.hatred, orl^Z 
 neither shall you leave any man unpresented for fear, favour or affltion' 
 or hope of reward; but you shallpresent aU things tr'uly as ZT^^2 
 your knowledge, according to the best of your understanding. \o he J 
 
 Then the rest of the Grand Jury, tiiree at a time, in order 
 are sworn m the following manner :— 
 
 "The same oath which your foreman hath ta^en on his part vo« 
 and every of you shaU well and i.uly observe and keep on yo^i^a 
 So HELP rou GtJD," ^ ^ P*"*' 
 
 The Clerk of the Peace then calls over the names of the 
 Grand Jury, and directs them to answer to their names, and 
 Bay "sworn", rf tiiey are sworn ; when this is completed he in, 
 forms the Bench that the Jury are sworn. 
 
 14. Chabge TO THE Grand JuEY.-When the Jury are sworn 
 It becomes the duty of the Chairman of the Session^ deHvX' 
 charge to them. -"""ver lus 
 
 Should there be a Bill of Iniiotment to lay before the 
 Grana Jory, he should lay the faets before them as diselosed m 
 
 ft ZTr^' """ f .""^'^ '"^ "^^ '''"-S O" «>= ^^ 
 til. T T"^ ^°'"'*^'"' ^ "V '^ "^"rt «» ««eral 
 
 mduoe It, and the maans which may be applied by way of ml 
 veutxon. Hi, romarls should be brief, and to L pit Td 
 he may conclude by informing the Jury that any pLntmTnt 
 "10, u.ay caoose to make, he ,ill be happy to forward to the 
 s 
 
130 
 
 Quarter Sessions. 
 
 GoverLment. After the Grand Jury retire to their room, the 
 witnesses are sworn and sent to the Grand Jury. 
 
 16. Trial of Indictable Offences. — It is impossible within 
 the limits of this httle work to give more than the briefest out- 
 line of the duties of Magistrates at Quarter Sessions ; they are 
 contained in a large volume, D. kinson's Quarter Sessions, from 
 which the foregoing has been condensed and made applicable. 
 It may suffice, however, to say that the trial of an indictable 
 offence, which must be before a Jury, is, or ought to be, con- 
 ducted at Quarter Sessions, precisely in the same manner as 
 regards the swearing and challenging of Jury men, the addresses 
 of counsel, and the examination and cross-examination of wit- 
 nesses, as a criminal case is conducted in the Supreme Court, 
 either in St. John's or on Circuit, and the Chairman has the 
 same duties as the Judge of the Supreme Court, as regards 
 charging the* Jury, &c. (a) 
 
 16. Appeals under License Act. — The only two kinds of 
 Appeals that will probably come before the Sessions, are— first, 
 under theLicense Act, 1875, Sec. 83 ; (b) and secondly, inBastardy 
 cases. The appeal under the License Act, is from the Stipendiary 
 Magistrate's conviction to the Justices sitting in Quarter Sessions, 
 and should be heard and determin'^d by them, or a majority of 
 them. Generally this should be done on the first day of the sit- 
 ting of the Court, the cause and the matter of the appeal must 
 be given in writing, the Appellant, that is the party appealing 
 against the conviction, will, generally speaking, be confined to 
 the grounds given in his notice, but the Justices in Quarter 
 Sessions should in all cases try the appeal fairly on its merits. 
 The Respondent, who is generally the Police Officer, will com- 
 mence the case as Plaintiff, and the Appellant, as Defendant, re- 
 plies ; and the case as regards the addresses of Counsel, and the 
 examination, cross-examination and re -examination of witnesses 
 
 (a) In England the Chairman of the Quarter Sessions is elected by the 
 Jflstices holding the Session, but in this CoIout the Stipendiary Magistrate is 
 always Chairman of the Quarter Sessions. 
 
 (b) See Post under the head " Intoxicating Liquors," where the form of 
 Notices^and Becogaizuucea are nhau. 
 
Quarter Sessions. jji 
 
 should be heard precisely in the same manner as in a civil casa 
 before a Tury. The decision of the Quarter Session^ is the 
 judgment of the majority of Justices present. 
 
 17, Appeal in Bastardy Cases.— In these cases the appeal 
 (a) comes before a Petty Jury, who must be summoned by the 
 Shenflf for that purpose, and in the usual course should bo tried 
 at the opening of the Quarter Sessions. The Mother being the 
 Kespondent, will be in the same position as a Plaintiff, and if 
 she has a lawyer he will open the case for her and call her wit- 
 nesses ; the Appellant {the putative Father) will then, at the con- 
 clusion of her ease, commence his defence ; at the conclusion of 
 the whole case on both sides, the Chairman of the Quarter 
 Sessions will sum up the evidence and charge them, taking care 
 to mform them that if they find the Mother was a common pros- 
 titute, they should state such finding to the Court, suc^h finding 
 being equivalent to a verdict of not guilty, (b) 
 
 18. Regulation of Febbies.— Amongst the other powers of 
 the Courts of Quarter Sessions, in the Consolidated Statutes. 
 Chapter 76, it is provided that-" The Court of Sessions nearest 
 to the place where any ferry shall be established may frame 
 rules for the management thereof, and fix a rate of fees to be 
 paid for the transit of passengers, animals, vehicles and articles 
 of any description thereat : Provided, that such rules and rates 
 respectively, shall be subject to the approval of the Governor 
 m Council before the same shall be put into operation." 
 _ " On complaint being made to the Justices in Sessions of any 
 improper conduct or neglect of duty on the part of any ferry- 
 man ove- whom they shall have jurisdiction, such as in the 
 opjmon of the Justices to require the suspension and dismissal 
 of such ferryman, the Justices shaU take the deposition of the 
 party complaining, or of any other person, with respect to the 
 subject matter of such complaint, and transmit the same to the 
 Colonial Secretary, with their report thereon, and may in the 
 
 (a) See Chapter on Bastardy, for form of Security, «feo. 
 
 «« ihl ^t'^T* ^n i-formatioa on the subect of Bastardy, see the Chapter 
 oa that subject. {Pott). ^ 
 
132 
 
 Quarter Sessions. 
 
 jueantime suspend such ferryman, and appoint some other per* 
 eon to perform his duties until the decision of the Governor in 
 Council upon matters aforesaid shall have been received." 
 
 19. PuBuo Whabves. — They may also make regulations 
 for PuT)Uc Wharves, under Cap. 77, ConsoHdated Statutes — 
 ** The Justices in Session, in the several districts of this colony, 
 may make and estabUsh rules and regulations for the control 
 and management of PubUo Wharves within their several juris- 
 dictions, and fix and establish fees and rates of wharfage and 
 penalties for violation of same ; and such rules and regulations, 
 fees, rates and penalties, after being approved of by the Gover- 
 nor in Council, shall have the force and effect of law." 
 
 " Such rules and regulations shall be kept posted up in some 
 conspicuous place adjaceiit to the wharf for which the same 
 shall be prescribed." 
 
 21. — Rules fob Skating and Sliding. — The Quarter Ses- 
 eions can also make rules for preventing persons from Skating, 
 Sliding, &c., down hills, or highways, or streets, under Chap. 79, 
 Sec. 8, Consol. Stat, (a) 
 
 21. Nuisances. — The Sessions may also make orders for 
 T'e prevention of Nuisances dangerous to personal safety, or 
 affecting the public health, under Gap. 71, Sec. 6, ConsoUdated 
 Statutes, (b) 
 
 (a) See Chapter on Mnnioipal Begnlations. Post. 
 
 (b) Bee Chapter on Nuisaaces. Post. 
 
Summary Jurisdiction, 
 
 ^33 
 
 CHAPTER XIII. 
 
 SUMMARRY JURISDICTION, 
 
 SsCTIONa 
 
 1.— Power of Jostioea to try Sam 
 
 manly. 
 2. — Application of English Law. 
 8.— Provisions of S'atutes to be 
 
 strictly followed. 
 4.— Jervis's Act— Preamble. 
 6.— Object and effect of the Act. 
 6. — Made part of Local Law. 
 7.-- Not applicable to cases of Bas- 
 tardy. 
 8.— Cases to which it is applicable. 
 9.— Malicious injuries to Property. 
 10.— Arrest without Warrant. 
 11.— Course to be subsequently pur- 
 sued. 
 12.— Distinction between Summary 
 
 conviction and order. 
 13. — Analysis of Act. Summons. 
 14 — Service of Summons. 
 15. — Defect in form. 
 16. — If Summons not obeyed. 
 17.— Warrant in the first instance. 
 18.— Form of Warrant. 
 19.— Execution of Warrant. 
 20.— Backing of Warrant. 
 21.— Defect in Warrant. 
 22.— Description of Owners. 
 23.— Aiders and Abetters. 
 24.— Attendance of Witnesses. 
 25.— Refusing to be examined. 
 26.— Complaints for Orders. 
 27.— Variances in information. 
 28.— Informati( i or Complaint. 
 29.^-Limitation of time. 
 80.~HewiQg, 
 
 I Sections 
 
 1 31 — Non-appearance of Defendant. 
 32.— Non-appearance of Complainant. 
 33. — When both parties appear. 
 
 34 — When Defendant admits the 
 charge. 
 
 35. — When Defendant does not admi 
 the charge. 
 
 36.— Where convicted, or order made. 
 
 37.~When the information is dis- 
 missed. 
 
 38.— Negative exceptions. 
 
 39.— When Prosecutors and Com- 
 plainants nay be Witnesses. 
 
 40.— Examination upon Oath. 
 
 41. — Adjournment. 
 
 42.— Non-appearance of Parties. 
 
 43.— Defendant discharged on Recog. 
 nizance not appearing. 
 
 44.— Form of Convictions and Orders. 
 
 45.— Notices of Orders. 
 
 46.— Costa. 
 
 47.— Warrants of Distress. 
 
 48.— May be backed. 
 
 49.— Wherenogoodsordistressruino^a; 
 50.— Custody of Defendant until re- 
 
 turn of Distress Warrant. 
 61.— Where not 8ufl5cient Distress. 
 62.— Where the Statute provides no 
 
 remedy in default of Distress. 
 63.— Commitment in first instance 
 
 for non-payment of penalty or 
 
 money. 
 64.-- Where the conviction or order 
 
 directs imprisonment only. 
 66. — CoQsecative iaprisonmeats. 
 
134 
 
 Summary Jurisdiction. 
 
 Skctiohb 
 
 66. — lieoovery of Costa whon informa- 
 tion dismissed. 
 67.— Distress Warronta after Appeal, 
 68. — Costs of Appeal. 
 69. — Payment of Penalty, Costs, Ac. 
 
 Skctions 
 
 60.— One Justice may roooivo infor- 
 mations, (&0. 
 61. — Another Justice may hear. 
 62.— Payment of Penalties. 
 63.— Forms. 
 
 1. Under the English Criminal Law very large powers have 
 been conferred on Justices of the Peace for tlie examination and 
 punishment of various offences, in a summary manner, that is to 
 Hay, without the intervention of a Jury ; and in all cases where the 
 English Criminal Law is applicable to this Colony and gives a 
 power to Justices to try summarily. Justices of the Peace in New- 
 foundland can exercise the same powers as Justices in England 
 
 2. Before exercising tliis summary jurisdiction, however, it 
 is necessary for the Justice to ascertain whether the English 
 Law, which gives the jurisdiction, is applicable to this Colony, 
 and for this purpose he must carefully bear in mind the obser- 
 vations on the application of English Law to thif. Colony con- 
 tained in the sections of Chapter 6, pp. 85 & 86. 
 
 8. The power of Justices of the Peace to try offences sum- 
 marily, is a power founded entirely upon a special authority, 
 conferred an.^ regulated by Statute; the provisions of the Statute, 
 therefore, in ali cases which confers the power must bo strictly 
 followed, and jurisdiction must always appear upon tlie face of 
 the summary proceedings ; for instance, under the Local Law 
 giving jurisdiction to try summarily cases of stealing codfish, 
 green or cured, of a value not exceeding twenty dollars, the 
 fish must be described in the Warrant, Conviction and Commit- 
 ment as " a certain quantity of codfish, dried or green, as the 
 
 cab9 may be, of the value of $ ," (must be not exceeding twenty 
 
 dollars), value being essential to give summary jurisdiction in such 
 a proceeding. 
 
 4. The Act which regulates proceedings under a summary 
 jurisdiction and orders, is one of a series known as Jervis's Act, 
 having been framed and introduced into the Imperial Parliament 
 by Sir John Jebvis, then Attorney General, and afterwards Chief 
 Justice of the Common Pleas. The Preamble recites : 
 
Summary Jurisdiction. 133 
 
 " Wherens it would conduce much to the improvement of the admin- 
 istration of Juatioe within England and VValos, so far as rpfliHsctn snmmary 
 convictions und orders to be made by Her Majesty's Justices of the I'oace 
 therein, if the several Statutes and parts of sJitute? relating to the duties 
 of such Justices in respect of summary convictions and ord^irs, were con- 
 Bolid;.ted,with such additions and alterations as may be deemed necessary, 
 and that such duties should be clearly dePj -^d by such positive enactment." 
 
 6. In accordance with hese objects the Act simplifies and 
 renders uniform the procedure before Justices, relative to sum- 
 mary convictions and order 1, prevents technical objections being 
 taken to them, and determines with certainty many doubtful 
 questions ; it also gives a table of forms, relating to almost every 
 case which can arise. 
 
 6. This valuable Act, which is incorporated into our Local 
 Law, under Section 4, Cap. 49, Consolidated Statu ies, (Imperial 
 Act 11 & 12 Vic , Cap. 43), embraces all cases where a Justice 
 has authority to imprison or fine, or otherwise prnish, and also 
 all cases where the Justice has authority by Law to make an 
 order for the payment of money. 
 
 7. In England it does not apply to cases of Bastardy, and 
 it would not do sc here, except as regards backing of Warrants. 
 The proceedmgs in Bastardy are of a special character, and are 
 all regulated expressly by the Statute. See Chapter on Bastardy. 
 
 8. It does, however, apply to every other case triable before 
 Justices summarily under our Local Laws ; for mstance, setting 
 fire to the woods, (Consol. Stat. p. 228.) Stealing codfish to the 
 value of $20, (Consol. Stat. p. 228). The only difference being 
 in this last case, is that it must be tried before a Stipendiary Ma- 
 gistrate, and there is a special appeal. 
 
 "The License Act, 1876, and the Act of 1875, entitled "An 
 Act for the Amendment of the Criminal Law." {See Post, Chap, 
 ter on Master and Servants in the fishery), specially refer to Jervis 
 Act as regulating the proceedings under these Statutes of the 
 Local Legislature. Malicious injuries to Property should also 
 be tried under its provisions, with the exception, that the action 
 must be commenced within one month next after the committing 
 of the iniurv (not six monthaV' 
 
136 
 
 Summary jfurisdidton* 
 
 9. Proceadings in malicious injuries to property are now 
 regulated by the 14 Sec. of the Local Act, 89 Vic, Cap. 1^, 
 passed in 1876, given below, with the exception of the provision 
 contained in the Con«ol. Stat. p. 227, that proceedings must be 
 taken within one month after the committal of the injury, (a) 
 
 " Whosoever shall maliciously injure, damage, or destroy 
 any real or personal property, either of a public or private nature, 
 shall, on conviction thereof before a Justice of the Peace, either 
 be imprisoned for a period not exceeding Two Months, or else 
 shall forfeit and pay such a sum of money, not exceeding Twenty 
 Dollars, as to the Justice shall seem meet , and also such fur- 
 ther sum, not exceeding Twenty Dollars, as shall appear to the 
 Justice to be a reasonable satisfaction and compensation for the 
 injury so committed, which last-mentioned sum of money shall, 
 in the case of private property, be paid to the party aggrieved ; 
 and any person found committing any offence against this Sec« 
 tion may be immediately appi-ehended, without a Warrant, by 
 any person, and forthwith taken before a Justice of the Peace, 
 to be dealt with according to law." 
 
 10. An important distinction is contained in this Section 
 thaw ihe person found committing the offence may be apprehend- 
 ed without a Warrant, a similar provision is contained in Sec. 8, 
 Cap. 41, Consol. Stat., p. 280, with respect to injuries to elec- 
 tric telegraphs, and nearly the same provisions are contained 
 in the EngHsh Larceny Act, 24 & 25 Vic, Cap. 96, Sec. 103, 
 and also in the Malicious Lajuries Act, 24 & 25 Vic, Cap. 97, 
 Sec. 61. 
 
 11. The person so apprehended is in all cases to be taken 
 forthwith, that is as soon as reasonably may be, before some 
 neighbouring Justi of the Peace, to be dealt with according to 
 law. When either of these courses is duly taken, it is clear that 
 
 (a) This Section appears to have repealed, Sections 1 & 2 of Chapter 40, 
 Consol. Stat., with the exception of this one point, about proceedings being 
 commenced within one month. This Section gives three distinct remedies — 
 Jirst, imprisonment ; second, a fine ; third, compensation to the party injnred ; 
 a party under it may aJeo be fined f 20, besides having to pay $20 compensation 
 to the party injured. If the sentence is imprisonment, the Defendant oaooot 
 
 ' II 
 
Summary Jurhdidion. 
 
 ^i7 
 
 there is no necessity, as under Jervia's Act, for a previous infor- 
 mation, summons or warrant, the proper course is for the person 
 taking the oJBfender hefore the Justice to state to him the offence 
 for which he has apprehended the offender, and the Justice may 
 there and then procood to hear and determine the case or post- 
 pone the hearing, to such time and place as in liis discretion 
 may seem meet; (i ) of course when once the offender is so hrought 
 before the Justice he has jurisiliction to try and will try it as in 
 ordinary summary cases. 
 
 12. There is a distinction made throughout this Act, which 
 should be borne in mind between a summary conviction and a,ii 
 order. The proceeding to obtain a summary conviction in the 
 first place, is called " laying, or exhibiting an information," 
 whilst similar proceedings for obtaining an order of Justices, is 
 called " making a complaint " 
 
 The practical difference between the two i . this ,• a summary 
 conviction is tlie record of an affirmative judgment upon an in- 
 formation for an offence or act, punishable either by penalty or 
 imprisonment. 
 
 An order of Justices for the payment of money or othr*^ ise, 
 it^ also the record of a judgment of Justices upon a coonlaint 
 for non-payment of a sum of money, or for the neglect to do 
 some other act. (A) 
 
 The following analysis of the Act has ueen compiled princi- 
 pally from Stones' Justices' Manual, portions of the Act which 
 are inapplicable being omitted— the words of the Act are con- 
 densed, but the gist of every Section is given. 
 
 Analysis op Act. 
 18. Summons. — In all cases where ph information shall be 
 laid before one or more Justices, that any person has committed 
 or is suspected to have committed any offence or act within th? 
 jurisdiction of such Justice or Justices, for which he is liable 
 upon a summary conviction to be imprisoiied, fined, or otherwi?e 
 puuishod, and also in all cases where a comi>laiiit shall be made 
 
 (a) Greaves— lHoteB. Criminal Law, Consol. Acts, p. S70. 
 (6) Paley on Cooviotions, 65. Oke, p. 113. Note. 
 
^i-jm^^. 
 
 13S Summary Jurisdiction. 
 
 to any Justice, upoi. Mob. he shall have authority to make any 
 order for the payment of money or otherwise, fin which last 
 case the complaint need not be in writing, (a) unless required by 
 some particular Act of Parliament, s. 8], such Justice may is- 
 sue a summons directed to such person, statmor shortly the 
 matter of such information or complaint, and requiring him to 
 appear at a certain time and place before the same or such other 
 Justice as shaU then be there to answer to the complaint [11 & 
 12 Vic, c. 43, s. 1] ; but Justices are not to be obliged to issue 
 a summons in any case where the application for any order of 
 Justices is by law to be made ex parte. [Id. s. 1.] (i). 
 
 (o) Ihti License Act, 1875, 28th Section, requires the information to be 
 in writing, but not on oath. 
 
 (F The Justice should bear in mind the observations containtcj m the 
 notes to pp. 45 & 46. It is nearly always advisable to take the information 
 in wruing and on oath. A warrant, as has been before observed, cannot be 
 issued, except on a sworn information or complaint. The Juotice must judge 
 for himself when it is necessary to issue a warrant. Where ihere is no doubt 
 that the defendant will attend on the summons, only a summons shoul.^ issue 
 Where he has io be compelled tc attend, a-id prob ably will not app, on a 
 summons, or where the oflence is a serious or disgraceful one and tL re is a 
 probability of the defendant running away, a warrant should issue in the first 
 instance. In all cases the Justice must use his ov,n discretion as to whioa 
 course he adopts-he must take care that his proceeding, are not unnecessa. 
 rily harsh. 
 
 Costs.— In all cases, where practicable, the Justice or the Clerk of the 
 Peace should make the complainant pay beforenand the costs of the process 
 to be issued ; many very trivial caset are constantly brought before Magis- 
 trates, and it often turns out that the party who makes the complaint is 
 reaUy the person most to blame. Compelling payment beforehand will have 
 a salutary effect in keeping many trivial cases ont of coort. The fees and 
 costs are as follows.— [Consol. Stat,, p. 43.] 
 
 Tho following fees and costs shall be chargeable and taken in the seve- 
 »1 Police Offices, and in the several Courts of Session in this Colony :— 
 
 KBS r^TABLB TO THB CLEEK OF THE PEACE IN CIVIL OB BOMMABY 
 
 CBIMINAL CASBS. 
 
 Summons or Subpoena Cents 26 
 
 Hearirs; of every cause <t ofi 
 
 Entering proceedings to judgment u 35 
 
 Warrant in execution \ *| ]* <» jg 
 
Summary Jui Isdiction. 130 
 
 14. Sbrviob op Summons.— Every such summona shall be 
 served by a constable or other peace officer, or other person to 
 whom it shall be delivered, upon the party to whom it is direct- 
 ed, either personally or by leaving it with some person for him 
 at his last or most usual place of abode. [Id. s. 1.] (a) 
 
 B cognizance .. .. „ «- 
 
 TfQTJ o&ih. '* " ** '* „ .^g 
 
 FKK8 TO CLBBK3 OP THE PEACS IN CASES OP FEtONT OR BI8DEMEAN0B, 
 BEFORE A JUSTICE OP THE PEACE. 
 
 Deposition or examination Centa 60 
 
 Summons „ 05 
 
 Subpoena ., ^^ ** ** ** .. gg 
 
 Warrant '* *' .. g^ 
 
 Commitment „ nj. 
 
 Eecognizance of prosecuting witness or other person . . " 30 
 
 PEES PAYABLE tO CONSTABLE OB BAILIFF. 
 
 For service of summons or subpoena . . «• 25 
 
 Executing every warrant to arrest the person •« go 
 
 If the service or execution of the process or writ shall re- 
 quire the office- to travel beyond the distance of two 
 miles, he shall be allowed for every mile travelled by 
 him for such purpose beyond that distance, the sum of «• 10 
 For execution of any warrant, order, or final process, of 
 
 or from a Justice u gg 
 
 When the levy under warrant, order or final process, shall 
 excaed five dollars, then there shall be allowed to such 
 officer on such levy, in addition to the above fee of 
 twenty-f.ve cents, five per cent. 
 
 witnesses' PEES. 
 
 For each day's attendance of i» witness «« 75 
 
 All travelling to be computed from the residence of the 
 witness to the place of trial, and then back again, per 
 mile „ jQ 
 
 PESa OF GAOLER OB KEEPER OP LOCK-UP HOUSE. 
 
 For every person committed to gacl ., .. .4 gg 
 
 For every person discharged therefrom, except insolvents •• go 
 Printed Tables of foregoing to be posted up in every Police Office and 
 
 Court of Sessions for public inspection. Persona taking greater fees than 
 
 above, to forfeit $50. 
 
 (a) A summons served on the first day of the month to appear at a 
 lietty sessioas eight miles distant nn thA fniinwino -la^ t^ „„- „ .y . 
 
I-jO 
 
 Summary Jurisdiction. 
 
 15. Defect in Form.— No objection shall be allowed to any 
 informitiou, complaint, or summons, for any alleged defect 
 therein in substance or form, or for any variance (a) between 
 such information, complaint, or summons, and the evidence dn 
 the part of the informant ; but if such variance appear to the 
 acting Justices to be such that the party summoned has been 
 thereby deceived or misled by it, the hearing may be adjourned 
 to some future day. [Id. s. 1.] 
 
 If). If Summons not OBEyED.—If the person so served with 
 a summons do not appear before the Justice, then, after proof 
 by oath or affirmation of the service of the summons a reason- 
 able time before the time therein appointed, such Justice may, 
 upon oath or affirmation substantiating the matter of the infor- 
 mation or complaint, issue a warrant to apprehend the party, or 
 the Justice may proceed to the hearing ex parte. [Id. s. 2.] 
 
 17. Warrant in the First Instance.— Upon such informa- 
 tion behig laid as aforesaid for any offence punishable on convic- 
 tion, the Justice before whom it is laid may, if he think fit, upon 
 oath or a'''"rmatiou being made before him, substantiating the 
 matter of such iLformation to his satisfaction, issue a warrant 
 in the first instance instead of a summons. [Id. s. 2.1 
 
 assault, was held to be well served, although the defendant was not at home 
 when the summons was left, and did not return till late at night ; and that 
 the Justice on the non-appearance of the party was justified in proceeding 
 ex parte. lEx parte Williams, 21 L. J. 46.] If there be an irregularity iu 
 the summoiK--, mid the defendant appears, he must make his objection to it 
 then, or it will be too late [li. v. Bemj, 23 J. P. 86] ; tha defendant does not, 
 therefore, waive the objection to an iiTegularity by appearing, but by appear- 
 ing and not then objecting. A warrant remains iu force until its execution 
 or the Justice's death. (10 J. P, 126.] The mode of service directed by 
 this section will be good, although the statute under which the ofience is 
 created prescribes some particular mode of service. [16 J. P. 445.] The 
 Bummo IB isbucd by a Justice of one jurisdiction, may, we conceive, be served 
 in any other jurisdiciiou iu the Colony. 
 
 (a) A defendant cannot be convicted of a {liferent offence from that 
 stated in the information ;— the word «' variance" points to some diflerence 
 between the allegation and the evidenoo, and not to a difterent ofience. 
 — iMartin v. Fridgeon, 28 L. J. 179.] 
 
Summary Jurisdiction. j^j 
 
 18. Form op Warrant.— Every such warrant shaUbe under 
 the hand and seal of the Justice issumg the same, and may be 
 directed either to any constable or other person by name, or 
 generally to the constables of the District within which 'the 
 Justice has jurisdiction, and shall state shortly the matter 
 of the information or complaint, and shall name or other- 
 wise describe (a) the offender, and it shall order the person to 
 whom It is directed to apprehend the oflfender, and bring him 
 before one or more Justices to answer the charge, and it shall 
 not be necessary to make such warrant returnable at any par- 
 ticular time, but the same may remain in force until it is exe- 
 cuted. [Id. a. 3.] 
 
 19. Execution of Warrant.— Such warrants may bo execu- 
 ted by apprehending the offender at any place within the District 
 within which the Justice issuing the same has jurisdiction, or in 
 case of a fresh pursuit, at any place in the adjoining District 
 within seven miles of the border of the first-mentioned District, 
 without having tlio warrant backed; and where the warrant is 
 directed to all constables or other peace officers within the juris- 
 diction of the Justice issuing it, any constable or other peace 
 officer of any place within the jurisdiction may execute it in any 
 part of the District within the jurisdiction for which the Justice 
 acted when he granted the warrant, in like manner as if the 
 warrant had been directed to him by name, although the place 
 where the warrant is executed is not within the District for 
 which he shall be constable or other peace officer. [Id. s. 3.] 
 
 20. Backing op Warrant.— The provisions of the 11 & 12 
 Vic, Cap. 42, (mt,) as to the backing of warrants, are to extend 
 to warrants issued under this Act. [Id. s. 3.] {!,) 
 
 21. Defect in Warrant.-No objection to the warrant shall 
 be allowed for any alleged defect in substance or form, or any 
 variance between it and the evidence adduced ; but if the Justice 
 
 (a) A warrant describiug tho offondor as Wilson, of street in 
 
 the parish of , in tho borough of L., shoemaker, whoso Christian nama 
 
 IS unknown, would be a sufficient identification. [See 21 J. P. 779.] 
 
 Ih) Sea n. 49 .& .^0 na/>Vinr> ^xr„.^^^l~ 
 

 142 
 
 Summary Jurisdiction. 
 
 or Justices shall at the hearing think the party charged has 
 been deceived or misled by such variation, he or they may ad- 
 journ the case on such terms as he or they may think fit, and 
 in the meantime commit the defendant to prison or place of 
 security, or discharge him on his entering into a recognizance 
 with or without sureties conditioned for his appearance at the 
 time and place of adjournment ; and if he fail to appear the 
 Justice then present, upon certifying such non-appearance on the 
 back of the recognizance, may transmit it. [Id. a. 8.] (a) 
 
 22. Desceiption OF Owners, etc. — In any information or 
 complaint, or proceedings thereon, in which it is necessi*ry to 
 state the ownership of any property belonging to or in the pos- 
 session of partners, joint tenants, parceners, or tenants in common, 
 it shall be sufficient to name one of such persons and to state 
 the property to belong to the person so named and another or 
 others (as the case may u^], and in any case to describe any 
 partners, jomt tenants, parceners, or tenants in common in a 
 similar manner. [Id. s. 4.] 
 
 23. Aiders and Abettors. — Every person who shall aid, 
 abet, counsel, or procure the commission of any offence now or 
 hereafter punishable on summary conviction, shall be Hable to 
 be proceeded agamst and convicted for the same, either together 
 with the principal offender, or before or after his conviction, 
 and shall be Hable, on conviction, to the same forfeiture and 
 punishment as such principal offender is liable, and may be 
 proceeded against, either in the District or place where the 
 principal offender may be convicted, or in that in which the 
 offence of aiding, &c., may have been committed. [Id. s. 6.] 
 
 24. Attendance op Witnesses.— If it appear to any Jus- 
 tice, by the oath or affirmation of any credible person, that any 
 person within his jurisdiction (b) is likely to give material evidence 
 for the prosecutor (c), complainant, or defendant, and will not 
 
 (a) See Ante p. 68 & 69 Recognizances. 
 
 (6) A Justice cannot be ordered to attend at the house of an infirm wit- 
 ness to take his deposition. [Ex parti Kimbolton, 25 J. P. 759.] 
 
 (e) It is doubtful whether a Juc'uoe has power to sommou an onwilliog 
 
Summary Jurisdiction. 
 
 143 
 
 voluntarily appear as a witaesB, such Justice is required to issue 
 a summons under his hand and seal, requiring him to appear Z 
 awtness at a time and place therein meuLed; and f the 
 person so summoned shall, without just excuse, refuse or ueglec 
 t appear, then (after proof on oath or affirmation of the servfce 
 of the summons, e.ther personally or by leaving the same for him 
 mth some person at his last or most us„"I place of abode, and 
 ^at a reasonable sum (a) was tendered « him for his cost and 
 expenses, the Justice or Justices, before whom he ought to have 
 appeared may issue a warrant for bringing him before the Justice 
 issuing the summons, or some other Justice, and which warrant 
 may be backed as before mentioned, in order to its b' in. elecrd 
 m another jurisdiction : or if the Justice is satisfied, ^y ev denee 
 upon oath or affirmation, that it is probable such person Z 
 not attend to give evidence without being compeUed so to do, 
 then, instead of issamg such summons, a warrant may be issued 
 
 '^o^:r r:;!i "" """■ ' ~^^' "-^^ ^^'^^ 
 
 25. Kefusinoio be Ex*M.NED._rf, on the appearance of 
 such person, (either in obedience to the summons or^y wamnt) 
 he shaU refuse to take such oath or to be examined "2 
 
 refuse, without just excuse, to answer such questions as are pu 
 to him any Justice present, and having jurisdiction, may. by 
 warrant, commit the person so refusing to the gaol, f^ not ex! 
 
 be examined, and to answer concerning the premises. [U. e. 7 i 
 
 26. Complaints fob OBDER.-Complaints (4) upon which an 
 
 order may be made for the paym ent of money or otherwise, need 
 
 «.r „ too... to be made .^ „ ^ ,, y.^,, „. ^, /^f:™* «» 
 wt. .«.„«. „ia la, « ™ «,, „^,^ ,„ ^ iaJenaatiM, to te r^'i^ 
 
144 
 
 Sumtnary Jurisdiction. 
 
 not be in writing, unless required by the Act upon which the 
 complaint is framed. [Id. s. 8.] See License Act, 1875, sec. 
 28 J information must be in writing. 
 
 27. Variances in Infobmation?. — In all cases of informa- 
 tions for any ofifences or acts punishable upon summary convic- 
 tion, any variation between such information and the evidence 
 adduced in support thereof as to the time at which the offence 
 is alleged to have been committed, shall not be deemed material, 
 if it be proved that such information was in fact laid within the 
 time limited by law, or as to the place in which the offence is 
 alleged to have been committed, provided the offence be proved 
 to have been committed within the jurisdiction of the Justice 
 by whom the information shall be heard and determined j and 
 if any such variance, or any variance {a) in any other respect 
 between the information and the evidence, shall appear to the 
 Justice present and acting at the hearing to be such that the 
 party charged has been thereby deceived or misled, such Justice 
 may, upon such terms as he may think fit, adjourn the hearing 
 of the case to some future day, and in the meantime commit the 
 defendant to prison, or to such other custody as the Justice may 
 think fit, or may discharge him upon his entering into a recog- 
 nizance, with or without surety, conditional for his appearance 
 at the time and place to which the hearing is adjourned ; and if 
 he fail to appear upon the recognizance, any Justice then pre- 
 sent may, upon certifying such nonappearance on the back of 
 the recognizance, transmit the same to be proceeded upon in 
 like manner as other recognizances. [Id. s. 9.] 
 
 to writing unless required by the particular statute, but as it will be now tcqui- 
 Bite to substantiate on oath the matter of the infonnation for the purpopt, tI 
 obtaining a warrant, if the summons should be disobeyed, or of obtaining a 
 warrant in the first instance, it is recommended that, as a general rule, the 
 infonnation should be taken in writing. The provision as to variances be- 
 tween the information and the evidence seems to imply that the information 
 is in writing. 
 
 (a) A defendant cannot be convicted of a dillereut ollencc from that 
 stated in the information, this not being a variance within the moaning of 
 the statute. [Martin v. Pridgeon, 28 L. J. 179 ; and B. v. Brickhali, 33 L. J. 
 166, ante, p. 17. 
 
Summary Jurisdiction. 
 
 145 
 
 28. Information or Complaint. — Every complaint upon 
 which a Justice is or shall be authorized to make an order, and 
 every information for any offence punishable on summary con- 
 viction, unless some particular statute shall otherwise require, 
 may be made or laid without any oath or affirmation of the truth, 
 except in cases of information, where the Justice shall issue a 
 warrant in the first instance, and in every such case the matter 
 of the information shall be substantiated by oath or affirmati'^n 
 of the informant, or some witness or witnesses on his behalf, 
 before any such warrant is issued ; and every such complaint or 
 information shall be for {a) one offence or matter of complaint 
 only, and may be made by the complainant or informant in per- 
 son, or by his counsel or attorney, or other person authorized in 
 that behalf. \ld. s. 10.] When the information is on a statute 
 and the words " unlawfully and maliciously, wiKuUy, knowing- 
 ingly, &c.," are used in the statute, they should be also used in 
 the information. 
 
 29. Limitation of Time. — In all cases where no time is 
 specially limited, such complaint shall be made or information 
 laid within six calendar months from the time when the matter 
 of it arose. \Id. e. 11.] See page 136 note, & 38 Vic, c. 9, s. 5. 
 
 80. Hearing. — Every such complaint and information shall 
 be heard and adjudged by one or two or more Justice or Justi- 
 ces, as directed by the statute in that behalf, or, if there be no 
 direction, by any one Justice for the District or place where the 
 matter of such information arose : and the room or place {h) 
 
 (a) The statute was intended to prevent the practice of including several 
 counts in an information, each for a different and distinct offence, and to pre- 
 vent the joinder of several offences, and not of joint offenders. All persons 
 committing the same offence at the same time and place may bo legally in- 
 serted in the same information ; and it will be for the Justices .0 determine 
 whether the cases shall be heard together or separately. If desired by the 
 defendants, it wUl be prudent to hear them separately. [See. E. v. Cridland, 
 27' L. J. (M. C.) 28 ; Ex parte Broicn, 16 J. P. 69 ; Ex parte Biggings, 26 
 J. P. 244 ; and R. v. Littlechild, 35 J. P. 86.] 
 
 (6) Time. — In cases where monies, &c., are to be recovered in manner 
 directed by Jervis's Act, the complaint arises when the demand is made, and 
 the money not paid, and not whep the works Were coHjpleted. [Labaltnon- 
 
146 
 
 Summary JwhdicUon. 
 
 where such Justice or Justices shall sit to hear and try any such 
 complaint and information shall be deemed an open and public 
 court ia), to which the pnbhc may have access, so far as it can 
 conveniently contain them ; and the party charged shall be ad- 
 Tiitted to make his fuU answer and defence, and to have the 
 witnesses examined and cross-examined by counsel or attorney • 
 {b) and every such complainant and informant shaU be at liberty 
 to conduct such complaint or information respectively, and to 
 have the witnesses examined and cross-examined by counsel or 
 attorney. [Id. s. 12.] 
 
 81. Non-appearance op Defendant.— If at the time and 
 place appointed by the summons for hearing the complaint or 
 information, the defendant does not appear when called, the 
 constable or other person who served the summons shall then 
 declare upon oath in what manner he served the summons ; and 
 if It appear, to the satisfaction of any Justice, that he duly served 
 the summons, such Justice may proceed to hear and determine 
 the case in the absence of the defendant, or may issue his war- 
 rant in manner hereinbefore directed, and adjourn the hearing 
 until the defendant is apprehended ; and when the defendant is 
 apprehended under the warrant, he shall be brought before the 
 
 dure V. Addison, 23 J. P. 261.] The time of limitation will not begin antil 
 the matter of complaint is complete iJacomb v. Dodgsm, 27 J. P 68 and 
 Mayer v. Harding, 17 L. T. 140] ; and it will not apply in the case of a con- 
 tinmng ofience, as for instance, the emission of smoke from the want of an 
 efficient alteration of a chimney. IHiggings v. Nortlmich Union, 22 L T 
 (N.) 752.] An encroachment by the erection of a fence, is not a continuing 
 offence. [Ranking y, Forbes, US. V.A%Q. See Treat. 34 J. P. 513.] 
 
 (a) The Justices may, we have nc doubt, pursue the course adopted by 
 the Supenor Judges, where decency requires such a step, and exclude women 
 and boys m cases of bastardy, or other similar investigations. In proceedings 
 under 11 & 12 Vict., c. 42, s. 19 (as to indictable offences), the place where 
 the Justices sit is not an open court, and the pubUc maj. be excluded. 
 
 Open Gourt.—Contempt of Court.— Persons should conduct themselves 
 orderly, otherwise they should be ejected from the Court by the Constable 
 
 (6) In Cobbett v. Hudson, 22 L. J.. (N. S.) it was decided a person could 
 act as his own advocate, and afterwards give evidence as a witness— L T. 
 N. S. 637. Cockburn, C. J., said '• Justices might permit a Police Superin- 
 tendent to appear, and hear him upon the case, if they thought fit." Oke 15(k 
 
Summary Jurisdiction, 147 
 
 same or some other Justice of the same District, or place, who 
 shall either by warrant commit (a) such defendant to prison, or 
 verbaUy to the custody of the constable or other person who 
 shall have apprehended him, or to such other safe custody as he 
 or they shall deem fit, and order the defendant to be brought 
 up at a certain time and place before such Justice as shall then 
 be there, of which order the complainant or informant shall 
 have due notice. [Id. s. 13.] 
 
 82. Non-appearance of Complainant.— If the defendant 
 appears in obedience to the summons, or shaU be brought by 
 virtue of any warrant, then, if the complainairt or informant, 
 having had such notice, do not appear by himself, his counsel 
 or attorney, the Justice shaU dismiss {b) the complaint or infor- 
 mation, unless for some reason he shall think proper to ad- 
 journ the hearing unto some future day, upon such terms as 
 he shall think fit, m which case such Justice may commit 
 the defendant m the meantime to prison, or to such other 
 custody as he shall think fit, or may discharge hun upon his 
 entering into a recognizance, with or without sureties, condi- 
 tional for his appearance at the time and place to which the 
 hearing is adjourned ; and if the defendant does not appear, 
 then the Justice who shall have taken the recognizance or any 
 Justice then present, upon certifying such non-appearance on 
 the back of the recognizance, may transmit the same. \Td 
 s. 18.] (c) *• • 
 
 83. When both Parties appear.— If both parties appear, 
 either personally or by attorney, then the Justice shall pro- 
 ceed to hear and determine the complaint or information 
 [Id. s. 13.] {d) 
 
 (a) There is no provision authorizing the Justices to take bail in case of 
 the defendant being apprehended on a warrant after disobedience to a summons. 
 
 (6) Although a certificate of dismissal cannot be granted under this sec- 
 tion, it would seem that the Justices may dismiss the complaint, and under 
 the 18th section order the complainant to pay costs to the defendant r27 T 
 P. 366.] '-'''• 
 
 (c) See cmte, pp. 68 & 69 Recognizances. 
 
 (d) CojipooiiiaiNii.— At ilua stage of the proceeding the good offices of 
 
148 
 
 Summary Jurisdiction. 
 
 84. When Defendant admits the Chakge.— -Where the defen- 
 dant is present at the hearing, the substance of the information 
 or complaint shall he stated to him, and ho shall be asked if he 
 have any cause to show why he should not be convicted, or Why 
 an order should not be made against him (as the case may be), 
 (a) and if he admit the truth of the information or complaint, 
 and shows no cause or no sufficient cause why he should not be 
 convicted, or an order made against him, then the Justice pre- 
 sent at the hearing shall convict him, or make an order accord- 
 ingly. [Id. e. 14.] 
 
 85. When Defendant does not admit the Chabge. — If the 
 defendant does not admit the truth of the information or com- 
 plaint, then the Justice shall proceed to hear the prosecutor or 
 complainant, and such witnesses as he may examine, and such 
 other evidence as he may adduce in support of his information 
 or complaint ; and dlso to hear the defer dant and such witnesses 
 as he may examine, and such other evidence as he may adduce 
 in his defence, and such witnesses as the prosecutor or corn- 
 
 Justices may be properly exerted iu many cases in inducing parties to com- 
 promise thtii diflerences ; and if it should be deemed inexpedient to moke the 
 attempt at reconciliation, or if the attempt should prove unsuccessful the mat- 
 ter then proceeds in the ordinary way ; but the Justices may safely endeavour 
 to bring about a compromise. As regards oflences solely of a public nature, 
 and as to which no particular party is injured, so as to enable him to maintain 
 an action, a compromise without leave of the Court would appear from the 
 cases to be illegal. Even in a case of common assault where the parties 
 had compromised and so informed the Justices after the issuing of the sum- 
 mons, Queen's Bench held the Justices had jurisdiction to try and determine 
 the case and that the conviction could not be quashed. Beg. v. Jtistices of 
 Wiltshire, 8 L. T., (N. S.) 242. Oke 156, 157. 
 
 Generally in such cases under summary jurisdiction where the matter is 
 not of a public nature the Magistrates will not object to a compromise. 
 
 JJeftearinfif.— Magistrates are sometimes asked to rehear a case. They 
 have no power to do so after having once delivered their judgment. Stone 440. 
 
 (a) The information need not be re-sworn in presence of defendant. The 
 usual way to conduct the caee, is for tho Clerk of the Peace or Magistrate to 
 read over the comp?- to defendant, or when there is no complaint to tell 
 him what the charge is against him— and then to ask him whether he is guilty 
 or not guilty of the charge ; if he admits the chai-ge ho can be there and then 
 convicted. Oke 159. 
 
Summary Jurisdiction. 149 
 
 plainant may examinp in reply, if the defendant has examined 
 any witnesses or given any evidence other than as to his (the 
 defendant's) general character ; but the prosecutor or complain- 
 ant shall not bo entitled to make any observations in reply upon 
 the evidence given by the dofondaut, nor shall the defendant be 
 entitled to make any observations in reply upon the evidence 
 given by the prosecutor or complainant in reply ; and the Jus- 
 tice or Justices, having heard what each party shall have to say, 
 and the witnesses and evidence, shall consider the whole matter 
 and determine the same, and shall convict or make an order 
 upon the defendant, or dismiss the information or complaint, as 
 the case may be. [Id. s. 14,] {a) 
 
 86.— Where convicted or Order made.— K the defendant is 
 convicted, or an order made against him, a minute or memoran- 
 dum thereof shall then be made, for which no fee shall be paid, 
 and the conviction or order shall afterwards be drawn up and* 
 lodged with the Clerk of the Peace. [Id. s. 14.] When once 
 the order is delivered out, it cannot be altered. Conviction may be 
 altered, see p. 18. 
 
 87. When the Information is dismissed. — If the Justice or 
 Justices shall dismiss the information or complaint, he or they 
 may (u required) make an order of dismissal of the same, and 
 give the defendant (b) a certificate thereof, which certificate, upon 
 being produced, without further proof, shall be a bar to any sub- 
 sequent information or complaint, for the same matter against 
 the same party. [Id. s. 14.] 
 
 88. Negative Exceptions.— If the information or complaint 
 negative any exemption (c), exception, proviso, or condition in 
 
 ^ (a) The same strictness and regularity should be pursued in examining and 
 taking down the evidence of the various witnesses as are resorted to in the 
 superior Courts. 
 
 No reply alloioed.—T^o reply is allowed upon evidence nor a general 
 reply. The observations being confined to the opening statement of com- 
 plainant and the statement of the defendant iu ; la defence. 
 
 (6) The certificate should not be given unless the information was dig- 
 missed ou the merits ; if, therefore, it was dismissed on the ground that it 
 was not laid by a police officer, as required under 23 Vict., o. 27, s. 30, a cer- 
 tificate should not be granted. [See Foster v. Hull, 33, J. P. 629.] 
 
 (e) Aii iufonaor is ooujpeteat iu all oases, irrespective of any question aa 
 
150 
 
 Summary Jurisdiction. 
 
 
 the statute on which it is framed, it shall not bo necessary for 
 the prosecutor or complainant to prove such negative, but the 
 defendant may prove the affirmative thereof in his defence 
 [Id. s. 14. 
 
 89. When Prosecutors and Complainants may be Witnesses. 
 —Every prosecutor of any such information, not having any 
 pecuniary interest in the result, and every complainant, what- 
 ever his interest may be, shall be a competent witness to support 
 the mformation or complaint. [Id. s. 16.] 
 
 40. Examination upon Oath.— Every witness to be exami- 
 fiedupon oath or affirmation, and the Justice or Justices shall 
 have full power to administer to every such witness the usual 
 oath or affirmation. [Id. s. 15.] 
 
