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Les diagrammes suivants illustrant la mAthoda. ^ f ■■ i • t 32X 1 2 3 4 S 6 *> > > k. I i ,At OFFICE, DU AND LIABILITIES, OF A JUSTICE OF TgE)PEACE, PRACTICAL FORMS, FOR THE USE OF MAGISTRATES OUT OF SESSION ; BY HUGH TAYLOU, Esa., Advocate. MONTREAL: ARMOUR & RAMSAY. KINOSTON : RAMSAY, ARMOUR & CO. HAMILTON : A. H. ARMOUR k CO. 1843. ^^\i tJNlVEFSlTE D£ SHeRi2R00'« ^; MOJSTREAL: Printed by Anprewt H- Armour and Hew Ramsay> and cnrcgistered by them in the Office of the Prothonotary, for the District of Montreal, according to Act of the Provincial Parlia- ment for the protection of Copyrights. »- INDEX. Abettors of Ofi'ences, . . . Page Abduction of Women, .... Abduction of Children, . . . . Abortion, Accessary — Accomplice, . . . . /Viiray, ...«•.. Agents, ....... Appeal, Apprentices, /Vrresi, ...... Arson^ ....... Articles of the Peace, . . . , Assault and Battery, .... Assault with intent to rob, . . . . Attainder, . * Act 4th and 5th Vic, c. 'i5, consolidating and amending laws relative to Larceny and other ofl'ences — abridged,. Act 4th and 5vii Vic, c 26, amending Laws relative to Malicious Injuries to Property — abridged, . . . . Banks, Sea, Bail, Bigamy, Benefit of Clergy— see Clergy, . 248 42 47 48 49 57 243 60 158 60 60 61 62 65 233 72 231 262 265 73 79 103 OiBiiailiit^ IV INDEX. u Beasts, Birds, &c Page 81 239 Bribery, 81 Bridges, . 83 266 Burglary, 83 234-5 Burning, . 85 Carrier, 87 v>£lltl6^ •••••» 89 267 Certiorari, . 91 Challenge to Fight, 97 v^llcnlSft •••••• . 99 Child Stealing— see Abduction of Children . . 263-4 Church, . 101 Clergy — Benefit of 103 vviCrKSft • • • • • • . 243 Coin and Currency, 105 Commitment, . 112 Compounding Offences, 124 Confession, . 127 Conspiracy, . . . ... 128 Constable, . 130 Conviction — Summary, 131 General Form of . . 144 Form I'rcsciibcd hy /\fh and 5th Vic, c. 25, . 152 .26, 155 Do. by do. c 27, 156 Coroner, 159 VyOSIS^ •••••• . 160 Cows — Stealing of . . . 239 Dam of a Fishery, .... . 267 ♦ i l\ INDEX. 239 266 >34-5 267 t ♦ see Maliciou In- Page t • a • Damage of Property juries to, . Dead Bodies, . Distress, ■^^— Warrant of Return for want of, . Constable's proces verbal, Disturbance of Public Worship — see Church, Dog-stealing — see 4th & 5th Vic. c. 25, s. 60, Dwelling House — Stealing in — see Burglary,. -" Setting Fire to — see Burning, . . Elections — Bribery at — see Bribery, Embezzlement, . Escape, .... Examination, of Prosecutor, of Witnesses, of Prisoner, . Form of, . of Prosecutor or Witnesses, of Prisoner, Extortion, Factors, False Pretences — see Cheats, Fees to Clerks and Bailiifs, Felo de Se, Felony, Fences, .... Stealing of Forgery, 160 160 161 163 166 168 170 239 ,170 85 81 171 243 174 178 179 181 182 185 185 166 187 244 190 190 193 193 194 240 194 \1 vi INDEX. Garden, Page 198 Good Behaviour— see Surety for the Peace, 199 Gate— Stealing .... 240 Glass— Stealing of 240 Habeas Corpus, 199 Hawkers and Pedlars, .... 200 Highways, 209 Homicide, 218 Hop-binds, 223 267 Horses, 224 Horses— Stealing of .... 339 House Breaking, .... 224 Introduction, .... 1 Justices of the Peace — Appointment of . 5 Oath of . .10 Qualification of . .11 Power, Office and Duty of 13 Indemnity and Protection of 28 Liability of . . 32 Office and Duties o' . 35 Idle and Disorderly Persons, . . . 224 Indians, 226 Information— see Conviction, . . 228 Jurisdiction, 228 Larceny, . . . ^ . . 229 Act of 4th and 5th Vic, c. 25— abridged,...230 Libel, 258 Lodgers, 256 Stealing from Apartments, . 242 Letters — sending Tlireatening, . . 234 INDEX. Vll .^: Maiming, .... . Page 260 Malicious Mischief, . . . 262 Act 4th and 5th Vic, c. 26— abridged,....262 276 Mandamus, .... 290 Manslaughter, . . . 279 ' Masters and Servants, . . . 280 Mill-dam, .... 267 Misdemeanor, .... 293 Misprision, .... 294 Mittimus, .... 295 Money obtaining under false pretences, . 245 Months, .... 296 Murder, ..... 296 Nuisance, .... 297 Oath of a Constable, . . .193 Oath of Qualification of Justices of Peace, 10 Orchards, .... 300 Peace — Surety for ... 301 Perjury, .... 301 Person — Offences against, . . 301 317 Petty Larceny, . ... . 318 Petty Treason — see Treason, . . 318 Poisoning— see Persons — Offences against, . 318 Posse Comitatus, . . . 318 Post Office, . . . .319 Presentment, .... 322 Principal and Accessary, . . 247 Prison Breaking, . . . 247 Public Worship, ... 325 Rape — see Person— Offences against, . 325 W*1»— «■ i t 11 INTRODUCTION. The Justices of the Peace, as a body of men, whose services are so often required atid found to be highly beneficial to the public, have frequeiit difficulties to contend with in this Colotiy, when acting by themselves, and in isolated situations where assistance would be desirable, but cannot always be obtained. Many respectable men whose names are inserted in the general Commission of the Peace, from their avocations and pursuits in life, h»ve neither the time, nor the opportunities sufficient, for acquirin;^ all the information and practical knowledge, that might be requisite, or which they might desire to obtain, to enable them to discharge, in a satisfactory manner, the various duties of a Justice of the Peace, and consequently, from an opprehension of falling into error, or of incurring responsibility, they decline to accept the office, or if they do accept, too frequently expe- xience difficulties in the discharge of it. ])y this means the public is deprived of the services of men of influence and respectability in this department, who might otherwise prove useful in the localities where they reside. It is certainly desirable, that men appointed for the maintenance of peace and good order in society, should be endowed with all the necessary quak- 11 INTRODUCTION. fications for their office, to enable them to act with promptitude and iirmness on all occasions ; but such cannot always be found, and the Executive of the CSountry must necessarily accept the services of those who are willing to give their time and attention to a conscientious discharge of the duties of the office, although not always versed in the knowledge of the law, or in the formalities it requires. Whatever can tend to instruct, or to assist the Magistrate, in the discharge of his duty, ought to be favourably received, as it not only enables him to act with more confidence and security, but may in some measure serve to promote a more general knowledge of our criniinal law, in which, as it affects our best rights and privileges, every man ought to feel himself more or less interested. In this Country little has been published on this sub- ject, nor has there been any encouragement to make the attempt ; the publications hitherto gene- rally in use among us, or those at least which regard the office and duties of a Justice of the Peace, are chiefly imported from England and adapted to the law as practised in that Country ; these however, are either too voluminous or too expensive for genetal use here, and are besides filled with a variety of matter, neither applicable nor received as law in this Province, and conse- quently, to many, more apt to mislead than to instruct. INTRODUCTION. ill 1 it 'e 8S id les he it the it to him may [letal as it man . In 3 sub- jnt to gene- which of the "id and inliy -, or too Ibesides ,\icab\e conse- ithan to Impressed with the belief that something expla- natory of the office and duties of a Justice of the Peace, in this part of the Province, might prove useful, 1 have been induced to offer to the public the present manual on that subject, which, although imperfect in many respects, may yet merit some degree of approbation as a first attempt, or stimu^ late the exertions of others, to something more efficient. In it, I have endeavoured to compress into as small compass as possible, (consistently with perspicuity) what I consider to be most essential for the Justice to know, when acting alone, or out of Sessions, in the great variety of objects which fall within his jurisdiction, according to the present state of the law in this part of the Province, and to clothe it in language plain, simple^ and unadorned. The method I have adopted is, — in the first instance, to give a statement of the appointment, office, and duties of a Justice of the Peace, his protection, and his liability, in the discharge of those duties, with some general observations and decisions relative thereto. The subsequent part of the work will be arranged in alphabetical order, containing the different heads or titles of the prin. cipal matters and offences which fall under the notice or jurisdiction of the Justice out of Sessions, on each of which enough of the law has been stated, to shew the nature of those offences, and to enable him to judge how far he can interpose h\f ir I:9TJ10I)U€;TI0N. authority to promote the ends of justice, either by punishing: th« offender^ or by securing his trial before a competent jiirisdic.tion. As-practical forms are necessary, ^^cially in the numerous instances of summary conviction, which the late alterations in our Criminal Law have introduced, of these forms a sufficient number has been given in various instances, to enablei^the Justice to draw them up in all caseS) &^ circumstances>may require. To Justices of the Peace residing in the cities where advice may at; all times.be readily obtained, audio those, who, from.- study or experience have become familiarized with all the duties of the office, what is here offered can nfford little or no instruction ; but to those who live in distant situ- ations, or who may require assistance, under circumstances where it cannot readily be had, the present-manual ^Biay.proye useful and instructive. And in this hope I rest the ob^ct of my labour. To >my Professional Brethren, I cheerfully sub- mit the present manual, trusting that in their candour and liberality they will communicate to roe the errors or omissions they will find in it, as by their firiendly. suggestions, L moty be enabled, at some future period, to present the work in a more improved s(ate, should circumstances render it convenient^ » - HUGH TAYLOR. Montreal, June, 1843. ./, - ^•3:^ y al ns jes ese I up ities Loed, have f the otho t sUtt- id, the pctive. >UT. sub- theit |eate IQ it, 08 tabled, :k in a tender THE PEACTICE JUSTICE OF THE PEACE OUT OF QUARTER SESSIONS. 1. Of the appointment of Justices. 2. their qualificntion. 3» their power, office, and duty. 4» their indemnity and proieciion. &• their liability. 1. OP THE APPOINTMENT OF JUSTICES. Justices of the Peace are certain Officers, appointe«i l»y the Sovereign authority, to be Magistrates, wilhin certain limits, generally within the Counties or Distncts where they are resident, for the conservation of the Peace, and for the execution of divers things committed to their charge, as well by their commission, as by divers acts and statutes in that behalf. Before the institution of Justices of the Peace in Eng- land, there were Conservators of the Peace in every county, whose oiHce it was to preserve the King*8 peace, and to protect the obedient and innocent subjects from force and violence. Burns /., Tit. J. of Pence. These Conservators, by the ancient common law, were, by force A2 •»f W"" s APPOINTMENT OF JUSTICES. % :,i. of the King's writ chosen by ^';o freeholders in the Counly Cmirt, out of the principal men of tlie County. After which election so made and returned, the King directed a u rit to the person so elected, authorising him to take upon him and execute the office, until the King should order otl>erwise. The general duty of Conservators of the Peace, by the common law, was to employ their own, and to command the help of others, to correct and pacify all such who in their presence, and within their jurisdiction and limits, by word or by deed, should go about to break the Peace, Dalt. C. I. These Conservators of the peace are now superseded by the modern Jusiioes of the Peace. Her Majesty the Queen, is by her office and dignity royal, the principal Conservator of the Peace within all her dominions, and may give authority to any other, to see the peace kept* and to punish such as break it, hence it it usually called the Queen's (or King's) Peace. Juiitices of the Peace are now appointed by the Queen's Special Commission under the Great Seal, the form of which, we are told, was settled by all the Judges of Eng- land in the year 1590. This Commission appoints them all jointly aind severally to keep the peace, and any two or more of them in their sessions, to enquire of and deter* mine felonies and other misdemeanors, in which number it was formerly usual to include some particular Justices who were directed to be always present, without which, or the presence of some of them, no business could be done, the words of the Commission running thus — " Qitorum " aliquem vestrum A. B. C. £)'c. unum esse volumus*^ — whence the persons su specially named, were usually called " Justices of the Quoivm" liut this practice is f-TOINTMENT OF JUSTICES. now no longer followed, and no exception id now taken or allowable for not expressing in the form of the pro- ceedings had before ihe Justices, that one or more of them was or were of the Quorum. As the office of these Justices is conferred by the Sovereign, so it subsists only during her pleasure, and is determinable by various means, but most generally by the issuing of a new Commission, which virtually and silently discharges all the Justices who are not included in it. That Justices of the Peace may see the natura and extent of the aulhorily they hold under their Commission, I shall here insert the General Commission of the Peace issued for the District of Montreal. Victoria, by the Grace of God, Queen of the United Kingdom of Great Britain and Ireland, Defender ol the Faith, &c. To (the names of the Justices appointed) Esquirec, Greeting. Know ye, that we have assigned you jointly and severally, and every one of you, our Justices, to keep the Peace in our District of Montreal, in that part of our Province heretofore known as the Province of Lower Canada, and to keep, and cause to be kept, all Ordinances and Statutes for the good of the peace and for the preser- vation of the same, and for the quiet rule and government of our people made in all and singular their articles in our said late Province or in our Province of Canada, according to the force, form, and eflfect of the same ; and to chastise and punish all persons that offend against the form of thoee Ordinances and Statutes ; and to cause to come before you, or any one of you, all those who, to any one or more of our people, concerning their bodies, or the firing of their houses, have used threats, to find security for the peace, 8 APPOINTMENT OF JUSTICES. or their good behaviour towards us and our people ; and if they shall refuse to find such security, then, them in our prisons until they shall find such security, to cause to be safely kept. We have also assigned you, and every two or more of you, our Justices, to enquire more fully into the truth, by the oaths of good and lawful men of the District aforesaid, by whom the truth of the matter may be the better known, of all, and all manner of felonies, poison- ings, trespasses, forestallings, regratingp, engrossings, and extortions whatsoever, and of all and singular the crimes and offences of which the Justices of the Peace may and ought lawfully to enquire, by whomsoever and by what manner soever, in the said District, had, done, or perpe- trated, or which hereafter shall there happen to be done, or attempted ; and also of all those who in the aforesaid District, in companies, against our peace in disturbance with our people, with armed force have gone or rode, or hereafter shall presume to go or ride ; and also of all . those who shall there have laid in wait, or hereafter shall presume to lie in wait, to maim, or cut, or kill our people. And also of all Victuallers, and all and singular other persons, who in the abuse of weights and measures, or in selling victuals against the form of the Ordinances and Statutes, or any of them therefor made for the com- mon benefit, or of our said late Province of Lower Canada, and of our people thereof, have offended or attempted, or hereafter shall presume in our said District to offend or attempt. And also of all Sheriffs, Bailiffsj Stewards, Constables, Keepers of Gaols, and other Ofiicers who in the execution of their offices about the premises or any of them, have unduly behaved themselves, or hereafter shall presume to behave themselves unduly, or have APPOINTMENT OF JUSTICES. been, oi; hereafter shall happen to be, careless, remiss or negligent in our said District ; and of all and singular articles and circumstances, and all other things whatso- ever that concern the premises or any of them, by whomsoever,, and ader what manner soever, in our aforesaid District, done or- perpetrated, or which shall hereafter happen to be done or attempted in what manner soever. And to inspect all indictments whatsoever before you, or any of you taken, or to be taken, or before* others late our Justices of the Peace, in our aforesaid District, made or taken and-Jiot yet determined ; and to make and continue. process thereupon against all and singular the persons so indicted, or who before you shall hereaAer happen to be indicted, until they can be taken, surrender themselves, or be outlawed. And to hear and determine all and singular the felonies, poisonings, trespasses, fore- stallings, regratings, engrossings, extortions, unlawful assemblies, and indictments aforesaid ; and all and sin- gular other the premises, according to the Laws and Statutes of our said late Province- of Lower Canada, or form of the Ordinances and Statutes aforesaid, as in the like case it has been accustomed or ought to be done ; and the same offenders, andeyery of them, for their offences, by fines, ransoms or amerciaments, forfeitures, and other means as according to the law and custom of our said late Province of Lower Canada, or form of the Ordinances and Statutes aforesaid it has been accustomed, or ought to be done, to chastise and punich. Provided olways, that if a case of difficulty upon a determination of any of the premises before you, or any two or more of you, shall happen to arise, then let judgment in no wise lie given before you, or any two or more of you, unless 10 OATH OP OFFICE OF A JUSTICE OF THE PEACE. in the presence of one of our Justices of our Court of our Bench, or one of our Justices appointed to hold the assize?, in the said District ; and therefore we command you, and every one of you, that to keeping the peace, Ordi- nances, Statutes, and all and singular other the premises, you diligently apply yourselves, and that at certain days and places which you, or any such two or more of you as aforesaid shall appoint for these purposes, into the pre- mises ye make enquiries, and all and singular the premises you hear and determine, and perform and fulfil them in the aforesaid form, doing therein what to justice appertains according to the law and custom of our said late Province of Lower Canada, saving to us our amerciaments, and other things to us therefrom belonging. And we com- mand by the tenor of these presents, our SheriflTof our said District, that at certain days.and places, which you, or any two or more of you as is aforesaid shall make known to him, he cause to come before you or such two or more of you as aforesaid, so many and such good and lawful men of his District by whom the truth of the matter in the premises shall be the better known and enquired into. In testimony whereoffiMs. s; *» OATH OF OFFICE OF A JUSTICE OF THE PEACE. You shall swear that as Justice of the Peace for the District of , in all articles in the Queen's Commission to you directed, you shall do equal right to the poor and to the rich, al\er your cunning, wit, and power, and after the laws and customs of that part of the Province of Canada, heretofore called Lower Canada, and the Laws Ordinances and Statutes thereof made ; and ye shall not QUALIFICATION OF JUSTICES. n be of counsel of any quarrel hanging before you j and that ye hold your sessions after the form of the Statutes thereof made ; and the issues, fines, and amerciaments that shall happen to be made, and all forfeitures which shall fall before you, ye shall cause to be entered without any concealment or embezzling, and truly send them to the Queen's Exchequer ; ye shall not let, fur gift or other cause, but well and truly ye shall do youf office of Justice of the Peace in that behalf ; and that ye take nothing for your office of Justice of the Peace to be done, but of the Queen and fees accustomed, and costs limited by Statute ; and ye shall not direct, nor cause to be directed, any warrant by you to be made to the Parties, but ye shall direct them to the Baililf of the said District, or other the Queen's Officers or Ministers, or other indifferent persons, to do aacecution thereof. So help you God. the kion ind lAer of tot OF THE QUALIFICATION OF JUSTICES OF THE PEACE. By Act of the Provincial Legislature of the 6th Vic. cap. 3, it is enacted, that no person shall be a Justice of the Peace, or act as such within any District of this Pro- vince, who shall not have in his actual possession, to and for bis own proper use and benefit, a real estate, either in free or common soccage, or en Jief or en roture, or en franc deUf in absolute property, or for life, or by emphyfeose, or lease for one or more lives, or originally created for a term not less than twenty one years, or by usufructuary posssession for his life, in lands, tenements, or other immoveable property, lying and being in this Province, or above the value of three hundred pounds currency, over and above what will satisfy and discharge /0ff* |.W'W!Af'-'"*A9;i'-PV. W P "."f"- '^'M» ^^ ' ''■■"• .•fav*.-* -Tr-'JNWR^jm « *vyi ■ J ipwwwPPfpwyiiWWMl i 12 QUALIFICATION OP JUSTICES. all incumbrances afiecting the same, and over and above all renUi and charges payable out of, or affecting the same, who shall not before he takes upon himself to act as a Justice of the Peace, after the first day of January, one thousand eight hundred and forty three, take and subscribe the oath following before some Justice of the Peace for the District for which he intends to act, that i;) to say. " I, A. F., do swear that I truly and bona Jide, have, to " and for my own proper use and benefit, such an estate, " (specifying the nature of such estafe, whether landf and " if land designating the same by its local description, " rents, or anything else) as doth qualify me to act as " Justice of the Peace for the District of—- — according " to the true intent and meaning of an Act of the Pro- " vincial Parliament, made in the sixth year of the Reign " of Her Majebty Queen Victoria, and intituled, * JJn " * jJctfor the qualification of Justices of the Peace,^ and " that the same is lying and being (or issuing out of lands, " tenements or hereditaments situate) within the Town- *• ship, Parish or Seigniory of (or in several Town" " ships, Parishes or Seigniories of )(or as the case " may Le.) So help me God." A certificate of which oath having been so taken and subscribed as aforesaid, shall be forthwith deposited by the said Justice of the Peace^ who shall have taken the same, at the Office of the Clerk of the Peace for the District, and be by the said Clerk filed among the records of the Sessions of the said District. By the 5th clause it iir also enacted, that any person who shall act as Justice of the Peace in and fur any District in this Province, without having taken and sub- cribcd the said oath as aforesaid, or without being quali- ^1 POWER) OFFICE, AND DUTY OF JUSTICES. 13 d above le same, act as a ary, one subscribe Peace for ) to say* have, to an estate, landf and scriptionf to act as according f the Pro- the Beign lied, * ^n ^eacey and it of lands f the Town- 'al Town-' as the case of which afor-esaid, tice of the ,e Office of jy the said )f the said ny person id for any n and sub- eing quali- fied according to the true intent and meaning of tliis Act, shall for every such offence forfeit the sum of twenty five pountU currency, one moiety to Her Majesty, and the other moiety to such person or persons as shall sue lor the same, to be recovered together with full costs of suit, by civil action, or by plaint or information in any Court having competent jurisdiction in the District where- in the offence shall have been committed ; and in every action, suit, or information, the proof of his qualification shall be upon the person against whom the suit shall be brought. By the 13lh Sect, if the statement in any oath, or in any declaration under oath taken or made in pursuance of the requirements of this Act, to the knowledge of the person making the same, be false, such person shall be guilty of wilful and corrupt perjury, and subject to all the pains and penalties attendant on that offence. By the 14th Sect, it is enacted that everj' action, suit or information given by this Act, shall be commenced within the spare of six calendar months next after the fact upon which the same is grounded, shall have l)een cunimitted, and not afterwards. OF THE POWER, OFFICE, AND DUTY OF JUSTICES OF THE PEACE. It would be difficult to enumerate all the duties of a Justice of the Peace, from the great variety of circum- stances in which he may be called to exercide his office, therefore, under this title, all that can be attempted will l)e to mark some general rules, and to shew how others may be collected by inference from adjudged cases, in instances where experienced Magistrates might derive information. RiJ|Jililiiipiiii||ii n POWER, OFFICE, AND DUTY OF JUSTICES. ♦ The power office and duty of a Justice of the Peace, depend upon his Commission, and on the several Statutes, Acts and Ordinances which have created objects sub- mitted to his jurisdiction, 1 SL Com. 354. His Com- mission first empowers him singly to conserve the peace, and thereby gives him all the power of the ancient Con- servators at the common law, in suppressing riots and affrays — in taking securities for the peace — and in appre- hending and commiltirig felons and other inferior crimi- nals. The powers given to one or more Justices, by the said Statutes, Acts and Ordinances, in a variety of offences and matters to be determined before them in a summary manner, must necessarily call for the time and attention of those Justices, that their proceedings in such cases may be regulated conformably to law. Wherever they are called to inflict a penalty for the omission of some duty, or the commission of some infringement of the law, they must be convinced of the necessity or their knowing what the law in every such case enjoins, and in what manner it is to be enforced. The power of infliction of penalties by summary conviction has been found necessary for carrying into execution many laws made for the public benefit, and although this power has been considered as a departure from the security to liberty and property granted by Magna Charia^ by which it is established that none ought to be tried or condemned but by their peers, yet it has been adopted as necessary from theencreasing number of laws occasioned by the increasing wants of a more advanced state of society, becanse it gives a speedy remedy against individuals for some breach of the law, oAen trivial, and can be had at small expense, and with- out loss of time, by the summary proceeding before the M POWER, OFFICE, AND DUTY OP JUSTICES. 15 Magistrate. Every man, therefore, who accepts the office of Justice of the Peace, and fulfils the duties of it, without sinister views of his own, or using it for political pu^oses, deserves well of the public, 4 Bl. Com. 281. Mr. Justice Blackstone observes, that the country is obliged to gentlemen who will undertake the duties of this office, and particularly to men of rank and influence, who hold a greater stake in society, and from their situation in life must be presumed to be more alive to its general interest. The extensive powers of a Justice of the Peace, even in the hands of a man of honour, are highly formida- ble, but should the office fall into the hands of men of low rank and character, it will bo liable to be prostituteil to the low ends of selfish ambition, or of personal resentment. Under such circumstances, therefore, how essential is it for the interests of society that men of fit character, and such as will meet the public confidence, should be ap- pointed to this office ? When a Statute directs certain things to be done gene- rally by Justices o( the Peace, and no power is expressly given to one Justice^ to act under it, a single Justice in that case has no jurisdiction to execute its provision's, Dali. Just c. 5. — 1 Deacon, 714<. Yet, if the ofience be any misdemeanor, or matter against the peace, then upon complaint made to one Justice, he may of his own authority grant a warrant for the apprehension of the offender, in order that he may be brought before himself and some other Justice for the purpose of hearing and determining the complaint, Dalt, Just, c 6. — Burns J. When a Justice is out of the particular District for which he is commissioned, he has no coercive Magisterial iwwcr, and, therefore, his acts or orders are not binding. 16 POWER, OFFICE, A.VD DUTY OP JUSTICES. It seems, however, that recognizances and informations, vohmtarily taken before him in any place, are good, 2 Hawk. c. 8. s, 28. But a Justice has no jurisdiction either over the offence, or the offender, when the one is committed, and the other abiding in another District. Tliere are cases, however, where the presence of the offender, within the District or jurisdiction of the Justice, which authorize him, from the necessity of preserving the peace, to proceed against the offender.. Thus, if a man commit a felony in the Diiitrict of Quebec or Three Rivers, and comes into the Di9trict of Montreal, a Justice of the latter District may take the information against him» and also his examination, and may commit him, and bind over the witnesses to give evidence at the trial, and in short proceed in all respects, as if the offence had been committed within his jurisdiction, 2 Hah 50. fiy Stat. 24 Geo. 2, cap. 55. If any person against whom a warrant is issued shall escape into any other county, any Justice of that county, upon proof of the hand writing of the Justice granting the warrant, may indorse his own name thereon, which shall be sufficient authority to the person charged with the execution of the warrant, to execute the same in such other county, and carry the offender before the Justice who indorsed the warrant, or any other Just'ce of that county, in case the offender be bailable, but if not, then before a Justice of the county where the offence was committed. In cases of summary conviction and the lighter kinds of misdemeanors, a Magistrate should issue a summons against the party, and not a warrant in the first instance, (3 East. 55. But if the party disoljeya the summons, POWER, OEPICE, AND DUTY OP JUSTICES. 17 then the Justice may properly issue a warrant against him, that is where the presence of the party is anywise necessary for the object of the complaint or prosecution, for when a Statute gives a Justice jurisdiction over an offence, it impliedly gives him a {>ower to compel the altendance of the party charged with it, 2 Hawk, c, 13. .9. 15.— 10 Mod. 248 2 Bing. 63. It is in the discretion of a Magistrate when he takes the examination of a person charged before him with felony, whether he will allow the presence of an Attorney, or other person acting as legal adviser, either for the prisoner or prosecutor, for such an examination is only a preliminary enquiry, whether there be sufficient ground to commit the prisoner for trial, 1 B and C. 37.-3 B. and A. 4.32.— 1 Chin. Rep, 217 2 D. and R. 86. And if an Attorney had a right to be present, there could never be any private examinations which are often necessary for the purposes of justice, in order to find where further evidence may be obtained, and to get at accomplices, — an object that- would be entirely defeated if an Attorney for one of a gang of felons might obtain and convey information to the rest. In the case, however, of a trial, or summary conviction before a Magistrate there is a difference — here, the Magis- trate acts judicially, and it is reasonable that a parly should have professional assistance before he is finally condemned to pay a penalty, or suffer a term of imprison-^ ment. A Justice of the Peace out of Sessions, before informa- tion filed in Court, or indictment found, has jurisdiction in the first instance upon sufficient afBdavita to issue his warrant to apprehend a party charged with publishing a J3 m m POWER, OFTICE, AND DUTT OP JUSTICES. libel, and requiring hiip to find bail, and in^ default of sureties, to commit to prison to abide \m trial, 4< Moore, 195.— 1 B.an(iB.5i8. When an Act empowers two Justices to execute a judical act, they must meet and execute it together, and cannot proceed separately, 3 T. Rep. 38. — 2 East, 244. On complaint for breach of the peace, for threats, or other sufficient cause, a Justice of the Peace is authorised to require sureties of the peace, for a limited time according to his discretion, and need not bind the party over to the next Sessions only, 2 B. and A, 278. A Justice may issue his warrant to search for stolen property, and to bring a party before him, upon the repre- sentation of a reasonable suspicion of felony committed,, and it is not absolutely necessary that there should be a direct and positive averment on oath, 1 D, andR. 102. Although a Justice of the Peace is required to adminis- ter an oath in the investigation of matters properly brought before him in his judicial character, yet it is very ques- tionable whether he is justifiable in taking a voluntary affidavit made on any extra-judicial matter, as is fre- quently done upon any petty occasion, as swearing to an account, or matter of debt, or to any fact or circumstance unconnected with any proceeding legally had before the Justice, 4 Bl, Com, 1S7. There can be no convic- tion for perjury on such affidavits} although the guilt of it may be incurred. Lord Coke says, it is a high contempt to administer any such oath,, and that the ofience is punishable by fine and imprisonment, 3' Inst, 165. In all caies where a Justice may hear and determine out of Sessions, whether on his own view — on confession, en the oath of witnesses,, he ought to make a record in i mnlmi ICES. POWER, OFFICE, AND DUTY OF JUSTICES. 19 in^ default of al, 4 Moore, to execute a together, and 2 East, 244. *or threats, or is authorised limited time ind the party 278. sh for stolen on the repre- j committed,. should be a ndR. 102. d to adminis- ^erly brought is very ques- a voluntary ,88 is fre- rearing to an ircumstance d before the no convic- le guilt of it ^h contempt ofience is 165. determine [confession, record in writing under his hand of all the matters and proofs, — which record must be returned to the Sessions. ■' By the Ordinance of the Governor and Special Council of the 2. Vic c. 20, it is enacted that each Justice of the Peace shall make a quarterly return of every prosecution for any offence of a public natuie, or for the recovery of any penalty imposed for any euch offence, which shall have been brought before him whether sitting alone or with any Justice or Justices, at any other place than the Court House of any District or Inferior District of the Province of Lower Canada. And such return shall be sent to the Clerk of the Peace for the District, not more tiian ten, nor less than five days before the holding of each Court of Quarter Sessions, and shall be fyled of record by such Clerk, and laid before the JusticeB at such Court, and such return shall extend from the date of the then last return to th.it of the return itself, and shall show — 1. The Justice or Justices, if any, sitting with the Justices making the return. 2. The place of sitting. 3« The name of the prosecutor. 4. The name of the defendant.. 5. The offencoi 6. The result, whether conviction or acquittal. 7. The judgement and amount of penalty, if any. 8. The costs allowed to the successful party. 9. The costs allowed against the unsuccessful party, for anything done at his instance in or about the prose-^ cution.. • 10. The amount of penalties paid, and to whom. 11. The amount of penalty paid to the Receiver 20 POWER, OFFICE, AND DUTY OF JUSTICES. General, or for any public purpose, or remaining to be so paid and in whose hands. And such return shall be dated at the time and place at which it shall be made, and signed by the Justice who shall make it, and shall be made by each Justice, during the period over which it extends. FORM OP THE RETURN TO BE MADE IN CONFORMITY TO THE ABOVE ORDINANCE. District of ) Return of all the prosecutions, informa* \ tions, and complaints had before me, A. B., Esquire, one of Her Majeety's Justices of the Peace in and for the said District, residing at B. in the Parish of in the said District, from and since the — — day of last past, to the day of the dale of the present return, made in conformity to the Ordinance of the Governor and Special Council, of the 2 Vict., c. 20, intituled, " An Ordinance for the better information of " the Government, and of the public, concerning prose- " cutions brought before Justices of the Peace.'* 1*1 ■{■,-> ■ ■! . .1 '. o o o-S S " e « a. o o ,2 «* H § a >» « 2 a "^ o 5 3i "i"^ ^ rt i-i o 2 t; Q- '-J 8 Conviction or Ac quittaU The Offence. > a o O a o O 2t s I' XI 2 d as * a ^2 2 Co (a^ CQ 2 "^3 a >> a S <»'% a V tu fe 5 s-c! 2 'S.a'^ bo'" 5.n-3 S S cS I? a .S Si Is a (3 S V o a «j~3 a o « S _ . '3g2"5^ w "i a o t: Justice sitting with Justice making this Return. 0) a o 5?: it a o § 1 ..Ji 9Sc POWER, OFFICE, AND DUTY QF JUSTICES. When a conviction is had before two or more Justices, they must all sign the return. Dalton sa3's, that inasmuch as most of the business of a Justice of the Peace consisteth in the execution of divers Statutes which cannot be sufficiently abridged, but that they will come short of the substance and body thereof, therefore it shall be safest for the Justices to have an eye to the Statute Book itself, and thereby to take their further and better directions for their whole proceedings, Dalton, c, 173. For, as Lord Coke says, abridgments are of good and necessary use to serve as tables, but not to ground any opinion, much less to proceed judicially upon them. He further observe?, that it is a good rule for all Judges and Justices whatsoever, who have juris- diction by any Statute, which at the first was temporary, or only for a time, to consider well before they give judgment, whether that Statute have been continued or made perpetual, 4 Inst. c. 31,/?. 171. and if it were at first made perpetual, whether it be not repealed or altered by any Statute. The law having wisely provided in this Province that copies of the Acts of the Legislature shall be transmitted to Her Majesty's Justices of the Peace, for their guidance and direction in the several matters committed to their charge, it is certainly desirable that every Justice of the Peace, who has a view to the due execution of his office, would, when it conveniently can be done, collect and preserve in their proper order, all the Acts and Statutes of ouf Provincial Legislature, as well as those passed before as since the Union, as he will find many things in them in which his ministry may be either useful or neces- sary ; and to those who take a deeper interest in the POWER, OFFICE, AND DUTY OF JUSTICES. 23 n I country, they will present an historical view of our pro- gress in legislation, of our political warfare, and of our gradual and growing improvements in whatever can render this Colony a valuable appendage to the British Crown. As a Justice of the Peace ought not to refuse his ministry, in any matter within his competency when required, and as this will extend to a great variety of objects wherein proceedings may necessarily be had before him, it is advisable that he should feel satisfied on the following points. 1st. That the matter of complaint or information, of whatever nature it may be, is within his cognizance and jurisdiction. 2nd. That he knows the course that ought to be adopted j . in every such matter— whether it be to grant a warrant / ' on a charge of felony or misdemeanor — or to issue a /summons for some neglect or contravention of the law for , which a penalty is incurred, or otherwise. 3rd. That all ulterior proceedings to be taken in such matters are sufficiently underetood, so that the usual forms may be adhered to, observing always that when the law has prescribed a particular form in any case, that form must be strictly followed. And that cases may occur, where it may be advisable, or necessary, to call in the aid of another Magistrate, as in matters of bail, examina- tions of parties, commitments, and the like, See 4 and 5 Vic, c, 24. It is usual, I believe, for the Justices in many parts of the country to employ clerks to assist them in the duties of their office. Their choice in this respect ought to be made with due attention to the character and abilities of that individual, as he is generally entrusted with the conduct i^' I f 'I If 2-i POWER, OFFICE, AND DUTY OF JUSTICES. and direction of the business oftlie Magistrate, and although he may prove a very useful and necessary assistant, still the Magistrate ought to remember that he, and not his clerk, is the responsible person for all his proceedings ; and as every Justice may in a short time, and with ordi- nary attention, familiarize himself with the principal duties of his oiBce it is desirable that he should do so, that he may be able to direct his clerk, in the proceedings to be taken, and to see that his directions are followed, for here, as in the ordinary affairs of life, the man you employ to do your work, will always do it the better, that he knows you are a judge of what he does. The Justice of the Peace ought to keep a Register Book or diary, in which all his doings as a Justice are noted, or entered, day by day as I hey occur. This will prove a useful and necessary memorandum of his proceedings, as he may be required not only to give copies of those pro- (^eding:?, but also to give evidenr^ respecting them on questions that may arise in the Supreme Courts ; by following this course the Justice will be better able to see any little error or omission he may have committed in any of his former proceedings, and thereby acquire more correctness in future ; it will also tend to facilitatate the duties of his office, and lead to a ready habit in the dis- patch of business. When the examination of witnesses, or of a prisoner, is to be taken on any charge of felony or misdemeanor, such examinations, being original docu- ments, ought to be taken on separate sheets of paper, and signed by the parties, when they can write, and by the Justice, as they must be forwarded to the Clerk of the Court in which the prisoner or party accused is to be tried, and consequently cannot be inscribed at length in POWER, OFFICE, AND DUTY OF JUSTICES. 25 the Justice's diary. The same thing will apply to all recognizances taken by the Justice, as they must be trans- mitted in the same manner. Yet some memorandum ought to be entered of what is thus done. As thus — « Monday, 2nd June, 1843. ^ This day a charge was brought before me against " one J. B., of the Parish of for feloniously stealing " a horse, the property of A. H., of . And having '< taken the information on oath of A. H. and J. F. *' issued my warrant to apprehend the said J. B., and " directed it to T. G. to be executed." « Tuesday, Zrd Juncy 1843. ** This day J. B., of the Parish of • was brought " before me by virtue of my warrant, charged on the oath " of A. H. and J. F. of having feloniously stolen a horse, " the projjerty of the said A. H. Whereupon I pro- << ceeded to take the examination on oath of the said << A. H. and J. F., in the presence of the said J. B. who << cross examined the witnesses, but offered no witnesses << in explanation, {cr as the case may be.) And the felony ** appearing to be clearly proved, I committed the prisoner << for trial, and bound the said A. H. and J. F. by recog- <* nizances, to appear and prosecute and give evidence " before the Court of to be holden at on the ** ' day of next. These recognizances and ** depositions I transmitted to A. D., Esquire, Clerk of ** the said Court, by T. D., the officer having the charge " of the said prisoner." These entries will of course be varied according to the circumstance of each case. In regard to the examination of witnesses on any com- plaint founded on a penal Statute, or other summary ;'W'-^-"'^Ti ■■ 26 POWER, OFFICE, AND DUTY OF JUSTICES. * proceeding to be had before the Magistrate, they ought to be inscribed at length on the Magistrate's Book or Register, Ijecause they remain in his possession, and fron) thenn he afterwards diaws up the conviction in proper form, to be transmitted either to the Court of Quarter Sessions, or to the Superior Court of King''8 Bench, as the case may require. Before tailing the evidence of a witness, he must be sworn, and, therefore, in a case where Magistrates first took the examination of witnesses, not on oath in support of a conviction, and afterwards swore them to the truth of their evidence, the Court disapproved the practice, 4 D. and R. 734-. As much is intrusted to the prudence and discretion of the Magistrates, so will many occasions occur, where that prudence and discretion may be exercised with advantage to the parties concerned ; he ought to be not only the terror of evil doers, but the protector and encourager of those who do well. Should he be desirous to promote the welfare of the people around him, he will find frequent opportunities of doitig so, by liis endeavours to allay difierences and disputes among them, and by his influence and a .thority to check those heats and passions which too often lead to acts of violence and breaches of the pence, these he is authorized to correct and punish, when con- ciliation cannot otherwise be effected ; but by calling the parties before him and hearing them, he will seldom fail to settle their dilTerences, which might otherwise be pro- ductive of litigation, and of much expense and losii of time to all concerned ; for in matters of this kind, the public ean have no interest, unless it be to prevent their afipearing in a Court of Justice. By these means a Magistrate will acquire the respect and confidence of his POWER, OFFICE, AND DUTY OF JUSTICES. 27 ighl to Bgister, lem he , to be irtothe require, lust be tes first support truth of e, 4 P. retion of bere that ilvantage only the irager of promote frequent I to allay influence vhich too \\e peace, en con- lalling the •Idom fail be pro- id losa of ind, the (vent their means a nee of his fellow citizens, and his opinions and advice will have greater influence, and be more beneficial to the parties, tiian any advantage that might be acquired by a victorious lawsuit. As the Justice of the Peace is required to act not only ministerially, but judicially, he ought in all his acts to avoid whatever may lead to the appearance of partiality in hii? opinions and judgments. The impression that he who is raised to the seat of Justice, leans in his decisions to the side of friendship, or to that of a political party, is destructive of all confidence, and alienates the minds of men from that obedience to the laws, and that respect for justice, which are so essential for the support of good order in society. Among Magistrates appointed through- out the country, we caanot always expect to find men of great talents, or versed in all the knowledge of the law but we may expect to find among them, men of sound judgment, acting from honest intention, which will always enable them to discharge the duties of their office, with satisfaction to themselves and benefit to their country ; for such the law has great consideration, although their judg. ment may be wrong, yet if the intention be right, they are sure to receive protection, 2 Burr. 1162. — 1 T. R. 653. The appointment of men of character and influence, who have an interest in the country, to the office of Justice of the Peace, becomes a matter of infinite importance. The Justice constitutes a material link in the chain that connects the people with the Government ; he is appointed by the one, hut for the protection of the other, and is in a situation to communicate with both, while called by his oQice to check the faults 4nd failings of those around him, SHsaKKS 28 INDEMNITY AND PROTECTION OF JUSTICES. he has occasion also to know much of their character and disposition, to controul the violent and ill-disposed by his influence and authority, and lo direct them in the way of their duty. The Magistrate who thus supports the interests of the community and the dignity of his office, discharges aright the trust reposed in him by the constitu- tion, and deserves well of the public. From this view of the office no doubt, my Lord Coke, calls it such a subor- dinate Government for the tranquillity and quiet of the realm, as no part of the Christian world hath the like, ^Jnstitc. 31. 4tH of THE INDEMNITY AND PROTECTION OF JUSTICES OF THE PEACE. The Justice of the Peace holds a certain rank in society, and in the faithful discharge of his duty, is entitled to the respect of his fellow citizens, he is also strongly protected by law, for when he acts uprightly or without any bad views or ill intention, should he even mistake the law, the Court will never punish him by granting an information against him, but leave the parties to their ordinary remedy at law, 1 Burr. 556,-2 J5Mr.785, 1162.— 1 T. R, 653. Nor will the Court even grant a mandamus against him to command him to do what may render him liable to an action* 1 Bar. and C. 485. Also when he acts judicially in a matter where he has jurisdiction, he is not punishable at the suit of the party, but only at the King, for what he doth As a Judge, in matters which he hath power by law to hear and determine, without the concurrence of any other, he is not liable to an action. But in cases where he proceeds ministerially rather than Judicially, if he acts corruptly INDEMNITY AND PROTECTION OF JUSTICES. 29 ter and I by his way of )rt8 the is office, jonstitu- view of a Bubor- )l of the the like, JUSTICES n society, tied to the protected I any bad e law, the tformation |ry remedy '. R, 653. gainst him liable to an where lie I suit of the Is a Judge, hear and [ther, he is ^e proceeds U corruptly or contrary to law, he is liable to an action at the suit of the part}', as well as to an information at the suit of the King. With respect to actions against Justices for any inad- vertence in the exercise of their authority, or any excess of Jurisdiction, the law has afforded them ample protection from the claims of a vindictive or litigious party, by the Slat. 24, Geo. 2, c. 44<. I shall here give a few extracts from this Statute, as it may be useful to the Justice to know the nature of the protection thereby afforded him. By this Statute no action can be brought against a Justice of the Peace for anything done by him in the execution of his office, until notice in writing shall be delivered to him, or left at his usual place of abode, by the Attorney or Agent of the party who intends to sue, at least one calendar month before the suing out or serving the same ; in which notice must be clearly expressed, the cause of the action, and on the back, the name of the Attorney or Agent indorsed, with the place of his abode. By Section 3d of this Statute, no plaintiff shall recover, where the action is grounded on any act of the defendant as a Justice of the Peace, unless it is proved upon the trial thai the notice was duly given. And by Sec. 5. no evidence shall be permitted to be given by the plaintiff on the trial of any cause of action, except what is con- tained in the notice. The notice must express the nature of the writ or process intended to be sued out, as well as of the cause of action, but it need not specify the form. And in stating the cause of action, it is sufficient to inform the defendant substantially of the ground of complaint, 7 T. R. 631.— 7 Camp, 196.— 5 D. andJi, 837.— 1 Dow and /?.497. C2 m ii iir i rtri i M'T 30 INDEMNITY AND PROTECTION OF JUSTICES. By Sec. 2. The Justice maj* at any time within one Calendar month after the giving of the notice, tender amends to the party complaining, or to his Agent or Attorney, and may plead such tender in the action, which, if the Jury find sufficient, they shall give a verdict for the defendant. And by Sect. 8, no action can be brought against any Justice, for anything done in the execution of his office, unless commenced within six caleng within the office, a Magistrate will not in such case be protected by these Statutes, 2 Esp. 542.