 41. Adjournment.— Before or during the hearing, any one 
 Justice, or the Justices present, may adjourn the hearing to a 
 certain time and place then appointed and stated in the presence 
 and hearing of the parties or their attornies or agents present, 
 (a), and in the meantime suffer the defendant to go at large or 
 
 to his pecuniary interest in the result. Defendant may bo examined in all 
 summary proceedings if they think fit. See Consol. Stat., p. 150. 
 
 (a) The Justices can, under this section, adjourn the case when both par- 
 ties or their attornies or agents are present, and can, under the 13th section, 
 adjourn it when the defendant only appears. There is no Umitation of time 
 to which the adiournment may be made, as in case of a remand under 11 & 
 12 Vict., c. 42, s. 21. [20 J. P. 540.] A defendant cannot claim an adjourn- 
 ment i a matter of right to enable him to obtain professional assistance. 
 [Ex parte Biggius, 26 J. P. 244.] 
 
 Ordering Witnesses out of Cour«.— Before the case is entered into, either 
 party may apply to have the witnesses ordered out of Court, which request ia 
 usuaUy complied with. It is unusual, however, to include in this order medi- 
 cal v/itnesses or those who are merely to speak to mere matters of form or 
 character, and the attornies for the respective parties are always excepted- 
 Should the witnesses violate the rule and come into Court, their testimon / 
 cannot on that account be rejected. Oke, 151. 
 
 Gonmction on view.— In the case of Regina v. Smith, Lord Denman'a 
 observations were these-" We think that a Magistrate empowered to convict 
 upon the view, ought first to caU upon the oftender for a defence. However 
 rapid the proceedings may be, there must be time for stating a charge and for 
 receiving an answer to if. A driver seeu riding upoa bis waggon is prima 
 
Summary jfiirisdiclion. 
 
 151 
 
 Jushco shall think fit, or discharge him „pon his entering into . 
 recognizance with or ,i..„„t sureties, condiUonal for Jap 
 
 :~. :' ":,"k """ '"*" " ""'"" '"^ "'"''"« ^' "^»"- 
 
 to wu!hlTr'*'"r' 7 P'-™-^'-" .t the time and place 
 .! J V n ?"°* '"*' """■ '«'J™""'d, either or both o/euch 
 pa tics shal not appear personally or by counsel or attorney 
 the Justice then present may proceed to the hearing as if sudl 
 party or parties were present; or if the prosecutor or compZ 
 ant do not appear, the Justice ^.ay dismiss the informatioHr 
 oompla^t with or without costs. [11 & 12 Vict. c.Ts fieT 
 43 Defendant wschaeoisd 0. EKcoomziNcE not appeamno 
 -In all cases where a defendant discharged on recogni.aTa; 
 aforcsaia does not appear accordingly, the Justice who has 
 
 facie » ill subject for pMisliment, bnt if he coiUd shew th«t h. „„ 
 
 (a) Adjoumment.-The Magistrate is not oblifferl tn flv ii \. 
 
 state in his judgment, the fine, iiin,ri8onnient costs At ♦I,afT "°'^/^°"^ 
 the case. «"""ient, costs, &c., that he adjudgefl in 
 
 Placed n the situation of a jniy, and the degree of cr.;^, to be attached ^! 
 the evidence is for their consideration and judgment Sinl t ^^^"^'^^^ 
 proceedings before them are usuall, of a crLinTa.d p'riTlnd 
 they are substituted for a jury, who must, in order to cS htTLj been 
 satisfied by the evidence of the criminality of the defendl.fr . 
 
152 
 
 Srim mary Jtmsdidion . 
 
 taken the recognizance, or a..y other Justice then present, upon 
 certifying such non-appearance on the back of the recognizance, 
 may transmit the recognizance. [Id, s. 16,] 
 
 44. FoiiM OF Convictions and Orders. — Where no particu- 
 lar form of conviction or order shall be given by the statute 
 creating the offence or authorizing the order, and in all cases of 
 (a) convictions or orders, under statutes hitherto passed, whether 
 any particulr^r form shall therein be given or not, the conviction 
 or order may be drawn up in the form mentioned in the schedule 
 to this Act. [Id. s. 1 7.] 
 
 45. Notices of Orders. — In all cases where, by statute, 
 authority is given to commit a person to prison, or to levy any 
 sum by distress, for not obeying any order of a Justice, the 
 defendant shall be served with a copy of the minute (h) of such 
 order before any warrant of commitment or distress shall issue ; 
 and such order or minute shall not form any part of such war- 
 rant of commitment or distress. [Id. a. 17.] 
 
 46. Costs. — In aU cases of summary conviction or of 
 orders made by a Justice, he may, at discretion, award and 
 order, in the conviction or order, that the defendant shall pay 
 to the prosecutor or complainant respectively such costs (c) as 
 
 by a Magistrate, if there was such evidence as would have been sufficient to 
 have been left to a jury . So if the Magistrate ar iiuit where there seems to be 
 ti prima facie evidence to convict, his judgment cannot be questioned, for no 
 other Court can judge of the credit due to witnesses who ai'e not examined 
 there." 2 Starkee Evid. 331. [Oke, pp. 162, 163.] 
 
 (a) The form givon will apply to all convictions and orders r^^de under 
 statutes passed previously to this Act Wi oh are not excluded from its opera- 
 tion by virtue of the 35th section. [R, v. Hyde, 21 L. J. 94 and Re Allison, 
 24 L. J. 73.] It will also apply to couvictions or orders under statutes passed 
 since, unless they give a diftereut fonn. 
 
 (b) The minute may be served before the formal order is signed. Tho 
 order will have relation back to the time of tho verbal adjudication. [iJ. v. 
 3, 3. Huntingdonshire, iO L. J. 127; Rait v. Parkinson, 20 L. e>. 208.] 
 No minute of a conviction need in any case be served. This requirement is 
 confined to orders. 
 
 (c) The Justices should specify the amount of coats in the conviction or 
 order, [l Arch. 361.] It is not usual in summary proceedings to allow tho 
 fea of an attorueVi but there Ecems to be no le^al obioctioa agaiusit doing so. 
 
Sum nmry Jurisdiction . 
 
 153 
 
 to the Justice shall seem reasonable, and in cases where such 
 Justice shaU, instead of convicting or making an order, dismiss 
 the mfbrmation or complamt, it shall be lawful for him at his 
 discretion, by his order of dismissal, to award and order that 
 tbe prosecutor or complainant shall pay to tha defendart such 
 costs as to the Justice shall seem just and reasonable ; and the 
 sums s. allowed for costs shall in all cases be specified in the 
 ooimction or order, or order of dismissal, and be recoverable 
 m the same manner, and under the same warrants, as any 
 penalty or sum of monoy, adjudged to be raid by such {a) con- 
 VIC tion or order is recoverable ; and in ca. -.he.e there i. no 
 such penalty or sum, then such costs sha.. be recoverable oy 
 distress ana sale of the goods of the party [, ee S. P.l and in 
 defau.o of distress, by imprisonment, with or wit imit; hard 
 labour, for any tune not exceeding one calendar month [modifi. 
 ed as to sums not exceeding five pounds, by 3. P.] , unless such 
 costs are sooriGr paid. [Id. s. 18.] 
 
 47. \; AEEANTs OF DisTREss.-Whcre a conviction adjud-es 
 a pecuniary penalty or compensation to be ,)aid, or whex/an 
 order requires the payment of . sum of money, and by the 
 rtatute authonzmg such conviction or c^der, such penalty, com- 
 pensa tion or sum of money is to bo levied upon the goods and 
 chattels of the defendant by distress and .ale f and also in ca"s 
 where, by the staaite in that behalf, no mod-^ of raising or levy- 
 
 mal caBcs , is not, however, unusual for the Justices to allow the inW 
 
 o a first conviction under 2* ^ 25 Vict., c. 96. or 97. the Justice is empower 
 ed by those Acts to discharge the offender on his making satisfaetlnTT 
 Pa^^aggrieved .. damages and costs or either of ^j:^::^ ty '^. 
 
 fl.« t\ "^r ^'^P"^"'^^"* '^^^y is awarded in a conviction for assault in 
 thefirst instance, the secretary of state considers it doubtful .^C^f^C 
 terji of imprisonment can be ordered in respect of the c^ts of conlh-nT ^ 
 commitme. and that i. is .he better cours^net ^^^ ^:::r^. 
 
154 
 
 Summary Jiiykdidion. 
 
 :IJ: 
 
 ing such penalty, compensation, or sums of money, or of enforc- 
 ing payment thereof, is provided, tlie Justice making such con- 
 viction or order, or any Justice of the same District, may issue 
 a warrant of distress for levying the same. [Id. s. 19.] 
 
 48. May be backed. — If after delivery of such warrant of 
 distress to the constahle or constahles to whom it is directed, 
 sufficient distress shall not he found within the j uriprliction of 
 the Justice granting it, then, upon proof alone on oath of the 
 handwriting of the Justice granting the warrant, before any 
 Justice of any other District, such last-mentioned Justice shall 
 make an endorsement-, on the warrant signed by him, authoriz- 
 ing the execution of such warrant within his jurisdiction, and 
 the penalty or sum and costs, or so much thereof as have not 
 been levied or paid, may be levied in such other District. [Id, 
 s. 19.] 
 
 49. Where mo Goods or Distress ruinous. — Whenever it 
 shall appear to any Justice to whom application is made for any 
 such warrant of distress, that the issuing thereof would be ruin- 
 ous to the defendant and his family, or whenever it shall appear, 
 by the confession of the defendant or otherwise, that he has no 
 goods or chattels whereon to levy the distress, such Justice 
 may, instead of issuing a warrant of distress (a), commit the de- 
 fendant to the gaol, to be imprisoned, for such time and in 
 such manner as such defendant might be committed in case 
 such warrant of distress had issued and no goods could be found. 
 [Id. s. 19.] 
 
 50. C ' •^ODY OF Defendant until Beturn of Distress War- 
 rant. — When a Justice issues such warrant of distress (6) he 
 may suffer the defendant to go at large, or verbally, or by a 
 written warrant, order the defendant to be kept in sarfe custody 
 until the return be made to such warrant of distress, unless the 
 
 (a) The power of commitment in deiault of distress, seems to apply only 
 where the defendimt might be imprisoned for the oflence of which he is con- 
 victed, 
 
 {h) Where the penalty, including the costs, does not exceed five pounds, 
 Justices may now commit, without issuing any warrant of dlBtress. See 
 " BuALL Penalties' Act," p. 122. 
 
Summary Jurisdiction. 15- 
 
 defendant give sufficient aecurity, by recognizance or otherwise, 
 to the satisfaction of the Justice, for his appearance before him 
 at the time and place appointed for the return of the warrant, 
 or before such Justice as may then be there ; and if the defendant 
 shall give security by recognizance, and fail to reappear, any 
 Justice then present, upon certifying such non-appearance on 
 the back of the recognizance, may transmit the same. [Id. s. 20.] 
 51. Where not sufficient Distbess.— If, at the time and 
 place appointed for the return of any such warrant of distress, 
 the constable who shall have had the execution of the same 
 shall return that he could find no goods or no sufficient goods 
 whereon he could levy the sum therein mentioned, and costs of 
 levying it, the Justice before whom it is returned may issue a 
 warrant of commitment directed to the same or any other con- 
 stable, reciting the conviction or oraer shof tly, the issuing the 
 warrant of distress and the return thereto, and requiring such 
 conslablo to convey the defendant to the gaol, there to be im- 
 prisoned in such a manner and for such time as directed by the 
 statute on which the conviction or order was founded, unless 
 the sum or sums adjudged to be paid, and all costs of the dis- 
 tress and of the commitment, and of conveying the defendant to 
 prison, if the Justice shall so order (the amount being ascer- 
 tained, and stated in the commitment), shall be sooner paid 
 [Id. s. 21.] ^ 
 
 62. Wherk the Statute provides no remedy in default of 
 DisTREss.-In all cases where Justices are authorized to issue 
 warrants of distress to levy penalties, or other sums recovered 
 before them, but no further remedy is thereby provided in case 
 no sufficient distress be found ; and in all cases of convictions 
 or orders where the statute on which they are founded provides 
 no remedy, in case it shall be returned to a warrant of distress 
 that no sufficient goods can be found («), the Justice to whom 
 
 (a) This section extends to cases where the statute on which the convic 
 t.on order is founded, provides no mode of raising or levying the penalty, com- 
 pensation, or sum of money adjud,nred or ordered to be paid, or of enforcing 
 ,-, . 01 vHv ..m:., aa «di a3 to cases waei'« Uie statute on which the con- 
 
156 
 
 Summary Jurisdiction. 
 
 Buch return is made, or any other Justice of the same District, 
 may, by warrant, commit the defendant to gaol for not exceeding 
 three calendar months (modified where the sum does not exceed 
 five pounds stg.^ by the Small Penalties Act), unless the sum ad- 
 judged to be paid, and all costs of the distress, commitment, and of 
 conveying the defendant to prison (the amount being ascertain- 
 ed and stated in the commitment), shall bu sooner paid. [Id. 
 s. 22.] 
 
 58. Commitment in the First Instance fob Non-payment of 
 Penalty or Money.— In all cases where the statute by virtue of 
 which a conviction for a penalty or compensation, or an order 
 for the payment of money, is made, makes no provision for such 
 penalty or compensation or sum being levied by distress, but 
 directs that if the same be not paid forthwith, or within a certain 
 time therein mentioned, or to be mentioned in such conviction 
 or order, the defendant shall be imprisoned, or imprisoned unless 
 the same shall be soouer paid, in every such case tue same shall 
 not be levied by distress ; but if the defendant do not pay the 
 same, with costs, if awarded, forthwith, or at the time specified 
 in the conviction or order, the Justice making such conviction 
 or order, or any other Justice of the same District, may issue 
 a warrant of commitment requiring the constable to whom it is 
 directed, to convey the defendant to gaol, to be imprisoned, for 
 such time as the statute on which the conviction or order is 
 founded shall direct, unless the sum adjudged to be paid, and 
 the costs of conveying the defendant to prison (if so ordered), 
 »hall be sooner paid. [Id. s. 23.] 
 
 54. Where the Conviction or Order directs Imprisonment 
 ONLY. — Where a conviction does not order the payment of any 
 penalty, but that the defendant be imprisoned for his offence, 
 or where an order is not for the payment of money, but for the 
 doing of some other act, and directs that in case of the defen- 
 dant's neglect or refusal to do such act he shall be imprisoned, 
 and the defendant neglects or refuses to do such act, then the 
 
 viction or order is founded authorizes the issuing thereon of a warrant of dis- 
 tress. 21 & 22 Vict., c. 73, s. 5. 
 
Summary Jurisdiction. 
 
 T-S7 
 
 Justice making the conviction or order, or some other Justice, 
 may issue a warrant of commitment for conveying the defendant 
 to the gaol, to be imprisoned for such time as the statute on 
 which the conviction or order is founded shall direct; and in all 
 such cases where, by such conviction or order, any sum for costs 
 shall be adjudged to be paid by the defendant to the prosecutor 
 or complainant, such sum may, if the Justice think fit, be levied 
 by warrant of distress in manner aforesaid, and in default of 
 distress the defendant may be committed to gaol, to be imprison- 
 ed for not exceeding one calendar month [see S. P.] , to com- 
 mence at the termination of the imprisonment he shall then 
 be undergoing, unless the sum for costs and all costs of the 
 distress, commitment, and of conveying the defendant to prison 
 (if so ordered), shall be sooner paid. [Id. s. 24.] 
 
 55. Consecutive Imprisonments.— Where a Justice upon any 
 information or complaint as aforesaid, shall adjudge the defen- 
 dant to be imprisoned, and 3uch defendant shall (a) then be in 
 prison or undergoing imprisonment upon a conviction for any 
 other ofifence, the warrant of commitment for such subsequent 
 offence shall be forthwith delivered to the gaoler to whom it is 
 directed, and the Justice issuing the same may order therein 
 that the imprisonment for such subsequent offence shaU com- 
 mence at the expiration of the imprisonment to which the defen- 
 dant has been previously sentenced. [Id. s. 25.] 
 
 56. Eecovery op Costs when Information dismissed. When 
 
 any information sha'l be dismissed with costs, the sum awarded 
 for costs in the order of dismissal may be levied by distress on 
 the goods of the prosecutor or complainant, and in default of 
 distress, the prosecutor or complainant may be committed to the 
 gaol for not exceeding one calendar month [see S. P.,] unless 
 such sum, and the costt: of the distress, of the commitment, and 
 of conveying liim to prison (the amount being ascertained' and 
 stated in the commitment), shall be sooner paid. [Id. s, 26.] 
 
 (a) This scciion.applies equally t» a case where a defendant is at one and 
 the same time sentenced for several oftenoes. as to a case in which he is al- 
 ready in prison. [-R. v. Cut^tiah 9 t. jt m n\ iinn „_j tt^,-, n-, t t. ...... 
 
li'f 
 
 MiV 
 
 158 
 
 Summary Jurisdiction, 
 
 ■ \ i 
 
 if 
 
 67. Distress Warrant after Appeal.— After "an appeal 
 against any such conviction or order, if decided in favour of the 
 respondents, the Justice who made the conviction or order, or 
 any other Justice of the same District, may issue such warrant 
 of distress or commitment for execution, as if no such appeal 
 had been brought. [Id. s. 27.] 
 
 68. Costs op Appeal-^H upon such appeal the court of 
 quarter sessions shall order either party to pay costs, the order 
 shall direct such costs to be paid to the Clerk of the Peace, to 
 be by him paid over to the party entitled to them, and shall 
 state within what time such costs shall be paid ; and if the same 
 are not paid within the time limited, and the party ordered to 
 pay them is not bound by recognizance conditioned to pay such 
 costs, the Clerk of the Peace shall, upon application of the party 
 entitled to the costs, or any person on his behalf, and on payment 
 of a fee of twenty-fonr cents, grant to the party applying a cer- 
 tificate that the costs have not been paid ; and upon production 
 of the certificate to any Justice, he may enforce the payment of 
 such costs by warrant of distress ; and in default of distress may 
 commit the party against whom the warrant was issued for not 
 exceeding three calendar months, unless the costs, and all costs 
 of the distress, and of the commitment and conveying the party 
 to prison, if so ordered (the amount being ascertained and stated 
 in the commitment), shall be sooner paid. [U. s. 27.] (a) 
 
 59. Payment of Penalty, Costs, etc. — Where any person 
 against whom a warrant of distress shall issue as aforesaid, shall 
 pay or tender to the constable having the execution thereof the 
 sum or sums mentioned in the warrant, with the amount of ex- 
 penses of the distress up to the time of payment or tender, the 
 
 (a) Fine or Imprisonment.— In some cases, such as malicious injuries to 
 property, assaults, &c., the Magistrates can either fine or imprison ; cr the 
 question as to whether the Magistrate will find or imprison, he will be 
 guided by the circumstances of each case ; for instance, in a case of aggravated 
 assault on a woman, the punishmenf in all bad cases should be imprisonment ; 
 BO also should cases of assault on Constables, where the attack is wanton and 
 unprovoked and the injury serious. The f^agrancy of the oftence, its publio 
 nature, and other considerations, will weigh with the Justice in deciding ua lo 
 whether he will fine or imprison. 
 
Summary Jurisdiction. 159 
 
 constable shall cease to execute the same ; and in all cases where 
 any person shall be imprisoned for non-payment of any penalty 
 or other sum, he may pay to the keeper of the prison the sum 
 mentioned in the commitment, with the copt'; am' expenses (if 
 any) also mentioned therein, and the keeper shall receive the 
 same and discharge such person, if he bo in his custody for no 
 other matter. [Id. s. 28.] («) 
 
 60. One Justice may receive Informations and grant War- 
 RANTS of Execution, etc. — In all cases of summary proceedings 
 before a Justice upon any infon nation or complaint as aforesaid, 
 one Justice may receive the information or complaint, and grant 
 a warrant or summons thereon, anc"! niay issue his summons or 
 warrant for the attendance of witnesses, and do all other neces- 
 sary acts and matters preliminuiy to the hearinr^. even in cases 
 where by the statute such information or complaint must be 
 heard and determined by two or more Justices ; and after the 
 case has been heard and determined one Justice may issue all 
 warrants of distress or commitment thereon. [ Jd. s. 29.] 
 
 61. Another Justice may hear. — The Justice who so acts 
 before or after such hearing, need not be the Justice or one of 
 the Justices before whom the case shall be heard and determined, 
 but where by statute it is required that any information or com- 
 plaint shall be heard and determined by two or more Justices, 
 or that a conviction or order shall be made by two or more Jus- 
 tices, such Justices must be present and act together durmg the 
 whole of the hearing and determination of the case. [Id. s. 29.] 
 
 62. Payment OF Penalties, etc.— In every warrant of distress, 
 the constable or other person to whom it is du:ected shaU be 
 
 (a) Distress Warrant how executed.— In executing a distress warrant, 
 Constable cannot break open doors, but must wait until he can obtain admit- 
 tance ; he may, however, break open the doors of another person if the goods 
 of the person against whom the warrant is directed have been removed there 
 to avoid seizure, but if the goods are not found he will be a trespasser and 
 must abide the consequences ; no prudent Constable would run such a risk. 
 The Constable should make the person, on whose behalf the distress is made] 
 point out the goods to be levied on ; he is bound to shew his warrant to the 
 person whose goods are distrained, if he be so required, and to permit a copy- 
 to be taken, but he must not part with the warrant out of his possessiou. 
 
lii 
 
 i6o 
 
 Summary Junsdiction. 
 
 thereby orclcred to pay the amount of tlie sum to be levied to the 
 Clerk of the Peace, and if received by the constable or the gaoler, 
 the same are to be paid over by him to the clerk. [Id. s. 81.] 
 
 08. FoKMs.— The forms in the schedule, or forms to the 
 like effect, are to be valid. [Id. s. 82.] 
 
 IMPERIAL ACT 11 & 12 VICTORIA, Cap. ,3. 
 
 Al>PJ5NDIX OP F0KM8. 
 
 No. 1. 
 Smmnons to the Defendant upon an Information or Complaint. 
 
 Pistrict, } Newfoundland. 
 
 to wit. J 
 
 To A. B. of , Fisherman. 
 
 Whereas information hath this day been laid [or complaint hath this 
 day been made.-] before the undersigned Justice of the Peace for 
 the said District, for that you [here state shortly the matter of the 
 information or complaint] : These are therefore to command you, in 
 
 IJer Majesty's name, to be and appear on , at — 1- o'clock in the 
 
 forenoon, at , before such Justices of the Peace for the said Dis- 
 trict as may then be there, to answer to the said information or com- 
 plaint, and to be further dealt with according to Law. 
 
 Given under my Hand and Seal, this day of 
 
 , in the year of our Lord at 
 
 in the District aforesaid. 
 
 J. S. (L.S.) 
 No. 2. 
 Warrant where the Summons is disobeyed. 
 
 ^ To the Constable of and to all other 
 
 Constables in the said District. 
 
 Whereas on last past information was laid [or complaint waa 
 
 made:] before the undersigned. Justice of tie Peace for the said District 
 
 Note.— All the fonns hero given should bo headed like this first one. 
 Newfoundland, &c., and all should have the seal of the Justice. 
 
Summary JurhdicUon. i6i 
 
 for that A. B. [^c, as in the mmmons] : And whereas I then issued ray 
 summons uiito the said A. li., commanding hi.n, in Ilor Majesty's name, 
 to be and appear on at o'oloclt in the forenoon at before 
 
 such Justices of the Peace for the said District as might then be there 
 Co answer to the said iuformation or complaint, and to be further dealt 
 with according to Law: And whereas the said A. IJ. hath neglected to 
 b.'^ or appear at the time and place so appointed in and by the said 
 summons, although it hath now been proved to me upon Oath that the 
 said summons hath been duly served upon the said A. IJ • These av 
 therefore to command you, in Her- Majestya „amo, forthwith to appre- 
 hend the said A B, and to bring him before some Justice of the Peace 
 for he said District, to answer to the said information or complaint, and 
 to be further dealt with according to Law. 
 
 Given under my Hand and Seal, this day of 
 , in the year of our Lord at 
 
 in the District aforesaid. 
 
 J.S.,J. P. (L.S.) 
 
 No. 3. 
 Warrant in the First Instance. 
 
 To the Constable of District, &c. 
 
 Whereas information on oath hath this day been laid before the 
 nndorsigned Justice of the Peace for the said ])istrict, for that A R 
 Ihero state shortly the matte,- in the mformation]: These are therefore* 
 to command you, in He. Majesty's name, forthwith to apprehend Z 
 said A. B., and to bring him before me or one of Iler Ma fe'U rices 
 of the Peace for the said District, to answer to the said inLmation 7nd 
 to be further dealt with according to Law. 
 
 Given under my Hand and Seal, this day of 
 
 , in the year of our Lord at 
 
 in the District aforesaid. 
 
 J.S.,J.P, (L.S.) 
 
 No. 4. 
 
 Warranto/ Committal for safe Custody duriny an Adjournment of the 
 
 Ileariny, 
 
 To W. T., Constable of and to tho 
 
 Keeper of the Gaol at 
 Whereas on last past information was laid [or complamt was 
 
 made] before the undersigned Justice of the P«a.. for .ho--- ' -- 
 W 
 
l62 
 
 Summary Jxirisdiction. 
 
 w 
 
 for that [>^c., as in the smnmms] : And wherea8 the hearing of the 
 same is adjourned to the day of instant at o'clock in the 
 
 forenoon at and it is necessary that the said A. B. should in tho 
 
 meantime be kept in safe custody : lhv\0 are therefore to command 
 you the said Constable, in Her ST<»je ■'v ^ nnv. -orthwith to convey the 
 said A. B. to the gaol at , and thcio deliver him into the custody 
 of the Keeper thereof, together ;vith this Precept ; and I hereby com- 
 mand you the said Keeper to receive the said A. B. into your custody in 
 the said gaol, and there safely keep him until day of instant, 
 
 when you are hereby required to convey him the said /v. C. nt oho time and 
 place to which the said hearing is so adjourned as aforesaid, before such 
 Justice of the Peace for the «aid District as may then be there, to answer 
 further to the said information or complaint, and to be further dealt with 
 according to Law. 
 
 Given under my Hand and Seal, this day of 
 
 in the year of our Lord at 
 
 in the District aforesaid. 
 
 J. S., J. P. (l. s.) 
 
 No. 6. 
 Recognizance for the ^2^c»rance of the Defendant where the case ia 
 
 adjourned, or not at once proceeded ivith. 
 Proceed as in Form, (S. 1), page 88, and then endorse this condition. 
 The condition of the within written Recognizance is such, that if 
 the said A. B. shall personaUy appear on the day of instant at 
 
 o'clock in the forenoon at before such Justice of the Peace for 
 
 the said District as may then be there, to answer further to the informa- 
 tion [or complaint] of C D. exhibited against the said A. B., and to be 
 further dealt with according to Law, then the said Kecognizan.ie to be 
 void, or else to stand in full force and virtue. 
 
 No. 6. 
 
 Summons of a Witness. 
 
 To E. F. of in the said District of 
 
 Whereas information was laid [or complaint was made] before the 
 
 undersigned Justice of the Peace for the said District, for that [Sfc, as in 
 
 the summons] ; and it hath been made to appear to me [upon oath] thatf 
 
 you are likely to give material evidence on behalf of the [prosecutor, 
 
 orcon^plainant, or defendant] in this behalf: These are therefore to 
 
 reqir'.d you to appear on the day of at o'clock in the forenoon 
 
Summary Jiirisdiction. 
 
 163 
 
 afc before suoh :..tice of the Peace for the said District as may 
 then be there, to testify what you shall know concerning the matter of 
 tHe said information [or complaint.] 
 
 Given under my Hand and Seal, this day of 
 
 in the year of our Lord at 
 
 in the District aforesaid. 
 
 T. Wills, J. P. (l. s.) 
 
 No. 7. 
 Warrant wUre a Witness has not obeyed a Summms. 
 
 To the Constable of and to all other 
 
 Constables in the said District. 
 Whe«eaa information was laid [or complaint was made] before the 
 undersigned Justice of the Peace for the said District, for that [&c as 
 IVXTT'^ ; and it having been made to appear to me upon oath 
 that K F. of m the said District, Labourer, was likely to give 
 
 matemi evidence on behalf of the [prosecutorl I did duly issue my 
 summons to the said E. F., requiring him to be and appear on 
 at o'clock in the forenoon of the same day at before such 
 
 Justices of the Peace for the said District as might then be there 
 to testify what he should know concerning the said A. B., or the mat^ 
 ter of the said information [or complaint] : And whereas proof hath 
 this day been made before me upon oath of such summons having 
 been duly served upon the said E. F, and of a reasonable sum having 
 been paid [or tendered] to him for his costs and expenses in that boha" 
 And whereas the said E. F. hath neglected to api^ar at the time aud 
 phce appointed by the said summons, and no just excuse hath been 
 
 ht Ld E F aT"'-' J'"' "^ *'^"'^^^ to command you to tak: 
 the sa:d E F., and bring him on at o'clock in the forenoon 
 
 at before such Justice of the Peace for the said District as may 
 
 then be there to testify what he shall know concerning the matter 
 of the a£,id information [or complaint]. 
 
 Given under my Hand and Seal, this 
 
 in the year of our Lord at 
 
 the District aforesaid. 
 
 day of 
 in 
 
 T. Wills, J. P. (l. s.) 
 
I6i 
 
 Summary Jurisdiction. 
 
 I' 1: 
 
 No. 8. 
 Warrant for a Witness in the first instance. 
 
 To the Constable of and fo all other 
 
 Constables in the said District. 
 Whereas information was laid [or complaint ivas jnade] before the 
 tindersifriied Justice of the Peace for the said District, for that [c^-c, as 
 in the summons] ; and it being made to appear before mo upon oath 
 that E. F. of ILabourer] is likely to give material evidence on 
 
 b(!half of the [prosecutor] in this matter, and it is probable that the 
 said E. F. will not attend to give evidence Hthout being oompelled 
 BO to do : These are therefore to command you to apprehend and 
 bring the said E. F. before me on the day of at o'clock in 
 the forenoon at or before such other Justice of the Peace for the 
 
 said District as may then be there, to testify what he shall know con- 
 cerning the matter of the said inf^.-mation [or complaint.] 
 
 Given under my Hand and Seal, this day of 
 
 in the year of our Lord at in 
 
 the District aforesaid. 
 
 T. Wills, J. P. (l. s.) 
 
 No. 9. 
 
 Commitment of a Witness for refusing to he sworn or to give Evidence. 
 
 To W. T., Constable of in the said Dis- 
 
 trict of and to the Keeper of the 
 
 Gaol at 
 
 Whereas information was laid [or complaint roas made] before the 
 undersigned Justice of the Peace for the said District, for that [S^c, as 
 in the sum)no7is] ; and one E. F., hereinafter called the witness, now 
 appearing before me such Justice as aforesaid on at and being 
 required by me to make oath or affirmation as a witness in that behalf, 
 hath now refused so to do [or being now here duly sworn as a witness 
 in. the matter of the said information or complaint, doth refuse to ansioer 
 certain questions concerning the premises v)hich are now here put to him], 
 without offering any just excuse for such his refusal : These are there- 
 fore to command you the taid Constable to lake the said witness and 
 him safely convey to the gaol at afores-^icl, and there deliver him 
 to the said keeper thereof, together with this Precept; and I do 
 hereby command you the said keeper tc receive the said witness into 
 your custody in the said gaol, and there imprison him for such his 
 contempt for the space of days unless he shall in the meantime 
 
Siumnavy Jtirisdidif n. 
 
 now 
 
 165 
 
 consent to be examined and t- ....swer c, n.-uixiK the piomises: and 
 for your ao doing this shall b^ your i.v' i. .,t arrant. 
 
 Given under m.7 Hand -id Seal, fhia day 
 
 of in tn». year of our Lord at 
 
 iu the Distric • i>e 'd. 
 
 /. S., J. P. (l. s.) 
 
 No. 10 
 
 Wan-ant to remand a Defendant tohm apprehended. 
 
 To W. T., Constable of and to the keeper 
 
 of the gaol at; 
 
 Whereas information was laid [or complaint joa. made"] before the 
 undersigned Justice of the Peace in and for the said District of 
 for that \^o., as in the summons or loarrant] : And whereas the said 
 A. B., hereinafter called the defendant, ha.h been apprehended by war- 
 rant upon such information [or complamf], and is now brought before 
 mo as such Justice as aforesaid : These are therefor- to command you 
 '.he said Constable, in Her Majesty's name, forthwith '.0 convey the said 
 defendant to the gaol at and there to deliver him to the said 
 
 keeper thereof, together with this Precept; and 1 do hereby command 
 iou the said keeper to receive the said defendant into your custody 
 in the said gaol, and there safely keep him until next, the 
 
 day of instant, when you are hereby commanded to' have him 
 
 at at o'clock in the forenoon of the same day, before such 
 
 Justice of the Peace of the said District as may then be there, to 
 answer to the said information [or cmnplaint,] and to be further dealt 
 with according to Law. 
 
 Given un 
 
 ler my Hand and Seal, this day 
 
 in the year of our Lord at 
 
 of 
 
 in the District aforesaid. 
 
 J. S., J. P. (L. s.) 
 
 No. 11. 
 
 Convic Ion for a Pe^i^ty to he levied by Distress, and in defauU of suffix 
 cient Distress, imprisonment. 
 Ee it remembered, '.hat on the day of in the said District, 
 
 A. B., [hereafter called the Defendant] is convicted before me, the under- 
 signed Justice of the Peace for the said District, for that The the said 
 Defendant, &c., statinff the offence, and the time and place when and where 
 committed-] j an .do adjudge the said Defendant for his said offence, 10 
 
i66 
 
 Summary Jimsdiction. 
 
 pay theeum of , [^tating the pmaUtj, and also the compensation, if 
 
 any^ to be paid and applied ...ordiug to law, and also to pay to the said 
 C. D. tho sum of f o. Lis costs ia t lis behalf ; and if the said several 
 
 sum. be not paid forthwith [or on or before next] *I order that the 
 
 same belevi.d by Distress and sale of the Goods and Chattels of the 
 aaid Defendant, and in default of sufficient Distress* I adjudge the sai^ 
 Defendant to be imprisoned in the Gaol at , for the space or 
 unless the said several sums, and all costs and charges of the said Distress 
 land of the commitment andcmiveying of the said Defcmlani to the said 
 Oraolj, shall be sooner paid. 
 
 Given under my Hand and Seal, the day and year 
 first above mentioned, at aforesaid. 
 
 T, Wills, J. P. [l. s.} 
 * Or where the issuinff of a Distrsss Warrant lomld- he ruinms to the 
 I^efmdant or his family, or it appears that he has no Goods wherem to 
 levy a I>tstress, then, instead of the words hetxcecn the Asterislcs ** , say 
 "then, inasmuch as it hath no «r been made to app^r to me [that the' 
 issuing of a Warrant of Disf res,, in this behalf would be ruin'.us to the 
 Baid Defendant and his family," or, "that the said Defendant hath no 
 trood? or Chattels whereon to levy the said sums by Distress], I adjudge " 
 & , s above, to the end. 
 
 No. 12. 
 Conviction for a Penalty, and in default of Payment, Inq>rismment. 
 
 1 Be it remembered, that on the day of , in the 
 
 to wit. \ year , at , in the said [District] A. B., \hereafter 
 
 called the Defendant:] is convicted before the undersigned Justice c^'the 
 
 Peace for the said District, for that [he th. said Defendant, Sec, stating 
 
 the offence, and the time and place tohen ami lohere it was committed] ; and 
 
 Note to Fomi, No. ll.-This form is used when tho Magistrate orders 
 the amount to be levied by distress ; in all such cases a distress warrant should 
 iBBue m the Form, No. 10. 
 
 Note to Form, No. I'J.-This Form will be tho one commonly used by a 
 Magistrate, as by tho S. P., p. 122. Justices may commit without iss^i^ 
 warrant of distress in all cases where the penalty, including costs, does not 
 exceed $24, most cases will be under .at amomit, and whon the pressure of 
 impnsonment wont force the defendant to pay tho tine, it is scarcely probable 
 that It will be recovered unacr a diaticas warrant which iu ordinary practice 
 IS seldom resorted to. 
 
Summary jurisdiction. 
 
 167 
 
 1 do adjadge the said Defendant for his said offence to pay the sum of 
 V^tatmrj the pmalty, ami the compensation, if a.ny\ to be paid and 
 apphed according to law, and also to pay to the said C. D. the sum of 
 forthwith fT*' i"*^i« behalf; and if the said several sums be not paid 
 forthwith [> . on or before next] I adjudge the said Defendant to 
 
 be impr^son, d xn the Gaox at for the space of , unless the said 
 
 everal sum. [and the costs and charges ot conveying the said Defendant 
 to the said Gaol, shall be sooner paid. 
 
 Given under my Hand and Seal, the day and yeat 
 first above mentioned, at aforesaid. 
 
 T. Wills, J. P., [l. s.] 
 
 No. 13. 
 Porm of Order (General.) 
 
 Be it remembered, that on complaint was made before the 
 
 indersigned Justice of the Peace for the said District for that [.tatina 
 
 the facts entMmff the complainant to the Order, with the time and place 
 
 when and lohere they occurred-] ; and no^v, at this day, to wit on at 
 
 the parties aforesaid appear before me the said Justice \or the said 
 t.n appears before me the said Justice, hut the said A. B rhereafte,* 
 called the Defendant) «/Mo,^, duly called, doth not appear by 7^!^^ 
 "-.Ut rs now satisfactorily proved to me on Oath that the said Defendant 
 has been duly served with the Summons in this behalf ^ohich required him 
 to appear here m thts day to answer the satd complaint, and to be further 
 dealt wxth according to /«,„]; a„d now, having heard the matter of the 
 said complaint I do adjudge, &c.; thca follow the forms of convictions 
 or Penalties 11 & 2 according to the circumstances of the case from 
 the words "I do adjudge." 
 
 No. 14. 
 Order of Dismissal of an Infrrmatim or Complaint. 
 Be it remembered, that on Information was laid \pr Complaint 
 
 was made] before the undersigned Justice of the Peace for the said Dis- 
 trict of for that [Sfc, as m the Summons to the Defendant-], v^x^A now 
 at th.s day, to wit, on at , both the said parties app^ r be^ 
 me in order hat I should hear and determine the said inforltion r" 
 comp aint], [or the said A. B. appeareth before me, but the satd C. D rthe 
 complainant) .ft^..^, ,,,,, ,,fo,, ,^,,, ^^, ^ '^ 
 
 tr of the said information Lor complaint] being by me duly considere. 
 [It mamfestly appears to m. that the said information [or complaint] i 
 
^•fflrass, '^Srif^ 
 
 HM^ 
 
 168 
 
 Siimmavy Jurisdiction. 
 
 uot proved ?:id'] I do therefore dismiss the same, and do adjudge that 
 the said C. D. do pay to the said A. B. the sum of for his costs in- 
 
 curreu by him in his defence in this behalf ; and if the said oum for costs 
 be not paid forthwith [or on or boforo ], I order that the same be 
 
 levied by Distress and sale of the goods and chattels of the said CD., 
 and in default of sufficient distress iu that behalf I adjudge the saidC. D. 
 to bo imprisoned in the Gaol at for the space of , unless the 
 
 said sum for costs, and all costs and charges of the said distress shall be 
 Boouer paid. 
 
 Given under my Hand and Seal, this day of 
 
 , in the year of our Lord at in 
 
 the District aforesaid. 
 
 J. S. (l. s.) 
 
 * If the Informant or Complainant do not appear, these words may 
 he omitted. 
 
 No. 15. 
 Certificate of Dismissal. 
 I hereby certify, that an information [or comprint] preferred by 
 C. D. against A. B., for that [&c., as in the summons], was this day con- 
 sidered by me, the undersigned Justice of the Peace for the said District, 
 and was by me dismissed with costs. 
 Dated this day of , 18 . 
 
 J. S. 
 
 No. 10. 
 Warrant of Distress upon a coniiciion for a Penalty. 
 
 To the Constable of , and to all other Constables 
 in the said District. 
 
 Whereas A. B., late of , f Fisherman] (hereafter called the De- 
 
 fendant) was on this day [or on last past] duly convicted before me 
 
 the undersigned Justice of the Peace for the said District, for that 
 [statiiKj the offence as in the conviction] , and it was thereby adjudged that 
 the said Defendant should pay [&c., as in the conviction], and also pay 
 the sura of for costs ; and that if the said several jums should not 
 
 be paid [forthvith] the same should be levied by distress and sale of the 
 goods and chattels of the said Defendant ; and that in default of suffi- 
 cient distress the said Defendant should be imprisoned in the Gaol at 
 
 , for the space of , unless the said several sums, and all costs 
 
 and ohargea of the said distrea:;, and of the commitment and convey- 
 
Summary Jurhdiction. 
 
 169 
 
 ing of the said Defendant to the said Gaol, should be sooner paid : 
 And whereas the said Defendant being so convicted as aforesaid, and 
 being [«ow] required to pay the said juma of and hath not 
 
 paid the same or any part thereof, but therein hath made default : 
 These rre therefore to command you, in Her Majesty's name, forth- 
 with to make distress of the goods and chattels of the said Defendant, 
 and if within the space of days next after the making of such 
 
 distress the said sums, together with the reasonable charges of taking 
 and keepir.g the Distress, shall not l?e paid, that then you do sell the 
 said goods and chattels so by you distrained, and do pay the money 
 arising by such sale unto the Clerk of the Peace («) [if no Cleric of 
 the Peace, say to wie] at , in the said District, that he (or /) may pay 
 and apply the same as by law is directed, and may render the over- 
 plus, if any, on demand, to the said Defendant ; and if no such dis- 
 tress can be. found, then that you certify the same unto me, to the 
 end that such further 'iroceedings may bo had thereon as to the law 
 doth appertain. 
 
 Given under my Hand and Seal, this day of 
 
 , in the year of our Lord at 
 
 District aforesaid. 
 
 J.S. (l.s.) 
 
 No. 17. 
 Constable's Return to a Warrant of Distress. 
 
 I, W. T., Constable for the District, hereby certify to Thomas 
 
 Wills, Esquire, Justice of the Peace of the said District, that by virtue 
 of this warrant I have made diligent search for the goods and chattels of 
 the within-mentioned A. B., and that I can find no sufficient goods and 
 chattels of the said A. B. whereon fco levy the sum within mentioned. 
 
 Witness my hand 187 . 
 
 W.T. 
 
 No. 18. 
 General Form oC Warm : ^ o* Commitment. 
 
 To the Constables of tho District and to 
 
 Keeper of tiie Gaol at 
 Whereas on &c., A. B., hr-oafte- caUed the defendant, appeared 
 before me the undersigned Justir . 1 the Peace for the said District, to 
 
 (a) Where there ia no Clerk of the Peace, a Justice may act as Clerk of 
 the Pctt:o, p. 12. 
 
 MSlLlllliff^ 
 
170 
 
 Summary Jurisdiction. 
 
 answer the complaint of C. D. Ihere state complaint] and on the con- 
 sideration of tbe said complaint, I adjudged the said defendant ♦ to pay 
 the sum of dollars forthwith (or on ) and also to pay 
 
 dollars, costs to the said 0. D., [to be levied . ,, distress and sale of the 
 defendant's goods aiul chattels, and that in default of sufficient distress^ 
 defendant should be imprisoned for months, and no sufficient distress 
 
 w/cereon to levy said sums having been found] * (omit these words xvhm no 
 distress ivarrant is issued.) Or when the punishment is imprisonment cmly, 
 omit all the words between the asterisks.* I adjudged the said defendant 
 should be imprisoi.pd in the said gaol for months (unless the said 
 
 sums should be sooner paid,) {omit these words cohere the imnishment is 
 impriscmment only). These are therefore to command you the said Con- 
 stable to convey tbe defendant to the said gaol and deliver him to the 
 keeper thereof, with this warrant ; and I command you the said keeper 
 to receive the defendant in the said gaol, and there imprison him (and 
 keep him a. hard labour) for the space of months (unless the said 
 
 sums should be sooner paid). And for your so doing this shafl be your 
 sufficient warrant. 
 
 Given under my Hand and Seal, this day 
 
 of 187 , at aforesaid. 
 
 T. WiLLC, J. P. (l. s.) 
 
 No.. 19. 
 Warrant of Distress for Costs upon an Order for Dismissal of an Iw 
 
 formation or Complaint. 
 
 To the Constables of District. 
 
 Whereas on last past information was laid [or complaint tvaa 
 
 made] before the undersigned Justice of the Peace for the said District, 
 for tiat [&c., as in the order of dismissal] ; and afterwards, to wit, on 
 at both parties appearing before me, and the said complaint 
 
 [or information] being by me duly heard and considered, and it mani- 
 festly appearing to me that tbe said information [or complaint} was 
 not proved, I therefore dismissed the same, and adjudged that the said 
 C. D., hereafter called the complainant, should pay to the said A. B. 
 the sum of for his costs incurred by him in his defence in that 
 
 behalf ; and I ordered that if the said sum for costs should not be 
 paid [forthwith] the same should be levied of the goods and chattels 
 of the said complainant, [and I adjudged that in default of sntKcient 
 distress in that behalf the said complainant should be imprisoned in the 
 gnol at [and there kept to hard labour], for tht ^ace of 
 
J the con- 
 t ♦ to jjay 
 
 pay 
 
 mle of the 
 it distress^ 
 nt distress 
 Is when no 
 merit only^ 
 defendant 
 s the said 
 •shment is 
 said Con- 
 im to the 
 id keeper 
 him (and 
 ■s the said 
 [ be your 
 
 day 
 
 Preservuiion of the Public Peace. lyi 
 
 unless the said snm for costs, and all costs and charges of the said 
 distress, and of the eoramitraent and conveying of the said C. D. to 
 the said gaol, should be sooner paid] :• And whereas the said com- 
 plainant being now required to pay unto the said A. B. the said sum 
 few costs, hath not paid the same or any part thereof, but therein hath 
 made default : These are therefore to command you, in Her Majesty's 
 name, forthwith to make distress, then follow the words in form 16, 
 fiubstituting complainant for defendant. 
 
 No. 20. 
 Commitment jcyr Non-payment of Costs. 
 
 This can readilv be adapted from the general form of commitment, alter- 
 ing the words after " on consideration of the complaint," into, and on the 
 hearing of the said complaint, I adjudged the same not to be proven and dis. 
 missed the said complaint, and adjudged the complainant to pay the defendant 
 
 dollars for the costs incurred by him in his defence, &c., to be levied by 
 distress, *s,, as iu form 18, substituting complainant for defendant. 
 
 L. s.) 
 
 )/ en In' 
 
 trict. 
 
 •ylaint tva$ 
 I District, 
 ;o wit, on 
 complaint 
 i it mani- 
 nnt2 was 
 it the said 
 aid A. B. 
 e in that 
 I not be 
 1 chattels 
 sntKcient 
 led in the 
 of 
 
 CHAPTER XIV. 
 
 PRESERVATION OF THE PUBLIC PEACE. 
 
 Sections 
 
 1.— Sureties for the Peace, authority 
 of Justice. 
 
 2. — Grounds for Complaint. 
 
 3. — Facts neceojary to support Com- 
 plaint. 
 
 4.— Who may make Complaint. 
 
 5. — Form of Complaint. 
 
 C— Summons or Warrant to issue. 
 
 7.— Form of Summons. 
 
 8. — Form of Warrant. 
 
 9. — Hearing. 
 
 10.— Entering into Recognizance. 
 11. — Amount of Recognizances, term 
 of imprisonment. 
 
 Sections 
 
 12.— Form of Recognizance. 
 
 13. — Form of Commitment. 
 
 14. — Assault defined. 
 
 15. — Common Assault. 
 
 16.— Aggravated Assaults on Women 
 
 and Children. 
 17.— Certificate of Dismissal. 
 18, — Release. 
 
 19.— Ouster of Jurisdiction. 
 20. — Assaulting Clergyman. 
 21.— Assaulting Magistrate, Ac, at 
 
 Wrecks. 
 22.— Assaults on Peace Officers, or 
 
 with intent to Commit Felony. 
 
Jii^ 
 
 172 
 
 Preservation of the Public Peace. 
 
 Sections 
 
 23. — Assault, occasioning actnal bodi- 
 ly harm. 
 
 24.— Assault Common Indictment. 
 
 25. — Assault on any Constable. 
 
 26.— Riot defined. 
 
 27.— Persons not dispersing after Pro- 
 clamation. 
 
 28. — Apprehension of Oftenders. 
 
 29. — Riot or Aflray, generally. 
 
 30.— Appointment of Special Consta- 
 bles. 
 
 Sectioks 
 
 31.— Oath of Special Constable. 
 
 32. — Refusing to be Sworn. 
 Penalty. 
 
 33. — Notice of Special Constable's ap- 
 poi atment to be sent to Gover- 
 nor. 
 
 34.— Constable may call on By- 
 stander. 
 35. — Military Force. 
 36.— Closing Prblic Houses. 
 
 1. One of the most important duties of a Justice of tlio 
 Peace is to preserve the Peace, and to that end he has various 
 powers conferred upon him ; one of the most ancient and most 
 important of Lhoso powers is the authority to bind over parties 
 to keep the peace. The general authority is contained in the 
 Commission in tJie following words, — 
 
 "And to cause to come before you all those who, to any one or more 
 of Our people, concerning their bodies, or the firing of their houses, have 
 used threats, to find siidicient security for the peace, or their good beha- 
 viour towards Us and Our people ; and if they shall refuse to find such 
 security, then ihem in our prisons, until they shall find such security, to 
 cause to be safely kept." 
 
 Biniling over parties to keep the peace is a very useful re- 
 medy, and will be found suitable to a great variety of cases ; 
 it tends to prevent fights and breaches of the peace, and in 
 matrimonial dilTcrcnces, where threats are used, it is almost the 
 only remedy a Justice of the Peace can apply ; it may not always 
 Becure peace between the contending parties, but it will at least 
 tend to prevent them coming to blows. 
 
 2. If a party has sustained violence from another, and has 
 reason to believe that it Avill be repeated, or if without actual 
 violence having been committetl, he has been threatened with 
 it, either by words or gestures, and therefore goes in bodily fear, 
 he may compel the offender to enter into a reco-nizauce, with 
 or without sureties, to keep the peace towards him. (Surety 
 for good behaviour is noic not used, because the sureties for the peace 
 include sureties for good behariour.) 
 
Preservation of the Ptihlic Peace. 173 
 
 8. To warrant an application against another for sureties 
 to keep the peace, the applicant must make it appear from 
 reasonable evidence that the party against whom he appUes 
 intends personal violence against him. But actual violence, or 
 even threats, will not be essentially requisite to furnish the evi- 
 dence ; it may consist in the looks, gestures, or conduct of the 
 party ; but in sucli case it is necessary for the complainant to 
 depose to his behef that such conduct, in fact, amounts to a 
 threat of personal violence, and that he is afraid the defendant 
 xviU do him some bodily injuri/. The complaint should be made 
 soon after the cause of fear has arisen (a). 
 
 4. One Justice, upon complaint on oath being made before 
 him, tbat from threats, &c., used within his jurisdiction towards 
 complainant, or from threats used against complainant's wife or 
 child, or from threats used by a wife against husband, or husband 
 agamst wife, the complainant fears another pp^-^on will do him, 
 his wife, or child, some personal injury, may issue his summons 
 or warrant against the party complained of. 
 6. Form of Complaint.— 
 
 fotit^'l Newfoundland. 
 
 The complaint, on oath, of A. 13., of , in the said District [Fish- 
 erman] before me, the undersigned Justice of the Peace for the said Dis- 
 trict, who saith on the day of last, CD., of , [Fisherman] 
 (here state the threats or ether acts of violence of ivhich the complainant 
 complains, in his very words, according to the facts, as they took place) and 
 that from the abuve and other threats used towards me by the said C. D., 
 [ am afraid that the said 0. D. will do me some bodily injury. I there^ 
 fore pray that the said 0. D. may be required to find sureties to keep the 
 peace and be of good behaviour towards me. 
 
 Sworn before me, this day of 
 A. D. 187 , at , aforesaid. 
 
 1 
 
 (Sd.) A. B. 
 
 T. Wills, J. P. 
 
 (a) The right to apply for sureties to keep the peace, exists only where 
 personal violence is apprehended. Not injury to man's property, (except set- 
 ting fire to his house). 
 
174 
 
 Preservaticn oj the Public Peace, 
 
 6. If the Justice is satisfied that the complaint is bona fide, 
 and there is any reasonable ground for apprehension of personal 
 violence, he will issue the summons or warrant for the appear- 
 ance of the defendant. 
 
 7. Form of Summons. — (a) 
 
 District, ? Newfoundland. 
 
 , to wit. $ 
 
 To C. D. 
 You are hereby required to appear in your proper persop before the 
 undersigned Justice of the Peace for the said District, at aforesaid, 
 
 on the day of by of the clock in the forenoon of the same 
 
 day, to answer the complaint of A. B. [Iiere state shortly the complaint], 
 and to find sureties to keep the peace and be of good behaviour towards 
 Iler Majesty and all Her liege people, and especially towards said A. B,, 
 and to be further dealt with according to Law. 
 
 Given under my Hand and Seal, this day of 
 
 A. D. 187 , at aforesaid. 
 
 T. Wills, J. P. (l. s.) 
 
 8. Form of Warrant. — (6) 
 
 — — — District, I Newfoundland. 
 
 — — , to wit. j 
 
 To the Constables of the said District. 
 Whereas complaint on oath has this day been made before me, one 
 of the Justices of the Peace for the said District, by A. B. of Fish- 
 
 erman, that [here state the wJiole complaint in third person] : These are 
 therefore to command you forthwith to arrest the said C. D,, and bring 
 him before me or some other Justice for the said District to auswer the 
 said complaint and to be further dealt with according to Law. 
 
 Given under my Hand and Seal, this day of 
 
 A. D. 187 , at aforesaid. 
 
 T. Wills, J. P. (l. s.) 
 
 9. Upon the party being brought before the Justice, the 
 complaint is read over to him and he is asked if he have any 
 cause to shew why he should not give the required sureties. The 
 practice is, to conduct the hearing as an ordinary case of sum- 
 mary conviction (c). 
 
 (a) Service should be personal. 
 
 (6) A verbal complaint will do even when party is before the Justice on 
 another charge. [24 L. T. (N. S.) 647. Oke, 1474.] It is only when war- 
 rant is to issue that information need be in writing and on oath. 
 
 (c) It is said that the party complained of cannot be allowed to oontro- 
 
Prdsefvatton of the Public Peace. 
 
 W 
 
 10. The recognizance can only be to keep the peace and 
 he of good behaviour for Twelve months. The defendant cannot 
 be convicted of an assault as well (if one was committed at the 
 time) against the complainant's protest, but if a complaint for 
 an assault is dismissed, and the Justice thinks, from the evi- 
 dence, that such a precaution is necessary, he may require the 
 defendant to keep the peace. [Olce, 1,474.] If sureties are re- 
 quired, and the defendant is not prepared with them, the case 
 should he adjourned, to enable him to get them. 
 
 11. The amount of the recognizance should be proportioned 
 to the condition in life of the parties, and the circumstances of 
 the case. In default of entering into recognizance, with surety 
 or sureties, the defendant is committed to jail ; it must not be for 
 more than twelve months [16 A 17 Vic, o. 80, s. 8], and in 
 practice will hardly ever exceed three months. The recogni- 
 zance may be in the following form : 
 
 12. Form op Recognizance.— Follow the form a 1, page 88,- 
 and then write on the back of Recognizance, 
 
 " The condition of this recognizance is such, ^;hat if the above boun-- 
 den C. D. shall keep the peace and be of good behaviour towards the Queen 
 and all her liege people, and especially towards , of , aforesaid, 
 
 Fisherman, [the complainanf] for the term of twelve months now next 
 ensuing, then the said recognizance shall be void, or else to remain in its 
 full force." 
 
 18. Form op Commitment fob want op Sureties to keep' 
 THE Peace. — 
 
 District,. 
 
 to wit. 
 
 Newfoundland. 
 
 To the Constables of the said District, and the 
 Keeper of the Gaol at 
 Whereas A. B., &c., [Acre recite the complaint as in the warranf] and 
 
 vert the truth of the facts stated in the complaint. [R. v. t)oherty, 13 East 
 171.] All he is allowed to do, being to shew that the complaint is preferred 
 from malice only, or explain parts of the case that may be ambiguons. 
 
 Co8ts.~Oke holds that the defendant, when ordered to enter into Kecog. 
 nizance, must pay the fees for it, or Clerk of the Peace (oi- Magistrate luhere 
 no Clerk) may refuse to prepare it until such fees are paid, and if not paid,- 
 the defeudant stands committed in default of Eecognizanco. [Oke. Notel 
 1473,] It is doubtful whether 11 & IS Vic. c. 43, IB appUcabie. 
 
 j 
 
176 
 
 Assault, 
 
 wliereas the said C. D. wna this day brought before mo, Thomas Wills, 
 a Justice of tlio Peace for the said District, at , to answer the said 
 complaint ; an.l I tbo said Justice have ordered and adjudged that the 
 said C. 1). sliall enter into his own recognizance in the sum of dollars, 
 with two sureties iu the sum of dollars each, to kee,) the peace and 
 be of good behaviour towards Iler Majesty and all her liege people, and 
 particularly towards the said A. I J., for "the term cf months now next 
 ensuing, and inasmuch as the said C. D.hath refused or is unable to enter 
 into the said recognizance with such snreties, I hereby command you the 
 said Constables or one of you forthwith to convey the said C. U. to the said 
 Gaol and to deliver him to the Keqier thereof with this warrant ; and I 
 command you the said Keeper to receive the said 0. D. into your custody 
 in vhe said Gaol, and there safely keep him for the space of months 
 unless in the meantime he enter into the said recognizance with such 
 sureties. 
 
 Given tinder my Hand and Seal, at , aforesaid 
 this day of , A. D. 187 . 
 
 T. Wills, J. P. , 
 14. Assault Defined. — An assault is an attempt by force, 
 or violence, to do bodily injury to another. It is an act of ag- 
 gression done against or upon the person of another without 
 his consent ; not necessarily against his will, if by that is implied 
 an actual resistance or expression of objection made at the time. 
 It is not necessary that the party should receive an injury, as 
 striking or throwing a stone, or riding at another, or striking a 
 horse whereon another is riding, whereby he is thrown, or hold- 
 ing up the hand in a threatening manner, or any other circum- 
 stances denoting at the time an intention, coupled with a present 
 ability, of using actual violence against the person, will con- 
 stitute an assault. If the porson be actually struck or even 
 touched, the offence is a battery, which includes an assault. 
 But in order to constitute an assault pimishable by the criminal 
 law, the act must have been done with a hostile intention • for 
 instance, placing the hand on another person's shoulder to call 
 his attention to the hose of a fire engine, is not such an assault. 
 Mere words do not amount to an assault. A breach of the peace 
 can only be justified when used to prevent a breach of the peace, 
 although the circumstances of the provocation may be taken 
 into consideration in awarding the j uuishment. It is clearly 
 
Assault. 
 
 177 
 
 Gstablished by the recent case of li. v. Pearson, SOL. J. (M. C.) 
 76, and 22 L. T. (N.) 12G. that Justices have no summary juris- 
 diction in any case of assault where a question of title arises, 
 although there may have been an excess of force or violence in 
 the assault. The remedy will be by indictment. In a rrosccu- 
 tion for assaulting the constable, it is sufficient to prove that ho 
 acted in that character without producing his appointment, al- 
 though he may have been appointed under a local Act. [Berrij- 
 man v. Wise, 4 T. R. 806, and Butler v. Foid, 1 C. & M. G22.] 
 Stone, p. G2. 
 
 15. Common Assault.— Where any person shall unlawfully 
 (a) assault or beat any other person, two Justices of the Peace 
 upon complaint (i) by or on behalf of the party aggrieved, may 
 (6-) hear and determine such offence— P«n«s/t>n<?n^ on conviction, 
 at the discretion of the Justices, either by imprisonment in gaol 
 for not exceeding two months [d), or else such fine as shall 
 appear to them to be meet, not exceeding, together with costs 
 (if ordered), the sum of twenty-four dollars ; and if not paid, 
 
 {a) Where stones were thrown by a mob at a Constable, but no evidence 
 was given showing from which of ten persons who were summoned the blow 
 proceeded, it was held that the Justices were right in dismissuig the complaint, 
 and that in such a case the rule that all were equally guilty participators did 
 not apply. [Tuckcy v. Little, 27 J. P. 135.] 
 
 (6) The complaint, under the 42nd and 43rd sections, need not be upon 
 oath unless a warrant be granted ; the proceedings being, under the 76th sec- 
 tion, regulated by Jervis's Act, and there being nothing in that Act which re- 
 quires the information on which a summons issues to be on oath. The com- 
 plaint under s. 42, may be «' by or on behalf of the party aggrieved," thua 
 enabling a parent or a friend to complain on behalf of a child, and under s. 43 
 by the " party aggrieved or otherwise," i. e., either the party or a stranger. 
 [25 J. P. 658. 3 
 
 (c) The jurisdiction of the Justices will not bo taken away by the parties 
 fiettlmg the matter without the sanction of the Justices. They can still hear, 
 and if the evidence be sufficient, convict of the ollence. [Ex parte Bruant. 
 27 J. P. 332.] ^ " • 
 
 (d, If an assault on a Constable be such as might be justified in point of 
 law, if the complainant had not been acting in the execution of his duty aa a 
 Constable, it will be necessary to proceed for tho ofieace of assaulting hio?. ia 
 the execution of his duty. 
 
 
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178 
 
 Assault. 
 
 either immediately after conviction or within such period as the 
 said Justices shall appoint, imprisonment in gaol, with or with- 
 out hard labor, (a) for not exceeding two months (b), unless such 
 fine and costs he sooner paid. [24 & 25 Vic, c. 100 s. 42.1 
 No appeal. ' 
 
 16. Aggravated Assadlt on Women and Children.— When 
 any person shall be charged before two Justices of the Peace (o) 
 or a Stipendiary Magistrate with an assault or battery upon any 
 male child, whose age shall not, in the opinion of such Justices, 
 exceed fourteen years, or upon any female, either upon the com- 
 plamt of the party aggrieved or otherwise, the said Justices if 
 the assault or battery is of .uch an aggravated nature (d) that 
 It cannot m their opinion be sufficiently punished ander the pro- 
 visions hereinbefore contained as to common assaults and batte- 
 ries, may proceed to hear and determine the same in a summary 
 \7&y~Punishment, on conviction, by imprisonment in gaol, with 
 or without hard labor, for not exceeding six months, or a fine 
 not exceeding (together with costs) ninety-six dollars, and -n 
 default of payment, imprisonment in gaol, for not exceeding six 
 months (but not exceeding two months if the penalty does not 
 exceed five pounds, see S. P.), unless such fine and costs be 
 sooner paid ; and if the Justices shall so think fit, in any of the 
 Baid cases, shaD be bound (Le., in a specific sum), to keep the 
 peace and be of good behaviour for any period not exce^^ding 
 
 (a) Consol. Stat. p. 231. In all sentences of imprisonment ander enm- 
 mary convictions, such sentence of imprisonment may be with hard labour 
 dunng the term of imprisonment, in the discretion of the convicting Justice. 
 
 (b) The term of imprisonment is now regulated by the amount of the 
 penalty. (See " Small Penalties Act," Cap. 13 p. 121.) 
 
 absen? !^ ^' ^' ^'°'^' "" ^ ^"''"" '^ ^' ^' ^^'° ^^^6^ Mag^trate 
 
 (d) A ccnTiction may be sustained, a-fhough evidence may be giTen in 
 support of a higher offence than that of assault, as rape, as the Justice may 
 consider such evidence insufficient or untrue. If. however, a felony be proved 
 the offender should be committed for trial. IE x parte Thompson,30L, J. 19 
 and Wilkimo7t v. Dutton, 32 L. J. 162.] • •' •^»> 
 
Assault, 
 
 179 
 
 six {a) months from the expiration of such sentence. [Id. s. 43.] 
 No appeal. 
 
 17. Chbtifioatk of Dibmiss^l.— If the Justices upon the 
 hearing of any such case of assault or battery upon the merits^ 
 ^here the complaint was preferred by or on behalf of the party 
 aggrieved, under either of the last two preceding sections, shall 
 deem the offence not to be proved, or shall find the assault or 
 battery to have been justified, or so trifling as not to merit any 
 punishment, and shall accoi-dingly dismiss the complaint, they 
 shall forthwith make out a certificate {b} under their hands, 
 stating the fact of such dismissal, and shall deliver such certifi- 
 cate to the party against whom the complaint was preferred. 
 lid. a. 44.] 
 
 18. Belease.— If any person shall have obtained such cer- 
 tificate, or having been convicted, shall have paid the whole 
 amount adjudged to be paid, or shall have suffered the imprison- 
 ment, or imprisonment with hard labor, awarded, in every such 
 
 ^ (a) If an oftender whj hag been adjudged to pay a fine, and in default to 
 be imprisoned, and to enter into a recognizance to keep the peace at the expi- 
 ration of his sentence, should pay the penalty, after having been in prison for 
 some time, the recognizance must be entered into immediately on the payment 
 of the penalty, this being the expiration of his sentence ; and the warrant of 
 detention, consequent on his refusal to be so bound, should, it seems, be con- 
 tained in the warrant of commitment for the assault. It is doubtful whether 
 the convicted party can be ordered to find sureties for his good behaviour. 
 
 (ft) The Justices cannot refuse to grant this certificate, but it is not neces- 
 sary to draw it up unless applied for [Hancock v. Somes, 29 L. J. 196] ; and 
 the word " forthwith" means '« forthwith upon application." [Gostar v. Heth- 
 erington, 28 L. 0. 198.] The certificate can be granted in those oases only 
 where the complaint is dismissed upon the merits, i. e., after a hearing of tha 
 case ; the decisions in TunnecUffe v. Tedd, 12 J. P. 249, and Bradshaw v. 
 Vaughton, 25 J. P. 102, will therefore cease to be of any authority under tha 
 present statute. [25 J. P. 658.] This certificate cannot be granted unlesa 
 the complaint is preferred " by or on behalf of the party aggrieved." The 
 certificate will be a bar to an indictment for unlawfully wounding [ij. v. El- 
 rington, 31 L. J. U] ; but not to an indictment for manslaughter. [iJl v 
 Morris, 31 J. P. 616.] The certificate will not prevent Justices ordering "the 
 defendant to enter into a recognizance to keep the peace. [Ex parte Davis, 
 35 J. P. 551.] As to the assault charged in an indictment being the same as 
 that referred to iu the oertifloate, see B. v. Westley, 22 J. P. i87. 
 
i8o 
 
 Assault, 
 
 case he shall be released (a) from aU further or other proceed- 
 ings, civil or criminal, for the same cause. [Id. s. 45.] 
 
 19. Ouster op JuRisDicTioN.—In case the Justices should 
 find the assault or battery complained of to have been acQom- 
 panied by any attempt to commit felony, or be of opinion thau 
 the same is, from any other circumstance, a fit oubject for a 
 prosecution by indictment, they shall abstp.in from any adjudi- 
 cation thereupon, and shall deal with the case, in all respects, 
 in the same manner as if they had no authority finally to hear 
 and determine the same: Provided also, that nothing herein 
 contained shall authorize any Justice to hear and determine any 
 case of assault or battery in which any question shall arise as 
 to the title (b) to any lands, tenements, or hereditaments, or any 
 interest therein or accruing therefrom, or as to any insolvency or 
 any execution under the process of any courtof justice. [Id.aA6.] 
 
 20. Assaulting Clergymen, etc.— Whosoever shall, by 
 threats or force, obstruct or prevent, or endeavour to obstruct or 
 prevent any clergyman or other minister in or from celebrating 
 divine service, or otherwise officiating in any church, chapel, 
 meeting-house, or other place of divine worship, or in or from 
 the performance of his duty in the lawful burial of the dead in 
 any churchyard or other burial-place, or shall strike or offer any 
 violence to, or shall, upon any civil process, or under pretence 
 of executing any civil process, arrest any clergyman or other 
 
 (a) But if there be neither a dismissal with a certificate thereof, nor a 
 oonviction, but merely an order for the defendant to enter into his recogni- 
 zance to keep the peace and pay the costs thereof, no release can be pleaded. 
 [Hartley v. Hindniarsh, 35 L. J. 254. | Conviction, with payment of the fine, 
 is an answer to an action for injmies to business occasioned by the assault. 
 [Solomon v. Frinigan, 30 J. P. 756.] 
 
 r^^b) There must be some colour of titlo, the bare assertion of right being 
 insufficient to oust the jurisdiction of the Justices. (See cases under «' Ouster 
 OF Jdrisdiction," title " Practice," post, and pages 14 and 15 Manual.) 
 Justices cannot convict where the assault has arisen from any of the causes 
 mentioned in the proviso to the 46th section, aIthou<?h there may have been 
 excess of force or violence. [E. v. Pearson, 34 J. P. 582.] If the summary 
 jurisdiction is ousted, the Justices may commit for trial at the Supreme Court 
 or Quarter Sessions. 
 
 II^ISMb^ 
 
-r 
 
 >»-^ 
 
 v 
 
 \^^y 
 
 Assault. 
 
 i8r 
 
 minister who is engaged in, or to the knowledge of the offender 
 is about to engage in, any of the ritea or duties in thia section 
 aforesaid, or who to the knowledge of the offender shall be going 
 to perform the same, or returning from the performance thereof, 
 shall ba guilty of a misdemeanor. — Pun. impriaonment not ex- 
 ceeding two years. [Id. a. 36.] Indict, offence. 
 
 21. Assaulting Magistbate, eto., on account of Weeck. 
 
 Whosoever shall assault and strike or wound any magistrate, 
 officer, or other person whatsoever lawfully authorized, in or on 
 account of the exercise of his duty in or concerning the preser- 
 vation of any vessel in distress, or of any vessel, goods, or effects 
 wrecked, stranded, or cast on shore, or lying under water, shall 
 be guilty of a misdemeanor. — Pun. imprisonment not exceeding 
 two years. [Id. s. 87.] Indict, offence. 
 
 22. Assault with Intent to Commit Felony, or on Peace 
 Office^, v s,tc. — Whosoever shall assault any person with intent 
 to commit felony, or shall assault, resist, or wilfully obstruct any 
 peace officer in the due execution of his duty, or any person 
 acting in aid of such officer, or shall assault any person, with 
 intent to resist or prevent the lawful apprehension or detainer 
 of himself or of any other person f^r any offence, shall be guilty 
 of a misdemeanor. — Punishment under foregoing section not ex- 
 ceeding two year's imprisonment. — Indict, offence. 
 
 23. Whosoever shall be convicted upon an indictment for 
 any assault occasioning actual bodily harm. — Punishment im- 
 prisonment not exceeding one year. 
 
 24. Whosoever shall be convicted upon an indictment for 
 a common assault. — Punishment imprisonment not exceeding 
 one year. 
 
 25. Assault on any Constable. — Where any person is con- 
 victed of an assault on any constable when in the execution of hig 
 duty (ffl), such person shall be guilty of an offence against this Act, 
 
 (a) It is suflacient ia the case of all peace officers to prove that they acted 
 in that character, ■without producing their appointment iBerryman v. Wise 
 4 T. R. 366] ; and in Butler v. Ford, 1 C. & M. 622, the Court held that 
 proof of actiag was aaffioieat, although the ccofitable was appointed oader a 
 
Riot, 
 
 and shall in the disoretioii of the court, be Hable either to pay a 
 penalty not exceeding ninety-six dollars, and, in default of pay- 
 ment, to be imprisoned, with or without hard labor, for a term 
 noli exceeding si^ months, or to be imprisoned for any term not 
 exceeding six months, or ir case such person has been convicted 
 of a simUar assault within two years, nine months, with or with- 
 out hard labor. [34 & 35 Vict., c. 112, s. 12] (a). 
 
 26. EioT Defined.— A riot is a tumultuous disturbance of 
 the peace by thre?. or more persons assem^ xing together with an 
 intent to assist, each other in the execution of some enterprise 
 of a private nature, and afterwards actually executing the same 
 in a violerit and turbulent manner to the terror of the people, 
 whether the act intended were of itself lawful or unlawful. If' 
 after so assembling, they do not proceed to execute their purpose,* 
 it is an unlawful assembly only— if they proceed to execute the 
 act, but do not execute it, it is called a rout. The distinction 
 between a riot, rout, and unlawful assembly, has thus been 
 
 local Act. In B. v. Forbes and another, 10 Cox G. C. 382, the defendant was 
 convicted before the Eecorder of London for assaulting two police officers who 
 were in plain clothes, although the pMsoners contended that they did not know 
 that the men were constables. A person charged in the information with as- 
 eaulting a constable in the execution of his duty.cannot be convicted of a 
 common asBf>nlfc on the hearing of such information [R. v. Brickhall, 33 L. J 
 156 J ; but a fresh information may be laid. On an indictment for assaulting a 
 constable in the execution of i duty, it appeared that the assault was com- 
 mitted whilst the constable wa^ attempting to arrest the accused on suspicion 
 of having stolen trees under the value of one pound which the accused was 
 carrying-to show that the constable was justified in suspecting and arresting 
 the accused, the constable was allowed to be examined in chief as to the general 
 character of the accused, but not as to the ground of his suspicion. [R v 
 Tubcrjield, 11 L. T. 385.] ^ 
 
 (a) This section does not create the ofi^nce of assaulting a constable ; but 
 when any person is summarily convicted of an assault on a constable under 
 any of the several statutes relating to borough, county, special, or other con- 
 stables, then the penalty or imprisonment authorized by this section is substi- 
 tuted for the punishment imposed by any former statute. The right of appeal 
 given by any statute does not appear to be aflected The punishment for the 
 offence of " resiflting a constable iu the execution of his duty" is not altered 
 by this section. 
 
Riot, 
 
 183 
 
 stated :— A riot is a tumultuous meeting of persons who are 
 guilty of actual violence ; a rout where they endeavour to com- 
 nut an act which would make them riotous; and an unlawful 
 assembly where they meet with an intention to make a riot, but 
 neither carry their purpose into effect nor make any endeavours 
 towards it. [2 Ch. Crim. Law, 2nd ed. 481, notes citiv.g 8 Imt 
 176 ; Hawk, b, 2, c. 65, ss. 1, c, 9.] 
 
 It is laid down by Boothby. that any meeting whatever of 
 great numbers of people with such circumstances of terror as 
 cannot but endanger the public peace, or excite alarm amongst 
 persons of reasonable firmness and courage, is unlawful. The 
 jury should consider whether the circumstances are such as that 
 persons having families and property there, would have reason- 
 ^.ble ground to fear a breach of the peace ; and evidence was 
 held to be receivable from a suptrintendent of police, that per- 
 sons had complained to him of being alarmed by the meeting 
 which defendant had attended, and where violent speeches were 
 deUvered, and that it was not necessary to oaU the persons who 
 made the com^^l&int.— [Boothby's Syn., p. 885.]— But the exhi- 
 bition and demonstration of physical force, that is, the mere 
 display of numbers, without any evidence that such force was 
 used or threatened to be used, or without other circumstances 
 culculated to produce alarm, as, for instance, being armed with 
 bludgeons, &c., will not render a meeting illegal, provided the 
 object of such meeting be not in itself unlawful. [O'ContielVs 
 Case.] The persons engaged in an unlawful assembly, rout, 
 or not, may be required to enter into sureties to answer an in! 
 dictment for a misdemeanor, at the Quarter Sessions or Supreme 
 Court, and be punished on conviction by fine or imprisonment, or 
 both ; but if the offenders amount to twelve in number, and' do 
 not disperse after proclamation us hereinafter mentioned, it is 
 a felony. 
 
 27. Persons not Dispersing after Proclamation.— If f y 
 persons to the number of twelve or more, being unlawfully, 
 riotously, and tumultuously assembled together, to the distii- 
 bance of the public peace, and being required by any justice, 
 sheriff, mayor, baihff, &o., by proclamation in the King's name 
 
i84 
 
 Special CoiistahkSi 
 
 (in the exact form («) mentioned in the 2nd section, except tlifl 
 Bubstitution of the " Queen" for the " King," /?. v, C/iild, 4 C. 
 and P. 442), to disperse themselves, and peaceably depart, shall, 
 to the number, of twelve or more, unlar/fully, riotously, and 
 tumultously remain or continue together, for one hour after 
 such proclamation— F«/o??j/ [1 Geo. 1, stat. 2, c. 6, s. 1], and 
 n? ♦riable at the sessions. Opposing or obstructing by force ony 
 person making such proclamation ; and persons so being riot- 
 ously assembled, to the number of twelve or more, to whom 
 proclamation should have been made, if the same had not been 
 hindered, and not dispersing within one hour, having knowledge 
 of such hindrance— Fe/on?/ [1 Geo. 1, stat. 2, c. 5, s. 5], and 
 not triable at the sessions. 
 
 28. Apprehension of OFPili^DERs.-^Persons so assembledy 
 and not dispersing within one hour after proclamation, may be 
 seized by any justice, sheriff, mayor, peace officer, or other per- 
 son commanded by them respectively to assist, and forthwith 
 carried before a justice. [1 Geo. 1, stat. 2, c. 6, s. 8.] 
 
 29. EiOT OR Affray generally. — Persons guilty of a riot, 
 affray, or other disturbance of the public peace, may be appre- 
 hended at the time without a warrant, and convened before a 
 justice, who may bind them over to keep the peace, or commit 
 them for trial for a misdemeanor, 
 
 80. Whenever it shall be found that the ordinary constabu- 
 lary forc6 is insufficient to maintain the public peace of any 
 locality, any stipendiary Magistrate, or in his absence a Justice, 
 may call on and appoint such number of persons as may be 
 
 (a) The Justice of the Peace or other person authorized by this Act to 
 make the said proclamation, shall among the said rioters or as near to them 
 as he can safely come, with a loud voice command or canse to be commanded, 
 Bilence to be ■whilst proclamation is making, and after that shall openly and 
 with loud voice make, or cause to be made, proclamation in these words, or 
 like in eftect:— Our Sovereign Lady the Queen chargeth and comviandeth ail 
 persons being assemlled, imviediately to disperse themselves, and peaceably to 
 depart to their habitations or to their lawful business tipon the pains contained 
 in the Act made in the first year of King George, for preventing tumults and 
 riotout assemblies. God save ihb Queen; [1 Geo. 1 St. 2, c. 5, lec. 2.] 
 
special Constabieii 
 
 18 
 
 deemed necessary to act as fecial constables: in such locality j 
 and every stipendiary Magistrate or Justice may administer to 
 every person so appointed, the following oath : 
 
 31. I, , do swear that I will well and truly serve our 
 
 Sovereign Lady the Queen in the oiHce of special constable for 
 
 the district of , without favor or affection, malice or ill-will J 
 
 and that jl will, to the best of my power, cause the peace to be 
 kept and preserved, and prev3nt all offences against the persons 
 and properties of Her Majesty's subjects; and that I will dis- 
 charge the duties of my said office faithfully, according to law. 
 So help me God. Cap. 38, s. 7, Consol. Stat. 
 
 82. And if any person, being so called on or appointed a 
 sp'3cial cor)8t{?,bie, as aforesaid, shall refuse to take said oath 
 when required by the stipendiary Magistrate or Justice so ap- 
 pointing him, he shall be Hable to be convicted thereof forthwith^ 
 before the stipendiary Magistrate or Justice so requiring him, 
 and to forfeit and pay such sum of money, not exec jding twenty 
 dollars, as to said Magistrate or Justice may seem mtat, or im- 
 prisonment for a periofl not exceeding two calendar months. 
 
 83. Whenever it shall be deemed necessary to nominate 
 and appoint such special constables, notice of such nomination 
 and appointment, and of the circumstances which rendered such 
 nomination and appointment necessary, shall be forthwith 
 transmitted by the stipendiary Magistrate or Justice making 
 such appointment, to His Excellency the Governor in Council* 
 Idem., Sec. 8, 
 
 84. Any constable, in the execution of his duty, may call 
 upon any by-stander, in the Queen's name, to aid him in pre- 
 venting a breach of the peace, whenever a breach of the peace 
 is imminent, or to aid him in arresting and detaining in custody 
 any person who is riotous or disorderly, or is committing a 
 breach of the peace ; and if any by-stander shall refuse or neglect 
 to aid such constable when so called upon, he shall be deemed 
 guilty of a misdemeanor, and may be tried for such offence in a 
 summary manner before a stipendiary Magis 'rate, and, on con- 
 viction, may be fined a sum not exceeding ten dollars, or be 
 
 z 
 
i86 
 
 Special Constables. 
 
 imprisoned for a period not exceeding ten days. (89Vic..Cai» 12 
 Sec. 13.) > V'^^, 
 
 85. Military PoRci!:.-.If it should be found that the eivil 
 power is insufficient, the military may be called upon by the 
 Magistrates to act. It is scarcely necessary to observe, that 
 thfir active services should not be required unless it is evident 
 that the constabulary force is inadequate to maintain the peace. 
 It may, however, be expedient to request the military to hold 
 themselves in readiness, as the knowledge of such a step having 
 been taken by the Magistrates, will frequently prevent an out- 
 break, by convincing the parties of the power and determination 
 of the Magistrates to suppress any disturbance which may arise. 
 The officer in command requires a written application to be made' 
 for the aid of the military, in order that he may be enabled to 
 produce it at any future time as his protection against personal 
 responsibility. 
 
 86. Closing Public Houses.— By Section 24, License Act, 
 1876,— Any two Justices of the Peace, or any Stipendiary Ma- 
 gistrate, acting for any district or place where any riot or tumult 
 happens, or is expected to happen, or where any election may 
 be taking place, or is about to take place, may order every 
 Licensed Person, in or near the place where such riot or tumult 
 happens or is expected to happen, or where auch election is tak- 
 ing place or is about to take place, to dose his premises during 
 any time which the Justices or Magistrate may order; and any 
 Person who keeps open his premises for the sale of Intoxicating 
 Liquors during any time during which the Justices have ordered 
 them to be closed, shaU be subject to a penalty not exceeding 
 one hundred dollars ; and it shall be lawful for any person, act- 
 ing by order of any such Justices or Magistrate, to use such fore© 
 as may be necessary for the purpose of closing such premises. 
 
Magisterial Enquiries, 
 
 i8^ 
 
 CHAPTER XV. 
 
 MAGISTERIAL ENQUIRIES. 
 
 SSCTIONS 
 
 1. — OflSce of Coroner abolished. 
 
 2. — Reasons for its abolition. 
 
 8.— How enquiries into suiden deaths 
 should be conducted ; impor- 
 tanea of Magistrate's duties. 
 
 Sbctioms 
 4.— Powers of Magistrates in such 
 
 enquiries. 
 6. — Fees and expenses. 
 6. — Enquiries respecting Fires. 
 7. — Powers of Justices. 
 
 1. The Local Act 88 Vic, Gap. 8, Sec. 1, abolished the 
 office of Coroner and did away with Coroners' Juries ; and in the 
 second section it is provided that in place of a Coroner's Inquest 
 an enquiry respecting the death shall be held by a Stipendiary 
 Magistrate {a), who for that purpose has all the powers of a 
 Coroner. 
 
 2. The Coroner's Inquest was only a preliminary enquiry, 
 and for the pu'-poses of investigating into crime, it was found a 
 cumbersome, expensive and unsatisfactory machinery. In many 
 instances, after all the investigation had gone on before the 
 Coroner's Jury, the Depositions had to be taken over again before 
 a Magistrate ; it was, therefore, very wisely abolished. It was a 
 very ancient institution, and in its day had been of good service, 
 but for the detection of crime, a Magisterial enquiry, conducted, 
 when necessary, with secrecy, and with promptitude, is found 
 much more eli&cient and economical. 
 
 (a) The Magistrate cr>uld only investigate where there was some criminal 
 charge. The Coroner could hold an inquest in all the cases mentioned in the 
 4th section, even where there was not the smallest suspicion of crime. It is in 
 the interest of society that every sudden death should be investigated ; in the 
 majority of instances the causes of death is clear, and then the enquiry will 
 be a mere matter of form ; but sometimes there may be suspicJ-^'TS circum- 
 stances, and in those cases the Justice should use every precaution not to let 
 the suspected or guilty party escape. When the enquiry shapes itself into a 
 criminal charge, the Magistrate will proceed to take the depositions as for an 
 indictable ofienoe, as directed in Chapters 8 & 9. 
 
r. :• 
 
 i88 
 
 Magisterial Enquiries. 
 
 8. Enquiries into sudden deaths ai- amongst thomostdiffi. 
 cult and responsible duties a Magistrate has to perform, tley 
 (ire also uear'y always of an unpleasant nature. The investi- 
 gating Magistrato .should in all oases .oe the body of tl:e djce.ised ; 
 it is not absolutely necessary that he uhould hold his enquiry as' 
 the Coroner Wua bound to do, " in view of the body of de- 
 ceased, then and there lyin,, dead ;" but it is advisable m all cases 
 that ho should see the body, and in all caPes he should have tho 
 body identilisd. Sometimes these enquii-ies, even when they do 
 not involve a criminal charge, are of a very important pubho 
 nature; they may, as the TirjvesH enquu-y, or the recent Thunderer 
 enquiry m England did, involve tho question respecting the safety 
 of boilers, sometimes, as in the Mayaguezana enquiry, questions 
 of seamanship and the duties of pUots, questions as to the pro. 
 per working of mines, and a variety of ether questions may be 
 involved. In all auch cases the Magistrate is expected to con- 
 duct the enqmr> with mtelligence and discretion, and above 
 everythmg to act indeptntieutly, '« without fear, favor or affection" 
 towards any one. 
 
 4. " That, in all cases of persons slain, drowncU, suddenly dead, felo 
 de se, or dead in prison, or in cases where the Medical Atteiidaut on any 
 deceased person shall refuse to certify that such doceased person died 
 from natural causes, an enquiry respecting the death of such person shall 
 be held by a Stipendiary Aiagistrate ; and for that purpose, in addition to 
 aU other powers pcsessed by him as such Stipendiary Magistrate, ha 
 shall have and exercise all the powers, excepting the power of summon- 
 ing Junes, which now is or may hereaftev be vested in a Coroner under 
 the law of England ; and the proceedings in such enquiry, and all depo 
 Sitions connected therewith, shall be transmitted to the Attorney or 
 Solicitor General for such further proceedings as way be reqmred by 
 law." (o). 38 Vic, c. 8, sec, 2. >> i J 
 
 These powers include authority to summon and compel by 
 warrant the attendance of all necessary witnesses and the pro- 
 auction of all pape^-s, &c. To enter all places where the dead 
 bodies may be, and also, when necessary, to disinter the body. 
 
 (a) It is nearly always advisable for the Magistrate in forwarding the 
 depositions to write to the Attorney or Solicitor General fully on the subject. 
 
Magisterial Enquiries. i8q 
 
 5. The following fees sliall be allowed and paid ou such 
 enquiries, viz. : — 
 
 Fee for one medical \*itne8a ft5 00 
 
 Ev6r> neceasaiy post raorcem examination 6 00 
 
 E-rery necessary witness (each day's attendance) 75 
 
 And leasonablo expenses actually inonrred and authenticated by 
 proper accounts and vouchen,, The dovernment shall defray any further 
 rensonable and necessary charge that may be incurred in special cases, (a) 
 Idem. Sec. 3. 
 
 6. As the power of a Magistrate to hold an enquiry depends 
 upon a charge being made that some ^rson his either committed 
 or is suspected to have committed some offence, it was deemed 
 advisable to give Justices the power to hold an investigation into 
 the causes or origin of all hres , .he necessity for this power 
 arises from the fact that arson is essentiaUy a secret crime, near- 
 ly always very difficult to detect and always very difficult to 
 prove. On the grounds o^' pubhc safety, therefore, this extia 
 power has been conferred on Stipendiary Magistrates and Jus- 
 
 tices by Sec. 9, Consol. Stat. Cap. 18, as follows :— 
 
 7. Whenever any buUding or property shaU be injured or destroyed 
 hy fire, the Stipendiary Magistrate, or Jusuoe for the District in which 
 Buoh firo shall occur, or suoh Justice as the Governor in CouncU may 
 appoint therefor, shall make such investigation to ascertain the origin or 
 cause of the fire; and such Magistrate or Justice may enforce ihe atten- 
 dance of such persons to give evidence before him as he may require by 
 summons or warrant and examine them under oath, and the proceeding j 
 and all depositions cor.:iected therewith, shall be returned to the Attorney 
 General for suoh further proceedings as may be prescribed by law. (b) 
 
 (a) AH the vouchers should bo certified by the Magistrate holding the 
 enqmry ; he should not request the Doctor to hold a p,..t mortem examination 
 unless there IS an absolate necessity for it, and some important iuiormation 
 to be gamed by it. The Magistrate giv es the authority to hold the post mortem 
 
 (b) Should the investigation provo a prinu. facie case against any nersou 
 for arson, the irvestigatmg Magistrate should proceed as for an indictable 
 oHeuoe m '.he manner prescribed in Chapters 8 -ft 9. taking oare always to ao- 
 auamt thA Attorney General with his proceedings promptly. 
 
190 
 
 Intoxicating Liquors. 
 
 !f 
 
 CHAPTER XVI. 
 
 INTOXICATING LIQUORS. 
 
 Bbctions 
 1. — EfiFect and object of the Act. — 
 
 Construction. 
 2. — ^Penalty for 3ale without License. 
 3. — Licenses may be granted by Ma- 
 gistrates ; Proviso on refusal. 
 4. — Licenses Wholesale and Retail. 
 6.— Licenses— form of ; Proviso ; 
 
 Licensing days. 
 6. — Fees on Licenses. 
 7. — Payment of License ; Bonds. 
 8. — Occupier to be Licensed. 
 9.— Registry by Clerk of Peace or 
 Magistrate ; Licensed Persons 
 — list of. 
 10.— Wholesale License— less than 2 
 gallons not to be sold ; Not to 
 be drank on premises ; penalty. 
 11. — Name of Licensed party, «fec., to 
 be painted over outer door ; pen- 
 alty for non-compliance. 
 12._Penalty for exhibiting signs, &o., 
 
 by Persons not Licensed. 
 13, — Penalty for adulteration. 
 14. — Penalty for possession of adulte- 
 rations. 
 15. — Penalty in case of Persons un- 
 der 16. 
 16.— Habitual drunkards— Magistrate 
 may prohibit sale to ; Penalty 
 for supplying after notice. 
 J 7. — Sale or pawn of Gcods for Li- 
 quor ; Restitution and Penalty. 
 18. — Recovery or set-oft for Liquor ; 
 
 Securities for, void. 
 19. — Close of Licensed houseu ; Pen- 
 alty for noQ-coin"liftQC6= I 
 
 Sections 
 
 20. — Penalty for presence on premises 
 after hours. 
 
 21. — Penalty for games, disorderly 
 conduct, sale to drunken Per- 
 sons, &o. 
 
 22.— Harboring Constables— penalty 
 for. 
 
 23. — Power" of Person licensed ; pen- 
 alty for refusal to quit. 
 
 24. — Power of Justices to close houses ; 
 Penalty. 
 
 25. — Constables to visit Unlicensed 
 houses ; Penalty for interrap- 
 tion. 
 
 26. — Penalty for oSences against Act 
 not specified. 
 
 27. — License may be granted for short 
 periods. 
 
 28. — Prosecutions to be commenced 
 within 6 mouths; Triable under 
 11 and 12 Vic, Cap. 43, Im- 
 prisonment. 
 
 29. — Nature of proof required. 
 
 30. — Use of bottles, (fee, or Persons 
 drinking or drunk, sufficient 
 prima facie case. 
 
 31. — Burden of proof ; Judgment may 
 go notwithstanding variance ; 
 Proviso for surprise. 
 
 32.— Act of wife, &o., presumptively 
 act of husband, &o. 
 
 33. — Appeal. 
 
 34. — Conviction not to be quashed for 
 
 want of form. 
 35.— Licenses may be forfeited. 
 
 3(3. Tjjo,|jji|fxr nf »in.rrvoi1 WOlUQn &Q* 
 
Intoxicating Liquors, 
 
 191 
 
 87- — Appropriation of finea, 
 
 88.— Repeal. 
 
 89.— License Act, 1876, 
 
 40.— Rules made by Magistrates, St. 
 
 John's. 
 41.— Form of Wholesale Lioo . 
 42.— Form of Retail License. 
 
 Sections 
 
 43.— Form of Bond— RetaU License. 
 
 44.- Form of Complaint. 
 
 45. — Summona. 
 
 46. — Conviction. 
 
 47.— Notice of Appeal. 
 
 48. — Bond in Appeal. 
 