-2 Chit. R. 140. Nor is any notice necessary in an action against a person for the 5. \in one , tender .gent or I, which, It for the ainst any his office, 3 after the reckoned 8 also pro- rthing done ed to plead ) evidence 5 the plaintiff t shall have 448. ^titled to the on over the B time to be I does, is not ist. 365.-2 .13.-5 T. ; Price. 126. re officii^ and res no autho- ained of, but the office, a led by these Nor is any jerson for the INDEMNITY AND PROTECTION OF JUSTICES. 31 penalty for acting as a Justice, without a proper qualifica- tion, for such an action impeaches his right altogether to act in any way as a Justice, Holt Rep. 458. In the case of an action brought against a Magistrate charging him with having wrongfully convicted the party complaining, it is necessary that the Magistrate should shew a subsisting conviction valid upon the face of it, and applying to a case within his cognizance, which will be a bar to the action, until tliat conviction shall have been reversed or quashed. Holt 287. — 7 T. R. 631, 2. and see 2 B. and B, 391. If a valid subsisting conviction be proved at the trial, which appears by the date to warrant (he act done under it, the Court will not in that collateral proceeding, as it would in a proceeding in which the conviction is directly impeached, enquire into the time when it was actually drawn up, nor receive evidence to prove that it wau not in fact drawn up until after the action commenced — provided the date is warranted in fact by the time when the conviction actually took place; 12 East. 82.— 16 East. 20, 21. But if the want of jurisdiction appears by the conviction itself, an action may be supported before the conviction is quashed, 16 East. 23. If the conviction be good upon the face of it, the pro* duction and proof of it, vnll justify the convicting Magis- trate, as well in respect of the facts stated therein, which are necessary to give him jurisdiction, as upon the merits of the conviction itself, 3 Moore 294>. For the courts will not presume injustice or partiality in Magistrates, but give them credit for the truth of the facts stated by them, subject to the peril always attending the wilful abuse of that credit, by a false statement, Skin 123. i . i w m . 1 .1 1 ■ ,„^i^fgmfll? ^MK'a«<>^M< .,^^-% ,.'K .Il iS ^ 32 LIABILITY OF JUSTICES. From the general rule of reason, of " JVo man being " a Judge in his own caused'' it should follow that Justices should not execute their office in any case wherein they have a private interest, and so the rule generally holds, but there are cases which, from the necessity of the thing, form an exception to the rule — as when a Justice shall be assaulted, or in doing his office, shall be abused to his face, and no other Justice present with him, it then seems he may commit such oflencier, until he shall find sureties for the peace, or good behaviour, Dalt. c. 173. — 1 Stra. 420. It also seems that in such case the Justice may commit the party as for a contempt, for using scandalous and insulting language to him, whilst in the execution of his office ; but as such a commitment is by way of punishment, it nmst be made by warrant in writing, and not by word of mouth only, it must also not be a general warrant, by ordering the party to be detained, " until " discharged by due course of law,''^ but must limit hia detention in gaol to the time for which he was committed as a punishment for his contempt, as for a week, or a month, as the case may be, 7 Taunt. 63. — 2 Marsh, 377. —1 D. and R. 559.— -5 Bar. and Aid. 894.. .5th of the liability of justices. It is established by numerous decisions, that .Tustices of the Peace are liable, not only to an action at the suit of the party injured, in consequence of the irregularity of their proceedings, hut even to an information, or criminal prosecution at the suit of the Crown, 1 Doug. 426, and 238, 272.— 1 Str. 21, 413.— 1 D. andR. 485. Should they act partially, corruptly, or maliciously — should they condemn without hearing the party, without evidence, or LIABILITY OF JUSTICES. 33 m being I Justices irein ihey lly holds, the thing, stice shall ised to his hen seems nd sureties .— 1 Stra, ustice may scandalous xecution of ly way of vriting, and )e a general ed, " until iBt limit his committed week, or a [larsh. 377. ss. . ' '' Li .Tustices of t the suit of regularity of , or criminal ig. 426, and 85. Should -should they evidence, or without jusisJiction — are all cases of irregularity for which redress is allowed against the Justices of the Peace. As every person ought to be heard in his own defence before he is convicted, therefore, if a Justice, in the case of a summary convicrion, proceed against a party without previously summoning him to appear, it is such a misde- meanor as will render him liable to a criminal information, 1 ScUk. 181.— 2 Ld. Raym. 1407 1 Stra, 46, 678. If a Justice will not on complaint to him made^ exe- cute the d uties of his office as a Magistrate, or is guilty of any wilful misconduct, the party aggrieved may not only move for an information against him, but may also apply to have him put out of the commission. — ^2 »Aik, 2.r— 1 r. R. 692.-7 T. R. 374. Where a Justice, however, refuses to proceed in any matter which by his office he is authorised or required to do, and his refusal does not arise from any corrupt or improper motive, the proper course for the party com* plaining, is to move for a mandamuSf to compel him to proceed, 1 Stra, 530. In actions brought against Justices for misdemeanor, in the execution of their office, they are obliged to shew the regularity of their convictions, BurrCs Just. 4tthy Justice of P, — 2 Sess. Ca. 372. And the informations laid before them upon which the convictions are grounded must be produced and proved. u iMPUHPaiiPP MANUAL OP THE OFFICE AND DUTIES OF A JUSTICE OF THE PEACE, WITH PRACTICAL FORMS. In proceeding to bring under the notice of the Justice of the Peace, some of the principal matters that fall under his jurisdiction out of Sessions, I have adopted the alpha- betical arrangement, as giving a more regular means of reference to any particular point that ntay be required. Under such an arrangement, the whole body of the criminal law might have been comprehended, but this I consider to be unnecessary, as from the many treatises on that subject, better information can be derived, than any I could pretend to offer — it would besides be extending too far the plan of the present work, which is offered merely as a manual to the Justice of the Peace, to assist him in the practical duties of his office, and limited to those leading and principal matters, in which his ministry is more frequently required, either in the summary pro- ceeding and convictions had before himself, or in such previous investigations of crimes and offences, as are necessary for securing the offender, and bringing him to a trial before the Court ; the course of proceeding to attain these objects, and the mode and manner of doing so, is all OFFICE AND DUTIES, &C. WITH PRACTICAL FORMS. 33 lES E, the Justice at fall under d the alpba- Av means of [be required, lody of the d, but this I y treatises on ed, than any be extending ich is offered ace, to assist ind limited to h his ministry lummary pro- f, or in fluch ences, as are riging him to a eding to attain doing so, is all that is here proposed. It has, however, bc^n thouglit advisable, for the assistance of the Justice, to state Jer each head or title, so much of the law, as will snew the nature of the offence, and enable him to judge, how far he can interpose his authority as a Magistrate, to promote the ends of justice, in matters where the public peace and interest are so much concerned. Before entering upon the description and definition of those b'""'''' an^»- 38 OFFICE AND DUTIES, &,C. WITH PRACTICAL FORMS. by committing lum to the common gaol of the District, not exceeding the space of two or three days, (see form of the warrant, title commitment) or should this be incon- venient, either by '•eason of the distance or otherwise, to give the prisoner in charge to the officer in whose custody he is, that with all necessary assistance, he be safely kept and detained until the day fixed for his further examination, when he is to be again brought before the Justices — in the mean time another Justice being called in, and the prisoner brought before them, they will proceed with the examina- tion of the witnesses. This examination is to be had, by examining each witness separately, and reducing into writing all the material facts of which he has a knowledge, after having been duly sworn in the presence of the prisoner, who is entitled to cross-question every witness thus produced against him. The examination of each witness when concluded, must be read over to him, and then signed by him, and also subscribed by each of the Justices present ; when all the witnesses have been thus examined, the Justices have to determine whether the case is so clearly made out against the prisoner, ihat he ought to stand committed to take his tiial before the Court, or whether there be such doubt in it, that he ought to be admitted to bail in the mean time ; and lastly, whether the cause of suspicion, and proof against the prisoner is so slight, that he ought to be immediately discharged. If the prisoner is to stand committed, a warrant of commitment, or mittimus, must be immediately made out, under the hands and seals or the Justices, in the usual form, specify- ing the nature of the offence, and the prisoner be forwarded under safe custody to gaol. If the prisoner is to be bailed, the amount of the bail must be settled, and a recognizance / 1 H ■-■■»».' 'TT^"Wr'■v•"^■' "" ' ' ORMS. B District, (see form be incon- lerwise, to )8e custody safely kept tamination, ces— in the the prisoner 16 examina- ) be had, by (ducing into a knowledge, sence of the ivery witness ition of each r to him, and ^ each of. the ive been thus whether the Isoner, that he Ifore the Court, he ought to be iBtly, whether prisoner is so ,arged. If the If commitment, out, under the I form, specify- •r be forwarded is to be bailed, a recognizance OFFICE AND DUTIES, &C. WITH PRACTICAL FORMS. 39 made out accordingly— if no bail, or insufficient bail, be offered, the prisoner must then be committed for want of bail, to be so expressed in the warrant, and to be detained in gaol until sufficient bail be offered, or until he shall be discharged by due course of law. In either case the Justices will immediately bind each of the witnesses by recognizance to appear at the time and place of the sitting of the Court at which the trial of the prisoner is to be had, and forthwith transmit under seal all these proceedings, viz : — The information, the examination of the prisoners and the witnesses, with the several recognizances, to the Clerk of the same Court. And should any of the Justices use the precaution of keeping a register or memorandum book of his proceedings, he will not fail to note down therein, all his doings upon this, as upon every other occasion, in which his ministry is required. 5. Should the information laid before the Justice, be for a misdemeanor, to be tried before the Court, he will proceed to issue his warrant as above, to bring the offender before him, and to take his examination or answer to the charge made against him. The Justice will also take the depositions or examinations of such witnesses as know anything of the matter, and bind them severally by recog- nizance to appear and give evidence at the time and place of trial. But in this case, the offence being of a less criminal nature, and the party accused being entitled to be bailed, the law does not seem to require that there should be any examination of the witnesses in his presence. It only remains to be ascertained whether the accused has sufficient bail to offer, which will be taken by the Justice in the usual manner, or in default of bail to commit the party to gaol, as before stated. Here also the proceedings mmmmm^ 40 CI. ICE AND DUTIES, &C. "WITH PRACTICAL FORMS. '1 « I had before the Justice are to be forwarded without delay to the proper officer of the Court where the trial is to be had. In cases of this description^ it is not necessary, nor does the law require, that the Justice should call in the assistance of any of his brethren, unless he find any difficulty in the case, which, for his own satisfaction, might induce him to communicate with some of them on the subject. 6. Should the information laid before the Justice, be (or any petty offence, or for the recovery of a penalty under any penal act or statute, over which the Justice has cognizance and power to hear and determine, it is not usual, nor proper in such case, to isi^ue a warrant in the first instance against the offender, unless in some cases for breach of the peace, but only to grant a summons for his appearance at a ceitain time and place for the tiial of the complaint, when the Justice after hearing the parties and their witnesses will determine what he con- siders to be right, according to the circumstances of the case. Should the defendant fail to appear, the Justice before proceeding, must see that the summons has been duly served, and take the oath of the person serving it, to establish that fact, and then proceed to hear the merits of the case, against the defendant in default, by taking down the evidence of the witnesses and adjudging on the complaint. In this case the procecdingd remain with the Justice, and ought therefore to be inscribed on his register, and not on flying sheets of paper, which are apt to be mislaid or destroyed ; from the proceedings thus taken, the Justice can, at his leisure, draw up a conviction in a more regular form, which constitutes the record of the case, that he may have it ready to FORMS. OFFICE AND DUTIES, &C. WITH PRACTICAL FORMS. 4<1 tiout delay ial is to be sseary, no' call in the 3 find any jatisfaction, of them on Justice, be 3f a penalty e Justice has ,ne, it is not k'arrani in the n some cases . summons for p for the tiial • hearing the what he con- stances of the r, the Justice nons has been son lerving it, hear the merits lult, by taking Ijudging on the ^d remain with iBcribed on his per, which are ihe proceedings figure, draw up [hich constitutes ave it ready to meet any appeal from his judgaient, to the Quarter Sessions, when such appeal is allowed, or any writ of certiorari^ addressed to him from the Superior Court, to revise his proceedings. 7. As in many cases the authority of the Justice will be required, for carrying his judgment into execution, this must be regulated according to the nature of the judgment. In some caees the law authorizes the Justice on inflicting a penalty, to direct that it shall be paid immediately, or within a certain time, or on default thereof, that the party be committed to gaol, or the house of correction lur a cer- tain space of time — in such cases, where the penalty is not paid, the warrant of commitment may be immediately granted. In other cases, the penalty is directed to be levied by distress and sale of the goods and chattels of the otTender, and in default of suflicient goods and chattels, thc^ lie be committed as before stated. Here the first proceeding in execution, is by warrant of commitment, if no sutficient distress can be found. Yet no warrant uf commitment can, or ought to be granted, until the constable or officer charged with the execution of the warrant of (ii^tress, shall have certified on oath upon that warrant, that he had made due search and enqui^, and had not been able to find any goods or chattels of the convicted party, whereon to levy the penalty and costs. In some of the books it is stated, that upon the return of nulla bona by the officer, the Justice should make a record of that fact, and adjudge the imprisonment thereon : thia record may be made by an entry in the Register kept by the Justice. In all cases where authority is given to adjudge costs to or against a party, the amount of such costs should be immediately ascertained and mentioned in the judgment. 0B 4& ABDUCTION OP WOMEN. y h I would recommend to the particular notice of the Jus- tices of the Peace those acts of our Provincial Legislature which have lately Ijeen passed touching the Criminal law. I allude to the acts of the 4 and 5 Vict. c. 24, 25, 26, and 27, — as they comprehend a very material portion of that law, and introduce not only a great and humane change in the administration of it, but extend the authority of the Justice, out of Sessions,in numerous instances, where formerly he had no jurisdiction, and also prescribe the course of summary and other proceedings to be observed in the investigation of the various crimes and misdemeanors to which they refer. With all this law it is essential for the Justice to become acquainted, as his minii^try may often be required to enforce obedience to this portion of it^ in which the public have so great an interest. ABDUCTION OF WOMEN. By the Act of the Provincial Legislature of the 4 and 5 Vic. c. 27, s. 19. — if any person shall, from motives of lucre, take away or detain any woman against her will, having any interest, whether legal Ar equitable, present or future, absolute, conditional or contingent, in any real or personal estate, or shall be an heiress presumptive, or next of kin to any one having such interest, with intent to marry or defile her, or to cause her to be married or defiled by any other person, every such oflender, and every person counselling, aiding, and abetting such offender ihall be guilty of felony, and on conviction, liable to be imprisoned nt bard labour, at the discretion of the Court. ABDUCTION OF WOMEN. 43 • the Ju9- .egielaturc ninallaw. 4,, 25, 26, portion of d humane e authority ncesjwhere rescribe the be observed isdemeanors essential for ninietry may portion of it> By Sec. 20. If any person shall unlawfully take, or cause to be taken, any unmarried girl, under the age of sixteen years,- out of the possession, and against the will of her father or mother, or of any other person, having the lawful care or charge x)f lier, every such offender shall he guihy of a misdemeanor, and on conviction, suffer such punishment by fine or imprisonment, or both, as the Court shall award. By Sec. 21. If any person shall maliciously, either by force or fraud, lead or take away, or decoy, or entice away, or detain any child under the age of ten years, with intent to deprive the parent or parents, or any other person having the lawful care or charge of such child, of the possesion of such child, or if any person shall, with any Buch intent, receive o; 'arbour any such child knowing the same to have beeii . u. ed, taken away, or detained, every such offender, an • .y person counselling, aiding, or abetting such offender, shall be guilty of felony, and on conviction, liable to imprisonment at hard labour in the penitentiary for not less than seven years, or in any other prison for any lime, not exceeding two years. Under this law, as in all cases of felony and misde- meanor, the Justice of the Peace, can receive the neces- sary informations, or depositions of witnesses, to sub- stantiate the offence, and grant his warrant to arrest tho offender — and after taking his examination, and the ex* amination of the witnesses in his presence, in the case of felony, commit him to prison for trial, or admit him to bail, as circumstances may require. See the following formfl. 4^ ABDuCTION OF WOMEN. s 1 • Information to ground a warrant for apprehending a principal and accessary, lor taking away, or detaining a woman, against her will. District of ) Information and complaint of A. B., of ) the Parish of in the said District, yeoman, taken before me W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District. The said A. B., being duly sworn, deposeth and saith, that on or about the day of instant, at the Parish afoi'esaid, {or parish or place where the offence was committed) one C. D., of the said Parish, Gentleman, did, from motives of lucre, feloniously take away, and doth detain against her will, one £. H., of the said Parish of spinster (or widow) being a person hav- ing a legal interest in a real estate (or a personal estate, as the case may be) in the said Districf, with intent to marry her, (or to defile her, or to cause her to be married or defiled by some other person, as the case nuiy be.) And further, that une T. B., late of the said Parish of yeoman, did counsel, aid and assist, the said C. D., then and there, to commit the said felony. Sworn this day of ^ 18 — , before me > (Signed) A. B. (Signed) W. R., J. P. ) The circumstances of each particular case to be stat- ed in the information, as they occur. Warrant to apprehend the accused on the foregoing in- formation. ABDUCTION OP WOMEN. 45 lending a Btaining a A. B., of 1 District, ., Esquire, :e8 of the ict. and saith, tant, at the the offence Gentleman, away, and of the said person hav- sonal esiate, ih intent to be married \se may be.) lid Parisli of the said C. B. e to be Btat- I foregoing in- District of ) To the Constables, Officers of Police, and ) all other Officers of the Peace, in and for the said District, and to each and every of them. C^ The warrant , here as in every other casBf may be addressed to any parti- cular person by name. Whereas A. B. of the parish of in the said District, yeoman, hath this day made oath before me, W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District, that on or about the day of instant, at the Parish aforesaid* {or the Parish or place where the offence was committed) one C. D. of the said Parish, gentleman, did, from motives of lucre, feloniously take away, and doth detain, against her will, one E. H. of the said Parish, spinster, {or widow) being a person having a legal interest in a real estate, (or personal estate, as the case may be) in the said District, with intent to marry her, (or to defile her, or to cause her to be married or defiled by some other person, as the case may be,) and that one T. B., late of the Parish of yeoman, did then and there counsel, aid and as- sist the said C. D. to commit the said felony, these are therefore in Her Majesty's name, to charge and com- mand you, and each and every of you, forthwith to ap- prehend, and bring before me, or some other of Her Ma- jesty's Justices of the Peace, in and for the said District, the said G. D. and T. B., to answer to the said complaint and M be further dealt with, according to law. Given under my hand and seal at aforesaid, thi s day o f one thousand eight hundred and (Signed) W. R., J. P. [Seal] I i 46 ABDUCTION OF WOMEN. Examination of the said G. D. and T. B. on the above infonnatiun. District of ) Examination of C. D. of the Parish of ) in the said District, gentleman, taken before me, W. R., Esquire, one of Her Majesty's Justices of the Peace in attd for the said District. The said C. D. being charged before me, the said Justice, on the oath of A. B. of the Parish of in the said District, yeoman, with having, (Acre state the charge as set forth in the information.) And the said C. D. being by me, the said Justice, asked what he hath to say in answer to the said charge, the said C. D., doth freely and voluntarily, declare and say, that he is not guil- ty of the felony aforesaid vviiereof he is charged. Taken this day of j 18 — , before me. \ (Signed) C. D. (Signed) W. R., J, P. ) The examination of T. B., to be taken i:i the same manner, only altering the nature of the charge against him. The Justice will afterwards proceed to take the exa- mination of the witnesses in presence of the prisoners, either with or without the assistance of another Justice, and lo commit them to gaol, as circumstances may require. WARRANT OF COMMITMENT. District of i To the keepers of the common gaol for the . ) said District. Receive into your custody the bodies of C. D., of the Parish of — in the said District, gentleman, and T. '■%.. Q above jrish of rttleman, ;, one of 'eace in the said state the d the said the hath l.D.,doth is not guil- ABDUCTION AND STEALING OF CHILDREN, &C. 47 B., of the same place, yeoman, brought before me, W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District, the said C. D. charged on oath, with having (here enter the charge as contained in the information.) The said T. B-, also charged on oath with having {here enter the charge against /dm in the same manner.) And them safely keep in *l>e common gaol of the said District, until they fc' I L. 'ivered by due course oi' law. Given under my hand auu seal this day of one thousand eight hundred and (Signed,) W. R., J. P. [Seal.] Where two Justices have taken cognizance of the offence, the warrant will of course be in the names of and signed by both. :\ the same 'ce against ce the exa- prisoners, ler Justice, may require. CD., of the einan, and T. ABDUCTION AND STEALING OF CHILDREN, &c. Information for stealing or enticing away a child under ten years of age. District op ) Information of A. B., of the Parish of ) in the said District, yeoman, taken before me, W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for tl>'> said District. The said A. B., being duly sworn, deposeth and saith, that on the — — day of instant, at the Parish aforesaid, one C. D., of- in the said District, laborer did maliciously, by force, (or by fraud, as it may be) lead, take (or carry away, or decoy, or entice away, as the 48 ABORTION. fad may be) a certain male (or female) child called, J. B. then and there being the son (or daughter) of the said A* B., and then and there being under the age of ten years, to wit of the age of five years and upwards, with intent then and there to deprive the said A. B., so then and there being the father of the said J. B., and then and there having the law^ful charge of the said J. B., of the possession of the said J. B., by concealing and detaining the said J. B. from the said A. B. (or with intent to steal some article of apparel or ornament, or other thing of valve or use upon or about the person of the said J. B., or as the case may be.) Therefore demands justice. Sworn as above. A.B. (Signed,) The warrant to apprehend and other proceedings to be had against the accused in this case, are, in point of form, the same as in the preceding, observing always the dif- ference of the charge in each of these proceedings. ABORTION. By the Provincial Act of the 4. and 5 Vic. c. 27, sec. 13. It is enacted, that whosoever, with intent to procure the mis-carriage of any woman, shall unlawfully administer to her, or cause to be taken by her, any poison or other noxious thing, or shall unlawfully use any instrument, or other means whatsoever, with the like intent, shall be guilty of felony, at the discretion of the Court, to be im- prisoned at hard labor in the Provincial Penitentiary. ACCESSARY — ACCOMPLICE. 49 l\ed,J. B. r the saiil age of ten ards, with ., so then \(1 then and B., of the id detaining tent to steal her thing of » said J. B., juptice. A.B. seedings to be lointofforiTi, vays the dif- idings. Information on the above Act. District of > Information of A. B. of the Parish of ) in the said District, spinsterj taken before me W. R., Esquire, one of Her Majesty's Justices of the Peace in and for the said District. The said A. B. being duly sworn deposeth and saith, that on the day of last, at the Parish aforesaid, she, this deponent being then in a state of preg- nancy, one C. D. of the Parish of in the isaid District, laborer, with the view and intent to procure the mis-carriage of this deponent, did administer to her, a certriin drug or medicine of a noxious nature, (or if any instrument or other means were used for this purpose^ to state the same, as fhe case 7nay be,) whereby this depon- ent was much injured in her health, and in great danger of her life. Sworn this day of } 18 — , before me, > (Signed) A. B. (Signed) W. R., J. P. ) The warrant, examinations, the commitment or bailing of ti orisoner, and binding the witnesses by recognizances to appear and give evidence, may be made out as stated in the preceding title, varying the circumstances of the case. ACCESSARY— ACCOMPLICE. An offender, may be either a principal in \\\e first degree, that is to s»y, the actor, or actual perpetrator of the offence or a principal in the second degree, or an accomplicet one who is present, aiding and assisting with a felonious intent to commit the felony, or he may be an accessary. E 'i^' 50 ACCESSARY — ACCOMPLICE. An Accessary ^ is he who is not the chief actor in the offence, nor present at its performance, but who is some way concerned therein, either before, or after the fact committed. An accessary before the fact committed, is he, that being absent, at the time of the felony committed, pro- cures, counsels, commands oru'jeis another to commit a felony, 1 Huh. 615. An accessary after \\\g fact is, where a person knowing the felony to be committed by another, relieves, comforts or assists the felon. There are no accessaries, except in felonies In high treason, misdemeanors and irespasies, all are principals. By the Provincial Act 4- and 5 Vic. c. 24-, s. 37. if any person shall counsel, procure or command any other person to commit any felony, such person shall be deem^ ed guilty of felony, and may be indicted, either as an ac- cessary before the fact, togother with the principal felon, or for a substantive felony, whether the principal shall, or shall not have been previously convicted, or be amen- able to Justice — and such offence may be tried by any Court which can try the principal felon, in the same man- ner as if such offence had been committed at the same place as the principal felony, although such offence may have been committed, either on the high seas, or at any place on land, whether within Her Majesty's dominions or without — and if the offence be committed in different Counties or Districts, the accessary may be tried in either. — And by s. 38, of the same Act, accessaries after the fact to any felony, may be tried by any Court that has jurisdiction to try the principal felon, in .he same manner as if the accessarial act had been committed at the same ACCESSARY —ACCOMPLICE, 51 ctor in the ho is some r tlie fact son knowing es, comforts es In high e principals. 04, s. 37. if ,ndany other .hallbeaeem- Iher as an ac- rincipal felon, fincipal shall, I, or be amen- e tried by any the same man- a at the same h offence may eas, or at any ty's dominions ted in different , tried in either, iaaries ofief the Court that has _ same manner ited at the same place as the principal felony — and if the offence of the principal be committed in one County or District, and that of the accessary in another, the accessary maybe tried in either. An accowi^/ice, is one of many equally concerned in a felony, and the term is generally applied to those, who are admitted to give evidence^igainst their fellow Criminals, when other evidence is notsufHcient to convict them. The Justice of the Peace ought to guard against holding out any inducement to an accomplice to confess his guilt, or to make any acknowledgement or declaration, in the ho|>e of being admitted a witness against his associates, but leave it to the officer prosecuting for the Crown to tleter- mine the point. Information against an accessary before the fact. District of ) Information of A. B. of the Parish of ) in the said District, yeoman, taken before me W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District. The said A. B. being duly sworn, deposeth and saith, that after the hour of nine in the day of last, his dwelling house, situated in the said Parish, was feloniously and burglariously broken and entered by some I person or persons, and one silver watch of the value of five pounds, and one great coat of the value of three [pounds, (or whatever the articles stolen and their value Y^ay be) the property of the said deponent, then and there iing in the said house, were then and there feloniously ktolen, taken and carried away, and that he hath jun 52 ACCESSARY — ACCOMPLICE. cause to suspect, and doth suspect, that C. D., late of the Parish of in the said District, labourer, did com- mit the said felony and burglary, and that J. G. of the same place, labourer, did counsel, advise and abet the said C. D. to commit the said felony and burglary. Sworn this day of 18 — , before me > (Signed,) A. B. (Signed,) W. R., J, P. m Warrant on the above information. District of ) To the Constables, Officers of Police, and 5 other Officers of the Peace, in and for the said District, and to each and every of them. "Whereas A. B., of the Parish of in the said District, yeoman, hath made oath before me, W. R. Esquire, one of Her Majesty^s Justices of the Peace, in and for the said District, that {here take in the staiement contained in the information.) These are, therefore, in Her Majesty's name to command you, and each and every of you, forthwith to apprehend and bring before me or some other of Her Majesty's Justices of the Peace in and for the said District, the said G. D. and J. G. to answer to the said charge, and to be further dealt with according to law. Given under my hand and seal this day of one thousand eight hundred and (Signed,) W. R., J. P. [seal.] The subsequent proceedings to be had, are according to the usual course by the examination of witnesses, &c. * •^•TT^'^PJT- ACCES3AUY — ACCOMPLICE. 53 Informalion against an accessary afier the fact. District of ) Informalion of A. B. of the Parish of \ in the said District, yeoman, taken before me, W. R., Esquire, one of Her Majesty's Justices of the Peace in and for the said District. The said A. B. being duly sworn, deposeth and saith, that on the day of last, at the Parish aforesaid, one bay coloured horse, of the value of ten pounds, the I)roperty of the said deponent was stolen, taken, and led away by some person or persons, and that he hath just cause to suspect, and doth suspect, that one C. D., of the Parish of in the said District, yeoman, did commit ihe said felony. And the said A. B. further saith, that since the said felony was committed, one J. G. of the said Parish, yeoman, hath received, harboured and con- cealed, the said C. D. in the dwelling house of him the said J. G. at the parish aforesaid, he the said J. G. then and there well knowing that the said CD. had committed the said felony. Sworn this day of ) 18 — , before me, > (Signed,) A. B. (Signed,) W. R., /. P. Information against an accessary afier the fact, for receiving stolen goods, knowing them to have been stolen, and search warrant thereon. District of ) Information of A. B., of the Parish of ) in the said District, yeoman, taken before me W. R,, Esquire, one ol Her Majesty's Justices of the Peace in and for the said District. £2 » V- 54 ACCESSARY — ACCOMPLICE. The said A. B. being duly sworn, deposeth and sahh, that on the ■ day of last, at the Parish aforesaid, the following goods, chattels and effects, his property, that is to say, one silver watch of the value of live pounJs, one great coat of the value of three pounds, and three silk handkerchiefs of the value of ten shillings, were feloniously stolen, taken, and carried away, from and out of the dwelling house of him, the said A. B., by one C. D.J of the Parish of in the said District, labourer, — and the said deponent further saith, that he hath cause to suspect, and doth suspect that one J. G. of in the said District, labourer, hath feloniously received the said goods, chattels and effects, knowing them to have been stolen, and doth now hide and conceal the same in his dwelling house, out houses, or other his premises at aforesaid. Wherefore the said deponent prays that a search warrant may be granted to him to search for the said goods, chattels and effects in the said dwelling house and other the premisea of the said J. G. Sworn this day of ) 18 — , before me ? (Signed,) A. B. (Signed,) W. R., J. P. ) Search Warrant on the above information. District of ) To the Constables, Officers of Police, and ■ " ) other Officers of the Peace, in and for the said District, and to each and every of theiM. Whereas A. B., of the Parish of — — in the said District, yeoman, hath this day made oath before nte, W. R. Esquire, one of Her MajeBty'g Justices of the Peace, ACCESSARY — ACCOMPLICE. 55 and sahh, the Parish ;ffecls, his le value of ee pounds, n shillings, ivvay, from 1 A. B., by aid District, ith, that he one J. G. of 1 feloniously ts, knowing and conceal or other his ore the said be granted to effects in the 1 of the said 1. if Police, and in and for the and every of In and for the said District, that on the day of instant, at the Parish aforesaid, the following goods, chattels and eflects, his property, that is to say (Aere enumerate ike articles) were feloniously stolen, taken and carried away, from and out of liis dwelling liouse by one C. D., of the Parish of in the said District, labourer, and that he the said A. B. hath cause to suspect, and doth suspect, that one J. G., of the said District, labourer, hath felouiously received the said goods, chattels and etVects, knowing them to have been so stolen, and doth now hide and conceal the same in his dwelling house, out house, or other his premises at aforesaid, the said A. B. thereupon praying that a search warrant may be granted to him to search for the said goods chattels and ellects, in the said dwelling house, out house, and other the premises of the said J. G. These are therefore to authorize and require you, and each and every one of you, with necestary and proper assistants, to enter in the day time, into the said dwelling house, out house, and other the premises aforesaid of the said J. G., and there diligently to search for the said goods, chattels and effects, am\ if the same, or any part thereof bhall be found upon such search, that you bring the same 80 found, and also the body of the said J. G. before me, or some other of Her Majesty's Justices of tlie Peace, in and for the said District, to be dealt with according to law. Given under my hand and seal this day of ■ ■ one thousand eiglit humhed and . (Signed,) W. R., J. P. [Seal.J If the officer charged with the execution of the warrant, find any of the stolen goods in the posscBsion of the oc- cuaed, the latter must bo orrosted and brought before the 56 ACCESSARY — ACCOMPLICE. Justice together with the articles so found, that such articles may be identified in the presence of the Justice, and the same be directed by him to be put in a place of security until the time of trial — or should it appear from the examination of witnesses or otherwise, that the accused had received the goods so stolen, into his possession, knowing them to have been stolen, he must be committed for trial — unless from any favorable circumtances in the case, any two Justices should be induced to admit him to bail. Warrant of commitment, where goods stolen have been found on a search warrant. District of i To the Keeper of the Common Gaol for J the said District. Whereas A. B. of the Parish of — ^ in the said District, hath made oath before me W. R. Esquire, one of Her Majesty's Justices of the Peace in and for the said District, that on the ■— day of instant, at the Parish aforesaid, certain goods and eflects his pro- perly, {here insert the goods stolen and the value,) were feloniously stolen, taken, and carried away, from and out of the dwelling house of him the said A. B. in the afore- said Parish, by one C. D. of the Parish of in the said District, laborer, and further that he the said A. B. had cause to suspect, and did suspect, that one J. G. of ■ in the said District, laborer, had feloniously received the said goods ant^ ofTects, knowing them to have been stolen, and that the said J. G. did hide and conceal the same, in his dwelling house, out-houses or other his premises at aforesaid, and therefore praying that a search warrant might be granted to him, to search AFFRAY. w for the said goods and eflfects in the said dwelling houie, out-houses and other the premises aforesaid of the said J. G. — and such search warrant having been granted by me the said Justice, and upon such search made by vir- tue thereot, in the said dwelling houses, out-Iiouses, and premises aforesaid of the said J. G. the said goods and effects {or part thereof, describing t/iem) were found in the possession of the said J. G. These are therefore to charge and command you, to receive into your custody the said J. G. and him safely keep in the Common Gaol of the said District, until he shall be thence delivered by due course of law. Given under my hand and seal, this day of one thousand eight hundred and (Signed) W. R., J. P. [Seal] AFFRAY. An affray signifies a fighting between two or more persons in public — and there must be a stroke given, or an assault made to constitute an affray, 1 B. Just. Jlf' fray. If it happen in private, it is not an affray, as it is slated to be an otTence, to the terror of Her Majesty's Subjects. No quarrelsome or threatening words will amount to an affray, yet a Constable may carry the threat- ener before a Justice of the Peace, to find sureties of the Peace, 1 Hawk. I c. 63. An «^raiy differs from a riot, in this, that two persons only may be guilty of an affray, whereas three persons at least are necessary to constitute a riot, 1 Hawk. r. 65. 81. A Constable, and every Peace Officer, is not only em- powered, but bound to suppress an aliray which hap|)en8 58 AFFRAY. in his presence f and he may denri'ind the assistance of others to enable him to do so, which if they refuse to give him, they are punishable by tine and imprisonmont, 1 Hawk. c. 63. s. 13. If an aiTray is in a house, a Constable, afler giving no- tice of his official character, and demand to enter, may break open doors to preserve the peace — and if affrayers fly from the street to a house, and the Constable follow with fresh suit, he inay also break open the doors to take them, I Hawk, c. 63, s. 16. A Justice of the Peace may authorise the arrest of any person for an affray committed in his presence, and com- |>el the offender to find sureties for the peace, but he can- not do this without a warrant, and on complaint on oath, when the affray is out of his view, 1 Hawk. c. 63. s. 18. Information for an Affray. District of ) A. B., of the Parish of- in the ) said District, laborer, came before me, W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District, and made oath, that on the day of instant, CD., of the Parish of in the said District, butcher, and G. H., of the game place, laborer, and T. B., also of the same place, yeoman, did, in a tumultuous manner and with force and arms make an Affray at the said Parish of to the terror of Her Majesty's subjects, then a.id tliera being, AFFRAT. 59 giving no- jnter, may if affrayers ib\e foUovv oors to take irrest ofany :e,andcom- , but he can- ainton oath, c. 63. s. 18. wherein the said A. B., was assauhed, beaten and illused by the said C. D., G. H. and T. 6., without any just ur reasonable cause. Sworn this day of ^ 18 — , before me ( (Signed) A. B. (Signed) W. R.,J. P. ) Warrant to apprehend Affrayers, &c. District of ^ To the Constables, &c., {as in preceeding ^ Warrants.) Whereas A. B. of the Parish of— — in the said District, yeoman, hath this day made oath before me W. R. one of Her Majesty's Justices of the Peace, in and for the said District, that C. D. of the Parish of in the said District, butcher, and G. H. of the same place, laborer, and T. B. also of the same place, yeoman, did on the day of instant, at the said Parish of in a tumultuous manner and with force and arms, make an affray to tiie terror of Her Majesty's sub- jects then and there being, and wherein the said A. B. was assaulted, beaten and ill used by the said C. D., G. H., and T. B. without any lawful or sufficient provo- cation given to them or to either of them by the said A. B. These ore therefore, in Her Majctty's name, to command you, and each and every one of you forthwith to apprehend and bring before me or some other of Her Majesty's Justices of the Peace, in and for the said District, the said C. B., G. H., and T. B., to answer to the said complaint, and to find such securities as the law requires. Given under my liand and seal, this day of 18 (Signed) A. B., J, P. [Seal] ARREST. . nf this kind, if the offence appears to be of a In matters of this kmd, ^^ ^^^^ «erio.s nature, the course IS, to bind J ^„^ at the Quarter Sessions, to an- o_the ^^J^ ,^ ^^^^^ ,„ the meantime to ^^^^ ^^'^^^^,,,,.., request the of minor importance, and the I ^^^^^^.^^ ^^^^ Justice to proceed summarAj to hear a ^ ^^^ ^ :-:;:t::;:^.the pubiic and tothe parties. APPEAL TO THE SESSIONS. See under the head, Conviciim. APPRENTICES. see under the head, ^fa«<.««.!Se™a„(.. ;. AHHEST. resigning of the per«.n "ff^^t't'e'ea offence «r foHhooming to answer an aUe^d o susp^ ^^^^^^^^ crime; and to such an "j;^ J _^^„, „„ man can in ^HhoutdUtlnctionareequa^^y -we ^^^^^^^,, St.r:t:«r;tr:ht to .. when ...en. eau« any other P«?»"'°;W«h<'^* ^^^^^ of the -:..nt:;rc:.i"^»™--.«-«'-^- X, N.. ARREST — ARSON. 61 ^ to be of a j8 to appear ip\aint, and u\d it appear request the eterniine the ■t of 4. and 5 be done, it is parties. inis. ,eeif apprehend, or ithout warrant, any y, or breach of the Jink Hist' 87. Any Justice may take of the County or District any number of persons as he shall think fit to pursue, arrest, and imprisoiJ, traitor.^, munlerers, robbers, and other felons ; or such as break, or gf) about to break the peace — and every person being required ought to aid and assist, on pain of fine and imprisonment. When a Magistrate has a particular knowledge that any crime has been committed by any person, he ought not himself to arrest the criminal, but to make oath of the fact before some other Magistrate, unless the crime b^; com- mitted in his presence. All persons of full age present when a felony is com- mitted, or a dangerous wound given, are bound to appre- hend the offender, on pain of being fined and imprisoned, 2 Hawk. 74. So every person is bound to assist an officer, when required, to take a felon, or to suppress an affray — and to arrest aity one attempting to commit a felony. The party making an arrest, should seize, or touch the person of the offender, or otherwise confine him; — bare words will not make an arrest. A private person may break and enter into a house and arrest a person, to prevent him from HiUrdering another who cries for assistance. A private person having arrested a felon, should deliver him to a constable, or carry him before a Justice. If any man be found attempting to commit a felony in j the night, any one may apprehend and detain him until he can be carried before a Magistiate. ARREST BY WARRANT — SEE WARRANT TO APPREHEND. ARSON — SEE BURNING. F 62 ARTICLES OF THE PEACE. ARTICLES OF THE PEACE. Wherever a person has just cause to fear that another will burn his house, or do him, or his wife, or his children a corporal hurt, he may exhibit articles of the peace be- fore a Justice of the Peace, who is bound to require the party to find sureties to keep the peace towards the com- plainant, upon the latter making oath that he is actually under such fear from the other person, and that he has just cause to be so — and that he does not require such surety out of malice or vexation, 1 Hawk. c. 60. s. 6. 7. All persons whatsoever have a right to demand surely of the peace. A wife may demand it against her hus- band — and a husband against his wife. If the party against whom articles of the peace are ex- hibited be present, he may be. immediately committed, imless he offer sureties ; but if he be absent, the Justice cannot commit him for not finding such sureties, until he has been required, and has neglected, or refused so to do — and the warrant in that case, must state the cause for which it is granted, and at w^hose suit, 1 Hawk. c. 60. s. 9. The recognizance to keep the peace in this case, ought in general to bind the party to appear at the next sessions of the Peace, and in the mean time to keep the peace towards all Her Majesty's liege subjects, and especially towards the party complaining, who may appear at the sessions to have this recognizance renewed should liis cause of tear still subsist. Persons under age, and married women, ought to find security by their friends, as they cannot be bound by themselves. I ARTICLES OF THE PEACE. 63 lat another his children e peace be- reqvnre the (Is the com- e is actually 1 that he has require such :.60.s. 6''7- emand surely ainst her hus- Tlie Justice ought not to receive affidavits from the ad- verse party, denying or controverting the facts stated in the demand for surety of the peace, 13 East, R.lll. All authorities agree, that fear lest another will hurt his servants or his cattle, or other goods, is not sufficient ground for requiring surety of the peace, Dalt, 1 16. Although according to the common course the Justice binds the party giving security for the peace to the ensu- ing sessions, yet he can in the exercise of a prudent dis- cretion, bind him for a longer space of time — and there may be many cases in wliich it is more convenient to bind the party for a certain time, than to the next sessions only, in order to avoid the expense and trouble both to him and his sureties, of attending a second time to accom- plish an object that may as well be effected by a first at- tendance before the Justice, when the whole matter may be heard and discussed, 1 Hawk, c. 60. s, 15. And in a case vviiere a Justice of the peace required a party against whom the complaint was rnadc, to find surety for keeping the peace for fwo years — and for his default committed him to prison, it was held that the Justice was fully au- thorised in so doing, and that the warrant of commitment for this cause was strictly legal, 2 B. St' jJ. iiTS. Complaint and demand of surety for the Peace. District op J Complaint and information of A. B., of ) tiie Parish of in the said Dis- trict, yeoman, taken before me W. R., Esquire, one of Her Majesty's Justices of the Peace in and for the said District. The said A. B., being duly sworn, deposeth and saith, that he hath just cause to fear, and doth fear, that C. D., •-#*Wf Il 1 4 I 64. ARTICLES OF THE PEACE. of the Parish of in the said District, yeoman, VNnll do him some hurt or bodily harm, and doth therefore require surety of the peace against him. That the said C. D. hath at different times, and particularly on the day of instant, austjaulted the said deponent, and used threatening and abusive language to- wards him, which gives the deponent cause to suspect, that the said C. D., intends to do him some personal injury. That the said deponent doth not require such surety out of malice or vexation, but only for his personal security. Sworn at this day of before me, ^(Signed,) A. B. (Signed,) W. E.,/. P. Warranty for surety of the Peace. District of ^ I To the Constables, Officers of Police, &c. Whereas A. B. of the Parish of in the said District, yeoman, hath made oath before me, W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District, that {here take in the complaint as stated.) These are therefore to command and require you, and each and every of you, that you do forthwith bring the said C. D., before me, or some other of Her Ma- jesty's Justices of the Peace, in and for the said District, io find sufficient sureties for his personal appearance at the next General Quarter Sessions of the Peace, to be holden at in the said District, on ■ day of next, and also that he the said C. D., shall in the meantime keep the peace towards all Her Majesty's liege subjects, and especially towards the said A. B., the complainant, (or to find good and sufficient sureties to ■■'^>' -f , yeomanj I therefore t the said rly on the ;d the said anguage to- uspect, that anal injury. h surety out i\ security. A.B. of Police, &c. __ in the said 3 me, W. R.» [the Peace, in I the complaint nd and require ,u do forthwith iher of Her Ma- he said District, ipearance at the ce, to beholden . day of C. D., shall in 11 Her Majesty's said A. B., the ient sureties to ASSAULT AND BATTERY. 