 1. The Act 88th Vzctoria. cap. G, cited in all proceedings a. 
 "License Act, 1876/' consolidates the k^ on the sub^'^ of 
 granting hcenses for the sale of intoxicating liquors, Repeals 
 cap 60 Copsol. Statutes, " Of Licenses for the sale of Intox- 
 icating Liquors," and makes great amendments in the old law 
 One most important amendment is as regards the proof required 
 to convict a person of selling without license; the old law not 
 only required proof of consumption but also evidence that money 
 actually passed ; the whole burtiien of proof was thus thrown 
 on the prosecutor, and the effect was, that except in very fla. 
 grant cases, the guilty escaped. The new law (sec. 80) provides 
 that the possession of bottles, &c., usuaUy employed for hold- 
 mg hquor recently used, or the presence of persons drinking or 
 drunk, Bhall be prima facie evidence of seUing without a hcense. 
 Sec. 29. Tliere is no necessity for proof of money having pas- 
 Bed or that hquor was actually consumed ; all that is required 
 18 that there shaU be evidence to satisfy the Magistrate that a. 
 transaction in the nature of a sale took place. This great change 
 in the law would, at first sight, appear to be very harsh and 
 unfair, but it must be borne in mind that where liquor is sold 
 without Hcense it is always sold in secret and in what are com- 
 monly known as - shebeen" shops ; that many tricks and devi- 
 ces are adopted to evade the law, and that if the license law ia 
 not to be a mockery, exclusive and peculiar powers must be 
 given vo Magistrates and Constables, in order that they may deal 
 effectively with unlicensed houses, which produce very great 
 mjschief. The present law treats the sale of Hquors as a nox- 
 lous traffic, that for the sake of public morality must be kept 
 
 xiie mam ulbjects of the Act are 
 
 Wif Min flip d+t.i/»4-/»oJ- V,^, — J_ 
 
ig^ 
 
 Intoxicating LiquoH^ 
 
 Wo-folcl ; first, to regulate the sale iu licensed Louses ; secondly j 
 to prevent, by all means, unlicensed persons from selling. Even 
 with the extensive powers given by this Act, the shebeen shop 
 still flourishes. The carrying out of this law justly, vigorously 
 and impartially, is cue of the Magistrate's most important duties, 
 and one in which he renders the most valuable services to the 
 inora^ welfare of the community in which he resides. The first 
 section of the Act provides that, — 
 
 " Intoxicating liquors, in iuis Act and the Schedules thereto, shall be 
 construed to signify ale, wines, malt and spiiltuous liquors of every kind.'* 
 
 2. No intoxicating liquor shall be sold unless by license, 
 under a penalty of not less than ten dollars, nor more tlian one 
 hundred dollars, for every offence. («) 
 
 8. Licenses may be granted by the Stipendiary Magistrates 
 to such Persons resident within their jur ^diction as shall be 
 approved of by them. Provided, that where a license is refused 
 by such Magistrates, the Governor in Council, on good and suf- 
 ficient reasons being shewn, may order the said license to be 
 granted. The said Magistrates may make rules respecting the 
 application for and the terms and modes of granting license" in 
 accordance with the provisions of this Act, subject to the ap- 
 proval of the Gov>"!rnor in Council, {h) 
 
 4. Licenses shall be of two kinds, wholesale licenses and 
 retai^ "".enses. 
 
 6. All licenses shall be in the forfias in Schedule A, and 
 shall be held on the terms and conditions in such forms men- 
 tioned, and shall continue for one year from the date thereof. 
 Provided, that whenever, by rules made under the third section 
 of this Act, the Magistrate shall fix a certain day or days in the 
 year for the granting of license, the licensing Magistrate may, in 
 the case of any licenses existing at the time of the making of 
 such rules and expiring before any of the said licensing days, 
 grant to the holder thereof a license, to continue and be in force 
 
 (rt) The summons for selling without a license should state a breach of 
 this section. 
 
 (&) A copy of the rules adopted in St. John's, and which are found to 
 
 ••ffnvlr wpll. IK DTivAn in Bfifi. 40. 
 
Intoxicating Liquors. 
 
 ^93 
 
 till the next regular licensing day, at a charge in proportion to 
 the annual charge for such license, and subject in all other re- 
 spects to the provisions of this Act in relation to annual licenses. 
 
 6. The charge for such Hcenses shull be a.3 follows : — For 
 the wholesale license, one hundred dollars ; for wholesale license 
 to sell malt liquors only, fifty dollars ; retail licenses not more 
 than seventy dollars nor less than ten dollars. The amount 
 shall be in the discretion of the Magistrates granting such retail 
 licenses, and be regulated by them according to the situation of 
 the licensed premises and their annual value for the purposes of 
 such licenses, (a) 
 
 7. Every person to whom a retail license shall be granted, 
 shall, before receiving the same, pay the license money for one 
 year, and all persons applymg for retail licenses shall, before 
 obtaining such licenses., enter into a bond with two approved 
 sureties in the form in Schedule B, which bond shall be pre- 
 pared by the Clerk of the Peace, or by the Magistrate where 
 there shall be no Clerk of the Peace, and when executed sh£.ll 
 be filed by the said Clerk of the Peace or Magistrate. 
 
 8. No retail license shall be granted to any one but the 
 occupier of the premises on which the said intoxicating Hquors 
 shall be sold, exposed or offered for sale ; but in case of the 
 death or insohency of the person hcensed, a Magistrate may 
 make such order thereon as shall suit the circumstances of such 
 case, (b) 
 
 9. The Clerk of the Peace in every District, and where there 
 is no Clerk of the Peace, the Magistrate, shall register in a book 
 a list of licensf^ with the dates thereof, the names, additions, 
 a-id residences of the parties licensed, and a memorandum of 
 the houses or shops for which the licenses are granted, and of 
 the bonds taken, and the license money, and fines, and penal- 
 
 (o) The amonnt should be regulated 1 the business done or likely to bo 
 done in selling liquor, 
 
 (b) In carrying out this section, Magistrates will be guided by the same 
 consideration, as to the fitness and respectability of the person, as in granting 
 a license. 
 
 kl 
 
194 
 
 Infoxicntf}!^^ Liqiion. 
 
 ties paid : and shall make returns embracing the foregoing par- 
 ticulars, at the end of each quarter, to the Eeeeiver General^ 
 and pay to hnn the amounts collected, less the commission to 
 be allowed on the license money, under a penalty of not exceed- 
 ing one hundred dollars ; and the list of persons so licensed, 
 with their places of residence, shall be published half-yearly in 
 the Rmjal Gazette. 
 
 10. No person, holding a wholesale Heenae, shall sell, bar- 
 ter, or exchange, less than two gallons of intoxicating Hquors at 
 any one time, and no part of such intoxicating liquors shall be 
 drunk on the premises where the same shall have been sold ; and 
 any person who shall violate the conditions of his said wholesale 
 license, or the provisions of this Act, in respect of such whole- 
 sale license, shall forfeit and pay a sum not exceeding one hun- 
 dred dollars, with the costs, to be recovered and appropriated as 
 hereinafter mentioned. 
 
 11. jEvery person holding a retail license shall, within ten 
 days after obtaining the same, cause to be painted in letters, 
 publicly visible and legible, upon a board to be placed over the 
 outer door of the house or premises in which the said intoxicating 
 liquors are sold by retail, the christian and surname of the per- 
 son mentioned in such hcense, at full length, together with the 
 words " Licensed to sell Ale, Wines, and Spirituous Liquors ;" 
 and such person shall preserve and keep up such name and words 
 so painted, as aforesaid, during ail the time that sach person shall 
 continue so licensed ; and every person in any respect making de- 
 fault herein, shall forfeit and pay for every offence a sum not 
 exceeding twenty-five dollars, and the neglpct to do so, for every 
 ten days after every conviction, shall be deemed a fresh offence. 
 
 12. If any person without a retail Hcense shall keep up or 
 exhibit, in, about, or near any house, outhouse or building, any 
 sign-board or sign containing any words, or shall show any em- 
 blem or sign used or intended or calculated to intimate that any 
 intoxicating liquors are for sale, barter, or traffic therein, or on 
 the premises, the owner or occupier thereof knowingly or wil- 
 fully offending herein, shall be subject to a fine not exceeding 
 Sfty doilfirs. 
 
Intoxicating Liquors. 195 
 
 13. Every person who mires, or causes to be mixed, with 
 any intoxicating liquor, sold or exposed for sale by liim, any 
 deleterious or noxious ingredient, and every person who know- 
 ingly sells, keeps or exposes for sale any intoxicating liquor 
 mixed with any such deleterious or noxious ingredient, shall, on 
 conviction fo.- a first offence ^nder this section, be subject to a 
 fine not exceeding eighty dollars, or imprisonment not exceeding 
 thirty days, with or witliout hard labor, and the forfeiture of all 
 adulterated liquor in Iiis possession and of his license, and such 
 person shall thereafter be incapable of again holding a license. 
 
 14. Any person having possession of any adulterated liquors 
 or deleterious ingredient, unless be can account for the posses- 
 Bion of the same to the satisfaction of the Justices, shall be 
 deemed knowingly to have exposed the same for sale, and the 
 Inspector of Police, or other Policeman, authonz.ed in writing 
 by a Stipendiary Magistrate, may procure samples of liquor on 
 payment or tender of their value, and have the same analyzed. 
 
 15. Any holder of a retail license v^ho shall permit any in- 
 toxicating liquors to be drunk on his premises by any person 
 apparently under tne age of sixteen years, shall be liable to a 
 penalty not exceeding fifty dollars, (a) 
 
 16. When it shall be proved on oath, to the satisfaction of 
 any Stipendiary Magistrate, that any person is an habitual 
 drunkard or is injuring his health by excessive drinking, or ne- 
 glecting his family, it shall be lawfui for the said Magistrate to 
 cause a written or printed notice to be given to all Licensed pub- 
 licans within his jurisdiction, prohibiting all such persons from 
 supplying such habitual drunkard with any intoxicating liquor 
 
 (a) The burtheu of proof that a child apparently uuder sixteen is really 
 a'oove that age will lie ou the defendant. Stone 228. 
 
 Note to Sec. 16.— A notice under this section may be given in the follow- 
 ing form : 
 
 Northern District, ) Newfoundland. 
 
 Island Cove. j 
 
 To Licensed Publican, at in the said District. 
 Whereas it has been proved on oath to uiy satisfaolion, <hat of 
 Fisherman, is au habitual drunkard (or in Unwrin" ht^ t'ea'th hi- /.-,..-.;,.« 
 
ig6 
 
 Intoxicating Liquors. 
 
 for any term not exceeding two years ; and if any person shall, 
 after the receipt of such notice, supply such habitual drunkard 
 •with any intoxicating liquor, the person who so supplies shall 
 be liable to a penalty not exceeding one hundred dollars or im- 
 prisonment for a period not exceeding thirty days. 
 
 17. If any person holding a hcense shall purchase from 
 any person any wearing apparel, tools, implements of trade or 
 husbandry, fishing gear, household goods, or furniture, made up, 
 either by way of sale or barter, directly or inlirectly, for intoxi- 
 cating Liquor, (a) or shall receive from any person any goods in 
 pawn, any Stipendiary Magistrate, on sufficient proof on oath 
 being made before him of the facts, may issue his warrant for 
 the restitution of all such property, and for the payment of 
 costs : and in default thereof, the warrant shall contain directions 
 for levy and sale of the offender's goods for the amount of such 
 property so pawned, sold or bartered, and the offender shall also 
 be liable to a penalty not exceeding ten dollars. 
 
 18. No person shall recover, or be allowed to set off, any 
 charge for intoxicating liquor in any quantity less than one gal- 
 Ion delivered at one and the same time ; and all specialities, 
 bills, notes or agreements, given in whole or in part to secure 
 such charge, shall be void as respecis such charges. 
 
 19. All licensed houses shall be absolutely closed, and no 
 business whatever done therein, and no intoxicating liquor de- 
 livered or consumed, between the hours of ten, p. m., and six, 
 
 drinJdng, or is neglecting Ms family, as the case may be.) I therefore pro- 
 
 hibit you from supplying said with any intoxicating liquor for the term 
 
 of under a penalty no« exceeding $100, or imprisonment not excp«^fling 
 
 30 days. 
 
 June , 187 . 
 
 T. Wills, 
 
 Stipendiary Magistrate for the said District. 
 
 On the trial of any^person who after this notice solfs to the habitual 
 drunkard, the notice and service should be proved, and if the accused is ccu- 
 victed, the fine should be heavy unless there are mitigating circumstances. 
 
 (a) Requiring the purchaser to give up all the clothing, and lose payment 
 for the liquor sold, will, in general, be sufiicient punishment, only in bad cases 
 a fine should be inflicted. 
 
Intoxicating Liquors. 
 
 197 
 
 &. m., from the first day of April to the thirty-first day of De- 
 cembor, both iaclusivo ; and between the hoars of nine p. m., 
 and seven, a. m., from the first day of January to the thirty-first 
 day of March, both inclusive. No intoxicatiuf liquor whatever 
 shrtll be sold, delivered, or consumed, in any licensed premises 
 on Sunday, Christmas Day, or Good Friday, under a penalty 
 not exceeding forty dollars for the first offence, and not exceed- 
 ing eighty dollars for any subsequent offence. 
 
 20. If, during any period in which any licensed premises 
 are required to be closed, under the provisions of this Act, any 
 person is found on such premises, he shall, unless he satisfies 
 the Court or Justice that he was an inmate, servant or lodger 
 in such premises, or that his presence there was not in con- 
 travention of this Act, be subject to a fine not exceeding ten 
 dollars. 
 
 21. If any person, licensed under this Act, permits drunk- 
 ■mness, or any violent, quarrelsome, riotous, or disorderly con- 
 duct, to take place on his premises, or sells or delivers intoxicat- 
 ing Uquor to any drunken person, or permits any drunken 
 person to consume any intoxicating liquor on his premises (a), 
 or permits and suffers persons of notoriously bad character to 
 assemble or meet on his premises, or suffers any gaming or any 
 unlawful game to be carried on in his premises (b), he shall be 
 subject to a penalty not exceeding forty dollars. 
 
 22. If any licensed person knowingly harbors, or knowingly 
 suffers to remain on his premises, any constable during any pa ;t 
 of the time appointed for such constable to be on duty, unless 
 for the purpose of keeping or restoring order, or in execution of 
 iiis duties, or supplies any liquor or refreshment whatever, by 
 v^ay of gift or sale, to any constable on duty, unless by authority 
 of some superior ofiicer of such constable, or bribes, or attempts 
 to bribe any constable, he shall be subject ^0 a penalty not 
 
 (a) Selling liquor to a dninkon person or permitting him to consume 
 liquor on the premises are offanoos which, when proved, should be punished 
 severely. 
 
 (b) Playing cards for monoy or moneys worth is gaming. 
 
igS 
 
 Intoxicating Liquors. 
 
 exceeding eighty dollars. (It' is an offence to allow a constable to 
 remain on the premises though no liquor is supplied to him.) 
 
 23. Any licensed person may refuse to admit to, and may 
 turn out of, the premises in respect of which his hcense is grant- 
 ed, 9ny person Who is drunken, violent, quarrelsome, or disor- 
 derly, and any person whose presence on his premises would 
 subject him to a penalty under this Act ; and any such person 
 who, upon being requested, in pursuance of this section, by sucii 
 licensed person, or his agent, or servant, or any constable, to 
 quit such premises, refuses or fails to do so, shall be subject to 
 a penalty not exceeding twenty dollars— and all constables are 
 required, on demand of such Hcensed person, his agent, or ser- 
 vant, to expel or assist in expelling every such person from such 
 premises, and may use such force as may be required for that 
 purpose. 
 
 24. Closmg Hcensed houses at elections, &c. This section 
 will be found at p. 186. 
 
 25. All constables or poHcemen, within their respective 
 disf cts, may, at such times as they may think fit, visit all un- 
 licensed houses where there shall be reasonable grounds to sus- 
 pect intoxicating liquors are sold, also the shops and pubHc 
 rooms of persons holding hcenses, to see that the several pro- 
 visions of this Act are complied with ; and they are hereby re- 
 quired and commanded to prosecute all offenders under this 
 Act, under pain of being dismissed from their respective offices, 
 or of being fined a sum not exceeding fifty dollars ; and in case 
 any person or persons, keeping licensed or unHcensed public 
 houses or shops, or public rooms, or any persons being in or 
 about such shops, rooms, hcensed or unHcensed pubHo houses, 
 at the time any constable or policeman may be visiting the 
 same, shall interrupt or assault such constable while in the 
 execution of the provisions of this Act, or shall refuse or fail 
 to admit such constable demanding to enter in pursuance of this 
 section into any premises or place occupied by or under control 
 of such licensed or unlicensed person, or who, having admitted 
 such constable, refuses or fails to allow him to take an account 
 of any intoxicating liquor Tound therein, or to furnish him with 
 
tnioxuaiiucr liquors. tgg 
 
 such light or assistance as he may raquire, shall be subject to a 
 penalty not exceeding forty dollars. 
 
 26. If any person, holding a retail license, shall be guilty 
 of a violation of any of the provisions of this Act, or of the 
 terms or conditions of his license for which a penalty or punish- 
 ment is not herein provided, he shall be liable to a penalty, for 
 every offence, not exceeding twsnty-five dollars. 
 
 27.— Whenever a Stipendiary Magistrate may deem it ex- 
 pedient, he may grant a retail license to any person to sell 
 intoxicating liquors for a period not exceeding six cousecu ,."-, 
 days, and upon such terms as regards payment and hours J 
 closing as the said Magistrate may specify in the said hcense. 
 The tent, booth, room, or other place where such intoxicating 
 liquor shaU be sold under such license, shall be deemed to be a 
 licensed premises, wi4iin the meaning of this Act, and the person 
 so temporarily licensed, shall be subject in all respects, except 
 as to the amount of license fee and hours of closing, to the pro- 
 visions of this Act. 
 
 Legal Procedure. 
 
 28. All prosecutions under this Act for penalties, fines- or 
 forfeitures, shall be commenced within six calendar months after 
 the same shall have been incurred, and shall and m.ay be recov- 
 ered upon view by a Justice of the Peace (a), or upon the com- 
 plaint in writing of any person who may inform and sue for the 
 same (6); and all such cases shall be tried according to the 
 practice of Justices in summary cases under the Imperial Act 
 11 and 12 Victoria, Chapter 48, except as provided fur in this 
 Act, with the same powers of adjudicating in cases of default, 
 and of compelHng the attendance of witnesses, and also a power 
 of distrass and sale of the goods and chattels of all persona 
 convicted under this Act ; and if such penaJties are not paid 
 immediately, such persons so convicted may be committed by 
 
 (a) See p. 150, as to moae of proceeding for conviction on view. 
 (6) The complaint need not be on oath but must be in writing : Bsnall? 
 the poiicemau 13 the informer aad prosecutor. 
 
2001 
 
 hltoxicaiirig Liqiiors. 
 
 the convicting Justice to tlie nearest gaol for a period not ex- 
 ceeding thirty days. («) 
 
 29. In proving {b) the sale or consumption of intoxicating 
 liquor for the purpose of any proceeding relative to any offence 
 under this Act, it shall not bc necespary to show that any money 
 actually passed, or any intoxicating liquor was actually con- 
 sumed, if the court, hearing the case, be satisfied that a trans- 
 action in the nature of a sale actually took place, or that any 
 consumption of intoxicating liquor was about to take place ; and 
 proof of consumption, or intended consumption, of intoxicating 
 liquor on premises to which a liceiise under this Act is attached, 
 by some person other than the occupier of, or a servant in, such 
 premises, shalil be evidence that stich liquor was sold to the per- 
 son consuming, or teing about to consume, or carrying away 
 the same, by or on behalf of tbe holder of such license. 
 
 80. Upon the trial (c) of any person for selling intoxicating 
 liquor without a hcense, if it shall be proved that bottles, or 
 decanters, or tumblers, or glasses, or other vessels which are 
 usually employed for holdi -g and using intoxicating hquor, were 
 found in and upon the premises of such accused person, and 
 had been recently used, or thai persons were found drinking or 
 drunk on the said premises, this shall be deemed sufficient 
 prima facie evidence of violation of the second section of this 
 
 (a) All the powers given td Justices by 11 & I2 Vic, C. 43, (see Summary 
 Jurisdiction), may be exercised in carrying out this Act. On the non-payment 
 of the fine, a distress Vf arrant may issue, when under $24 the S. P. applies 
 and imprisonment may follow non-payment without a distress warrant, and 
 when the judgment is that the fine be paid immediately, and it is not paid 
 Immediately, then the defendant i!nay be committed to jail without issuing a 
 distress warrant — this latter portion of the section giving this express power. 
 The proportion of imprisonment should correspond with the 'amount of the 
 fine. In St. John's we generally make the dollars and days correspond, for 
 instance, fine, $10 ; imprisonment, 10 days; Persons should never be im- 
 prisoned under this Act, unless there is no other means of punishing them, 
 and the case is a flagrant one. 
 
 (b) To justify a conviction, there must be suflBcient evidence to satisfy 
 the Justice's mind that there was a violation of the License Law. 
 
 (c) The mode of conducting the case will be as stated in Note a, 148. 
 
I 
 
 Intoxicating Liquors. 
 
 201 
 
 Act, and to cause such accused person to account for the pur- 
 poses for which such articles were on his premises, and to re- 
 quire him to cstabhsh his innocence by proof. {The defen- 
 dant may give evidence if he chooses ; he cannot be compelled to 
 do so.) 
 
 81. In any proceeding instituted for a breach of the provi- 
 sions of this Act, the defendant, if claiming any exemption, 
 exception, proviso, excuse oi- quahficatioi , may set up the same 
 as a defence, in which case the burden of proof shall be thrown 
 on such defendant, and it shall not be necessary in the summons 
 to specify the particular kind of hquor sold, nor to whom, nor 
 the time when sold ; but it shall be sufficient in the summons to 
 charge the party accused with the breach of some section of this 
 Act, and no judgment shall be withheld on account of variance 
 between proof and summons, if it appears to the satisfaction of 
 the Magistrate or Court that the defendant was aware of the 
 real cause of complaint; but if the defendant make a.'fidavit 
 that he has been taken by surprir >, the Magistrate or Court may 
 grant him further time to make a full defence on the merits,' and 
 no judgment shall be set aside for any variance, or from any 
 formal objection. 
 
 83. Any sale of intoxicating liquor made on the premises 
 of any person by the wife, child or servant of such person, shall 
 be considered presumptively as the act of fl^q husband, parent, 
 or master, and shall be punished in the same way as if such 
 sale had been made by such husband, parent, or master, in 
 person. 
 
 83. All persons convicted under this Act, who shall think 
 themselves aggrieved by such conviction, may appeal {n) against 
 the same to the next Court of Quarter Sessions of the Peace 
 holden in or nearest to the place where such conviction shall 
 have been made : Provided that such person shall give, to the 
 convicting Justice, notice in writing cf his intention to appeal, 
 and of the cause and matter thereof, withm five days next after 
 such conviction ; and shall also, within such five days enter 
 
 (a) See r". 130, as to Low such appeals aLouId be conducted. 
 B B 
 
) 
 
 202 
 
 Jntoxicciing Liquors. 
 
 into recognizance, T»ith two approved sureties, before the Jnstic© 
 BO convicting, conditior^ai to appear at such session and try such 
 appeal, and to abide the judgment of the Court thereon, and to 
 pay such costs as by the Court shall be awarded ; and the judg- 
 ment of the said Court sh^U be final and binding to all intents 
 and purposes. 
 
 84. No conviocion or order shall be quashed for want of 
 form, and no warrant of commitment shall bo held void by rea- 
 son of any defect therein, provided that therr is a vaJid convic- 
 tion to maintain such warrant, and it is alleged in the warrant 
 that the party has been convicted, {a) 
 
 85. In all cases where a person is convicted of a breach of 
 the provisions of this Act, the Justiv 9 before whom such convic- 
 tion is had, may, in addition to or in substitution for any penalty, 
 declare the license of every such person so convicted to be for- 
 feited. {This valuable provision sliould seldom be put in force for 
 a first offence. The defendant should be named that he will lose 
 his license for a second conviction.) 
 
 86. Married women and servants concerned in any breach 
 of the provisions of tbjs Act, shall be liable for the penalty 
 thereto attaching, as if they were unmarried women or princi- 
 pals, but the husband or master of the person so offending shall 
 not be habie to be also sued for the same offence ; but in the 
 case of married women, distress may issue against the property 
 of the husband. 
 
 87. Every fine and penalty, recoverable undev this Act, 
 shall be appropriated in the following manner : one-half to the 
 Informer, and the other half to the Eeceiver Geneial for the use 
 of the Colony. 
 
 38. The Fiftieth Ohapter of TiLe Fourteen, of the Con- 
 solidated Statutes, entitled " Of Licenses for the Sale of intoxi- 
 cating Liquors," is hereby repealed. 
 
 89, This Act may Id cited for all purposes as the " License 
 Act, 1875." 
 
 (a) A case may be stated for the opinion of the Supreme Court. 
 Chap. 5, p. 25. 
 
 Se» 
 
In*oxicatinf^ Liquors. 
 
 203 
 
 40. Rules made by the Stipendiary ^'ngixtrMes for the Central Dis- 
 trict, respectinij the application fot, atul the times and modes of granting, 
 Licenses for the sale of Intoxicatinn Liquor, under the provisions of ih» 
 Third Section of the " License Act, 1875." 
 
 1. — Licenses Bhall be granted only during the first seven days iu 
 Aptil and October, in each year, of which du, notice shall be given in the 
 Royal Gazette and one other local newspaper, and ail che aid licenses 
 shall be made to terminate on the first days of May a ad November iu 
 each year. 
 
 2._The Clerk of the Peace in the Centtal District, shall, on or be- 
 fore the 16th day of March and the I5th day of f",. "^tember in each yehr. 
 publish in the Royal Gazette a list of all licenses which will expire on the 
 next first day of May or November. 
 
 3. — All applications for retail licenses shall be in writing, and in 
 such application the name, occupation and residence of the applicant shall 
 be stated, also a particular description of the premised for whi u h license 
 is applied for, and the names of the persons who are proposed as hia 
 securities. 
 
 4. — Applicants for now retail licenses rhali make their applications 
 to the Clerk of the Peace for the Central District, ^rior to the fifteenth 
 day oi September and the fifteenth day of March in each year ; and the 
 list jf such applisants shall be affixed to the Court House door, for two 
 weeks prior to the firat daya 01 October and April in each year. 
 
 6. — All paHies who have an^r objections to make against the gi'anting 
 of any retail iicense may attend before Magistrates and state their objec- 
 tions on the said Erst weeks in April and October. 
 
 St. John's, May 10, 1875. 
 
 FORMS. 
 
 SCHEDULE A. 
 41. Form of Wholesale License. — 
 
 Newfoundland, I 
 District, S. S. j 
 
 License is hereby granted to of , in the District of , to 
 
 sell intoxicating liquors or malt liqujrs, as the case may b-^, iu quantities 
 
204 
 
 Intoxicating Liquors. 
 
 . 
 
 
 not less than two gallons, but no part thereof shaU be consumed on the 
 premises. This license to remain in force until the day of , A.D. 
 18 , and to be held on the terras and conditions contained in the Licens^ 
 Act 1875, or other Acts which shall be in force during the continuance 
 of this license, respecting such Avholesale licenses for the sale of ale, 
 wines, and spirituous or malt liquors. 
 
 Given under our hands (or my hand), this . 
 day of , A. I). 18 . 
 
 A. B., Stipendiary ^'^agistrate, 
 
 C. D., Stipendiary Magistrate, 
 
 for the District. 
 
 Received from the said the sum of dollars, being the amount 
 
 due for such wholesale license for one year, from the day of AD 
 18 , to day of , A. D. 18 . 
 
 Dated day of , A. D. 18 . 
 
 E. F. CClerk of the Peace, or J. P.) 
 42. Form of Retail License.— 
 Newfoundland, I 
 District, \ 
 
 By virtue of the powers vested in us (or in me), under the License 
 Act 1875, we, two (or I, one) of IJer Majesty's Stipendiary Magistrates 
 for the said District, do hereby license of , in the said District, 
 to sell by retail in the premises now occupied by the said , situate at 
 (here describe particularly the situation of the premises), and not else- 
 where, ale, wines, spirituous and malt liquors, for the period of one year 
 from the date thereof ; subject, in all respects, to the provisions of the 
 said License Act, 1875, or any License Act to be passed during the con- 
 tinuance of this License, and all rules and regulations made tliereunder. 
 
 Given under our hands (or my hand), at , 
 in the said District, this day of 
 A.D. 18 . * 
 
 A. 13., Stipendiary Magistrate, 
 
 for District. 
 C. D., Stipen.'ary Magistrate, 
 
 for District. 
 Received from the said the sum of dollars, being iJie Uceuse 
 money for the above retail license for one year from this date, 
 
 E. F., Clerk of the Peace, 
 
 for District, 
 or J. P., for District. 
 
Intoxicating Liquors. 
 
 205 
 
 SCHEDULE B. 
 43. Bond. 
 
 Newfoundland. 
 
 Know all men by these presents, that we are held and firmly 
 bound unto our Sovereign Lady Queen Victoria, Her Heirs and Succe*. 
 sors, in the sura of two hundred dollars, for which payment we jointly 
 and severally bind ourseWes, our executors and administrators, firmly by 
 these presents. In witness whereof we have hereunto set our hands and 
 seals, the day of , Anno Domini eighteen hundred and seventy- 
 
 . Wheraas, the above boundea hath applied for and obtained a 
 license for the sale by retail of ale, wines, and spirituous liquors, in the 
 house kept by him, aituate . Now the condition of this obligation 
 is such, that if the said nhaU, during all the time that he may hold 
 any retail license to be granted to him, pay all fines and aU penalties 
 which he may be oondemner' to pay for any offence against the law re- 
 lative to the granting of licenses for the sale of wines, spirituous or malt 
 liquors, and also shall at all times well and truly observe and comply 
 with all and singular the provisions of any Act or Aces of the Legis- 
 lature, which now are, or which may hereafter be, passed during the 
 continuance of the license as aforesaid granted to the said for re- 
 gulating the sale by retail of ale, wines, and spirituous liquors afore- 
 said ; and shall also well and truly observe all rules and regulations 
 made, or to be made, by the Magistrates under the provisions of the 
 said Act or Acts, and shaU further comply with the several conditions 
 contaiiKid m the certificate of license granted to the said , then 
 
 and in such cast, the foregoing obligation shall be void, otherw'ise to 
 remain in full force and effect. 
 
 Signed, sealed and delivered J 
 in presence of j 
 
 44. Form of Complaint. — 
 
 • I istrict, 
 ■ to wit. 
 
 Newfoundland. 
 
 Be it remembered that on this day of ,187 in the 
 District, came before me, the undersigned Stipendiary Magistrate for 
 the said District, and informed me that on the day of , 187 at 
 
 Note.— Tho constablo should always furnish fnll information to the Ma- 
 gistrate, or Clerk of the Poaco, respecting the case before the summons ia 
 issued, so that the Magistrate may judge whether the case is a fit one for 
 prosecution. It is not advisable to proceed with cases in which there is no 
 chance of a conviotiou. 
 
2o6 
 
 {titoxical'.ng Liquors, 
 
 in the District, a breach of the section of the L ? Act, 
 
 T. JoNKS, Constable. 
 
 1876, was committed by 
 
 Taken and acknc ledged before me,i 
 on the day and year and at the place/ \ 
 
 first above written. ' 
 
 T. Wills, S^'pendiaiy Magistrate. 
 
 45. Form of Summons. — 
 
 District, 1 Newfoundland. 
 
 To > Greeting : 
 
 Upon the complaint of you are hereby required to appear in your 
 
 proper person before the undersigned, one of Her Majesty's Stipendiary 
 
 Justices of the Peace for the said District, at aforesaid, on 
 
 the day of by of the clock in the forenoon of the same day, 
 
 for that you the said on the day of did commit a breach of 
 
 the section of the " License Act, 1876," by which you have made 
 
 yourself liable to a penalty not exceeding dollars. 
 
 Dated this day of 
 
 .— Stipdudiary Magistrate. O 
 
 46. Form op Conviotion. — 
 
 ■ District, ? Newfoundland. 
 
 to wit. 
 
 Be it remembered that on the day of , in the year , at 
 in the said District, A. B., hereafter called the defendant, is convicted 
 before the undersigned [stipendiart/] Justice of the Peace for the said 
 District, for that he the said defendant at on the day of 187 , 
 did commit a breach of the section of the License Act, 1875 ; and I 
 do adjudge the said defendant for his said off'' nee to pay the sum of 
 dollars, to be paid and applied accordiiJg to law ; and also the sum of 
 dollars costs, and if the said sums be not paid forthwith, I adjudge the 
 said defendant to be imprisoned in the gaol at for the space of 
 days, unless the said sums shall be sooner paid, (i/ the Magistrate de- 
 cides to levt/ tksjine hy distress, follmo the latter pcH of Form Xo. 11, 
 p. i 05, frotn tlte first asterisk.) ( Commitment may readily befraihcdfrom 
 *he form gium in the Appendix of Fortns, under Summary Jurisdiction.) 
 
 Given under my hand and seal, &o. 
 
 47. Form of Notice op Appeal. — 
 
 To T. W., Esquire, Stipendiary Justice of the Peace at 
 
 Take notice, that I, of , do intend to enter and prosecute an 
 appeal at the next General Quarter Sessions of the Peace, to be holden 
 at against a certain conviction made by you the said Justice, bearing 
 date the dav of whereby J the said was convicted of having 
 
Intoxicating Liquors. 
 
 207 
 
 on the (J?y of at committed a breach of the section of the 
 License Act, 1875, and for which said breach you adjudged that I should 
 pay a penalty of dollars, and that if not paid immediately, 1 should 
 be imprisoned at for the period of days (this must be stated as in 
 
 conviction), and further take notice that the grounds of my appeal are 
 (here state all the grounds of appeal.) 
 
 Dated at this day of 187 . 
 
 48. FoBM OF Bond in Appeal. — 
 
 "- District,) 
 b. f 
 
 (Signed) 
 
 Newfoundlani>, 
 
 , to wit. 
 
 Be it rememb.3red that on this day of , Anno Domini eigh- 
 teen hundred and seventy , A. B., of , licensed dealer, C D., also 
 of , trader, and E. F. of , personally came before me, che under- 
 signed Stipendiary Justice for the said District, and acknowledged them- 
 selves to owe to our Sovereign Lady the Queen, the following sums, that is 
 to say, A. B. the sum of dollars and (the two sureties) each the 
 sum of dollars, to be made and le.ied of their goods and chattels, 
 lands and tenements, r» ^pectively, to the use of our Lady the Queen, her 
 heirs and successors, if the said A. B. shall make default in the condition 
 underwritten. 
 
 The condition of the above recognizance is such that if the said A. B. 
 shall appear at the next Court of General Sessions of the Peace to be 
 holden at . ?jd there enter and prosecute an a^^peal against a certain 
 conviction, bearing date the day of , and made by me the g^l'*? 
 
 Justice, whereby he was convicted of having on the day of com- 
 mitted a breach of ^a section of the License Act, 1875 ; and further 
 if the said shall abide by the judgment of the Court thereon, and pay 
 such costs as by the Court shall be awarded, then this recognizance shaU 
 be void, else to remain in foil force and virtue. 
 
I 
 
 208 
 
 Bastardy. 
 
 CHAPTER XVII. 
 
 BASTARDY. 
 
 Shctions 
 1. —Introductory otservations. 
 2. — Object of Bastardy Law. 
 3. — Paternity, real question. 
 4. — Widows and Married Women. 
 5.- -Defence ; Immorality of Woman. 
 6. — Reconciling Parties. 
 7. — Imprisonment. 
 8.— Twins. 
 
 ij. — Time of gestation. 
 10. — Co"qol. Stat., Cap. 112, proceed- 
 ings on Complaint. 
 11. — Consol. Stat,, Cap. 112, provi- 
 sions of lap. 108 to apply. 
 12. — Consol. S it., Cap. 112, party 
 charged elieved by payment, 
 «100. 
 13.— Consol. Stat., Cap. 112, Mathers 
 
 refusing to support child. 
 14. — Consol. Stat., Cap. 112, continued 
 
 refusal. 
 15. — Consol. Stat., Cap. 112, appeal. 
 16. — Consol. Stat., Cap. 112, punish- 
 ment for false charge. 
 
 Sections 
 
 17. — Consol. Stat., Cap. 112, Commis- 
 sioners of Poor to control bas- 
 tards. 
 
 18. — Laying the Complaint. 
 
 19. — Form of Complaint where child 
 unborn. 
 
 20.— Form of Complaint where child 
 born. 
 
 21.— Warrant, 
 
 22.— Form of Warrant. 
 
 28. — Arrest and proceedings thereon. 
 
 24.— Form of Bond to appear. 
 
 25. — Hearing to be after birth of child. 
 
 26. — Witnesses* costs. 
 
 27.— Hearing, when paternity not dis. 
 puted. 
 
 28. — Proceedings at hearing, whe:, pa- 
 ternity disputed. 
 
 29. — Judgment. 
 
 80.— Affiliation Order. 
 
 31. — Bond to support child. 
 
 d2 , — Commitment. 
 
 38.— Proceedings on Appeal. 
 
 34. — Bond to appeal. 
 
 1. The local law upon this subject is contained in the 108th 
 and 112th chapters of the Consolidated Statutes, and is given 
 in full in the following pages. As a considerable part of the 
 duty of Magistrates in the Outports consists in dealing with such 
 cases, and as they are genf "7 of a very disagreeable nature, 
 and sometimes very perplexing, I have considered it advisable 
 to enter very fully into this subject, and to state the law and the 
 practice in reference thereto minutely. 
 
Bastardy. 
 
 209 
 
 2. The object of the law is to prevent the colonial revenue 
 from being burthened with the support of bastard children, when 
 the father can be discovered. 
 
 8. Bearing this in mind, the Magistrate must remember 
 ti- -it it is the question of 'paternity, and not the question of 
 morahty, that he is trying. It is not an offence in la:v to be 
 the father of an illegitimate child, but it is an offence under the 
 112th chapter of the Consohdated Statutes, to neglect or refuse 
 to support such child. 
 
 4. As the words of the chapter are, " any woman charging 
 any person with having gotten her with child;" a widow, 
 therefore, can make the complaint, and so also can a married 
 woman, who at the tune of making the complaint, is living apart 
 from her husband. In the case of a married woman, it is es- 
 sential that the non-access of the husband should be proved ; 
 and il is a presumption of law that the child of a married woman 
 is legitimate, but it may be rebutted by evidence disproving the 
 paternity of the husband. That evidence, however, should be 
 very clear and very conclusive, (a) 
 
 5. In bastardy cases a very common defence is, that the 
 roman making the complaint is a person of immoral character, 
 if not a common prostitute. If the evidence showc that she is 
 a common prostitute, that is, a woman openly lewd and profli- 
 gate, having common sexual intercourse with men, the com- 
 plaint should be summarily dismissed; and even if the case 
 shews that she has had illegitimate children before by different 
 fathers, or that she is immodest and loose in her conduct, the 
 evidence should be received with great caution and sifted with 
 the greatest care, and there should be clear evidence of paternity 
 before the child is affiliated. Sometimes there are cases where 
 the woman's conduct is not shewn to have been previously bad, 
 but there is satisfactory evidence that she has had sexual inter- 
 course with one or more men, besides the party charged, about 
 the time that she became pregnant. Such evidence would create 
 
 (a) Non-accegg of the husband cannot be proved by the wife. [i?. 
 
 Soxirtoru 5 A. & 
 
 10.] 
 
 C 
 
210 
 
 Bastardy. 
 
 1 war 
 
 a doubt as to the paternity of the child, and whenever the evi- 
 dence raises an honest, substantial doubt in the mind of the 
 Magistrate respecting the paternity, he should dismiss the com- 
 plaint. 
 
 6. The Magistrate may often, by his advice and influence, 
 reconcile the parties, and sometimes, where the woman is re- 
 spectable and the paternity not disputed, or where the woman 
 is seduced under a promise cf marriage, he may induce the man 
 to marry her ; sometimes, also, ho may induce the parties to 
 settle the matter out of court, and in all cases where he is satis- 
 fied that the child will be supported and well cared for, there 
 can be no objection to his doing so ; should there, however, be 
 any doubt on his mind respecting the care and safety of the child, 
 he should take security. 
 
 7. The imprisonment of the party charged is only intended 
 as a means to compel the putative father to support his child, 
 and should only be resorted tc as a last resource, when all other 
 means of getting him to maintain his child have failed. 
 
 8. Should there be twins, it is advisable to have a 
 separate complaint and a separate affiliation order for each 
 child, as, should one die, a distinct sum may appear on the face 
 of the order, payable for the other ; one complaint and order, 
 however, would suffice. 
 
 9. With regard to the time within which the child may be 
 born, the ordinary rule is nine calendar monlhs, in some cases 
 a week earlier and in others a week later : sometimes, however, 
 the period of gestation, in the opinion of many eminent medical 
 men, may be protracted for two, three, or even four weeks, 
 though rarely beyond eight or ten days ; and it is also a well 
 known fact that a child may be born a^n-e with the power of 
 being reared anci of coming to manhood, at the end of about, 
 seven calendar months. 
 
 CONSOLIDATED STATUTES, CHAPTER 112, « OF ILLEGITI- 
 MATE CHILDREN." 
 
 10. Whenever a complaint, on oath, shall be made before any Jus- 
 tice, by any woman charging any person with having gotten her with 
 
Bastardy. 211 
 
 child, which child is likely to be bora a bastard, and become chargeable 
 
 to the colony; and whenever a complaint, on oath, shall be made by any 
 
 person chargin- any other person with being the father of an illegitimate 
 
 child, chargeable, or likely to become chargeable, to the colony; such 
 
 Justice shall issue his warrant, and cause the party charged to be brought 
 
 before him ; and if, upon inquiry, such charge shall be sustained, and it 
 
 shall not appear that the mother of the child was a common prostitute, 
 
 such Justice shall make an order affiliating such child upon the party 
 
 charged, and requiring security, by bond to the stipendiary Commissioner 
 
 of the Poor at St. John's, and his successors in office, to be given for the 
 
 support and maintenance of such child until it shall have arrived at the 
 
 age of ten years, or shall die, or be satisfactorily provided for • and in 
 
 case such order shall not be forthwith obeyed, such Justice may sentence 
 
 the party charged to imprisonment in the common gaol, with hard labor, 
 
 for any period not exceeding six months : Provided that if, after com-' 
 
 mittal, the party charged shall give such security, he shall be forthwith 
 
 discharged ; and where the Justice shall deem it reasonable, in the case of 
 
 a child not already born, final order upon the charge may be postponed 
 
 until after the birth of the child, the party charged giving security to 
 
 abide any order to be made against him. [Sec. 1, Consol. Stat.] 
 
 11. The provisions and proceedings mentioned and contained in the 
 second and third sections of chapter 108, Oonsol. Statp.tes, shall be ap- 
 phcable and may be put in force and carried out in all cases coming with- 
 in the operation of the first section of this chapter (a). [Sec. 2.] 
 
 12. Any person upon whom an order of affiliation sha.l have been 
 made as aforesaid, may relieve himself from all obligation thereunder 
 by the payment to such Justice, for the Receiver General of the colony 
 of the sum of one hundred dollars. [Sec. 3.] 
 
 13. Every mother of an illegitimate child who, having the abUity 
 to labor, or any means of supporting it, shall neglect or refuse to support 
 and maintain such child, or shall abandon, desert, or leave it in any place, 
 shall, upon conviction, in a summary manner, before any Justice, be 
 subject and liable, and may be sentenced, to imprisonment, with or with- 
 ou. hard labor, in the common gaol, for any period not exceeding six 
 months; and such Justice may, upon complaint on oath being made 
 before him of the commission, by any woman, of such offence, issue hi. 
 warr^int for her apprehension, in order to a conviction for the same 
 [oec. 4.J 
 
 (a) The meaning and eiiect of this Section, and also forms for carrying 
 it out, are given in the Chapter on " Deserted Wives and Children ;" the forms 
 can easily be adapted to meet bastardy casjca. 
 
313 
 
 Bastardy. 
 
 14. The coutinued neglect or refusal to support and maintain such 
 child by its motuer, for any subsequent month after a first conviction for 
 such offence, shall be held and deemed to be a new offence, and shall be 
 dealt with and punished in the manner hez.einbefore provided with re- 
 spect to such first offence. [Sec. 5.] 
 
 15. Any person charged by any woman or other person with being 
 the father of an illegitimate child, and being convicted th^^reof by a Jus- 
 tice, may, upon giving security to abide the final determination of the 
 case and to pay the costs thereof, if finally convicted, appeal from the 
 order of affiliation to the Court of General Quarter Sessions for the Dis- 
 trict, before whom the matter in issue shall be determined by the jury in 
 attendance for the trial of other matters: Provided also, that if, upon 
 such trial, it be satisfactorily proven that the mother of the child was a 
 common prostitute, and the jury shall find such fact, such finding shall 
 be equivalent to a finding of not guilty on the main charge. [Sec. 6.] 
 
 IG. If any mother of an illegitimate child or any other person shall 
 falsely and fraudulently charge any person with being the father of such 
 child, such mother or other person, upon conviction of such offence in a 
 summary manner before any Stipendiary Justice, shall be sentenced to 
 imprisonment in the common gaol, with hard laboi, for any period not 
 exceeding six months (a). [Sec. 7.] 
 
 17. The Stipendiary Commissioner of the Poor shall have the control 
 and manufj;ement of the illegitimate children supported by the colony, 
 and apprentice them when of competent age, or otherwise provide for 
 them. [Sec. 8.] • ■ 
 
 18. The usual practice is for the woman who is with child 
 to make the complaint, on oath, in the following form ; but any 
 person arzare of the facts can make the complaint for her : 
 
 19. Form of Complaint in Bastardy. — 
 
 Northern Bistrictf] 
 Island Cove, 
 to wit : I 
 
 Newfoundland. 
 
 The complrint of Anna Higga, of Island Cove, aforesaid, single 
 woman, taken upon oath, whosaith, — I am now with c^ild by Job Giles, 
 of Island Cove, fisherman, and the said child is likely to be born a bas- 
 
 (rt) Cases under this Section will be prosecutod in the usual manner un- 
 der Summary Jurisdiction, see Chapter ^Jost, " Summary Jurisdiction." Form 
 of oftence is OiVeu in Api^cndix of Forms. 
 
Bastardy. 
 
 213 
 
 tard and become chargeable to the colony ; I therefore pray a warrant for 
 
 the apprehension of the said Job Qiles. (a) 
 
 her 
 ANNAM HIGGS, 
 mark. 
 Sworn before me, at Island Cove, aforesaid, ^ 
 
 this day of , A. D 187 ,hanng? 
 first been read over and explained. ^ 
 
 T. Wills, T. P. 
 
 20. Should the child have been born, the ^crm will be 
 altered thus ; — instead of the words " I am now with child," it 
 should be : — 
 
 " On the day of ,187 , 1 vas delivered of a male (or female) 
 bastard child. Job Giles, of Island Cove, aforesaid, fisherman, is the 
 father of the said child, which is likely to become chargeable to the 
 colony ; I therefore pray a warrant, &c." 
 
 21. When the complaint is sworn to. the Justice fills up his 
 warrant, which is in the following form, and gives it to the con- 
 stable to execute ; it must in all cases be a warrant : 
 
 22. Form op Bastaedy Warrant. 
 
 Northern Diftrict, i Newfoundland. 
 
 Island Cove, > 
 
 to wit : 3 To the Con.'^tables of the Northern District. 
 
 Whereas Anna Higgs, of Island Cove, aforesaid, single woman, haa 
 this day complained on oath, before the undersigned, a Justice of the 
 Peace for the said District, that she is now with child by Job Giles, 
 o» Island Cove, fisherman, an'l that the said child is likely to be born a 
 bastard and become chargeable to the colony. (Should the child be al- 
 ready born, follow form in sec. 20, dowu to the word " colony.") These 
 are therefore to command you, in Her Majesty's name, forthwith to ap- 
 prehend the said Job Giles, and to bring him before me or some other 
 of Her Majesty's Justices of the Peace in and for the said District, to 
 answer uuto the said charge, and to be further dealt with according to law. 
 
 Given under my hand and seal, at Island Cove, 
 aforesaid, this day of , in the year of 
 our Lord one thousand eight hundred and 
 seventy- 
 
 'x. Wills, J. P. [l. s.] 
 
 (a) It is advisable for the Magistrate to make a note of the time when 
 the woman expects to be confined on the complaint, as time ie a most impoi- 
 tant element in such enfjuirios when contested^ 
 
214 
 
 Bastardy. 
 
 23. Arrest and Proceeding thereon. — When the party 
 char^oa is arrested and hrought before the Magistrate on the 
 warrant, the Magistrate should read over the complaint to him ; 
 (rt) and if the child is not born, he should inform him that he 
 may be released on giving security to answer the complaint 
 when child is born, (see Form of Bond to appear) or he may, 
 instead of giving a bond, deposit one hundred dollars with the 
 Magistrate, or if he admits the charge, he may there and then 
 reUeve himself of all habihty by payment to the Justice of $100 
 (6) [ante, sec. 12.] Should the party charged be unable to 
 obtain security, of course he must be detained in custody until 
 the birth of the child, but in no case beyond six months. This 
 latter, however, is an extreme course, and should never be adDp- 
 ted unless there is actual danger that the party charged will run 
 away. 
 
 24. Bond in Bastardy Cases to appear.— 
 Northern District, 1 
 Island Cove, V 
 
 *'^ ^^^ '• I Newfoxtitdland. 
 
 Be it remembered that on the day of in the year of our Lord 
 one thousand eight hundred and seventy- , Job Giles, of Island Cove, 
 aforesaid, fisherman, and , also of same place, fisherman, personally 
 came before me, Thomas Wills, one of Her Majesty's Justices of the 
 Peace for the District aforesaid, and acknowledged themselves to owe 
 unto our Sovereign Lady the Queen the foUowing sums, that is to cay, Job 
 Giles the sum of one hundred doUars, and the sum of one hundred 
 
 (a) If it IB possible for the Magist-ate to obtain the attendance of the 
 woman he should endeavour to do so when the pai y charged is brought be- 
 fore him on the warrant ; the woman should bo thon sworn in his presence, 
 and her statement with respect to her being with child by him, should then 
 and there be taken down, written out, signed and sworn to, iu presence of the 
 pai;.> charged, and he should be asked if he wishes to put any questions to 
 her, aii'i his questions and the answers written down as in a deposition on a 
 charge ; it it, advisable to adopt this precaution as in the event of the woman 
 dying before the hearing and her child survivmg, the deposition thus taken 
 would be evidence against the party charged. 
 
 {&) The Magistrate should not pay over this money until after the birth 
 of the child; as, should the chUd die at birth, defendant ia entitled to receive 
 it back. 
 
:|p 
 
 Bastardy. 215 
 
 dollftrs, to be made and levied of their goods and chattels, lands and tene- 
 ments, respectively, to the use of our said Lndy the Queen, Her Heirs 
 and Successors, if the said Job UUes shaU uiake default iu the coudition 
 under written. 
 
 The condition of the above recognizance is such, that whereas Anna 
 Higgs, of Island Cove, aforesaid, single woman, has declared upon oath 
 bb'ore me, the said Justice, that (she is now with child,) that the said 
 Job Giles, aforesaid, did get her with child, and she fears that said child 
 will be born a bastard and become chargeable to the colony. If therefor© 
 the said Job Giles do and shall appear before me the said Justice, or such 
 other Justice of the Peace as may be present, when and where required 
 in this District (or at the Court House, in aforesaid,) aud abide by 
 such order as shall be made in the premises, and to be further dealt with 
 according to law, then the said recognizance to be void ; otherwise to 
 remain in full force and virtue. 
 
 Job Giles. ('\ 
 
 o 
 
 Acknowledged (the day and year J 
 aforesaid) before me, ) 
 
 T.Wills, J. P. 
 
 When the child is born, instead of the words in brackets, insert 
 " she has recently been delivered of a child." 
 
 25. Hearing.— By the latter part of the first section of the 
 Consolidated Statutes it will l.e seen, that in the case of " a child 
 not already born, final order upon the charge may be postponed 
 until after the birth of the chHd." It is not the practice in St. 
 John's ever to determine su__. cases until after the birth of the 
 child, and the reasons for such a practice are obvious (a) ; 1st, 
 no claim can be made upon the putative father for the payment 
 of money for the chUd until after its birth ; 2nd, the child may 
 be born dead, or may die immediately after birth, in both which 
 cases the father would be discharged ; 3rd, a full and fair en- 
 quiry cannot be had in such cases until after the birth of the 
 child. When the child is borr as soon as the mother is able 
 to attend before the Magistrate, she should, if she has not al- 
 ready done so, make a deposition in the form given in section 
 
 (a) Justice bearing in mind to take the Mother's deposition in presence of 
 accused ^s before auggcsicd at page 214, note u. 
 
2l6 
 
 Bastardy. 
 
 20 ; the Magistrate sliould then fix a ti»ne for the hearing (a) 
 and issue hia sumraons for any witnesses the woman or the 
 party charged may require. 
 
 26. Witnesses' Costs.— There is no provision in the Con- 
 solidated Statutes respecting costs in Bastar^iy cases except as 
 mentionc'l Lelow in note b, nor for the payment of witnesses, (b) 
 but they are clearly entitled to be paid 75 cents n day for 
 each day's attendance as a witness before the Magistrate, and 
 10 cents a mile from their residence to place of trial and back 
 again ; where the woman is a pauper and unable to pay for her 
 witnesses, the Poor Commissioner appears to be the person who 
 should pay them. The party charged, however, must pay his 
 own witnesses, and they are not bound to attend without being 
 paid. 
 
 (a) Accused fihould be summoned to a given timo and place by Bummons, 
 as in Form given below. 
 
 Northern District, ] 
 Island Cove, 
 to wit ; 
 
 )istrict, I 
 !ove, i 
 
 Newfoundland. 
 To Jot '^Iles, Greeting: 
 
 You are hereby required to appear in your proper person before the 
 undersigned, one of Her Majesty's Justices of the Peace for the said Dis- 
 trict, at Island Cove, in the District aforesaid, on the day of 
 by of the Clock in the fordnoon of the nam., day, to answer the com- 
 plaint of Anna Higgs, who charges you ith being the father of a bastard 
 child, recently begotten of her, which child she fears will become charge- 
 able ou the colony. 
 
 Dated this day of , 187 - 
 
 T. Wills, J. P. O 
 (t) The following, however, is contained in p. 44, Consol. Stat. : 
 BASTARDY CASES. 
 Fsest to be received by the Clerk. 
 For the examicawon of tie party coLirlaining . . . . , . , . 25 cents. 
 
 Warrant to apprehend Mother or repnted itarent , . 60 
 
 Bond to appear, to maintain or perform Order of Filiation . . $1 25 
 
 Order of Filiation 60 
 
 Every Commitment 40 
 
 Oath 25 
 
Uasianiy. 
 
 217 
 
 27. Wlicu both parties aro present before the Magistrate 
 
 the woman making the crmplaint and the man who in cliar^ed 
 
 with being the father of the child, the Magistrate should first 
 
 read ever tlie woman's complaint to the party chargetl, and also 
 
 her second complaint as to the time at which she was confined • 
 
 ho should then ask him if he denies the charge. If ho then 
 
 aamits being the father of the child, all the Magistrate need do 
 
 13 to swear the woman in his presence, let her state brieQy the 
 
 facts that she was delivered of the child, (naming its sex,) at such 
 
 a time, and the party charged is the father. The Magistrate 
 
 then makes a note in his book of the admission of the charge 
 
 and then proceeds to make out the order of affiUation, as in the 
 
 following form : — 
 
 28. Proceedings at Hearing where Paternity disputed.— 
 When the paternity is disputed, after reading the complaints, 
 and the party charged being asked as above, denies the charge 
 the Magistrate then administers the oath to the woman, thus,-l 
 "The evidence you shall feu-e in the present enquiry shall be the 
 truth, the whole truth, and nothing but the truth. So help you Gud." 
 
 The mother of the illegitimate child gives her evidence first, 
 she is then cross-examined by the party charged or his lawyer, 
 and her witnesses called and examined by her or by the Mains' 
 trate, s-nd cross-examined by the party charged or his lawyer. 
 It IS usual to examine the midwife or a medical man, if ho de- 
 Hvered her, as to the date of birth and sex of chil i. When the 
 whole of the complainant's case is gone through, the party 
 charged or his lawyer may ask the Magistrate to dismiss tho 
 case, and sho-.ld the Magistrate (bearing in mind tho advice 
 given in secti. u 5) feel that evidence is contradictory, and the 
 question of p teruity doubtful, ho may dismiss the case without 
 calling upon ti. defendant or his witnesses to give their evidence. 
 If, however, tlio evidence satisfies his mind that a case has been 
 made out against the party charged, {that he /s the father ./ the 
 child,) he will then ask the defendant if ho wishes to be exami- 
 ned. Ho cannot be compelled to bo examined. Before he ^aves 
 his evidence, he, or his lawyer for him, can rrake a speecli to 
 one x,iagi3tr:ito, commenting on the complainant's case and also 
 
 DD 
 
2l8 
 
 Bastardy. 
 
 explaining what his own defence is, and the same course is then 
 followed with him and his witnesses as with the complainant 
 and her witnesses. 
 
 29. Thei Magistrate should carefully note down all the evi- 
 dence given in the case, hoth on direct and cross-examination. 
 The Magistrate need not deliver his judgment at once, but he 
 should decide as soon as possible, for the convenience of all 
 parties ; he may adjourn the hearing from time to time, and 
 sometimes, when the case is hard fought, it will be necessary to 
 do so in order to obtain the evidence of witnesses in corrobora- 
 tion of facts which are stated by one side or the other. No un- 
 necessary delay, however, should take place in finishing the 
 enquiry. When the Magistrate gives his judgment, either to 
 affihate the child upon the party charged or to dismiss the charge, 
 he need not give his reasons for so doin^;,-. After judgment he 
 makes out the following order : — 
 
 80. Affiliation Order.. — 
 
 Northern District, ' 
 
 Islanr) Cove, ' 
 
 to wit : 1 
 
 Newfoundland. 
 
 The order of Thomas Wills, Esquire, one of Her Majesty's Justices 
 of the Peace for the said District, concerning a (male or female) bastard 
 child, lately born of the body of Anna Higgs. Whereas it hath appeared 
 unto me that on the day of she was delivered of the said bastard 
 child, and that said child is likely to become chargeable to the colony, 
 and that she charged Job Giles, of Island Cove, aforesaid, with being the 
 father of said child. And whereas the said Job Giles hath been brought 
 before me by warrant to answer the premises, but hath not shewn suffi- 
 cient cause why he shall not be deemed to be the father of the child. 
 Wherefore, upon an investigation of the matter, as well upon the oath 
 of the said Anna Higgs as otherwise, 1 hereby adjudge the said Job Giles 
 to be the fatlier of such child, and thereupon I order, as well for the re- 
 lief of the colony as for the sustenance of such child, that the said Job 
 Giles shall forthwith enter into a bond, with sureties, to the Stipendiary 
 Coramissionor of the Poor at St. John's and his successors in office, for 
 the suppor-t and maintenance of sucli child until it shall have arrived at 
 the age of ten years, or shall die or be satisfactorily provided for, or re- 
 lieve himself from all obligation thereunder hj the payrnout to mo tho 
 
Bastardy, 
 
 2ig 
 
 se is then 
 nplainaul; 
 
 11 the evi- 
 mination. 
 le, but he 
 ace of all 
 time, and 
 3essary to 
 jorrobora- 
 . No un- 
 shing the 
 either to 
 ie charge, 
 gment he 
 
 NDLAND. 
 
 fs Justices 
 
 lie) bastard 
 
 h appeared 
 
 aid bastard 
 
 ihe colony, 
 
 1 being the 
 
 en brought 
 
 hewn suffi- 
 
 the child. 
 
 n the oath 
 
 1 Job Giles 
 
 for the re- 
 
 e said Job 
 
 stipendiary 
 
 olFice, for 
 
 arrived at 
 
 for, or ro- 
 
 to ISO the 
 
 said Justice, or some other Justice of the aforesaid District, for the Re- 
 ceiver General of the colony, of the sum of one hundred dollars. 
 
 Given under my hand and seal, this day 
 of , A. D. one thousand eight hundred 
 and 
 
 TWILLS, J. P. O 
 
 81. Bond in Bastardy Casks to the Poor Commissioner to 
 SUPPORT Child. — 
 
 Know all men by these presents, that we, Job Giles, of Island Cove 
 in the Northern District of Newfoundlaud, fisherman, and of ' 
 
 Jso in the said District, aforesaid, fisherman, aro held and firml'y bound 
 to the Stipendiary Coutmissioner of the Poor at St. John's,, and his suc- 
 cessors in office, in the sura of one hundred dollars each, to be paid to 
 the said Stipendiary Commissioder of the Poor and his successors, for 
 which payment to be made, we bind ourselves, and each of us, by him- 
 self, firmly, by these presents. 
 
 Sealed with our seals, dated this day of 
 ^' ^' 1S7 , at Island Cove aforesaid. 
 
 The condition of the above recognizance is such, that whereas by 
 an order of atliliation made by me, the undersigned Justice, in the mat- 
 ter of a (male or female) bastard child, lately begotten on Anna Higgs 
 the said Job Giles hath been adjudged to be the father of such child, and 
 to obey such order of filiation. If therefore he the said Job Giles do 
 and shall support an^. maintain such child until it shall have arrived at 
 the age of ten years, or shall die, or be satisfactorily provided for or 
 shall pay, or cause to be pa^d, to me the said Justice, or some other Jus- 
 tice for the District aforesaid, for the Receiver General of the colony 
 the sum of one hundred doUars, then this obligation shall become void. ' 
 
 his 
 Job W Giles. Q 
 mark 
 
 Signed, sealed and delivered; [ " O 
 
 in presence of ) 
 
 T. Wills, J. P. 
 82. Form of Commitment in Bastardy Cases.— 
 Northern District, i 
 
 UaMCov», ^ N..WP„™„.„.. 
 
 To the Constables of the Northern District aad to 
 the Keeper of the Gaol at , in the said 
 
 Distrioti 
 Whereas complf'int, on oath, was made before me by Anna Uigga, 
 
mmc 
 
 220 
 
 Bastardy. 
 
 i 
 
 H 
 
 of Island Cove, single woman, that she was clelivereil of a male (or female) 
 bast;Ard child, that the child was likely to become chargeable to the co- 
 lony, and that tho said Job Giles was the father of the said child ; and 
 whereas the said Job Giles was brought before me on a warrant to answer 
 the said complaint, and upon an enquiry into tho said matter as well 
 upon the oath of the said Anna Iliggs as otherwise, in the presence of 
 the said Job Giles, I adjudge the said Job Giles to be tho father of the 
 said child, and thereupon ordered him to enter into a bond to the Sti- 
 pendiary Commissioner of the Poor at St. John's, to be gi\ 3U for the 
 support ar.d maintenance of such child, until it shall arrive at the age of 
 ten years, or die, or be satisfactor ly provided for ; and ivhereas tho said 
 Job Giles has uot complied with such order, and was thereupon sentenced 
 by me, the said Justice, to imprisonment in the common gaol at , in 
 the said District, with hard labor, for the period of mouths, or until 
 
 he shail give the said security. These are therefore to command you the 
 said constable, or any one of you, forthwith to convey the said Job Giles 
 to the said gaol, and for you the said keeper to receive him into the said 
 gaol and there imprison him and keep him at hard labo: io;r the space of 
 mouths, or until he shall give the said security. 
 
 Given under my hand and seal, at Island Cove, 
 this day of , A.D. one thousand eight 
 hundred and 
 
 T. Wills, J. P. Q 
 88. Appeal. — It will be seen by section 15 of this chapter, 
 (Consol. Stat., sec. C,) that the party charged may appeal from 
 the order of affiliation to the next Quarter Sessions for the Dis- 
 trict. Appeals under this section are not common ; should tho 
 party cluirged appeal, he must give the convicting Justice notice 
 of his intention to appeal, and also of tho parties who he will 
 give as security. The Magistrate need not accept the security 
 unless ho is satiefied with their solvency, and the surety shoulu 
 be a resident householder. He should put in .ue bond one hun- 
 dred dollars, and also a sum sufficient to cover costs of appeal, 
 expenses of witnessed, &c. ; in the Form I have put one hundred 
 and fifty dollars. The Magistrate or Clerk of tho Peace who 
 prepares the bond for appeal is entitled to receive $1.25 for it. 
 The bond, when signed, should be forwarded, as soon as possi- 
 ble, to the Clerk of the Peace or Stipendiary Magistrate resident 
 at the locality where tho Quaitei' Sce&ions is to be holden. 
 
T" %■ 
 
 Bastardy, 
 
 221 
 
 Other matters connecteil with the appeal are referred to under 
 heud of " Quarter Sessions." 
 
 34. Bastardy Bono to Appeal. — 
 
 Northern District, 
 
 Island Gove, 
 
 to wit : 
 
 NEWFOUNDLAND. 
 
 l?o it rotnerabered, that on the day of , in the year one thou- 
 sand ei^ht Imndred and seventy- , Job Giles, of Island Cove, afore- 
 said, fislierman, and , also of Island Cove, , personally came before 
 me, the undersigned, one of Her Majesty's Justices of the Peace for the 
 said District, and ackno\vled;^ed themselves to owe to our Lady the(iueen 
 tho following sums : Job Giles, one hundred and dfty dollars, and one 
 hundred and fifty dollars, to be made and levied of their goods and chat- 
 tels, lands and tenements, r( spectively, to the use of our said Queen, if 
 the said Job Giles fail in the condition endorsed. 
 
 The condition of this recognizance is such, that whereas by an order 
 of alliliation made by me on the day of , one thousand eight hun- 
 dred and seventy , I adjudge the said Job Giles to be the father of a 
 bastard child, by Anna Higgs, and whereas the said Job Giles hath given 
 notice to me of his intention to appeal tgainst the said order to the next 
 General Quarter Sessions of the Peace, to be holden at , in the said 
 District. Now the condition of tliis recognizance is such, that if t^e 
 said Job Giles do appear at the said Court at its next sittings and duly 
 prosecute his said appeal and abide by the judgment of the said Court 
 and pay such costs as shall be by the said Court awarded, then this recog- 
 nizance to bo void, (a) 
 
 T. Wills, J. P. Q 
 
 (a) Should the Bond be forfeited by defendant's not appearing and proso- 
 cutiufj Lis appeal, the Justice's course is to act as in the case of forfeited 
 Recognizances. See i)p. C8 &, 69. 
 
222 
 
 Deserted Wives and Children. 
 
 4 
 
 ,1 ' 
 
 '5!; 
 
 CHAPTER XVin. 
 
 DESERTED WIVES AND CHILDREN.— (Consol. Stat., Cap. Io8.) 
 
 Sections 
 
 1. — Justices may apprehend any hus- 
 band, (fee, abandoning his wife, 
 &c., and order security for 
 maintenance. 
 
 2. — In certain cases Justices may 
 order the appropriation of por. 
 tion of property, &c., for the 
 support of party the subject of 
 the order. 
 
 3. — Justices may compel the atten- 
 dance of witnesses. 
 
 Sections 
 
 4.— Meaning of terma in this Chap^ 
 ter. 
 
 6. — Husband dissipating his proper- 
 ty, may bo summoned by Jus- 
 tices. 
 
 6. — Order affecting landed property 
 to be registered. 
 
 7. — Assignments to defeat Chapter, 
 void. 
 
 8.— Forms. 
 
 1. Whenever a complaint on oath shall be made by a Com- 
 missioner of the Poor, or any other person, before any Stipen- 
 diary Justice, (a) that any husband has left destitute, abandoned, 
 or deserted, or .6 about to leave destitute, abandon or desert his 
 wife ; that any parent haa left destitute, abandoned or deserted, 
 or is about to leave destitute, abandon or desert his infant (b) 
 child ; or that any child has left destitute, abandoned or desert- 
 ed, or is about to leave destitute, abandon or desert his aged or 
 infirm parent, the person so left destitute, abandoned or desert- 
 ed, or about to be left destitute, abandoned or deserted, being 
 destitute of the means of support, and Ukely to become a burden 
 on the Colony, (c) and the party so leaving destitute, abandon- 
 ing or deseitmg, or about to leave destitute., abandon or desert, 
 
 (a) An Honorary Magistrate ia the absence, &o., of the Stipendiary Ma- 
 gistrate could act, see p. 8. 
 
 (&) The term infant here means a person under Twenty-one years of age. 
 
 (c) The object of this Act is to make people who can afiord to do so sup- 
 port their poor relations, and the Magistrate, whether he acts solely as a Jus- 
 tice of the Peace or as Poor Commissioner, should do all in his power to 
 proYoai the Culooy from boiog burtbeued witii the luppof t vi pttupers whuee 
 
Deserted Wives and Children. 
 
 223 
 
 Laving the means or ability to ma^'ntainsuch wife, child or parent, 
 aforesaid, such Justice may, by summons or by warrant, cause 
 the party so charged to be brought before him, and thereupon, 
 if upon inquiry such complaint shall be sustained, such Justice 
 may require the party charged as aforesaid to give security by 
 bond to tlie Stipendiary Commissioner of the Poor at St. John's, 
 and his successors in office, for the support and maintenance of 
 the person in relation to whom the charge is made ; and in de- 
 fault of such order being forthwith obeyed, may sentence the 
 party charged to imprisonment, with or without hard labor, for 
 any period not exceeding thirty days : Provided that if after 
 committal the party charged shall give such security, he shall 
 be forthwith dischp.rged ; and every subsequent month's aban- 
 donmeut or desertion as aforesaid, shall be deemed a repetition 
 of the first offence. 
 
 2. In any case where, upon any sli jh complaint, it shall be 
 made to appear upon such inquiry, and whether the party charg- 
 ed shall have been brought before such Ju£.tice or not, (a) that 
 the party charged has any property or money within the juris- 
 diction of the said Justice, or that he is in the receipt of any 
 salary, allowance, pension or wages, such Justice may, if such 
 order aforesaid be disobeyed, or cannot be made by reason of 
 the party charged not being brought before such Justice, make 
 an order directing the appropriation of so much of such money 
 or property as may be necessary, or the payment of a reason- 
 able proportion of such salary, allowance, pension or wages, to- 
 wards the maintenance and support, from time to time, of the 
 
 relations can I.o compelled under thiq Act to support them. The relations 
 mentioned in the Chapter are the only ones who can be so compeUed by this 
 Law. 
 
 (a) This second section gives the Justice authority to make an Cider wJicther 
 the party charged shall have been brought before s:.ch Justice or not; in the 
 first section the party charged should be brought before the Justice, and there 
 must be an enquiry ht I by him in presence of the party charged before the 
 Justice can make m order. The proceedings under Ist section should be con- 
 ducted in the manner prescribed in Chap. 13, Summary Conviction, and the 
 Forms No. 13, &c., will be applicable. Forms to suit sec. No. 2 are speciaU 
 and i iiave given them at the end of the Chapter. ' ' 
 
224 
 
 Deserted Wives and Children, 
 
 party tlio subject of such orclor ; and such order shall be binding 
 and obhgatory upon all persons having notice theioof ; and every 
 employer or other person having the payment of such money, 
 salary, allowance, pension or wages, shall conform to and obey 
 the same, and in default of conformity and obedience thereto, 
 may be compelled to pay the amount from time to time payable 
 thereunder, "with costs, in an action of debt to be brought and 
 determined in a summary manner, in the name of the Stipen- 
 diary Poor Commissioner at St. John's, before any Stipendiary 
 Justice. 
 
 8. The Justice may, for the purpose of such inquiry, com- 
 pel the appearance by summons, and if necessary by warrant, 
 of any thii-d person, and examine such person upon oath as to 
 any such money, property, allowance, pension or wages afore- 
 said. 
 
 4. The term '* parent" in the preceding sections shall in- 
 clude a grand-parent, and the term " child" a grand-child. 
 
 5. Upon complaint upon oath being made before any Sti- 
 pendiary Justice that any husband or father having property is 
 by habits of drunkenness dissipating his property, so as to ex- 
 pose his wife or children to the danger of destitution, such Jus- 
 tice may summon such husband or father before him, and inquire 
 into the matter of such complaint, and if upon enquiry the 
 same shall appear to be well founded, may make an order re- 
 quiring such husband or father to give security to the Stipen- 
 diary Commissioner of the Poor at St. John's, and his successors 
 in office, for the maintenance of his family, and in default of 
 such order being obeyed, may commit the offender to prison 
 until he shall conform to such order or be discharged by duo 
 course of law. And the said Justice, where such security aa 
 aforesaid shall not bo given, may, in lieu of committing such 
 offender to prison, order that so much of the property of such 
 offender as may be necessary be taken and apphed to the main- 
 tenance of his family ; and such last-mentioned order shall be 
 carried into effect under the direction of the Stipendiary Poor 
 Commissioner, and shall be a justification in law for his pro- 
 ceedings thereunder ; and the provisions of the isecond and third 
 
Deserted Wives and Children. 
 
 225 
 
 sections of this chapter shall be applicable to the object of this 
 section, (a) 
 
 0. Every such order made by a Stipendiary Justice, affect- 
 ing landed property, shall be registered in the Registry of Deeds 
 for the District whore such land may be situated ; and, from the 
 time of such order being deposited for registration, shall have the 
 effect of a conveyance of such land by the owner thereof, for 
 the purposes of such order : Provided that any Stipendiary 
 Justice of the District aforesaid may rescind any such order 
 upon receiving such security as to him may appear sufficient, 
 and also in cases in which it may not be deemed necessary 
 longer to continue the operation of such order, (b) 
 
 7. All deeds, assignments and conveyances of any lands or 
 other property made, done or executed with the intent and pur- 
 pose of defeating any attachment made in pursuance of this 
 chapter, shall be, and the same are hereby declared void, except 
 m the case of a bona fide purchaser or grantee, for a valuable 
 consideration, who shall not have been aware of or a party to 
 such intent and purpose. 
 
 8. Form op Complaint. — 
 
 mrthern District, 1 Newfoundland. 
 
 Island Cove, V 
 to wit : J 
 
 The complaint, on oath, of Ann Giles, wife of Job Giles, of Island 
 Cove, fisherman, who saith,—" My husband, Jcj Giles, has abandoned 
 and deserted me, and left me and ray children destitute of the means of 
 support, and I am likely to become a burthen upon the Colony (or I am 
 now rccetviuff poor relief.) lam the mother of children by the said 
 
 (a) By the latter part of this section it would appear that an order may 
 be made though the party charced was not before the Justice. However, his 
 presence should always be procured if possible. 
 
 (6) An order to sell land might be made in the following form, after re- 
 citing the complaint that the husband or father is dissipating his property, &o. 
 I, the said Justice, by virtue of the power vested in me under the 6th section 
 of Chapter 108, Consolidated Statutes of Newfoundland, do order an.^ direct 
 that the land, with the dwelling house thereon, (the property of the father or 
 husband,) situate at , bounded as follows, belonging to be sold, and 
 
 that out of the proceeds of such sale, dollars be appropriated towards i^ 
 mamtenance and support of (wife or cMld^ under the direction of the 
 
 Stipendiary Poor Commissioner at 
 
 E E 
 
226 
 
 Deserted Wives and Children. 
 
 Job Giles ; the eldest child a boy (nr a yirl) is yeare of age, the young- 
 est is years. My said husband has dollars due to him by John 
 Smith, planter, of Island Cove, for wages, (or has fish or has rent, 8,-c., as 
 in order) and I pray that an order may be issued to stop the said money 
 in the hands (if John Smith, and to have the sum appropriated towards 
 the support of myself and my children." 
 
 Sworn, &c. 
 
 Form of Order under Section 2. — 
 
 Northern District, j Newfoundland. 
 
 Island Cove, > 
 to wit : j 
 
 Whereas on the day of last, complaint, on oath, was made 
 before me, the undersigned Stipendiary Justice of the Peace tor the said 
 District, by Ann Giles, wife of Job Giles, of Island Cove, aforesaid, fish- 
 erman, that thpi said Job Giles had deserted and abandoned her and her 
 children, and that she was left destitute of the means of support and 
 likely to become a burthen upon the Colony. (If receiving poor relief 
 say, and has become a burthen upon the Colony.) And whereas, I issued 
 my warrant upon the said complaint for the apprehension of the said 
 Job Giles, but the said Job Giles has not been arrested or brought before 
 me, and I am therefore unable to obtain security from the said Job Giles 
 for the support of his family, pursuant to the first section of chapter 108 
 of the Consolidated Statutes of Newfoundland ; and whereas it has been 
 made to appear to me, upon oath, that the said Job Giles has certain 
 monies in the hands of John Smith, planter, of Island Cove, (or he has 
 certain tvayes due to him, Job Giles, by , or he, Job Giles, receives 
 
 dollars rent foi a certain piece of land with a dwelling house thereon, situate 
 at , bounded, 8fc., as the case may be.) Therefore, by virtue of the 
 power vested in me under the second section of the said chapter, I order 
 and direct the said John Smith to pay over (to the Clerk of the Peace 
 at , 07', to the Stipendiary Commissioner of the Poor, if there be one 
 in the place, or if neither, then say, to , the constable, who briugeth 
 this order) the sum of dollars, to be appropriated (a) towards 
 
 the maintenance and support of the said Ann Giles and her children. 
 
 Witness my hand and seal, at Island Cove, 
 aforesaid, this day cf ,187 . 
 .T.Wills, O 
 To Mr. John Smith, Planter, Stipendiary Magistrate. 
 
 Island Cove. 
 
 (a) The Poor Commissioner or Magistrate will avpropriate tae monry 
 towards the support of the wife and family in the manner most beneficial to 
 ^5jpjv,_ John Smith should be summoned or arrested if he will not attend or 
 pay over the money. 
 
Minors and Apprentices. 
 
 227 
 
 CHAPTER XIX. 
 
 MINORS AND APPRENTICES. 
 
 1 Sections 
 
 3.— Executor or administrator of de- 
 ceased master not bound to 
 maintain apprent'ce beyond one 
 month after death of master, 
 
 4- — Penalty for harboring apprentice. 
 
 5. — Application of penalties. 
 
 6.— Form of Indentures. 
 
 SECT10N3 
 
 1. — Justices bhall approve by writing 
 indentures of apprenticeship. 
 Effect thereof. 
 
 2. — Proceedings where Master ill-uses 
 indentured apprentice or ap- 
 prentice misbehaves. 
 Penalty. 
 
 1. Any Justice shall, upon application made to him, con- 
 sent to and approve by writing, under his hand, of an indenture 
 of apprenticeship that shall be produced before him (a) : Pro- 
 vided upon examination he sliall be satisfied of the good moral 
 character and other requisite fitness of the proposed master or 
 mistres whereupon such indenture shall be as binding upon 
 the master or mistress, apprentice and all parties concerned, aa 
 if such master or mistress, apprentice or other parties had been 
 at the time of the execution of such indenture of full age. 
 
 2. If any master or mistress of an indentured apprentice 
 shall mis-use or ill-treat his or her apprentice (b), or if the ap- 
 prentice shall not do his or her duty, or if either party shall 
 have cause of complaint against the otlier, any Justice within 
 the town or district where the master or mistress resides shall, 
 upon such complamt being made upon oath before him, cause 
 the parties and their witnesses to be brought before him by su a- 
 mons or wanrant, and if, upon enquiry into such complaint, de- 
 fault shall be found in the master or mistress, such Justice may 
 either impose a fine upon him or her not exceeding five dollars 
 
 (a) Unless there are written indentures, approved by a Magistrate ho 
 shoukl not issue a summons or warrant under this chapter. 
 
 (6) Master or mistress illtreating apprentice, or not furnishiucr him wifh 
 sufficient food, also punishable, criminally, under Imp. Act, 21 & 25\io., s. 26'. 
 
228 
 
 Minors and Apprentices. 
 
 \\ 
 
 to be levied by distress and sale of the offender's goods and 
 chattels, or discharge such apprentice from his apprenticeship, 
 upon which discharge being made in writing unler the hand of 
 such Justice, the indenture shall be void ; and if default shall 
 be found in the apprentice, such Justice shall order such abate- 
 ment to be made out of his or her wages or allowance, or cause 
 tbe apprentice (if a male) to be imprisoned, with or without hard 
 labor, for any period not exceeding ten days ; and in addition 
 to such abatement or imprisonment, such Justice may discharge 
 the apprentice by writing under his hand, whereupon the inden- 
 ture shall be void. 
 
 8. Nothing in any indenture of apprenticeship shall be of 
 any force or effect to require the executor or administrator of a 
 deceased master or mistress to keep or maintain the ai)prentice 
 more than one month after the death of such master or mistress, 
 and at the expiration of such month the indenture si all bo void. 
 
 4. Any person harboring an indentured apprentice after 
 noi- .., jhall be liable to a penalty not exceeding fifty dollars, to 
 be recovered before any Jus' ce in a summary proceeding, and 
 by levy under his warrant of the offender's goods and chattels ; 
 and if such arrant shall noi be satisfied, the Justice may com- 
 mit such offender to gaol for any period not exceeding twenty 
 days. 
 
 5. All penalties imposed under this chapter shall be paid to 
 the party making the complaint, or on whose behalf the same 
 shall have been made. 
 
 6. Form of Indentt!ke. — 
 
 This Indenture, made at , in the Island of Newfoundland, the 
 day of , in the year of our Lord one thousand eight hundred 
 and seventy- , between 
 
 Witnesseth that the said by and with the consent and approval 
 of ) EsquiiJ, a Justice of the Peace, for the Island aforesaid, testified 
 by bis signing these presents, hath put, placed, and bound, and by these 
 presents doth put, place, and bind himself unto the said , to dwell 
 and serve after the manner of an apprentice, for, during, and until the 
 full term and time of years, to be computed from the during all 
 ■which time the said apprentice his said master faithfiUly shall serve, his 
 Becreta keep, and all his lawful commands everywhere gladly do \ hurt t«> 
 
Masters and Servants in the Fishery, 
 
 229 
 
 hia saul master he sliall not do, nor waste, nor embezzle hia goods, nor 
 suffer such things to bo done by others, without to the utmost of hia 
 power giving notice of and preventing the same. At cards, dice, or other 
 unlawful games, he shall not play ; ale houses, taverns, or houses of ill- 
 rame, he shall not freque: t ; nor absent himself by day or by nighfc 
 without leave first had and ol ained ; but in all things towards his said 
 master and those of his family as a good, honest and faithful apprentice 
 demean himself ; and the said doth hereby covenant and agree to 
 teach and instruct, or cause the said apprentice to be taught and instrucv;- 
 ed, in the trade, art, or mystery of a ,and also during the said term 
 provide for and give the said apprentice good and sutficient meat, drink, 
 and lodging ; and shall pay or cause to be paid to said apprentice during 
 the said terra, wages as follows ; that is to say, 
 
 In witness whereof the said iiarties to these presents, their hand* 
 and seals interchangeably have set, the day and year first above written. 
 Si2:ned, sealed and delivered, i 
 
 iu the presence of 
 
 Approved of June 10, a 37 . 
 
 T. Wills, J. P. 
 
 o 
 o 
 o 
 
 r#i 
 
 CHAPTER XX. 
 
 MASTERS aND SERVANTS IN THE FISHERY. 
 
 Shctions 
 
 1. — Contract and penalty for breach. 
 2. — Absence of servant. 
 3. — Master neglecting tt perform his 
 
 part of agreement. 
 4. — Mode of procee'iing, and penalty 
 
 to be imposed on master. 
 5, — Balance of wages to be paid in 
 
 money. 
 6. — Penalty for harboring servant. 
 7. — Penalty for sealer refv ing to 
 
 perform his agreement at sea. 
 
 Sections 
 
 8. — Pricaa of ontfite. 
 9.— Eniployer not to deduct charge 
 for liquor out of wages. 
 
 10. — Medicine chest. ^ 
 
 11. — How sealing agreements to be 
 executed, and th whom de- 
 posited. 
 
 12. — Application of penalties. 
 
 13.— Fisherman, &c., taking boats, 
 &o., used m fishery, gailty of 
 misdemeaaor. 
 
230 
 
 Masters and Setvants in the Fishery. 
 
 Sectionb 
 
 14. — Party charged may be tried Bum- 
 
 marily uuder 12 Vic, Cap. 43 ; 
 
 PuiiiBbment. 
 15. — Compeusatlon may be made. 
 16. — Venoe. 
 
 Secticwb 
 
 17.— Proaeontiona to be within twelve 
 
 monthu. 
 18. — No conviction to be qnasUed for 
 
 want of form ; Proviso. 
 19. — Forms and procedure. 
 
 1. When any person who shall have entered into a contract 
 or agreement in writing, which shall be signed by both parties or 
 their agent, and of which there shall be two parts so signed, one to 
 be in the possession of the employer, and the other in the posses- 
 sion of the servant, for the perfoiJiance of any duty within this Co- 
 lony, as fisherman, shoreman, shareman, sealer^ or any other kind 
 of service, whether agricultural, mechanical, or otherwise, (a) shall 
 fail or refuse to perform such contract or agreement, any Justice 
 may, upon complaint on oath of the employer of any such per- 
 son or his agent being made before him, issue his warrant and 
 cause such person to be apprehended and brougbt before him, 
 and in case such person shall refuse to perform such contract or 
 agreement, without showing sufficient excuse or cause therefor, 
 such Justice may commit such perscai 'o prison ^f^v a period not 
 exceeding thirty f'" ■ . Provided that iihould such person, at 
 any time before the expiration of the tim^j for which he shall bo 
 committed, consent to perform such contract or agreement, and 
 his master consent id receive him back into his service, the said 
 Justice shall forthwith discharge such person out of custody. 
 
 2. Any fisherman, shareman, shoreman, mechanical or 
 other servant, who shall absent himself from his employer's ser- 
 vice without leave, or refuse or neglect to perform his duty with- 
 out sufficient cause, shall, for every day's absence, refusal or 
 neglect, forfeit and pay to his employer, who may deduct the 
 same from his wages, a sum equal to twice the rateable propor- 
 tion of his wages stated in his agreement in writing, for such 
 time as he shall be absent or refuse or neglect to perform his 
 
 (o) All servants are included under these words, but no servant can be 
 arrested unless there is an agreement in writing, commonly knovm as a ahip- 
 
Masters and Servants in the Fishery. 
 
 231 
 
 service (a) in addition to any special damage and expensea wiiich 
 the employer shall have sustained by reason of such absence, 
 refusal or neglect, and which such employer may also deduct in 
 manner aforesaid. 
 
 8. Any employer who shallj without reasonable cause, re* 
 fu3<e or neglect to pay any fisherman, shareman, or other ser- 
 vant, the amount or balance of his wages within three days aft it 
 the same shall have been ea led and i,c;come due, according to 
 his agreement, (the same hi«nng been demanded,) shall forfeit, 
 and pay to such servant the wages current at the time for the 
 number of days h may be kept out of his wages or balance, in 
 addition to any t; .ial damage and expenses which such servant 
 shall sustain by ouch refusal or neglect, to be recovered before 
 any Court of Recoid or a Justice. 
 
 4. Should t^j employer of any such servant neglect or re* 
 fuse to perform his part of such contract or agreement, any Jus- 
 tice shall, upon complaint being made upon oath by such ser- 
 vant, issue his summons, and in default of appearance cause 
 such employer or ugent to be brought before him ; and in case 
 such employer or agent shall refuse to perform such contract or 
 agreeme. , without shewing a sufScient excuse therefor, such 
 Justice ^^ay impose upon such employer a penalty aot exceeding 
 twenty dollars, to be levied on the goods and chattels of such 
 employer by warrant of such Justice ; and in case such warrant 
 shall not be satisfied, the said Justice may issue his warrant to 
 apprehend said employer and commit him to prison for a period 
 not exceeding thirty days. 
 
 5. On the performance of such contract or agreement on 
 the part of the servant, the balance of wages due thereon shall 
 be paid in lawful current money of this Colony to the person en- 
 titled thereto, any contract cv agreement to the contrary not- 
 withstanding. 
 
 (a) TIas mr.8ter should notify the servant immediately after hig neglect 
 that he intends to charge him foic it. Othermse, it may be held that he has 
 condoned the o&ence by receiyfsg him back and taking r-^ notice of his neglect 
 of duty or absence. 
 
^3^ Masters and Servants in the Fishery, 
 
 0. If any person shall harbor or employ the servant of 
 another, after notice of his being such servant, any Justice may, 
 upon complaint upon oath, issue his warrant for the apprehen- 
 sion of such harborer cr employer ; and upon conviction, the 
 said Jastice shall impose upon such harborer or employer a pen- 
 alty of nut less than twenty dollars or more than forty dollars, 
 to be levied on the goods and chattels of such >arborer or em- 
 ployer in manner prescribed by the fourth se aon of this chap- 
 ter ; and, upon failure to recover such penalty, the said Justice 
 shall commit the said harborer or employer to gaol in manner 
 and for the time provided by the said section , and the said Jus- 
 tice shall also make an order on such harborer or employer for 
 the payment by him to the first employer of the wages earned by 
 such servant during the time he was employed by the said har- 
 borer or emplo} or, and which shall be recovered in the same man- 
 ner and by the same process as is herein prescribed for the recov- 
 ery of the penalty mentioned in this section, together with costs. 
 
 7. Any sealer who, by refusing to work or otherwise with- 
 out sufficient re'^son, shall be a party to causing any master of 
 a sealing vessc while at sea, to give up the voyage before the 
 time stated in lue agreement for its duration and termination, 
 shall, on conviction in a summary manner before any Justice, 
 be imprisoned for a period not exceeding one month. 
 
 8. AU outfits and supphes advanced to any fisherman, shore- 
 man, shareman or other servant, shall be charged and paid for 
 at the reasonable and current prices for outfits and supphes 
 where the same shall be delivered. 
 
 9. In case any employer shall, during the service of such 
 person, sell any intoxicating liquor to him, such employer shall 
 not be entitled, m any such case, to deduct out of the wages or 
 earnings of such person any charge or claim such employer may 
 have or make for any liquor sold or delivered to such person at 
 any time during his service ; and no person shall recover any 
 sum of money for any intoxicating liquor supphed to any such 
 person during his service. 
 
 10. Every vessel employed in the seal or Labrador fisheries 
 
 of this rininnv aliall Tipfn"" i->v'>/»gq'1-"'» '-'\ 1- ■•- - 
 
Masters and Servants in the Fishery. 
 
 233 
 
 provided with a medicine chest containing a sufficient supply of 
 medicine ; and the master of every such vessel shall, on clearing 
 for such voyage, be compelled to produce to the Collector or Sub- 
 Collector a certificate under the hand of some respectable medi- 
 cal practitioner or druggist, of hmcIi vessel being provided with 
 a sufficient medicine chest as aforesaid, or otherwise satisfy such 
 Collector or Sub-Collector of the fact. 
 
 11. In all agreements with sealing crews aforesaid, there 
 shall be two parts, respectively signed by tlie master and the 
 crew ; and one part shall remain with the master or owner, and 
 the other part shall be left with any one of the crew who shall 
 be selected by thom or a majority of them for that purpose, or 
 shall be posted and kept in some conspicuous part of the ship. 
 
 12. All penalties imposed under this chapter shall be paid 
 to the party proceeding for tbe same, and all proceedings under 
 this chapter shall be prosecuted and conducted in a summary 
 manner, before any one or more Justice or Superior Court, and 
 such Justice or Court may compel the attendance of witnesses 
 and the production of all necessary documents. 
 
 Servants Carrying Away Boats. («) 
 
 13. Any fisherman, shareman, shoreman, or other servant, 
 engaged in tbe fisheries of this Island or its dependencies, or 
 the partner of a.ny fisherman or planter so engaged, who shall, 
 whether for the purpose of aiding his desertion or otherwise, 
 wrongfully, or contrary to the terms upon which he may have 
 the temporary use of the same, take, and carry away, any vessel, 
 boaot, sails, oars, nets, or other property whatsoever, used in the 
 prosecution of the fishery, from any person engaged in carrying 
 on the fishery, either as a merchant, planter or otherwise, when 
 such taking and carrying away shall not amount to larceny, 
 shall be guilty of a misdemeanor. 
 
 (a) This and tbe following sections are taken from the Act 38th Vic, c. 9. 
 The Act was passed to punish fishermen and sharemen, ruuuiner away from 
 their masters when the voyage is bad, and taking boats, &o. ; such taking away 
 of boats, when done for the purpose of escaping, not being in law larceny,, 
 there being no intent to make the boats, &c , permanently their property. See 
 
 F F 
 
234 
 
 Masters and Servants in the Fishery. 
 
 14. Any person charged with such misdemeanor may be 
 tried and convicted in a summary manner before a Stipendiary 
 Magistrate, under the provisions of the Imperial Act, 11 & 12 
 Victoria, cha;pter forty-three, entitled " An Act to facilitate the 
 performance of the duties of Justices of the Peace out of Ses- 
 sions, within England and Wales, with respect to summary con- 
 victions and orders," and shall, on conviction, be subject to im- 
 prisonment for a period not exceeding six months, or the said 
 Magistrate may impose the alternative punishment of a fine not 
 exceeding one hundred dollars, which fine may be paid by the 
 offender on conviction or at any time during his imprisonment. 
 
 15. Out of the fine so imposed, the convicting Magistrate 
 may apportion such an amount (either the whole or part of such 
 fine) as shall appear to him, from the evidence, a reasonable 
 compensation to the party aggrieved for the value of the property 
 taken, or for the amount of injury done ; and such amount, 
 when received, shall be paid over to the party aggrieved, and 
 shall be a bar to all civil proceedings whatsoever, for the same 
 cause ; the remainder of the fine, if any, shall be paid to the 
 Receiver General, for the use of the Colony. 
 
 16. For the purpose of giving jurisdiction under this Act, 
 all offences shall be deemed to have been committed either with- 
 in the District or dependency where such taking occurred, or in 
 any District in this Island in which the offender shall be found. 
 
 17. All prosecutions under this Act shall be commenced 
 within twelve months after the commission of the offence. 
 
 18. No conviction or order under this Act shall be quashed 
 for want of form, and no warrant of commitment shall be held 
 void by reason of any defect therein : Provided tliere is a valid 
 conviction to maintain such warrant, and it is alleged in ths 
 warrant that the party has been convicted. 
 
 19. FoEM OF Complaint (Cap. 20.) — 
 
 NortJiern District,) 
 Island Cove, > 
 
 to wit : 
 
 Newfoundland. 
 
 The complaint (a) of John Jones, of Island Cove, planter, taken 
 
 (a) On being brought before the Magistrate, Stiggins will be asked what 
 u6 nas to saj in answer to uis ssid coiupl&iut, nui if he uuiuits ihut ibo coin- 
 

 Evidence, 
 
 235 
 
 upon oath, who saith, — " Job Stiggina, my servant, shipped by a writteu 
 shipping paper, is now absent from my service without leave (or refuses 
 or neglects to perform his duty loithout sujfioient cause.) I therefore pray 
 a warrant for his apprehension." 
 
 John Jones. 
 
 Newfoundland. 
 