65 keep the peace towards the said Jl. B.f and all Her Ma- jestrfs liege subjects^ for the space of six months, as the Justice may judge proper.) Given under my hand and seal, at in the said District, this day of in the year one thousand eight hundreil and (Signed,) W. R., /. P. [Seal.] Should the party produce sufficient sureties before the Justices, they will enter into recognizance in the terms of the warrant. See Recognizance for surety for the peace. But should the party provide insufficient, or no surety, he must then be committed to gaol until such sureties are given. See Commitment for want of sureties, ASSAULT AND BATTERY. An Assault, is an attempt to offer with force and vio- lence to do a corporal hurt to another, as by striking at another with a stick, or other weapon, or without a weapon, though the party striking misses his aim. So, drawing a sword or bayonet — presenting a gun at a person within the reach at which a gun will carry — pointing a pitchfork at a person within reach — throwing a bottle or glass with intent to wound or strike — or even holding up a fist in a menacing manner — or a similar act accom- panied with such circumstances as denote at the time an intention, coupled with a present ability, of using actual violence against the person of another, will amount to an assault^ 1 Hawk, c, 62, s. 1. — 4« Bl. Com, 120.— I East P. c. 406. But words alone will not make an assault. F2 v *-<«i#S: / 66 f ASSAULT AND BATTERT. A BatterVf which includes an assault, is more than an attempt to,do a corporal hurt to another, as it is carrying that attempt into eflect. And any injury whatsoever, be it ever so small, which is actually done to the person of another, in an angry or revengeful, or rude, or insolent manner, is a battery in the eye of the law. The intention with which the act Is done is material in the enquiry, whether it will amount or not, to an assault. An assault may be justified, as where a man assaults and beats a person in his own defence, or in defence of his wife, parent,, child or master — and so a wife may justify an assault in defence of her husband. But in all cases where a man is justified in beating another in defence of himself, or his property, or in the. discharge of his duty, the force used must not be greater than is reasonably necessary to accomplish the lawful purpose. And unless there be violence used by a tres- passer, a man should not begin by striking him, but should first require him to desist, or to depart. And if that is refused, he should then gently lay his hands upon him, before he proceeds to greater extremities, 8 T, R. 78. — 1 1 East P. C. 4.06. So, though an attempt to strike will justify the striking by the other party, yet even .a previous assault and battery will not justify a retaliation out of all proportion to the necessity, or the provocation received. If aninjury to a person be accidental and undesigned) it will not amount to an assault. An assault may be aggravated, either in respect to the place in which, or. the person upon whom, it is committed — or from the criminality of the jiurpose itiiended to be efiected, — I Russ, c. L. 873, I .? ■^ ASSAULT AND BATTERY. 67 re than an s carrying tsoever, be material in , an assault, lan assaults n defence of a wife may d in beating rty, or in the ot be greater ih the lawful sed by a tres- in, but should ind if that is ds upon himy fy the striking ult and battery portion to the id undesigned, By Act of the Provincial Legislature of 4 and 5 Vic. c. 27 s. 27 and seq. authority is given to the Justices of the Peace, to take cognizance of Assaults and Batteries, commited under various circumstances, and in some instances to proceed by a summary conviction of the offender. To that act (of which a full extract will be found in the present work) I must refer, as the safest guide for the Magistrate in all his proceedings to be had in this respect. Complaint and Information for a Common Assault. District of ) A. B. of the Parish of in the said District, yeoman, maketh oath and sailh, that on the day of instant, at the Parish aforesaid, he was violently assaulted and beat by C. D. of the said Parish, laborer, without any just cause or provocation — therefore prays justice in the premises — (anc?m case the party complaining should be desirous that the Justice should hear and determine his complaint in a summary manner, then add ) and that any of Her Majesty's Justices of the Peace, do proceed sum- marily to hear and determine his said complaint. Sworn at this day' of IS — . before me W.R. Esq. one of Her Majesty's Justices of ^(Signed) A. B. the Peace for the said District. (Signed) W. R , J.P.^ Other informations for assaults may be readily drawn in the above form, according to the subject matter of the complaint, and in which the Justice may proceed sum- marily to hear and determine the offence, with the consent of the complainant. . .••• ■ .- . v' .; .r » 1 63 ASSAULT AND BATTERY. i There are however cases of assault, which according to the Act of 4> and 5 Vic, c. 27, the Justices cannot de- termine. 1. To assault, strike or wound any Magistrate, officer, or other person in the exercise of his diity concerning the preservation of any vessel in distress, or of goods wrecked, or cast on shore, — 4 and 5 Vic, c. 27, sec. 24<. 2. For an assault with intent to commit felony, — 4 and 5 Vic. c. 27, sec. 25. 3. For an assault on any Peace Officer, or Revenue Officer in the execution of hia duty, or upon any person acting under him, — 4 and 5 Vic, c 27, sec. 25. 4. For an assault with intent to resist or prevent the ap- prehension or detainer of any party, liable by law to be apprehended, — 4< and 5 Vic, c. 27, sec. 25. 5. For any assault committed in pursuance of any con- spiracy to raise the rate of wages,— 4« and 5 Vic, c. 27, fee 25, 6. For an assault in which any question shall arise ar to the title of any lands, &c., or any interest tlierein — or ati touching any Bankruptcy or Insolvency, or any exe* cution under the process of any Court of Justice, — 4 and 5 Vic, c. 27, sec 30. 7. Or wherever the complaint appears to he a fit subject of prosecution by indictment before the Court, — 4 and 5 Vic, c. 27, sec 30. The following case? may bo tried and determined by two Justices of the Peace. 1. Where any person shall unlawfully and with force hinder any seaman from exercising his lawful business, &c. — 4 and 5 Vic, c. 27., sec 26. 2. When any person shall beat, or use violence to any ASSAULT AND BATTERY. 69 Other person, with intent to deter or hinder him, from selling or buying any wheat or grain, flour, meal, Sec. in any market or other place — or shall beat, &c., any person having charge or care of any wheat, &c., whilst on its way to, or from viny city, market town, or other place, with intent to stop the conveyance of the same. Warrant for a Common Assault. District of ) To any Constable, Officer of Police, or ) other Peace Officers, in and for the said District, Whereas complaint hath this day been made before me, W. R.", Esquire, one of Her Majesty's Justices of the Peace, in and for the said District, upon the oath of A. B. of the Parish of in the said District, yeoman, that C. D. of the said Parish, laborer, did, on the day of instant, at the said Parish, violently assault and beat the said A. B. by striking him with his fists, several blows on the head an(] other part:? of the body, and praying that any of Her Majesty's Justices of the Peace would proceed summarily to hear and determine his said complaint. These are therefore in Her Mnjesty's name, to command and require you, and each and every of you, forthwith to apprehend the said C. D. and biing him before me f.rsome other of Her Majesty's Justices of the Peace, in and for the said District, to answer to the said com- plaint, and to be further dealt with according to law. Given under my hand and seal, at aforesaid, thii day of one thousand eight hundred and (Signed) W. R., /. P. [Seal] / f ience to any r 70 ASSAULT AND BATTERT. i \ i i } I If the complaint be against an Inhabitant, or known resident in the parish, or neighbourhood, the Justice should proceed by a summons, and not by a warrant to apprehend, in the first instance against the defendant, fur his appearance to answer thereto. Should he however re- fuse to appear upon the summons, the Justice may then issue his warrant against him. If the Justice after hearing the parties, shall consider the complaint to be well founded, he will condemn the defendant in the terms of the s. 27, of the above Act, to pay such penalty and costs, as the circumstances of the case may require, and will draw up a conviction thereon in the form prescribed by the said Act, — or he may dismiss the complaint with costs, should it appear trifling or ill founded. As in complaints of this kind the Public have little in- terest, and it is advisable in most cases to prevent litiga- tion, and to conciliate the contending parties, the law has accordingly authorised the Justice in cases of a summary conviction, to discharge the ollender, from his conviction on his makitig such satisfaction to the party aggrieved, as he shall determine, s, 29. If the defendant when arrested and brought before the Justice, state a sulTicient ground of defence, but is not prepared with witnesses to substantiate it, a day may be given him for that purpose ; in the meantime, should the Justice deem it necessary, the defendant ought to enter into recognizance for his appearance before the Justice on that Jay, when the parlies are to be heard and judg- ment given. Should the complainant require that the matter be heard before the Court, the defendant must then enter into recognizance with sureties to appear at the next Quarter Sessions to answer thereto. Recognizance in the usual form — see Recognisance. ASSAULT AND BATTERY. 71 r known 5 Justice warrant lo ndant, fuv )\vever re- may then all consider )ndenftn the ; Act, to pay of the ca?e [hereon in the y dismiss the or ill founded. have little in- prevent litiga- ps, the law has of a summary his conviction ^y aggrieved, as pght before the [ce, but is not I a day tnay be ]me, should the ought to enter [fore the Justice 1 heard and judg- re(iuire that the Indant must then Lear at the next If the defendant neglects or refuses to give the surety required, he will then be committed for the want of such surely, to be so expressed in the warrant, until discharged by due course of law — and the complainant and his wit- nesses hound to appear and prosecute and give evidence in the case. Commitment for want of sureties in the usual form, See CommUment. Sliould the complaint be founded on any assault of a violent nature, or committed in the furtherance of some other criminal oflence, the circumstances attending the same must be staled in the complaint or information, and referred to in the warrant of commitment, shouki it be- come necessary from want of bail. la all other respects the ordinary forms are to be followed. Certificate lobe granted by a Justice oftiie Peace on dis- missing a complaint for a common assault, under the above Act of 4- and 5 Vic. c. 27. s. 27. District of ) I, W. R., Esquire, one of Her Majesty's \) ustices of the Peace, in and for the said District, do hereby certify, that the complaint made before me by A. B., of the Parish of ■ in the said Dis- trict, yeoman, ngamst C. D. of tlie same place yeoman, for having on the day of at the Parish aforo^aid, assaulted and beat the said A. B., was this day by me the said Justice, after hearing the parties, Idismisscd with costs. Given imder my hand at lin the said District, this day of one [thousand eight humircd and — , (Signed,) W. R., J. P 72 ATTAINDER. ATTAINDER. „ criminal eapUally -^-^V;! „n.o„ law of pro- inseparable '=»"^""7^ ' 'f *-,„sthim-he being ihen nouncmg sentence o '^'"^^^,,/,,i Bl. Ccn.3Z0. A person Mailed, .. no longer o y .^ ^^ ^J, he canno, bo a w,tne.s nn> Co^_^ , ^^^^ ^_^_^^ ^^^ capable of perform.ng *Y" "- "„„,^,„en., ho is already ,y . sort of an.W.paUon of'-j;"" „j3. dead in law, * Bl. Com. 380. .^ -^j^^™; ; for But attainder does not *« un^.l ^.^^B^'ded, and .Uere i. a g«at d.fferenco '^e «- » "^^ ,^ ■„,,,„. „„e «««n(eJ. .lo^* ;/;;:,,,,,uy „f ,nn.«once- i,.tUrmcon.en,pat,on aw»p^^^^^ ^^ j„Oj„,en,-.ho «,mething may be ollLreo ^^^ ^,^^ g„,„ i„,,ctmen.n.aybo errone«,s» l-W^^^ ^^_^ ^^^^, „ra.e r,auy »"«"»7;;"' " ^o may oblain' a pardon, victlon may bo f';' " '„r „erit.o plead in „h-,ch supposes some latent spa* .^ „„^„ extenuation °f '-""". tleonspiro to prove him pronounced, both '^^ » f ,,,/„„, ,he remotes, completely gudty-and .here ^_^^^^_ polity left of anj.h.ng.o be .a.d, „4^' SAIL. 73 BAIL. he blood of necUate and aw of pro- 5 being tben I Cow. 330. cilvt or repu- ncUlier is be j^ev man, for X,Q 13 already 213. judgment; fov convicted, atid tUougUina<^<^"' fton only, tbere of innocence— jvu'gn>enl— *^»° render \be g«>H ,e luescnt con- t^tain' a par^o"' |tier\t to i^lead m idgment \a onco ,e 10 prove lum lot the remotest Bail is a delivery, or bailment of a person lo liis sureties, upon their giving together with himself a suilicient security for his appearance, he being supposed to continue in iheir frienilly custody, instead of going to gaol, 4 BL Com. ch. 22.— Hawk. 6.2. c. 15.— 2 Hah. c. 15.— 1 C/ntty. C.L.02. The persons who become bail f^r a prisoner, are said to have a coercive power over him, and may at any time retake him, if tliey doubt he will lly, and bring him before a Justice, who must cither commit him in discharge of ids bail, or else oblige liim to find new sureties, 4 Bl. Com. 296.— 2 Hale. 127. To refu;:;c or delay to bail any person bailable, is au otlence against the liberty of the subject in any jMagistrate i)y the Common Law, as well as by the Statute 3 Edw. 1, c. 15, and by the Hab. Corp. Act. And lest the intention of the law should be frustrated by the Justices requiring bail to a greater amount than the nature t.f the case demartds, it is expressly declared by Slat. 1 W. and M. s. 2, c. 1, that excessive bail ought not to be required. Thougli what bail shall be excessive must be left to the Courts to determine, on consid.img the circumstances of the case — and on the uiher hand if the Magistrate takes insuflicient bail, he is liable to be fined, if the criminal fail 10 appear. The bail to be taken by the Magistrate, ought to be two men at least, of sufiicient ability to meet the sum to be ex- Ipressod in their recognizance, which must be left in a [great degree to the discretion of the Magistrate, and there- ^^ ****** 74. BAIL. I ' fore he may examine them npon oalh as to the value of their property, to ascenain tiiat each of them is of suffi- cieni abihty to answer the sum in which he is bound, 2 Hale. 125. — Hawk. 6. 2. c. 15, s. 4. — Bac. Ab. Bail. F. If the party accused be under age, or a married wo* man, then the sureties only enter into recognizance, 3 M.8,' S. I. Tiie recognizances need not be signed by any of the parl'P" bound in the condition, 1 Chitty. 104<. Dick, Imf. I'^crog. ( >. the suljjcct of bail, I must here again refer the Muf.i 'rate to the before mentioned Act of the Provincial l.:c;?i&::iture of the'4 and 5 Vic. c. 21-, s. 1. 29., where he .sil! find several directions and injunctions to regulate his ct>> I- ; in this respect, and which he must neces:^a^ily obsc . e. By this Ad, persons charged with felony, cr suspicion of felony, upon positive or credible evidence, or by such evidence, if not explained or contradicted, shall in the opinion of the Justice or Justices before whom the pri- soner is brought, raise a strong suspicion or presumption of guilt, such prisoner shall be ccnuiiitted to prison. — 4 find 5 Vic. c. 24, s. 1 . But where there is only one Justice present, and evidence against the prisoner shall neither raise a strong suspicion of guilt, nor warrant his discharge, in such case the prisoner shall be taken before two Justices at least, and if in their opiruon, the evidence against the prisoner shall r.*; l;e ' )..:h as to raise a strong l)resuniption of guilt, or if "^uch evidence be adduced on the part of the prisoner va u- weaken the picsumption of his guilt, he may in such case be admitted to bail. It Icing however understood, that any such Justices are not BAIL. 75 value of i of snffi- bovind, 2 , Bail F. rieil vvo' Vizance, 3 n refer the Provincial )., wliere he regulate his t necessarily u or EMspicion c, or i)y such :haU in tlie ,v\\om the \m- Y presumption to prison. — 4) •e is only one prisoner shall or warrant his se taken before I, the evidence ) raise a strong be adduced on picsumplion of Ued to bail. I^ Justices are not bound to hear evidence on behalf of the prisoner, unless it shall appear conducive to the ends of justice. That the two Justicas before they admit to bail, or one or more Justice or Justices, before they commit to prison any person arrested for felony, or suspicion of felony, shall take the examination of such person, and the information on oath of those having any knowledge of the tacts, and reduce what may be material thereof into writing in the presence of the party accused, if in custody, who shall be allowed to cross-examine the witnesses produced. That where bail is taken by the two Justices, they shall certity the bailment in writing. And every Justice is authorised to summon and call before him all necessary witnesses within his jurisdiction, who can give any material evidence concerning such felony or suspicion of felony, take their examinations on oath, r.nd bind them by recognizance to appear at such Court where the trial of the cause is to bo had, then and there to prosecute and give evidence against him. That the said Justice or Justices shall subscribe all such examinations, informations, bailments, and recog- nizances, and cause the same to be delivered to the proper OlTicer of the Court, in which the trial is to be had, before, or at the opening of the Court. And in case any person so summoned to appear and give evidence before the Justice or Justices, shall refuse to submit to such exami- nation, or to enter into such recognizance, it shall be lawful for him or them to commit such persons to the Common Gaol of the District, County, City, or Town, until such person shall submit to such examination, or shall enter into such recognizance, or be discharged by due course of law, — 1 and 5 Vic. c. 24'. s. 2. . - ^A-- , .■•^:;?--r'-yi'.;-' h f I I 76 BAIL. That every Justice before whom any person shall be taken on a charge of a misdemeanor, or suspicion thereof, shall take the examination of the person charged, and the information in oath of those having any knowledge of the facts, the material paits whereof he shall put down in wri^ting, before he shall commit to prison or require bail from the person so charged. And in every case of bail- ment, the Justice shall certify the same in writing, and shall have authority to bind all persons by recognizance to appearand prosecute, or give evidence in like manner as in cases of felony — and shall subscribe all examinations, informations, bailments, and recognizances, and cause the same to be delivered to the proper Officer of the Court, in which the trial is to had, before or at the opening of the Court,- 4< and 5 Vic, c. 24>, s. 3. That Vv'hen any person shall be committed for trial by any Justice or Justices, it shall be allowed to the prisoner or his Counsel, Attorney or Agent, lo notify the commit- ting Justice or Justices, that he will apply to Her Majesty's Court of Superior Jurisdiction, or to one of the Judges thereof, for an order to the Justices^ of the Peace, for the District where such prisoner shall be confined, to admit such prisoner to bail, — it shall thereupon be the duty of such committing Justice or Justices to transmit without delay to the office of the Clerk of the Crown, closed up under the hand and seal of one of them, a certified copy of all informations, examinations and other evidences touching the offence wherewith such prisoner is charged, together with a copy of the warrant of commitment, and that the packet containing the sa ne, shall be handed to the person applying for the same in order to such trans- mli'sion— and it shall be certified on the outside thereof to n ii BAIL. 77 I shall be on thereof, 5(1, and the ;dge of the it down in req\ure bail ;ase of bail- writing, and jgnizance to 5 manner as laminations, nd cause the the Court, in ening of the ,\ for trial by ) the prisoner the commit- er Majesty's |of the Judges •eacc, for the fined, to admit ,e the duty of nsmit without tvn, closed up certified copy her evidences |ner is charged, imitment, and be handed to to such trane- iteide thereof to contain the information touching the case in question, — 4- and 5 Vic, c. 24-, s. 5. The latter part of this section of the Act cannot how- ever be understood to apply, where the Justice or Justices may have previously transmitted to the Clerk of the Court '% in which the trial of the accused is to be had, all the. examinations, informations, bailments and recognizances, taken by them relative to the offence in question ; all that they can certify upon receiving the notice mentioned, is, that they had so transmitted the several documents in question as by law required. It is also enacted that if any Justice shall neglect or offend in any thing contrary to the true intent and meaning of the provisions therein contained, it shall be lawful to the Coiut to set such fine on every Justice as it shall see fit, — i and 5 Vic. c, 24, 5. 7. It cannot iiere fail to be observed, that by this Act, a great latitude is given to the Justice?, either to accept or refuse bail in the cases brought before them, as by the power given to two or more of them to judge of the weight and credibility of the evidence adduced against a prisoner, and even to hear evidence on his behalf, few cases of felony can occur, where an offender might not be admitted to bail. As the power here given is great, so ought it to be exercised wilh the greater discretion. Justices, while bound to protect the liberty of the subject, and to prevent oppression, ought still to be watchful that great offenders do not escape the public justice, and to admit none to bail for crimes that endanger the public safety. In the exercise of a discretionary power, it is difficult to lay down specific rules for the direction of Justices, — tb^y miist be guided by the evidence before them, the character of the G2 78 BAIL a. V i accused, and any circumstances that may call lor the discreet cxerci:^c of their autliority. As from the nature of the investigations had hefore them, the detention or liberation of the accused must in the first in.-tance depend, the safer course for the Justices would be in crimes of any magnitude, should doubt even arise as to the extent of culpability of the accused, to adhere to the old rule as closely as they can, and instead of entering upon a minute discussion of the evidence either I'nv or against the prisoner, to leave it to the .Th Iges of the Superior Courts to deter- minf' the question of bail, and to avoid the possibility of reflec on, that through tlieir means a notorious oflender had escaped, by having been imprudently admitted to bail. There are certain cases where it is said that Justices ought not to bail — as in treason, whether relating to the coin, or more immediately affecting the Oovernment, or the person of the Sovereign — in murder — in homicide, if the prisoner is clearly the slayer, and not merely suspected to be so — but should it appear to have been by misad- venture, or in self der*;iice, the prisoner may be liberated on bail,— i ol Comr2rS.—^ Hale. 139. In all felonies, but more especiaily those of a more aggravated nature, such as burglary, sacrilege, robbery and the like, bail ought not to be received by the Justices, unless the circum- stances or suspicions against the prisoner are so slight or • uncertain, that his detention in gaol would be harsh and unjust. The cases in which the Justices ought not to hesitate in admitting a party to bail, are clearly poinled out — as when persons of gooc' fame are charged with bare suspicion of any felony— persons charged with small or petty larceny, if they have nut already been convicted, or been guiliy of ;h !^^ BAGAMr. 79 lor the J nature Uion or depend, esofany extent of d rule as a m\nute } prisoner, s to deter- issibUity of us oflender tied to bail . al Justices iting to the ernment, or homicide, if y suspected by misad- je liberated all felonies, atcd nature, le, bail ought the circum- e so slight or >e harsh and SMTiilar oflenccs — persons accused of sundry trespasses, where liie or members come not in question — also for assaults or other offences below felony — unless in any such case the right of bail be excluded by some special Act of the Legislature. But in cases of affray and violent assiults, where a dangerous wound has been given, from which death may ensue, there the guilty person ought not to be bailed, until it shall be ascertained, that the wounded pany is out of danger, — 1 Hawk. 6. 1. c. 63, s. 19. RECOGNIZANCE IN BAIL — SEE RECOGNIZANCE. BENEFIT OF CLERGY SEE CLERGY. BIGAMY. Bigamy is the offence of marrying a second wife or iiusband, during the lifetime of the first — or of having two wives or husbands at the same time, — -i Bl. Com. 163. — 1 East. 1. c. 464. By Act of the Provincial Legislature of the 4 and 5 Vic. c. 27, s. 22, this offence is declared to be a felony, and l)unishable by imprisonment and hard labour. It is how- ever provided that nothing in that Act contained shall extend to any second marriage contracted out of this Pro- vince, by any other than a subject of Her Majesty resident in this Province, and leaving the same with intent to commit the offence. Nor to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by ^, IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 KilM |25 |M "^^ iiiimb iM 12.0 Its "^ ^ ^> 7 Fhotogmphic Sdenoes Corporalion 93 WMT MAIN STRUT WIUTIR.N.Y. I4SM (7U)I71.4S09 ^ -•*-- \ <\'- v\ .^ fi ;\ \ 5* 80 BIGAMY. audi person to be living within that time. Nor shall extend to any person, who at the time of such second marriage shall have been divorced from the bond of the first marriage. Nor to any person, whose former marriage shall have been declared void by the sentence of the Court of competent jurisdiction. The ministry of the Justice of the Peace in regard to this offence, as in all other felonies, may be required to receive the necessary informations — grant the necessary warrants — take the neoessaiy examinations of the accused and the witnesses — and all necessary recognizances of bail — as the case may require. Information for Bigamy. District of ) Information of A. B., in the Parish of ) in the said District, yeoman, taken before me, W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District. The said A. B. being duly sworn, deposeth and saith, that C. D., late of the Parish of in the said District, yeoman, on the day of one thousand eight hundred and- at the Parish of- in the said District, (or wherever ihe fimt marring was had) did marry one E. F., of the said Parish of spinster, and her, the said E. F., then and there had for his wife. And that he the said C. D. afterward^•, to wit, on the day of of the year in the said Parish of • feloniously did marry and take to his wife, one G. H., spinster, the said 3r shall second d of the marriage e of the regard to quired to lecessary » accused ;ances of BRIBERY. 81 E. F., his former wife, being then living, against the form of the Act in such case made and provided. Sworn at in the said District, th's day of 18 (Signed,) A. B. , before me. (Signed,) W. R., J. P. Upon this information the Justice will issue his war- rant in the usual form (stating in it the matters set forth by the information,) to apprehend the party accused, and when brouglit before him, will pursue the directions of the beforementioned Act, s. 24, s. 1 and 2., touching the exa- mination of the party and the witnesses. Parish of , yeoman, re, one of Peace, in and saith, in the said . — one rish of • t marring ish of d there had afterward!', )f the year niously did ter, the said BEASTS, BIRDS, &C. The SteaUngof any Beast or Bird in a state of confine- ment, is a misdemeanor by Act 4< and 5 Vic. c. 25. s. 30, and on summary conviction before a Justice of the Peace, the offender may be fined, and also condemned to pay the value of the beast or bird stolen. See forms of Conviction, in the Act. BRIBERY. Bribery is the receiving of any undue reword by any j)erson whatsoever, whose ordinary profession or business relates to the administration of public justice — or who isin any official situation, in order to influence his behaviour in office, and incline him to act contrary to the known rules of honesty and integrity ; the person who gives the bribe -1 . I.W

d into the charge and custody of C. D. of the same place, common carrier, a certain package of goods, the property of said deponent, containing sundry pieces of cotton, linen and woollen goods, (or as the case may be) of great value, viz., of the value of pounds, on the promise and under- taking of the said C. D. for a valuable consideration safely to carry and convey the said packages to and there to deposit and leave the same with one J. G. That afterwards, to aforesaid, at — wit, on the day of in the said District, while the said package was under the care and custody of the said C. D. to be carried and conveyed as aforesaid, he, the said C. D., did feloniously break, tear, and cut open the said package, and did feloniously extract, steal, take and carry away therefrom, sundry articles contained in the said package, viz. three pieces of linen goods of the value of three pounds, three pieces of cotton goods of the value of two pounds, and one piece of woollen goods of the value of five pounds, to the great damage of this deponent. Sworn at in the said -x District, this day of f 18 — , before me. s (Signed,) A. B. (Signed,) W. R., J. P. The proceedings on this information are the same as in any other felony. CATTLE. By Ordinance of the Governor and Council of the 2 Vic. c. 2. s. 1 1. amended and made permanent by Ordinance of the 4 Vic. c. 47., it is enacted and ordained, that it shall be H2 90 CATTLE, lawful for any Justice of the Peace to commit any per- son or persons being convicted before him, by his own view, or by the oath of one or more credible witnesses, or by his, her, or their confession, of overloading, over driving, or otherwise ill treating any horse, dog, or other animal, to the Common Gaol for any time not exceeding one calendar month ; and all Constables shall and may apprehend such person or persons, and bring him, her, or them, before a Justice of the Peace, to be dealt with ac- cording to the provisions of this Ordinance. By Act of the Provincial Legislature, of 4 and 5 Vic. c. 25. sec. 29. if any person shall steal any horse, mare, gelding, colt or filly, or any bull, cow, ox, heifer or calf, or any ram, ewe, sheep or lamb— or shall wilfully kill any such cattle, with intent to steal the carcase or skin, or any part of the cattle so killed, and by Act of 4 and 5 Vic. c. 26. sec. 16., if any person shall unlawfully and malici- ously Ar///, maim or woMne/any such cattle, he shall be guilty of felony, and on conviction, he shall be liable to imprisonment and hard labor at the discretion of the Court. As the information and other proceedings thereon, under this head, can refer only to the fact of feloniously stealing or maiming, &c., the usual forms may be observed. Information for maliciously maiming an ox. District op ) Information of A. B., of the Parish of ) ■ in the said District, yeoman, taken before me, W. R., Esquire, one of Her Majesty's Justices of the Peace in and for the said District. / CERTIORARI. 91 iny per- nis own /itnessee, ing, over , or other 3xceeding and may tm, her, or U with ac- and 5 Vic. lorse, mare, ifer or calf, ully kill any skin, or any I, and 5 Vic. J and malici- ^ he shall be I be liable to relion of the hereon, under ously stealing iserved. I ox. The said A. B. being duly sworn, deposeth and saith, that, on the day of instant, C. D.> of in the said District, laborer, did, at the Parish aforesaid {or place where the act was done,) unlawfully, maliciously and feloniously, main and wound, one ox of the value of five pounds, the property of the said deponent by cutting, bruising and breaking one of the legs of the said ox, to the injury of the said deponent, and against the act in such case made and provided ; — therefore prays justice. The warrant to apprehend or to commit, to be in the usual form, including the cliarge contained in the informa- tion. CERTIORARI. The Certiorari is a writ issuing out of the King's Bench, in the name of the Queen, directed to the Judges, Justices of the Peace, or Officers of Inferior Courts, com- manding them to certify, or to return the Records of a Cause depending before them, to thb end that the party may have the more sure and speedy justice before the Queen's Justices, or such Justice as uho shall assign, to determine the cause, — 1 Bac, Ab. 559. It requires no special law to authorize this writ, for it Is a consequence of all inferior jurisdictions of Record, to have their proceedings removable for the purpose of being examined by the Court of King's Bench, 1 Ld, Ray. 469. In this respect the proceeding by Certiorari differs from a right of appeal ; for the latter does not exist unless created by express provision, whereas the other lies of course unless expressly taken away by Statute ; — it is not pre- mmmmmmmmm ~--i-l-'-:i!r'j'^r^r --••■..*• =*,i"^ ■''".■: ^-^Y*'?'-'''.'"^"' n CERTIORARI. I vented by the words of the Statute empowering the Justices to he&rydind finally determine, — the effect ofthat expression being only, to make the determination of the Justices final as to matter of fact,— 2 Hawk., c. 27, s. 23, 3 Mod. 95. When a writ of Certiorari 'm applied for at the suit of the Crown, or by the private prosecutor, it issues of courde, and without assigning anv cause, because delay cannot be presumed, — 2 Hawk. c. 27, s. 27, 2 Term, Rep. 89. This writ is grantable in Term time by the Court, and in vacation by a single Judge, to a defendant, upon special application and cause shewn. By a Pule of Court 1 Ann. B. R. no certiorari, shall he granted to remove orders of Justices from which the law has given an appeal to the Sessions, before the matter be determined on the appeal, or the time for appealing be expired, because it hinders the privilege of appealing. But a defendant may wave his privilege in this respect, and apply for a certiorari without delay, — 1 Salk. 147, Paley. 217, Andr. 343. By the Stat. 13 Geo. 2 c. 18 s.. 5, it is enacted, that for the better preventing vexatious delay3 and expense occa- sioned by serving out writs of certiorari for the removal of convictions, &c., before Justices of the Peace, no writ of certiorari shall thenceforth be granted, issued forth or allowed, to remove any conviction, order, &c., made by any Justice, or Justices of the Peace, unless such certiorari shall be moved or applied for, within six calendar months next after such conviction, order, &c., and unless it be duly proved upon oath, that the party suing out the same hath given six days notice thereof in writing to the Justice or Justices, by and before whom such conviction, CERTIORARI m Justices :pression ices final lod. 95. [\e suit of issues of use delay 2 Terrn^ Court, and pon special lorari, shall which the ethe matter ippealing be ealing. But respect, and . 147, Paley. cted, that for xpense occa- le removal of ce, no writ of sued forth or Stc, made by uch certiorari lendar months ,d unless it be suing out the i writing to the ch conviction, order, &.C., shall be so made, to the end that such Justice or the parties therein concerned may shew cause against the issuing or granting the said certiorari. The six days notice must be given to the Magistrate previous to the applicatiorii for the rule to shew cause* The service of that rule, though more than six days be given upon it, is not a sufficient compliance with the act, — 5 T. R. 279, 281 . The want of such previous notice, is therefore a good cause to be shewn against making the rule absolute. Or even if the rule has been made absolute, and the writ issued, the Court will supersede it, on the ground that no notice was given previous to the moving for it. These restrictions, however, do not attach upon appli- cations on behalf of prosecutors, nor upon those made by the Attorney General ofllcially on account of a Defendant. — 15 East. 337.— 1 East. 298, 303. (a)— 2 Str. 1209. A further condition to De observed before a certiorari can be obtained by a defendant, is that of giving security for costs, &c. By the Stat. 5 Geo. 2 c. 19 s. 1, it is enacted that no certiorari shall be allowed to remove any judgment or order of His Majesty's Justices of the Peace, unless the party prosecuting such certiorari^ before the allowance thereof, shall enter into a recognizance with sufficient sureties before one or more Justices of the Peace, or before any Judge of the King's Bench, in the sum of fifty pounds with condition to prosecute the same at hia own costs and charges with cflect — and to pay all such costs as shall be taxed. And in ca^e the parly shall not enter into such recognizance, o. shall not fulfil the con- ditions, Justices may proceed upon such judgments or orders, as if no such certiorari had been granted. 94. CERTIORARI. vs ¥>' This writ is directed to iiie Justice or Justices by vviiotn the convieton was made. According to Mr. Serjeant Hawkints, 2 Hawk c. 27 s. 42, if a person who ought to certify a record dies, having such record in his possession, a certiorari may be directed to his executor or adminis- trator to certify it. This writ must be delivered to the Justice before the time limited for its return expires, or it will be of no avail. — 2 Hawk. c. 27, s. 64. But from the lime of its delivery, it supersedes the authority of the Justices below, and all subsequent proceedings are void, provided the necessary security has been given as required. — 1 Sulk. 143. If, before any certiorari is awarded, a warrant of distress has been made and delivered to the Constable, or person charged with the execution of it, who has detained the goods, he may proceed to £ell, for the certiorari under such circumstances has no operation upon the execution which was begun before it issued. Nor has the Court of King's Bench any power over the warrant so previously granted, 80 as to make a rule upon the Constable to return it. — 2 L. Raym. 990.— 1 Salk. 147. Writ of Certiorari to a Justice of the Peace, to return a conviction to the Court of K. B. District of ) Victoria by the Grace of God of the United — — > Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. (L. S.) ToW. R.,of in the District of Montreal, in our Province of Canada, Esquire, one of our Justices as- signed to keep the peace, and also to hear and determine divers felonies, trespasses and other misdeeds, in the said District committed. Greeting. CERTIORARI. 95 w\ioin erjeant (ught to session, idminis- fore tbe no avail. , delivery, 7, and all necessary 143. I of distress , or person jtained the under such ilion which iri of King's isly granted, :eturn it. — 2 Ice, to return I of the United land Ireland, 111 • If Montreal, in lur Justices as- land determine Ids, in the said We, being • 'ling for certain causes, that all and singu- lar the recoi. r conviction, of whatsoever trespasses and contempts against the Act of the 4 and 5 Vic. c. 26, inti- tuled, " An Act for consolidating and amending the laws " in the Province relative to malicious injuries to proper- " ty>" hy virtue whereof C. D., of the Parish of in the said District, laborer, is convicted by you, of hav- ing cut down and destroyed certain trees and shrubn, contrary to the said Act, {or for whatever the conviction was,) as said is, be sent by you before us, do command you, that you send all and singular the record of convic- tion aforesaid, with all things touching the same by what- soever name the said G. D.,may be named therein, before U3, under your seal, in our Court of King^s Bench, at in the said District, in the — — day of next, together with this writ, that we may further cause to be done thereon, what of right and ac- cording to law, we shall see fit to be done. Witness, the Hon. our Chief Justice of our said Court, at this day of one thousand eighthundred and (Signed,) M. and M., Prothonoiary. The manner of making the retnrn to the said writ is as follows : — On the back of the writof Certioraii inscribe. " The execution of this writ appears in the Schedules hereunto annexed,''^ (Signed) W. R., J. P. On a separate piece of parchment or paper (for although in England these returns are required to be made on parchment, yet in this part of this Province, they I 96 CERTIORARI. have generally been made on paper and accordingly received by the Courts) draw up the following retiyn. District of ) I, W. R., Esquire one of the Justices of ■■ ) our Sovereign, Lady the Queen, assigned to keep the peace in and for the said District, and to hear and determine divers felonies, trespasses and other mis- demeanors in the said District committed, by virtue of this writ to me directed, do under my hand and seal, certify and return unto Her Majesty in Her Court of King's Bench, the record of conviction of which mention is made in the same writ. In witness whereof, I, the said W. R., Esquire, have to these presents set my hand and seal. Given at in the said District, this day of one thousand eight hundred and (Signed) W. R., J. P. [Seal] The conviction being ready, drawn up in due form under the hand and seal of the Justice, this return should, with the conviction, be attached to the writ of certiorari and bound together, by means of some tape or silk taste passing through the whole and the ends united under the seal of the Justice. The returns so prepared will then be folded up, put under cover, sealed and addressed to the officer of the Court out of which the writ issued, — gene- rally the Prothonotary of the Court of the King's Bench — and on some corner, on the back of this packet, endorse as follows. . A. B., &c. ^ vs. i Certiorari and Return. C. D. ) Forword this return by some sure or regular conveyance to its destination— -and take a note of what you have thus CHALLENGE TO FIGHT. 97 rdingly vgrn. jljces of assigned d 10 bear her mis- tue of thia il, certify of King's )n is made lid W. R., , and seal. ,n due form turn should, of certiorari or silk taste ed under the •cd will then dressed to the isued,— gpne- g's Bench— Lct, endorse as done, and the mode and manner of doing it, in your Jour- nal, or Memorandum Book, formerly mentioned. It is sufficient for the Justice to return the conviction in due form, without returning also the information, exami- nations and affidavits taken in the proceedings had before him, — ^these, although original documents,(and which may be taken down in his register or note book above noticed) remain in the possession of the Justice, and ought to be preserved by him, as they may be called for upon some future occasion. As the proceedings on the conviction, aAer it has been returned into Court, do not regard the Justice, except Tn so far as he may have to comply with any order of the Court thereon, I shall not here notice them, as they do not fall within the contemplation of the present manual. CHALLENGE TO FIGHT. It is a very high offence to challenge another, either by word or letter, to fight a duel, or to be the messenger of such a challenge, or even barely to endeavour to provoke another to send a challent.e or to fight. — 1 Hawk, c. 63 «. 3.— 4 5/. Com. 150. In such cases the parties in the first instance may be bound over to keep the Peace, and may be prosecuted before the Court for this offence, and should death ensue by duel, to be indicted for murder. lar conveyance you have thus Information for sending a challenge. i-i.. 98 CHALLENGE TO FIGHT. District of ) Information of A. B., of the Parish of ' ) in the said District, gentleman, ^ taken before me, W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District. The said A. B. being duly sworn, deposeth and eaith, that on the day of instant, at the Parish aforesaid, C. D. of — in the said District, gentleman, did unlawfully provoke and excite him, the said A. B., unlawfully to fight a duel with him, the said G. D.., and that he, tlie said C. D., did then and there write, or cause to be written, a certain challenge in the name of him, the said C. D., in the form of a letter, directed to the said A. B., which said challenge was to the tenor and effect following, that is to say (here set forth the letter) and which said letter the said C. D., did then and there afterwards send to the said A. B., against the peace, &c., and therefore the said A. B., prays justice in the pre- mises, — (^should the challenge be sent by verbal message^ the same form may be followed^ varying the mode of send' ing the challenge) Sworn at in the said District, this day of 18 — , before me. (Signed,) A. B. (Signed,) W. R., /. P. The party being brought before the Justice, upon his warrant, may be bound over to keep the peace for a certain limited time, or until the next General Quarter Sessions of the Peace, as he may see fit. If suflicient sureties are notfoundjthe party may be committed to the Gommon Gaol until Buuh sureties are found, or he be from thence other* wise delivered by due course of law. 'I CHEATS. 99 aritjh of ntleman, e, one of Peace, in and eaUh, nt, at the id District, e him, the n,the said n and there ienge in the ter, directed Lo the tenor Ih the letter) ;n and there ; peace, fi^c., in tlie pre- bal message f modeofsend- ,)A.B. itice, upon his ce for a certain ter Sessions of nt sureties are Common Gaol thence other- CHEATS. CheatSf which are punishable by the common law, may in general be decribed, to be deceitful practices in de- frauding, or endeavoring to defraud another of his known right, by means of some artful devise^ contrary to the plain rules of common honesty. — 1 Hawk. c. 71. sec, 1. A Cheatf by the statute, is a person who falsely and deceitfully obtains, or gets into his hands or possession, the money, goods, chattels, jewels, or other things of other persons by colour and means of false tokens^ or counter- feit letters made in another man's name. — Stat. 30. Geo, 2. c. 24.. By Act of the Provincial Legislature of 4 and 5 Vic. c. 25. sec. 45. If any person shall, by any false pretence, obtain from any other person, any chattel, money, or val- uable security, with intent to cheat or defraud any person of the same, every such offender shall be guilty of a mis- demeanor, and being convicted thereof, shall be liable at the discretion of the Court to imprisonment and hard labor. *^ The words of the above Act would seem to extend to every case of fraud, where a party, either in his own name and on his own account, or in the name, or on the account of some other person, falsely obtains money or goods from another — as by falsely representing himself to be in a situation in which he is not — or falsely representing any occurrence that has not happened — to which persons of ordinary caution may give credit — the ingredient of the offence being the obtaining money, &c., by a falu pretence with an intent to cheat or defraud* 100 ' CHEATS. Information for obtaining goods under a false pretence. i^bf the P>rifh of District of ) Informatio taken bflfor^lJ^^A^^/^ Her Majesty's Justices of the Peace, and for the said District. The said A. B. being duly sworn, deposeth and saith, that on the day of instant, at the Parish aforesaid, C. D., of in the said District, labourer, did knowingly and designedly, by false pretences, that is to say, by alledging and pretending that he the said C. D., was the servant of one J. G., of in the said District, Esquire, and was directed and autho- rised by his said master to demand and obtain from the said A . B. one keg of butter, and one box of soap, for and on account of the said J. 6., {or any other false pretence whatever it may be) by means whereof the said C. D. did obtain and get into his possession, one keg of butter, of the value of three pounds, and one box of soap of the value of two pounds, of the goods and chattels of the said A. B., he the said C. D. not being at the time the servant of the said J. G., nor by him the said J. G. directed or authorised to demand and obtain from him, the said A. B., the said keg of butter and box of soap, as by the said C. D. it was falsely pretended, contrary to law. Wherefore prays justice. '11 a % ■ ■ Sworn at District, this — - in the said — day of 18 — , before me. (Signed,) A. B. (Signed,) W. R., J, P, CHURCH. 101 and saith, ant, at the id District, ) pretences, hat he the I and autho- in from the of soap, for other false reof the said ,one keg of 5 box of soap id chattels of g at the time e said J. G. from him, the )f soap, as by vtrary to law. 5d,) A. B. Warrant to apprehend on the above charge, to be written in the usual form, grounded on the charge as stated in the information. Thi^ being a misdemeanon, the party is entitled to be admittfltd to baii-^if such l)e'. 4, c. 28, ;t of 4 and >f the 4 and [Jurrency of )n shall 00- Dr any thing lin of coarse jmbling any person shall ilse or coun- of the gold, e said Act, person shall e gold, silver Ut, any false le gold, silver knowing the ihall be guilty e liable to im- prisonment and hard labour— and if such person shall afterwards offend in like manner, he shall be guilty of fe- lony, and punished accordingly. By sec. 13. If any person shall form, make, cut, sink, stamp, engrave, repair or mend, or shall assist in forming, &c., or shall have in his or her possession, except for some known and lawful purpose, any die, plate, press, tool or instrument, paper, matter or material, of any kind used or designed for the purpose of counterfeiting or imitating any coin which shall be lawfully current in this Province by virtue of this Act, — or any Bank note, bill, note or writ- ing, purporting to be a Bank note in circulation in this Province, or in any of the United States of America ad- joining this Province, — such person shall be guilty of a misdemeanor, and shall be liable to punishment accord- ingly. And the proof that such die, plate, press, tool or instrument, paper, metal or material, was formed, made, cut, sunk, stamped, engraved, repaired or mended by, or was in the possession of such person, for some lawful pur- pose shall be upon him or her. By sec. 14. It is declared lawful for any Justices of the Peace upon complaint made on oath before him, that there is just cause to suspect, that any person or persons, is or are, or hath or have been concerned in making, coun- teifeiting or imitating any such coin, bank note, bill, note or writing as aforesaid, by warrant under his hand, to cause the dwelling house, room, workshop, outhouse or other buildings, yard, gardens, ground or other place be- longing to such suspected person or persons, to be search- ed for any counterfeit coin, &c. And if any such, or any die, plate, press, &c., as aforesaid, shall be found in the such possession or custody of any person whatsoever,it shall 106 COIN AND CURRENCY. r(. be lawful for any person or persons discovering the same to seize and carry the same forthwith before a Justice of the Peace, having jurisdiction within the locality in which the same shall be seized, who shall cause the same to be secured and produced in evidence against the offender. By sec. 15, The person to whom any suspicious gold, silver or copper coin shall be tendered in payment, may cut or break the same, and if found counterfeit, the person ten- dering the same shall bear the loss, otherwise the person breaking it, shall receive a sum proportionate to its weight. And if any question arise, whether such coin be counter- feit, it shall be determined by any Justice of the Peace, who if he entertain any doubt in that behalf, may sum- mon three skilful perisons, — the decision of a majority of whom shall be final. Information in order to obtain a warrant to search for Counterfeit Coin, &c. District of ) Information of A. B. of the Parish of — — — S , in the said District, yeoman, taken before me W. R., Esquire, one of Her Majesty's Justice of the Peace, in and for the said District. The said A. B., being duly sworn, deposeth and saith^ that he has just cause to suspect, and doth suspect, that J. F., of — — in the said District, pedlar, and J. G. late of the same place, silversmith, are concerned in the making and counterfeiting dollars and half dollars, to the similitude and likeness of silver dollars and half dollars of the lawful current money of this Province, in a certain COtN AND CURRENcr. 