 Sworn, &c. 
 
 Warrant. 
 
 Northern District, i 
 Island Cove, > 
 
 to wit : J To the Constables of the Northern District. 
 
 Whereas complaint, on oath, has this day been made before me, the 
 undersigned Justice of the Peace for the said District, by John Jones, 
 that (here state complaint.) These are therefore to command you forth- 
 with to arrest Job Stiggins and bring him before me or some other 
 Justice for the said District, to answer the said complaint, and to be 
 further dealt with according to law. 
 
 Qiven under my hand, &c. 
 
 T.Wills, J. P. Q 
 
 CHAPTER XXI. 
 
 EVIDENCE. 
 
 Sections 
 
 1. —General observations. 
 
 2. — Objection to credibility, not 00m- 
 poteuoy cf witness ; exceptions. 
 
 3. — Husband or wife of informer. 
 
 4. — Defendant not competent or com- 
 pellable in indictable offences. 
 
 5. — Summary proceedings ; defendant 
 competent but not compellable. 
 
 Sections 
 
 6. — Husband or wife not compelled 
 to disclose communications be- 
 tween them. 
 
 7. — Privilege of clergymen. 
 
 8.— Exceptions-Idiots, lunatics, chil- 
 dren, persons under sentence of 
 death. 
 
 9. — Want of religious belief. 
 
 plaint is true, he should then be asked whether he will return to his master's 
 service ; if he will do so, and the master agrees to take him back, this ends the 
 matter. In the cases the Magistrate should do all in bis power to reconcile 
 the parties, and never imprison the servant unless compelled to do so by his 
 obstinacy in refusing to serve his master without lawful excuse. Never act 
 vithout sssuiGT the Hhi^ninu nU:t}er, snd that it is oroDGrlv p.i" ^t^d. m^jl 'ilv'avg 
 bear in mind the paramount necessity of not interrupting the fishery. 
 
236 
 
 Evidence. 
 
 Sections 
 
 10.— Authority to admiiuster oath. 
 
 11.— Form of oath. 
 
 12. — Distinction between foim and 
 substance of oath. 
 
 13. — Affirmation instead of oath, in 
 certain cases. 
 
 1 4. — Punishment for false affirma- 
 tion. 
 
 15- — Party objecting to be sworn, may 
 make declaration. 
 
 16. — Examinatj jn and cross-examina- 
 tion. 
 
 Sections 
 
 17. — How far a party may discredit 
 
 his own witness. 
 18. — Proof of contradictory statements 
 
 of adverse witness. 
 19. — Cross-examination on previous 
 
 statemeuts. 
 20. — Previous conviction — how proved. 
 21. — lie examination. 
 22. — Judicial notice of facts. 
 23. — General rules of evidence. 
 21. — Public documents. [threat. 
 
 25. — Evidence obtained by promise or 
 
 1. There is uo difference as to the rules of evidence between 
 civil and criminal cases ; the evidence that may be received in 
 one case may bo received in the other, and the evidence that is 
 rejected in a civil case ought to be rejected in a criminal case. 
 The amount of proof however, required, varies with the different 
 proceedings before Justices ; for instance, in a prehminary en- 
 quiry for an indictable offence, the evidence must raise a strong 
 or probable presumption of the guilt of the party charged, to 
 justify the Justice in sending him for trial. [See note, p. 83,] 
 In summary penal proceedings the proof of guilt must be full 
 and convincing, whilst in matters of civil jurisdiction a mere 
 ■preponderance of proof will suflice to establish the case. The 
 presumption of innocence, that is, that all accused persons aro 
 innocent until proved guilty, thus throwing the whole burthen 
 of proof of guilt on the prosecutor, also marks one of the great 
 distinctions between the evidence required in civil and criminal 
 business. 
 
 2. At the present day it may be laid down as a general rule 
 that objections can only be taken to the credibility, not to the 
 competency, of witnesses. There are, however, some exceptions, 
 which are thus summarized ; — the informer or prosecutor or com- 
 plainant is competent and compellable to give evidence for him- 
 self or defendant, in all criminal proceedings, indictable and 
 summary. 
 
 3. The husband or wife of the informer or prosecutor or com- 
 plamant is Ukewise competent and compellable to give evidonco 
 
Evidence. 
 
 ^37 
 
 for the Crown, as well as for the defendant, and also against each 
 other, in cases of personal injuries committed on one another. 
 
 4. The defendant {the parti/ charged) is not competent or 
 compellable to give evidence for or against himself or herself in 
 indictable offences, nor is his wife, except in cases of personal 
 injury committed by one on the other, where the evidence of the 
 injured party is admissible against the other. 
 
 5. In summary j)roceedings the defendant or his wife is a 
 competent witness, but is not compellable, the words of the pro- 
 viso in sec. 8, cap. fi3, Consol. Stat., being, — 
 
 " Provided that uothiug herein contained shall preclude a defendant 
 or the husband or wife of a defendant from becoming a witness, should he 
 or she think fit, in any summary proceedings of a criminal or other nature." 
 G. Sec. 9 of the same chapter provides that, — 
 
 " No husband shall be compellable to disclose any communication 
 made to him by his wife during the marriage, and no wife shall be com- 
 pallable to disclose any comiuunication made to her by her husband dur- 
 ing the marriage." 
 
 7. Sec. 11 of the same chapter provides that, — 
 
 " A clergyjuau or priest shall not be compellable to give evidence as 
 to any confession made to him in hia professional character." 
 
 8. On the above statutory exceptions to the principle of 
 universal competency, certain common law exceptions must bo 
 grafted ; for instance, persons who have not tho use of reason 
 are from their iniirmity utterly incapable of giving evidence, and 
 are therefore excluded as incompetent witnesses, as itliots, luna- 
 tics, children. [Powell, 1'^ 1 
 
 The evidence of witL js at any age is admissible, if it 
 appear that they have sufficient discretion and understand the 
 moral obligation of an oath. [Bac. Abr. tit. " evidence."] 
 
 Deaf and dumb persons, if they have sufficient understand- 
 ing, may give evidence, either by signs or through an interpreter 
 or in writing. [Powell, 17 & 18.] 
 
 A person under sentence of death is incapable of being a 
 witness. [Pieg. v. Webb, 11 Cox, c. c. 183.] 
 
 0. No person is a competent witness unless he beheves in a 
 Supreme Being, who will punish him either in the pi'-isent or m 
 the future life for perjury. [Powell, 19, 21.] 
 
 (k. 
 
 n 
 P 
 
^ 
 
 238 
 
 Evidence. 
 
 10. It may he laid down as a general rule that wherever 
 Justices are authorized by law to hear and determine or examine 
 witnesses, they have incidentally the power to examine on oath. 
 [2 P/«/. Ev., 70S.] In summary proccediugs, (see page* 1 00 » 
 11 & 12 Vic, c. 42, s. 15.) 
 
 " Every witness to be examined upon oath or aHu'iniition, and the 
 Justice shall Lavo full power and authority to administer to every such 
 witness the usual oath or ailirmation." In indictable offences (page 5i)) 
 " Such Justice shall, before any witness is examined, administer to such 
 witness the usual oath or alHrmation, which such Justice shall have full 
 power and authority to do;" (11 & 12 Vic, c. 42, s. 17), and by sec. 17, 
 cap. 23, Oonsol. Stat. : " Every Court, Judge, Justice, Oilloer, Commis- 
 sioner, Arbitrator, or other person, now or hereafter having by law or by 
 consent of parties, authority to hear, receive, and examine evidence, is 
 hereby empowered to administer an oath to all such witnesses as are le- 
 gally called before them, respectively." 
 
 11. The oath is generally in the following form : (a) 
 
 " The evidence which you shall give on the present enquiry (or 
 touching this application or complaint, as the case may he) shall be the 
 truth, the whole truth, and nothing but the truth. So help you God." 
 
 12. The particular form or ceremony of administering an 
 oath is quite distinct from the substance of the oath itself. 
 [1 L^hll. 8, 9th ed.] The form of oath under which God is in- 
 voked as a witness or as an avenger of perjury, is to bo accom- 
 modated to the religious persuasion which tUo swearer entertains 
 of OoD, and to be administered in such form as to be bindhig on 
 his conscience. Within the limits of tl^iis little work, the various 
 forms of oaths taken by the different religious persuasions, can- 
 not be given. The swearing upon the Holy Evangelists is bind- 
 ing both on Eoman Catholics and Protestants. 
 
 13. Sec. 27 y.L the 23rd chapter of tho Consolidated Sta- 
 tutes contains the following provision : 
 
 " If any person called as a witness, or required or desiring to make 
 
 (a) Form of Interpretefs Oath. — You shall truly auJ f.iithfully interpret 
 the evidence about to be given and all other matters and things touching tho 
 present charge, and the {French, as the case miij he) language into tho English 
 lansTuacffi. and the English lansnass into the ^French-, Sic^-y laD^uii'^o accord- 
 ing to the best of your skill and ability. 3o kelp you God. 
 
Evidence. 
 
 239 
 
 an affiiliiv't or depositioi), shall refuse or be iinwillii)g from nllegcd con- 
 Bcientiona motives io be sworn, the Court or Judge, or other presiding 
 ollicer, or person qualified to take affidavits or depositions, may, upon 
 being satisfied of the sincerity of such objection, permit such person, 
 instead of being sworn, to make his or her solemn allirmation or decla- 
 ration, in the words following — videlkit : 
 
 " I, A. B., do solemnly, sincerely, and truly affirm and declare, that 
 the taking of any oath is, according to my religious belief, unlawful ; and 
 I do also solemnly, sincerely, and truly afhrm and declare, &o." Which 
 solemn affirmation and declaration shall be of the same force and effect 
 as if such person had taken an oath in the usual form. [Sec. 27.] 
 
 14. If any person making such solemn affirmation or de- 
 claration shall wilfully, falsely, and maliciously affirm or declaro 
 any matter or thing which, if the same had been sworn in the 
 usual form, would have amounted to wilful and corrupt perjury, 
 every such person so offending shall incur the same penalties as 
 by the laws and statutes of this Colony are or may be enacted 
 or provided against persons convicted of wilful and corrupt per- 
 jury. [Sec. "18.] {Perjm^, see p. 89, Manual.) 
 
 15. If any person called to give evidence in any Court of 
 Justice, whether in a civil or criminal proceeding, shall object 
 to take an oath or shall be objected to as incompetent to take an 
 oath, such person shall, if the presiding Judge is satisfied that 
 the taking of an oath would have no binding effect upon his 
 conscience, make the following promise and declaration : 
 
 " I solemnly promise and declare that the evidence given by me to 
 the Court shall be the truth, the whole truth, and nothing but the truth." 
 
 And any person who, having made such promise and decla- 
 ration, shall wilfully and corruptly give false evidence, shall be 
 liable to be indicted, tried and convicted for perjury, as if he had 
 taken m oath. [Sec. 29.] 
 
 1 J. As TO THE Mode of Examination On an examination 
 
 in ch;ef, {that h, tvhere the party puts questions to his own witness) 
 a witness must not be asked leading questions {leading questions 
 are questions put in such a form as to suggest the desired answers.) 
 There are, however, some exceptions to this rule ; (1), where the 
 witness proves adverse to the examining party, leading questions 
 may be asked by pormissioa of the Court ; (2), where a witness 
 
 
240 
 
 Uvidence. 
 
 has apparently forgotten a circumstance, and by inspecting a 
 memorandum to refresh his memory, [Powell, 87G, 879] ; (3), 
 where the object is to contradict another witness as to a certain 
 fact ; (4), where the object is to identify persons ; (5), where the 
 question is merely introductory to another. On cross-exami- 
 nation, an adverse witness may he asked leading questions. 
 A witness must only be asked questions of facts which are re- 
 levant and pertinent to the issue, he cannot be asked irrelevant 
 questions or questions as to his own inferences from a personal 
 opinion of facts. 
 
 17. A party producing a witness shall not be allowed to im- 
 peach his credit by general evidence of bad character, but be 
 may, in case the witness shall in the opinion of the Judge prove 
 adverse, contradict him by other evidence, or by leave of the 
 Judge prove that he has made at other times a statement incon- 
 sistent with his present testimony ; but before such last men- 
 tioned proof can be given, the circumstances of the supposed 
 statement, sufficient to designate the particular occasion, must 
 be mentioned to the witness, and he must be asked whether or 
 not he his made such statement. [Consol. Stat., c. 23, s. 80.] 
 
 18. If a witness, upon cross-examination as to a former 
 statement made by him relative to the subject-matter of the 
 cause and inconsistent with his present testimony, does not dis- 
 tinctly admit that he has made such statement, proof may be 
 given that he did in fact make it ; but before such proof can be 
 given, the circumstances of the supposed statement, sufficient 
 to designate the particular occasion, must be mentioned to the 
 witness, and he must be asked whether or not he has made such 
 statement. [Idem, sec. 31.] 
 
 19. A witness may be cross-examined as to previous state- 
 ments made by him in writing, or reduced into writing, relative 
 to the subject matter of the cause, without such writing being 
 shown to him ; but if it be intended to contradict such witness 
 by the writing, his attention must, before such contradictory 
 proof can be given, be called to those parts of the writing which 
 are to be used for the purpose of so contradicting him : Provi- 
 ded that it shall be competent for the Judge, at s,ny time during 
 
Evidence. 
 
 241 
 
 the trial, to require the production of the writing for his inspec- 
 tion, and he may thereupon make such use of it for the purposes 
 of the trial as he shall think fit. [Idem, sec. 82.] 
 
 20. A witness in any cause may be questioned as to whc. 
 he has been convicted of any felony or misdemeanor ; and upon 
 being so questioned, if he either deny the fact or refuse to an- 
 sver, the opposite party may prove such conviction ; and a cer- 
 tificate, containing the substance and effect only (omitting the 
 formal part) of the indictment and conviction of such offence, 
 purporting to be signed by the Clerk of the Court where the 
 offender was convicted, or by the Deputy of such Clerk or Officer, 
 (for which certificate a fee of one dollar, and no more, shall be 
 demanded or taken) shall, upon proof of the identity of the per- 
 son, DO sufficient evidence of the said conviction, without proof 
 of the signature or official character of the person appearing to 
 have made the same. [Idem, sec. 83.] 
 
 21. Ee-Examination. — (After, say the defendant's cross-ex- 
 amination, the plaintiff again asks his witness questions, this is 
 known as re-examination.) The office of re-examination is to 
 be confined to shewing the true color and bearing of the matter 
 elicited by cross-examination, and new facts or new statements, 
 not tending to explain the witness's previous answers, are not 
 to be admitted. [Taylor on Ed., 627.] 
 
 22. As a general rule, everything has to be proved in a 
 Court of Justice, but there are certain facts of which all Courts 
 in this Colony are bound to take judicial notice, without proof, 
 viz. : the Acts of the Legislature, when purporting to be printed 
 by the Queen's Printer for the Island, [Consol. Stat., p. 2,] 
 the Imperial Statutes, Royal Proclamations, the Almanac, the 
 divisions of the year ; also the Royal Gazette of this Colony, f.ad 
 all Proclamations and Notices therein. 
 
 23. General Rules. — The following are some of the gene- 
 ral rules established by the decisions and practice of the Supe- 
 rior Courts, and to which the proceedings before Justices should 
 conform : — That a person is presumed to be innocent until the 
 contrary be proved ; that a party shall not be allowed to put 
 leading queationa, that is, questions iu such a form aa to suggest 
 
 GO 
 
242 
 
 Evidence. 
 
 the answer desired, to his own witness ; that hearsay cvidejico 
 is inadmissible, that the statement of one prisoner is i.ot evi- 
 dence either for or against another prisoner ; that conversations 
 which liave taken phico out of the hearing of the party It bo 
 affected cannot be given in evidence ; tliat the evidence of an 
 accomphce (a) is admissible, but ought not to be fully relied 
 upon, unless it be corroborated by some collateral proof; that 
 no person is bound to answer a question which may tend (b) to 
 criminate himself ; that if a witness choose to answer such ques- 
 tion, his answer is conclusive ; that, in general, the opinion of a 
 witness as to an> Tact in issue is inadmissible, unless upon ques- 
 tions of skill and judgment ; that the onus prohmidi lies upon the 
 party asserting the affirmative ; that the best evidence should 
 be given of which the natui-e of the case is capable ; that secon- 
 dary evidence is therefore inadmissible, unless some ground bo 
 previously laid for its introduction, by showing the impossibihty 
 of procuring better evidence ; that parol testimony is not recei- 
 vable to vary or contradict the terms of a written instrument ; 
 that a person shall not bo allowed to speak to the contents of a 
 written instrument, unless it be first proved that such document 
 is lost or destroyed, or, if in the possession of the adverse party, 
 that notice has been given for its production ; that a witness 
 may be allowed to refresh ."lis memory by reference to an entry 
 or memorandum made by himself shortly after the occurrence 
 of which he is speaking, although the entry or memorandum 
 could not itself be received in evidence ; that when positive evi- 
 dence of the facts cannot be supplied, circumstantial evidence is 
 admissible ; and that circumstantial evidence should be such as 
 to produce nearly the same degree of certamty as that which 
 arises from direct testimony, and to exclude a rational proba- 
 bility of innocence, (c) 
 
 (a) This is not a rule of law, but of practice, and as such approved of by 
 the superior courts, [R. v. Stulbs, 25 L. J. 16.] 
 
 (&) The privilege of refusing to answer such a question is that of the 
 witness only. [JR. v. Kinglake, 22 L. T. (N.) 335.] 
 
 (c) Circumtantial Evidence.— The description of evidence called circura- 
 
 cvteii— H 1 j_ — .~o, UVf, H.t/ lixijla ouugtlb, Qui » iaCi UX iWHU IXifBl WUCB 
 
Evidence. 
 
 243 
 
 24. Aa rospocls tho proof of public dooamonts, tho Cou- 
 Bolidated StatutoH, hoc. 13, cup. 23, provides, — 
 
 " I'iVery document, whicli by any law now in force or luirenfter to bo 
 in force, is or sliall bo admi88il)le in ovideneo of uny particular in any 
 British Court of Justice, without proof of the aoal or Btanip or signature 
 authenticating the same, or of the Judicial or otlioinl character of tho 
 I)ersuii appearing to have signed tlie same, shall be admitted in evidence, 
 to the came extent and for t same puriwjsea, in any Court of .lustico ia 
 this Colony, or before any per^^on having by law or by consent of parties 
 authority to hear, receive and examine «vid(3noe, without proof of tho 
 seal or stamp or signature authenticating tlio same, or of the judicial or 
 olUcial character of the i)orson appearing to have signed tho same." 
 
 And section 15 provides that, — 
 
 " Whenever any book or other document is of such a public nature 
 na to be atlmissiblo in evidence on its mere production from the proper 
 cnstody, and no statute exists which renders its contents proveable by 
 means of a copy, a copy thereof or extract therefrom shall be admissible 
 in evidence in any Court of Justice, or before any person now or here- 
 after having, by law or consent of parties, authority to hear, receive, and 
 examine evidence : Provided it bo proved to be an examined copy or 
 extract, or provided it purport to be signed and certified, as a true copy 
 or extract, by the odlcor to whoso custody tho original is entrusted ; and 
 which officer is hereby required to furnish such certified copy or extract 
 to any i^rson applying at a reasonable time for the same, upon payment 
 
 it may be deduced in the way of proaumption or inference. Upon this point 
 it ia said [1 East, P. C, c 5, «. 0, p. 223.] " Perhaps strong circumatautial 
 evidence, in cases of crimes committed for tho moat part in secret, is tho most 
 Batisfactory of any from whence to draw tho conclusion of guilt ; for men may 
 bo seduced to perjury by many base motives, to which the sooret nature of tho 
 oftenoe may somotimes afford a temptation ; but it can scai-cely happen that 
 many circumstances, especially if they bo such over which tho accuser could 
 have no control, forming altogether tho links of a transaction, should all un- 
 fortunately concur to fix tho presumption of guilt on an individual, and yot 
 such a conclusion bo erroneous." The following rules are given in Starlde on 
 evidence, 3rd Ed., p, 571 to 575 :— 
 
 1.— Tho circumstances from which tho conclusion is drawn should be fully 
 established. 
 
 2.— All tho facts should bo consistent with the hypothesis (i.e., supposition.) 
 
 3. — Tho circumstances should bo of a oonclusive nature and tendency. 
 
 4. — The circumstances should to a moral certainty actually exclude every 
 hypothesis, but tho one proposed to bo proved. [Okc, p. 8G.] 
 
244 
 
 Evidence. 
 
 of a reasonablo Bum for the same, not exceeding ten centa for every folio 
 of ninety words." 
 
 And under Imperial Acts the mode of proving public non- 
 judicial documents is prescribed by 8 & 9 Vic, c. 118, s. .1, and 
 14 & 16 Vic, c 99, s. 14, and under " The Documentary Evi- 
 dence Act, 1868," (PI & 82 Vic, c 87), various documents, such 
 as proclamations, orders, or regulations of the Queen or Privy- 
 Council, or by authority of the Treasury, &c, may bo proved by 
 a copy of the Gazette, or a copy by the government printer, or 
 in certain cases by an extract or copy certified by the proper 
 officer of the department. 
 
 25. EviDENOB OBTAINED BY Promisb ob Threat.— Any evi- 
 dence which has been obtained from a prisoner in consequence 
 of any threat, promise, or inducement., [R. v. Garner, l^i L. J. 1] 
 as, •• You had better speak the truth ;" «« You had better speak ; 
 it is of no use denying it, as A. B. swears he saw you do it ;" or 
 the like, and made to the prisoner by any person concerned in 
 the apprehension, exumiuation, or prosecution of the prisoner, 
 will render such evidence inadmissible ; but any facts discovered 
 in consequence of information so obtained may bo given in evi- 
 dence. But the words " You need not say anything to criminate 
 yourself ; what you do say will bo taken down and used as evi- 
 dence against you," used by a pohceman, do not render the con- 
 fession inadmissible [R. v. Baldry, 21 L. J. 180 ; see also R. v. 
 Luckhurst, and R. v. Sleeman, 23 L. J. 18 and 19] ; nor an in- 
 ducement held out or advice given by a fellow prisoner [R. v. 
 Parker, 25 J. P. 874] ; nor the prosecutor (the master) advising 
 his uervant (the prisoner) to answer any questions truthfully, 
 &c [.'?. V. Jarvis, 1 L. R. (C. 0.) 96] ; nor the mistress of the 
 prisoner in the presence of a police officer, saying, '* You may 
 as well tell the truth ; it is sure to be found out." [R. v. Edimrds, 
 88 J. P. 119, 145] ; nor a mother saymg to her son, '♦ You had 
 better, as a good boy, tell the truth [R. v. Reeve, 26 L. T. (N.) 
 403.] 
 
Practice. 
 
 245 
 
 CHAPTER XXII. 
 
 PRACTICE. 
 
 Sections 
 
 1. — Introdnotory obsorrations. 
 2. — Guilty knowloilqe and iutent. 
 8. — Oaster of juriadiutioa by claim of 
 
 right. 
 4. — Estoppel — res adjadioata. 
 6. — Majority decide. 
 6. — Refusal to adjudicate. 
 7. — Judgment deferred. 
 8. — ^Altering judgment. 
 
 SEcrtoNS 
 
 9.— Gxring time for payment, 
 10. — Part jayment. 
 11. — Waivor oL' irregularity. 
 12 . — Commitment. 
 13. — Printed Forma. 
 14.— Seal. 
 
 16. — Keeping Records. 
 16. — General obtorvations. 
 
 1. Mv'dt of the matters which would have come under this 
 head have been referred to in the notes to the various Chapters. 
 I considered that the Magistrate would find it more convenient 
 to have his attention directed at once to the different points of 
 practice, as they wore referred ;0 in the text ; this Chapter, there- 
 fore, will only refer to a few necessary topics which could not be 
 convenienth' placed in notes. 
 
 2. It is rrost important for the Justice to bear in mind that 
 it is one of the necessary ingredients in • or f!' .al proceedings 
 that the defendant should have comm offence with a 
 a'iminal knowledge and intent ; the intent, liowever, sometimes 
 cannot be positively proved, it can only be imphed from overt 
 acts ; and every man is supposed to inteuu the necessary and 
 reasonable consequences of his own acts. [Arch, crim.jjlead. ,2CS.] 
 There are some cases in which the intent is inferred as a neces- 
 dftry conclusion from the act done, as whore a man knowingly 
 utters a forged instrument as a genuine one, the intent to de- 
 fraud the party to whom he utters it is a necessary inference. 
 For instance, (case cited in Arch. 325) if, under color of arrears 
 of rent, though none be ^tually due, I distrain or seize my 
 tenant's cattle, this is trespass, (a civil injury) not felony, (a cri- 
 minal offence.) Where a shareman, riismissed by his master, 
 went to his master's Btort, broke it open, and took five quintals 
 
 K 
 
246 
 
 Practice. 
 
 of fish, wLicb he leHeved was his share of the fish, this would 
 not be larceny, (a criminal offence) but a cicil injury trespass. 
 The claim of right, as in the case of this servant, may be wholly 
 unfounded, but, if it is proved that the defendant, bona fide, be- 
 lieved that he had such a right, it would do away with the crimi- 
 nahty of his proceeding ; it will thus be seen that a guilty know- 
 ledge or intention is a necessary ingredient vi ill crir^inal pro- 
 ceedings, with the exception of some few cases which are made 
 triable summarily under certain statutes, such as servants and 
 apprentices absenting themselves from their master's service, 
 and which in reality partake more of a civil than a criminal 
 character, the wordij malicioush/, wil/uU,,, &c., having been omit- 
 ted from the statute creating the offence. This guilty knowledge 
 and intent marks one of the great distinctions which separates 
 criminal from civil proceedings. Every unneighbourly and 
 wrong act is not necessarily criminal ; for instance, in the case 
 mentioned in pages 14 & 15, if Snow had cut down the fence in 
 the night, he could not be summoned for maliclaus injury, his 
 bona fide belief in his right to do it making his act a civil irjnry, 
 for whicn damages might be recovered against him, not a crimi' 
 nai offence. This subject Is also referred to under the head of 
 larceny, in the Appendix of Forms, at the end of the Book. 
 
 3. Ouster of Jurisdiction by claim of right. — As this subject 
 has been already treated of in pages 14 and 15, and at page 180, 
 note, it only remains to say that where the matter is a doubtful 
 one, it ia enough to stay the jurisdiction. Justices cannot give 
 themselves jwisdiction by an erroneous and capricious decision. 
 [Stone, 485.] " The jurisdiction is not ousted by the bona fide 
 
 claim ot a right tchich cannot exist at law." A claim of right is 
 not waived by the defendants calliug evidence on the mer^*'.. 
 [Stone 435.] 
 
 4. Estoppel or " lies Judicata" (a)— Latin— fneans where 
 the matter has been adjudicated on. If an information or com - 
 
 (a) The plea of res judicata applies only whore the identical question 
 once decided ia again raised betwoan tho eame parties. ILeith Hart>cr Case, 
 I L. B. {Appeal Cases) i7.j 
 
Practice. 
 
 247 
 
 plaint be dismissed, the Justice may, if required, make an order 
 of dismissal, and give the defendant a certificate thereof, the 
 production of which will be a bar to any subsequent information 
 or complaint for the same matter against the same party. [11 
 i'. 12 Vict., c. 43, s. 14.] The certificate supersedes thenecessi- 
 ty for othe proof, but if such certificate be not produced, it will 
 be for the defendant to prove by other evidence, not only that 
 the former information was for the same matter with which he 
 is charged a second time, but that it was dismissed upon tho 
 merits, and that tho decision was intended to be final. If this 
 be done, the plea of autrefois acquit will, it is conceived, be avail- 
 able in like manner as in indictments. [R. v. Newbury, 15 J. p., 
 821.] It has nowever, been held that a second application may 
 be made a ,'ainst a putative father under the Bastardy Act, al- 
 though the first was dismissed for want of satisfactory corrobora- 
 tive evidence, [E. v. Machen, 18 L. J. 213] ; and there may be 
 analogous cases in proceedings excepted from the oper»,tion of 
 or not coming within the 11 & 12 Vict., c. 48, to which the same 
 principle may apply. But whenever the mformation or com- 
 plaint is witJUln that Act, a certificate of dismissal will, it is con- 
 ceived, be an effectual bar to a second application. If, however, 
 the information or complaint is dismissed for war i of form, or 
 from a mistaken view of jurisdiction, and without any adjudica- 
 tion on the merits, a second inforrc /.on or complaint may be 
 laid, and the plea of autrefois acqvit ;11 not avail. [See R. v 
 Bidgivaij, 1 D. <£• R. 88, and R. v. Harrington, 28 J. P. 485.] If 
 the same question has been raised and disposed of, although in 
 another form, by ?. different Court, the Justices cannot re-opea 
 it. When two Courts have concurrent juri ;diotion, the decision 
 of one Court will jn-ima facie be res judicata in the other. 
 
 6. Majority decide.— The judgment will be aooordin'^ to 
 the opinion of tbe majority of the Justices present at the hear- 
 mg. The ohairman may, of course, vote with tlie other Magis- 
 trates, but in case of equahty ho has no double or casting vote. 
 If the Justices are equally di.Med, there can he no adjudication, 
 and the case may be again heard on a {rcaii information, or 
 adjourned by the majority to the next sitting [25 J. P. 77,] when 
 
248 
 
 Practice. 
 
 the case can be re-heard with the assistance of other Justices. 
 [81 J. P., 788.] The Justices may alter their judgment during 
 the continuance of the same sitting. Two or more Justices may 
 lawfully do whatever any one Justice may do alone. 
 
 6. Eepusal to Adjudicate.— If the Justices, from a mistaken 
 opinion as to their jurisdiction, refuse to adjudicate, a rule may 
 be obtained --nder 11 & 12 Vict., c. 44, s. 5, requiring them to 
 show cause why they should not hear and adjudicate. If, how- 
 ever, they have already adjudicated on the merits, although 
 their decision may be erroneous, their judgment cannot be re- 
 viewed, except on a case granted under 20 & 81 Vic, c. 48. [See 
 E. V. Paijnter, 26 L. J. 102, and R. v. Dayman, Id. 128.] Where 
 the Justices dismissed the information against one of several 
 owners of a colliery, on the grounc" that the owners were not 
 joined as co-defendants, the Court granted the rule, [see B. v. 
 Broicn, 26 L. J. 188] ; and the following test as to the interfer- 
 ence of the Court of Queen's Bench in a partly heard case, was 
 suggested by Lord Campbell :~" If the objection be such that 
 whatever the merits of the case, whether the defendant be guilty 
 or not, the Justices hold that they cannot decide on the merits 
 owing to the objection— for instance, either want of parties or 
 notice— such holding is a decHning of jurisdiction and not an 
 adjudication, and in such a case it is the duty of the Court to 
 compel the Justices to proceed." 
 
 7. Judgment Deferred.— The Justices are not obliged to fix 
 the fine or punishment at the instant of conviction, but may 
 take time either for the purpose of informing themselves as to 
 the legal penalty, or the amount proper to be imposed, or of 
 taking advice as to the law apphcable to the case. 
 
 8. Altering Judgment.— Alterations in the judgment, either 
 in the extent of imprisonment or amount of fine, are occasionally 
 made at Sessions, but it is essential that the alterations should 
 be made at Sessions, during the sitting of the Magistrates. 
 
 [61 J. P., 161.] 
 
 9. Giving Time for Payment.— Under several Acts of Par- 
 liament Justices are empowered to direct payment of a fine either 
 
 immediatfilv nr wi t.ln'n annli firnp oa +lint» *v>r.-.. 4-u;« 
 
 J — . — **w** ^..^j^^ ^y L'ijtvj' xLiixjr vuix; 
 
 ,U At. 
 
 \XT1 
 
 TTUCU 
 
Practice. 
 
 249 
 
 time is given, it seems necessary, before issuing a warrant of 
 distress or commitment, to summon the defendant to show cause 
 why the warrant should not issue. In Arnold v. Dlmsdale, 22 
 L. J. IGl, it was held that if the payment wore to bo '* imme- 
 diate," there was no necessity for any summons before commit- 
 ment ; but if it were not immediate, the Court seems to have 
 considered that a summons would have been requisite. 
 
 10. Part Payment. — It is not unusual for persons on con- 
 viction to request the Justices to allow time for payment of the 
 fine, at the same time offering to pay down part immediately. 
 Such applications cannot be safely granted, as it is conceived 
 that after part payment the right of commitment would be gone, 
 the Justices having no power to apportion the period of imprison- 
 ment. The law does not intend a man to sufl'er two modes of 
 punishment, i. e., in purse and in person, for the same offence : 
 and on this principle, when the goods of an offender are not suf- 
 ficient to satisfy a distress, they ought not to be taken, but the 
 ulterior punishment should bo resorted to. [R. v. Wyatt, 2 Lord 
 Baym. 119. Stone, 439.] 
 
 11, Waiver of Irregularity. — If the defendant appear at 
 the hearing, ho must then object to the form of the summons, or 
 to any irregularity in the proceedings on which it was founded ; 
 if he do not, but asks for judgment in his favour on the merits, 
 he waives any irregularity in the process for bringing him before 
 the Court. The defendant's appearaucj cures any irregularity 
 in the service of the summons, or tho Wj-nt of one [see. E. v. Stone, 
 1 East, 649] ; and even the non-compliance with a statutable 
 form. [Oke, 140.] In E. v. Shaw, 84 L. J., 169, the rule of 
 law was thus stated by Blackburn, J. : — •' I tbink when a man 
 appears before Justices, and a charge is then made against him, 
 if he has not been summoned, he has good ground for asking for 
 an adjournment. If he waive that, and answers tho charge, a 
 conviction would bo perfectly good against him, and the witnesses, 
 if they swore falsely, would be liable to an indictment for per- 
 jury." So in R. V. Sin'uh, 1 L. R. (C. C.) 110, it was held that if 
 the defendant appeared at tho hearing, evidence, on a trial for 
 perjury, of tho information without proof of tho summons (which 
 is merely to bring tho defendant into Court) was sufiicient, and a 
 
 u H 
 
250 
 
 Practice. 
 
 conviction for perjury was affirmed ; in E. v. J. J. GloucestersJdre, 
 85 J. P. 872, that the absence of an information or summons, 
 where no objection is made at the hearing, will not invalidate a 
 conviction ; and in Turner v. Postmaster General, 84 L. J. 10, 
 that the jurisdiction of the Justices could not be objected to, the 
 defendants and their attornies having examined and cross-ex- 
 amined the witnesses for the prose, ation, and taken the chance 
 of a decision on the merits. It sometimes happens that a person 
 is apprehended for a supposed felony, and that when brought 
 before the Justices, it turns out thattbe offence is not felony, but 
 punishable summarily. In this case, if the prosecutor abandon 
 the charge of felony, and propose to proceed on a new charge, 
 as, for instance, wilful damage, the proper course is to have a 
 new information and a warrant or summons founded thereon, 
 and the evidence taken anew ; and if the defendant desire it, to 
 adjourn the case in order to give him time to answer the charge. 
 If, hov.-«ver, no information on oath or otherwise is taken out, 
 but the parties proceed with the new charge immediately after 
 the first is abandoned, and the defendant goes on with the case 
 by cross-examining the prosecutor's witnesses and entering upon 
 his defence, taking the chance of a decision in his favour, it is 
 too late for the defendant at the close of the case for the prose- 
 cution to object to the jurisdiction of the Justices on the ground 
 that no information on oath has been taken out as required by 
 the statute, or that the defendant was not found committing the 
 offence, or that he is not legally in custody, the conduct of the 
 defendant amounting to a waiver of any irregularity. [Stone, 
 432 ; see also p. 140, note.] 
 
 12. Commitment,— The oftence for which the defendant is 
 committed should be stated in a warrant of commitment with the 
 same clearness and precision as in a conviction. It should show 
 that the defendant has been convicted of an offence over which 
 the Justice has jurisdiction («). It was at one time a matter of 
 
 (a) Whipping.— CoDsol. Stat., cap. 42, contains the following provisions : 
 
 1. When any male person shall be convicted in any Court of Record, or 
 
 before any Justice, of any felony or miadcmeauor, and it ghall be proved, oa 
 
Practice. 
 
 251 
 
 doubt whether a Justice could substitute a good warrant for a 
 defective one, and thereby justify the gaoler in detaining tho 
 defendant in prison ; but since the case of Ex parte Cross, 21 J. 
 P. 407, this doubt has been removed. In this case the first 
 commitment of the defendant under the Vagrant Act was bad 
 on the face of it, but the Court held, after argument, that tho 
 prisoner might be lawfully detained under a second warrant for 
 the same offence, bearing date the same day as the first warrant, 
 
 or after conviction, to tho satisfaction of the Conrt or Justice, that such per- 
 Bon has been previously convicted before any Court of Record or Justice ia 
 this Island of felony or misdemeanor, such iirst-mentioned Court or Justice 
 may, if it or ho shall think fit, direct and adjudge that, in addition to any 
 other punishment thai may be by law inflicted for such second oftoncc, such 
 person shall bo once, twice, or thrice, publicly or privately whipped, and ia 
 such adjudication prescribe the number of stripes to bo given on each occasion, 
 and such adjudication shall be carried into eflect by the gaoler of tho prison 
 in which such person may be confined : Provided that not moio than twenty- 
 five stripes shall be giveu at any one time. 
 
 2. Every person confined in gaol in this Island who shall wilfully injure 
 or destroy any part of the furniture of such gaol, or damage any of tho walla, 
 floors, or other parts thereof, or shall assault any oflicer or prisoner of or in 
 Buch gaol, shall bo guilty of a misdemeanor, and may bo tried therefor in a 
 summary manner before any Stipendiary Justice of the Peace, and upon con- 
 viction shall bo subject to further imprisonment, not exceeding six mouths, 
 and in tho discretion of the said Justice shall, if a male ofiender, also be lia- 
 ble to be punished by whipping, to tho extent and in the manner provided in 
 the preceding section of this chapter. 
 
 In tho conviction, where whipping ia adjudged, the two convictions must 
 be aet out, both in conviction and commitment ; tho first shortly, if tho first 
 conviction was before another Justice, state "and whereas it is now duly 
 proved before me, tho said Justice, that tho said A. B. was on, &c., duly con- 
 victed before [here state first conviction) and I adjudge the said A. B. for hia 
 second offence, of which ho has been this day [here set out second conviction) ; 
 and add, ' I further adjudge that the said A. B. be {once or twice) privately 
 whipped, and tr receive ten stripes on each occasion, the first whipping to 
 take place within ten days from this date, and the second to be administered 
 to him the day before his term of imprisonment is ended.' " 
 
 Whipping should not bo adjudged except in the case of incon-igiblo offen- 
 ders, and generally speaking, only, for crimes accompanied with great personal 
 violence. By soc. 16, 39th Vic, 0. 12, Supremo Court may adjudge whipping 
 on mole persona oonvictod of oflenoes aooompanied with severe personal viu= 
 lenoc. 
 
253 
 
 Practice, 
 
 and lodged with the gaoler several days after, Imviiig an ondorBO- 
 mont requiring the gaoler to Bubstitnto the same for the first 
 warrant. The Court considered the decision in li. v. Richards, 
 5 A. &E. 920, as an express authority in support of their judg- 
 ment, and that it was good sense and good law. 
 
 18. PiuNTKD Forms.— Every Justioo of the Teace should 
 take care to provide himself with printed forms which can bo 
 obtained on appHoation to the Colonial Secretary or to the Clerk 
 of the Peace in St. John's. 
 
 14. Seal. — The seal which is required to all warrants, com- 
 mitments, convictions, summons and other documents, purport- 
 ing to be under the hand and seal of the Justice, may bo any 
 iii^.pression or a mark in ink made by the Justice or tlie Printer 
 and adopted by the Justice ; the impression on a wafer mado 
 with a key or even with the thumb will do. And until this 
 absurd law is done nway with. Justices should bo careful tohavo 
 a seal or something like 't whenever necessary on their papers. 
 
 15. Eecokos. — A lieeord J^ook containing full particulars 
 and notes of the evidence in all cases brought before him should 
 bo kept by every Justice. lie should also keep a copy of every 
 Bunnuons or warrant, and every conviction should bo entered 
 and recorded in his book. I would also recommend liim to havo 
 all complaints and informations written in a book for conveni- 
 ence of reference and also to preserve them. The Judge of tho 
 Supremo Court on Circuit may request tho Magistrate to show 
 his Records ; tho Justice will, therefore, for his own credit sako 
 take care to havo his Becords kept in an orderly and correct 
 manner. 
 
 10. Gknekal OnsEnvATioNs. — In tho detection and punish- 
 ment of crime, a Magistrate should be active and energetic, 
 leaving no stouo unturned to discover tho guilty party. None 
 of the information which ho receives, nor the ovidouco he takes 
 before tho party is charged on tho formal enquiry, need bo known 
 to any one but himir:df and tho constable ho omplovs, and in 
 nearly ah serious offences, it is most important that this informa- 
 tion should net bo communicated to the suspected or guilty 
 person. Tho Mu^hiirate, also, should endeavour to discover tho 
 
Civil Business. 
 
 253 
 
 motive for tbo crimo ; no offonco is committed without a motive, 
 and wh. 11 once the motive is diHcovorod it atlbrds very oftoa a 
 clue to all other circumBtauces connectod witli the case. Whilst, 
 however, ho should thus bo active and energetic in obtaining in- 
 formation, he should be calm and deliberate in arriving ata con- 
 olusiou, weighing well all the evidence on both sides of the ques- 
 tion, not deciding on first impressions, which very often are the 
 right impressions, but sometimes also are completely erroneous ; 
 Ho should think over every matter well before he decides, and 
 when he does decide, should take care to have sufficient evidence 
 to sustain his judgment. No prejudice or personal dislike should 
 be allowed to affect his judgment. 
 
 CHAPTER XXIII. 
 
 CIVIL BUSINESS. 
 
 SUOTIONS 
 
 1. — Geucral jiiriflJiotion in civil oases. 
 2. — Jurisiliotioa ia Bcalcrs' wagoa. 
 8. — Fishormon and othor survantH 
 
 privilogud croditors in iusol- 
 
 vonoy. 
 4. — If Estato insniSoiont to bo paid 
 
 ratoably. 
 6. — Servants engaged without mor- 
 
 ohaat'a kuowlodgo, not privilo- 
 
 pod. 
 6. — Sorvant ongogod in place of an- 
 
 othor, privilogcd. 
 7. — Iloceivor outitlod to eamo dofonco 
 
 as hiror. 
 8. — In actions by eorvants against 
 
 roouivor, sullloiont if insolvoncy 
 
 bo made to appear, 
 0.— OoUusion between sorvaut and 
 
 hirer. 
 
 Sections 
 
 10.— llooovery against receiver, uot 
 Bnpplior. 
 
 11. — Evidcuoo in civil cases. 
 
 12.— Civil case boforo Magistrate al- 
 ways oommenood by sum- 
 mons. 
 
 1.1.— Particulars in summons. 
 
 14. — Should bo tried when roturn- 
 ablo. 
 
 15. — Proceedings in case of default. 
 
 10.— Form of Oath. 
 
 17.— Fonn of Summons. 
 
 18.— Hearing, when both parties ap- 
 pear. 
 
 19. — Nou-Buit. 
 
 20.— Coats. 
 
 21. — Form of subiKeiia for witness. 
 
 22. — Execution on judgment. 
 
 28.— Attachment on judgmout. 
 
254 
 
 Civil Business. 
 
 1. The Sectiong of the Consolidated Statutes giving Magis- 
 trates authority to hear and determine civil cases, are given ante, 
 pages 9 and 10 ; besides the powers thus given, the Act 89th 
 Vic, cap. 7, passed in 1876, gives the Court of Quarter Sessions 
 power to try disputes to any amount ooncerning sealer's wages 
 or share of seals. This Act was passed to remove doubts wh?- 
 ther sealers came under the category of servants in the fishery. 
 As Stipendiary Magistrates out of Session may exercise the 
 same jurisdiction as the Court of Quarter Sessions, it follows, 
 therefore, that this additional jurisdiction in sealer's cases may 
 now be exercised by a Stipendiary Magistrate. Magistrates 
 have also authority to try cases against the receiver of the voy- 
 age under the Insolvency Act. 
 
 2. The several Courts of Session, and the several District Courts in 
 this Colony, shall have power and authority, in a summary way, to take 
 cognizance of, and also to hear, determine, and adjndicate upon all dis- 
 putes to any amount which may arise in Newfoundland, concerning the 
 wages or share of seals of any person engaged in the seal fishery ; and 
 the judgment, determination, or award of the said Courts of Session iu 
 all such cases shall be final ; Provided always, that this Act shall not 
 apply to any claim or dispute in reference to damages for the alleged 
 wrongful dismissal of any such person engaged in the seal fishery, where 
 the damages claimed shall exceed forty dollars. 
 
 8. In chapter 90, Consol. Stat., eections 24 to 31, the fol- 
 lowing is contained respect: ag receivers of the voyage and the 
 preferential claims of fiehery servants, and how such claims are 
 to be prosecuted : 
 
 " When it shall be made to appear that the hirer or employer of any 
 seaman fisherman, or other servant, is insolvent or unable to pay his 
 creditors one hundred cents to the dollar, such seaman, fisherman, or 
 other servant, actually employed in catching, curing or making of fish or 
 oil, and such person as shall have supplied bait to the hirer or employer 
 aforesaid, and who shall be creditors for wages, shares or bait for the 
 current season, shall, upon all such fish and oil taken, cured or made by 
 the hirer or employer aforesaid, or out of the produca or value thereof, 
 if the same be in the possession of the hirer or employer, or of any other 
 person aware of or privy to the hiring or employing o2 any such seaman, 
 fisherman, or other servant, or having notice of the claim of such sea- 
 iii, ixsucrmau, or other eervaut, wiiuUiuir thu same be accruing or due 
 
Civil Business. 
 
 255 
 
 at or before the time of auch other person rejeivii.^ such fish or oil or 
 the produce or value thereof, or before paying the hirer or employer for 
 the same, be considered privileged creditors, and shall first be paid one 
 hundred cents in the dollar, so far as such fish or oil, or the produce or 
 value thereof, shall go." [Sec. 24.1 
 
 4. Where such fish and oil shal be insufficient for the full payment 
 of the wages or shn/eb of all such stamen, fishermen or other servants, 
 or of the persons who shall supply bait as aforesaid, they shall be paid 
 their claims rateabi ^. roportion to their respective wages, shares or 
 bait money. fSeo. 25.] 
 
 6. In the case of the supplying merchant, no seaman, fisherman, or 
 other servants than those engaged with the kncjwledge and consent (a) 
 of Euch supplying merchant, being a receiver, shall be privileged credi- 
 tors in manner aforesaid, in regard to any supplying merchant, being snch 
 receiver, nor in regard to the fish or oil, or the produce or value thereof, 
 in the hands of such receiver. [Sec. 26.] 
 
 6. Any person who may be bona fide engaged or shipped in the 
 place of any such seaman, fisherman, or other servant, who may, during 
 the voyage have been discharged, or have Mt, or deserted, or have died, 
 or have been incapacitated by illness or other cause from continuing hia 
 service, shall be a privileged creditor in manner aforesaid, and shall be 
 entitled to claim on the supplying merchant, being such receiver, for the 
 period he may have served in such stead. [Sec. 27.2 
 
 7. Any defence which the hirer or employer could have made if the 
 action had been taken against him by such seaman, fisherman, or other 
 servant, or supplier of bait, for such wages, share or bait money, shall be 
 equally available for the receiver to make on the trial of any action 
 brought against him by such seaman, fisherman or other servant or sup- 
 plier of bait, for such wages, share or bait money, or the value of such 
 fish and oil, or any part thereof as aforesaid : Provided that the receiver 
 of the voyage, or any part of the produce or value of same, shall not be 
 liable for the payment of the wages or share of such seaman, fisherman 
 or other servant or supplier of bait, or any part thereof, unless it be 
 proven on the trial that such receiver is liable under the provisions of this 
 chapter : Provided that any shareman selling or lawfully disposing of 
 his share of fish or oil, or any part thereof, may sue and recover paymenfe 
 
 (a) It has been decided that if the supplying merchant knew that the 
 planter or sub-planter had so many servants at certain wages, this was suflS- 
 cieat knowledge and consent ; under this section it is not necessary that he 
 
 SbOulu kuOiv the uiiuiCis of illC uCtViiuis. 
 
256 
 
 Ci-jil Business. 
 
 ^ 
 
 for same from the purchaser thereof, according to the terms of his con- 
 tract, before any Stipendiary Justice or Court; and any shareman, fish- 
 <;i'man, or other servant, may, in like manner, sue for and recover his 
 wages or share from his hirer or employer, notwithstanding the provi- 
 sions of this chaptier. [Sec. 28.] 
 
 8. To enable such seaman, fisherman or servant, or person supplying 
 bait as aforesaid, to recover the amount of his wages, share or bait money 
 from the receiver of such fish and oil, or the produce or value thereof, it 
 shall not bt nociessary that the hirer or employer should have been for- 
 mally declared insolvent ; but it will be sufficient, if it be made to appear 
 on the trial (a) of any action which such seaman, fisherman or other ser- 
 vant or supplier of bait may bring for money had and received, or for 
 ■wages, against the said receiver, before any Stipendiary Justice, Court of 
 Sessions or other Court in this Island, that the share, wages or bait nioney 
 was due at the time of bringing such action, and that the said hirer or 
 employer was then insolvent or unable to pay his creditors one hundred 
 cents in the dollar. [Sec. 29.] 
 
 9. If such seaman, fisherman, or other servant, or supplier of bait, 
 has knowingly or wilfully colluded with or assisted the hirer or employer 
 in disposing of his voyage otherwise than to his supplying merchant, 
 such supplying merchant not being paid to the extent of his supplies 
 over and above the unpaid wages or bait money at the time of the action 
 being brought, such seaman, fisherman or other servant, or supplier of 
 bait, shall not be entitled to recover in any action brought against any 
 receiver, being a supplying merchant. [Sec. 30.] 
 
 10. Nothing herein contained shall prevent such seaman, fisherman, 
 or other servant, from recovering such share or wages from any person 
 other than the supplying merchant who may have received such voyage 
 or any part thereof, and who would be otherwise liable under this chap- 
 ter. [Sec. 31.] 
 
 11. The evidence in civil cases follows precisely the same 
 rules as given in the chapter on Evidence, the great difference 
 being that in civil cases, the mere preponderance of evidence in 
 
 (a) It will be sufficient if the employer or some other witness be sworn 
 and prove that he is unable to pay the servant's wages ; the usual practice is to 
 call the employer as a witness, but any other witness can prove the same facta 
 to the satisfaction of the Magistrate trying the case. The proof that the em- 
 ployer is insolvent or unable to pay Lis servant's wages, is a necessary pre- 
 liminary, to enable the servant in the action against the receiver, to recover 
 his wages or share of Ush. 
 
Civil Business. 
 
 257 
 
 favor of one party will entitle that party to a judgment in hia 
 favor, both plaintiff and defendant can be called and be com- 
 pelled to give evidence for or a<?ain9t each other. 
 
 12. A civil case before a Magistrate or Quarter Sessions is 
 always commenced by a summons. This should be served per- 
 sonally on the defendant by the constable, who should have the 
 original, or both copy and original may be signed by the Magis- 
 trate. On the original, which is returned by the constable to the 
 Magistrate, he, the constable, should endorse on the back, — 
 ** T served the defendant personally with a copy of this sum- 
 mons on , (at such an hoar.") 
 
 13. The summons should contain particulars of the plain- 
 tiff's demand, either on a piece of paper attached to the sum- 
 mons or written on the margin of the summons. 
 
 14. At the exact time when the summons is made return- 
 able, the Magistrate sitting in the Court House or Magistrate's 
 office, where he usually transacts magisterial business, should 
 
 direct the constable to call the case, versus ; and, if 
 
 neither party should appear at the appointed time, he may, if 
 he do not choose to wait for the parties, mark on the back of 
 the summons, " case dismissed." 
 
 15. Should the plaintiff appear, but not the defendant, the 
 Magistrate should direct the constable to call out in a loud voice 
 the name of the defendant or defendants three times, — " appear 
 at the suit of — (plaintiff), or judgment will be given against 
 you by default.' The Magistrate should then proceed to swear 
 the plaintiff' accordmg to the form of the oath given in next 
 section, and enquire carefully into his claim if he believe that 
 he has a claim against the defendant, and he is bound to accept 
 his evidence when not contradicted ; he will, however, use his 
 own discretion under the evidence as to the amount for which he 
 will give the plaintiff judgment. After examining the plaintiff, 
 and, if necessary, any witness he produces, the Magistrate should 
 also swear the constable, and if the proof of service is satisfac- 
 tory, he endorses on the back of the summons, " Judgment by 
 default for plaintiff for $—." (Date.) (a). 
 
 In^ 
 
 \"! '^"fault-ShoTjli the dcicadaiit appear soon after judgment by de- 
 fault has been delivered, and prove oq oath to the Magistrate that he has a 
 II 
 
258 
 
 Civil Business. 
 
 Newfoundland. 
 
 16. The oath bhould be in the following form, and may be 
 administered by the Magistrate or Clerk of the Perce :— 
 
 " The evidence you shall give in the cause now dependi:jg, shall be 
 the truth, the whole truth, and nothing bii ^ the truth. So help ycu G 0D.'» 
 The observations on oaths in th. Chapter on Evidence also 
 refer to swearing in civil cases. 
 
 17. Form of Summons. — 
 
 Northern District,) 
 
 Island Cove, > 
 
 No. . ) 
 
 To Job Stiggins, Greeting. 
 
 You are hereby required to appear and plead before the undersigned 
 Stipendiary Magistrate for the said District, at Island Cove, aforesaid, ou 
 Monday, the seventeenth day of December, 187 , at eleven o'clock In the 
 forenoon, to an action at the tiuit of John Jones, who claitns from you 
 the sum of Ten dollars and ten cents, for che matters contained in the 
 annexed particulars : and in defcult of vcui- so doing, the plaintiff may 
 proceed to judgment and execution. 
 
 This day of 187 . 
 
 T. Wills, Stip. Mag. 
 
 Bill of Particlars. 
 
 To John Jones, Dr. 
 
 I 
 
 Job Stiggins, 
 
 1876. 
 
 Oct. 31.— One pair Boots £2 10 
 
 One Ball Hemp 00 6 
 
 £2 10 6 $10 10 
 18. When both parties appear, the Ma ;i:;trate, at the time 
 when the defendant is summoned for, will at once proceed to 
 hear the case. The plaintiff may commence proceedings by 
 making a statement of his claim, or he may i.. o"(ie call his 
 witnesses ; the plaintiff examines each of his own witnesses first, 
 this is called examination in chief, and then the defendant may 
 cross-examine them. The Magistrate should bear ir mind the 
 rules of evidence and keep each party strictly to the case before 
 him, and should endeavour as much as possible to prevaiit either 
 
 good ground of defence to the action, the Justice may request the plaintifl 
 and defendant to attend before hiin, hear both parties, and decide the case on 
 the merits. 
 
"^^ ,'J 
 
 Civil Business. 
 
 259 
 
 lywiy mtenipting the other. When the plaintifiTs case is fin- 
 aJ I' !, the aoftudant then proceeda with his case ; he may com- 
 akcace with mai'ing a statement of his grounds of defouce, (a) or 
 ho may at once proceed to call hia witnesses ; those are examined 
 iy the defendant in chief and croas-exainined by plaintiff. If 
 the defendant calla svitnesses, the plaintiff has a Jjeneral reply. 
 After hearing both sides, the Magistrate may immeiliately give 
 judgment, or 'c may take time to consider it, making alwaya as 
 little delay as possible in deli'; -ring his judgment. 
 
 19. Should the plaintiff at any time before judgment ia de- 
 livered choose to be non-suited, he can claim a non-suit as a 
 matter of right. The effect of non-suit is, Jirst, the plaintiff 
 may summon the defendant again for precisely the same cause 
 of action, which he could not do if judgment had been given for 
 the defendant ; second, he has to pav the defendant's costa. 
 
 H'J. The costs to be paid for witnesses, summons, &o., are 
 given at pages 138 & 139 ; the plaintiff should always be made 
 to pay the costs before the process is issued for him, unless he is 
 a pauper, and can swear that he ia not worth five pounds over 
 and above his wearing apparel, &c. 
 
 21. Form op Subposna fob a Witness. — {b) 
 
 Northern District, i Newfoundland, 
 
 Island Cove, > 
 
 to wit : 3 To thi Constables of the Northern District. 
 
 These are to require you forthwith to summon John Smith of Island 
 
 Cove, aforesaid, Fisherman, to appear before the undersigned Stipendiary 
 
 (a) Set-off. — This means the counter claim which the defendant may have 
 against the plaintifit. To enable the defendant to set o& his claim against 
 plaintifi, 1st, it must be betv/eon the same parties, not a sum due ty plaintiff 
 and another to defendant ; 2nd, the set-off must bo liquidated, that is a sum 
 certain, whioh can bo sued for &u j, common money debt, not iu the natura of 
 damages, such as for killing a pig, or damage to property, which are known in 
 law as unliquidated damages — damages whlc-.h would have to be a?>'9rtained 
 by a Court. [See Roscoe, Nisi Prius, set-ofl, 417, etc.] 
 
 {b) A witness is not bound to attend in a civil case unless his fee for at- 
 tendance, 75 cents a day and 10 cents a mile travelling to iio place of trial 
 and back to his residence, is iirst paid or tendered to him. 
 
 Tender. — In making a tender it must be made to the party himself or 
 Bome one aaviorized by him to receive it; the money must be produced 'miesa 
 
2i6o 
 
 Civil Business. 
 
 Justice of the Peace for the District aforesaid, at Island Cove, in the said 
 District, on the day of at cciock, in the forenoon, to give 
 evidence in a case in which John Jones is plaintiff, and Job Stiggiiis 
 defendant, on the port of the plaintiff; and be you the a there to certify 
 what you have done in the pienuses. Herein fail you \ot. 
 
 Given under my hand at Ibland Cove, aforesaid, 
 the day of A. D. One thousand eight 
 hundred and seventy- 
 
 22, Execution (a) on Judgment. — 
 
 T. Wills, J. P. 
 Newfoundland. 
 
 No-^tfiem District, I 
 
 Island Cove, \ 
 
 to wit : J 
 
 Whoreas John Jones lately before me, the rndersigned Stipendiary 
 Magistrate for the said District, at Island Cove, hath recovered judgment 
 a,-;;ainst Job Stiggins of Island Cove, f.foresaid, Fisherman, for the sum 
 of Ten dollars and ten cent?. 
 
 You are therefore hereby required to cause to be made and levied of 
 the Moneys, Goods, Debts and Effects of the said Job Stiggins, the said 
 Bum of Ten dollars and ten cents ; and also the sum of One dollar and 
 fifty cents, by the said Joh-i Jones in this behalf expended for the cost 
 and expenses or the suit j and have ycu th? jaid sums of money before 
 
 the creditor dispenses with the production of it at the time, or does anything 
 which is cciuiviilcut to a dispensation, such as t,ayiug '< You need not otler me 
 the forty shilliugg, I won't tako it." By law no tender in silver is good over 
 »10. [Cousol. Stat., p. Ifi'J.] Gold may be to any amount. Tender must bo 
 uueonditionai. [/fostw, Nisi Prius, 'i22, &c.J 
 
 («) The plaintili or defendant who recovers a judgment is entitled to an 
 execution or attachment (Form 2U) against the losing party, whenever ho de- 
 mands it. Tl'.o MaRistrate, however, should do all in his power, whilst com- 
 plying with this rule, to prevont the rroceodiutf being unnecessarily harsh or 
 revengeful against the losing party ; and should the party claiming "the cxecu- 
 lion allow time for payment, the Magi^uvato or Clerk of the Peace may receive 
 the money by instalment,.. In levying the execution, the goods should be 
 pointed out to the constable by the party requiring the levy, and no more 
 Bhould be taken than will bo snfficicn to satisfy the judgment and costs. The 
 goods should be kept three days before being sold, and in the meantime a 
 notice of the sale should bo posted on the Com-t House door, signed by the 
 constable, stating the time when such sale will take place and o"'er paiticn- 
 lars ; the person requiring the execution will have to find a conveyance for the 
 gook.^3, if necessary. 
 
Civil Business. 
 
 261 
 
 me immediately after the execution of this writ to bo rendered to the 
 said John Jones, and have you then there thia warrant. 
 
 Island Cove, day of , Anno Domini 187 . 
 
 T. Wills, J. P. 
 
 23. Form of Attachment (a) on a Judqmf.nt. — 
 
 Northern District, j NKWForNDLAND. 
 
 Island Cove, > 
 to wit : ) 
 
 Whereas a Judgment has lately been given at Island Cove aforesaid, 
 before me, a Stipendiary Justice of the Peace for t] j said District, agahjsfc 
 Job Stiggins at the suit of John Jones, for the sum of Ten dollars and 
 ten cents ; you are hereby required not to part with any Monies, Goods, 
 Debts, or Effects, of the said Job Stiggins, which you now have in your 
 custody, or under your control ; but you ure to hold the same to the 
 amount of Eleven dollars and sixty cants, being the amount of the said 
 Judgment and Costs, to abide my further order, touching the same. 
 
 Island Cove, the day of 187 . 
 
 T. Wills, J . P. 
 To Mr. Zechariah Snooks, 
 
 Planter, Island Cove. 
 
 This Attachment not to be raised but bij written notice. 
 
 {a) By BOO. 7, Consol. Stat., cap. IP,: "Any of the Courts of Seflsion or a 
 Stipendiary Magistrate, before whom jcdgraent Hhall 00 recovered, may attach 
 moaies, goods, debts aud eftocts iu the kaiids of any third party, and summon 
 and compel, by warrant, if necessary, the attendance of any party for exami , 
 nation, aud make and enforce the observance of such order thereon as to the 
 said Courts or Magistrate shall appear just : Provided that no such attach- 
 ment shall affect oxeoutor;7 contracts {incomplete contracte) or debts not ac- 
 tus 7 due." 
 
APPENDIX OF FOEMS OF OFFENCES, &c. 
 
 Abbreviations in Foums. 
 Note the observations at p. 120,— On, &c., is an abbreviation for, on the 
 
 day of , Anno Domini one thousand eight hundred and seventy — ; 
 
 at, &c.. is an abbreviation for statement of locality, as, at Island Cove, in 
 
 the Nortaern District ; I. means indict, oflence ; n. ex., not exceeding 
 
 years ; imp., imprisonment ; sum., means summary jurisdiction ; B., means 
 bail ; Dis., means discretionary ; Comp., means compulsory ; F., felony ; M., 
 misdemeanor; I. A., Imperial Act. All oftencea not marked Summ., are in- 
 dictable offences. Oienoea marked Summ,, are cognizable under summn .y 
 jurisdiction. 
 
 1. (Dwelling House, person beinff therein.) — For that te, the 
 said A. B., on, &c., at, &o., unlawfully, maliciously, and feloni- 
 ously, did set fire to a certain dyeelling house of C. D,, there 
 situate, one E. D. then being therein, contrary to the statute. 
 
 Punishment— im. n. ex. 2 years. B. dis. P. (I. A,) 24 
 and 25 Vio., o. 97, sec. 2. 
 
 2. House, Stables, dc. — For that he, the said A. B., on, &c., 
 at, &c., unlawfully, maliciously, and feloniously, did set fire to a 
 certain house (or stable or out-house there situate, in the pos- 
 session of the said A. B. or C. D.,) with intent thereby then to 
 injure the said 0. D. (or to defraud the Insuiauce Com- 
 pany,) COL trary to the statute, &o. 
 
 Punishment — Imp. n. ex. 2 years. B. dis. P. (I. A.) 24 
 & 25 Vic, c. 97, 8. 8. 
 
 Assault . 
 
 8. Slabbing, dc, with intent to maim, resist apprehension, diS' 
 able, <&c, — For that he, the said A. B., on, &c., at, &c., unlaw- 
 fully, maliciously, and feloniously, with a certain gun, then and 
 there locded with gunpowder and divers leaden shot, did shoot 
 at one C. D„ (or did, by drawing the trigger of a certain loaded 
 gun, attempt to discharge the said gun at , with intent, in 
 
 ^t,s 
 
Appendix of Forms of Offences, &c. 
 
 263 
 
 so doing, then and there to maim {a) or disfigure (i) or disable 
 (c) him,) or to do him some grievous bodily harm, or to resist 
 and prevent the lawful apprehension of the said A. B. or of one 
 E. F., contrary, &c. 
 
 Punishment — imp. n. ex. 2 r rs. B. discretionary. P, 
 (I. A.) 24 & 25 Vic, c. 100, s. 18 & 19. 
 
 4. Causing bodily harm. — For that he, the said A. B., on, 
 &c., at, &c., unlawfully, maliciously, and feloniously, did wound 
 (or cause certain grievous bodily harm) to one C. D., with in- 
 tent, &c., [an in Form 3, varied according to the circumstances of the 
 case,) contrary, &c. 
 
 Punishment — imp. as No. 8. B. discretionary. 5*. (I. A.) 
 24 & 25 Vic, c 100, s. 18. 
 
 5. Misdemeanor in Stahbing, ^c, or inflicting grievous bodily 
 injury. — For that he, the said A. B., on, &c, at, &c., unla vvfully 
 and maliciously did wound one C. D., (or unlawfully and mali- 
 ciously did inflict upon one C. D. certain grievous bodily harm, 
 
 with a certain weapon or instrument called ,) contrary to 
 
 the statute. 
 
 M. B. dis. Imp. u. ex., 2 yrs. (I. A.) 24 & 25 Vic, c. 100, 
 s. 18. 
 
 6. On Magistrates or Officers, dc, in case of Wreck. For 
 that he, the said A, B., on &o., at &c, unlawfully did assault, 
 and did strike or wound C. I>., Esquire, a Magistrate, (or Com- 
 missioner of Wrecked Property) then lawfully authorized in and 
 on account of his the said C. D's duty in and concerning the 
 preservation of a certain vessel {there in distress,) (or wrecked,) [or 
 stranded, or cast ashore,) {or lying under wafn',) or certain goods 
 and effects, wrecked, &c, contrary to the statute. 
 
 Punishment — imp. n. ex. 2 yrf. Ijl. B. discretionary,, 
 (I. A.) 24 ^^ 25 Vic, 0. 100, s. 37. 
 
 (rt) Maim is to injure any part of a man's body wliich may render him, 
 in fightiufe, less able to defend himself, and i,:.uvj his enemy. 
 
 (b) Diitjigure, is to do some esioraal iiijmry, which may detract from his 
 personal appearance. 
 
 (c) Disable, is to do something \yhloh creates ft penuftneut disability, and 
 not merely a temporary injury. 
 
 ■^:^ 
 
864 
 
 Appendix of Forms of Offences, &c. 
 
 7. On Peace or Revenue Oficer.~FoT that he, the said A. B., 
 on &c., at &c., unlawfully did assault, (or resist, mlfnUy obstruct,) 
 
 D., he being then a peace officer, to wit a constable of 
 and then in the due execution of his duty, contrary to the statute 
 Punishment-imp. n. ex. 2 yrs. M. B. discretionary, 
 (I. A.) 13 & 14 Vic, c. 101, s. 9. 
 
 8. Common Assault and Battery, (Indict.) xdth or witJiout 
 Bodily harm.— For that he, the said A. B., on, &c., at, &o., un- 
 lawfully did assault, wound and ill-treat C. D., (and if so, and 
 thereby then occasioned unto said C. D., great actual bodily 
 harm) (a), against the peace, &c. Manual, p. 181. 
 
 9. Common Assault. (Summ.)-^Thiit on the .''ay of 
 
 at in the District, C. D., of, &c., at, &c., did unlawfully 
 assault and beat, (if no battery, say assault), this informant, con- 
 trary to the statute, &c. See page 177, Manual. 
 
 10. Assault on Constable. {Summ.)-Did, unlawfully assault 
 and beat this informant, he being then one of the constablea of 
 &o., and bemg then and there in due execution of his dut-' 
 against the peace, &c. See page 182, Manual. '*" 
 
 11. Aggravated Assault upon Females and Boys under Four, 
 teen. {Summ.)-Fov that he, the said A. B., on, &c., at, &o 
 unlawfully did assault and boat [or assault) , a certain male 
 child, not exceeding the age of fourteen years, to wit, of the a^e 
 of years, {or a certain female), named C. D., (the complain- 
 ant), contrary, &c.. See page 178, Manual. 
 
 12. Indecent Assault on a Fem ale (6).— For that he, the said 
 
 (a) Acuua bodily luinn would include any hurt or injury calculated to in- 
 terfere with the health or comfort of the prosecutor; it n.od uot be an injury 
 of a permanent character, ror need it amount to what would be considered 
 grievous bodily injury. [Arch. Crim. Plead., -360 Ed 1871 ] 
 
 Grievous bodily iruury. -It is not necessary that a grievous bodily harm 
 
 t2t uT ''T""'"' "' "^'"^"""^ ' '' '' "^^ ^"''^ '^^ ^^"°"«'y to inLere 
 wih health or comfort, that is sufficient ; and therefore, where the defendant 
 
 Zl ^''^''^^r^ '^'^'' '^"d the jury found that it was a grievous bodily 
 harm, held that the conviction was right. [Arch. Crim. Plead 666 1 
 
 (6) Inde vt assault must be an assault accompanied with indecency on 
 tbe part uf ... def«adant. Whore tiere is proof that the womaa aeeeLd" 
 
Appendix oj Forms of Offences, &c. 
 
 265 
 
 A. B., on, &c., at, &c., unlawfully did indecently assault and ill- 
 treat a certain female, named C. D., against tho peace, &c. 
 M. Imp. not ex. 2 yrs. 24 & 25 Vic, c. 100, b. 52. B. disc. 
 
 attempts to JEuttret 
 
 By Slabbing or causing bodily harm, or Shooting. -^¥ or that he, 
 the said A. T,, on, &o., at &c., feloniously did wound one 0. D., (or 
 feloniously did cause certain grievous bodily harm to 0. D., or 
 feloniously did shoot at 0, D. with a certain gun, loaded with 
 powder and ball,) with intent, in so doing, then and there felo- 
 niously, wilfully, and of his malice aforethought, to kill and mur- 
 der the said C. D., contrary to tho statute, &o. 
 
 F. Imp. not ex. 2 yrs. B. dis. (I. A.) 24 & 25 Vic, c. 100, 
 s. 67. Indict, (a) 
 
 For that he, the said A, B., on the day of , at , 
 in the said District, feloniously did marry and take to wife one 
 Ann Smith, his former wife, to whom he was previously married, 
 
 defendant must bo acquitted. If, on an indictment for an indecent assault, it 
 appears that tho woman consented to tho assault, but that her consent was 
 procured by fraud, such consent constitutes no defence, [Arch. Criminal 
 Pload. 711. 
 
 (a) AccoMPLiCE.-^DuTT OP A .Ttjstice — A Justice has no power to 
 make a promise of pardon, and it is his duty to commit an accomplice for 
 trial, notwitbstandinfl; it is intended that he should give evidence for tho 
 prosecution. The application for the accomplice to be a witness is usually 
 made to the Supreme Court or Quarter Sessions, before the indictment is 
 sent to the grand jury. Where tho evidence would be too weak to justify 
 a commitment independently of the testimony of the accomplice, the pro- 
 per course seems to bo to take the deposition of the accomplice in the 
 usual way, cautioning him, at the same time, that he is not bound to say 
 anything which may criminate himself. In this case, the accomplice 
 would be bound over as a witness, and the cirv^amstances explained to the 
 Judge, before the i-idictment against the prisoner is presented to the grand 
 jury. Tho rule which requires the evidence of an accomplice to be cor- 
 roborated is one of practice only, approved of by the superior courts. [R. 
 V. Stubbs, 26 L. T. 109.] 
 
 KK 
 

 266 
 
 Appendix of Forms of Offences, Sc. 
 
 to wit, on day of, A. D. 18 , being then alive, contrary, 
 &c. 
 
 P. Imp. not ex. 2 jts. B. dis. (I. A.) 24 & 25 Vic, c. 100, 
 B. 67. Indict. 
 
 Prove first marriage, and that first wife was alive at the time of the 
 second marriage. The marriage may be proved by the production of the re- 
 gister, or by an examined copy or extract, provided it purport to be signed and 
 certified as a true copy or extract by the officer to whose custody the original 
 ^8 entrusted. Prove second marriage. First wife is not a competent witness 
 to prove any part of the case, either for or against her husband ; the second 
 wife is, the previous marriage being proved, for the second marriage is void. 
 [Arch. 275.] 
 
 Entering a Dwelling Bouse at Night, with intent to commit 
 Felony. — For that he, the said A. B., on the day of , at 
 
 , in the said District, about the hour of (eleven) in the night, 
 feloniously and burglariously did break and enter the Dwelling 
 House of C. D,, there situate, with intent to commit felony 
 therein, contrary to the statute, &c. 
 
 Divelling House. — Must prove that the defendant broke and entered the 
 dwelling house in which C. D, resided, or some building between which and 
 the dwelling house there was a communication. 
 
 Breaking. — There must be a breaking, actual or constructiv'> : but lifting 
 a latch, breaking out a pane of glass, pushing open a window, fastened with 
 wedges, has been held a breaking Entering through an open window — is not 
 breaking — breaking out, however, through an inner door —is sufficient breaking. 
 
 Entnj. — Any, the least degree of entry, however, with any part of the 
 body, or with an instrument held in the hand, is sofficient. 
 
 Intent. — The best evidence of intent is, that the defendant actually com- 
 mitted the felony alleged to have been intended by him. 
 
 Night. — By law, now, night commences at 9 p. m., and ends at 6 a. m., 
 of the next morning. To constitute burglary, crime must be committed within 
 those hours. 
 
 Certioraki — Form of Writ op. — (a) 
 
 Newfoundlaud, \ 
 Suprene Court. \ Vjctoria, by the Grace of God, of Great 
 
 Britain and Ireland, Queen, &c. 
 
 To , 0113 of our Justices of tlie Peace for the District of our aaid 
 
 Island, Greeting : — 
 
 (a) See pp. 22 & 23. 
 
Appendix of Forms of Offences, &c. 
 
 267 
 
 "We, being willing for certain causes thai all and singular the records 
 of conviction whereof 0. D. was convicted before you of (here state of- 
 fence) as it is said, be sent by you before us ; We do, therefore, command 
 you that you send the records of the said conviction, with all things 
 touching the same, undor your seal, immediately after receipt of this 
 writ, before us, in our said Court, together with this our writ, that we 
 may further cause to be done therein that what of right and according to 
 law we shall see fit to be done. 
 
 ■Witness Sir Hugh W. Hoylrs, Knight, Chief Justice of our 
 said Supreme Court, at St. John's, this day of , 187 . 
 
 By the Court, 
 
 P. Emerson, C. C. & Eeg. 
 
 Justice's Return TO Weit of Certiorari.— (To be endorsed on Writ.) 
 
 District, ? 
 
 to wit : i Newfoundland. 
 
 I , Esquire, the within nar. -'1 Justice of the Peace, do, under 
 my hand and seal, return \ii\^ Her Majesty's Supreme Court of New- 
 fr» ndland, the conviction mentioned within, with all matters touching 
 the same. Witness my hand and seal , &c. 
 
 J. P. o 
 
 aroncealitig lUirtfj of a (Bti&iltr. 
 
 For that she, the said A. B., on the day of , ?': , 
 in the said District, was delivered of a child, and being so 
 delivered of the said child, did then unlawfully endeavour to 
 conceal the bii-th of the said child, by secretly burying the dead 
 body of the said child, {if it ivas by other means than secret bury- 
 ing, state the mode of disposing of the body,) contrary, &c. 
 
 M. Pun.— imp. not ex. 2 yrs. (I. A.) 24 & 25 Vic, c. 100, 
 s. 60. Indict. B. discretionary. 
 
 Birth. — This must bo proved, and the mode of concealment, and also 
 that the mother did it, if she is the one charged ; the body of the child must 
 be covered and concealed. Denial of the birth, no preparations having been 
 made for confinement, and no assistance called for, generally form part of 
 the evidence in such cases. Three points must be proved in such oases : 1st 
 That the woman was delivered of the child ; 2nd, That she secretly buried, 
 or otherwise secretly disposed of the body ; 3rd, That the burying was an 
 actual concealment of the body. 
 
 I 
 
268 
 
 Appendix of 'Forms of Offences, &c. 
 
 Ohtawing Money, Goods, i^c, by False Pretences.— For that 
 he, the said A. B., on, &c., at, &c., did unlawfully obtain from 
 the saidC. D., certain goods, {or money, as the case may be,) 
 by means of a certain false pretence, then and there made by 
 him, the said A. B., to wit, that he was sent to the said C. D., 
 by one E. F., to buy the same for him, (setting out the false 
 pretence), with intent thereby then to defraud, well knowing 
 the said pretence to be false, against the form of the statute, 
 
 &G. 
 
 Mis. Pun. not exo. 2 yrs. imp. (I. A.,) 24 & 25 Vic, c. 96, 
 B. 88, 89 & 90. B. dis. Indict. 
 
 Must prove false pretence as charged. Property obtained or money ; if 
 the charge is for obtaining two pairs of shoes, proof that the defendant ob- 
 tained one pair will do. Money.-Coin may be described simply as money 
 and the aUegation will be sustained by proof of any amount of coin, although 
 the particulai- species of coin, of which such amount was composed, shall noi 
 be proved. [Arch. SU."} 
 
 With intent to defraud.— It is only necessary to state in the charge and 
 to prove an intent to defraud, generally, without alleging or proving an in- 
 tent to defraud, any particular person. [24 & 25 Vic, c. 96, s. 88.] 
 
 The defendant may be convic .d, although the oftence turns out to be 
 larceny. [24 & 25 Vic, c. 96, s. 88.] 
 
 The subject of false pretences contains many nice distinctions, which are 
 too elaborate and complicated to be discussed in this small space. There must 
 be proof that the pretences made use of ^etefahe ; in other words, the facta 
 negativing the pretences must be proved. 
 
 ^Firing OTcolrg. 
 
 For that he, the said A. B., on, &c., at, &c., wilfully and 
 carelessly did set on fire certain woods, forests, trees, 'and un- 
 derbush, (the property of C. D., or public property,) situate at 
 , contrary, &c. 
 
 Pun., fine not ex. $80, or imp. not exc. 6 mos. Summ. 
 
 Evidence that the woods were set on fire by the carelessness or negli- 
 gence of defendant is sufficient to convict under this section. So much 
 damage has been done to the forests of the Colony, by negligence of per- 
 sons making fires in tbe woods, that this Act was passed to punish mere 
 
Appendix of Forms of Offences, S-c. 
 
 269 
 
 carelessness, which, but for thia Statute, would not otherwise be a criminal 
 offence. 
 
 Consol. Stat., Cap. 40, Soo. 8 :— 
 
 '• If any person shall wilfully or carelessly set on fire, or cause to be 
 Bet on fire, any of the woods, forests, trees, or underbush, in this Colony 
 or its dependencies, such woods, forests, trees, or underbush being pnblio 
 or private property, such person shall, on being convicted thereof in a 
 summary manner before any Justice, be subject to a fine not exceeding 
 eighty dollars, or be imprisoned in gaol for a period not exceeding six 
 months ; or such person may be indicted for such offence, and tried and 
 sentenced to the like punishment, by and before any Court of Record in 
 tills Colony. Nothing herein contained shall deprive any person who 
 may be injured by such firing and burning of his property of his right 
 of action at law for such damages as he may sustain by reason thereof." 
 
 Codfish, green or cured, — For that he, the said A. B., on, &c., 
 at, &c,, three quintals of codfish, cured (or green), of a value not 
 exceeding twenty dollars, to wit, of the value of fifteen dollars, 
 of the goods and chattels of 0. D., feloniously did steal, take, 
 and carry away, contrary, &o. 
 
 Punishment — ^imp. not exc. 6 weeks. Summ. 
 
 Consol. Stat., Chap. 40, Sec. 4 :—■ 
 
 " Any person who shall feloniously steal, take or carry away any cod 
 fish, green or cured, of a value not exceeding twenty dollars, may be tried 
 in a summary manner before a Stipendiary Magistrate, and shall on con- 
 viction be subject to imprisonment for a period not exceeding six weeks ; 
 and any person subject to imprisonment under this section, may appeal 
 from the judgment or order of such Stipendiary Magistrate to the Su- 
 preme Court then next to be held at or near the place where such offence 
 shall have been committed, on giving sufficient security to prosecute such 
 appeal, and further to abide by and perform such order or decree as the 
 said Court may make thereon ; and on the hearing of such appeal, such 
 Court may admit further and other evidence than that adduced before 
 the said Magistrate, and may confirm, vary or set aside the judgment of 
 such Magistrate, and make such orders as to the execution of any judg- 
 ment as to it may seem meet. The appeal provided by this section may 
 be heard before one Judge sitting aa the Supreme Court either in St, 
 John's or on Circuit." 
 
 f 
 
270 
 
 Appendix of Forms of Offences, S-c. 
 
 For that ho, the said A. B., on, &c., at, &o., feloniously did 
 forge, (01- did offer, utter, and put off to John Munn and others, 
 trading under the firm of John Munn and Corapauy, well know- 
 ing the same to be forged), a certain order, purporting to be an 
 order from John Jones to John Munn and Company, for the 
 payment to Job Stiggins of ten pounds, for wages, with intent 
 thereby then to defraud, against, &c. 
 
 P. Pun. not ex. 2 yrs. imp. 24 & 25 Vic, c. 98, s. 23, 
 (I. A.) B. disc. Indict. 
 
 Prove that the order was forged, by producing the person whose name ia 
 forged to order. Presenting an order over the counter is uttering and putting 
 oft. " Using of a forged instrument, in some way, in order to get money or 
 credit upon it, or by vieans of it, is sufficient to constitute the oftence descri- 
 bed in the statute." [Arch. 569.] 
 
 With intent to defraud.— It is not necessary to prove the intention of the 
 defendant to defraud any particular person ; it is sufficient to prove gencially 
 an intent to defraud. " Well knowing the same to be forged." " This is not 
 capable of direct proof ; it is, therefore, nearly always proved by evidence of 
 facts, from which the jury may presume it." [Archbold, 570.] 
 
 The statement of the prisoner to the Clerk at the time of presenting the 
 forged instrument, wiU generally furnish the strongest evidence against" him 
 on this head. 
 
 IBLWCCtUT^— (Stealing.) 
 
 For that he, the said A. B., on, &c, at, &c., three pairs of 
 shoes and one waistcoat, of the goods and chattels of C. D., 
 feloniously did steal, take and carry away, against the peace, &c.* 
 
 I. P. Imp. not ex. 2 yrs. Common Law. B. discretionary. 
 
 Larceny defined.— Larceny at comraon law ia the wrongful tak- 
 ing and carrying away of the personal goods of any one from his pos- 
 session, with a felonious intent to convert them to the use of the offen- 
 der, without the consent of the owner. But goods which are not personal 
 chattels at comraon law have been made the subject of larceny by statute 
 Simple larceny is the larceny of the goods only; compound, is a larceny 
 from the person or habitation of the owner. [Boothbi/, Si/n. 163.] The 
 component parts of the offence of simple larceny are the taking— the 
 carrying away or asportation (as it is technicaUy termed)— and the f elo - 
 nious intent. With respect to the taking, it may be either actual or con- 
 structive—actual, where the party takes the goods out of the possession 
 of the owner invito domino, by force; or stealth or the like; constructive, 
 where the possession is obtained by some trick or artiHcs, or the like, 
 
Appendix of Forms of Offences, &c. 
 
 271 
 
 I 
 
 with intent at the time to convert them to the party's own use, but which 
 has not the effect of transf-^rring any right of property from the owner 
 to snch party ; for if such right be transfeired, the offence will not be 
 larceny, but may be that of obtaining goods nnder false pretences. 
 [2 Arch.] Witli respect to the carryimj awai/, any removal of the goods 
 fr'ora the pbce where they were, however slight, and notwithstanding 
 they may be left on the premises, will be a sufticient asportation ; as, for 
 instance, removing a parcel which lay in the forepart to the middle or 
 tail of a'waggou ; taking plate out of a chest and laying it on the iloor ; 
 snatching an earring from a lady's ear, which is instantly dropped among 
 the c\u-ls of her hair ; or drawing a pocket-book out of the inside pocket 
 of a coat above the top of the pocket, although it should then fall again 
 into the pocket. [B. Syn. 100.] But a mere chanye of position of the 
 goods will not be sufficient ; as, for instance, setting a wrapper which was 
 laid lengthway of a waggon on one end for the greater convenience of 
 taking out the contents. To constitute the larcenv, the felon must, for 
 an instant at least, have the entire and absolute possession of the goods. 
 [R V Cherry, 2 East, P. C. 556.] It will be larceny for a person to run 
 away with money given to him by another person to procure a railway 
 ticket, she being present all the time. [li. v. Thompson, 32 L. J. 53.] 
 There' must also be a complete severance from the possession of the 
 owner, and therefore it has been held that the asportation will not be 
 complete if the prisoner were unable to cany oft the property on ac- 
 count of its being attached to the counter by a string which was not cut 
 or broken, or on account of its being tied to a bunch of k^ys which re- 
 mained in the prosecutor's pocket. With respect to the felonious intent 
 the goods must have been taken without any claim of right, for if thev 
 were taken either by mistake or under a boyia fide claim of right, how 
 ever unfounded, it will not be felony. But it will be for the Court to 
 determine on the evidence, whether they were taken under such an asser- 
 tion or r-pposition of right, or with a thievish and felonious intent. The 
 animus furandi must hi.^e existed at the time when the goods were 
 tiiken except in the case of a servant stealir.g his master's goods, when 
 this principle will not apply [see R. v. Roherts, 3 Cox, 0. C. 74], the sub- 
 sequent appropriation of them without an original felonious intent not 
 constituting the criminal offence of larceny. It may be laid down as a 
 general rule, that the taking and carrying away are felonious, where the 
 goods are taken against the will of the owner, either in his absence or in 
 a clandestine (a) manner, or where possession is obtained by force or 
 
 (a) The openness or secrecy with which an act is done is an important 
 clement in tho consideration of this offence, and constitutes in many casea 
 the distinction between a felony and a trespass. [See 1 Hale, 509.] 
 
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272 Appendix of Poms of Offences, S'C. 
 
 -urrrise, or by a trick or fraudulent expedient, the owner not toluntarily 
 parting with his entire interest in the goods, and where the taker intends 
 a any such case, frandulently t. deprive the owner of his entire in Wt 
 
 JHaliclotis Sttfuri) to ^xopmn^ 
 
 ^ yoT that you. Job Stiggins, on, &c., at, &c., maliciously did 
 injure (or damage or destroy) a certain gate, the property of John 
 Jones, contrary, &c. -f r j- 
 
 Sum. pun. not ex. 2 mos. jail, or fine not ex. $20 • also 
 compensation not ex. $20. See p. 386. Manual. ' 
 
 For that he the said A. B., on the first day of June, in the 
 year o our Lord , feloniously did kiU and slay one J. N 
 against the peace of pur Lady the Queen, Her Crown and dignity 
 
 F. Pun. not ex. 2 yrs imp. (L A.) 24 & 25 Vic, c. lOo' 
 s. 6. B. never taken by Magistrate. Indict 
 
 mahce prepense in the eye of the law, constitntes manslanghter "C; ZL 
 from culpable negligence; (2,) Voluntaiy manslaughter- Thl nZ J 
 Jen quarrel, two persons fight, and one of them Mttie other or". '"'' 
 man greatly provokes another, by some personal vioL!! ! ' . ^''' * 
 to a blow, and the other immekLy Mirhr^lr ,' • T"."^!"^ "* ''''' 
 the crime is murder or manslaughter the Magis^^^^^^^^^ 
 on the enquiiy, as the Crown officers may af^erwarr^^^^^^ charge -„.,,, 
 on,;o.hegrand,.ry.onan indictmen^. f::Z:^Ti:'i:;:tt^, 
 
 in any other manner, without felony It^^: 7, Zl T '^'^"^' " 
 
 For that he, the said A. B., on the first day of June in th« 
 yea. of our Lord feloniously, wilfully, and of Ms mahce 
 
"^ 
 
 Appendix oj Forms of Offences, &c. 
 
 273 
 
 aforethought, did kill and murder one J. N., against the peaoe 
 of our Lady the Queen, Her Crown and dignity. 
 
 P. Punishment— death. (I. A.) 24 & 25 Vic, c. 100, s. 1. 
 Bail never taken by Magistrate. 
 
 One J. N.— It must be proved that J. N. was the poraon kl'led ; if the 
 name of the person killed be unknown it should be stated. 
 
 Murder is thus described and defined by Lord Coke, (3 Just, 47). '« Where 
 a person of sound memory and discretion unlawfully killeth any reasona- 
 ble creature in being, and under the King's peaoe, with malice aforethought, 
 either expresi^ or implied." 
 
 Ist. Murder must be committed by a person of sound memory and discre- 
 tion ; it cannot, therefore, be committed by an idiot, a lunatio or an infant, 
 unless he shows a ccnsciomtness of doifig wrong. {Archb., 623.) 
 
 2nd. It must be an unlawfully killing not excusable or justifiable. It 
 may be by poisoniag, striking, starving, drowning, and a thousand other forma 
 of death, by which human nature may be overcome. [4 Blac. Comm. 196.] 
 
 To make the killing murder, the death must follow within & year and a 
 day after the stroke or other cause of it. [Archb. 625.] 
 
 3rd. The person killed must be a reasonable creature in being and under 
 the King's peace— a child must be born into the world in a living state, and 
 there must be an independent circulation in the child before it can be accoun- 
 ted alive ; but the fact of the child beirg still connected with the Mother by 
 the umbilical cord, will not prevent the killing from being murder. 
 
 King's Peace— this means merely that it is not murder to kill an alien 
 enemy in time of war. 
 
 4th. The killing must be committed with malice aforethought. Malice 13 
 either express or implied. Express vialice is when one, with a sedate and de- 
 liberate mind, and formed design, doth kill another, whish formed design is 
 evidenced by external circumstances discovering that inward intention ; as 
 lying in wait, antecedent menaces, former grudges, and concerted schemes to 
 do him some bodily harm. (1 Hale, 45.) No provocation, however great, will 
 extenuate or justify a homicide where there is evidence of express malice. 
 IB. V. Mason, Fost. 132.] 
 
 In many cases where no malice is expressed or openly indicatpcd, the law 
 will imply it. Thus, where a man wilfully poisons another— in such a delibe- 
 rate act the law presumes malice, though no particular enmity can be proved 
 [1 Hale, 456.] 
 
 So if a man kill another suddenly, without any, or without a considerable 
 provocation ; if he kills an Officer of Justice in the legal execution of his duty ; 
 or if intending to do another /etowy, he undesignedly kill a man ; in all these 
 cases the law implies malice, and the olfence is murder. 
 
 Of his malice aforetlwught did hill and murder, — The law presumes every 
 homicide to be murder, until the contrary appears. Therefore, the prosecutor 
 
 
274 
 
 Appendix of Forms of Offences, &c. 
 
 is not bound to prove maUce or any faces or oiroamstanoefc UAH^a the homioida 
 from which the jury may prestuue it ; it is for the defendant to prove the 
 homi^de justifiable or excusable, or tkit it amounted but to manelaughter. 
 In oases of oxpress malice the homicide is usuo,Uy committed in secret, and it 
 is rarely practicable to substantiate it by direct aud positive testimony; in 
 most oases the defeudaat ia convicted on curcixmstaufcial evidence merely!— 
 Lord Hale laid it down as a rule never to convict a man of murf' r or man- 
 Bteoghter on oirtumstantiai evidence alone, unless the body have been found. 
 [2 Hale, 290. | [iJ. v. HopUm, 8 C. & P. 591. j In oab<.s of implied malice, 
 the homicide is usuaUy committed in the presence of others who may prove 
 it, if not it must be proved by circumstantial evidouce. [Archb. 622.J 
 
 In aU cases of murder, the Magistrate's first care should be to secure the 
 gnilty or suspected party ? he should use tlie utmost cave, caution and secrecy, 
 in coUectmg the evidence. The body and tJie place of the murder should be 
 oarefuUy examined, and every mmute particular noted ; a Doctor should 
 examine the body, and, if necessary, hold a post mortem to prove the actual 
 cause of death. The bloody clothes of the murdered man, or of the murderer, 
 should ie carefnlly kept by the Constable, and also the instrument which 
 caused death. All these things are necessary to produce at the trial. The 
 Magistrate should remember that whilst every thing may appear clear to him 
 who IS on the spot, it is necessary to make the whole matter clear, perhaps 
 months afterwards in St. John's, before a jury, who know nothing except what 
 is proved before them. A murder can only be tried before the Supreme Court 
 in St. John's. 
 
 For that he, the said A. B., on the day of , at , in 
 the said District, falsely, wickedly, wilfully and corruptly, did 
 commit wilful and corrupt perjury, (in the testimony he gave upon 
 oath. in his examination, before , Esqnire, a Jmtice of the Peace 
 for the said District, upon the hearing of a cei-tain information or 
 complaint, prejerred by one C. P., or the said A. B., against E. F„) 
 against the peace, &o. 
 
 M. I. Common Law. B. discretionary. Pun.— fine and 
 imp. with hard labour, or imp. not ex. 7 yrs., and incompetency 
 as a witness. 
 
 # 
 
 The oath must be taken— (1) In a judicial proceeding; (2) Befor« 
 a competent jurisdiction or authority; (3) It must be material to the 
 question depending ; (4) It must be false or not known by defendant to 
 be true ; and (5) it must be taken deliberately and intentionally. [Oke 
 174.] See also p. 39, MwmU, 
 
Appendix of Forms of OieHCes, &e, 
 
 mecelbet» of glaliti ^foatJjs. 
 