107 le same iBtice of n which me to be ender. ious goW» t, may cut erson ten- he person its weight. )e counter- the Peace, may sum- majority of to search for arish of eoman, taken , one of Her ce, in and for dwelling house, workshop, and other out buildings there* unto attached, now in the occupation of the said J. G., at ■■ in the said District. And this deponent further saith, that he hath at different times seen in the hands of the said J. F., and of the said J. G., at — — -^ aforesaid, and particularly on or about the day of last past, sundry pieces of counterfeit coin of the similitude and likeness aforesaid, and hath also seen as well the said J. F. as the said J. G. at different other times at — aforesaid, tender in payment and offer to pass in lawful current coin, sundry pieces of counterfeit coin of the similitude and likeness aforesaid, (^and other causes of suspicion may be stated as the case my be.) Sworn at — in the said District, this day of 18 before me. (Signed) A.B. (Signed) W. R., J. P. This information may be varied according to circum- stances, so as to apply to any other of the objects contained in the 11» Section of the above act. Search warrant on the above information. District of ) To any Constable, Officer of Police, or ) other Officer of the Peace in and for the said District and to each and every of ihcm. Whereas A. B. of the Parish of in the said District, yeoman, hath this day made oath before me, W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District, that he hath just cause to suspect and doth suspect, that J. F. of in the said Dis- trict, pedlar, and J. G. late of the same place, silversmith, :-.' ■'V ] VI , i ^g COIN AND CURRENCY. .„«'""" '^'^Lw in he po^esaon of the Ung»U,ereu„ton«aoh^J-»j,J,,, ^hese a« ^id J. G. »t -----;;: *;« to command and reqmto d^eretore in Her Majesty nam ^^^^^ ^^ you, and each and o^'^-^Z daytime into the sa.d 'p„;er assistance, to en«r m Ae J ^^^ ^_^,^^. ^^ LSing house, w"'"*"' occnpationoC the said J. G-, „„,„ attached, ■>»«'" llHrsuch counterfeit dollars ,„d there diligently .osea«:h-> ^^ ,^^^^^^^^ ,„a and halt dollars, and for au ^^^^ ^_^^ ^„„„. UriaU for "«f '^^.X^ Tnd f -J »' *»- *"" ^rfeit dollars and ha» ;^^ .„ (.ring the same so be found upon such «"«'', ^ ^^^ j. G. before me, or found, and "''"''^'J^tltv, Justices of the Peace, in and «„e other of Her W J"»^ „a „„„„,erfe.t f„, the said Distnct, tha the sa ^^ ^^ ,,„ dollars or half dollars so found m^> ^^^^^^ ^^ ^^^ ^., -'•»r\""'G!::nti;m;hand.ndseaUt---- complaint, uiven u _ j.yof- —one in the said District, lh« -—____'. thousand eifht hundred -d ^ ^^ ^ ^ ^^^^^ 3 . • „ Act section H, says notlung Although the '""^^"^^^^^Z whose custody any .hout apprehending ' « 7„ "^^ents may be found, counterfeit money or com ng .m, _^ ^^ ^^^ ^^„ ^, i„ every case «'''«'^^° ^„ h, „„„e to him a. U the "««r'';°"',;ts pLJn of what constitute. COIN AND CURRENCY. 109 of dollara 39 of silver oin of this r) and other jsion of the These are and require cesaary and into the said ildinga tliere- e said J. G.J terfeit dollara elements and ilse and coun- of these shall ,g the same so . before me, or J Peace, in and and counterfeit jured as by law wer to the said eal at I one . [Seal.] 14, says nothing ;o8e custody any us may be found, on of any person I home to him as jfwhatconstitutei ofthe goods stolen, the implements for coining and the like, it is sufficient cause for bringing that person before the Justice, to account for such possession. This principle cannot be doubted — and one strong reason is, that a guilty person finding he was discovered, if left at liberty after such search, might easily escape before another warrant could be procured against him. If upon the search made, any tools or implements such as described are found, the Justice ought to take the examination of persons of competent knowledge as to the use and fitness of such tools or implements for coining — and also the examination of the person in whose pos* session such tools or implements were found, so as to give him an opportunity of shewing he had the same far a lawful purpose. This offence being considered as a misdemeanor, the person in whose possession, the counterfeit coin, or im- plements for coining have been found, is entitled to be bailed, and if good and sufficient bail be offered, a recog- nizance for that purpose should be prepared, and all the witnesses bound over in the same manner, to appear and give evidence at the Court, where the trial should be had. If on the contrary the party offers no bail, or insuf* ficient bail, he must stand committed until such trial can be had. Warrant of commitment in such case. District op ) W. R., Esquire, one of Her Majesty's — — — ) Justices of the Peace, in and for the said District. K MnkJiiiHaamm '• 110 COIN AND CURRENCY. > ( ■ To any Constable, Officer of Police, or other Officer of the Peace, in and for the said District, and to the Keeper of the Common Gaol in and for the said District. These are in Her Majesty's name to charge and com- mand you the said Constable, Officer of Police, or other Officer of the Peace, and each and every of you, forth- with to convey and deliver into the custody of the said keeper, of the said Common Gaol, the bodies of J. F., of ■ in the said District, pedlar, and of J. G., late of the same place, silversmith, charged on oath before me the said Justice with the suspicion of being concerned in the making and counterfeiting silver dollars and half dol- lars to the similitude and likeness of the lawful current coin of this Province, — and whereas upon a search war- rant issued in this behalf, certain tools and instruments fit for the purpose of making, coining and conterfei ting such false and counterfeit coin, have been found in the dwell- ing house and workshop of the said J. G., at — — aforesaid, in the possession of the said J. G., without his being able to shew that the saiJ tools and instruments were in his possession for any lawful purpose. And the said J. F., and J* G., not having produced any good and sufficient sureties for their appearance to answer to the said complaint, the said keeper of the said Common Gaol is hereby commanded to receive into his custody the said J. F. and J. G., and them safely keep until they shall be thence delivered by due course of law, or until such sufficient sutetiet) shall be given. Given under my hand and seal at in the said District, this — day of one thousand eight hundred and (Signed,) W. R., J. P. [Seal.] COIN AND CURRENCY. Ill Officer of nd to the f the said e and com- •e, or other you, forth- of the said sofJ. F., of f. G., late of U before me concerned in and half dol- lawful current a search war- instruments fit nterleiting such a in the dwell- ., at ' G., without his ind instruments ,ose. And the ed any good and answer to the said Common 10 his custody the p until they shall iw, or until such uniler my hand ct, this ' mdredand- p. [Seal.] Information for uttering counterfeit coin. District op ) Information of A. B., of the Parish of ■ \ _______ in the said District, yeoman, taken before me, W. R., Esquire, one of Her Majesty's Justices of the Peace in and fur the said District. The said A. B. being duly sworn, deposeth and saith, that on the — — day of instant, at the in the said District- Parish aforesaid, C. D. of pedlar, unlawfully and deceitfully uttered and paid to him, the said deponent, one piece of false money, made and counterfeited to the likeness and similitude of the lawful current coin of this Province, called a half dollar, the said C. D. then and there well knowing the said piece of money to be false and counterfeited. Sworn at — District, this — '- 18 — , before me. (Signed,) W. R., J. P. in the said "s — day of ^ s (Signed,) A. B. The warrant to apprehend in this case to be in the usual form, containing the charge as stated in the infor- mation. The offender in this case is entitled to be admitted to bail, and the course to be observed thereon will be the same as in the preceding case. Should no bail, or insuf- ficient bail, be offered, the commitment to gaol will be for the want of such bail, stating the charge against the accused to be made on oath as contained in the infor- mation . ^0itm^^- .^.*«««««^' 112 COMMITMENT. COMMITMENT. A CommUnent, .mpl.es the sen 8 „„ere ty ,he warrant or order of any C» "' ^^^J„.,.h . crime, .h'e party has bee,, c^nv.c^''.;-^ J^^^^^ „,,,^a A J„s.,ce .s bound 'o ^^ „„, bailable, as well before him w.th off^"'^ "" . ^^i, f„ oflences which as all persons who "^^leoU" "ff-^^. fade ease is m. P™^f ^^^,, ,U B. and C 50. „„t against them.-2 mwK. ^ .^ ^„„„g_ Anorderforcomm.tmenttop.son ^^^ ^^^_^_ ^^ .„d may be drawn e;'^ »,f X;„,,es i., expressing i„ .he name of *».*8-«'; ^^ ^^^ „„.. be directed Ids office of »»*°"'y'-*7 '," „hose custody the per«.n ,0 fl.e gaoler, or other Pe-"" »» J ,„„, „„, seal of the is committed, and must be unde. ^ .,_ Justice. It must state *» ~'',t „uted, if Known .be name and surname of hep y _^^ _a„d if not k'""'"-^ 'r hV,r and thelike-and stature-comploKion-colouj oj h„^ » , ^ ,, ,„ aid-that he refuses to t^l_^^^ ^^^^ ^^.^^ ^^ ,, charged on oath-ana ^ ■^^ „„st conclude, charged. " *^ ^f* '' '" 'f « If the offence is COMMITMENT. 113 I to prison ate, where h a criaie. ns charged b\e, as well nces which case is made t. and C. 50. 36 in writing, } Queen, or it, expressing ist be directed ,dy the person ind seal of the of making it— tted, if l^nown ,on— his age— I thelilie-and ^e,— that he is I which he is must conclude, f the offence is lent should be— ■elies, or vfiUl he |^._1 Hale. 557. nmary conviction al, subject to the binty. This com- mitment must shew before whom the conviction was made, and, where it is in pursuance of a special authority, the terms must be special and exactly pursue that authority. It must also state, that the offender was con- victed of the offence, and correspond in every particular with the conviction. A commitment for punishment, must state the precise time of imprisonment, and also the manner, — as whether it is to hard labor or correction. A commitment for want of distress, must sfate that first, and where the offender is to be discharged upon any condition — as payment of a penalty — the giving security — or the doing of some other act, such condition must be expressed in the commitment, because on the compliance therewith, the party is entitled to his immediate discharge. Whenever a Justice of the Peace is empowered by any statute to bind a person over, or to cause him to do a certain thing, and such person being in his presence, shall refuse to be bound, or to do such thing, the Justice may commit him to gaol to remain there till he shall comply, — even where the party is a married woman, — 2 Hawk, c, IG, s. 2,— Hale, P. C.|282.— 3 M. and S. 1. Where a statute imposes a penalty, and on failure of sufBcient distress directs that the offender shall be com- mitted to prison for a certain period — if the offender is convicted of a penally, and has effects sufficient to satisfy only a part, the effects ought not to be taken under the warrant of distress, but the imprisonment should be resorted I to, for the law never intended a man should suffer both [punishments upon one conviction, fiut in such case, the Magistrate cannot commit the party, until he has ascer- jtained the want of sufficient goods and effects to satisfy the K2 "^w*. A I COMMITMENT. -PaUy. 184.-1 Stra. 710. ^^^^^ , „,„„ of U-,s said, '''»';:'' ;*:„.l«e,s upon *ew«ran.^^ iV«;/a Bwo, ot no sultto'en glatement of rJ«««ce should make » ■^""','';,*°tee«cutionof.he 1 factthat the Officer ^^-f/^* „ .hereto, .hat .he warrant of ^'^'""J'^ "''Z.\«i effeCs «> «»«»fy ** party had not sufficient eoods an ^^^^ ^^ Tnount of the «=— oXutc' ^."ted .» .»« Corn- order, that the par.y bef"*""* '" j^e time limited by „on Gaol, to be i-xP'^ j^J ".^aemnation he paid, taw, or un.il the ^'^'^-^'^'^^^ZoM be n.orereguto, This would he «""-;XX,n tance conUined all the pun- if the conviOon m.he 6 sUn ,^^^^^^ ^ ^ i,l,„ent tha. .he law .nfl.o.B, or .h ^^^ _p„,„y, igl. imposed on the off«»^«--' ' , „„rds are spoken of Where "o"'™^'"""'™?! eKCOUlion ofhis office anrf . Jnstice of the Peace •» *\f^ 7omm« ,he part, for ,„A«pr«e»«"-ms*ahe.ay^^^^3_ a contemp.,-2. Safe «"• ^„^i„ fte „ *e <=— »,;^;;;r;/^^^ .sin the case special nature of the ^ ""^ ' ,,„„^ „, „thet house with the ..me »"'^ P'"V c„ns.iluting the misdemeanor particular -'^^^^^^^^X^'^^' -"""»""' '" 'r i ought to be «'»»'»-* "^^ly, i „.Aing the particular ^^ every ^ff''""^ "''";'^' eoUtutes 4e .ubstano. act or circumstance, wmcn efi.. ^ COMMITMENT. he warraBt 3 execution I Mod. 545. a return of the warrant, Statement of ecufionofthe etc, that the to satisfy the pon enter an i to the Com- ime iiittited by lalion be paid. )e more regular, ned ail the pun- intended to be Pa/ey,l84(. ds are spoken of of his office and »mvt the party for 63. must contain tbe j, as in the case ge or other bouse ; in the case of ittels of • misdemeanori—^^^ the misdemeanor il advisable to de- irking the particular lutes the substance But a Comitment for high treason, — on suspicion of treason generally — or for treasonable practices, witho' ' stating any over act, or other particulars of the crime is sufficient.— 2 Hawk. 6. 2. c. 16. sec. 16.— 7. T. R. 736. — ] Sira. 3 and 4>. So also a commitment charging the party generally with insulting a Justice of the Peace in the execution of his office without specifying particularly what the party said, or did, is sufficient. The commitment however ought to specify the /me of imprisonment. — 2. Barn 155. — Hawk, B,2. c. 16. sec. 16. — 5. B. and A. 895. It is safe to state on the Commitmeniy although not necessary, that the party has been charged upon oath. — 1. Leach. 167. Nor is it necessary to state any part of the evidence ad- duced before the Magistrate, or to shew the grounds on which he has thought fit to commit the offender, — 2. Wils. 158. But it is necessary to set forth the particular crime alleged against the party with convenient certainty. —14. East. 70. 2. 3. Wherever the commitment is in nature ot punishment ^ the time of imprisonment must be stated, for if it is until the party be discharged by due caurse of laWf it will be bad.— 5 B. and Jl, 895.-7 Taunt, 68.— j5. and A, 218. Commitment— general form of. District of } W. R., Esquire, one of Her Majesty's ————— ) Justices of the Peace, in and for the said District. 116 COMMITMENT. To any Constable, Officer of Police, or any other Offi- cer of the Peace in and for the said District, and to the keeper of the Common Gaol of the said District. These are to command you, the said Constable, &c., and each and every of you, in Her Majesty's name, forth- with to convey and deliver into, the custody of the said keeper of the said Common Gaol, the body of C, D., of the Parish of in the said District, labourer, charged on oath, before me the said Justice, with having, on the day of instant, at the Parish afore- said, feloniously stolen, taken, and carried away, divers goods and effects of the value of five pounds, the property of A. B., of in the said District, yeoman, (or of whatever other offence the party may be accuse J, ) And you, the said keeper of the said Common Gaol, ?re hereby required to receive into your custody, the said C. D., and him safely keep in the said Gaol, until he shall be thence delivered in due course of law. Given under my hand and seal at in the said District, this day of one thousand eight hundred and - W. R., /. P. [Seal.] Commitment for want of bail, on a bailable offence. District of ) W. R., Esquire, one of Her Majesty's •—— ) Justices of the Peace, in and for the said District. To any Constable, &c., &c., and to the keeper of the Common Gaol in and for the said District. These are to command you, the said Constable, &c., &c., and each and every of you, in Her Majesty's name, forthwith to convey and deliver into the custody of the COMMITMENT. W er Offi- d 10 the ,e, Stc, !, forth- the said )., of the charged g, on the sh afore- y, divers property )man, {(^ 'd,) And re hereby :. D., and be thence r my hand nd- lEAL.] offence, r Majesty's for the said :eeper of the istable, &c., jesty's nan\e, ustody of the keeper of the said Gaol, the body of C. D., of the Parish of in the said District, labourer, charged on oath before me the said Justice, with having on the day of ■ — last, at the Parish aforesaid, violently asisaulted, beat and bruise J, one A. B., of in the said District, yeoman, without any law- ful cause or provocation. And you, the said keeper of the said Gaol, are hereby commanded to receive into your custody the said C. D., and him safely keep in the said Gaol, for want of su£Bcient bail, until he be there delivered by due course of law. Given under my hand and seal at — in the said District, this day of one thousand eight hundred and (Signed) W. R., J. P. [Seal.] Commitment by a Justice of the Peace for insulting him in the execution of his office. District of ) W. R., Esquire, one of Her Majesty's \ Justices of the Peace, in and for the said District. To any Constable, &c., &c., and to the keeper of the Common Gaol of the said District. These are to command you the said Constable, &c. &c. and each and every of you, in Her Majesty's name forth- with to convey and deliver into the custody of the keeper of the said gaol, the body of C. D. of the Parish of in the said District, laborer, charged by me the said Justice, with indecent and contemptuous behaviour to- wards me, he, the said C. D., having this day at in the said District, insulted and obstructed me the said JtiSiKaitiiii&iS^. .c ■'-^"'- ■"*- 118 COMMITMENT. f: ;- I' i : ■ 'i i ' i ' 1 t i' 1 Justice, in the due execution of my ofBce as a Justice of the Peace as aforesaid, by reason whereof, I, the said Justice, have this day at aforesaid, adjudged the said C. D. to be guilty of a contempt towards me in the execution of my said office, and have condemned him to be committed and be confined in the said gaol for the space of one calendar month. And you the said keeper of the said gaol are hereby commanded to receive into your custody the said C. D. and him safely keep in the said gaol, for the space of one calendar month from this day, and for so doing this shall be your sufficient warrant. Given under my hand and seal, at in the said District, this day of one thousand eight hundred and . (Signed) W. R., J. P. [Seal] When the commitment is made for a specific period or punishment for insulting the Justice in the execution of his office, it would seem right that he should draw up a conviction, stating the offence, and adjudging the offender to the punishment to be inflicted, as this would serve as a ground for issuing the warrant of commitment, fiut should the Justice see fit, instead of adjudging the offender to imprisonment for a limited time, to order him to give security to keep the peace, — the commitment would in that case conclude thus, — " and him safely keep in the said gaolj until he shall Jind good and sufficient sureties to keep the peace for calendar monthSf or 1/9 thence discharged by due course of law.'*^ V. COMMITMENT. 119 uslice of ;he saitl idjudged ds me in ined him ol for the id keeper eive into epin the from this it warrant, in the said 3 thousand [Seal] ic period or sxecution of I draw up a the offender Id serve as a tment. But the offender him to give jnt would in ly keep in the icient sureties monthS) or be Form of conviction in such case. District of ) Be it remembered that on this — — ■ •— — ) day of—— in the year one thousand eight hundred and at in the said District, I, W. R., Esquire, one of Her Majesty's Justices of the Peace in and fur the said District, being in the execution of my office as such Justice in taking the examination of witnesses on a complaint made before me for larceny, (or in whatever other duty the Justice was at the time employed) one C. D., of the Parish of in the said District, labourer, cometh before me, and in my presence and hearing, useth contemptuous and insulting language towards me, the said Justice, the said C. D. then and there openly and publicly saying, that I, the said Justice, was ignorant of my duty as a Magistrate — that I, the said Justice, was unfit and incapable to fill the office of a Justice of the Peace — that I, the said Jus- tice, acted wrongfully, and committed injustice towards Her Majesty's subjects — (or whatever other contemptuous words or expressions were usedy or conduct observed by the offender,) whereby I, the said Justice, am prevented and obstructed in the due execution of my said office as a Justice of the Peace as aforesaid. Whereupon I, the said Justice, by reason of the matters aforesaid, do declare and adjudge the said C. D. to be guilty of a contempt towards me the said Justice, in the execution of my said office, and do therefore condemn him, the said C. D., to be imprisoned in the Common Gaol of the said District for and during the space of one calendar month (or to find sureties for the peace for six calendar months — or until the next ensuing Quarter Sessions of the Peace for the said Dislrictf and to stand committed to the Common ., .. 120 COMMITMENT. Gaol of the said District until such sureties be given.) Given under my hand and seal at • aforesaid) this day of one thousand eight hun- dred and . (Signed) W. R., J. P. [Seal.] \ I \ ;1 ( Commitment for non-payment of a penalty on a sum- mary conviction, on ^ and 5 Vic. c. 26. District of i W. R., Esquire, one Her Majesty's Jus* — — \ tices of the Peace, in and for the said District. To any Constable, &c. &c., and to the Ke(?per of the Common Gaol (or of the House of Correction) of the said District. Whereas C. D., of the Parish of in the said District, labourer, was on the day of instant, at in the said District, convicted before me the said Justice, of having on the day of ■■ last at the Parish aforsaid, unlawfully and ma- liciously destroyed sundry young trees, saplings and under- wood, the property of one J. G., of the said Parish, yeo- man, for which offence the said C. 0., was by me, the said Justice declared to have forfeited, and was ad- judged and condemned to pay forthwith to me the eoid Justice, the penalty often shillings, also the sum of twenty ■hillings by me the said Justice allowed and directed to be paid to the said J. G., for his damages in this behalf, with the further sum often shillings for his costs, and that on default of such payment, he the said C. D., should be im- prisoned and kept to hard labor, in the Common Gao! (or COMMITMENT. 121 ; given.) iforesaid, ight hun- AL.] on a sum- esly's Jus- ,r the said ?per of lUe lion) of the . ill the saiil y of- " ^ricted before day of illy and ma- ts and under- Parish, yeo- a by me, the nd Nvaa ad- 3 me the said 3um of twenty directed to be IS behalf, with , and that on , should be im- nmon Gaol (or House of Correction) for the space of one Calendar month — and the eaid C. D., not having paid the said penalty, damages and costs in conformity to the said conviction and judgment, you the said Constable, &c. &c. and each of you are and is hereby commanded and required to take, and convey and deliver the body of the said G. D., to the keeper of the said Gaol (or House of Correction^) and you the keeper of the said Gaol (or House of Correction,) are hereby commanded to receive into your custody the said C. D., and him safely keep at hard labor in the said Gaol (or House of Correction) for the space of one calen« dar month, unless the said penalty, damages and costs shall be sooner paid. Given under my hand and seal at aforesaid, this — — day of one thousand eight and (Signed,) W. R., /. P. [Seal.] Note. — Commitment in the first instance, on a sum- mary conviction, is to be used only where the Act gives a power to commit by way of puniehment, or when the penalty, &c., is not paid conformably to the conviction. But where the penalty is in the first instance directed to be levied by distress and sale of the oflfender's goods and chattels, and his commitment to gaol or the house of cor- rection only on a default of the sufficiency of such goods and chattels, in that case there must be a return of the officer charged with the execution of the warrant of distress of the insufficiency of such goods and chattels, duly certi- fied, before such commitment can be had. Commitment on Officer^s Return of nulla bona on a warrant of distress. 122 COMMITMENT. (I M District of ^ W. R. Esquire, one of Her Majesty's Jus- ) lices of the Peace, in and for the said District. To any Constable, &c. &c. and to the keeper of the Com- mon Gaol of the said District. Whereas C. P. of the Parish of in the said District, labourer, was on the day of last, at in the said D strict, convicted before me the said Justice, of having on the ■— — day of last, at the Parish aforesaid, (here set forth the offence as stated in the conviction) contrary to the Act in such case made and provided, by reason whereof the said C. D. hath forfeited and hath been adjudged to pay the sum of as a penalty, also the sum of for by me, the said Justice, allowed to the said his damages in this behalf, with the further sum of for his costs ; which said penalty, damages and costs, were by me, the said Justice directed to be paid in ten days next after the said conviction, and that on default of such payment, he, the said C D., should be imprisoned in the said Common Gaol, for the space of one calendar month. And whereas afterwards, to wit, on the day of instant, (after the expi- ration of the time limited for the payment)\\\e said penalty, damages and costs not being then paid, I the said Justice did issue my warrant addressed to the Constables, &c. commanding and authorizing them and each and every of them to levy the said penalty, damages and costs by distress and sale of the goods and chattels of the said C. D. And whereas it appears to me by tlie return made upon oath by — — the officer charged with the execution of the said warrant, that no COMM rMENT. 123 sty's Jus- ihe said the Coin- n the said before me — day of t forth the the Act in lof the said to pay the -^ for iim of ^ mages and to be paid and that on ., should be he space of irds, to wit, ier the expi- said penalty, 5 said Justice [^stables, Sw. h and every IS and costi lattels of the to me by - the officer rrant, that no sufficient distress can be found whereon to levy the afore- said penalty, damages, and costs ; these are therefure to command you, and each and every of you, the said Con- stables, &c., &c., to take the said C. D. by his body, and him to convey to the said Common Gaol, and deliver him to the said keeper. And 1 do hereby command the said keeper to receive into his custody the said C. D., and him safely to keep and detain in the said Gaol, for the space of one calendar month, unless the said penalty, damages and costs shall be sooner paid. Given under my hand and seal at in the said District, this — — day of— one thousand eight hundred and (Signed) W. R., /. P. [Seal] Commitment for stealing cattle. District of ) W. R., Esquire, one of Her Majesty's Jus- • ) ticesofthe Peace in and for the said District. To any Constable, &c., &c., and to the keeper of the Common Gaol for the said District. Whereas C. D., of the Parish of in the said District, labourer, stands charged before me, on the oath of A. B., of in the said District, yeoman, with having on the day of instant, at — — aforesaid, feloniously taken, stolen, and driven away, one ox, one cow, and ten sheep, of the value of twenty pounds, of the goods and chattels of the said A. B. ; these are therefure to charge and command you, the said Constable, &c., &c., and each and every of you to take and convey the said CD. to the said Common Gaol, and there to deliver him to the said keeper. And you, the said kee()er, are hereby commanded to receive into your custody the said C. D., and him safely to keep J 24 COMPOUNDING OFFENCES. in the said Gaol, until he shall be thence delivered by due course of law. Given under my hand and seal at — — in the said District, this day of — — one thousand eight hundred and . (Signed) W. R., /. P. [Seal.] If the offence be stealing a horsey mare, or colt — say leading away, instead of driving away. From the forms here given, the beginning and conclu* sion of which are generally the same, all other commit- ments may be drawn, observing always to state in each particular case the nature of the crime or offence, of which the party is accused or convicted. COMPOUNDING OFFENCES. The compounding a larceny or robbery, is where the party robbed, not only knows the felon, but also takes the goods again, or other amends, upon agreement not to pro- secute. This offence was formerly held to make a man an accessary to the crime, but it is now only punished by fine and imprisonment, unless it be accompanied with some degree of maintenance given to the felon, which will then make the party an accessary after the fact. — 1 Hawk, 59 s. 6 and 4.— £/. Com. 134. By Act of the Provincial Legislature of the 4 and 5 Vic. c. 25, s. 50, every person who shall corruptly take any money or reward, directly or indirectly, under pre- tence, or on accouut of helping any person to any chattel or other property which shall by any felony or misde- meanor have been stolen, taken, &c., (unless he cause the offender to be apprehended and brought to trial) shall be guilty of felony, and be liable, at the discretion of the Court, to imprisonment and bard labour. COMPOUNDING OFFENCES. 125 by due at ll.] ;o«— say i conclu- • commit- B in each , of which where the 10 takes the not to pro- lake a man y punished panied with which will — 1 Hawk. ie 4 and 5 )rruptly take , under pre- o any chattel y or misde- he cause the rial) fhall be retion of the And by sec. 51. of the same Act, if any person shall publicly advertise a reward for the return of any properly which shall have been stolen or lost, and shall in such advertisement use any words, purporting that no question shall be asked, or that a reward will be given or paid for any property which shall have been stolen or lost, with- out seizing or making any enquiry after the person produc- ing such property ; or shall promise or offer in any such advertisement to return to any pawnbroker or other person who may have bought, or advanced money by way of a loan upon any property stolen or lost, the money so paid or advanced, or any other sum of money or reward, for the return of such property, every such person shall for- feit the sum of twenty pounds, for every such offence to any person who will sue for the same. The compounding of informations upon penal statutes, without leave of the Court is a misdemeanor against pub- lic justice. — 4 Bl. Com. 136. 0k' Information for taking a reward for the recovery of stolen property. District OF /Information of A. B., of the Parish of ) ' in the said District, yeoman, taken before me, W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District. The said A. B. being duly sworn, deposeth and saith, that on the day of last, at the Pa- rish aforsaid, a silver watch of the value of five pounds, the property of the said A. B., was feloniously stolen, taken and carried away by some |>erson or persons to him L2 126 CONFESSION. li' |- unknown — and that afterwards, to wit on the — — — day of instant, C. D.,of the Parish of in the said District, labourer, for and in consideration of the sum of ten shillings, then and there paid to him the said G. D., by the said A. B., did agree and undertake, to and with the said A. B. that he the said C. D., would procure and obtain the said silver watch so stolen, to be restored to the said A. B., (or would use his best endeavours io that effect) contrary to the Act in such case made and provided. Sworn at in the said ■% District, this day of f ^^.^^^^^^ ^^ g^ 18—, before me. L (Signed,) W. R., J. P. 3 The warrant to be issued, and the other proceedings to be had on this information are the same as in other cases of felony. CONFESSION. Confession is, in law, an acknowledgment that the offence with which a person is charged, has been com- mitted by him. A free and voluntary confession made by a prisoner, whether made before or after he is apprehended — whether made on a general examination, or after commitment — whether reduced into writing or not — in short any volun- tary confession made by a prisoner at any time or place, is strong evidence against him, and if satisfactorily proved, sufficient to convict without any corroborating circum- stances. But if it be drawn from him by improper influ- CONFESSION. 127 savours ide and .B. sedings to her cases t that the )eeu coin- prisoner, —whether mitment — any volun- le or place, rily proved, ng circum- iroper influ- ence, threats, or promises, it cannot be received in evidence. — 2 Leach 554>.'-'Russ. and Ry. 440, 481. If a confession be obtained by undue means, nothing that the prisoner afterwards says under the influence of having made that confession, can be received. Confession of a prisoner on his examination on a charge of felony. District of ) Voluntary examination of C. D. of the ) Parish of in the said District, labourer, taken before me W. R. Esquire, one of Her Majesty's Justices of the Peace. The said G. D., being brought before me, the said Jus* tice, charged on the oath of A. B., of the Parish of in the said District, yeoman, with having on the day of last, at the said Parish of feloniously stolen a silver teapot, of the value of ten pounds, the property of the said A. B. Upon his exami- nation now taken before me, in answer to the said charge, the said C. D., freely and voluntarily confesseth and acknowledgeth the same to be true, and that he the said C. D., did steal, take and carry away the said silver tea- pot at the time and place above mentioned, from and out of the dwelling house of the said A. B. And further saith not — and the aforesaid confession having been by me, the saivl Justice, deliberately read over to the said C, D., and being required to sign the same, the said C. D., saith, that he connot write, but that the said confession contains the truth. Taken at in the said District, this — — day of 18 — , before me. (Signed,) W. R., /. P. ■- i'-".-.!.-.-' r.'T^'TF'.l" •e;""*-.-^:".- 128 CONSPIRACY. CONSPIRACY. Conspiracy^ IS & combination of two or more persons to injure a third person, or to do eomething evil or illegal. According to Hawkins, aU confederacies wliatsover wrongfully to prejudice a third person, or to maintain another in any matter whether it be true or false, are high- ly criminal at common law. — 1 Hawk. c. 72. sec. 2. And whether the confederacy is entered into for an un- lawful purpose to be effected by lawful means — or the purpose is lawfulf and the means unlawful, — or whether the purpose be, or be not, effected, — the conspiracy is equally criminal. — 2 Ld. Raym. 1167. — 1 Leach. 37. — 3 Burr. 1439, — 1 East. 462. Conspiracy, or unlawful agreement, or plotting or contriving togethtr, though the object be not accomplished, is the gist of the offence and the very nature of the offence of course requires that more than one person should be concerned in it. — 2 Burr. 993.-3 Butr. 1321. Tl»e object of conspiracy is not confined to an imme- diate wrong to particular individuals, it may be to injure public trade — to affect public health, — to violate public peace, — to insult public justice, or to do any other act which is in itself illegal. — Chitty^s. C, L. 1138. Information against Journeymen for conspiring to raise wages, and not to work but at certain hours. District of ) Information of A. B., of the Parish of ) in the said District, Merchant Tailor, taken before me, W. R., Esquire, one of Her Majesty's Justices of the Peace in and for the said Dietrict. " CONSPIRACY. 129 The said A. B. being duly sworn, deposeth and saith) that C. D., E. F., G. H., and divers others being workmen and journeymen tailors, and not being content to work at their trade and employr :..» as such journeymen tailors, at the usual rates and wages they generally received, nor to work for and during the number of hours they usually worked each day, did assemble and meet together at — — in the said District, on the day of instant, and did then and there combine and agree among themselves, that none of them, the said C. D., E. F., G. H., and others aforesaid, would from that day work at any lower or lesser rate of wages than {here the different rates of wages as claimed to be inserted.) And further that none of them would work day-work for any longer time than from six o'clock in the morning to nine o'clock in the evening of each day. And the said C. D., E. F., G. H., and others aforesaid did then and there also com- bine and agree among themselves, that they, and each of them, would do all in their power to induce, persuade, force and compel all other journeymen tailors at aforesaid, to join and unite with them, the said C. D., E. F., G. H., and others aforesaid, in the said conspiracy and combination, to the great damage of him, the said A. B. Sworn at in the said District, this day of 18 — , before me. (Signed,) A. B. (Signed,) W. R., J, P. The beginning and conclusion of the warrant to appre- hend in this case is in the usual form, and stating in it the 130 CONSTABLE. \ matters contained in the information, is all that is required to complete it. This being a bailable offence, the parties will be admitted to bail accordingly, or committed to Gaol for want of it, and the witnesses for the prosecution bound over to appear at the Court of Quarter Sessions, or other Court where the trial is to be had, in order to give evid- ence. The proceedings when closed will be transmitted to the Clerk of the Court. It being unnecessary to multiply precedents when not required, it is presumed that the foregoing will suffice, with suitable alteration according to circumstances to meet any case of combination that may occur. CONSTABLE. The Constable is a Peace Officer generally chosen by the Justices at their Quarter Sessions, and is the proper Officer to a Justice of the Peace, and bound to execute his warrants. — Burns. Every Constable is by the Common Law, a conserva- tor of the Peace, and is authorised without any warrant to arrest all traitors, felons, or suspicious persons, and in case of any breach of the Peace committed, or about to be committed in the presence of a Constable, or where vio- lent threats or attempts are used by any person to beat or hurt another, he may arrest the party, and carry him be- fore a Magistrate, or detain him till he can conveniently do so. — 2. Hawk. c. 12. sec. 19. — Dalt. c. 116. sec. 3. By St. 27. Geo. 2 c. 20. sec. 2., a Constable execut- ing any warrant of distress, must, if required, shew the 9ame to the person whose goods are distrained^ and suffer «- CONVICTION. 131 squired parlies lo Gaol I bound jr other ^e evid- (litted to ■hen not ce, with neet any losen by le proper ecute his 9. copy thereof to be taken. But in no case is a Cons- table required to part with his warrant out of his posses- sion, for that is his justiGcation under 24 Geo. 2. c. 44. sec. 6., in case of any action brought against him. By the Ordinance of the Governor and Special Council of the 4 Vic. c. 17, s. 7, the Policemen appointed for the Cities of Quebec and Montreal, are sworn in as Consta- bles in the several Districts for preserving the Peace, and preventing robberies and other felonies, and apprehending oftenders against the peace, and it is ordained, that the men so sworn, have within the said Districts all such powers and authorities, privileges and advantages, and shall be liable to all such duties and responsibilities as any Consta- ble duly appointed has now, or hereafter may have under and by virtue of the laws of this Province, or of any Statute or Ordinance made or to be made, and shall obey all such lawful commands as they may from time to time recei.e from the Commissioner of Police, for conducting themselves in the execution of their office. conserva- varrant to , and in bout to be /here vio- tobeat or him be- [iveniently 5. sec. 3. )le execut- shew the and suffer CONVICTION— SUMMARY. The matters which fall under the cognizance of the Justice of the Peace out of Sessions, and by which he is authorised to proceed by summary conviction, are at the present day so numerous, and of such importance, that I have thought it necessary to enter more fully into the course and mode of proceeding to be observed by him, as by attending thereto he will acquire a greater facility in conducting the various matters brought under his notice, in which summary proceedings are authorised. On this 132 CONVICTION. I- I I t I il head I have found in Paley and Deacon all that could be desired for the direction of the Magistrate, and their obser- vations I have in general followed, in as far as I considered them useful or applicable in this part of the Province. ; A Conviction as here used, is a record of the summary ' proceedings upon any penal Statute, before one or more Justices of the Peace, or others duly authorised, in a case \ where the offender has been convicted and sentenced. The power given to Justices of the Peace to convict an offender in a summary way, without a trial by Jury, is in restraint of the common law, and a tacit repeal of that clause in the Great Charter, which says, " That a man shall be tried by his equals," for which reason when this special power is given to Justices of the Peace by an Act of the Legislature, it must be strictly pursued, as the Justice can assume no authority, nor proceed in any other manner than is prescribed by the Statute under which he acts. There must be a regular course of proceeding in this mode of trial, as well as in the trial by Jury, in order to attain the ends of justice. / A conviction usually consists of the following principal parts: — 1. The Information or Complaint. 2. The Summons. 3. The appearance or non-appearance of the Defendant. 4. The Defence or Conviction. 5. The Evidence, unless the Defendant confesses. 6. The Judgment. 1st of the information or complaint. The information or complaint is the foundation of all the subsequent proceeding?. Wherever the complaint is CONVICTION. 133 required by statute to b3 in writing, that form must be ob- served, but unless expressly so directed, it does not seem necessary that it should be so, — Paley 15. Nor is it re- quisite that the information be upon oath where the statute does not require it ; but if the Magistrate should find it necessary to proceed in the first instance by warrant to apprehend the oflTender, instead of a summons, — in every such case the information must be upon oath. The information is the complaint made by the party informant, or complaining to the Magistrate, and it ought when made in writing, to set lorth the following points : — 1st. The day and year on which it is exhibited, — that it may appear to be subsequent to the offence, and to ascertain that the prosecution is within the time limited by Statute- 2nd. Mention of the place where the information i« stated to be received, is also necessary, in order to shew that the Magistrate at the time was acting within his jurisdiction. 3d. The name and style of the Magistrate before whom the complaint is lodged, must be set forth ; — to shew that he is a Magistrate of the County or District where the offence is stated to have happened, that the jurisdiction may appear on the face of the proceedings. 4th. The name of the informer or complainant should be also stated: — this is the more necessary where he is entitled to a part of the penalty, that the conviction may appear to be founded upon other evidence than that of the informer. There are a few cases where the informer may be a witness, but there he is entitled to no part of the penalty. M (" ' '|W » . < i r !im.ii ' > »i W ii » « " ' 134^ CONVICTION. (i 5th. The charge or complaint must then he stated, beginning with the name of the offender or offenders. It is said to be no objection that the offender appears to be a married woman, {femme covert,) as it has been decided that she may be convicted on a penal Statute, without joining the husband. Sed gucere, — Paley 60. — 2 Sir, 1120.— iS/o^. 96. 6th. The information should likewise specify the time and place of committing the fact complained of, that it may appear that the prosecution is commenced in due time and that the place where it was committed is within the jurisdiction of the Justice, — 1 L. Raym. 582. — 2 L. Raym. 1220. "Y et the offence need not be proved to have lieen committed on the day on which it is laid, — it is enough if it be proved tti have been within the time limited lor the prosecution. If stated to have been committed within such a day and such another day, it is held to be sufficient,— 2 Hawk. c. 25, s. 82—10 Mod. 2^S—Salk. 378. 7lh. The offence charged must contain every ingre- dient required by the Statute, to make it complete. It must be described in all its particulars and the facts complained of must be specified, that it may appear they amount to the offence contemplated by the Statute. In all cases when the quality of the offence con:>ist9 of a simple fact, it is sufficient to use the words of the statute as applicable to the fact.— Pfl%. 66.-8 T. R, 536,-1 T.R. 122.— 2 Ld. Raym. 191. " 8th. An essential point to be carefully attended to in describing the offence charged, is, that every exemption, excuse, or gttalification which accompanies the descrip- tion of the offence in the enacting clause, be distinctly -^^. CONVICTION. 135 he stated, indere. It lara to be a en decided ite, without 0.— 2 Sir, ;il*y the time ;d of, that it -need in due lUed is within .582.-2 L. roved to have iS laid,— it is 16 time limited •en committed I is held to be d. 2^S—Salk. \ every ingre- complete. It 3 and the facta it may appear by the Statute, ce consists of a ■da of the statute ;T. 12, 536.-1 y attended to in ivery excmptioni [inies the descrip- ,se, be diatincUy and positively negatived, to shew that the defendant at the time of the offence committed, did not come within, nor was entitled to claim any such exempiiony excuie or qualification. — 1 Sound. 262. (d) — Foster. 420. — 1. T. R. }4>l.—l. r. 22.27. The different points requisite to complete the informa- tion, although from the statement here given of them they may appear somewhat formal, yet in practice the whole may be comprehended in a few lines. The Magistrate has only to look at any of the informations of which forms are before given, and he will there find all the foregoing re- quisites briefly set out — of time — place — persons — title of the Magistrate — and ground of complaint. 2nd of the summons. If the Justice is satisfieu, ■'ither that he has no juris- diction over the offence, or that it is not clearly and suffi- ciently described, he may dismiss it immediately, without taking any further proceeding upon it. But if the infor- mation appears to justify the interference of the Magis- trate, the next step is *o give the party accused, notice of the accusation, and an opportunity to answer it, by issuing a summons addressed to him, containing the substance of the charge, or a copy of the information annexed. This summons ought to fix a day, hour, and place for the ap- pearance of the defendant, allowing a sufficient time for the attendance of himself and witnesses. A conviction on default of appearance, where the summons was, to ap- pear immediately was held to be wrong — i.ul if the de- fendant appear at the time and makes defence, that will r ^6 CONVICTION. ' cure all defect in the summons. Although Justice re- quires that a party should be duly summoned and fully heard before he be condemned, yet if he be present and has heard the complaint and all the witnesses, and has not asked for any further time (and so stated in the convic- tion,) this is an acquiescence and is sufficient. — 1 Bur. 619.— I, East. i?.649. The date of the summons must not be on an earlier day than that of the information — nor on a Sunday — nor on an impossible day. — 2 Ld. Rmjm. 1526. — Salk. 181. The service of the summons should be proved upon oath if the party do not appear. Personal service is no doubt preferable, but as this cannot always be done, the leaving a copy of the summons at the house and domicile of the parly with some of the inmates of the family will be sufficient.— Pa% 19, 57.— U East. R. 268.— Prov, Ord. 2 Vic. c. 2 s. 2.-4 and 5 Vic. c. 26, s. 30. In cases of summary conviction, and in the lighter kind of misdemeanors, a Magistrate should issue a summons against the parly, and not a warrant in the first instance. — 13 East f)5. But if the paity disobeys the summons, in a case where his presence is necessary for the validity of the proceedings (as for proving the identity of the defendant ) then ihc Justice may properly issue a warrant against him, taking however the oath of some person to substantiate the facts upon which it is grounded. — 2 Deacon. 718.— 2 Hawk. c. 13, s. 15.— 10 Mod. 248.— 2 Ping. 63. For where a Statute gives a Justice juris- distion over an olTence, it impliedly gives him a power to compel the attendance of the party charged with it. But, where the presence of a Defendant is not necessary for the validity of the proceedings, the Justice, aAer having ,*--**W.*«*-iW*-i* — — /■ "-<•," 'W CONVICTION. 137 uBtice re- and fully esent and nd has not tie convic- t.— 1 Bur. an earlier mday — nor -Salk. 181. roved upon lervice is no be done, the and don»icile J family will 268.— ■?»■<»'• S.30. le lighter kind a summons st instance. — summons, in r the validily lentUy of ihe ssue a warrant some person to grounded. — 2 ) Mod. 248.— a Justice juris- him a power to d with it. But, lol necessary for ce, after having ascertained that the summons had been regularly served, may proceed to hear evidence in support of the prosecu- tion against the Defendant, as being in default, and to adjudge thereon. — 1 Sir. 44t. ^ 3rd. Of the a;)pearance or non-appearance of tlrtS defendant. Although for offetices arising merely by penal Statutes and not connected with any breach of the peace, a Justice ought not even after a summons and default of the party, to cause him to be apprehended, yet in cases where from the nature of the offence, or the character of the offender, the object of the prosecution would be defeated, by giving him notice, there the Legislature arms the Justice with a special power and authority to issue his warrant immedi- ; ately upon the information. — Paley 19, 106. / Kthe defendant appears, any irregularity in the sum- t 1 — or in the service of it — or even the want of a s» r: ions altogether, becomes immaterial — except it be in a case where a special form of summons is required by the Statute, which must necessarily be complied with. — 1 East. R. 649.-3 Bur. 1785.— 1 Sir, 261.— 2 Salk, 423.— Com/). 30. Upon the defendant's appearance, he either prays time, or confesses the charge, or denies it, and makes defence immediately. In the firbt case, if he pleads not guilty, and requires time for his defence and to produce his evidence, it is reasonable, and the law seems to require, that the party should be allowed a proper interval for that purpose — there is no particular rule laid down in this respect, and it must depend upon the circumstances of the case and the prudent discretion of the Justice. If delay is given, care ought to be taken not to exceed the time, M2 ■•*1^' 138 CONVICTION. if any be limited by the Statute, for making the conviction, but if the limitation refers only to the time within which the offence must be prosecuted, and not to the time of making the convicHony then the hearing and subsequent proceedings will be valid, though postponed to a term beyond the period mentioned in the Statute. — 3 East. 467.-1 Salk. 383. if the defendant confesses the charge, nothing more remains for the Justice, after recording such confession, but to paisa judgment, and impose the penalty. If the defendant denies the charge, the next step is for the informant to substantiate the information by sufficient evidence. It is necessary that the names of every witness produ- ced to support the information, should be stated, that it may appear that he is not the informer, who is generally interested, as receiving some portion of the penalty, unless the Statute has otherwise directed. — 2 Ld. Raym. 1545. — Str. 316. It should also appear that the witness was examined on oath, and the substance of the whole evi- dence ought to be set forth, or at least so much thereof as is sufficient to warrant the conviction. — 2 Str. 996. — 7 T, R, 153. The witness must be examined in the pre- sence of the defendant, when he appears and defends the case, that he may have an opportunity of cross-examina- tion.— £otc. 90 2 Burr. 12. 1 1 63. For should the de- position of the witness have been taken out of the presence of the defendant, it will not be sufficient to read ov^r that deposition to the defendant, who is entitled to see and hear the witness examined, but the examination must be begun anew,— 6 T. R. 75.— 1 T. R. 125, 230. i\ '«4«>'«Uw ».'•• ti^^^-UJ* ^- CONVICTION. 139 ictiuD) which ime of equent term East. more ifession, ep is for sufficient ss produ- d, that it generally ty, unless im. 1545. Iness was ;vhole evi- thereof as •. 996.-7 in the pre- lefends the -examina- uld the de- e presence d ov^r that to see and m must be 0. 4th of the defence. When the witnesses in support of the charge have been heard, the defendant should be called upon to produce his evidence in support of his defence — this the Justice ought to receive as far as material and state in the record of conviction, as well as the evidence in support of the in- formation, although he should afterwards give judgment against the defendant. — 7 T. R. 153, Should the Justice be satisfied, after hearing all the evidence on behalf of the prosecutor, that the complaint or charge has not been proved, he ought to dismiss the same without calling upon the defendant to produce any evidence in support of his defence. It is held as a maxim, that where property comes in question, the exercise of a summary Jurisdiction by Jus- tices of the Peace is ousted — therefore if the defendant sets up a right of property in the thing he is accused of taking or destroying, and if there appear any colour of such right the Justice ought to acquit him, as not having jurisdiction to determine the right, and leave the parties to their re- course before another jurisdiction. — 1 Ld. Raym, 583. — 2 do, 900.— 4 and 5 Vic. c. 26 sec. U.—do, c. 27 sec. 30. If the defendant confesses the charge, the Justice may convict without going into any further evidence against him, — Bosc. 62. 3. 4. But the confession must be of such facts as fully constitute the offence charged in the informa- tion, otherwise it will not supply the defect of evidence. What the defendant says, either in defence, or as a confession, must be taken down in writing and stated in the conviction. , ! f 140 CONVICTION. 5th of the evidence. As already shewn, the name of the v\itness or witnesses to be examined should be elated, and also that they were itworn and examined in the presence of the defendant. The fact charged must be proved to have been committed in the place where it was laid, or at least in some place within the jurisdiction of the Juatice convicting, — 2 Ld. Raym. 2220.— 7. T. R. 241. The evidence ought to be set out at large, and contain a full and accurate statement of the facts that constitute the offence. In some instances the offence can only be described generally in the information, and yet consists, either of a number of distinct acts, which in the aggregate constitute the offence, and must therefore be proved. — 4 Burr. 2062.— DoM^. 469.— 5o5c. 95. The evidence must be taken upon oath, (or affirmation, in case of a Quaker) for these are the only legal modes of receiving testimony, and it must be so expressly stated in the conviction, otherwise the conviction will be liable to be quashed. This oath or aflirmatlon should also be administered as well in the presence of the Justice as of the defendant, and so stated in the conviction. — 2 Bar. and Car. 600.— 4 Bar and Md. 616. The evidence ought to fix a cerain date to the offence in respect of lime, as the offence must appear to have been conamitted prior to the information. Also it may appear that the information and proceedings have been had within the time allowed by the statute. — I Ld. Raym. 510. — Paley 128.— 7 East. 146. With respect to the degree and sufficiency of the evidence, and the credit due to the witnessesn, the rule appears to be, that if there is any evidence, although slight, % CONVICTION 141 to establish the charge in the infurmation, and the Justice draws his conciusion to convict upon it, a Superior Court will not in general, examine the propriety of the conclu- sion, for the Justice is the sole judge of the weight of the evidence, and the Superior Court will not enquire whether the conclusion drawn by the Justice, be, or be not, the inevitable conclusion from the evidence, but whether the evidence is such as would be sufficient to be left to a Jury on a trial.— 6 T.i?. ^77, 376.-8 T. R. 588.— U East. 273.-3 Bi 1* . -4 Bar. and Aid, - * " But where there is no evidence to estauiish the par- ticular charge before the Jostice, or the evidence is too slight to be submitted to a Jury, in either of these cases the Court above, will not only judge of the evidence, but will order a conviction in such case to be quashed. — 8 T. R. 588.— Cowp, 728.-2 M. and Sal. 145. In a case where the Justice acquitted a party, though upon evidence disclosing a prima facie cdLSCf and upon which the defendant might have been found guilty, the Superior Court refused to reverse their judgment, saying, they must coni?ider that the Justice had determined upon the facts and not on the law, and the Court above could not judge of the credit due to the witnesses whom they did not hear examined. — 6 T, R. 376. The witnesses for the defendant ought to be sworn, and their testimony as to all material facts of the defence taken down in the same manner as that for the prosecu- tion.-4 andb Vic. c. 24,5. 10.- 7 T.R. \b2.—Pahy 127. The Justice cannot compel witnesses to attend on a summary trial, unless the Statute empowers him as it frequently does, to summon them under a periahy, for not attending or refusing to be examined. — Burn^s Jttut* 142 il :i CONVICTION. 6th of the judgment. The judgment is a necessary part of every conviction, and should contain — Isst an adjudication that the defen- dant is convicted, and 2nd an adjudication of the forfeiture or penalty — and when costs are allowed the amount thereof should be ascertained. — Base. 109. — 13 East. 57 JVo/e. A Justice has not any power as incident to his juris- diction, to mitigate a penalty imposed by a particular Statute, for a judgment for too little, is as faulty as a judgment for too much — he can use no discretion in this respect, unless it be'given him by the Statute on which the conviction is founded. — 1 T. R. 252. — Paley. 167. Where the penalty is expressly appropriated by the Statute, as where it is ordered to l)e divided equally be- tween the poor ofa parish and the informer,or party aggriev- ed, the judgment need not contain any award to that ef- fect, it is sufficient if it award the penalty to be distributed as the Act directs.— 1 Salk. 383 Easty 573.-2 T. R 18. The conviction when made up should be signed and sealed by the Justice, as being the only proper mo '^ of authenticating it, as the record of his proceedings, ana it should also be dated on the day on which it is signed. The date indeed becomes a material part of the convic- tion, when a Statute provides that a conviction must be made within a certain time after the oflence is committed, for in such case, it is void, if it docs not appear to have been made within that time, and it makes no difference that it was prevented from being made within the time by an adjournnient, at the request of the defendant himself, CONVICTION. 143 for after the lime has expired for making the conviciion, tliere is no authority existing for that purpose. — 2 East, 467. But where a Statute provides, that the offence be pro' secutedy or that the party be prosecuted for tJie offence within a stated time, it is then sufficient that the informa- tion be laid, though the conviction do not take place with- in that time, the information being for that purpose, the commencement of the prosecution. — 1 Deacon. 327. — 1 Salk. 383. When an impossible or an incongruous date is specified, if the conviction be complete without it, — it may be reject- ed as surplusage. — 2 East. 197. With regard to the mode of reckoning the time limited by penal Statutes, the following points have been deter- mined. 1st, If the time be expressed by the year, or any aliquot part, as a half, a quartevy &c., of a year, the computa- tion is by calendar months of twelve to the year. But if the months are mentioned, but not the year, they are al- ways computed by lunar months, of four weeks to the month.— D0M5-. 465.-3 East. 407.— 2 Camp. 296.— 2 Deacon. 29S.— Carth. 406. 2nd. When the time is dated from the offence rommHted, the day on which it was committed is to be reckoned as one. Formerly, when the time wo'- limited, from the day of doing the act in question, .^lat day used to be excluded from the reckoning, but since the case of Pugh vs. the Duke of Leeds, Cowp, 714, this distinction has been done away with. To simplify the task of drawing up convictions, many of our modern penal Statutes provide certain compendious •mm U4> CONVICTION. * forms,— which, though given as models, are for the most part directory only, and intended to assist the Magistrate in the discharge of his duty. Where such forms are pre- scribed, they must be strictly followed. In the use of these forms, care must be taken where a blank is left for inserting the ofience, that it be described with suffic.ent accuracy, and that every material fact necessary to constitute the offence be stated* — 13 East, 139. But where particular forms are not prescribed by Statute, it is necessary that the general form of conviction applicable to each particular case, should be observed. The Court will not take notice of any formal defect in the proceedings under a penal Statute, unless it appear upon the face of the convictJon itself. — 3 Dowl. and Ry. 35. GENERAL FORM OF CONVICTION. District of ) Be it remembered that on the ^ day of in the year of our Lord one thousand eigiit hundred and at in the said District, A. B., of the Parish of in the said District, yeoman, who prosecuteth as well for Her Majesty, as for himself in this behalf, {this, when part of the penalty is given to the Queen and part to the infor- mer,) (or who prosecutes as well for as for himself) (when part of the penalty is given to any Corporate Body, Parish, or special purpose) in his proper person ca!ne before me, W. R,, Esquire, being one ((yr if before more than one Justice, then say) before us, W. K., CONVICTION. 145 \08t krate [pre- ire a Iribed fact [East. id by iction ed. ect in appear fl. and Lir Lord in 1 for Her part of ie infor' - as for I to any is proper ne (or if J, W. K., and (the other or others, naming them) Esquires, being two, (or of whatever number they may be) of the Justices assigned to keep the peace in and for the said District, and also to hear and determine divers felonies, trespasses and other misdemeanors, in the said District committed, and gave me, ihe said Justice, (or us the said Justices,) to be informed, that on or nbout the day of in the year of our Lord, one thousand eight hundred and at the Parish aforesaid, one H. D., of in the said District, yeoman, did (here insert the charge or information, slating in a particular manner the time, place, and circumstances which brings it within any Statute, Act, or Ordinance, whereby the Justice has jurisdiction) against the form of the (Statute, Jlct, or Ordinance as the case may be) in such case made and provided, whereby the said H. D. hath for his said offence, forfeited the sum of lawful money of Great Britain (or lawful current money of the Province, as ihe case may be) to be paiil and applied as the said (Statute, Jlct, or Ordinance) directs and requires. (If the infor' mation be for any of those offences such as stated in the Act of 4 and 5 Vic. c. 25 and 26, where a damage is allowed to the complainant, besides ihe penalty which is left to depend upon the judgment of the convicting Ma gis' trate, and when a demand for such damages is contained in the information, then itate as follows,) whereby the said H. D. hath become liable to pay not only such penalty as may be awarded against him by reason of his offenctt aforesaid, but also the said sum of demanded by the said A. B., in and by his information aforesaid for his damages by him suffered and sustained in this behalf, and also his costs. And therefore the said A. B. N 146 CONVICTION. prayed that the said H. D. may be summoned to answer the premises, and that hei be convicted of the said oflence, and thereupon condemned to pay the penalty aforesaid, and the costs in this behalf (when costs are allowed to be given J for if the demand be in a case where damages are allowed, then say,) and thereupon condemned to pay such penalty and damages as may be awarded against him, and also the costs in this behalf ; whereupon after- wards, that is to say, on the said day of in the year aforesaid, at in the said District, I, the said Justice, (or we Sfc.) did issue my (or our) summons, under my hand (or our hands) thereby notifying to the said H. D , the said information and complaint, and thereby requiring him the said H. D., to be and appear before me, the said Justice, (or us, Sfc,,) on the day of now instant (or next,) at the hour often in the forenoon of the same day at in the said District, to answer and make his defence to the matters contained in the said information and com- plaint. Whereupon afterwards, to wit, on the said day of now instant, at afore- said, at the hour aforesaid, the said H. D., having before the day last mentioned, been duly summoned to be and appear as aforesaid, — (in case the defendant does not ap- pear,) yet the said H. D., does not appear at the time and place aforesaid, but makes default, whereupon one C. D., (the person serving the summons,) a credible witness upon his corporal oath taken before me, the said Justice, (or us, the said Justices,) says, that he the said C, D., did on the day of instant, at in the said District, at the hour of in the noon, duly serve the said H. t)., with the said sum- CONVICTION. U7 svver ence, said, >ed to nages to pay jgainst after- lext,) at at 3 defence ind coin- aid — afore- ng before be and es not ap- time and 1 one C. e witness d Justice, CD., did n tbe said sum- mons, by then and there delivering a true copy thereof and of the said information to tlie said H. D., in person, (or where the service of the summons is not made 2)crson- ably, say ^ by delivering a tnte copy thereof and o/ the said information to a person of the Jamily at the domi- cile or usual place of residence of the said II. D., at — — aforesaid.) Whereujion on the said day of iiir-tant, at aforesaid in the said District, one W. W., of the in the said District, yeoman, a credible witness, cometh before me, the said Justice (or us, ^^^., .„fo,,,. U^es above char^ea^^^^^^^^^^ Uon and thereupon, I, ^^^ ^^^,,^, aforesaUUn and by convict the sa»d H. D., ot th ^^^ ^^ ^^^ j JuBUce, (<^' «*'*;, 'h„„, forfeited the sum of. his offence afore».d.h»« ^n-«.< "x" ,a«M money of G«» B'^' ,^ ^^^a Justice, (or ». „^ 0/ rf-e !'"'"«'''> '"l D to pay the said sum ot J/dooo„aemnthesa.aH IX to P^y ^^_ ^^^ _ lawful money o ^__^^ ^^ ^^ ^^.j ,„ ,„r«n< mo-J "^rT oren and the other half to the Our Sovereign ^'''^. '^\^^^Vr c<^pMnanl) according -" ^- ^-J r X '"or aS' «»«,) m s-eh case made ,„d provided, (rtat " '"'"'^'ff^.ntdm^on is mode, division »/ i«'"''*-'';;L „„d if costs are alhu-.d to then to adjudge accordrngly-"' J ^^., j„^„,,, (or we, »c-); "" i A B. the sum of — UwUh pay to the sa.d A. B., .^ „„j ,,„„, „„f„l current «^<'^^l''Z'lllu, directs the commit- ,he P«n"»«»'-(°'"' " , ' to (Ae J/o»»e of Correet,cn, rJofthep^rty ^ ^f^^^^Zcdiately, or.iihinony on default of posmc«l>^''^^ j^ „^„,„„ A.™, ,A.„«daOandMhe-''J-'.;^„\, ,, the said H. D., adjudge, that ""'f""' "' "^^^ Jaay.oftheaforcoid pen- »Uv and costs, the said "• "- f ,),„ said District, ^iGao, (or n^se of C<'---'>.,f„„y „„„„ ar^dthe * for the space of '^ % CONVICTION. 149 fthe >rma- ,)^o rjd by le saiJ D., for nt mo- or tot sum of lawful paid to If 10 the ccoriling ise maJe akes this is made, illowed to 1 Justice, \. D., Jo and about \e commit- Correcticnt within nny jdinst him^ ,) do further eaid H. D-j orcsaid pen- lo the Coin- said Distiict, illowandthe Justice see Jit to limit,) if the said penalty and costs be not sooner paid, (/n case damages are demanded and by law allowed to be given, then after adjudging the penal- ty, add thus,) and I, the said Justice (or we, &c.,) do also adjudge and condemn the said H. D., to pay to the said A. B., for his damages by him suffered and sustained in the premises by reason of the offence aforesaid, the sum of lawful current money aforesaid — (then adm judge the costs, where costs are allowed.) (If the defendant appear, there will be no need to make proof of the service of the summons upon him, x^nd if he admits and confesses the fact charged in the informa' Hon against him, then say ) And afterwards, that is to say, on the day of in the year afore- said, at aforesaid, the said H. D. appeareth and is present before me, the said Justice (or us, St'c.) in order to answer to the said information and complaint, and he the said H. D. having heard the same, is asked by me the Justice, (or us, St'c,) if he can say any thing, why he, the said K. D. should not be convicted of the prenrii^es ahovo charged upon him in form as aforesaid. Whereupon the said H. D. freely and voluntarily confesseth and acknow- ledgeth the said information and complaint, and all and singular the matters therein contained to be true, and doth not shew any cause before me the said Justice, (or us, Src.) why, he the said H. D., should not be convicted of the said offence charged in the said information. Whereupon, &c. (then proceed to enter up the conviction andjudg* mmt as before stated in the case by default.) ( If the defendant appears and pleads not guilty, to the information, then proceed, after stating his appearance and the demand made to him to answer, Sfc, as above, thus.) Whereupon the said H. D. pleadeth, that he i» N3 ^^jllt^ .^xr- >?^3U-ui:iiMMiii*™< 4f m i ti CONVICTION. npinrt him. And ufterw^n «« ^^ ^.^^ .^^ ^^^^^^^.,^,^ in the year aforesa.d, al .^ j^.^.^^.^,^ ^.,„„an, a one W. W. of • " y j„„ice, (or ««. „edMe witness, come,. heform*e ^_^_^ ^^,^ *c.) and beinghy me .he - ^ ^^f ,,\„„e „f .l>e said sworn touching 0,er.'e™;-'",^ I, ,,.,U. 0,at(kr. H. D. he the sa.d W. W., depo ^^^^ ^, .^^^_^^^ .„ ,e,, „„ „«,. D. on his oath aforesa.d M'^ ^^ ^^ ^„,„,„,,<, ,> ,«l>^or« »/ "« ™'"/''°""' „"d „„ „.„„•„»( ion of eery „^ ,„ y. ./one in ' '^'-^J^ L 1 cU.d, ik.n say,) „idence ,n support <('^;^' ;\„,„„ evidence to cfter m And the sa.d A. B. l'»)'"8 " eomplaint, the said ..pport of the said •-"'"—;":, „, ^.,.) a*ed what H. D. is by me, the «»'" V.dencc given as afore- ,,e hath to oflet in ansvvec to the^ ^^^^^^^, „„ ,,.. «aid, (if <»« Defendant produ^ J p „j„ecs „„'doffe«asacrcd,hle w,tn - " ^_^^, ,,„ ,„ „r. -in the »»"'"^^„ .„ by me, *e said E.F. being now personally P'°^''.,„. u>e premises, and being examine by and on 1- - ^ f„A «« „id E. E. do,h depo« and «ay, ^^^ jrged ^n, a w us, duly le said {here ess in \ if the c thus) said H. e cross- rod uccd iner the of every ting the When the hen say,) offer in the said ked what as afore* i€S on hi$ produces 3no E. F., [ the said , felie said mises, and H. D. the t forth all he witnets, ttnade^io CONVICTION. 151 like manner state the swearing — examination — and cross-examination of every other witness that may he produced on the part of the defendant. If the defen- dant does not produce any witnesses on his defence, then say.) But the said H. D. doth not offer or produce any witnest^es hefore nne the said Justice, {or us, S)'c.) in hia defence, against the said information and com[)laint. {Then proceed to judge thus.) And forasmuch as upon liearing and fully iinder.standing the said information and complaint, and tlie evidence given as aforesaid, and also upo » l.carirg ard fully understanding all and singular the matters and tilings alleged and proved touching the pre- mises, it manifestly n[)pcars to me, the said Justice {or us, S)'c.) {if the opinion of the Jutices is to dismiss the complaint as not proved. then say) that the said information and complaint is not founded, or liath not been proved before me, the said Justice {or us cS'r.) and therefore I, the said Justice, {or we ^'c.) do now here dismiss the same, {and where costs are alloxved, say,) and I the said Justice, {or we, »■ ^ .^ ,„ ,,„,e-,pl object in- saved to the J"""^''--'^ "!'' .^escribed in any Act or tended in all these spec,alfo,mM" Ordinance. .„„„if«on, to wliicb the above The cases of summary c v-. , ^^^^ ^^^ ^,_^ ,,,. form is intended to apply under ti lowing-— f shipwrecked goods not giv- 1. Persons in possess, n of sh,p ^^^^^.^^ ^^ „,, i„g a satisfactory account of them Peace.— sec. 23. shipwreclted goods, and 2. Person, -.ffenng to sell any sh P ^^^^^^ _ ...lunictorv accounl, how tmj b not giving a satislacioiy sec. 24. , „, ,,i,jg or beasts in confine- 3. Persons stealing dogs, or birds ment.-sec. 30. , „ otherwise de- 4. Persons stealing, en « mfo ^^^_^^^ ^_^^ ^.__^ ^^ j^^j siroying or damaging » itb nte ^^_ fence, pale, tail, style, ^ '- ,^^,, ,,p,ing 6. Persons having in .1^1 » ^^ ^„j „„, or shrnh, or any post, I-;';- ; J._,ec. 33. satisfactorily accounting ^>. to-™ ^,,„,^ ,„,,, 7. Persons 8teaUng,&.c., any u » CONVICTION. 155 iiely .olcn, red — I con- abovp lavlicAi- uires— - :,h ial)or ject \n- j Act or iie above isriotgiv- ce of ibe roods, and )t t\iem. — in confine- .\\ervvise de- line ot dead tree, sapling ^ate, and not 33. ;, shrub, bush, plant, root, fruit or vegetable, proJuctioii in a garden, orchard, &c. — sec. 34<. 8. Persons stealing, &c., any cultivated root, or plant used for the food of man or beast, &.C., growing in open ground, not a garden, — sec. 35. 9. Persons knowingly receiving stolen properly, the stealing whereof vvoulil be punishable on summary con- viction, punishable as principals. — Sec. 52. 10. Persons aiding, abetting, counselling or procuring the commission of any offence, punishable on summary conviction. — Sec. St. The form of summary conviction prescribed by the Act of 4i and 5 Vic. c. 26, iniitiiled, — "./^/r jlct for consoli. dating and amcndhiff the laws in this Province, relative " to mnlicious injuries topropertt/j^ — is the same as that prescribed by the foregoing Act of 4 and 5 Vic. c. 25, — and will apply in the following cases. 1. Persona cutting, breaking, barking, rooting up, or otherwise destroying or damaging any tree, sapling, or shrub, or any undervvooJ, wherever the same may be growing, whero the injury amounts to one shilling at the least. — Sec. 20. 2. Persons destroying, or damaging with intent to des- troy, any plant, root, fruit, or vegetable production, in any garden, orchard, nursery ground, &c. — Sec. 21. 3. Persons destroying, or damaging v/ith intent to des- troy any cultivated root or plant used for the food of man or beast, &.c., and growing in open ground, not being a garden or orchard, &c. — Sec. 22. • ;;_-iSSlSt^*-~-*"*' ) \ CONVICTION. '^^ •• ,v,m™medown,ot'nany ,. Persons cu.Ung, b-*"?. * . ™ „ ,,._Sec. 23. ,,it; aeslroying any fence, wall, =^'^^ J ^^^^„ ^„^. ^"t Persons comn.m..g -V ^"-^ .^ o. P»bl,c.- real ot personal pvopertj.wh Sec. 24. •„;„„ anv ofTence against W"' mission ol any U-, Art Sec. Ol. under this Act. ^ 2t * ana 5 V-,c. c. - .; '^ „„, i„ ^^^^^ ^^ ^^ 2 Persons committing any "Sec. 27. f„„ a„,„rb any asaemW.age of ^-"^rj;ai:.tef::;ceorJu.-.»P<»- by it, are not to be pai" CONVICTION. 157 in any JC.23. pon any ublic. — linst this tment, or svilhout ce, &c. — 5 the com- conviction by the Act ^is Province the same us and c. 26. may be ' ad seaman, Si-Cm rade, or doing y person with grain. Con- alt and battery. ossemWoge of ,e fines imposed ustices imposing them but in the manner directed by the Act. By the 3'2nd Section, it is provided, that in default of payment of any fine imposed under the authority of this Act within the time limited by the Justice at the time of con- viction, it shall be lawful for hi in to issue his warrant to levy the same by distress and sale of the goods and chattels of the offender. And in case no sufficient distress can be found — then to commit the offender to the Common Gaol for any term not exceeding one month. Now the above are the only instances where summary conviction can be had before the Justices — in one of which, by sec. 27, he is authorised, on default of payment of the penalty within the time limited, to commit the offender to Gaol. The offence stated in the sec. 31, is therefore thr only instance wherein the above cited sec. 32 of the act will apply, in uhich case it is necessary, before commitment f the offender, that a warrant of distress should issue, ana that there should be a return of the officer charged with the execution of it, that he could not find sufficient distress whereon to levy the fine and costs. It has been stated as a general principle, and is besides ■specially required by different Acts of the Legislatures that the Justices of the Peace, should return to the Quarter Sessions, the summary convictions had before them. To save to the Justices the labor of making up a formal con- viction in every case, the Ordinance of the Governor and Special Council of the 2 Vic. c. 20, limits the form to certain particular objects which every such return shall contain, and to simplify the matter as far as possible, I have given a tabular form comprehending all these ob- jects. This Ordinance being a general law, will apply O r-^' CONVICTION. 158 r^articular direction or pro- i„ ^^ oases, whore 0>e.o - -/f ;,„, , .,„ u „o. pre- vison in lh-.s respeot o wU«e a 1 ,_„, f„, ,„. ,o*ed. This aisunc on sh <1 ^_ ,^. ^„, ^6, sunco, i"*«^tf , a*eoea, U.at the Justice before byboU. «C which .t - ^ ^^'.^^ j^ ,,,,„ return the same whom any ecV.et.on shair^e '. ;,^^^^ ^^^^_^ p^,^_„„, to Ihe ne^l General or Quar^ ^.^^.^^ .^ ^j„,„, ,t ,, by these Acts a »1«"»1 »™ ;' ^ ^ „„ae shall be in „eJssarilyfoUows,thatth-mrn .^.,^,f„„^ Ae form so l«^"''«;'''';';Cea here. that in the case of anappealtothe Sess,ons,o. ofaj .^,,^^„f^,,,^ King'sBench,theconv.c.,on beret ^^ .^_^^ ^^ ^^^ oases, must be '"*:P::r^"L;aa^ -here there is „.v on which ^f;2'tZ then in the g.«e™; form „„.ueh,«."«'°i-^^"^'"'-*^'''''"-"" DEAD BODIES. . , . .„ J body is not a felony, for a corpse The stealing of a dead ^J ,^^ „„„„„ ,aw " """•" «" !::r^del -or. -bemg a practice, contra a, a very A^B""' ■"T; ,„ ,he general sentiments and bono' «««». ""j *'"=\';f, .„ i„dLable offence at corn- feeling? of mankmd. t imprisonment, or »»" .aw, a,.d P;** ^i^l, r. ^. 652.-fi«». both.-l Ha/«. f ■ ^•^' DISTRESS. 161 ion tbus reltirnwi ler'sJury or man- 1, Edw. 2 him, and iver to graM ,8 bad before latule or Act nd when they nd ought to be ing them. ,jit5Yic.c.26- ony, for a corpse the common lavr practice, contra _il sentiments and B offence at corn- imprisonment, or >. C. 652.— !?««*• But though the stealing of a corpse does not amount to felony, the stealing of the grave clothes, coffin, &c., is felony— for the property of these remains in the executors, or whoever was at the charge of the funeral. — 2 BL Com. 429.-4 Bl. Com. 236. DISTRESS. Distress, is the taking or distraining — or the seizing and selling of a personal chattel to procure satisfaction for some wrong or offence of which a party has been con- victed. — 4 Deacons Dig. 367. It is a remedy given by various penal Statutes, either for awarding compensation to a party injured, or for the recovery of a penalty impos- ed on the party offending, in cases of a summary convic- tion before a justice of the Peace. To justify taking a distress, the Constable, or person making it, must have a regular warrant for so doing — must take only things distrainable — and the distress must be made in a proper time and place. By the 27 Geo. 2 c. 20 sec. 1, where a Justice is em- powered by any Statute to issue a warrant of distress for the levying of a penalty, or any other sum directed to be paid by a Statute, the Justice may order the goods dis- trained to be sold within a certain time, to be limited by the warrant, so as such time be not less than four, nor more than eight days after the distress made, unless the penalty and costs be sooner paid. By the same Statute the Officer may deduct the reasonable charges of the dis- tress out of the money arising from the sale — and if re- quired he must shew the warrant to the person whose goods are distrained, and suffer a copy to be taken. 02 . .^'-*: 11 ; /M DISTRESS. ^^^ J « the first dislresBi* „ i„ seizing for ^ «hole -^ "«• ^,„,„, „f the goods !::juenceofeeonv,co.-^^^^^^ confers only a PO*"*";"",,;, ,Ucre seems .o be no for the «'=°'"y°Vlllg«'e><»'''"'"'"* Jnt is therefore usual lor on express author.ty for *-' I™ ^ , ,•„ „.„rran.on "when the i^^ " ^-"P;"; t oflbe re"»"y ""''""f the refusal or "e^'-^X : l""* *" "" 'Tn 'of ,i„ited lima, it »ee">^ °Jf/,„ ,„, „f.er .he exp.rahon necessary 10 enable h.m tod ^^ ^^^^ „ I time.-6 E»''-^\;'J„lts has been given .0 pro- lento the Sessions, ""^'^ ;" ^„ ,„c conviction ought '^ute the same, all P'» f ' ' 1 shall have been deter- irrdt4"ettl%--"' »^ ^"'"^ "'"' hove been issued. c.„eont Hawkins, V. 2, c. H. 'it is laid down by Mr. S ?»»" ^^ ,„, ,evymg a ,eo 5, that fponthe warran ^^^^^ ,„ orfeit re, where the ">«"*„; J, fbreaking open order he King, the Offleer .» "f'f ^^,„„„t .. but there seem. aoors for the e''^"';" •'^*' ^^ther eases, where no part ,„ he no such power by a V of the penally « «»<»* •» *« ^„ charged with Ibeexeca- The Constable or oteF-^o" J__^ ^^ ,^, ,■,„«.»- tl„„ of the W-'^-'/fJ^^^'u, the Justice, what he h.. rtgned for the return, «• e"" » % DISTRESS. 163 5lresB 18 goods may ss enlirely ecessary a Statute provision to be no leffect. It ,g to grant warrant on , within the ) demand is xpiralion of n appeal is ^iven to pro- viction ought i been detei- ' dietreBS may 3,V.2,c. 14-, for levying a eof belongs to ngopen oxiter ut there seems , where no part with the execu- at the time as- ice, what he has done upon it. If he refuses to do so, or if he has levied the penalty, and refuses to pay it over, he may be pro- ceeded against by indictment or information, — 4 Salk. 380. If a corporal punis^limenl be inflicted by Statute in failure of sufficient distress, and it so happen that the of- fender being convicted of one penalty, has efiects suffi- cient to satisfy only a part, it has been held, that the goods ought not to be taken, but that upon the return of the Constable that sufficient distress could not be found, the corporal punishment should be resorted to. For the law never intended that a man should suffer both punishments for one conviction, — 2 Ld, Raym, 1195. — 11 Mod, 54-. Foriesc. 132. WARRANT OF DISTRESS. District op ) tice R. Esquire, one of Her Majesty's Jus- ces of the Peace, in and for the said Dis- trict. To any Constable, or other Officer of the Peace in and for the said District. Whereas C. D. of the Parish of in the said District, labourer, hath this day {or latelij) been convicted before me, the said Justice, of having (Jiere describe the offence, and the time and place, when and where com- mitted,) whereby the said C. D. hath forfeited and hath by me the said Justice been adjudged to pay the penalty of £> {and where damages are given for any injury commilted,then wy,) also the sum of JG for damages allowed, and adjudged to be paid, by the said C. D> for the injury by him committed to the property of the said A. B. (or for the valve of the articles stolen, broken f or damagedf as the case may be — and where costs allowed^ MMM 164 DISTRESS. then say,) an J further the sum of ■ *-;• I » by me the said Justice allowed and adjudged to be paid by the said G. D. to the said A. B. for his costs by him laid out about the conviction aforesaid. These are therefore to command and require you, and each and every of you, to distrain the goods and chattels of the said C. D. wheresoever they may be found within the said District ; and on the said goods and chattels so distrained to levy the said penalty, (^damages and costs, when adjudged, making together £ .) And if within the space of four day , next after such distress by you made, the said last mentioned sum of £ together with the reasonable charges of taking and keeping the said distress shall not be paid, that then you do sell the said goods and chattels, so by you distrained as aforesaid, and out of the money arising from such sale, that you do pay (here state the pay- ment to be made of the penalty as directed by the con* viction, which is generally one half to the Queen, and the other half to the informer or complainant — the dama* ges to the party injured with the costs, as the case may be,) returning to the said C. D. the overplus, the reasonable charges of taking, keeping, and selling tlie said distress, being first deducted. And you are to certify to me with the return of this precept what you shall have done in the execution thereof. Hereof fail not. Given under my hand and seal at ■ in the said District, this day of in the year of our Lord, one thousand eight hundred and (Signed) W. R., J. P, [Seal] In all cases where the Magistrate confers authority to an inferior oiTicer to execute his orders, or warrants, but more especially in those caeea where monies are to be ■-■■".' mSTRESS. 165 e the said laid C. D. about the command listrain the jever they m the said id penalty, g together r day next t mentioned B charges of not be paid, chattels, so the money tate the pay- by the con* ; Queerii and i-^ihedamtt' case may be,) le reasonable I said distress, ify to me with ve done in the yen under my :t, this thousand eight P. [Seal] sre authority to r warrants, bat lonies are to be levied and expences incurred, it is the duty of the Magis- trate t' ascertain that such orders or warrants are duly executed, and to correct all negligence or imposition in this respect. It is no doubt a primary consideration that justice should be correctly rendered, but it is equally essential that it should be correctly executed. The men who are appointed for the administration of Justice gene- rally have character sufficient tj secure the public confi- dence — they may err, but not from intention — but the executory part of the law must frequently be entrusted to needy men, who seek occasion to prumote their own interest by means not always the most jegitiuiate, and it but too often happens that the unfortunate individual who has not tlie means to satisfy what the law has condemned him to pay, becomes a prey to the rapacity of an unworthy officer, who, under pretence of granting !*ome indulgence, ■ome delay — or by some othe contrivance, finds means to increase his demand for fees, or other reward for his services, contrary to the ends of justice. Every warrant issued by the Mna;istrate should be regularly returned by the officer charged wi'h the execution of it, containing a statement of all his doings upon it, but especially of all monies received by him, whether as fees, or otherwise, and this upon oath, so as to prevent any r.ncUte practices. Although the party whose prope'-ty hasj ' -en 3ei«ed, or who has paid his money on any juc'gnrcni against him, has a right to see this return, and to know to what purpose Ins money has been applio yet this will seldom be required, as among the lower ranks in life, the officer armed with a Justice's warrant is considered entiUeil to all his demands, and to which they generally submit, without knowing, or being able to determine how far they \ 166 DISTRESS. ,„ eo,ree.. I' - '»<=-^t "ISeU^^P"'^ ='"' ^'"' L"v,ee.ao„e-»« .-havse. f- ' X" , feve,, Officer or r„g of ,ood.-an. aU <;';;*■; ;:,e:s.ouW be ^e„ and .axea by him, a.ul "•>"<•■-"'';';;.„„,„, „f au.ress may The above geoerf fo.m o a - ^^^ ,^^„, „f ,Ue „-,rc«m»tance. nv,.y req«.o. \ 1 !< ^ C„„.atorc..nfo.«a„tofl)-..-s. Constables n-Aui- — - . VV. K., E.c,.are, one o He, M^^^^^^^^^ PeaeeinanaforO,o.a B; J ^^^,^^,,„,^^^^^^^ warrant of J^^^Vw R and bca.i.,g da'e »' „„d seal of .be ^aul VV •«•'»"_!_ j^y of __— »"« in the aaiJ Di>l">^>' ^^ "-", . commanJing and ,„„„sana eigb. ""f" '"tX d-,Mro.s anJ sale oftbe reqm™gn,e I" n'"*'" " "' ^ ^^/.ne Pori^b of— -— good, and cbuueU of C. O; ___ , l.ave „,aJe ddigen. searob '^^j'' ^ ^,„ .,f „,e sa.d CD., n> *e find, "'«---'"e""'''r, Jo cvi- '"« "f""---'""'™™ "' ,„a ».«■"■., """-^V I ofdWbe., I am com- . as by Ibe a"d "arr,, ^j^.^ „.„ded. Given undeMnyJ-nd "'"'^"^ "(Signed,) P.D., C«»..(«We- DISTRESS. 167 } Ibr sell- er or sinay of the /ied as the said return to pes of U^e lue of tl^e signature . one landing a"^^ saie of the _ I Imvc , nor can 1 •osfvid BUUl of J 1 am com- - t\iis ' 'ons table- In order furtlier to assist the Constable in the execu- tion of his dut}', in the case of a seizure and salo of goods and chattels under a warrant of distress, I would here make some observations which may be useful for the re« gularily of his proceedings. Upon receiving the warrant of distress, the Constable ought to go to the residence of the defendant, or person against whom t'lo warrant has issued, and after announc- ing his character as Conslable, and the autliority with ""'hich he is vested, to demand payment of the amount .aicd in his warrant, and on deniult of such payment, to attach and seize sulTicient of the goods and chattels of the party to cover the amount in question with the costs to accrue thereon, llie Constable must make a statement, or what the Bailiffs of the Civil Courts call a j;roces verbal of what he does in tliis respect with an invenlory of all the articles seized, and of which a copy ought to be given to the defendant. It would be advisable that some person should accompany the Constable on this occasion, for the greater regularity of his proceeding-'. The goods and chat- tels seized are to bo removed by die Constable, and plac- ed in safe custody until the day of sale, limited by the warrant, unless lie receives such security as can induce him to rely that these goods and chattels will be forthcom- ing v- hen required, but this must be done on his own lesponsibility. The sale ou ('■«»^*"5 '^ '*!• Id and contained in the .he' •'^«'""6^ ., ^uere being, lexmi' r„m.iZi/ «— aforcsa»a, where ^^^^^ ^^ family demanded paym ,^„ ^ade, 1 P' which payment not hav.ng Ht '"ti DISTRESS. 169 . copy rgea of bytbo \d ant- received )wed, or severely Constable d3 and goo' ,\rtne of a .cted, «n^®' one of Hec gaidD\stv>ct, ^e red and " , and for t^e r me to ma>ie Jnd chattels of outer, the sum n of ^ "" 7* .niained in ihe ontained in the aus day went to said C. D. at i\,Ued to t\^e Bald house or family then and there sums) of money, . 1 proceeded to attach and seize the following goods and chattels, the property and in the posses^ioa of the said C. D., that is to say, (//(j/*e stute the several articles seized) which said goods and chattels I have taken into my keeping and possession (or have left in t'le possession of the said C. D.f if satisfactory security be given in this respect,) and did then and there notify to the suid C. D. that I would on the — day of instant, at ten of the clock in the forenoon {being within eight days after the seizure) at aforesaid, proceed to the sale of the said goods and chattels, if the afi)resaid sum (or suvis) of money should not be sooner paid. And whereas afterwards, to wit, on the said day of instant, the aforesaid sum (or sums) of money in the said warrant of dislrcfs mentioned, not hav- ing been paid, I the said Constable, afier due notice given did proceed to tiie sale of the aforesaid goods and chattels of the said C. D., so by me seized as aforesaid, and did adjudge the same at open and public sale to the best and highest bidder, in the manner ft)lIovving, that is to say, — ARTICLES SEIZED. NAME OF HIGHEST BIDDER. PRICE OF ADJUDICATION. And the aforesaid sum (or sums) of money in tl^e said warrant of distress mentioned, having, by means of the Hale aforesaid, been levied, and also the further sum of £ taxed and allowed for the charges of taking, keeping and selling the saiil distress, the overplus (where embejzi-emest. • N „f the proceeds of the satd »ale, „„y overplus '«»«"«):LtasV n,e the said Constabk> aroountitig to £ ^ p. a„d a copy of thew this day paid over to *« ^ '^^^^, ,„ ,;„ (or kft «* *" presents at the same *•>"« ^_;"'; q^,, at — — - r.»rf«.c., «»«A« "-^aily of- «"» *''°"'''" aforesaiii, this ■ ^_ eight hundred and * ^^ p^^ Constable. DI STVEBA.CE O. PUBLIC WORSHIP. See Church. DOGS-STEALING, see Act 4 and 5 Vice. .5, sec. 30. DWELLING HOUSE. 4and5Vic.c.25,s.l*»l6. Setting five ^0^^^^ ELECTIONS-BRIBEBY AT. See Bribery. EMBEZZLEMENT. ^„he»>e,nent is P-P"'[;"f tj theVhCAc., EMBEZZLEMENT. 171 d sale; istable, f these ; at his lousan'l hie, IP. ). master's account and embezzling it, shall be deemed to have feloniously stolen it, and are punishable by imprison- ment and hard labour. - Agents embezzling money entrusted to ihem to be applied to any special purpose, or embezzling any goods or valuable security entrusted to them for safe custody or for any special purpose, are guilty of a mlsdenriCanor and punishable accordingly. — Sec. 41. But independently of any statutable provisions, it seems that any person filling a public office who abuses his trust, by embezzling or misapplying the money or effects committed to his charge, is guilty of a misdemeanor at common law. Thus a Surveyor of the Highways, who uses the gravel and material obtained for repairing them on his own premises, and employs the public labourers on his own grounds, may be indicted for a misdemeanor. —3 Chitt. C. L. 666.-2 Riiss. 223. c. 25,5.2, 3. ,40,41. as a species of the above Act, J, &.C., on their Information by a master against his clerk for embezzle- ment. District of ) Information of A. B., of the Parish of ) in the said District, Merchant, taken before me, W. R., Esquire, one of Her Majesty's Justices of the Peace in and for the said District. The said A. B. being duly sworn deposeth and saith, that C. D., of the same place, being his clerk, and employed by him, the buid A. B., to receive money, goods, and effects for and on account of him, the said A. B., his master and employer, did on the \ )H I ^2 EMBKiZl-^*"^'"'' , . , . aforesaiJ, receive aii.l .,3y of- ■ 1»^Y, „„a„„ accovnt ol >he said A. fi. ,ake inlo liis custaly, to an Ion ,„ „■„, on „ .um of (u..«(y yi» P»"'"^ ' =':^;^^,, and secret .he .,e same day, did felon.ou.^ n ^- ^ ^^_„,^ ,„ prays Justice. iWct, tlv.s ■ d«y ^f ^ (Signed,) A. B. 18 — , l>efore me. W nrilicti^fP— .asina.^^^^^^^^ a„c^ to appear and g.ve evJence a, «^ ^^_^^^ ^^ Wtobehad, amltocomm,,, ortoadmd P b,d as circumstances may requue. ,„rorn.ation.ya.nerc«.anta,a..^^^^^^^^^^^^ for embezzling money entrusted to h,m lor P°^^* f A Tt of the Parish of — - B.S-- °M ^:!ltre:li^B'-^'. -^er, taUen be- • % o W R , Esquire, one of Her Ma- P;£of.:cPeaceinandror.he The said A. B., being^^ ^^ ^^^^^ ^^ ____, thai on ■ ^y ° .^^ ^^e gaia pistrict, trader, aforesaid, C . D •> o* "■ EMBEZZLEMENT. 173 ve anA LA.B. wit, on ret the itrary to herefore 3. f felony i^^ a warrant nation and f ecogniai- vvliere trial pri^5oner to nt, or broker special pur- 'arish of tier, taken be- e of Her Ma- in and for the setb and saith, district, trader, was entrusted by him the said A. B., with a Check on the Bank of Montreal, made and signed by him the said A. B. for the payment to him the said C. D,, or bearer, of a sum of fifty pounds, witii directions, in writing to him the said C. D., as the agent of him the said A. B., to ap- ply the said sum of fifty pounds for and towards the pay- ment of a larger sum of money, then due and owing by — aforesaid. day of the said C. D. Iiim the said A. B., to one G. H., of — That afterwardsj to wit, on or about the - ' — iiisflant, at aforcsnid did receive and get info his possesii , the amount of tiie said check from the said Bank of AT n* eal, for and on ac- count of the said A. B., but did not ly with the di- rections so as aforesaid by liim given to the said G. D., as sucli agent, but in violation of good faith, he the said C. D., did embezzle and convert the said sum of fifty pounds to his own use, to the said injury of the said defendant — wherefore prays Justice, &c. SvvoiT. at Distric*. this - 18 in the said — dav of , before me. (Signed,) A. B. (Signed,) W. R., /. P. The course here is the same as on the preceding infor- mation, observing however that in this case the party is intitled to be admitted to bail, should sufficient bail be of- fered. Information against a factor or agent entrusted with the sale of goods, lor pledging the same to his own benefit. P2 S- IMAGE EVALUATION TEST TARGET (MT-3) k /. A 1.0 1.1 ki»2A mis Jf 1^ |22 £ U& 12.0 u m iUi iiy^ :■■«!; ■ I^iolDgFaphic Scifflices CorpoFBtion :i>^ >^ 19 WMT MAIN STRHT WntTIR.N.V. I4SM (7U)l7a-4IOS ^ ^ ^ ;\ ^\^ %0 ;\ 3^ smbezzlement. n f A B of ibe Parish of S : „ w R., Esquire, one of token before me, W. K-, ^ "* j ^ HetMajeslj'8 Justices of the Peace. for iVie said D»"""- ^ and saith, The«idA.B,beingd„iysworn.dep;^';^^^^^,,^ that on ot o*""' *!,~T;I ,„„e place, merchant, wa. Parish aforesaid, C. »-.«/ *7" I, ,g^, and factor ot entrusted by him the sa.d A.^-> ^_^_, merchandize, him the said A. B., w* «rt»J « ^„4 ^.^eiions to of .he value of fifty P°»* ."ltd factor, to sell and d.^ the said C. D., as »* »^"'J„handizes for U.e benefit ^ otthesaid go«ls and mere ^^^,„.,iC.D. Sbchoof of himthe -^ ^.B ^^^ ^. . ^ ^^ «Uhout any »"*7'J"it^e,i„n8 aforesaid, afterwards, eontrary tohisordersanddrrec ^^ ^^^^^ 10 wit, on the--— ,,„' a dispose of the said goods aforesaid, d.d pledge ""^ « J j f„, his own n ^.Wherefore, &.C. , ..^ ijisuii^ jg _ , before me. j (Signed,) W. R-. J- ^ ^,.„ o... is the .am. " »» The course of proceeumgm thelastprecedinginformatmn. ESCAPE. ^„ .K«J., i. «'»" •";::^:, due cotua. .f Uw. hi.Ub«»ybefo«hei.dd.ve.ed y ESCAPE. 175 Irish of >tcbant, one of :e in and md saith, Bt, at the ihant, was ,d factor of rchandize* ireclions to ell and diB- the benefit 5 said C.D. A. B., but , afterwards, last at e said goods ^ for his own m the said A. i) A.B. the same as on rty arrested, i^ins DOttweofU^* Escapes are of three kinds, 1st — by the party himself; 2d — by an officer or person having the offender in his custody — or 3d, an escape caused by a stranger to the arrest, which is called a rescue, 1st. All persons being bound to submit to the judgment of the law, whoever, after being lawfully arrested, refuses to undergo that imprisonment which the law imposes on him, and frees himself from it before he is delivered by due course of law, though he use no force or violence, is guilty of a high contempt, punishable by fine and im- prisonment, — 2 Hawk. c. 17, *. 5. — 4 Bl. Com, 129. But to render any person criminally answerable for an escape, there must have been previously an actual arrest, justifiable in point of law, and a legal imprisonment or restraint continuing at the time of the escape to constitute the offence, — ^2 Hawk. c.l9,s, 1, 2, 3. — 1 Hale. 194. 2d. Escapes suffered by officers are either voluntary or negligent. A voluntary escape is where the officer knowingly gives a prisoner his liberty, with the intent to eave him from his trial, or punishment, by doing which the officer is involved in the guilt of the crime with which the prisoner stands charged, — 1 Hale, 596. A negligent escape, is, where the party imprisoned escapes against the will of the officer, and is nut freshly pursued and taken before he is lost sight of. So if a felon escapes by force from an officer, the latter Is not wholly excused, as he ought to have taken sufiicient strength to Mb assistance, — 1 Hale. 602. 3d. The offence of a stranger or third person aiding and assisting a prisoner to escape, is called a rescue — which see. 176 ESCAPE. Wa^nuo apprehend a perse, fo. e.cap.ns r>on. Gao> "^'o^^romthe House of Correcfon. ^^ D,sxK.cx o. ) W. B., Esq-e- °ne ^_^^ ^^^ ^^^ ^^., \ Imuces or Ihe Vea _^^ ^^.^^ District, to any Constame i„ and fot the saiJ DWwt- f ihp Common Goal, (.o"^ °» «-^(;J;„, J, ,„, „,t of the _ for the sa,d p,.tr.tt, a ^^^^ e.-^^»f!'--t:h:;tmV!r;"saidCD.tvas the expirawn of the term __^_j ^^rf,„. „,aered to be impr.soned, (0. J/ ^; ^^^j ^^,^^.,„^ ^tion Aen say) to f «^ 'J^ f^,,, „f G. F., Esquire, by warrant under *'=,'>",, ePeace in and for the oleofHer W's us^oe "f^*^^^^ „, ,aid Di..ne., on » J^-'f ,„,f„„ .„ command yo.,. offence may he.) 1 h^^ ° .„„rehend and bring before .1 each and every f J™;^" 3'^f,„,i,es of the Peace „e, or some other of Her Majcs^J ^^ ^^_^ ^^y for .'.e »" «:;:te'';Xr deai; with according to law complaint, and to be luriue .^ ^^^^ ^^^^^^ Given under my hand and seal at ^^^^^^^^^ , . . day 01 District, tbis ■ ^ eight hundred and --^^^^^- ^ ^ ^ p. ^g^,,] The g»n.ing of the warrant must ^"Pon;;^^^ 'm ESCArC. 177 Gaol esiy's e said Officer {or of ith this he said jscapeil lion) at i of the f, before D. was condem- Mtimiltoil Esquire, [id for the Uever the land yow» •ing before the Peace 3 the Haid ing to law. in the said e thousand jEAL.] die previous the Goal, or ir person on oath, stating the fact of the escape of the prisoner. When the prisoner is arrested and brought before the Justice, his examination and that of the witnesties must be talien in the usual manner, and the prisoner committed. Warrant of commitment for escaping from Goal or House of Correction. District of ) W. R., Esquire, one of Her Majesty's ■ ) Justices of the Peace in and for the said District. To the keeper of the Common Gaol (or of the House of Correction) for the said District. Whereas it appears to me, the said Justice, by the information and complaint on oath of you the said A. B. (if the keeper is the person making ike information, but if made by any other person^ then state the name of that person,) tlial C. D. hath unlrwfully and wilfully escaped from the Common Gaol, (or House of Correction) of the said District, and from and out of the custody of the keeper thereof before the expiration of the time for which the said C. D. was ordered to be imprisoned, (or if before trial and condemnation, then say,) to which the said C. D. stood committed by warrant under the hand and seal of G. H., Esquire, one of Her Majesty'b Justices of the Peace in and for the said District, on a charge of larceny, (or whatever the offence may be) These are therefore to command you to receive into your custody the body of the said C. D., and him safely keep in the said Goal, (or House of Coneciion) until he shall thence EXAMINATION. -%.. 178 « of law. Given under my ^ delivered by due --e^on-^^^ p.,trictthis^ hand and seal at — ^^^^^^^^^^ ^.^^^ j,„„dred and ^ — day of- and assisting such escape. EXAMINATION. I co«»d" »o be h.gMy '«f»' „f his duty. .,„*eperfo.™ance of anes^m P ^ ^^^ „ these observaoons I l-*'" ""^^ J, ,,e rt.te» on this head, .Ua« notice more parfcuMy vha ^^^^^^^ ^^^.^^, .. .he risk of repeffon, from a c^ ^^_ „eri« .be best ««»■;"»" "^ *;,,7,L title imposes one of The duty comprehended under in ^_^ ^^^^ .he most arduous of *oee wh.h « JjU ^_^^^^„^ ,„ h.stoful6ll.a^«eUas one 0' ,^ ^.^^^ p,„priety and interests of society. 1 e ,4 „„4 „f „,„- effect requires some kno«WofJh .^^^ ^^^^ ,^ V,„d. and also -mo -w^ | /^^^^ ^__ ,^, .„,j,„. To g„ide the Jusl.ce m h« '"™' '\ ^^ accusation, are the I, ,ble to discover ... what •"»"«' „y squire V i„pul«, of malice and P— ,; 'J.^Me'him ,0 protect ,. Jbest ability of the M^' -".^^ ,„hject, which may the rights and person"' >''«"!' EXAMINATION. 179 nder wy this jdred and 3 meet any ona aiding lalive to the made some ali&ns which of the Peace his duty. Of 1 a part, and B on this head, hat the subject imposes one of 5 of tl>e Peace mportant to the h propriety and Id and of man- riminal Law to his subject. To cusations are the frequently require ble him to protect )ject, which may be brought into jeopardy, or abridged by such accusations. This is also requisite when the accusation is n)ade by an illiterate countryman, or a feeble woman against a harden- ed villain, or an accomplished rogue, who is always ready, by bold assertion, or by plausible pretence, to assert his innocence, by any of those artful contrivances which guilt too frequently employs to escape the hands of Justice. This title resolves itself into three distinct heads of dis- cussion. 1st. The examination of the prosecutor, or party injured. 2. The examination of witnesses. 3d. The examination of the prisoner. 1st the examination of the prosecutor. This is called the information, — which is to be taken in order to lay a foundation for all the subsequent proceed* ings, or in other words, for the purpose of stating such a probable ground of suspicion in the mind of the Justice, that an offence within his cognizance and jurisdiction has been committed, as will justify him in calling into action that authority with which he is invested, for the detection of crimes. This must be reduced to writing, but previous to doing 80 it is advisable that the Justice should make himself ac- quainted not only with the principal parts and general outline of the case, but with all its circumstances, and all its bearings, by patiently hearing the informant's narrative in his common way of relating events. This will enable the Justice to comprehend any ambiguous expression, ■!