 275 
 
 For that he, the said A. B., on the day of , at , in- 
 the said District, feloniously di.d receive of one 0. JO., {the thief, \ 
 or, if unknown, say of a certain evil disposed person, one watch 
 of the value of forty dollars (or nmney, as the case may be), the 
 goods and chattels (or money and property/ of E. F., which had 
 then lately hefore been feloniously stolen, he the said A. B. well 
 knowing the same to have been so stolen, contrary to the statute, 
 
 lleceibetJ5. 
 
 In Felonies.— Whosoever shaU receive any chattel, money, 
 valuable security, or other property whatsoever, the stealing, 
 taking, extorting, obtaining, embezzling, or otherwise disposing 
 whereof shall amount to a felony, either at common law or by 
 virtue oft: . Act, knowing the same to have been feloniously 
 stolen, taken, extorted, obtained, embezzled, or disposed of, shall 
 be guilty of Felony. 
 
 Pun.— imp. n. ex. 2 yrs. Male under 16, whipping. 
 
 AccESSORiES—An offender may be indicted and convicted either aa 
 an (a) acceasory after the fact or for a substantive felony, and in the latter 
 
 (a) An indictment wiU not Ue against a person as a receiver, if the steal- 
 inff is not a crime either at common law or under the Larceny Act, although 
 the oftenoe may be felony. [R. v. Smth, 1 L. R. (C. C.) 266.] If a husband 
 knowing that his wife has stolen goods, receives them from her, he may be 
 convicted as ft receiver. [B. v. JiTAthey, 32 L. J. 35. See also R. v Wood, 
 ward, 31 L. J. 91 .] Aa to feloniously receiving the goods of a husband taken 
 away by his wife, see B. v. Deer, 7 L. T. 366 ; and as to the goods getting 
 back into the possession of the owner, so as no longer to be stolen goods, 
 before their deUvory to tha receiver, see R. v. Schviidt, 1 L. R. (C. C.) lt>. 
 The bare finding of stolen goods on the premises of the person mdi. ed for 
 receiving, without any evidence that they were left there by the thief m ac- 
 cordance with a previous arrangement between hhn and the receiver, will not 
 be a sufficient couflrmation of the evideuoe of the thief that they were so left 
 BS to justify a conviction upon hia otherwise unsupported evidence. [B. v. 
 Robinsffn, 26 J. P. 183.] T«3 or more persons may be mdicted for jointly 
 receiving Stolen property, although each successively received the whole at dif- 
 fereut timei. [iJ. Y. Beardon, 35 L. J. 171.] A person buying goods of a partnef, 
 
276 
 
 Appendix of Forms of Offences, &c. 
 
 case, whether the principal felon shaU or shall not have been previously 
 convicted, or shall or fhall not be amenable to justice ; but no person 
 howsoever tried for receiving as aforesaid., shall be liable to be prosecuted 
 a second time for the same offea.je. [Id. s. 91. J 
 
 Indictment.— In any indictment containing a charge of feloniouslir 
 Hteahng any property, counts for fuan-ously receiving the same, knowing 
 the same to have been stolen, and in any indictment for feloniously re<^«iv- 
 mg any property, a count for feloniously stealing the same may be added ; 
 and the jury may find a verdict of guilty, either of n+ealing or recpiving 
 the property; and if tho indictment shaU have been found against two 
 or more persons, the jury may find all or any of the said persons guilty 
 either of stealing the property or of receiving the same, or find one or 
 more of the said persons guilty of stealing the property, and the other or 
 others of them guilty of receiving the same, knowing the same to have 
 been stolen, \_Id. s. 92] ; and any number of receivers at different times 
 of such property, or of any part thereof, may be charged with substantive 
 felonies m the same indictment, and may be tried together, notwithstand- 
 ing that the principal felon shall not be included in the same indictment, 
 or shall not be in custody or amenable to justice [Id. s. 93] ; and if upon 
 the trial of two or more persons indicted for jointly receiving, it shaU be 
 proved that one or more of such persons separately received any part of 
 such property, the jury may convict such of the said persons as shaU be 
 proved to have received any part of such property. [Id. s. 94.] 
 
 In Misdemeanors.— Whosoever shall receive any chattel, 
 money, valuable security, or other property whatsoever, the steal! 
 ing, taking, obtaining, converting, or disposing whereof is made 
 a misdemeanor by this A ', knowing the same to have been 
 unlawfully stolen, taken, obtained, converted, or disposed of, 
 shall be guilty of a misdemeanor— ^xm.—imj). n. ex. 2 yrs.— Male 
 under 16, whipping— [Zrf. s. 95] ; and may be indicted and con. 
 victed thereof, whether the person guilty of the principal misde- 
 meanor shall or shall not have been previously convicted thereof, 
 or shall or shall not be amenable to justice. [Id. s. 95.] 
 
 Where TRiABLE.-The trial for any offence under the 91st to the 
 05th section may be in any District or place in which he shall have or 
 
 who stole them from the firm, he knowing them to hwe been stolen, should 
 be indicted as an accessory after the fact, and not as a receiver. [J?, v. Smth. 
 23 L. T. (N.) 554. J * 
 
Appendix of Forms of Offences, Sc. 277 
 
 sLall have had any of the property in his ossession, or in any District or 
 place in which the party guilty of the principal felony or nusderaeanor 
 may by law be tried, in the same manner as such receiver may be tried* 
 in the District or place where he actuaUy received such property [Id. 
 B, 96 ; see also s. 114.] 
 
 In Summary Offences.— Where the stealing or taking of 
 any pi-operty whatsoever is by thip Act punishable on summary 
 conviction, either for every offence, or for the first and second 
 offence only, or for the first offence only, any person who shall 
 receive any such property, knowing the same to be unlawfully 
 come by, shall, on conviction before a Justice, be liable, for every 
 first, second, or subsequent offence of receiving, to the same 
 forfeiture and punishment to which a person guilty of a first, 
 second, or subsequent offence of stealing or taking such property 
 is by this Act made liable. [24 & 25 Vict., c. 96, s. 97.] 
 
 AccESSoniE8.-In case of felony every principal in the second degree, 
 and every accessory before the fact, shall be punishable in the same man- 
 ner as the principal in the first degree is by this Act punishable; and 
 every accessory after the fact to any felony punishable under this Act 
 (except only a receiver of stolen property), shall, on conviction, be im- 
 prisoned for nob exceeding two years, with or without hard labour, and 
 with or without sol. con. ; and every person who shall aid, abet, counsel, 
 or procure the commission of any misdemeanor pnniahable under this 
 Act, shall be Uable to be indicted and punished as a principal offender 
 [Id. s. 98]; and whosoever shall aid, abet, counsel, or procure the com- 
 mission of any offence by this Act punishable on summary conviction 
 only, shall be liable, on conviction before a Justice, for every first, second* 
 or subsequent offence, to the same forfeiture and punishment to which 
 a person guUty of a first, second, or subsequent offence as a pnncipal 
 offender is by this Act made liable. [Id. a. 99.] 
 
 ^elegraplj.— (^a»iafl'*»*fl' Telegraplis.) 
 For that he, the said A. B., on, &c., at, &c., unlawfully 
 and mahciously did cut, (or break, or throw down, or destroy, or 
 wjwre, or remove) certain wire, or a certain cable, or post, be g 
 part of a certain electric telegraph there being, belonging to tha 
 Anglo-American Telegraph Company, contrary, &o. 
 
 P. Imp. a. ex. 1 yr. B. eompulsory. Consol. Stat., p. 229. 
 
378 
 
 Appendix of Forms of Offences, &c. 
 
 89 Vic, Cap. 12, Sec. 16 :— 
 
 « All common beggars and vagrants, having nc visible means of 
 iJubsistence, may be arrested by the police, and brought before a Justice 
 of the Peace, and, on conviction before the said Justice, may be impriaon- 
 «)d for a period not exceeding ten days." 
 
 ffl33t^Cfts5. — Stealing from. 
 
 For that he, the said A. B., on, &c., at, &c., feloniously did 
 plunder and steal part of a certain ship or vessel, called the 
 (then in distress, or wrecked, or stranded, or cast ashore, as the case 
 may be,} there, twenty pieces of oak plunk, being parts of the 
 said ship (or certain goods and merchandize, or articles belong- 
 ing to a certain sbip or vessel. caHed, &c., to wit, pounds 
 weight of copper,) the property of 0. D., (or of a certain person 
 whose name is unknown), contrary to the statute. 
 
 F. I. Imp. n. ex. 2 yrs. B. dis. (I. A.) 24 & 25 Vic. c 96, 
 B. 64. 
 
INDEX. 
 
 • «• ••• ••• ••• 
 
 • ••• ••• •'• •'• 
 
 ••• ••• ••• ••• ••• ••* 
 
 • ■«• ••• ••• 
 
 • • ■ • « 
 
 »•• ••■ • 
 
 ..• •»• ••• ••• ••• ••• 
 
 ••• ••• ••• ••• ••• ••• 
 
 • •»* ••• ••• 
 
 ••• 
 
 • •• 
 
 ••• ••• 
 
 ••• ••• ••• 
 
 ••• • • • 
 
 • • • 
 
 «•• ••• 
 
 • •• ••• • •• ••• •*• 
 
 .•l«« ••• •** 
 
 AbbreTiations in Forms 
 Accessories defined — note 
 
 Accomplice — note 
 
 Actr.iii ^oodily harm— note 
 Ai^oudet' — Statement of ,.. 
 
 Caution to 
 
 Witnesses of 
 
 Expenses of Accused's witnesses 
 Adjournment in sumraary cases . 
 
 '♦ see also note 
 
 Affray — see Riot 
 
 Aiders and Abettors— 2JU?ii«^imcnt 0/ 
 
 Allegiance — Oath of ••• • 
 
 Appendix of Forms • 
 
 Al/prebensioi of Offenders— where Indictment fonnd 
 In pther Districts 
 Without Warrant 
 Appeals mttst be created by express law .. 
 From Quarter Sessions 
 In summary cases-r-HJOsts of 
 
 In Bastardy 
 
 Intoxicating Liquors ... 
 Stealing Cod-fish 
 
 Appyflntiqe — see Minors 
 
 Arson ... ... •• "* 
 
 Assault-rr-Pdfined ... 
 Common 
 
 ... ... ... ... 
 
 ... ... 
 
 ... ••• 
 
 ... ... ... 
 
 ... ... ... ... ••• 
 
 ... ••• ... 
 
 ... 
 
 ... «.• 
 
 ... ... .... ♦.. ••• 
 
 ... ... ... ••• ••• ••• 
 
 ... ... ... ... ... • 
 
 , ... .1. ... ••• 
 
 ••• ■ 
 
 ... ... 
 
 ... tit .•• ••' ••• ••• ••• ••• 
 
 Paob. 
 ... 262 
 ... 18 
 ... 266 
 ... 264 
 ... 62 
 ... 62 
 ... 64 
 ... 65 
 ... 150 
 ... 151 
 ... 184 
 ... 148 
 ... 4 
 ... 262 
 ... 61 
 ... 61 
 ... 68 
 ... 22 
 ... 80 
 ... 158 
 ... 220 
 ... 201 
 ... 269 
 ... 227 
 ... 262 
 ... 176 
 ... 177 
 ... 178 
 
n 
 
 INDK. 
 
 « •• ••• 
 
 •«• ••• 
 
 • • • •• • 
 
 «•• ■•• ••■ 
 
 ••• ••• «•• 
 
 ••• ••• ••• ••• 
 
 • • • t • • 
 
 • • • •! • 
 
 ••» ««• ••• •«• 
 
 • « • • • • 
 
 • • • ••• 
 
 •■• ••• ••• «•• 
 
 • • ■ • • • 
 
 ••• ••• ••• ••• ••• 
 
 • • • • • • 
 
 Aeaault — {Continued.) 
 
 Dismissal and Certificate in cases of 
 Eclcaso of prisoner — Jurisdiction of Justice . 
 
 On Clergymen , 
 
 On Officers and Justices at wrecks ... 
 
 With intent to commit felony ... 
 
 Punishment for Assault 
 
 On Constable 
 
 Aggravated, on Women and Boys — Form 
 
 Indecent Assault — Form 
 
 Forms in Assault Cases, from p. 262 to . 
 
 Attachment on Judgment in Civil Cases 
 
 Attempts to commit Murder ... 
 
 Attorneys fee for — allowed in summary cases— note ... 
 
 Backing Warrants — note 
 Form of Backing 
 In Summary Cases 
 Bastardy Warrants may be backed ... 
 
 Bail — when Justices may admit to ... ... 
 
 In Misdemeanor 
 
 Observations on, from 72 to 
 
 Eecognizance of Bail — Form in Indictable Offences 88 
 
 Bail to appear before Justices 101 
 
 Bail in Summary Cases 147 
 
 Form of Eecognizance in ditto 162 
 
 Bastardy — Local Act on 208 
 
 Object of Law 209 
 
 Paternity real question to be tried 209 
 
 Married Women and Widows may make complaint.. 209 
 
 Defence — immoral character of womaii , 209 
 
 Eeconciling parties 210 
 
 Imprisonment last resource 210 
 
 X Wlim ••• ••• ••• «»« «•« ca* «9« aa« ««« ■«« 4UX\J 
 
 Period of gestation 210 
 
 2nd & 3rd Sections of Chapter on Deserted Wives — 
 
 appHcable 211 
 
 Party relieved on payment of $100 211 
 
 • • • ■ •• 
 
 «•• ••• 
 
 ••• ••• 
 
 • • • • • • 
 
 Page. 
 ... 179 
 ... 180 
 ... 180 
 ... 181 
 ... 181 
 ... 181 
 ... 181 
 264 
 ... 264 
 264 
 ... 261 
 ... 265 
 ... lo2 
 ... 18 
 ... 60 
 ... 141 
 ... 185 
 ... 69 
 ... 73 
 ... 74 
 
tMD£X. 
 
 m 
 
 • •• •• • 
 
 ... ..• ••• •*• 
 
 , X PAOB. 
 
 tiAHiAt^-^— {Continued.) 
 
 Mother of iUegitimate child neglecting to support- 
 
 Howimnished ;;• - '" .,» 
 
 Appeal to Quarter Sessions in Bastardy Statute ... 21i 
 
 Appeals how made 
 
 Bond to appeal-Form of - •• 
 
 Appeals in Bastardy cases, how conducted lo^ 
 
 Complaint— Form of, in Bastardy ^^ 
 
 Warrant on complaint ... • 
 Arrest and proceedings thereon 
 Bond to appear 
 Hearing 
 
 Costs 
 
 AffiUation Order ♦ ;-; 
 
 Bond to Poor Commissioner to support child ^^i^ 
 
 Commitment in Bastardy ' 
 
 " ••• ^^° 
 
 Bigamy oqq 
 
 Boats-Carrying away of, in fishery ... 
 
 ••• ••• 
 
 • •• •• 
 
 • • • 
 
 • • • • • • 
 
 •■• ••• •** 
 
 « • • 
 
 •t« ••• 
 
 • ••• 
 
 • • * 
 
 ••• •»* 
 
 ... 213 
 ... 214 
 ... 2U 
 ... 215 
 ... 216 
 ... 218 
 
 ... .*• 
 
 
 
 ... • ••• 
 
 ... ... 
 
 ... ••• 
 
 ... ••• ••• 
 
 c. t. ... ••• ••• 
 
 • .*. ••• ••• "•• 
 
 ••• .•• 
 
 ... ... 
 
 Penalty for 
 
 Jurisdiction of Justices 
 
 When prosecution to be commenced 
 
 Burglary 
 
 Caption— See note ... 
 
 Case— how stated ... 
 
 Where application to be made ... 
 
 Within what time 
 
 When Justice may refuse ... 
 Costs on — ^note 
 Fees upon ... 
 Form of notice 
 Form of case 
 Cash— Servants' wages to be paid in ... 
 Central District— defined 
 
 Certiorari— defined 
 
 Form of writ of, and J. P's return 
 Chairman of Quarter Sessions -how appointed 
 His charge to Grand Jury 
 
 ... ••• 
 
 ... .«• 
 
 ... . .. 
 
 ... ... 
 
 ... ... 
 
 .♦• ••• 
 
 ... ... 
 
 ... •♦• 
 
 
 
 ... '•• 
 
 ... ... "• 
 
 ... ... 
 
 
 
 ... ••• 
 
 ... ... 
 
 ... ... ••• ••• 
 
 2U 
 234 
 234 
 266 
 81 
 25 
 25 
 25 
 28 
 29 
 . 82 
 82 
 83 
 ... 231 
 11 
 22 
 ... 266 
 ... 129 
 ... 130 
 
IT 
 
 indk::. 
 
 ••• ••• 
 
 ••• ••• ••• «•• 
 
 • • « « • • 
 
 ••• ••• ••• ttt 
 
 ••• !•• 
 
 ••• •# • •«• ,,, 
 
 ••• ••• ••• ••* 
 
 •*• ••• ••• ••■ 
 
 ••• ••• 
 
 ••• •■• 
 
 •• • • • • 
 
 ••• ••• ym 
 
 ••• ••• 
 
 • • • « • • 
 
 • • » • ■ » 
 
 • • •«« 
 
 •' • ••• 
 
 • • • •• • 
 
 Chargo—how preferred in Indictable offeLoe'r 
 Child — desertion of 
 Civil Jurisdiction of Justices— dofir<5d 
 Civil Businesa—Gentral Jurisdiction of J. P'a 
 In Sealers' wages 
 Receiver's voyage 
 Evidence in Civil Cases 
 Summons in Civil Cases 
 Default 
 
 Form, of Summons 
 Hearing 
 Nonsuit 
 Costs 
 
 Subpoena for Witness 
 Execution on Judgment — Form 
 
 Attachment on Judgment 
 
 Commitment-of pris-^ner in Indictable offences 
 Form of Commitment in do. 
 
 For non-payment of money, summary cases .*.* 
 Where order directs imprisonment only-— Form 
 In Bastardy cases — Form 
 Commission of Justice of Peace 
 
 Form of 
 
 Complainant — ncn -appearance of 
 
 When competent to be witness ... 
 Compromising in summary cas?s— note 
 Concealing birth of a Child ... 
 
 Confession of Prisoner 
 
 IIow noted on Deposition 
 Obtained by promise or threat ... 
 
 Constable— Assault on 
 
 Special— when appointed ... 
 
 Form of Oath 
 
 Ecfusal io act 
 
 May call on by-stander 
 
 Penalty for refusing to aid Constable 
 
 • •• • •■ 
 
 • • • •■ • 
 
 • • • •• • 
 
 • • • • • ■ 
 
 • • c • •• 
 
 • t* • • • 
 
 • 
 
 • • • • • • 
 
 • 
 
 ••• ••• 
 
 • • • •• • 
 
 ••• ••• ••• 
 
 
 
 ••• ••• ••• ••• 
 
 ••• ••• 
 
 Paob. 
 . 42 
 222 
 10 
 .. 261 
 .. 254 
 254 to 256 
 
 266 
 
 ... 257 
 ... 257 
 ... 258 
 ... 268 
 
 ... 259 
 
 ... 269 
 
 ... 260 
 
 ... 261 
 
 74 
 
 ... 00 
 
 ... 166 
 
 ... 166 
 
 ... 219 
 
 .>. 1 
 
 • fl • i3 
 
 ... 147 
 ... 150 
 
 ... 147 
 267 
 ... 63 
 ... 84 
 
 ... 244 
 
 ... 181 
 
 ... 185 
 
 ... 185 
 
 ... 185 
 
 ... 185 
 
 ... 186 
 
 k* .♦ 
 
 M 
 
T<-^-v%/ . 
 
 ■M 
 
 raDBX. 
 
 «•• «•• 
 
 ••• ••• 
 
 • 
 
 ••• ••• 
 
 ••• ••• 
 
 Costs iu Actions a^Tainat Jrstices .. 
 
 lu Summary Caaes 
 
 BcaoxJry of 
 
 In Bastardy cases 
 
 In Civil Cases 
 
 Of Attorney in Sumniary Cases-note 
 Counsel for Prisoner in Indictable Offences-note 
 
 In Summary Cases 
 Court-Open and Public, in Summary Cases 
 
 
 
 ,, ••• •« 
 
 ••• ••• 
 
 ••• ••• 
 
 • * • •• • 
 
 
 
 21 
 
 188 
 ... lb? 
 ... 218 
 ... 269 
 ... 152 
 68 
 ... 146 
 ... 146 
 
 Not to be doemed'open in e^ '^^ ^or Indicta- ^^ 
 
 ble Offences "* 
 
 Excluding Woiueu and Boys in Bastaxdy Cas.a, &c., ^^^ 
 
 —note -.ft 
 
 . 14t> 
 
 Contempt of Court— note ^^ 
 
 Conviction may be amended-note ^^ 
 
 Defined l^o 
 
 Form of 20 
 
 Damages-In action against Justices ,^ 
 
 Dcfact-In Form of Warrant ^^^ 
 
 Defendant— ^on-appeaia,nce of ^^^ 
 
 When he admits charge ^^^ 
 
 When charge not admitted ^^^ 
 
 Discbarge of 257 
 
 Defaiilt -In Civil ^ases ... ... •••/•• ^^ 
 
 Depositions-Prisoner entitled to copies of ^^ 
 
 Of Persons dangerously Ul - ••• - 
 
 How to be taken in Indictable Offences-and Note 59 
 Deserted Wives and Children-J-^stices may apprehend any 
 
 Husband, &c., abandoning h:. W:fe, and ^^^^ 
 
 order security, &o 
 
 May attach Property by Goods, &c ^^^ 
 
 Diaab! .—Meaning of - - „. 
 
 Discharge of Prisoner-When Justice may order ... ... ^^ 
 
 Discretionary power of Justices 
 
 Disfigure — Meaning of ... 
 
 ... ••. ••• 
 
 ■ 
 
 ..» ... 
 
 ... 26S 
 
VI 
 
 INDEX. 
 
 • ■ • • • • 
 
 ••• ••■ ••• 
 
 ••• ••• ■•• ••• »•« ••• ••• ••! 
 
 ••• ••• •»• 
 
 ••• ••• ••• ••• 
 
 ••• ••• ••• cat ••• ••• •#• 
 
 ••• ••• •«• 
 
 ••• •■• ••• 
 
 • •• • • • 
 
 •«• ••• ••• ••• ••• ••• ••• 
 
 • • • • • • 
 
 • • • •• • 
 
 ••• ••• ••• 
 
 •#• ••• ••• ••• 
 
 ••• ••• «•• ••• *•• 
 
 Page. 
 153 
 154 
 154 
 155 
 158 
 158 
 159 
 1G8 
 11 
 106 
 110 
 110 
 187 
 286 
 
 Distress — Warrants of 
 May bo backed 
 
 Where no goods or distress ruinous 
 Wliere no sufficient diatresa 
 After appeal 
 Payment of penalty on 
 How executed — note ... 
 Form of Distress Warrant 
 Districts — Division of 
 
 Dying Declaration — Form of, in Murder, &c 
 
 Embezzlement — Definition of 
 How dealt with — note 
 Enquiries — Before Justices . 
 
 Evidence 
 
 General Observations, p. 286 ; Competency of Wit- 
 nesses, 236 to 287 ; see rlso Addenda — Title, 
 Competency of Witness ; Oath, 288 ; Mode of 
 Examination, 239 ; Examination in Chief, 
 
 Cross Examination 240 
 
 Re-examination, and General Eules 241 
 
 Examination in Chief 239 
 
 Execution in Civil Cases 260 
 
 False pretences 2G8 
 
 Ferries — Court of Quarter Sessions may form rules for man- 
 
 ... 181 
 ... 7 
 158 
 2G8 
 2G9 
 185 
 270 
 
 ••« ••• •■• ••• ••* ••• 
 
 •■• ••• ••• ••• 
 
 ••• ••• ••• 
 
 • « • « ■ • 
 
 •■■ ••• *•• 
 
 ••• ••* ••• ■•• ••« ••• «•• 
 
 ••• ••• ••• ••• 
 
 agement, &c. 
 
 Fines — how appropriated — note 
 
 Fine or Imprisonment — note 
 
 Firing Woods 
 
 Fish, Cod — SteaHng of .. 
 
 Offence may be tried Summarily 
 
 ■^ ^^^^*- y ••• ••• ••• ••• ••• ••• •< 
 
 Forms in Indictable Offenoec — under Jei-vis Act, 11 & 12 
 
 Vic, Cap. 42 90 
 
 Information and Complaint of an Indictable Offence 9i 
 
 Warrant to apprehend 93 
 
 Warrant of Commitmert 9i 
 
 <,v 
 
INDEX. 
 
 ■7U 
 
 <,v 
 
 Page. 
 ... 92 
 ... 92 
 
 93 
 93 
 93 
 
 Forms in Indictable OSencQB— [Continued.) 
 
 Summonii 
 
 Warrant, where Summons disobeyed — 
 
 Warrant to apprehend person charged with Indicta- 
 ble Olience, committed on the high seas, or 
 
 abroad 
 
 Warrant where C-. 'ficate of Indictment found ... 
 
 Warrant to apprehend person Indicted 
 
 Other Forms in Indictable Offences, from page 93 to 107 
 
 Forms in Summary Cases, from 1^^ ^^ ^^^ 
 
 Forms in Appendix 
 
 General Issue— Special matter proved under plea in actions 
 
 against Justices 
 Grievous Bodily Injury ... . 
 
 Habeas Corpus— Writ of 
 
 Hard Labor - 
 
 Hearing in Summary Cases 
 
 In Bastardy Cases 
 
 High Seas — Offence?! committed on ••• ••• '•• 
 
 Honorary Justices may exercise powers of Stipendiary m 
 
 certain cases • 
 
 Imprisonment — Consecutive 
 
 Indecent Assault 
 
 Indenture of Apprentice— Form of ^ 
 
 Indictment against Justice •*' 
 
 Indictable Offences— Enquiries ir.to, from '87*0 
 
 ••• •■• 
 
 %t« ••• 
 
 20 
 .. 2o4 
 .. 23 
 ... 178 
 ,.. 145 
 ... 217 
 ,.. 46 
 
 In an imaginary case 
 
 Infants — When responsible 
 
 *' ' — Capacity for crime 
 
 Meaning of term 
 
 Information — Criminal, against Justice 
 *( — When to be made on Oath 
 
 Who may lay 
 
 Variance— Summary Convictions 
 Intoxicatincc Liquor — License for Sale of 
 
 When granted •• 
 
 Penalty for Sale without 
 
 79 to 90 
 . ... 44 
 . ... 118 
 . ... 222 
 . ... 24 
 . ... 47 
 47 
 
 )• ••• X^* 
 
 195i 
 
 203 
 
 203 
 
Tin 
 
 INDEX. 
 
 hxto-dc&iing Liquor— {Continued.) 
 Licenses, how granted 
 "Wliolesale and Retail 
 Charge for 
 Registry of ... 
 Sign 
 
 • •• ••» ••• ••• 
 
 «• •• 
 
 • • • • • • 
 
 ••• ••• ••• ••• 
 
 • • • • • 
 
 ••• »•• ••• 
 
 ••• ••• ••• ••• 
 
 • •• ••• ••• ••• ••■ 
 
 • • • • I 
 
 ••• ••• ••• 
 
 « • • ••« 
 
 *•• ••• ••• ••• ••• 
 
 • • • •• • 
 
 «•• ••• ••• 
 
 •»• ••• ••• 
 
 •t« •«■ ••# 
 ••• ••• •*• 
 
 ••• ••• ••• 
 
 • •• «•-• ••• ■** 
 
 ••« ••• ••• 
 
 ••• ••• ••» 
 
 »•• •••• ••• 
 
 »«• ••• ••• * 
 
 Adulteration 
 
 Selling to persons under sixteen 
 
 Habitual Drunkards 
 
 Sale of Goods on pawn 
 
 Set off of Liquor not allowed 
 
 licensed Houses when to be closed ... 
 
 Harbouring Constable 
 
 Constable may visit 
 
 Legal procedure ... 
 
 Burthen of proof 
 
 Appeals to Quarter Sessions 
 
 Forms 
 
 Rules made by Magistrates, St. John's 
 Irregularity in Summons — note 
 
 "Waiver of 
 Judicial notice 
 
 What the Court takes judicial notice of 
 
 Judicial C '^^h 
 
 Jurisdiction of Justices— see Justice 
 jury_Summoning Jury at Quarter Sessions 
 Justice of the Peace— Office of 
 
 How appointed 
 
 Commission of 
 
 Oath of 
 
 Obligation of 
 
 Duties of 
 
 Ministerial functions of 
 
 Judicial functions of 
 
 Jurisdiction of— as to locality 
 
 Act for protection of 
 
 Proceedings against Justices 
 
 "Within what time to be commenced 
 
 • • • • 
 
 • •• • *• 
 
 «•• ••• ••• ••• • 
 
 • « • • • • 
 
 »•• ••• ••• 
 
 ••• ••• ••• 
 
 • • • • • * 
 
 ••• ••• ••• 
 
 • » • • « • 
 
 •c» ••• ••• 
 
 •■•• •*• 
 
 ••• ••• ••• 
 
 • ••• 
 
 ••• ••• ••• 
 
 ••» ••• ••• 
 
 • • • • • 
 
 ••• «•• 
 
 • • •• 
 
 ••• •»• ••• 
 
 ••• ••• ••• 
 
 •« • ••• 
 
 ••• ••• ••• 
 
 ••« »»• •«• 
 
 Page, 
 ... ... 20t7 
 
 203 
 
 203 
 
 193 
 
 ... 194 
 
 195 
 
 195 
 
 195 
 
 193 
 
 ... ... 196 
 
 196 
 
 ... .:. 196 
 
 «»« ••• «.«/C> 
 ,», »•• XdtJ 
 
 200 
 
 201 
 
 . 203 
 
 203 
 
 140 
 
 249 
 
 241 
 
 ... 241 
 
 4 
 
 11 
 
 .. 127 
 
 1 
 
 1 
 
 2 
 
 3 
 
 5 
 
 7 
 
 8 
 
 8 
 
 11 
 
 17 
 
 17 
 
 18 
 
 I • » • • 
 
 • • • •• • 
 
 • •• •• » 
 
 • • •' I • • 
 
 «* • •• • 
 
 > • • •*• 
 
 • • • • • • 
 
 • • • • • • 
 
 ■ • • • • 
 
 • • • • • • 
 
 • • •• • 
 
 • « • • • • 
 
 • • • • • • 
 
 ••• ••• 
 
tNDKt. 
 
 IX 
 
 • • « *• • 
 
 »•• ••• ••* *»■ 
 
 Page. 
 
 ,. 19 
 
 19 
 
 ««• Ate ••« *•■ •** *** 
 
 . ... 114 
 
 ■•• ••• ••• ••* 
 
 Justices of the Peace— (Contmugd.) 
 Piefusal to act 
 How to compel them ..* 
 
 Juvenile Offenders 
 
 Offences — Table of ... ». 11" 
 
 Procedure — Mode of H' 
 
 Forms in — from H^ ^^ 1^^ 
 
 Labrador— Boundary of so much as remains subject to 
 
 ** • •• • 
 
 • •* • t • 
 
 • • • • • • 
 
 • t ■ • • * 
 
 • •• «* 4 
 
 • • • * •• 
 
 •• • »«• 
 
 « ■• **• 
 
 ••• ••• •*• 
 
 • •• •• 
 
 ••• ••• ••• 
 
 • •• • •• 
 
 • • • • • » 
 
 >•• • • * 
 
 ••* ••• 
 
 ••• ••• ••• ••• 
 
 •• • • «• • 
 
 *•« ••• ••• •*• 
 
 • t* • •• 
 
 Newfoundland 
 
 Jurisdiction of Magistrates a3 to— note 
 Land — Title to, in assault .. 
 
 Justices no jurisdiction 
 
 See also note 
 
 See also Ouster of Jurisdiction 
 Larceny — Where dealt with 
 
 Summary juiisdiction 
 
 Punishment of 
 
 Defined — Form 
 Let— Meaning of word ... 
 License— See Intoxicating Liquors 
 Locality — Jurisdiction of Justice as to 
 Lunatics— When responsible 
 
 Magistrates — Stipendiary 
 
 Pov.irs of Stipendiary 
 Magisterial liuqiiiries 
 
 Aboiidon of Coroner 
 
 Enquiries into sudden deaths 
 
 Fees on 
 
 Into Fires 
 
 Malicious lujuiies' Act 
 
 Provisions of Local Law 
 
 Form of Offence 
 Mandamus — Writ of 
 
 Meaning of — ^note 
 
 Manslaughter •• ••• 
 
 Married Women 
 
 ••• ••• 
 
 • • • 
 
 • •• •• • 
 
 ••• «•• ••• ••• 
 
 ••« ••• ••• ••• 
 
 • •• ••« ••• •• • 
 
 «•• ••• ••• ••• 
 
 « • • • • * 
 
 • ■• ••• 
 
 • •• • ■ V 
 
 • •• ••• ••« ••■• 
 
 < •• • • • 
 
 •*• ••• ••• ••* 
 
 ••a ••• ••• ••• 
 
 ••• ••• ••• ••• 
 
 • • •• * 
 
 ••• ••• •*• ••• 
 
 12 
 12 
 180 
 14 
 15 
 246 
 14 
 107 
 ... 109 
 ... 270 
 7 
 ... 190 
 11 
 44 
 ... 237 
 ...8,10 
 75 
 ... 187 
 ... 187 
 ... 188 
 ... 189 
 ... 189 
 ... 136 
 ... 186 
 ... 272 
 5 
 5 
 272 
 44 
 
Hi 
 
 Married Women— (Continued.) Paois. 
 
 Cannot give evidence against husband, except in 
 I cases of personal injury ... *» ""« 
 
 In License cases * 201,202 
 
 Master and Servant in the fishery— Contract between, and 
 
 .41 
 
 • It 
 
 penalty for breach 
 
 Absence of servant— penalty for 
 
 See also note *•• 
 
 Penp.lty for not paying wages 
 
 Wages to be paid in cash 
 
 Harboring of servant— penalty for 
 
 Befusal of sealer to work 
 
 Advances to fisherman at current prices ... 
 
 Sale of Intoxicating Liquors by Master • 
 
 Vessel to be provided with medicine chest 
 
 Carrying away boats — penalty for 
 
 Form of Complaint ••• 
 
 Warrant to arrest servant ... 
 
 Medicine Chests— Vessels employed in Seal or Labrador 
 
 fisheries to be provided with 233 
 
 Mihtary Force— If Civil Force insufQcient, may be called 
 
 230 
 281 
 281 
 231 
 231 
 232 
 282 
 232 
 232 
 233 
 283 
 234 
 . 235 
 
 «<• 
 
 upon 
 
 Minors and Apprentices ••• 
 
 Approval of Indentures by Justice 
 Ilh usage of an Apprentice 
 
 Harboring of — penalty for .* 
 
 Form of Indenture 
 
 Murder ... 
 
 Nonsuit— In actions against Justices 
 
 In Civil Cases 
 
 Northern District , - 
 
 Oaths— Oath of Office of Justice of the Peace '- 
 
 Ditto Ditto (old form) 
 
 Ditto Ditto- (present form).. 
 
 Oath of Allegiance 
 
 Special « ' 
 
 Penalty for refusal to take 
 
 ••I ••• 
 
 18G 
 227 
 227 
 227 
 228 
 228 
 272 
 20 
 259 
 12 
 8 
 8 
 4 
 4 
 4 
 . 4 
 
3 
 8 
 4 
 4 
 4 
 4 
 
 INDTJX. 
 
 IX 
 
 *■• ••• ••• ••• 
 
 ••• ••« 
 
 • ••• ''* 
 
 ••• <•• 
 
 •«• ••• 
 
 ,,, ••• ••• ••• 
 
 O&ihB— {Continued.) 
 
 Declaration instead of 
 
 Oath— See evidence 
 
 Oath in Civil Oases 
 Offenders— Indictable 
 
 Enquires on, 
 Offences— Summary jurisdiction of 
 Offenders— Who are 
 
 Juvenile 
 Ordering Witnesses out of Court— note 
 
 Parent— Definition of term ■ 
 
 Particulars of Plaintiffs demand in Civil Cases 
 Payment into Court in Action against J. P^ 
 peaoe— Sureties for the Peace 
 
 Pam. 
 
 •• •• " 
 
 ... 289 
 
 258 
 
 .. .... 87 
 
 .. 40 to 79 
 ... 112 
 
 ... .•• ^^ 
 
 114 
 ^'■^ 
 
 ... ... 
 
 ... ... .»• 
 
 ..• 
 
 ..k 
 
 ... ... 
 
 ... ... ... ••• 
 
 ... 150 
 ... 224 
 ... 257 
 ... 20 
 ... 172 
 
 ••• ••• ••• ••• 
 
 ••« ••• ••« •• 
 
 ••• ••• ••• 
 
 • •• ••• 
 
 ••• ••• 
 
 ««« ••• ••• *** 
 
 ••« ••• ••• ••• ••• 
 
 Grounds of complaint— facts to support complaint 178 
 Who may complain— Form of Complaint ... ... 178 
 
 Suramins or Warrant — Forms 174 
 
 Hearing— Eecognizanoe, Commitment— Forms of .. 176 
 
 ,•• 89 
 
 ... 274 
 
 ... 146 
 
 ... 245 
 
 ... 245 
 
 ... 246 
 
 ... 246 
 
 ... 247 
 
 ... 248 
 
 ... 249 
 
 ... 250 
 
 ... 250 
 
 ... 252 
 
 Procedure in Criminal Cases— (Indictable Offences) St^s 
 
 in "^^ *° "^^ 
 
 Process to issue against Offenders— Indictable 47 
 
 Prisoner — Discharge of '* 
 
 Committal of ' 
 
 Conveyance to Jail - " * 
 
 MM 
 
 Perjury — ^Defined 
 
 Form of charge 
 Police Superintendent may appear, &o.— note 
 
 Practice 
 
 Criminal knowledge ... 
 
 Ouster of jurisdiction by claim of right ... 
 
 Estoppel 
 
 Majority decide 
 
 Judgment deferred— altering judgment . . . 
 Giving time for payment— part payment 
 "Waiver of irregularity 
 Commitment— whipping 
 Printed Forms— Seal— Eecords 
 
 »• • ••• 
 
 ••• ••• ... *•• 
 
 • • ••« 
 
 ••• <#• ••• ••• 
 
sn 
 
 INDBX. 
 
 
 • • • •• • 
 
 • • • • • • 
 
 «•• ••* ••• ••• 
 
 • • • • • • 
 
 • • • • • • 
 
 • • • •• • 
 
 ••• ••• 
 
 • ••- ••• ••• ••• 
 
 • •• •• • 
 
 • • • •• • 
 
 Prisoner — {Continued.) 
 
 Presence of at trial— Indictable Offences 
 Money found on Prisoner ... 
 Eemoval of, without Habeas Corpus 
 
 Prostitute— See Bastardy 
 
 Public Documents— how proved 
 
 Public Houses— closing in case of Eiot 
 Quarter Sessions— Courts of CivU Jurisdiction, 
 
 Defined 
 
 When to be holden 
 
 "Where to be holden 
 
 Duties of Justices at Sessions ... 
 
 Jurisdiction in Criminal Cases ... 
 
 Grand and Petty Juries 
 
 Opening Court— swearing Jury, &c. 
 Trial of Indictable Offences— Appeals 
 Ferries and Public Wharves— Eegulation of ... 
 Eeceivers of Voyage— Actions against 
 Eeceivers of stolen Property 
 
 Eecognizance defined 
 
 Witness refusing to enter into ... 
 
 Notice of Eecognizance to be given to Accused and 
 
 Bail • ®® 
 
 To prosecute — Form' of 
 
 To give evidence— Form of ^^ 
 
 Ee-hearing m Summary Cases— note • 1^^ 
 
 Eemand m Indictable Offences— General rules for ... 
 
 Form of Eemand — Indictable • 
 
 Form of Eemand in Summary Cases 
 
 Eeply— No reply allowed in Summary Cases— note ... 
 
 In Civil Cases 
 
 Eeturns to Eeceiver General- when and how made ... 
 
 Eiot defined — '" 
 
 Beading Eiot Act — note 
 
 Eiot Act— within what time to prosecute 
 Eout defined 
 Eule Nisi agaiupt Justice 
 
 • •• • • • 
 
 •»• ••• 
 
 • •• • • • 
 
 ••» ••• ••• 
 
 Page. 
 ... 77 
 ... 77 
 ... 77 
 ... 208 
 ... 243 
 ... 156 
 9 to 10 
 ... 123 
 ... 124 
 ... 125 
 ... 125 
 125 
 ... 127 
 128 to 129 
 180 
 ... 131 
 ... 254 
 ... 275 
 ... 65 
 ... 66 
 
 • •• ••• ••• ••• 
 
 •«• •«• 
 
 t»* ••• ••• * 
 
 ,,, ••• ... ••• ••♦ 
 
 67 
 
 86 
 
 i.d5 
 
 149 
 
 269 
 
 6 
 
 182 
 
 183 to 184 
 
 48 
 
 ... 182 
 
 6 
 
 ••• ••• 
 
INDEX. 
 
 XW 
 
 , 77 
 . 77 
 . 77 
 . 208 
 . 243 
 . 156 
 to 10 
 ,. 123 
 ,. 124 
 .. 125 
 .. 125 
 .. 125 
 .. 127 
 to 129 
 .. 180 
 .. 131 
 ... 254 
 ... 275 
 ... 65 
 ... 66 
 nd 
 
 ... 89 
 ... 98 
 ... 99 
 ... 148 
 ... 67 
 ... 86 
 .. ibS 
 ... 149 
 ... 259 
 ... 6 
 ... 182 
 ) to 184 
 ... 48 
 ... 182 
 • f * o 
 
 Sealer refusing to work— penalty ... ■ 
 
 Share of Seals— see Civil Business , 
 Search Warrant (see Warrants) 
 Servaiii— See Master and Servant 
 
 fciessions— See Quarter Sessions 
 
 Set-ofif in Civil Cases ^ ••• 
 
 Ships— British— part of British Territory 
 
 Offences committed in British Ships 
 Skating or Sliding— Prevention of 
 Small Penalties Act •• ••• 
 
 Application of 
 
 Scale of imprisonment 
 
 Southern District— Defined 
 
 Page. 
 . ... 232 
 . ... 254 
 53 
 . ... 230 
 . ... 123 
 . ... 259 
 . ... 13 
 13 tj 14 
 ,. ... 132 
 .. ... 121 
 
 122 
 
 123 
 
 ■ • • • • JL^ 
 
 Stipendiary Magistrate— Jurisdiction of in Criminal Cases 9 
 
 Subpoena for Witness— Civil Cases— Form 259 
 
 Sunmary jurisdiction of Justices. 134 to 160 
 
 Summons — Service of in Indictable Offences '• 48 
 
 Summary Jurisdiction ^"' 
 
 Defect in Form ^^" 
 
 When disobeyed t ••• 1^0 
 
 In Civil Cases— Form of 258 
 
 S.'nday— Justices may take information and issue Warrants 
 
 on 
 
 Supremacy — Oath of 
 
 Sureties for the Peace— See Peace 
 
 Telegraph — Injuries to 
 
 Arresting Offenders without Warrant ... .». ... 
 
 Form of Charge for injury to 
 
 Tender and payment into Court in Action against J. P. ... 
 
 In Civil Cases — note 
 
 'Xxme — Definition of — note 
 
 Limitation of in Summary Cases •• 
 
 In malicious injuries 
 
 Title to Land— Justices no jurisdiction to try summarily, 
 
 14 to ' ^^ 
 
 Ouster of Jurisdiction 24G 
 
 52 
 
 2 
 
 172 
 
 136 
 
 136 
 
 277 
 20 
 
 259 
 81 
 
 145 
 
 130 
 
Vf 
 
 INDKK. 
 
 ... ... 180 
 
 2|0 
 
 ,., ... xo2 
 278 
 
 ••• ■•• X^%i 
 
 . • • • • • aU 
 
 281 
 
 ••• .•• • 
 
 13, 60 141 
 
 oo 
 
 Title to L&ndi— {Continued.) 
 
 In Assault Gases ••< 
 
 Twins — see Castardy • 
 
 XJul&wful assembly ... • ••• •• 
 
 /^grants .•• ••• ••• ••• ••• »•• ••• ••' 
 
 Variance in information ' 
 
 Venue — Meaning of ■ 
 
 Wages in the Fishery— See Masters and Servants 
 
 "Warrants — By whom to be served 
 
 Backing — See Backing 
 
 Search Warrants 
 
 How obtained ».. 
 
 Mode of execution 
 
 Form of .». ... • *• 
 
 To commit person indicted — Form 
 
 To detain " 
 
 Where Witness has not obeyed Summons 
 
 For Witness in first instance 
 
 For Witness refusing to swear 
 
 Execution of Warrant — summary 
 
 Defect in " "' ••• • 
 
 Of Distress ..." .•• • • 
 
 Of Distress after Appeal ... . 
 
 Of Distress — How executed — ^note ... . 
 Distress Warrant may be Backed ... . 
 
 Wharves — Public 
 
 •^Yife — When liable for her acts — jjenoto ... . 
 
 Desertion of Wife 
 
 Cannot be Witness against Husband— Exceptions .. 236 
 
 Whipping 
 
 With Birch Eod ^^^ 
 
 See also note • •, ^^^ 
 
 Witnees— Compelling attendance — Indictable 57 
 
 Penalty for refusing to answer ... ^^ 
 
 When unable to travel • "^ 
 
 Deposition may bb read •• "" 
 
 Bummonsfor — Form ... ^* 
 
 .. 64 
 .. 66 
 .. 56 
 .. 94 
 ... 96 
 .. 96 
 ... 96 
 ... 97 
 ... 141 
 ... 141 
 ... 153 
 ... 158 
 ... 159 
 ... 154 
 ... 132 
 .,. U 
 ... 222 
 
 ..« 
 
niDEX. 
 
 Wiino&a^{Continued.) 
 
 Ordering out of Court — note . 
 
 
 Pagr. 
 150 
 
 Woods — Firing 
 
 Wrecks— Stealing from 
 
 Assaulting Officers at ... . 
 
 Form of Charge for Assault 
 
 
 268 
 
 278 
 
 ... ... 181 
 
 263 
 
 !•• 
 
 ■ . 
 
 50 141 1 
 
 • •• 
 
 53 
 
 • •• 
 
 64 
 
 • • • 
 
 66 
 
 • • • 
 
 66 
 
 • •• 
 
 94 
 
 • •• 
 
 96 
 
 • •• 
 
 96 
 
 • •• 
 
 96 
 
 • •• 
 
 97 
 
 • • * 
 
 141 
 
 • •• 
 
 141 
 
 mm^ 
 
 153 
 
 • •• 
 
 158 
 
 • •• 
 
 159 
 
 • •• 
 
 154 
 
 • •• 
 
 132 
 
 • 9* 
 
 U 
 
 • •• 
 
 222 
 
 3 .. 
 
 236 
 
 • •• 
 
 250 
 
 • • • 
 
 115 
 
 • »» 
 
 118 
 
 • •• 
 
 57 
 
 • •• 
 
 58 
 
 • •• 
 
 60 
 
 '. •• 
 
 60 
 
 • •• 
 
 95 1