( EXAMINATION. „er. It wUl make h>m fan-tot « ^^ ^_^ __^_ a„.cona.ra, ei— --^«'' :Z^Z^. of *e ^^ »™''«t.i;U.V.U enable him by h«.b- principal fact. Above all rt J ^^^ ,^^ „. Lvation o„ the ">-"«•;',;" a.scover, without dif- amination, nine fmes on °f '^"' ^^4 ,^,e that merits ficulty, whether it « ^ P'^^J"™/" l,.rage,uent of the ,.„ utmost,.*- <^-fj; „,,„aer-or whether proseoutot, »"* *» ^' f?""" tion of an inielligent knave, Thr;e.ste.i.orea«ee.l.m^^^^^^^^ i„,o writing in a P'^l" "^"^ '" ^^e has already toU his .ocordingtotheor er . wh-^he ^^^ ._^^^_^ ^^^ ,tory -P-Pr;'jlVs possible. In a few part- „ords,orasneary th «t P ^^^^^^^ ^^^^^^ . cular offences, the very w ' educated un- poV,shedear.however^ung-^^^^^^^ ^„ ,,^, Uerstanding. ^^'^^^^'^^/^ tiult with intent .0 commit Sa««i..ani. l,„p„n.beexaminaUo»;J ,:Le ,^ „,, .„ ^a fesUy appears, erther that no ™ ^ entertained of ha, been committed, or that t J „, .he prisoner is ""f-^t'tU lawful for the Magistrate „ Jnd for judicial enquiry, t. slaw ^^ ^^.,_ vholly to discharge h.m wrthout ex _^ ^^^^ ^33^ _2 Hnk. 121. A "' » J JO oommit any one, exercise of a -"^J-^': nTade out against him by unless a pn*a /«cte "=»^ ' „f e^dit. . '■ witnesses entitled .0 a «^»'";*'^7,oc»sed, it is of the Ktherebe more than one pe^n ^._^^ ,^,,f„„ greatest importance for the d>scovey ^^^^,^ '*e moment of the,r arreB..*e h ^^^„„„,,,,, f,„.„ one another, and havener P ^^^^.^^^^^ ,h„„,d either verbal or «r..ten, *»' ^„, „f ,hem should know be taken separate y, that n ^^_^^ ^^^^^ ^_^ „,y „hat has '«»/'';"{' !ay be confined in different apart- •■t;.v '^tt,- EXAMINATION. 185 nd offer \ Ueter- asc, he Act of nothing nny such of any appear ducive to f II r it mani- lat alleged ertained of jpeara no Magistrate or bail, — Hale. 533. ound in the lit any one, inst him by- edit. , it is of the les, that from kept separate (Himunication nation should I should know Buch as may different apart- e special orders son. Offences 5 generally dis- covered by the variations in their respective examinations ; but this cannot be effected, if the parties have an oppor- tunity of communicating with one another, and of fabricat- ing a common defence. Form of Examination of the Prosecutor or Witnesses m a case of Felony, to be taken in the presence of tie prisoner. District of taken this — hundred and • The examination of A. B., of the Parish of in the said District, yeoman, day of one thousand eight before me W. R., Esquire, (or before «*, iftivo Jmtices are present, stating the name of the other, ) one of Her Majesty's Justices of the Peace, in and for the said District, in the presence and hearing of C. D., of in the said District, labourer, charged before me the said Justice, {or us the said Justices,) with having feloniously stolen and carried away on the day of instant, at aforesaid, one silver watch of the value of five pounds, the property of the said A. B. And the said A. B., being now duly sworn doth depose and say, in the presence and hearing aforesaid, that &c., (here state the circumstances of the larceny as given by the witness,) and further saith not j — Whereupon the said C. D. now present and having heard the said examination of the said A. B., is asked by me the said Justice (or us, the said Justices,) if he the said C. D., has any questions to propose to the said A. B., — and the said C. D., having declared that he has no questions Q3 186 EXAMINATION. to propose to the said A. B., his said examination is now closed, (or if the party propose any questions let them be taken down and answered^ and then dose the examinu' tiott, by the witness and the Justice or Justices subscrib- ing his or their names thereto.) Sworn and examined at in the said District, the day and year first above written befor me (or us.) ^(Signed) A. B. (Signed) W. R , J.P. (Signed) /. P. V i:. Form of examination of a person charged with felony. District of ) The examination of C. D., of the Parish ) of in the said District, labourer, taken before me, W. R., Esquire, one of (w if before two Justices, then naming the other, and say, two of) Her Majesty's Justices of the Peace, in and for the said Dis- trict, at in the said District, this ■■ day of one thousant eight hundred and ■ the said C. D., being charged before me the said Justice, (or us the said Jusfjees,) with having at the Parish aforesaid, on the day of instant, feloniously stolen and ca^i^ away a silver watch, the property of A. B., of T^jp-^-r in the said District, yeoman, of the value of fi^f/m)un(l8, and being by me the said Justice, (or us, the said^usfices,) required to state, what he the said C. D., hath^ji^y in answer to the said charge, the said G. D., doth^n^w here freely and voluntarily say and de- clare (here sit "forth the prisonert »*ntemeni, whether he conftsseth or ^enieth the charge, and the whole being ^ #» .1^ EXTORTION. 187 1 is now ( ihem be subscrib- ) A. B. with felony, ftlie Parieh ct, labourer, if before two wo of) Her he said Dia- day of ^the id Juslice, {or pish aforesaid, U, feloniously e property of Boman, of the lid Justice, {or lat he the said large, the said ly say and de- enii whether he he whole being taken down, read the same over to him deliberately and distinctly, and if admitted to be correct, require him to sign ; but if he connot v:rite, let it be so stated. If the prisoner refuse to sign his examination, this ought also to be stated. If the prisoner make any observations or re- fuse to sign on account of any thing incorrectly taken down in his examination, or differently to what he intend- ed, the Justice ought not to obliterate what he had taken down, but to add io what he has already written, as fol- lows,) — and the said examination as above written, having been by me the said Justice, distinctly and deliberately read over to the said C. D., he objected thereto, that it had been incorrectly taken down in the said examination that {here state the part objected to) whereas he the said C. D. meant and intended, or did state, {here take down the amendment proposed by the prisoner, and close the examination.) Taken and examined at ■ aforesaidjthe day and year first above | written, before me, {or us.) (Signed,) W. R., /. P. (Signed,) /. P. The foregoing forms will apply to ali-cases of examina- tion whether of the witnesses, or of the party accused, the principal object here being, to take down correctly what the witnesses and the parlies say. EXTORTION. Extortion is an abuse of public justice consisting in the unlawful taking by an ofiicer, by colour of his office of any money or thing of value, in any case wh'bre either none at all is due to him,— or not so much is due, — or before any is due, — 4 Bl. Com, 141. — 1 Hawk, c. 68. (Signed,) C. D. EXTORTION. oomroUted. ,„ „biain money from 1>" take inote tolUlian B ««»»>• !*'• 1.0 are bound by *«' «»"'"' Lfcesof*' peace ^^; "^;„,„„ „c .heiroffice.bu „Oice to lake nothing Cor Ihe «« ^ „^,e limited by "oHhe King, and f-^^^X /officer can take any Statute. And generajy "° JJ ,„ hi„ by Stalnte.o !U fee. or -"'^ *:;rac-.on.aUy taUen.w.thont nuchas have been ancenuy --!::i!:^-:'t,:.id-^^-;; ;;rbeforo me, W- «- ^^Ih tid District. The Cices of the Peace, m and to tn ^^.^j__ ^^,, c. U A. B. being duly ^^-^'^^ ^, B-,.ric., oMhe n., „r .he Pariah of " ^,i„g ,hcn one of the """ ^ Jay of ' f Her eaid M" e»ty, •" 1 ii B bv virtueofawarra' peace of the said A. »•> °y . .^ justices of mo re FX \T10N. 189 is a by a was fi his ,-\n roccBS ule or nan to -iLd. oath of [ice,but .ited by ake any atute, or ijwUhout Parish of ^ yeowan, Majesty's rict. The vb,thatC. rict, on the y one of the Majesty, in into custody G., Esquire, ho Peace of t, directed to ,d for the said ,ring the body of him, the said A. B., before ihe said J. G., or some .^ other of Her said Majesty's Justices of the Peace?, to answer to the complaint of one P. D. for having assaulted .^ and beat him. 'I And the said A. B. having been arrested by the said C. D. on the day and year aforesaid at the Parish aforesaid, did fraudulently and by extortion demand and obtain ol and from the said A. B., the sum of five shillings, under colour and pretence that be the said C. D. would get the said warrant discharged without any further proceedings being had thereon. Whereas the said C. D. did not get the said warrant discharged, to the great damage of the said A. B. Wherefore he prays justice. Sworn at — — in the said District, this day of 18—, before me. W. R., J. P. (Signed,) A. B. (Signed,) Any other unfounded pretence may form a ground of charge against a public officer for demanding and receiving money or other thing as fees or a reward for pretended services, not required or allowed by law, as, — against the Constable for threatening to take a prisoner to Gaol, instead of carrying him before a Justice of the Peace, and obtaining money in consequence,— against a Constable for fees for his services under pretence of procuring bail for a prisoner, — against a Bailiff for exacting fees and a reward under pretence of granting delay to a debtor on an execution against his effects, — against a Clerk of the Market for exacting more than was due to him for any cart, stall, or bench in the Market Place or for any duty performed by him, — also against a Toll Collector for exacting more than was due to him. ,.BS TO CLERKS ANT BAlurrS. V- • oi ohipct is to state tne I„.n,hesa cases, the V'f"'ltC „el. «»? « «» """■ TALSE PRETENCES. See Cheats. .. uffs in eettai- e^^" '">"""," j.^; 3 Vic. c. 15. S, 6, to Governor and Special Counc^ f > 3 V^^ ^ ^^^^^, ,,„ thefirst Jay of J'"""''*!' ^deranj pretext whatsoever, that is to say- By the Clerk For drawing up a deposition - ^ For drawing up a warrant - For drawing up a bail bond For making out a mittimus^ For a summons For each copy - For a sub-paina For each copy - ' FortheentryofafinaM«^g™««^ 2 2 2 2 I 1 . 1 d. 6 6 6 6 6 6 6 3 FEES TO CLERKS AND BAILIFFS. 191 tethe as to by the J of the jame as enliiled against [PLOYED ,itu\ed«An by JueWces erUB or Bai- [.anceofthe .15, 8, 6, to greater fees whatsoever, mentioned » 5. d. . 2 6 1 6 - d 6 I 6 . 6 . 1 . 6 . 1 3 For each copy of any entry made in the Register hept by such Magistrate, at the rate of sixpence for every hundred words, provided always .that the person per- forming the duty of the Clerk, shall not require any payment for any paper he may prepare in any criminal prosecution, (assaults and batteries excepted,) and shall, under the dictation and order of the Justice of the Peace, keep the Register of such Justice of the Peace without being entitled to any remuneration for so doing ; and such Clerk shall likewise, at his own cost, (either by employing a person to do the duty of Crier, or otherwise) cause order to be maintained durirg the sittings of the Court, and shall execute all the orders which shall be made by any such Justice of the Peace in that behalf. By the Bailiff— s, 5 6 For executing any warrant of arrest - For his assistant, (or record) - - - For a seizure and sale under execution, — tht> publication included - - - 7 6 For his assistant .... - 2 6 For a seizure only, not followed by a sale, one half of the said fees - - - For the service of a summons, sub-psena, or order ------ 13 For each league travelled to serve the same, the distance in returning not to be reckoned 10 For each official return of illegal resistance - 2 6 For his assistant - - - - - 13 Provided always, that wherever any Bailiff or Consta- ble Rhall serve several summonses or sub-peena for the .4^' ^•^; ^«ir« AND BAlLfflS. FEES TO CLERKS ANB ^^^ . ond on tbe same road, By sec. 3. Every V exceeding tive p Act BbaW be liable to a pe'^^^'y* ^^^^e any Justice of tbe 1 ihe other moiety biwi and tne ow p-ovince. T.-.tice of the covered and apphed m tne ' v, Utr sec. 6. '^'^ " ,, ^,,lprs of Justices 01 w^ V)e administered to a^ _ „,ay therefore adopted. FEL0N7. 193 e road, as for 3 pounds •e of the jreof one .\)le costs, ty, for the itice of the ed shall be. Peace, to sempower- aibe enre- >eace. rfortning the iting the or. manner repre- -h Justice of ,gs, to be re- ad in the third King's Bench, es of the Peace la being neces- bles* J any Statute to e general form OATH OF A CONSTABLE. You swear that you will well and faithfully execute the Oiice of Constable in and for the {County or District) of — — ^— as by law required, and according to the best of your knowledge and ability. — So help you God. FELO DE SE. A Felo de Se is one that commits felony by deliberate- ly putting an end to his own existence, or by committing any unlawful malicious act, the consequence of which is his own death — as if in the attempt to kill another, he misses his blow and kills himself, or if in shooting at another the gun bursts and he himself is mortally wound- ed. — 1 Hale. 413. The party however must be of years of discretion and in his senses, else it is no crime. — 1 Hawk. 68. But it is not because a man acts contrary to reason, that he must be held to have no reason at all, — otherwise every other criminal might be proved non com- pos as well as the self murderer. Tlie law therefore right- ly judges, that every melancholy or hypochondriac fit does not deprive a man of the capacity of discerning right from wrong ; for even if a real lunatic kills himself in a lucid interval, he is a felo de se as much as another man. — 1 Hale. 4>\2.~i Bl. Com. 189. FELONY. The definition of the word felony, about which some writers have taken much pains, is of little importance in a practical treatit^e. It is suflicicnt fi)r my purpose here to R •rr¥^3^y IS^' es of crime wWch '=""'" J Ueame attached to *« J ;„ ,echmeal For Ibe several kmu's FENCES. And forms of conN ' FORGEBY. '' fnlselv FORGERY. 195 )r goods* ) si.mfy nee, a«on of ^>);f -taC U enacU .hat any perso«^ and otthe Bank of M°""^"'' „„.. bond, Ml, or noteof :^ J these Banks, vv* '^J^J^^.ed insuument know- „" pass an, such forged or co«n.e^« ^^^^^^ ^„,„y „t felony, and pumshaMeb.___^ , f„,,ed Bank Note Commttment for Felony in «««'"8 ^^_^^ 35_ '^ rndertUeActoftandSV -c .^^ ^^^^ ^^jestfa " District. . ana for the said District,— ana '" of the said District. .j constables and These are to ^''"""f ^^^ *„,. of yon, forthwith to Peace Officers, and each and^ev y^^ ^^^ ,, take, and to convey and dJ.ve ^^ ^ p.^ of U««^*«::l^Tth'^;>Bi--.re|u.chaj«. the Paiislt of ,,,e „alh of A. B. oi tne ei before me the sa.d «s ee^ ^,,^ d„y of «.„e place, trader, w«^^- = „f„,esaid, felonioudy ut- .. instant, at the l""'.'" ^ j „„d coanter- ^Td. and disposed of a ce..a n f^»e fo i^ • ^ ^^^^ ^^^^ , fe, ianknote. P-P°'';„ of on"^ pound five shillings, he Montreal, for the paymeM'.f.r ^^^^^^ , the said CD. at the time d^ ^^^ eounterfe.ted. ^Jfa'^Bp^^ FORGERY. 197 Bank) person • note of a\l offer it know- guWty of a labour. ink Note • Majesty's or the saiil and for the Timon Gaol r^stables and forihwitli to stody of the of CD., of pedlar, charg- f A. B. of the day of feloniously ut- and counter- jfthe Bank of ive shillings, he said note, well d counterfeited, lontreal, contra- /ided. required to re- ceive into your custody the said C. D., and him safely lieep in the said Gaol until he be from thence delivered by due course of law. Given under my hand and seal at in the said District, this day of one thousand eight hundred and . (Signed) W. R., J, P. [Seal] The information to ground the above warrant, must cor- respond therewith and contain the facts therein stated, — the other proceedings, — the examination of the prisoner and witnesses may be taken occording to the forms before laid down in other cases, observing to include in each the substance of the charge against the pri&oner. Commitment for feloniously altering a Bank note, and uttering the same. District op ) W. R., Esquire, one of Her Majesty's Jus- ) tices of the Peace, in and for the said Dis- trict. To any Constable, &c, — and to the keeper of the Com- mon Gaol for the said District. These are to command you the said Constables and Peace Officers, and each and every of you, forthwith to take, and to convey and deliver into the custody of the keeper of the said Gaol, the body of C. D., of the Parish of in the said District, huckster, charged before me the said Justice, on the oath of A. B., of the same place, trader, on suspicion of having on the day of ■ " instant, at the Parish of aforesaid, felonious- R2 iptmnmni 198 GABDEW* lire f .!,» Bank of Montreal for the ,y allered a Bank note of *e B»nk ot^^ ^ „„^ Lmentof five dollars, to »»''«";,„, ,„, that he Vthesaid Banle forthe^um. fift5^»> ,„,U day before ^Ue said C. D., afterwards to w^, « ^^^_^_^.^^^,y „„„ mentioned, at the ^-^ "'"^s ' ,,^,d, as and for a „„d put away the ^»'J J^^^^^^^^^^^^ .,„,e„tto defraud the g«M Bank note for fiM";'"^ J„ ,„a there well know- said Band, he the sa.d C- »•. ' ^„j „„„„ttrfeit- ,^ *e -*«-\":::„'^.„^re Aot'ln such oa«. nrade ed as aforesaid, contrary nSr*esaiakee^.u.--,;e^^^^^^^ rsrfnriS'----^'--^''^^" course of law. . -in the said Xen under my ^nd and seaU^— _ ^^^^^^ . . day 01 District, thts, ^ ei,ht hundred and-- ^'^j^p, tS.x..l «■„« shew the manner of staung The above will «»««;; ^^J .,„ .^ information or ,,e complaint in f»'8^.7. -hethe^Me, and indeed unne- "*'' "^rC^ » '» --^ -" " ■"'' ""'• cessary to aaapx a »u V GABBEN. stealing an, Tree. Shrub -M.."^^-- a„etion in a Garden, see * -d^ ^^^„,^ p,.„, &« or Injuring or d««";J\'!«;"J " rfen see 4 and 5 V.o. other vegelableproduefon .nag. e. 26, «. 19. 21,22. ^^^j by these Statute.. And form of conviction pvescnoe wn or the a note hat he before ly uUer id for a ■aud the 1 know- interfeit- Lse made to receive ty keep in ed by dwe . in the said B ibousand [Seal.] er of staling brination or ndeed unne- ly occur. regetable pro- 5, sec. 34. plant, &c., or 4, and 5 Vic. ese Statutes. HABEAS CORPUS. 199 GOOD BEHAVIOUR. See Surety for the Peace. HABEAS CORPUS. It is only necessary here to mention the Writ of Habeas Corpus and to explain the nature of it, as its operation can rarely come under the notice of a Justice of the Peace, Whenever a person is restrained of his liberty by being confined in a Common Gaol, or by a private person, whether it be for a criminal or a civil cause, and it is apprehended that the im|)risonment or restraint is illegal, he may obtain from the Court of King's Bench, or from any of the Judges thereof in vacation, this writ of Habeas Corpus f directed to the person detaining another, and commanding him to produce the body of the person so detained, with the day and cause of his caption and detention, to do, submit to, and receive whatsoever the Court or Judge awarding such writ, shall consider in that behalf. This is called the Habeas Corpus ad Subji- ciendum (so termed from the language of the writ, to undergo and receive all such things as shall be considered of the party in that behalf.) This is a high prerogative writ, issuing in the Queen's name, who is at all times entitled to have an account, why the liberty of her sub- jects is restrained. It is the subject's writ of right, to which he may have recourse in every case, when he considers an undue restraint is put upon his personal liberty. I I 'J HAWMRS AND PEDLAKS. pWeally styled "^ "S^.ubjecBA/U « t e.e and secured to all V^ TJ^f^r^^^i/vi ^^^'<'^'''^^'' oonad6red*esecon^jf^^^4<,ja^ deprive ,U*e «»°"«^^^*^fXw creature of hi. liberty, without just ca».e. a f l^ov ^^_^ ^^__ , ^^^ 3 ,. g v e By our Provmc.al Stam^ ^^^^^^^^ ^^^^^ ,„ u... enjoy allthe benefits of the vvr eat.ernpar.oftheProv.nce. HAWKERS AND PED'^-^K'*- HawUers and peJlars »!^. " f„le Me.et.^pa«"°^^^ are frequently found travelhng .n ^^^^^^ j„„i„,e, Province withou. havng any seW ^ „,,„ ; d i. is of n.«eh "»P"' -':,r:;„er Majes..'s Just.ces .Uould be known and euf«ceJ> ^^^ „,„, irregular or of the Peace, .n order .0 improper in the «»""- ."^^^^ j^'j Geo. 3. 0. 8, int.tuled. By thePtovmcal A . ol ^^^^^^ ^„ „^„^, „ An Act for g™"""? '" ,"'' , eUapmen, and for regn- .. .„ .awWera pedlars anj ^^^^^ ,,„. „„ „, before .Mating their '™f'.f ' ' ^ere shall be taken out « .he fifth day of Apnl, "»"' uy chapman, and licence by every ba"''"' P^" ^^ f,^„, ,„„n .0 .own, 'e„ry trading l^^J^f felling either on foot, or „ ,0 other men's houses, an ^^,^^^ ,^,, p„„nce, „i,h horse or horses, or «'b"" j, wares or carrying to sell, or «^P-",^ ^ J t^e shall he paid two merchandises, for «>" j ^^p^.inee, at the time such pound, current money of the l-r ■ ■■■ ■H HAWKERS AND PEDLARS. 201 nted .here ished prive 8, we in this ons who 18 of this lomicile, [\ng t\»em 8 Juslicea regular or , intituled, ,n licences 1 for regu- ,n or before akcn out a ipman, and wn to town, r on foot, or lis Province, ,ods wares or I he paid two he time such licence shall be taken out. And by Sec. 2, it is required that all such persons shall take out a fresh licence on or before the fifth day of April in every year, before they shall presume to travel and'trade as aforesaid, and in the same manner to renew such licence from year to year. By Sec. 8, it is enacted, that if any such hawker, pedlar, petty chapman, or other trading person travelling as aforesaid, shall be found so truvelling wiihout first taking out such licence, and renewirig the same as afore- said every such person shall for every such oflence, forfeit the sum of ten pounds current money aforesaid, — and if any person so travelling under and by virtue of such licence so granted upon demand being made by any Justice of the Peace, Officer of Militia, Constable, or Peace Officer of the District, County, Town, or place, where such person shall trade, shall refuse to produce and shew his or her licence or renewed licence for so trading as aforesaid, or shall not have his or her said licence, or renewed licence ready to produce and show unto such Justice of the Peace, Officer of Militia, Constable, or I'eace Officer, that then the person so refusing, or not having his or her licence, shall forfeit the sum of ten pounds current money aforesaid. By Sec. 8, no such licence is required for the servant accompanying such hawker, &c, to assit him in carrying his packages of goods, &c. By Sec. 9, It is enacted that it shall be lawful for any Officer of Militia, Constable or Peace Officer, to seize and detain any such hawker, pedlar, petty, chapman, or other trading person as aforesaid, who shall bo found trad- ing wiihout a licence, contrary to this Act, — or who being found trading shall refuse or neglect to produce a licenco 202 HAWKERS AND PEDLARS. "eoordinglothis Ao, »«« ^'^'Z^^^^ZT''^^ ^sonable f„„e, in o.aer .o .» « he •. i^__^ ^^ ^^ they are hereby requ.reJ to cat y 1 _ („„tee .hey shall in .he ■»;»" ™^ ^ °' j„„ieea of .he ve licences) before .woof Her Majesly ^^ ^^_ Peace, .he nearest to .ha pace where «cho ^^.^^ ^^ '-'-^''1'''r:Sia1.her..pon.heco„. hereby aa.honzed and Btt.ci.yr 4 f^y Wi.ness, region of.hepa..y ''*"*'"«• ".'thich Jh .hey are other .ban .he >nf«r r, "P- » ' ^ ^ ^^^^^^ ^ e,npowe«d.oaamm...e, ha. . 1 ^.^^„„, brought before .hero, had «» "f;'' »; , ^^ duced b, UcenUandin -« " VT LCs -h J..s.ioe», by war- such offender or offenders, he ore «> ^^^^^^^^ ™„, under .heir hands an ^'J^^o^ ,,„ pounds, „ Peace Officer, .o can e Aes^ ^^ j.„„,,,, „„h reasonable C0S.S..0 be forthw ^^ ^^^ .„., of .he goods, -»7!;"'„j";';h.hichs«choffen- to or offenders shall oe „f ,.k;„. such distress. „i,h the reasonable <='>"8^"J ^^ **,! „„y person shall By Sec. n, it IS --'J^',.^" :;,,im or her granted let out, or hire, or lend any hcenee ^^^^^^ ^^ ^^^ ., aforesaid, or shall ""''f ;^^^;^i,„,,„ever, or if any licence granted to any o"-"' r^';™,.^^, „„„e shall not be hcenee in which h.s >- -"^IZ whom the same is jrrs:.:"!"^- sum of ten pounds HAWKERS AND PKDLARS. 203 )for a 1, and seized espect- 3 of the e or of- ices are the con- tVitness, they are arsons so without luced by J by vvar- Conslable pounJs, )y distress, of such such offen- la, together ress. lerrjon shall \»er granted jlour of any ;r, or if any shall not be the same is 'ten pounds sjn having a uteil in any of province, of holding seditious discourses, uttering treasonable words, maliciously spreading false views, publishing or distribut- ing libellous or seditious papers, written or printed, tending to excite discontent in the minds and to lessen the afTectiotis of Her Majesty's subjects, or to dis- turb the peace and tranquillity of this Province, such, his or her licence shall be from henceforth forfeited and void, and he or she shall be utterly incapable of having any li- cence again granted to him or her for trading, and shall also be subject to such odier penalty or punishment as by law may be inflicted fur such offence. By Sec. 13, this Act shall not extend to prohibit any person or persons from selling any Acts of the Legislature, Prayer Books or Church Catechisms, Proclamations, Gazettes, Almanacks, or other printed papers that shall be licensed by authority, or any fitjh, fruit, or victuals — nor to hinder any person or persons who are the real makers or workers of any goods, wares, or manufactures, or his or their children, apprentices, agents or servants to such real workers or makers of such goods, wares, and manufactures only, from carrying abroad, exposing to sale, and selling by retail or otherwise, any of the said goods, wares, or manufactures, of his, her, or their own nnaking, in any part of this Province ; — nor any tinkers, coopers, glaziers, harness menders, or other persons usually trading in mending kettles, tubs, household goods, or harness whatsoever, from going about and carrying with them proper materials for mending the same, without having a licence ns aforesaid. By Sec. 15, It is enacted, that in all cases where the pecuniary penalty by this Act imposed, doth not exceed the sum of ten pounds currency, it shall be recovered HAWKERS AND PEDLARS. 20t of, he Peace of *e »'«"*',„,, „sUce., direcud „„mmU.ed in .he week y ^ " ^„^ m„„,„»,, by law, to be held =>» "-Cme of U ^^ ,^ ,^ ^^^^^^.^^ «„d town of Three ^'--^ ^ f ,,,e, by vol«»tary con- l„„v,Jed, on proof of lUeofle, , ^^^^ ^^ ^^^ ^^ ^^^^ fe^sion of .he party aec>=ed «r y ^^^^ ,^,i„fo™er, o^editahle witness or w -.. o^^^^^^^ ^^^.^^^^^ ^„ ,,^ which penahy .nay be '«"^ » j „.,„t „f dWrees .oods and oh».«='» » ' -^ :;':"g,„, f„. any time no. the offender may he comm ^^^^^ exceeding six months, nor le s tn __^^^ ^^^^^^^ By Seen, a right of appeal .»g.ven ^^ ^^^ Selns, on .he par,y 'I'P;^; ,f ^ „.eh cos,, as amount of the »"'-''"" '*"'::„,• e.ion he affirmed. M\ be awarded "^ ""-^ ,„ held wi.hin ten But if such Qunrter Se^^ " ;-^;" i „ay be made ,Uys after the convict.on, ^^^J^Zo are empowered ,„\he following Quarter ^ ™^; „„a„ „nd finally ,„ summon and examme W>tnes«r j^^ ^^ ^^ ^^^ .^j^_ ,0 hear and determine the appeal, ^^^^^^ ^.^^ ^,_^ „ent of the Justices be affirmed,^ _^^^^^ ^^ ^^^^^ Courtof Quarter Sessions loawmds 'Ts"V Witness ^^^^^^^^^^^^^ ^irds!"":---^^ nolties imposed hy tlus Act. ^^^_ ^_ ^_ ^^^ ,, .„ By the Provi..c,al Act „u,horl.ie^ enacted that »» -Vsl'ir freforegoing Actof the which hy the f.ftoeM^^ch";";;^^^„,V„, and that 35 Geo. 3, are given to, anu KAWKERS AND PEDLARS. 205 usticea lall be irecied )ntreal, letwise iry con- jr more nformer, 3S on the f distress lime not :t Quarter ty to the 1 costs as I affirmed, within ten y. be made jmpowered , and finally se the iudg- vful for the 3Bts as they ve evidence be fined ten as other pe- , c. 12, it is 111 authortties, ng Act of the )on, and that may be exercised by any two of Her Majesty's Justices of the Peace in the weekly sitting of such Justices, directed by law at the City of Quebec and Montreal, and in the Town of Three Rivers shall be, and the same are there- by given to, and may be exercised by any two Justices of the Peace residing in the County where the offence may have been commitletl. By Sec. 2, it is provided, that when any conviction may take place before such Justices of the Peace, in vir- tue of the power given to them by this Act, the said Jus- tices of the Peace before whom the conviction shall have been mad?, shall be bound to take in writing the deposi- tion or evidence upon which the conviction may have been made to liie end, tliat in the event of a revision of the con- viction and judgment by a competent authority, the facts upon which such a conviction and judgment may have been made and rendered, may manifestly appear. By Sec. 3, the right of appeal as granted by the seven- teenth section of the aforesaid Act of the 35 Geo. 3, is again repeated. Information, summary Proceedings, and conviction of a Hawker and Pedlar, for refusing to produce and shew his Licence. District of ) Be it remembered that on the — — ) day of one thousand eight hun- personally came and appeared before dred and us, W. R., and J. G., Esquires, two of Her Majesty's Jus- tices of the Peace in and for the said District, — A. B., of the Parish of in the said District, yeoman, who S ) 206 HAWKERS AND PEDLARS. B \ I \ being duly sworn, doth depose and say, that ho is a Cap- tain of Militia in and for the said Parish of and that on the day of instant, he the said A. B., as such Captain of Miiitia, did demand and require one C. D., then travelling and trading in the said Parish, and selling and exposing to sale therein, divers goods, wares and merchandizes, as a hawker and pedlar, to produce and shew to him the said A. B., his, the said C. D's licence as such hawker and pedlar, which the said C . D., then and there neglected and refused to do, — by reason of whi(;h oiTonce he the said A. B., complains and alleges, that the said C. D., hath forfeited and become liable to pay the penalty often pounds currency, of which one half to be paid to Her said Majesty, and the other half to him the said A. B., the prosecutor in this behalf, together with the cost^. Whereupon and in consequence of such refusal by the said C. D., he the said A. B., on the day and year last aforesaid, at the Parish aforesaid, did seize and detain the said C. D., and doth now bring him before us the said Justices, being the Justices nearest to the place and Parish aforesaid where the offence was committed, that the said C. D., may be adjudged and con- demned to pay the said penalty and Costs, and be other- wise dealt with according to law. Whereupon the said C. D. being now personally present before us, the said Justices, and having heard the informa- tion and complaint aforesaid of the said A. B., is asked by us, the said Justices what he, the said C. D. hath to answer to the said complaint, doth voluntarily confess and acknowledge that the said complaint ia true and well founded, (should the party accused deny the fa f, a witness or witnesses must be produced, sworn, and his or their \ . piipPiPvnRniiniiPiMiiiPiiiiimRii wmmmmmmmmmm HAWKERS AND PEDLARS. **207 3 a Cap- and t, he the naand and n the said jin, divers ] pedlar, lo the saidC. h the said to do,— by nplains and ind become cy, of which nd the other this behalf, consequence id A. B., on sh aforesaid, ith now bring istices nearest e offence was dged and con- and be other- sor.ally present •d tlie informa- B., is asked by CD. hath lo rily confess and true and well gfat,au}itness nd his or iheir examination taken down in the presence of the party as stated in the general form of conviction, and in case the offending party has any witnesses to produce, they must be examined in the same manner.) Whereupon all and singular the premises aforesaid being by us, the said Justices duly weighed and considered, we are of opinion that the said CD. is guilty of the ofience aforesaid, as * charged in the said information and complaint, and we the said Justices in consequence do hereby condemn the said C. D. to pay the aforesaid penalty often pounds currency, to be applied according to law, and also the costs taxed and allowed at £ — . Given under our hands and seals at aforesaid, this day of ■ one thousand eiglU hundred and . ... W. fi., J, P. [Seal.] J. G., /. P. [Seal.] Warrant of Distress on the above Conviction. District of ) W. R. and J. G., Esquires, two of Her ) Majesty's Justices of the Peace in and for the said District. To any Constable or Officer of the Peace in and for the said District. Whereas C. D. of the Parish of in the said District, hawker and pedlar, hath this day been convicted before us the said Justices, for that I.e the said C. D. on the day of at the Parish aforesaid, was travelling and trading, and exposing to sale and selling sundry goods, wares and merchandizes as a hawker and pedlar, and then and there refused to produce and shew A. B. a Captain of Militia in and for the said Parish, his if^ 1 ; 20^ HAWKERS AND PEDLARS. the said C. D.'s licence as such hawker and pedlar, whereby he the said C. D. hath forfeited and hath been by us the said Justices condemned to pay the penalty of ten pounds currency, and £ • for the costs accrued in this behalf. These are therefore to command you, and each and every of you to levy the said sum often pounds, •and also the said sum o( £ for the costs, to be paid and applied according to law, by distress and sale of the goods and chattels of the said C. D. and we the said Justices do hereby order and direct the goods and chattels so to be distrained to be sold and disposed of within six days, unless the said penalty and costs for which such distress shall be made, together with the reasonable charges of taking and keeping such distress, shall be sooner paid. And you are hereby also commanded to certify to us the said Justices what you shall have done by virtue of this our warrant. Given under our hands and seals at aforesaid this — day of one thor<6and eight hun- dred and W. R., J. P. [Seal.] J. G., /. P. [Seal.] The foregoing conviction and proceeding are the more summary from the authority given by the Act for the im- mediate arrest of the hawker and pedlar, without any pre- vious information or warrant : the information when given, being produced with the person of the prisoner, he is thus called upon immediately to defend himself. Complaints however may arise under this Act where a previous information and warrant to bring the party before Justices may be necessary, according to the ordinary course of proceeding. '■hm^-^ HIGHWAYS. 209 1 pedlar, alU been eiialty of g accrued I you, and n pounds* osts, to be ,nd sale of e the said nd chattels within six which such reasonable all be sooner sd to certify )ne by virtue aforesaid nd eight hun- . [Seal.] [Seal.] g are the more xt for the im- ithout any pre* on wlien given, Dner, he is thus lia Act where a the party before to the ordinary HIGHWAYS. The principal law on this subject is the Act of the Provincial Legislature of the 36 Geo. 3, c. 9, intituled, " An Act for making repairs and altering the highways " and bridges within this Province, and for other pur- poses." Occasional alterations have been made in this Act, but it still constitutes the principal law regarding the highways in this part of the Province. The provisions of the Act are too numerous and too lengthy to be here inserted, nor is it necessary, as from its general interest, and the length of time it has been enforced, the public is sufficiently acquainted therewith. I shall therefore only notice some of its principal features, and of the other Acts * and Ordinances made on this subject, so as to give a con* cise view of the whole. The principal object of the above Act was to put all the highways and public bridges under the direction and control of a Grand Voyer, and it is thereby enacted, " That " all the King's highways and public bridges shall be " made, repaired, and kept up, under the direction of the " Grand Voyer in each and every Pistrict in this Pro- " vince, or his deputy to be appointed by him." — 36 Geo. 3 c. 9f s. 1. Sec. 25, that the Grand Voyer or his deputy, may divide every Parish, Seigniory, or Township into any number of divisions not exceeding nine, and to each of which divisions there shall be allowed by him an overseer {sous Voyer) of the highways and bridges, who shall be chosen every second year by a majority of the householders of every such Parish Seigniory or Township. The duty of every •S2 ) I HlGriWATd. 210 ^A .^irpct the different per- ,„ch oversee, k, .0 oversee »»"J „f ,he d«.ie. required of them for making ^^^^^ ^^^ ,„ad. and bridges thereof, an« to Pr ;„ ,„, «ho Shan refuse or "«8>« «° j^J,, „,erseer who shall respeet. Every P~/f ^^otify wi*in eight day. refuse to aecept the office, or to n j ^^_^j^^ „, «hen a««P''»e *°\'^"!! '," „ ,0 oversee and perform ,he Grand Voyer or ^-^^P-'J' "^ ^^^y ,„eh refusal or the duties required of h-m. »J^» » ^,.,,J And ever, „e^ec., forfeit the sum of t .venj^y ^ ^^^, ,^^ „,,,„, Officer of Militia whose d^'J '' ""^^..^ ,h„„ „eglec. to do •t^rtotr— ofre.e;.ion.«.forfeit.hesu» "''i::.'^:it «. Gra„d j.;; -i; — ;:;: appoint a fit and proper P^^" "/„ (j„^ed«.r) of „fTownship,inhisD.sr,c^ asSun-ey ^^^^ ^^^ ^^^ highways and brides .^^ 'jt^perintend and direct years, and whose duty it shal be '» P Township, Lowers within his^Pans^.^;^^^^^^^^ i„ the performance of the^r dut , „y „,e,ve ™ch overseers, the orders they may ^^ ^ f,„m the Grand Voyer or h,s » ^ ^ ,,„ .„ appointed as Surveyor, wto*»»' as. or office shall f»*' J"tS t e^™*" ""' »f *^ ^""^ Buch offence. whether proprietorB or Highways. 211 . per- uiies r the ewon n tbts D shall ktdays nde, or ders of Mjrform fusal or id everj meeling ect to do , the Bum nate and Seigniory, )edeur) of e for two and direct Townahipj nunicate to ally receive k-ery person 3 accept tl»e ; pounds, or af ihe dutiea nga for every TOprietora or linonly called front roads shall make and keep in good repair the said highways and ditches upon the breadth of their lands res- pectively. And shall also make and keep in repair the bridges over ditches and streams of water. By Sec. 15 and 17, in certain soils, and in cases where extra labour is required, also when any difficulties oc- cur respecting the making or repairing of public briilges or otherwise, the whole to be regulated and determined by the Grand Voyer or his Deputy. And any person who shall either on horseback or in a carriage, trot or gallop over a public bridge exceeding twenty feet in length, shall for every such offence pay a fine of five shillings. By Sec. 36, any Ox, Bull, Horse, Goat, or Hog straying on the highway, is liable to be seized and detained by any Peace Officer, Surveyor or Overseer, until, the owner thereof shall have paid for every such animal so seized, the sum of two shillings and sixpence, over and above one shilling a day fur every day that every such animal shall remain in the custody of any such Peace Officer, &c. By Sec. 37, and if after three publications at the Church door of the Parish during three Sundays next after the detention of such animal, no person shall appear to claim the same, such Peace Officer so detaining such animal, is authorized to make a public sale thereof, de- ducting from the proceeds the sum or sums before direct- ed, — the surplus, to be paid to the road Treasurer or Grand Voyer. And in case of dispute between any such Peace Officer, &c, and the owner of any such animal, the same shall be determined in a summary manner by any Justice of the Peace for the District, after hearing the parties and the evidence by them respectively produced. Provided always, that if the owner of any animal so sold shall ap- « s,4ii^. * i. ' 212 HIGHWAYS. pear and prove his property before a Justice of the Peace within twelve calendar months from the time such animal shall have been sold, in such cases the Grand Voyer, or Road Treasurer, shall on the order of such Justice, I'epay to such owner a sum equal to the monies by him received for such animal to be taken out of any monies in his hands arising from this Act. • Sec. 38. This Act not to extend to the Parishes of Quebec and Montreal. Every person or persons who shall offend against this Act in any matteivor thing, for the breach of which a penalty is not herein specially imposed, shall forfeit and pay for every such offence a sum not exceeding ten shil- lings, nor less than five shillings, currency, and that all penalties and forfeitures by this Act imposed for any offence against the same, and all expences laid out, and all costs and charges to be allowed under the authority thereof, shall be levied by distress and sale of the goods and chattels of the offender by warrant under the hand and seal of any Justice of the Peace for the District or limit where such offence, neglect or default, or expence laid out, shall happen, or such order for payment of such expences laid out, shall be made. Which warrant such Justice of the Peace is empowered and required to grant after complaint or information to him made or given, upon conviction of the offender by confession, or upon the oath of one or more credible witness or witnesses, other than the informer. And the penalties and forfeitures when levied, shall be paid, one half to the informer, and the other half to the Road Treasurer, if such offence happen within the Cities and Parishes of Quebec and Montreal, or to the Grand Voyer of the District, or his Deputy, if HIGHWAYS. 213 'eace nimal er, or i-epay ce'ived I hands shes of inBt this ivhich a rfeit and ien ebil- l that all i for any i out, and aulborUy the goods the hand District or )r expence ent of such arrant such ired to grant given, upon ^on the oath , other than jitures when roer, and the fence happen nd Montreal, his Deputy, if the same shall happen in a Parish or place, oiher than ihe said Cities or Parishes. By Sec. 75, no suit shall be commenced or brought unless within thcee monlhs after the offence committed, and the Grand Voyer on his deputy or any svrveyor or overseer, is deemed in all cases touching this Act, a com- petent witness, notwithstanding he may be the prosecu- tor or informer. By an Act of the 39th Geo. 3, c. 5, intituled "An Act to amend an Act, passed in the thirty-sixth year of His present Majesty's Reign, intituled "./27i ./?d ^or making repairing and altering the highways and bridges within this Province and for oiher purposes^'' it is pro- vided that the aforesaid Act of the 36 Geo. 3, c. 9, shall not extend to the Parishes of Quebec and Montreal, beyond the limits of these Cities res- pectively, but that these Cities shall respectively form a particular District, to be called the Town District, and the parts of the said Parishe- beyond the limits of the said Cities, to be called the Country District, but made sub- ject to the rules and regulations to be niade by the Jus- tices of the Peace of the said respective Cities. By the Act of the 3d Geo. 4, c. 19 intituled " An^ct to explain and extend the provisions of nn Act passed in the 36th year of the Reign of His late Majesty," intituled, "An Act for making, repairing and altering the high- ways and Bridges within this Province, and for other i ,..-«i!i«i5;K5'."- HIGHWAYS. 214 ''^'P^* . 1 ihP 1st Mav, 1828. This Act expired on the 1st wiay, I " '" '^^ "^'rdfrre powers and ,u.hori«e. of U,e changes were ■""ff "^ " J^,„a tt,e course of proceed" Grand Voyer and h,s oncers, a" ^^_..^j_ •„,, under the aforesaid Koad *<='. '" '° , May, 1829, and \h-,s Act was first lunHed to th U. May, ,^ ^^^ afterwards by Act of the 9 Geo. *c. 34, CO Ut May, 1833, when it eKp.red. > (( f .uo Qih Geo. 4 c 33, intituled, « Jin -id .tyU Reign," i"«i'>'<- HIGHWAYS. 213 ide of called losvn- the Streets in the Villages were considered as front road»', and the proprietors of lots thereon bound to keep them in repair. This Act expired on the 1st May 1833. » fuvlber 68 of tl»e proceed- ts varied. 1829, and ued to the ndihe costs » a cbaiigp g out roads, . Aleo in ijn M to certoin ^f* the read laws'' By Act of 2d Wm. 4, c. 44, intituled^ "jln Jlct to amend the Act passed in the thirty sixth year of the Reign of His Majesty King' George the Thirdy^ intituled, " Jln Alt for making, altering and repairing the High, tvays and Bridges in this Province, and for other pur- poses, and to make further regulations concerning Roads and Bridges,''^ the powers of the Grand Voyer are vest- ed in certain Road Commissioners, to be elected by the proprietors in each Parish, and a course of proceeding directed thereon. This Act expired on the 1st May, 1835. By an Ordinance of the Governor and Special Council of the 2d Vic. 4 sess. c. 7, intituled, " An Ordinance to amend the Act passed in the HGth year of the Reign of George Third, c. 9, commonly called the Road Att,^^ certain powers and authorities are vested in the Grand Voyer and his deputy, and certain directions given in re- gard of their proceedings, and the mode and manner of making, repairing and keeping up the public Highways in the Province,— and by sec. 24, it is enacted and or- dained, that each and every person who shall in any way offend against the proviiiions of this Ordinance, or shall disobey any ooder of the Grand Voyer, or other Road . i' 216 HIGHWAYS. I Otficer, — and any Road Oflicer who shall refuse or ne- glect to comply with the requirements of this Ordinance, shall thereby incur the penally attached to the like offence of disobedience or refusal by the before mentioned Act of 36th Geo. 3, c. 9. This Ordinance was to expire on the 1st Nevember, 184'2, but by Act of the Provincial Parliament of the 6th Vic. c. 11, it is continued in force unto the end of tlie Sessions of Parliament next after the 1st May, 1845. By the Ordinance of the Governor and Special Coun- cil of the 4th Vic. c. 4, intituled "./7/i Ordinance toprovide for the hciter intcrwd Government of this Province, by Ike establishment of local or municipal axdhorities there- in" it is by the 37th sec. ordained and enacted that it shall he lawful for the respective District Councils thereby es- tablished to make Bye-Laws for the following,nmong other purposes, that is to say : — For making, mantaiuing or improving of any new or existing road, street, or other convenient communication and means of transit within the limits of their respective Districts, or for the stopping up, altering or diverting of any road, street or communication within tlie limits aforesaid, also for tlie erection preservation and repair of new or ex- isting bridges, and public buildings. By Sec. 45 of this Ordinance it is further Ordained and Enacted, that all and every the powers and authorities, which by any Act or Acts, Ordinance or Ordinances of the Legislature or any Law or Laws of this Province have been, an(^are now, vested in, and may be lawfully exer- cised by the Grand Voyer of the several Qiitrict'T of this of dire of] ther and! &C.I HIGHWAYS. 217 kce, ince ;tof fiber, 3 6th )f the Coun- provide nee, by J there- I It shall reby es- f)ng other new or unicatvon especlWe ngofany aforesaid) jew or ex- OrJained authoriliee, liinances of )vince have rfuUy exev- riot'T of this Province, or any Magistrates with regard to any high- ways or bridges, (except in so far as the same are incon- sistent vviih, or repugnant to the provisions of this Or- dinance) shall from and after the first election of Council- lors under the provisions of this Ordinance become and be vested in the several District Councils aforesaid, with- in the limits of their respective Districts, and in the exer- cise of such powers and authorities, it shall in no case be requisite, that a proccs verbal, for turning an* old, or open- ing a new highway, or a new bye road, or to change an old bridge, or make out a new one, or for making of ditches and outlets, or for any other purpose whatsoever, should be drawn up, or that the same should be confirm- ed or homologated in any Court of Quarter Sessions as now by law required, when such powers and authori- ties are exercised by tlie Grand Voyers : — nor shall the intervention of any such Court or the exercises of its pow- ers be in any manner required, for or in respect of the legal and effectual exercise of the said powers and authorities by the said District Councils respectively as aforesaid — any law, usage or custom to the contrary thereof notwith- standing. By Sec. 46, all records, &c, appertaining to the Office of Grand Voyers, or relnting to Highways or Bridges, are directed to be delivered to the Prolhondtories of the Court of King's Bench of the several Districts of this Province, there to remain for the use and benefit of all concerned, and the Grand Voycr refusing to deliver over such records &c.) to be guilty of a misdemeanor and liable to damages. There would seem to be a principle of collision betwcei \\m Jatter Ordinance and that of the 2 Vic. o. 7, as con< ■^••: HOMICIDE. ., A ♦.ftheGVic.c. U, butuw „„ generally very «»l^» ""^^ J^, p,,, founded on a ne- plaints in this respect are for the J^ ^^ ^^ ,, ^eet c( a pa,ty to J° J-ltTuctases, a verbal compla.nt a, not being hable « "' ' ^ ;, ,eq„iBite, as it n.ay laid before tte Magistrate, « all *a q .^^^^^ .„ ,e embodied in f^^tl^i.-^ parties come eases of this kind. »» ~ ^,^, he most have satts- Uafore the Magistrate ^"^^ZJ^ some Actor Proce, fectory evidence, founded e.d>er"l^^^^^^^^_„,^„, F,rt.l,or the tesUmony of a so y ^^^^ ^^ ^^ proceedings to the superior Courts. ^ , «ee title, Sumwion*. ForformofSummon3,-8eetme, HOMICIDE. 1 Mi-.na of a human being by his Hotniciae8ignifieBanyk.lUngofan fellow creature. ^^ ^^y be inflicted The different ways by wh.cn ^^^ ^^^ ,^ come under this "^'J .^^^'^veral degrees of ,e dis- guished according to their . culpability. HOMICIDE. 219 lever ■ Acta com- lane- efusal) aplaint lit way sues in 58 come i^e satis- r Procea , or some B can in- ihe Road t retain a va\ of his ieing by bis be inflicted and are \o i\ degrees of 181 Murder^ or the felonious killing of another with ma- licious intent, or intent to kill without sufficient cause or provocation. (Under ihis head may be included the crime of killing one'*s self or of Felo de Se.) 2nd Manslaughiery or the felonious killing of another, but without design or malicious intent. 3rd. Excusable Homicide, 1st., by misadventure, when in doing a lawful act, and without proper precaution, a man kills any person. 2nd. By Self-defence, when a man is driven to the necessity of killing his adversary to save his own life. This is sometimes called chance'Ticdley as when done on a sudden affray. 4M, Justifiable Homicide, is of various kinds, as: — Ist. In the execution of malefactors according to their sentence. 2nd. In the advancement of justice, by an officer in the execution of his office when assaulted and resisted. 3rd. To prevent the escape of Felons. 4th. In cases of riot, or rebellious assem- blies, who refuse to disperse. 5th. In resisting a theft or burglar attempting to commit a felony. It is not the intention here to enter upon the considera- tion of the law on these different heads, and the distinctions that have been taken in the numerous cases to be found in the books. A complete knowledge of this branch of the law, so interesting and so necessary to every Criminal Lawyer can be acquired only by a close and studious ap- plication to the works of those learned jurists who have treated the subject in the fullest manner. The present Manual has no pretension of this kind, being limited, as already observed, to aid the Magistrate in those summary 220 HOMICIUE and other proceedings which fall within liis jurisdiction out of Sessions. And here I do not consider it necessary that the Magistrate should be able to draw all the nice distinctions that may arise on the discussion of a. case in a Court of Justice, it is suflicient for him to know, that a crime has been committed, to warrant his interference so ihat the accused may be made amenable to the laws of his country. Information for murder for feloniously killing in a duel, against the principals in the first and second degree. District of ; Information of A. B. of the Parish of in the said District, gentleman, taken before me VV. R., Esquire, one of Her Majesty's Justices of the Peace in and for the said District. The said A. B. being duly sworn deposeth and saith, that on the day of instant, in a cer- tain field in the said Parish, he saw C. D. of the said Parish, gentleman, and £. F. of the same place, surgeon, with apparent hostile intentions towards each other, and severally armed with pistols as if to fight a duel. That after some previous arrangements the said C. D. and E. F. took their stand op>posite to, and at a short distance from each other, and on some signal given the said C. D. and E. F. presented their pistols at each other and fir€d the same.then loaded with powder and ball as this deponent verily be- lieves, when the said E. F. immediately fell mortally wounded, the ball from the pistol of the said C. D. having penetrated the body of the said £. F. who expired imme-< HOMICIDE. 221 diately. That G. H. of the same place, gentleman, was present at the same time and place aiding and abetting the said C. D. as his second. Sworn at District, this in the said day of (Signed.) 18—, before me. W. R , J. P. (Signed,) A. B. In the examinations to be taken on the arrest of the parties accused, it will be necessary to establish, by the opinion of some medical man the nature of the wound given to the deceased, and that it was the necessary or probable cause of his death. The form of the warrant to apprehend, or to commit, is nearly the same, changing only the conclusion. WARRANT TO COMMIT. District of ) W. R., Esquire, one of Her Majesty's \ Justices of the Peace, in and for the said District. Whereas, C. D.,of the Parish of- in the said District, Gentleman, stands charged on oath before me the said Justice, of having at the Parish aforesaid, on the day of instant, feloniously killed and mur* dered E. F., of the same place. Surgeon, and that G. H., of the said Parish, gentleman, was then and there present, aiding, and abetting the said G. D., in commtting the said felony and murder. These are therefore to charge and command you to receive into your custody the said C. D. and G. H., and them safely keep in the said Gaol, until they shall be thence delivered by due course of law. T2 yj ^. ..~jaA ) Mi » . » > 'a » » ..w-..— - 222 HOMICIDK. Given under my band and aeal at District, this day of — eight hundred and . — in the said one thousand (Signed) W. R., J. P. [Seal.] Information against the Driver of a Calecboi Cab or Gart, for Manslaughter. District ov ) Information of A. B., &c. The said A. ■ " \ B., being duly sworn deposeth and saith, that on the day of C. D., of the City of———— in the said District, carter, while driving his {Calfche, Cab or Cartf) through — — street, in the said City, did, without due caie or precaution drive his said {Calechet Cab or Cart,) upon and against a child named £. F., then quietly and peaceably passing in and through the said street, whereby the said £. F., was thrown down, and one of the wheels of the ( Caleche, Cab or Carty) passed over and upon the head of the said £. F., and so bruised and mangled the same, that the said £. F., was thereby killed, and died immediately. Sworn at in the said District, this day 18 — , before me (Signed,) W. R., /. P. iia \ ■1 (Signed,) A. B. WARRANT OF COMMITMENT. District of } W. R., Esquire, one of Her Majesty's Jus- tices of the Peace, in and for said Dis- trict. HOP-BINDS. 223 To the Keeper of the Common Gaol of the said Dis- trict. Whereas, CD., of the City of -^ in the said District, carter, stands charged on oath before me^ the said Justice, of having on the day of ■ ■■■■ in- stant, in the said City of feloniously killed a child named E. F., by driving without due care or pre- caution, (a Caleche, Cab or Cartf) upon and against the said E. F., by means v^hereof the said £. F., was so bruised and mangled, that (he or she) expired immedi- ately. These are therefore to command you to receive into your custody the said C. D., and him safely keep in the said Gaol, until he shall be thence delivered by due course of law. Given under my hand and seal at in the said District, this day of ■■ one thousand eight hundred and . (Signed,) W. R., /. P. [Seal.] The wairants to be issued and the examinations to be taken in these, as in all other cases are in the usual form, stating in each the ground and cause of accusation against the prisoner. HOP-BINDS. \[ Unlawfully and maliciously to cut, or otheiwise destroy any Hop-Binds growing on poles, is felony by Act 4 and 5 Vic, 0. 26, 8. 18| and punishable by imprisonment. H^> WH»>~ j-'..Jrisonment for any time not exceeding one month, for the first offence and often pounds and imprisonment for any time not ex- ceeding two months for the second and every subsequent offence. And by the third clause of the said before mentioned Ordinance, it is provided and ordained, that it shall not be lawful for any person to settle in any Indian Village or in any Indian Country within this Province, without a S m ■:'*km .m JURISDICTION. 228 Lieutenant Gover- subsequent offence. . INFORMATION. See fille Conviction. (*. I ) JURISDICTION. • ...ulerBtood an authority „, power which »'"»"";*]„ .„„i,e ■,„ certain case, ot .^ therein. . ,. ,. „ ,„,,9t be Jetermined by law, There i» aoA no> «PP"' '"/;";; ,7'„ inferior Court or ^'■'" " '"Z S i Jiclions. .he n,oOe of gaimng ,„0,e who exceed le,ru ^^^ ^^_^ ^^^^^j, i„,„ ,l,e Court of Ku g » ^ .„ „,„,„„«.! ,ame may l« q-'f';''- . ,^ ,,„,ion, exceeJing it« author.- of Hafrw* Corpus. LXRCENT* 229 1 St uibotHy ;»s3\on «'^ cases ol* judgment id by law, ui\sd\ct\on f Court or of gaining proccedingBj riy tl)al the is commuted ,g \\» nuthori- ,p\y for a wn^ LARCENY. Larceny, is defined to be, the wrongful or fraudulent taking and carrying away by any person, of the mere per- sonal goods of another, from any place, with a felonious intent, to convert them to his, (the taker's) own use, and make them his own property, without the consent of the owner.— 2 East. P. C. 553.-4 Bl. Com. 229.— Post. 123, 4. Mr. Justice Blackstone, says that the taking must be felonious, that is, done animo furcandi, or as the civil law expresses it, lucri causa. It has however been held as not essential that the tak- ing should bu strictly /ffcr« cami, for a taking fraitdu- lenter, with intent wholly to deprive the owner of his pro- perty, or with intent to destroy it, is sufficient, if the ob- ject is to eflect some supposed advantage accruing either to the party committing the offence, or to a third person, — Russ. Sf Ry, 292. 307, 470. Larceny is distinguished by the law into two kinds', — the one called simple larceny, or theft unaccompanied with any aggravating circumstance, — the other com- pound larceny, when aggravated by taking from the house, or person. Simple larceny was again divided Into grand ani\ petit larceny, ti»c former f^ignifying the stealing of goods above the value of twenty shilling!*, in this part of the Province, the latter, a stealing of goods under that value, and be- tween these two offences, lliere was till lately a wide dis- tinction, OS to tl\e punishment annexed to each by law. But now by the Act of the 4th and 5th Vic. c. 25, eec. 2, U 1,/LllOBN*' . „ *atmctions beween g«^» ^^ ,he value all f«'"« , "deveryla'«»y' '"'fie same nature, are abolished, and eve j ^^ ^ „f the sam of the P-P"'V;*t ;r»e U-^-'''"f 'Cd teeny and is subject .»*«>«' -..toent,) »« E«»* ^ourt as regards 0,e ^'^^^X *« '^« ' °1S V.mit- -- '*-= ";;\:t trt»> <>""«7;:r e:^ oase oC "'"^ '':rtr»J, » "°« °"*?"T do. not exceed the ^*'"^:"1 pSh--* "f f tcent and also to try larceny, the P ^^^ ^i„,pie larceny, "="' ^''""l riarious relaii»n». on h -^ P ^^ ,,, Mag,,- law, in =>" '^ ^ ,,„ oalls ta tb8 '"'" , " ,u extend the ,vhicU so f'-''""'^;:ses.ions,butt"S would; t,ate,bo.h in and "t » ,,„p„sed hm.ts^ A ^_ ^^^ present manual tejo" ,,„ 4,1, and 5ih ,,a8 mnde '=""'"''°'° .,,„ offence, and of its V ;„ gardto the nature of *e ^^_^ j^^,,, »!,*; guidance r ^ "Tnee useful to be k""""; ^, 'taowledge of th.. i„th.»te.peet a„ore ,ea>'i aj„i„tetrat.on best mean' » ""P" ' eoncerned m the « ^^,. law, especially to those ^^^^^^^ „f ,\.e w' ^ jr, iniiluted .«' . /profinrf, «'"'"" ^ ,,,„ follo«i"« '-""•Tndd'o:;-.- clauses onU uin LARCENY. 231 irt i\t- of ihe try [\e of ,f ob- ypre- of vUe ubjecA, ^lag\s- Lend lV\e [however 0. c. 25, ut\ent,09 peace in guidance mcd it the 3ge of l^"» T»\n>sVrat»on who\e Act. 5vU Vie. c. flrtJ amend- larceny a^"^ \\»c foUoNvi"* Commencement of the Act. By Sec. 1, this Act to commence from and after the first day of January one thousand eight hundred and forty two. Distinction between Grand and Petty Larceny abolished. By Sec. 2, the distinction between Grand and Petty larceny is abolished and every larceny, whatever be the value of the property stolen, shall be deemed to be of the , same nature, and subject to the same incidents in all re- / sperts ^ Grand Larceny was before the coinmencement of this and every Court whose power as to the trial oflart«»^ vvap^ before the commencement of this Act, limited to petty larceny, shall have power to try every caseof larceny, the punishment of which cannot exce>^d the punishment hereinafter mentioned for simple larceny and also to try accessaries to such larceny. Punishment for Simple Larceny or Felony ^ punishable as such. By Sec. 3, every person convicted of simple Larceny or of any felony made punishable like simple larceny, shall be liable to imprisonment and hard labour at the discretion of the Court. For all ojjenccs under this Act, hard labour or solitary con- finement may be added to imprisonment. By Sec, 4-, Where any person shall be convicted of any felony or misdemeanor punishable under this Act, for 232 LARCENY. ¥ \ ] it shall be lawful for the Court to sentence the ff n .^ ^^_^ ^^_^_„„„ ,0 be imprisoned and "ept » Wd ^._^^^ ^,^^, ,,, Gaol or Ho«.e of Co"ecU-, "^^ ;„^„,„, ^^^ „„y offender shaU be.ept.n -a V^ - ^^ „,,„,,. -, „ ,i„„ orporuons "f ^"^^'J'' „„, exceeding one month at sonment «i.h l^^f 'f;";;X„ ,l.ree months in an, one ^ratrthetrr^"- -" -"--'• t^er for the deliver, «;-* ^^ 'Imo nature and of ,Uing, is deciared to ..fi^^^l „ the .ame manner, as *e same degree »ndp>»h_^^^^^^^^^.„^,,,, „, ,e. if any chattel of bU value ^^.^^^ ^,_^ ^„„,y rosi.,towhieh*e-„^^^^^^^ due thereon, or w,ih ne ^^ ^^^^ ablelhing,men«onedmU^« PunWimcnl oj «»""" J B.--rrr:ht;\::u:dr;^:::«- »-:;:rf:;:;:tr::^^^ -- ■ Of Rolhcry Mended mlkvloUMC. ,,„„ .viih any oBensive wea- LARCENY. 233 shall beat, or use any personal violence to any person shall be guilty of felony, and liable to be punished with imprisonment and hard labour at the discretion of the Court. Punishment for obtaining property by threat of accusation of unnatural crimes. By Sec. 8, whosoever shall accuse or threaten to ac- cuse any person of the abominable crime of Buggery, or of making any solicitations, promise or threat to any per- son whereby to move or seduce such person to commit, or permit such crime, or shall by intimidating such person by such accusation to extort or gain property, shall be guilty of felony, and liable to be punished by imprisonment and hard labour at the discretion of the Court. Punishment for stealing from the person. By Sec. 9, whosoever shall rob any person, or shall steal any money, chattel, or valuable security from the person of another, shall be liable to imprisonment and hard labour for a term of years. Punishment for an assault with intent to rob. By Sec. 10, whosoever shall assault any person with intent to rob, shall be guilty of felony, and liable to impri- sonment. Attempting to obtain Property by menaces. By Sec. 11, whosever shall, by force or menaces, demand any chattel, money, or valuable security of any U2 .;' v"5-vy;'''."t. 234 LARCENT. person, with intent to steal the same, shall be guilty of felony, and be liable to imprisonment. Sending threatening Letters to extort Money, fyc. By Sec. 12, whosoever shall knowingly send, or deliver any letter or writing demanding of any person with menaces any chattels, money, or valuable security, or any writing threatening to accuse any person of a crime punishable with death or transportation, or of any assault with intent to commit any rape, with a view or intent to extort from such person any chattel, money, or valuable security, shall be guilty of felony, and be liable to imprison- ment and hard labour at the discretion of the Court. Of Sacrilege. By Sec. 13, if any person shall break and enter any Church or Chapel, and steal therein any chattel,— or having stolen any chattel, money, or valuable security therein, shall break out of the iiame, he shall be liable to imprisonment and hard labour, at the discretion of the Court. / Burglars using violence. By Sec. 14, whosoever shall break and enter any dwelling house and shall assault with intent to murder any person being therein, or shall stab, cut, wound, beat, or strike, any such person, shall be guilty of felony, and shall suffer death. or roel feai mer Whi LARCENY. 235 Burglary, punishment of. By Sec. 15. whosoever shall be guilty of burglary, shall be liable to imprisonment and hard labour, at the discretion of the Court. '1. ! Hours ivithin which Burglary may be Committed. By Sec. 16, Night shall be considered, and is declared to commence at nine o'clock in the evening, and to con- clude at six o'clock in the morning ; and if any person shall enter the dwelling house of another with intent to commit a felony, on being in such dwelling house, shall commit any felony, and shall in either case break out of the said dwelling house in the night time, such person shall be guilty of burglary. Stealing in a dwelling house with menaces. By Sec. 17, whosoever shall steal any chattel, money, or valuable security, in any dwelling house, and shall by menace or threat, put any one being therein in bodily fear, shall be guilty of felony, and be liable to imprison- ment and hard labour. What shall constitute a dwelling house, in which Burglary can be committed. By Sec. 18, no building, although within the same curtilage with the dwelling house, shall be deemed to be part of such dwelling house, for the purpose of burglary, ;i 236 LARCENY. . \m.\\ be a communication between euch unless there shall be a o . ^j^te or by means to the other. ^ ^ m dwelling house. u«n Virpak and enter any buading being «.«h.n*eeuml»^ ^ ^^^,^,^ ment and hard labour. Robbery in a shop, warehouse, if c, mentioned. 0/ stealing /rom a Fessel in Port. c ai if any person shall steal any goods, &c.. By Sec. 21, ^^ a»»y V Q^t, or upon any in any Vessel, Barg,, or ^oat ;n ^y,^,, ',, ,,arf adja- ....^blerWerorcana^^^^^^^^ ,,, ,,,e punish- oent to such port, ne sua" LARCENV. 237 Stealing from a Ship wrecked, or in distress. By Sec. 22, whosoever shall plunder or steal any part of a ship wrecked or in distress, or any goods, &c., of any kind belonging to such ship, shall be liable to imprison- ment and hard labour. Persons in possession of wrecked goods. By Sec. 23, if any goods, &c., belonging to any ship wrecked or in distress, shall, by virtue of a search warrant be found in the possession, or on the premises of any person, who shall not be able to satisfy a Justice of the Peace, that he came lawfully by the same, the Justice shall order the same to be delivered up to the proper owner, and the offender upon conviction of such offence before the Justice, shall forfeit and pay such sum of money, not exceeding twenty pounds, as to the Justice may seem meet. Persons offering Ship-wrecked Goods for sale. By Sec. 24i, if any person shall oder for sale, any arti- cles suspected to have been taken unlawfully, from any ship or vessel wrecked, or in distress — in such case the person to whom the articles are offered for sale, or any Custom House or Peace Officer, may lawfully seize the same and give notice thereof to some Justice of the Peace, and if the person who offered the articles for sale upon being summoned by the Justice, shall not appear and satisfy the Justice that he came law- fully by such articles, then the same shall be ordered by the Justice to be forthwith delivered over to, or for the use 238 LARCENY. of the owner, upon payment of a reasonable reward to the person who seized the same, and the offender on conviction of surh nffence by the Justice shall forfeit and pay such sum of money, not exceeding twenty pounds, as to the Justice shall seem meet. i I Stealing of Records , fyc. By Sec. 25, if any shall steal, obliterate or destroy any record, writ, return, pannel, process, interrogatory, deposi- tion, affidavit, rule, order, or warrant of Attorney, or any original document whatever, of, or belonging to any Court of Justice, every such offender shall be guilty of a misde- meanour, and on conviction shall be liable to imprison- ment and hard labour, or to fine and imprisonment as the Court may award Stealing of Wills, §*c. By Sec. 26, if any person shall during the life, or after the death of a Testator, or Testatrix, steal, or for any fraudulent purpose destroy or conceal any will or codicil, he shall be guilty of a misdemeanor, and liable t3 the punishment above last mentioned. beast, convic every value five . Stealing of Writmgs relative to Real Estates. By Sec. 27, if any person shall sleal any original papers, &c., being evidence of the title to any Real Estate, he shall be guilty of a misdemeanor, and liable to the same punish- ment as last before mentioned. By break, tent to LARCENY. 239 The above Provisions as to Wills and Writings, not to lessen other Remedies. By Sec. 28, no Conviction or Judgment for any of the above misdemeanor!!, shull prevent any remedy at Law or Equity which the party aggrieved by such oiTence would have had, if this Act had not been passed. Stealing Horses, Covis, Sheep, S,-c. By Sec. 29, if any person shall steal any horse, mare, gelding, colt or filly, or any bull, cow, ox, heifer or calf, or any ram, ewe, sheep or lamb, or shall vvil uUy kill any such cattle, with intent to steal the carcase or skin — he shall be guilty of felony, and be liable to imprisonment and hard labour at the discretion of the Court. Stealing Dogs, Birds,,Sfc. By Sec. 30, if any person shall steal any dog, bird, or beast, ordinarily kept in a state of confinement, and being convicted thereof, before a Justice of the Peace, shall for every such oITence, forfeit and pay over and above the value of ihe dog, Sec, such sum of money, not exceeding five pounds as to the Justice shall seem meet. Stealing Trees, Shi'ubs, fyc. By Sec. 31, if any person shall steal, or shall cut, break, root up, or otherwise destroy or damage with in- tent to steal, any part of any tree, sapling or shrub, or any LARCENY. 240 . srf,ngof suchth.ngs. o * ^^ ^^^^ amount ot «n= sWlmg at Ae > p^^^^^^aUfot ,«i„, convicted -^^f"/ »/;„t;,,, over and above the every .«eh offence f"*^''",^ Amount of -.njnry done, -'"■="^'^T:ory T;te;eeed,ng five pot.d. as to sndi a sum of money, ■ the J«»lic">'»" ^*"'" "" Stealing am Fcnc, sac, or G.te. . weak, or throvv dovs-n v.«> ^ „^ „^^^^ V,ve or dead fence, or any v I ^^^ „,,,eof, and used a. a fence, or ""X * "' ^^ ^,, p.^.e, he shall for „pon conviction before a n,ce of ;^ ^_^j ^,„„, „, e'very such offence « ^^ ^^^ ;„„„„, „f the ,njury 'totheJustlce shall seem meet. . „,„,,„„»P«««io«o/«.) Tms,«rc.,noMatU/»c. «"»''«"""'"'tr% «ccaunli»g /or »,c »mc. B, sec. 33, IC the whole or any pan 0^^^^^^^^^^^^^ „, Jr shrub, or any ^^2, si or gate, or any ■ „ aead fence -^^^^^^^ J^ .hilling at the least, :Slst::^r»- si. peLn being carried before LARCENY. 241 a Justice of the Peace, shall not satisfy the Justice that he came lawfully by tlie same, he shall, on conviction by the Justice, forfeit and pay over and above the value of tlie article or articles so found, any sum not exceeding two pounds. Stcalingy fyc, any vegetable p-oducliom in a garden. By Sec. 34, if any person shall steal, or shell destroy or damage with intent to steal, any tree, sapling, shrub, bush, plant, root, fruit or vegetable production, growing in any garden, orchard, nursery ground, hot house, gn .,'1 house or conservatory, and being convicted thereof be 'ore a Justice of the Peace, shall forfeit and pay over and above the value of the article or articles stolen, or amount of the injury done, such sum of money not exceeding five pounds, as to the Justice shall seem meet ; and upon a t ib- sequent conviction shall be liable to be punished as for simple larceny. Stealing^ ^t., ariij vegetable productions i^.'f .> rowing in a garden. By Sec. 35, If any person shall tu;al, or shall destroy or damage with intent to steal, nn/ cultivated root or plant used for the food of man, or beast, or for medicine, distil- ling or dyeing, or for or in the course of any manufacture, and growing in any land open or enclosed, not being a garden, orchard &c., every such offender being convicted thereof before a Justice of the Peace, shall forfeit and pay over and above the value of the artice or articles so stolen, X /"^iti, %: 242 LARCENir. or the amount of the injury done, such sum of money, not exceeding twenty shillings, as to the Justice shall seem meet, and in default of payment thereof, together with the costs, if ordered, he shall be committed to the House of Correction for any time not exceeding one calendar month, unless payment be sooner made. t I* Stealing glasBj wood-work or fixtures of any kind from build- ingSf and metal fixfures from grounds. By Sec. 36, if any person shall steal or rip, cut or break with intent to steal, any glass or wood work belong- ing to any building, or any lead, iron, copper, brass, or other metal, or any utensil or fixture, whether made of metal or other material, fixed in or to any building or any thing made of metal fixed in any land, being private pro- perty, or in any sqnare, street, or other place dedicated to public use or ornament, every such offender shall be guilty of felony, and liable to be punished as in the case of bimple larceny. Tenants or Lodgers stealing from apartments let to them. By Sec. 37, if any person shall steal, any chattel or fix- ture, let to be used in or with any house or lodging, he shall be guilty of felony, and punished as for simple larceny. u Clerks, or Servants stealing the property of their Masters. Bji Sec. 38, if .■•ny clerk or servant shall steal the pro- l>erty of hia master, he shall, in cases not capitally punish- «' LARCENY. 243 able, be liable to imprisonment and hard labour at the dis- cretion of the Court. Clerks or Servants embezzling money, ^r., received by them, on their 3Iastcrs account. By Sec. 39, if any clerk or servant shall fraudulently embezzle any chattel, money, Stc, he may receive on account of hia master, every such offender shall be deemed to have feloniously stolen the same from his master, and shall be liable to any of the punishments hereinbefore last mentioned. Mode of proceeding against such offenders. By Sec. 40, distinct acts of embezzlement mcy be charged in the same indictment which may have been committed within six calendar months from the iirst to the last of these acts. Agents embezzling money, ifc, entrusted to them for any special purpose. By Sec. 41, if any money or security for the payment of money, be entrusted to any banker, mcrcliant, broker, attorney or other agent with directions in writing to apply the same to any particular purpose, and he shall in viola- tion of good faith, convert the same to his own use, every such offender shall be guilty of a misdemeanor, and liable to imprisonment and hard labour. So also in the case of 2U LARCENV. any power of atlorney for the sale or transfer of any share or interest in any public stock or fund, should such banker, merchant, &c., convert the same to his own benefit. Exception as to Trustees, Mortgagees, S,'c. By Sec. 42, it is declared that nothing before mentioned, relating to agents shall aflect trustees or mortgagees, nor to restrain any bankers, &c., from receiving money due on securities, or of disposing of securities, on ' which they have a lien. Factors, S,'C., pledging Goods, Hfc, entrusted to them. By Sec. 4-3, factors, &c., pledging for their own use, any goods, Stc, entrusted to them for llic purpose of sale, or any warrant or order for the delivery of goods, are de- clared guilty of a misdemeanor, and liable to fine, impris- onment, and hard labour at the discretion of the Court, — not to extend to cases 'vherc the pledge docs not exceed the amount of the lien of such factor, &.c. ir These proviiions as to Factors, Jgents, l^'c, not to lessen anij other remedy against them. By Sec. 4<4<, no convictitm or judgment liad ogainet any banker or other ogenl, to lessen any remedy which any parly aggrieved might have had, if thia act hod not been passed. i •>J|f:- LARCENY. 215 Of obtaining money under false pretences. By Sec. 45, if any person shall by any false pretence, o+)tain from any otiier person, any chattel, money, or va- luable security, with intent to cheat or defraud any person of the same, such olVenuer shall be guilty of a misdemeanor, anU be liable to imprisonment and hard labour. Accc^mrks to Felony, how and when to he tried. By Sec. 46, if any person shall receive any chattel, money or other property, the stealing whereof would amount to a Telony, such person knowing the same to have been stolen, shall be guilty of felony, and may be tried and convicted, either as an accessary after the fact, or for a substantial felony, and be liable to imprisonment and hard labour. any jr/tcn the original offence is a misdemeanor, receivers may be prosecuted for a misdemeanor. By Sec. 47, if any person shall receive any chattel, money, or other property, the stealing, taking, obtaining or converting whereof, would be a misdemeanor by this act, such person, knowing the same to have been unlaw- fully stolen, taken, obtained or converted, shall be guilty of a misdemeanor, and shall be liable to imprisonment and hard labour. Receivers may be tried where the property is fouiul. By Sec. 48, all persons charged m receivers of stolen property, whether aa accessary aUer the fact, to the felonv, X2 Is l\i i 246 LARCENY. or with a substantive felony, or with a misdemeanor, may- be tried and punished in the district or place, in which he shall have, or shall have had, such property in his posses- sion, or wherever the party guilty of the principal felony or misdemeanor may be tried. The ovmers of stolen property y how to obtain restitution. By Sec 49, if the person guilty of stealing, or of receiv- ing stolen property, shall be prosecuted to conviction, by or on behalf of the owner, he, or his legal representative shall have restitution of the property by order ofthe Court. Taking reward for helping to recover Stolen Goods. By Sec, 50, if any person shall corruptly take any re» ward under pretence of helping the owner of stolen pro- perty to recover it, unless he cause the offender to be ap- prehended and brought to trial, he shall be guilty of felony, and punishable by imprisonment and hard labour. Advertising a revjard for the return of stolen property without enquiry. By Sec. 51, if any person shall publicly advertise a reward for the return of any stolen property, and that no question will be asked, without seizing, or making any enquiry after the person producing such property, or shall promise or offer to return, to any pawnbroker or other person, who may have bought, or advanced money, mm ■ Kfiiri mil m LARCENY. 247 on the property stolen, ihe money so paid or aJvanceJ, every such person shall forfeit the sum of twenty pounds to any person who will sue for the same with full costs. When stealing is pimishable on Summary Conviction, re- ceivers to be punished in the same manner. By Sec. 52, when the stealing of any properly is by this Act punishable on Summary Conviction, the person receiving such property, knowing the same to be unlaw- fully come by, shall on conviction thereof before a Justice of the Peace, be liable to the same forfeiture and punish- mei t to which the person guilty of stealing, is by the said Act made liable. Principals in the second degree and accessai'ies before and after the fact — hoxv punished. By Sec. 53, every principal in the second degree, and every accessary before the fact to any felony punishable under this Act, shall be punishable with death or other* wise in the same manner as the principal in the first de- gree is by this Act punishable, and every accessary after the fact, (except only a receiver of stolen property) shall on conviction, be liable to imprisonment for any term not exceeding two years, and every person who shall aid, abet, counsel, or procure the commission of any mis- demeanor punishable under this Act, shall be liable to be indicted and punished as a principal offender. 2*8 LARCENY. Abettors of off cnces punishable on summary conviction. By Sec. 54i, if any person shall aid, abet, counsel or procure the commission of any offence, by this act punish- able on summary conviction, every such person, shall on conviction before a Justice of the Peace, be liable to the same furfeiture and puni>liment to which a person guilty as principal offender is made liable. Persons found in the act of committing an offence, — of grant- ing a search warrant, — of arresting persons offering stolen property for sale. By Sec. 55, any person found coinmitti: g any offence, may be immediately apprehended without a warrant, by any Peace Officer, or by the owner of the property on which the offence is committed or by his servant, or by any person authorised by such owner, and taken forthwith before some neighbouring Justice of the Peace, to be dealt with according to law, and if any wiiueES shall prove upon oath before a Justice of the Peace,that there is a reasonable cause to sus;)ect that any property whatsoever connected with the offence committed, is in any dwelling house, out house, garden, yard, croft or otiicr place, the Justice may grant a warrant to search such dwelling house, &c., for such property as in the case of stolen goods. And any I'.erson to whom any property shall be olVered to be sold, pawned, or delivered, if he shall have reasonable cause to suspect, that any such offence has been committed in re- gard of such property, is hereby authorised, and (if in his power) is required to apprehend, and fortwith to carry be- fore a Justice of the Peace, the parly offering the same, to- gether with such projierty, to be dealt with according to Law. ■--■-."^IV.v LARCENV. 249 Limitation as to summury proceedings. By Sec. 56, the prosecution of every offence punisha- ble on summary conviction, shall be commenced within three calendar months after the commission of the offence and not otherwise — and the evidence of the party aggriev- ed shall be admitted in |)roof of the offence. Made of compelling the appearance of persons punishable on summary conviction. By Sec. 57, where any person sliall be charged on the oath of a credible witness before any Justice of the Peace of any offence punishable on summary conviction under this act, the Justice may summon tlie person charged to appear at a time and place to be named in the eummons, and if lie shall not appear accordingly, then upon due proof of the service of the summons upon such person by deli\ering the same to him personally, or by leaving the same at his usual place of abode, the Justice may either proceed to hear and detcrm.inc the case exparte or issue liis warrant for apprehending such person and bringing before himself, or some other Justice or Justices of the Peace, — or the Justice befo-e whom the charge shall be made, may if he shall see fit, without any previous sum- mons (unless when otherwise specially directed,) issue such a warrant, and the Justice or Justices before whom the person charged shall appear, shall proceed to hear and determine the same. Application of forfeitures and penalties on Summary conviction. By Sec. 58, every sum of nmney which shall be for- feited for, or as the value of any property stolen or taken, I IS . 1- i U' LARCENY. A tsuc\\ value „ f„, or . .be .mount «f ^J^^jf ^^j;; '^. co„v|eUn, „ amount to be asse»ej m ead ^^ ^^^ ^^^,„„a, Justice 0. J"9<'<»'') *'" 1^ „artv »haU have been ex- fUnown. exeept^vhere:"-* party ^^^ ^^^ ^ „, e , amined in proof of the oflfe"^' "" ^„„ shall be oppl- Te party aV.eve'l - """"^^X Provided always ed in the same manner »;'«";./;„ ,,« eommisrion of that whereseveral P-'f^^^^^^J^^^^^^^^^^ thereof, each the same offence, »"f *'"";" -.valent to the value of the be adjudged toforfe.taso.neJw ^^^^^ .^ ^,, ^ property, or to the amoun to the J J ^^^ ^^^^. Lh case no further --""^^Jte forfeited by one o .«c ved than than that wh.oh ^ba" ■> ^^^^ f„rfe,i. 1 ders only, and the -"-P^;;;^, "^^l be applied in edbythe »*»' *"''7'JX mp-^d b, the Just.ce P,„« s««r.i>, con ^^^.^^,^__ ^^^^^ B, Sec. 69. every ease of a Summ J ^^^^^.^^^ ^^^ ,j,, ,,s iot where -be »um jj^^t aten, or for the amount value of tbe property stde" o _ ^^ ^ ^„,„ of.hei..j..ry'l<'"''«/,'^* " ther „uh the costs, .t by any Justice or J»="««' ^e or Justices, is and are larded (which e-'-TawXif be or they shall tbink by this Act authonsed «° »"J^^„„,i,tion under this Act) I in anv case of a Summarj Con ^^^ „„„,ie,,on, ttall notbe paid, «*- >— f„, ,^,^^ shallat the „, within such penod »« *« ;"'\^^^^^^^ he, or they, .s and ,imeoftheconvict.on.ppo.nt,tvn LARCENY. 251 d, X- ere jys> n of each tflhe every fsuch fovfeit- )V\ehe. .i.h the Act, shall have pa.d t^ ™" „v,ction, or shall have re- eo^; if »««^<='' "" fTf torn 1 Crown, or shall have eeived a remission *e e f ^om ^^^ „„„.p,y,„e„t there- suffered *« '""l!''^""""^;, led in the first instance, or of, or the in,pr.sonment a^J"* conviction in the :,;„ have heen ^>---; ^ j ^^so he shah he released Form of Conviction. B,Sec.«,aror.oCco„viction,sprescrihedroro.n. ces under this act. See, under title Conviction. tilt-.. ■*?*• LARCENY. 253 to appear before two or more Justices of the Peace, and after examination upon oath into the merits of the said complaint and the adjudication thereupon by any such two Justices being made, all and every lue subsequent proceedings to enforce obedience thereto or otherwise, whether respecting the penalty, fine, imprisonment, costs, or other matter or thing relating to the offence, may be enforced by either of the said Justices, or by any other Justice of the Peace for the same district, county, city, town or place, in such and the like manner as if done by the same two Justices who so heard and adjudged the said complaint ; and when the original complaint or infor- mation shall be made to any Justice or Justices of the Peace, different from the Justice or Justices before whom the same shall be heard and determined, the form of con- viction shall be made conformable and according to the fact. or offen- to act- TO or more i,\ 10 bear \\\ be com- 1 complaint, jibe parlies fVlien and how an Appeal may he had. By Sec. 65, in all cases where the sum adjudged to be paid upon any summary conviction shall exceed five pounds, or the imprisonment adjudged shall exceed one calendar month, or the conviction take place before one Justice only, any person who shall think himself aggrieved by any such conviction, may appeal to the next Court of General or Quarter Sessions, which shall be hoiden not less than twelve days after the day of such conviction for the district, county, or place wherein the cause of com- plaint shall have arisen, provided that such person shall give to the complainant, notice in writing of such appeal, and of the cause and matter thereof, within three days ■T»5^1S?^^f LARCENY. 254 ate such coviotion, and ^^"?" fj^'Xf ZT^" before such Se»^'o"'. »"'^^' " ^ ° „,„g„i.ance wUh ,„„ .ufBoient secur, es before ^^^ ^^^ ^^^^^^^ condittoneJ, personally 1° JP^ . ,j ent of the ,„a .0 uy each »PP^»';;; -; ;:::S:i L. be by .he Court thereupon, and to pay . ^.^^„^ ^„, h ^W Court awarded. And on ^^^ ^^^^ ^^^^^ ^,j,„„ recognizance be.ng entereu 'j ,.i^,^,e euch prisoner, . the same shall be entered into, sham if in custody. f tiiP Peace before whom By sec. 66. every J-^^^^; * „y off'nce against this any person shall be co" ;' f ; J ,^^ „,,, court of rt„:::^::r::-eptbythepro.ro.cer Tmong the Records of the Court. Jfoliec and Kmitatio" o/ aelions. illUHVV v.. — BySec,6VUactions.dp..c.^^^ «d against any person f» »;jj*;'2„3^^ „„U after the this act, shall be eo"-™^";^^;™! notice In writing faetcomntitted, ^fj^^'^^U shall be given to lt^3:o:tir„:ar,uonth at least, before the commencement of the action. LARCENV. 255 commen- rsuance of J after the in wriiing je given to I before the The Justice of the Peace on perusing this act, will readily perceive the many instances,vvhere a summary con- viction may be had before him, (which also I have noticed under the title Conviction,) and he must consequently feel the necessity of his making himself acquainted with the law in this respect, and with the course of proceeding to be had thereon, from the first complaint or information to the final levy of the penalty or commitment of the offen- der. Forms cannot be found, nor devised, for all the variety of complaint and proceeding that may arise, or be requisite on this, or any law, before the Magistrate, nor is it necessary, — enough of the mere formal part, as regards informations, warrants, examinations, &c., may be col- lected from the instances already noticed, to enable him to adapt it to any other case ; — his great object must be, to acquire a system of regularity in all his proceedings, and to attend, that every thing be done with caution and in order, so as to leave no room for carping at his judgment. When a complaint is made to the Magistrate, the first thing he has to consider, is, whether it is within the time, that is, within the three months from the time of the of- fence committed, according to the 56th Section of the Act? The next is, on what clause or section of the Act, the complaint is founded, and whether it falls within his jurisdiction ? if it does — how the offender is to be cited before him ? — by summons, or by warrant? — generally by summons, unless the offender be a person of idle and vagrant character, without a known and certain habitation, and one likely to evade the claims of justice. In the latter case,a warrant may issue in the first instance,observing how- ever, that in this, and in every instance, where a warrant issues to apprehend an offender, the Justice must first take ^f 1 i- 256 LARCENY. the depositior or information on oath of the complainant, or of some other person, to ascertain the nature of the offence. If the proceeding be bj' summons, anil the party should not appear, the Magistrate may proceed exparfe, and convict the offender, according to the 57th Section. When the parties appear, the answer or defence of the defendant must be taken down, and the witnesses exami- ned in the usual course. Should the defendant require time to adduce witnesses to substantiate his defence, the Justice must lje satisfied on two points, — 1st, that the defence if true would be sufficient to exculpate the de- fendant, and 2d, that the delay sought for, is not a mere subterfuge : he may therefore require the defendant to state the name and residence of his witness, and what he ex- pects to prove by him, and this upon oath, to entitle him to the delay he requires. Should a conviction take place, the Justice may con- demn the offender, to pay t)»e penalty and damages imme- diately, or to be committed to the common gaol or house of correction, according to the 59th Section. This is cer- tainly the preferable course, where the offender has been arrested in the first instance ; but if the offender be a known resident of the parish or place, a delay may be given for this purpose. Of this however ihe Justice must deter- mine according to circumstances. The foregoing act contains a short form of conviction to be followed in the several cases of summary proceeding before the Justices. Of this form however, such parts only are to bo followed as will apply to each particular case, and a certain latitude is even allowed in this respect, as independent of the form prescribed the act permits ** any ether form of words io ihe same effect as Ihe cas€ shall require,''^ in the thei propr offifi plain; yearf LARCENY. 257 . To facilitate the application jf this form, I will hero suppose aconviciion on a particular case, say, on the 32d Section of the act, and that the olVender, C. D. has been condemned to pay two pounds of a penalty, one pound to A. B. for his damages, and fifteen shillings for the costs. The form of conviction would run thus: — District of ) Be it remembered tiiat on the ) day of in the year of our Lord one thousand eight hundred and at in the said District, C. D., is coiivided before me, AV. R., E-'quire, one of Her Majesty's Justices of the Peace, in and for the said District, for that, he the said C. D., did at in the said Di:>trict, on the day of instant, cut, break and throw down, with intent to steal the same, part of a deaii fence the property of A. B., of in the said District, voo- man, and I the said Justice, adjudge the said C. D., for his Baid offence to forfeit and pay the sum of two pounds as a penalty, also the sum of one pound as the amount of the injury done, and fifteen shillings for the costs, — and in default of immediate payment of the said several sums, to be imprisoned in the House of Correction of the said Dis- trict and there kept to hard labour for tie space of one month, unless the said several sums of money shall be sooner paid, that is to say, the said sum of two pounds for the said penalty shall be paid to me the said Justice, that the said sum of one pound shall be paid to the said A.B. the proprietor of the said fence, and I order that the said sum of fifleen shillings, be paid also to the said A. B., the com- plainant. Given under my hand and seal, the day and year first above written. (Signed) W.B.,J.r. [^eal] Y'2 258 LIBEL. nr Search Warrants, to be „„. noticed by .Lis Ac|, »nd "a^^ "^ J^^^^^^^^ .„f„^,. every Jusiiee iscompeent <»'»' ,^.„, „fa,e party of a similar kind. LIBEL. • •..U.wstand most extensive sense, A l.bel, taken m ■« '"6f "" •„,„„ or tlie like, signifies any writing or pnnedaper,P ^^^^^ ^._^,^^j of an in-moral or illegal ^"^"^I'J;^ either living Inse, a -V.cious de.nta.^n ^ P;-;^„^^ „„.„ „,. dead, and especally a M»8 ^"» ^^^„^e hin« to ,, writing, '■'^";;;l':' :::td,eor.en,ptandrid.- ™'^- see also R*'g^o«-*e """"■"; ^„, .„, „. A, ..ice,, as a—..^^^^^^^^^^^^^^^^^^^ ,es. of a party «l^"6f /t d del.lt of his finding sure- louB andsediUom l.bel, «»d on del _^^^.^^^_, ^^ ilue course ot lavv. tODGEBS. „ ,». A, J *. » ••' "■ ~u»: B ri-'i LODGERS. 259 Information against a loJger, for stealing goods let to him and to be used with a iotlging. District of ) Information of A. B., of the Parish of — - > in the said District, yeoman, talion before me, W. R., EsquifC, one of Htr Majesty's Justices of the Peace, in and f( i the said District. The said A. B., being duly sworn, deposeth and saitli, that on the day of instant, at the Parish aforesaid, C. A., late ofihe said Parish, labourer, did feloniously steal, take and carry away, one iron metal stove of the value of three pounds, and one sheet iron stove pipe of the v.'^lue often shillings, of the goods and chattels of the said A. B., the said goods and chaitelw be- ing in a certain lodging room in the dwelling House of the said A. B., there situate, let by contract by him the said A. B. to the said C. D.,and to be used by the said CD., with the lodging aforesaid, contrary to the Act in such case made and provided, wherefore prays justice. Sworn at — District, this in the said "\ — day of f 18 — , before me. s (Signed.) A. B. (Signed,) W. R., /. P. The other proceedings on this information, oi' the war- rants for the exauiination of the prisoner, of the wit- nesses, and commitment for trial, are the same as noticed in other cases offeiony, staling in each the groiwul of compiaint an contained in the information. Shou'd the goods stolen be suspected to be concealed in any house or place, which might render it desirable to obtain i':- '»l f 260 MAIMING. !lf a search warrant in order to secure them, it will be neces- sary that the Informant should add as follows, to his information : — " And the eaid A. B. further saiih, that he has reasonable cause to suspect, and doth really suspect and believe that the aforesaid goods and chattels are now concealed in a certain (duelling-house, ovthousef barn, or place, Sfc, — describinf( it, os the case may be — ) in 'he parish aforesaid, and therefore prays that a search warrant may be granted to him in this respect." MAIMING OR MAYHEM. Maiming of a person, or Mayhem as it is usually termed in the law books, was foimerly defined to be, the violently depriving another of the use of such of his members, as might render him the less able in fighting, either to defend himself or to annoy his adversary. It is to be observed, that all maiming is felony. Statutes have been passed at dillerent times in England, touching this crime and its punishment ; but the law upon this subject is now rendered more simple and in- telligible by the Act of the 4th and 5ih Vic, c. 27, s. 1 1, by which it is enacted; — That whoever unlawfully and Miplicioufely shall shoot at any person, or shall by drawing a trigger, or in any other manner, aHempt to diticharge any kind of loaded arms nt any person, or shall stab, cut, » nind any person, with intent in any of the cases alort id, to maim, disfigine, or disable such person, or to do some grevous bodily harm to such person, or with inle;it to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of Felony, and MAIMING. 261 liable at the discretion of the court, to imprisonment End hard labour for the term of his natural life or for years. Information for unlawfully shooting at another. District of ) Informationof A.B., ofthe Parish of- ) in the said District, yeoman, taken before me, W. R., Esquire, one of Her Majesty's Justices ofthe Peace, in and for the said District. The said A. B., being duly sworn deposeth and saitli, that on the day of instant, at the Parish aforesaid (or the Parisn or place in ihe Di&trid, where the offence was ccmmitted, as ihe case may be,) C. D., ofthe said Parish of labourer, did, unlaw- fully and maliciously with a gun loaded with powder and leaden shot, shoot at himi the said A. JJ., with intent to kill, maim, or disable him, the said A. B., or to do him some other grievous bodily harm, and whereby the said A. B,, was greatly hurt and disabled, many ofthe leaden shot so fired by the said C. D., having lodged in the head, face and arms ofthe said A. B., {or whatever ether injury may have been done,) to the great damage ol' him the said A. B., wherefore he prays Justice. Sworn at — in the said District, this day of 18 before me. (Signed) A. B. (Signed) W. R., J. P. The warrants, examinations and other proceedings be- fore the Magistrate in this case arc the same as in all other cases of felony. , , ^■ 1 1 m I ittmmmmmmmif/t I 262 MALICIOUS MISCHIEF. MALICIOUS MISCHIEF, OR MALICIOUS INJU- RIES TO PROPERTY. See the Acts of the -tth and 5th Vict. c. 26, made for consolidating and amending the Laws in this Province, relative to malicious injuries to property. This is another of those Acts passed by our Provincial Legislature, for the improvement of our Criminal Code, modelled upon the British Statute of the 7th and 8th Geo. 4, c. 30. By this Act all former Laws and Statutes here- tofore in force, relating to malicious injuries to property are annulled, and a more humane und effective system is introduced. By it, punishment for the higher crimes is moderated, and a more ready means of redress is given for the lesser offences, than heretofore provided. As by this Act the authority of the Justice of the Peace, is frequently requi red, and is extended to a variety of cases, which were formerly cognizable by a different jurisdiction, an acquain- tance with its provisions as a useful and beneficial Law therefore becomes necessary, and actuated by the fame view and motive that induced me to give a short summary of the Act of the 4th and 5th Vict. c. 25, (also made for the improvement of our Criminal Law,) I shall here give F summary of this Act, in the hope that it may prove usefu. M- th^ iVIagistrate in the administration of the Law, as a .f idy reference to ^s enactments. ii^ Commencement of the Act. By Sec. 1, this act to commence and be in force from and after the first day of January, one thousand eight hun- dred and forty-two. '^iiXiAl 'tfL.ikJiriii MALICIOUS MISCHIEF. 263 [U- ]e for /ince, incial Code, I Geo. 3 liere- operty system imes is ven for by lliis qiiently ^h were cquain- ial Law le game [immary ade for I all here ay prove le Law, i)rce from gill hun- Setting Fire to a DiVcUing House. By Sec. 2, whosoever shall unlawfully and maliciously set fire to any dwelling house, any person being therein, shall be guilty of felony, and suffer death. Setting Fire to any Churchy Chapelf Housej Warehow^e, Sfc. By Sec. 3, whosoever shall unlawfully and malicouslyj set fire to any church, chapel or meeting house — or to any house, stable, coach house, out house, warehouse, ofiice, shop, mill, malt-house, hop-cast barn, or to any other building or erection, whether in the possession of the offender, or of any other person, shall be guilty of felony, and liable to imprisonment and hard labour at the discre- tion of the Court. Destroying Silk or other Goods in the Zroom, or any machinery belonging to those manufactures. By Sec. 4-, if any person shall unlawfully and mali- ciously break or destroy any goods of oilk, woolen, linen or cotton, or any frame work, knitted piece, stocking, hose or lace, in the loom or fiame, or in any stage or progress of manufacture, Stc, or shall by force enter into any house, shop or building, with intent to commit any of the above offences, he shall be guilty of felony, and liable to imprisonment and hard labour. Dcitroyihg threshing or other machines. By Sec. 5, if any person shall unlawfully and malici- ously cut, break, or destroy any threshing machine, or *."5i-./.^ ^■■ jMW j n i ."■."'Tlj'^^y^;* 264 MALICIOUS MISCHIEF. any machine or engine, prepared for or employed in any manufacture, (except the manufacture of Silk, &c.) he shall be guilty of felony, and liable to imprisonment and hard labour. Rhtously demolishing a Church, ^c, or any machinery used in any manufacture. By Sec. 6, if any persons riotously assembled, shall unlawfully and with force, demolish &c., or begin to demolish &c. any Church, Chapel, or Meeting-house, or any House, Stable, Coach-house, Out house, &c., or any building or erection, used in carrying on any trade or manufacture, or any machinery &c., such offender shall be guilty of felony, and liable to imprisonment and hard labour. Setting Fire to Ships or Vessds, with intent to commit murder. By Sec. 7, whosoever shall unlawfully and maliciously set fire to, or in anywise destroy, any ship or vessel, either with intent to murder any person, or whereby life shall be endangered^ shall be guilty of felony, and suffer death. 1^' Haiging out false lights to cause Shipwreck. By Sec. 8, whosoever shall unlawfully exhibit jiny false light or signal with intent to bring any Ship or Ves- sel into danger ; or do anything to bring a Ship or Vessel to damage or distress, shall be guilty of felony and suffer death. Z)< MALICIOUS MISCHIEF. 265 Setting fire to Ships or Vessels with intent to destroy them. By Sec. 9, whosoever shall unlawfully and maliciously set fire to, or in anywise destroy, any Ship or Vessel, being in a complete or in an unfinished state, or set fire to, or cast away any Ship or Vessel, with intent to pre- judice any owner of such ship or vessel, or any person that hath underwritten any policy of Insurance thereon, or on the freight of the goods therein, shall be guilty of felony, and liable to imprisonment and hard labour. Impeding any person endeavouring to save life from any Ship wrecked. By Sec. 10, whosoever shall by force prevent or im- pede any person endeavouring to save his life from any ship oi; vessel which shall be in distress or wrecked, ehall be guilty of felony and liable to imprisonment aid hard labour. Destroying any wrecks, or any articles belonging thereto. By Sec. 11, whosoever shall unlawfully and malici- ously destroy any part of any Ship or Vessel in distress or wrecked, or any goods or articles of any kind belonging thereto, shall be guilty of felo.iy, and be liable to impri- sonment and hard labour. Ill Destroying any Sea Bank, fyc., or work on any River or Canal, By Sec. 12, if any person shall unlawfully and malici- ously break down any sea bank, or the bank or wall of Z r iv .'a^ 266 MALICIOUS MISCHIEF. any River, Canal or Marsh, whereby any land shall be overflowed or amaged, or destroy any lock or floodgate or other work on any navigable River or Canal. And if any person shall unlawfully and lualiciousiy cut ofl'or remove any [)iles, chalk, or other nnaterials fixed in the ground and used lor secuiing any sea bank, or the bank or wall of any river, canal, or marsh, or shall un- lawfully and maliciously open or draw up any floodgate, o; do any injury or mischief to any navigable river or ca- nal, with intent to obstruct the carrying on or maintaining the navigation thereof, every such offender shall be guilt'- of felony, and liable to imprisonment. Injury to Public Bridges. By Sec. 13, if any person shall unlawfully and malici- ously pull down or in any wise destroy, any public bridge, or do any injury thereto, so as to render it dangerous or impassable, such offender shall be guilty of felony and liable to imprisonment. Destroying a Turnpike Gate, Toll House, fyc. By Sec. 1 4>, if any person shall throw down, or other- wise destroy in whole or in part any turnpike gate, or any wall, chain, rail, post, bar, or other fence belonging to any turnpike gate, or any house, building, or weighing engine, erected for the better collection of the lolls, such offender shall be guilty of a misdemeanor, and punished accordingly. othe plat /rar MALICIOUS MISCHIEF. 267 Breaking down the Dam of a Fishery, fyc, or Mill Dam. By Sec. 15, if any person shall unlawfully, &c., break down or destroy the dam of any fish pond, or of any wat- er in which there shall be any private right of fishery, with intent to take or destroy the fi: I; l- t. ■ \ 268 MALICIOUS MISCHIEF. Destroyingf damaging Trees, fyc, grcvnng in certain sitxia" tions. By Sec. 19, if any person thall unlawfully, &c., cut, break, bark, root up, or otherwise destroy, or damage, the whole, or any part of any tree, sapling or shrub, or any underwood, growing in aiy park, garden, orchard, or ave- nue, or in any ground adjoining or belonging to any dwel« ling house, or growing elsewhere than in any of the above situations, such offender, in case the injury done shall ex« ceed the sum of one pound, shall be guilty of a misdeme- anor, and punished accordingly. Destroying or damagijig trees, Src, to an amount of one shiiling. By Sec. 20, if any person shall unlawfully, &c., cut^ break, bark, root up, or otherwii^e destroy, or damage, the whole, or any part of any tree, sapling, or shrub, or any underwood, wheresoever the same may be growing, the injury done being to the amount of one shilling at the least f and being thereof convicted before a Justice of the Peace, shall forfeit and pay, ever and above the amount of the injury done, such sum of money not exceeding one pound as to the Justice shall seem meet. Destroying any fruity or n git able production in a Garden, By Sec. 21, if any person shall unlawfully, &c., destroy, or damage w ith intent to destroy, any plant, root, fruit, or vegetable production growing in any garden, orchard, nur- sery ground, hot-house, green^house, or conieivatory, every MAUCI0U8 MISCHIEF. 269 such offender being convicted thereof, before a Justice of the Peace, shall forfeit and pay, over and above the amount of the injury done, such sum of money, not exceeding two pounds, as to the Justice shall seem meet. V cut. Destroying vegetable productions not gromng in Gardens. By Sec. 22, if any person shall unlawfully, &«., destroy, &c., any cultivated root or plant, used for the food of man or beast, or for medicine, or for distilling or dyeing, and growing in any land, open or enclosed, not being a garden, &c., every such offender being thereof convicted before a Justice of the Peace, shall forfeit and pay, over and above the amount of the injury done, such sum of money, not exceeding one pound, as to the Justice shall seem meet. Destroying any Fence^ Wally Stile, or Gate. By Sec. 23, if any person shall unlawfully, &c., cut, break, throw down, or any wise destroy, any fence of any description whatsoever, or any wall, stile or gate, every such offender being thereof convicted before a Justice of the Peace, shall forfeit and pay, over and above the amount of the injury done, such sum of money not exceeding one pound, as to the Justice shall seem meet. Damage done to Property not previously provtded for. By Sec. 24, if any person shall unlawfully or malicious- ly commit any damage or injury to any real or personal Z2 270 MALICIOUS MISCHIKF. property, either of a public or private nature, for which no renoedy or punishment is hereinbefore provided, every such person, being convicted thereof, before a Justice of the Peace, shall forfeit and pay such sum of money, as shall appear to the Justice to be a reasonable compensa- tion for the damage so committed, not exceeding the sum of five pounds ; which sum of money shall in case of private property, be paid to the parly aggrieved, except where such party shall have been examined in proof of the offence, — then, and in case of property of a public nature, or wherein any public right is concerned, the money shall be applied in such manner as every penalty imposed by a Justice of the Peace under this Act, is directed to be applied. Malice agairist the owners not essential. By Sec. 25, every punishment and forfeiture by this Act imposed on any person maliciously committing any offence, whether punishable by indictment, or by sum- mary conviction, shall equally apply and be enforcec?, whether the offence be committed from malice conceived against the owner of the property injured or otherwise. lA\ PHncipais in the Second Degree and Accessaiies. By Sec. 26, in the case of every felony punishable under this Act, every principal in the second degree, and every accessary before the fact, shall be punishable with death or otherwise, in the same manner as the principal in the first degree is by this Act punishable. And every -%- . ■■• -.ft.- ich no every lice of ey, as ipensa- ke Bum • case of except afofthe ; nature, ley shall iosed by ed to be by this tting any by sum- enforceH, conceived erwise. iites. )uni8hable egree, and hable with principal And every MALICIOUS MISCHIEF. 271 accessary aAer the fact to any felony punishable under this Act, shall on conviction, be liable to be imprisoned for any term not exceeding two years. And every person who shall aid, abet, counsel, or procure, the commission of any misdemeanor punishable under this Act, shall be liable to be indicted and punished as a principal offender. Hard Labour and Solitary Confinement may be ordered by the Court. By Sec. 27, in all cases where imprisonment may bo awarded for any offence, ihe Court may sentence the offender to be kept at hard labour in the common gaol, or house of correction, and also, that he shall be kept in so- litary confinement for any portion of his imprisonment, not exceeding one month at any one time, nor three months in any one year. Pcrsom taken in the act may be apprehended vfithout a Warrant. By Sec. 28, any person found committing any offence against this Act, may be immediately apprehended with- out a warrant, by any Peace Officer, or the owner of the projterty injured, or his servant, or any person authorized by him, and carried immediately before some neighbouring Justice of the Peace, to be dealt with according to law. Limitation as to Summary Proceedings^ Competency of Witnesses. Qy Sec. 29, the prosecutions for every offence punish- able on summary conviction, shall be commenced within 272 MALICIOUS MISCHIEF. three calendar months afler the commission of the offence, and not otherwise. And the evidence of the party ag- grieved, shall be admitted in proof of the offence, (provi- ded no part of the forfeiture be adjudged to him) and also the evidence of any inhabitant of the district, county, or place where the offence was committed, although the for- feiture be payable to any public fund of such district. Mode of compelling the appearunce of partiesy in cases of Summary Conviction. By Sec. 30, where any person shall be charged on the • oath of a credible witness before any Justice of the Peace with any offence punishable on Summary Conviction, the Justice may summon the person charged, to appear at a time and place to be mentioned in such summons, and if he shall not appear accordingly, the Justice may (upon proof of the due service of the summons upon such per- son, by delivering the same to him personally or by leav- ing the same at his usual place of abode,) either proceed to hear and determine the case exparte, or issue his warrant for apprehending such person and bringing him before himself or some other Justice of the Peace, — or the Jus- tice before whom the charge shall be made, may, if he thinks fit, without any previous summons, (unless where otherwite specially directed) iusue such warrant, — and the Justice before whpm the person charged shall appear or be brought, shall proceed to hear and determine the case. Abettors in Offences punishable on Summary Conviction. By Sec. 31, where any offence is by this Act punish- able on Summary Conviction, any person who shall aid, MALICIOUS MISCHIEF. 273 abet, counsel or procure the commission of such offence, shall on conviction before a Justice of the Peace, be liable for every such offence of aiding, abetting, coun- selling or procuring, to the same forfeiture and punishment to which a person guilty of such offence as principal offender is by this Act made liable. Application of Forfeitures and Penalties upon Summary Conviction, By Sec. 32, every sum of money which shall be for- feited for the amount of any injury done, (sjuch amount to be assessed in each case by the Convicting Justice,) shall be paid to the party aggrieved, if known, except where such party shall have been examined in proof of the of- fence, and in that case, and where the party aggrieved is unknown, such sum shall be applied in the same manner as the penalty, — and every sum which shall be imposed as a penalty by any Justice of the Peace, whether in ad- dition to such amount, or otherwise, shall be paid to the Convicting Justice. Provided always that where several persons shall join in the commission of the same offence, and shall upon conviction tliereof, each be adjudged to forfeit a sum equivalent to the amount of the injury done, in every such case, no further sum shall be paid to the party aggrieved, than that which shall be forfeited by one of such offenders only, and the corresponding sum or sums, forfeited by the other offender or offenders, together toith all penaltieSy shall be applied in the same manner at any penalty is by law directed to be applied. .*#**—*** 274. MALICIOUS MISCHIEF. I $ The party convicted may be committed for non payment. By Sec. 33, in every case offiummary conviction un- der thia Act, where the sum which shall be forfeited for the amount of the injury done, or which shall be imposed as a penalty by the Justice, shall not be paid, either im- mediately after the conviction, or within such period as the Justice shall at the time of conviction appoint, it shall be lawful for the convicting Justice, (unless where other- wise specially directed) to commit the offender to the Common Gaol or House of Correction, there to be impri- soned only, or to be imprisoned and kept to hard labour, according to the direction of the Justice, for any term not exceeding two calendar months, where the amount of the sum forfeited, or df the penalty imposed, or of both, (as the case may be,) together with the costs shall not exceed five pounds, — and for any term not exceeding four calen- dar months, where the amount with costs shall exceed five pounds and not exceed ten pounds, and for any term not exceeding six calendar months, where the amount with costs shall exceed ten pounds, the commitment to be de* terminable, in each case, upon the payment ofthe amount and costs. The Justice may discharge the offender in certain cases. By Sec. 34, where any person shall be summarily con- victed before a Justice of the Peace of any offence against this Act, and it shall be a first conviction, it shall be law- ful for the Justice to discharge the offender from his con- viction, upon his making such satisfaction to the party ag* grieved, for damages and costs, or either of thera, as shall oe ascertained by the Justice^ Bi Bj paid the MALICIOUS MISCHIEF. 27ft n un- ci for posed er iin- iod as it shall other- to the impri- labour, erm not U of the olh, (as t exceed ax calen- l exceed any term nintwith to be de* e amount i cases. larily con- ■ce against ill be law- HI his con- e party ag* 0, as shall Pardon for non-payment of money. By Sec. 35, The Queen or Governor may extend the loyal mercy to any person imprisoned by virtue of this Act, although for the non-payment of money to some party other than the Crown. Summary conviction to be a bar to other proceedings for the same cause. By Sec. 36, incase any person convicted of any of- fence punishable upon summary conviction, by virtue of this Act, shall have paid the sum adjudged to be paid, to- gether with the costs under such conviction, or shall have received a remission thereoffrom the crown, or shall have suffered the imprisonment awarded for the non-payment thereof, or the imprisonment adjudged in the first instance, or shall have been discharged from his conviction in the manner aforesaid, in every such case, he shall be releas- ed from all further or other proceedings for the same cause. Term of Conviction. By Sec. 37, the term of summary conviction is given. See title, Conviction. Appeal how and when granted. By Sec. 38, in all cases where the sum adjudged to be paid on summary conviction, shall exceed five pounds, or the imprisonment adjudged shall exceed one calendar 276 MALICIOUS MISCHIEF. month, or the conviction shall take place before one Jus- tice only, any person who shall think himself aggrieved by any such conviction, may appeal to the next Court of General or Quarter Sessions, which shall be holden not less than twelve days after the day of such conviction for the district, inferior district, county or place, wherein the cause of complaint shall have arisen. Provided that such person shall give to the complainant, a notice in writing of such appeal, and of the cause and matter thereof, within three days after such conviction, and seven clear days at the least before such Sessions, and shall also, either re- main in custody until the Sessions, or enter into a recogni- zance with two sufficient sureties before a Justice of the Peace, conditioned personally to appear .at the said Ses- sions, and to try such appeal, and to abide the judgment of the Court thereupon, and to pay such costs as shall be by the said Court awarded. And upon such notice being given, and such recognizance entered into, the Justice before whom the same shall be entered into, shall liberate such person, if in custody. ► > Convictions to be returned to the Qxiarter Sessions. By Sec. 39, every Justice of the Peace before whom any person shall be convicted of any ofienee against this Act, shall transmit the conviction to the next Court of General or Quarter Sessions, which shall be holden for the district, county, or place, wherein the offence shall have been committed, there to be kept by the proper of- ficer, among the Records of the Court. MANDAMUS. 277 JUB- idby irtof [\not mfor n the tsuch ting of within lays at tier re- ecogni- I of the jid See- idgment shall be [ce being Justice liberate swns, )re whom gainst this Court of holden for ence shall proper of- Notice and Limitation of Actions. By S^c. 40, all actions against any person for any thing lone in pur6uance of this Act, shall be commenced six calendar months after the fact committed, and nut other- wise. And notice in writing of such action, and of the cauae thereof, shall be given to the defendant, one calendar month at least, before tlie commencement of the action. I would here refer the Magistrate to the observations made on the Act of the 4th and 5th Vict. c. 25^ as appli- cable to this Act. MANDAMUS. There are some private rights, principally of the, per- son, the specific enforcement of which may be secured by Writ of Mandamus, which commands the completion or restitution of the right. The power of issuing Writs of Mandamus is one of the highest and most important branches of the jurisdiction of the Court of King's Bench, and in general exclusively belongs to that Court in Eng- land, and figuralively it has been held as its principal flower, — 13 Geo. 3, c. 63, s, 14. It is a command issuing in the Queen's name to any person or corporation, or Inferior Court of Judicature, requiring them to do somo particular thing therein specified which appertains to their oflTice or duty, — 3 Bla-y Com. 110. This writ is grounded on a suggestion by the oath of the party injured, of his own right, and of the denia of justice by the Court or person complained of, whcrcfon^, 2 A #**^' w 278 MANDAMUS. h ' ) in order more fully to satisfy the Court that there is a pro- bable ground for such an interposition, a rule is made, (except in some general cases when the probable ground is manifest,) directing the party complained of to shew cause why a Writ of Mandamus should not issue. If he shew no sufficient cause the writ itself is issued, at first in the alternative, either to do the particular thing com- plained of, or to signify some reason to the contrary, to which a return or answer must be made on a certain day. And if the Inferior Judge, or other person to whom the writ is directed, returns or signifies an insufficient reason, then there issues in the second place a preremptory man- damns to do the thing absolutely, to which no other return will be admitted but a certificate of perfect obedience and due execution of the writ. If the Inferior Judge or other person make no return, or fail in his respect or obedience, lie is punishable for his contempt by attachment,--3, Bl. Com'. 100. It is a general rule, that this writ is only to be issued when the party has no other specific remedy ; and for that reason the Court refused a Mandamus to a Bis- liop to license a Curate, because the party had another specific remedy by qaare impeditf — 1, T. R. 396. And on the same ground a Mandamus to the Bank to transfer Stock, was refused because the party might recover the value in an action of assumpsit, — Dong. 523. And although in the case of a clesir public right, if it be impor- tant to prevent great and immediate public damage or incon- venience to many persons that the Court should immedi- ately interfere, as in case of a public bridge, or other work being in a very dangerous state, and requiring immediaie repair or support, if there be no doubt respecting the obli- gation to repair, a Mandamus may issue, although there be Infd T'l that MANSLAUGHTER. 279 pro- lade, ound shew If he it first com- KV, to n day. )m the reason, y man- r return nee and or other ediencc, nly to be dy ; a«*l to aBis- i anoUier 6. And o transfer cover the i3. And be impor- e or incon- d immedi- other worlc immediaie ng the obli- ^gh there be otlier rentieJy by indictment, — 2 B. Sf ^. G-i, J\I. Sf S. 80, 81. It is not to be considered as a Writ of Right, but is in the discretion of the Court to grant it, and as no Writ of Error lies, it is a jurisdiction to be exercised with great caution, — Sel, JVi. P. 6, Ed. 1062. MANSLAUGHTER. See Homicide. Manslaughter is the unlawful killing of another, with- out malice either express or implied, either voluntarily upon a sudden heat, or involuntarily in the commission of some unlawful act, done heedlessly and incautiously. By the Act of ■ith and 5th Vic. c. 27, sec. 7, the pu- nishment for manslaughter is imprisonment and hard lab- our for life or for a term of years at the discretion of the Court. Information for unlawfully Shooting at the Dog of another person, and killing a Child. District of ) Information of A. B., of the Parish of — — — ) , in the said District, yeoman, taken before W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District. The said A. 6., being duly sworn, deposeth and saitii, that on the -— — day of , instant, at the ^g,^.. ■ ■^ f ' w ; i ' rf t' ^ i ft^» iHlfc ' « » a gi i<* I MASTERS AND SERVANTS. By the Provincial Act of the 6th Wm. ith, c. 27, (made perpetual by the Ordinance of the Governor and Special Council of 3d Vict. c. 6,) for the more easy and less expensive decision of differences between mas- ters, niiitlresEes, and their servants, apprentices and la- bourers, in the country parts of this Province, it is declared expedient, that the Justices of the Peace residing in the country parishes, extra>parochial places, seigniories or townships, in each Dibtnct of this Province, should be impowercd to decide the differences which arise between masters and mistresses, and their apprentices, servants and journey-men, in the several country parishes, extra*paro* emjTJ wh( MASTERS AND SERVANTS. 281 ,vhi!e , and uielly I.G., [)f the fired tJingB in in oihcr h, c. 27, ernor anil Tiore easy seen moe- 8 and la- 19 declared ding in ll»e gniorieB or , should be ise between servants and extra-po'o- chial places, seigniories, or townships in this Province, (ihc parishes of Quebec, Montreal, and Three Rivers, excepted.) It is therefore enacted, that tiie following Rules and Regulations shall be obeyed and executed in all the country parishes and places aforesaid. Firslliji — That if any apprentice or servant of either sex, or journey-man, who may be bound by act of inden- ture or written contract, for a longer time than one montli, or by verbal agreement for one monili, or for any shorter or longer periotl, shall bo guilty of ill-behaviour, refractory conduct, idleness, absence without leave, or dissipatlnt: hi3 or her masters, mistresses, or employers elVecls, or ot any unlawful act that may atVect the interest or disturb thv domestic arrangements ot such master, mistress or em- ployer, such apprentice, servant or journey-men, may upon complaint and due proof thereof, made before two Justices of the Peace, at a Special Sluing, be by suc!i Justices, sentenced to pay a sum not exceeding two pounds ten shillings currency, and in default of payment, to be imprisoned in the common gaol of the District, or in the house of correction, for a term not exceeding fifteen days. Secondly, — That if any such apprentice, servant, oi journey-man, bound or engaged as aforesaid, has any just cause of complaint against his or her master, mistress, or employer, for any mis-usage, delect of sullicicnt and wholesome proviaions, or for cruelty, or other ill-treatment, or other matter of the same kind, such master, mistress or employer, may be prosecuted before two Justices of the Peace, and if the complaint shall appear to be well foun- ded, such Justice of the Pence may condemn such mas- ter, mistress, or employer, to pay a penalty not exceedinc two pounds ten shillings currency. .> \ o ,0^' ••«/«'-* »^.; 2S2 MASTERS AND SBRVAHTff. Thirdliff — That on complaint made by any master, mistredd, or employer, against his or her apprentice, ser- vant, or journey-man, or by any apprentice, servant, or journey-man, against his or her master, or mistress, or em- ployer, of continued mis-usage, and repeated violations of the ordinary and established duties of the parties towards each other, any Justice of the Peace at a Special Sitting, may, on due proof of the fact, annul the agree- ment or contract, (whether verbal or written,) by which such master, mistress, or employer, and such appientice, servant, or journey>man, may be bound to each other. Fourthly^ — That any apprentice, servant or journey- man, who shall absent himself or herself without leave, or shall altogether desert the service of such master or mistress, or employer, shall, upon due proof of the fact, be condemned to make such time good to his master, mis- tress, or employer. Or in case of the default on the part of such apprentice, servant, or journeyman so to do, he or she, may be apprehended on the warrant of the Justice of the Peace and committed to the Common Gaol of the Dis- trict, or to the House of Correction, for a time not ex- ceeding fifteen days. Fifthly^ — That if any such apprentice, servant, or journeyman shall absent himself, or herself by day or by night without leave, or thall altogether desert the service of his or her master, or mistress, or employer, such ap- prentice, servant, or journeyman, shall bo proceeded against by warrant under the hand and seal of any one Justice of the Peace. Sixthly y—TYy^X if any pereon shall knowingly harbour or conceal any such apprentice, servant, or journeyman, engaged as aforesaid, wito may have deserled from the MASTERS AND SERVANTS. 283 ster, ser- it, or r em- Hiona »arties pecial agree- which entice, aurney- t leave, aster or fact, be ier, ni»»- the port lo, he or usticc of the Dis- e not ex- irvant, or lay or by \Q service , such op- proceeded f any one ly harbour •urneyman, i from the service of his or her master, or mistress, or employer, such person shall incur and pay a penalty not exceeding two pounds ten shillings, to be recovered as aforesaid, before any two Justices of the Peace in Special Session. Sevenihly, — That no such master and mistress, shall take and c&rry out of the district in which they reside any such apprentice or servant, without the consent of such apprentice or servant, or his, or her parents or guardians if a minor, except such as may be bound to the sea service. Eighthlyt — That if any persons hall knowingly entice by any means whatever any such apprentice, servant or journeyman, so engaged as afo.esaid, to depart from the service of his or her master, or mistres!^, or employer, and that in consequence such apprentice, servant or journey- man, shall depart from service, any person or persons so offending, shall be liable to a penalty not exceeding two pounds ten shillings currency, tu be recovered as aforesaid, or in default of payment, shall be imprisoned in the Com- mon Gaol of the District or in the House of Correction for a term not excecdmg one month. * JVin/A/y, — That in all verbal agreements between masters, mistresses or employers, and their servants and journeymen, for any longer period tiian one month, the paily who shall not intend to continue the engagement beyond the term so ngrced upon, ^hall bo boimd to give the other party fifteen days notire at least to that eflect, otherwise the agreement shall be held to have been con- tinued for one month from the date of such notice, the whole under a penalty of two pounds, ten shillings cur- rency ; and in default of payment, of imprisonment in the oommon pel of the di«trici| or in the bouse of cor* 28i MASTERS AND SERVANTS. rection, during a period not exceeding fifteen days. By Sec. 2, it is enacted, that in case of the non-pay- ment of the penalties aforesaid vvilh costs, within fifteen days after conviction, it shall be the duty of either of the Justices of the Peace, before whom such conviction shall have taken place, to issue his warrant, addressed to any constable or bailiff whomsoever, to cause the amount of such penalty and costs to be levied according to law in the ordinary manner, and in the case of non-payment, by the seizure and sale of the goods and chattels of the "defendant; or it shall be lawful for the Justice of the Peace to commit such person to gaol, or to the house of correction, for a period not exceeding fifteen days, and such imprisonment shall be in the place and stead of the penalty. By Sec. 3, it is enacted, that all the penalties imposed by this act shall be paid into the hands of the Receiver General of the Province, and accounted for to His Majesty, his heirs and successors. By Sec. 4, every prosecution against the provisions of this act, shaH be commenced within three calendar months after the offence committed and not afterwards. The complaints or information that may be brought before the Justices on this act, need not be in writing un- less particular circumstances should require it, but may be slated verbally to them, and by them embodied in the summons to be sued out against the defendant. See title summons. On the case fourthly referred to, when the servant re- fuses to comply with the order of the Justice, to make Dl81 MASTERS AND SERVANTS. 285 good the time he has lost, this refusal should be ascertained by some afliJavit of the fact, before the Justice can issue his warrant to commit such servant ; but if the refusal be made in the presence of the Justice, he may in that case adjudge the person to stand committed immediately for any term not exceeding fifteen days, stating in \m judgment the refusal so made in his presence. Aho in the case fifthly referred to, the fact of the ser- vant having absented himself without leave, should be ascertained by some aflidavit, Ijefore isssuing a warrant against him, and as a gencrat principle in all cases, as already observed, whenever a warrant issues in the first instance, it ought to be upon an alTidavit of the fact upon which it is grounded. In all complaints made under this act, however sum- mary they may appear, yet the Justice ought to keep in his memorandum book or register, a note of the evidence heard before him, and of hi^ other proceedings, for although in the return of the convictions 1o be made by the Justices to every Quarter Sessions, the form prescribed by the ordinance of the Governor and Special Council of the 2nd Vic. c. 20 may be followed, yet should a Certiorari be granted to bring the proceeding before the Superior Court, the Justice must in that case draw up a Conviction in the general form before stated, in which all the evidence must be set out. Complai nt on oath, by a Master against his Apprentice for absenting himself without leave. District of ) Complaint of A. B., of the Parish of _^^— ^ , in the said District, carpenter, made before me, W. R., Et^quire, one of Her Majesty's Justices of the Peace, in and for the said District. 286 MASTERS AND SERVANTS. The said A. B., being sworn, deposeth and saith, that C. D., of the same Parish, labourer, bound to him, the said A. B., as his apprentice to learn the trade and busi- ness of a carpenter, hath at different tinnes been careless and inattentive to his duty as such apprentice, and fre- quently absenting himself without leave from the service and employment of the said A. B. That particularly on the day of , instant, the said C. D., did so absent himself from tha service and employment of the said A. B., his master, contrary to his directions, and remained absent for the space of twenty-four hours, (according as the complaint maybe) — wherefore the said A. B., prays justice. Sworn at — District, this in the snid — day of — 18 — , before me, (Signed) W. R., J. P. (Signed,) A. B. I ■' Warrant on the above complaint. District op ) W. R., Esquire, one of Her Majesty's S Justices of the Peace, in and for the said District. To any Constable or Peace Officer in and for the said District. Whereas A. B. of the Parish of in the said District, carpenter, hath this day made oath before me the said Justire, that (here take in the complaint as stated in the foregoing information.) These are there, fore to command and require you and each and every of w MASTERS AND SERVANTS. 287 that , the busi- eless 1 I're- srvice rly on CD., lenl of js, and Viours, le snid Majesty's r the said r the said in the said before me iplaint (IS are there* id every of you, thai you apprehend the said C. D. and bring him be- fore me, or some other of Her Majesty's Justices of the Peace, in and for the said District, to answer to the said complaint, and be further dealt with according to law„ Given under my hand and seal at -^ in the said District, this, day of one thousand eight hundred and . (Signed,) W. R., J. P. [Seal.] Commitment on Conviction of the above complaint. District of ) W. R., Esquire, one of Her Majesty's Jus. ) tices of the Peace, in and for the said Dis- trict. To any Constable or Peace Officer in and for the said District, and to the Keeper of the Common Gaol of the said District.. ^ Whereas A. B. of the Parish of in the said District, carpenter, hath made complaint on oath before me the said Justice, that {here take in Ihe complaint as stated in the preceding information,) and whereas the said C. D. having been brought before me the said Justice to answer to the said complaint, hath been convicted of the said offence, and hath been by me the said Justice adjudged and condemned to be committed to the Common Gaol of the said District for the space often days. These are therefore to command and require you, the said Con- stables and Peace Officers, and each and every of you, to take the said C. D., and convey him to the said Common Caol, and there to deliver him to the said gaoler, and you ■i 288 MASTERS AND SERVANTS. the said gaoler are hereby commanded to receive into your custody the said C. D., and him safely keep in the said Gaol for and during the space of ten days, for which this shall be your warrant. Given under my hand and seal at aforesaid, this hundred and day of one thousand eight (Signed) W. R., /. P. [Seal.] Complaint on oath by a master against his journeyman for quilting his service before his contract was complet- ed, and refusing to make good the time lost. District of > Complaint on oath of A. B., of the Parish ) of in the said District, shoe- maker, made before me, W. R., Esquire, one of Her Majesty's Justices of the Peace, i^nd for the said Distiict. The said A. B., being duly sworn, deposethand saith, that he had hired and employed one C. D., of the said Parish, shoe'-i]ftaker, as a joutneyman, to work at his said trade and business of a shoe-maker in the service and em- ployment ofhigv-the said A. B., for and duiinglhe space of six months, "that is to say, from the day of • last ^ast, to the «lay of now next ensuing. That the said CD., hath lately to wit, on the — ^ day of instant, before the expiration of l^j^aid agreement with the said A. B., and without the leave or consent of the said A. B., quitted and eA the service and employment of him the eaid A. B., V H ""> *' MASTERS AND SERViNTS. 289 four said thU isa'ul) eight 3 eyinaiv jinp^et- 3 Paribh t, shoe- Eequire, e Peace, nd saith, ihe said at hJB said eand em- lUe space — day of I lately to , be fore the i. B., and quitted and eaid A« B., without any just cause, and doth now refuse to complete his said agreement, wherefore prays Justice. Sworn at District, this in the said day of rs - , before me. \ (^'g"^^) ^' «' (Signed,) W. R., /. P. Warrant to apprehend, is in the same form as the pre- ceding, cliangingthe ground of com;)laitjt. Warrant of commitment on conviction. District of ) W. R., Esquire, one of Her Majesty's ) Justices of the Peace, in and for the eaid District. To any Constable or Peace Officer in and for the said District — and to the Keeper of the Common Gaol for the same District. Whereas A. B., of the Parish of — , in tlie said District, shoe-maker, hath made complaint on oath before me, the said Justice, that {here take in the complaint as above stated.) And whereas the said C. D., hath been brought before me, the said Justice, to answer to the said complaint, and hath this day been convicted of the said ciTence, and the said C. D., hath been by me, the said Justice, in consequence ordered and adjudged to make good the time so lost by him, to complete his said agreement, that is to say, the full time of days, (or as the case may be,) and to pay the costs laid out by the said A. B., in this behalf, amounting to fifteen shillings, (or what- ever the amount may be,) and whereas the said C. D., 2B „0 MmcnS A«. S...VABTS. ■ • ™, nreeence and hearing, upon ha* .his da, f ""«V"J":"lt he, the said C. D.. the rendering of m, ^-^f f^'had so lost, no, co".ply would not make good *e ^^^^^ „f „hioh decla- wUh my said J"''8»«"'-'" ~" i^e did adjudge the sa.d «„n and refusal, 1. *» »' J^^ommon gaol, for and C. D., to be con.n..tted to tl e sa,u ^^^^^^ ,„ Ln the space of afteen^lay^^^^^^^^^^ command you. the »'^^^°tke the said CD., and ,„d each and every « y»;> '°„„ ,,,„d there dehver oonvey him to the sa.d common 8 ,^ ^.^ ^^^^^^ Wm to the -\«;t"tve into your custody the sa,d hereby oo"'™''"*^*','?,'!?;: „ the «>id gaol, for and dur- C. D.,_and him ^^^^^^^ f„ which this shall be ■.„,thesaid »P»-J /;r„l', i hand and seal at _- ^»"' "nr Jd^trict, this -— tL" H'/l thousand eight hundred and ^ (Signed) W.B.,./.P- [S."^ • ...inst his Master for ill- -t::::i:-=ratp-.«'--^ appUceship.be ann^d.^^^^^^^^ D,sx,.cx 0. J Complau, or A. B,.^, .^,_ ,,,„„,, ade Majesty's Justices of the Peace. the said District. . • . .iM« that he was The said A. B-, by his comp^t sta^s, ^^^^_^^ ^^^^ „„ *e— — -I'y "'hTTcontractin writing of that hundred and ' MASTERS AND SERVANTS. 291 dale, (or by verbal contract as the case may be,) bound as an apprentice to and with C. D., of the said Parish, Blacksmith, for and during the space of three years, from and after the said day of one thousand , to learn the trade and business eight hundred and of a blacksmith, during which time, he, the said A. 6. was to be provided sufficient board and lodging by the said C. D. J that the said A. B., accordingly entered into the service and employment of the said C. D., in com- pliance with his said contract, and hath always hitherto done his duty faithfully as an apprentice as aforesaid. That the said C. D., is a person of harsh and severe char- acter, and hath frequently, without cause, abused and ill- treated him, the said A. B. That the said C. D., doth not provide wholesome or sufficient victuals to the said A. B., nor furnish him with a suitable bed or bedding. That on the — — day of instant, on the complaint of the said A. B., to him the said G. D., that the victuals set before him the said A. B., were neither wholesome nor sufficient, the said CD., beat, kicked, and otherwise ill-treated the said A. B., in a violent and outrageous manner (or whatever the particular cause of complaint may be) so that the said A. B., is unable any longer to remain in the service and employment of the said C. D., or to perform his duty as an apprentice as aforesaid, and therefore claims that his said contract, or articles of ap- prenticeship be annulled. Summons on the above complaint. District of ) W. R., Esquire, one of Her Majesty's ) Justices of the Peace, in and for the said District. it:. ■ H i 4 292 MASTERS AND SERVANTS. ToC. D., of the Pariah of- blacksmith. in the said District, You are hereby required and commanded to appear be- fore me, the said Justice at {/.ere mention the parUcvIar house, place and Parish,) on the ■ day of instant, at nine of the clock in the fore- noon, at a special silting, then and there to be by me held to answer to the complaint, this day made before me the said Justice against you by A. B., your apprentice, that (here insert the complaint as above stated, or maAe a copy of it, ceitijied as stick by the Justice and annex it to the summons ; in which latter case, it will be necessary to say in the summons thus — to answer to the complaint, &c., hereunto annexed.) Hereof fail not. Given under my hand at in the said District, this day of one thousand eight hundred and (Signed,) W. R., J. P. [Seal.] This summons must be served on the Defendant, either by delivering a copy of it to himself in person, or by leaving it with some of his family at his residence, allowing a sufficient delay, according to the distance, for his appearing to answer. An affidavit should be made before the Justice of the mode and manner in which the summons was served by the person making that service, — this being requisite in case the Defendant should not appear, to enable the Justice to take cognizance of the complaint, and to adjudge on the merits exparte, — Should the Defendant appear, this will be unnecessary. . Whether the Defendant appears, or does not appear, the JuBtice will proceed to hear the evidence in support felor — ,,.-,1''- ^. MISDEMEANOR. rift, be- \vlar U93 of the complaint, and uUo in support of the defence, should any be made, and if satisfied that the complaint is well founded and of a nature to warrant the demand foi- annulling the articles of apprenticeship, the Justice will adjudge accordingly, and condemn the Defendant to pay the costs. This judgment may be pronounced in a summary manner to the parties, and so entered by the Justice in his register, but should a Cetiiorari be granted, the judgment must in this case, as on all other complaints on this act, be drawn up according to the general form of conviction heietofore noticed — this, however, may be done at any time when required, as the Justice retains in his pos:?ession, all the evidence and other proceedings in the case. MISDEMEANOR. A Misdemeanor comprehends all crimes for which no particular name is given, and which does not amount to felony, — 4, JBZ., Com. 5. Persons guilty of misdemeanor are punishable by fine and imprisonment, or both, accor- ding to the nature and degree of the ofience ; but many otfences are specifically punishable as misdemeanors by Statute. Perjury, libels, conspiracies, public nuisances, keeping disorderly houses, obtaining money under false pretences, receiving stolen goods, whatever outrages decency, or is injurious to public morals, are midemeanors, and for every such offence, which subjects the delinquent to corporal punishment, though it does not amount to a breach of the peace, he may on a warrant of a Justice of the Peace be arrested, and held to bail. 2B2 294 MISDEMEANOR. : 5 Every altempt to commit a crime whether felony or a misJemearior, is itself a misdemeanor and in- dictable : to solicit or persuade a chilJ, or a servant to steal from his parent, or master, is an offence of the same nature, — Cald. 397. — 2, East. 5. On complaints for of- fences of this description, where no particular forms are prescribed, those already given in regard of informations, warrants, examinations, &c., may be followed, observing always to state the particular grounds of offence in each. As in cases of misdemeanor, the accused is entitled to bail, the Justice when suliicient bail is offered will prepare the necessary recognizances for the appearance of the par- ties and witnesses, and transmit the same with the infor- mations, &,c., to the proper Oflicer of the Court where tlve trial is to be had. When the proceeding for any misde- meanor is directed by law to be had in a summary manner before the Justice, he will take immediate cognizance • tliereof, and adjudge therein without delay. MISPRFSION. The term Misprision is in the acceptation of our law, generally understood, as applicable to all such high offen- ces, as are under the degree of a capital felony, but which are nearly bordering thereon. Misprisions are generally divided into two kinds. Ist^ negative, which consists in the concealment of something, which ought to be revealed. And 2d, positive, which consists in the commission of something which ought not to be done. A the) parti offen MITTTIMUS. 295 Of the first or negative kind, is what is called misprision of treason, which consists in the bare knowledge and concealment of liigh treason, wilhout any degree of assent thereto, for any assent makes the party a principal traitor. Misprision of felony, is also a concealment of felony, or a procuring the concealment thereof, whether it be felony by the common law, or by statute. Thus to observe the commission of a felony, without giving any alarm, or using any endeavours to apprehend the offender, is a misprision ; for a man is bound to apprehend a felon, and to disclose the felony to a Magistrate with all possible expedition, and if he in any wise assents to the felony, he will then be either principal or accessary,-!, Hale, 347, 375,652, 708. Misprisions of the positive kind, are generally denomi- nated contempts or high misdemeanors, the first and prin- cipal of which is the mul-administration of such officers as are in public trust and employment, or embezzlement of the public money. Other misprisions are in general such contempts of the Executive Magistrate, as demonstrate some arrogant and undutiful behaviour towards the King and his Govern- ment. These are classed by Blackstone as, 1, — Contempts against the King's Prercgative. 2, — Contempts against his person and Government. 3, — Contem|)td against his title. And 4-, — Contempts against his places and Courts of Justice. MITTIMUS. A Mittimus, is a precept, or warrant in writing under the hand and wjal of a Justice of the Peace, directed to a particular gaoler, for the receiving and safe keeping of an offender, until he is discharged by law. 296 MURDER. MONTHS. See Time, — computation of. When the word, JI/o«^/<, occurs in any Statute it must be taken to mean a Lunar Monih^ unless Calendar Months are particularly specified, — 6 T. R. 224. . MURDER. See Homicide. Murder is the voluntarily killing any person under the King's Peace, with malice aforethought^ e\{her express, or implied. Malice, in a legal sense, is somewhat different from the meaning it bears in common speech, in which it im- plies a desire of revenge or a settled anger against a par- ticular person, — 1 Russcl. 421, 2. IJut malice, in a legal sense, imports stubborn wickedness, without any jmt cause or excuse. When the law makes use of the term, malice aforethousrht as descriptive of the crime of murder it is not to be understood merely in the sense of a principle of malevolence to particulars, but as meaning, that tlio fact has been attended with such circumstances, as are the ordinary symptoms of a wicked, depraved, and mali- gnant spirit, a heart regardless of social duty and delibera- tely bent on mischief. Malice may be either cTpress or implied — express ma' lice is, where one man kills another with a deliberate fix- ed design. Thia may appear by external circumstances NUISANCE. 297 discovering the inward intention — as lying in wait, pre- vious threats, former grudges, and concerted schemes to do the party some boilily harm. — 4 Bl. Com. 199. Malice is i?nj)lied by law, "from any barbarous act wil- fully commitled by one man against another, however sudden it may be, as where one person kills another upon a trifling provocation, for no one but of an abandoned heart, would be guilty of such an act upon a slight, or no apparent cause. Malice will therefore be presumed, even though the act be perpetrated recently after tiie provoca- tion received, if the mode of retaliation be greatly inade- quate to the oflence given, and cruel and dangerous in its nature, -as if a deadly weapon be used against a man unarmed, to puniBJi a slight affront, — or if the correction, however it may be administered, be by any means un- reasonable or excessive. m NUISANCE. A common Nuisance, is an oflence against the public by doing a thing which tends to the annoyance of all the Queen's subjects, or by neglecting to do a thing which the common good requires, — Hawk. Bl. C. But annoyances to the interest of particular persons, are not punishable by a public prosecution as common nuis- ances, but are left to be redressed by the private actions of the parties oggrievrd by them. The follovvinfT cases I nve been considered as nuisance? and 60 adjudged. 1/ ■■•■ \ 298 NUISANCE. All trades and manufacturea which are set up in a town, and occasion inconvenience to the neighbourhood, in which they are carried on, or so near a public highway % as to cause some inconvenience or danger to persons law- fully passing along it ; may be indicted as public nuisan- ces,— 2, C. Sf P. 483. And to constitute a nuisance proceeding from a noxious trade, it is not necessary that the smell should be unwholesome, — it is enough, if it ren- ders the enjoyment of life and property uncomfortable, — I, Bur. 333. If a Brew-house or Glass-house cannot be carried on without greatly annoying the neighbourhood, it may be indicted as a nuisance, — 2, Ld. Raym. 1 163. To steep stinking skins in water near a highway, and also near several dwelling houses, by which the air is corrupted, is the subject of an indictment, — 1, Str, 686. AH disorderly Inns or Ale-houses, and Gaming-houses are also public nuisances, — 4, Bl. Com. 167. Whatever outrages decency, and is injurious to public morals, is a common nuisance, and is indictable as a mis- demeanor,— 4, Bl. Com. 65. It is also a public nuisance for any common dealer in provisions to sell unwholesome food, or to mix noxious ingredients in any made and prepared for the food of man. ^ There is no doubt, but that all injuries whatsoever to any highway, as by digging a ditch, erecting a fence, or laying logs of timber on it, or by doing any other act which will render it less commodious to the Queen's people, are public nuisances at Common Law. OATH. 299 OATHS. are An Oath is a solemn declaration, vow or promise, the truth or sincerity of which, the Deity is called upon to at- test, and which invokes the divine vengeance, if what is stated is untrue. It is administered to every witness in a Court of Justice, and on every examination before a Ma- gistrate, before his testimony can be received. The law rightly judging, that nothing can so well beget faith and confidence in others, or be so binding on the conscience of the party himself, as this solemn invocation of the Al- mighty to be his witness or avenger. It is immaterial what the particular opinions are of per- sons professing Christianity, as far as regards, the taking of an oath ; it is only necessary that they believe the sanctity of an oath, the existence of a Deity, and a future state of rewards and punishments. But a person having no idea of God, or a future state of retribution, cannot c^ admitted to take an oath, — Peake's Rep. 11. The individuals of all nations and sects should be sworn according to their creed and belief, — Burns Jus. Oath. Jews should be sworn on (he old Testament or Penta* teuch, and they are allowed to put on their hats when sworn, — Str. 821. A Mahometan must be sworn on the Koran, and a Gentoo according to his Religion, — 1 Mk. 21. — Str, 1104<. A Scotch Covenanter was allowed to he sworn by hold- ing up his hand instead of kissing the Book, and the form of the oath administered to him was, ^^you swear accord' to the custom of your Country ^ and the Religion you pro- iay:J^ r 300 ORCHARDS. I • fess, that the evidence you shall give''' (and so on in the usual form.) j^ Jf^J^^3rdyC. 3^, sec. 6, no jaJv/avidericfl^^any crimi- any office or nment. By Statute 7lh Quaker shall be per nai cause, or ser place of profit in By Sec, 1, every Quaker who shall be required, upon any lawful occasion to take an oath in any case, where by law an oath ist required, shall instead of the usual form, be permitted to make his, or her solemn affirmation, or decla- ration in the words there prescribed. This form was finally settled by the Act of 8 Geo. let. c. 6, and is as follows " /. Jl. 5., do solemnly^ sincerely and truly f declare and affirm, iincii)al9 ! case of rdcr. Jer, or of Jeath as a e liable to Sentence for murder may be pronounced as on other convictions. By Sec. 4-, sentence of death may be pronounced after convictions for murder in ihe same manner, and the Court before which the conviction may be had, shall have the same power in all respects as after convictions for other capital oflences. Prison regulations as to murderers imder sentence. By Sec. 5, every person convicted of murder shall be confined apart from all other prisoners, and shall be fed with bread and water only, except in tie case of receiving the Sacrament, or in the case of any sickness or wound, when other necessaries may be ordered by the Surgeon of the prison. No person to have access to such convict, except the Gaoler and his servants, and the Chaplain and Surgeon of the prison, without permission in writing of the Court or Judge I)efore whom such convict shall have been tried, or the Slieriff, or his Deputy, Of the trial of murder, or manslavghfer, where death, or the cause of death, happen uithin the Province. By Sec. 6, every person being feloniously stricken, poisoned or otherwise luirt upon the sea, or at any place out of this Province, shall die of such stroke, &c. in this Province, or being feloniously stricken, &c. at any place in the Province, shall die of such stroke &c., upon the sea, oral any place out of this Province, — every offence thus committed, whether it amounts to murder or manslaughter, or being accessary thereto, may be dealt with, enquired of, ■nopD" ii ' 304. PERSON — OFFENCES AGAINST. tried, determined and punished, in the District, county, or place in this Province in which such death, stroke, &c. shall happen, in the same manner in all re?pecls, as if such offence had been wholly committed in such District, county, or place. Punishment afmanslaiighier. By Sec. 7, every person convicted of manslaughter, shall be punishable by imprisonment and hard labour at the discretion of the Court. {; I \ As to homiddes, not felonies. By Sec. 8, no punishment or forfeiture shall be incur- red by any person, who ehall kill another by misfortune, or in his own defence, or in any other manner without felony. P unishment for administering poisoiij fyc. By Sec. 9, whosoever shall administer, or cause to be taken by any person, any poison, or other destructive thing, or shall stab, cut, or wound, any person, or shall by any means whatever cause to any person, any bodily injury, dangerous to life, with intent to commit murder, shall be guilty of felony, and shall suffer death. PERSON — OFFENCES AGAINST. 305 ity, or fsuch strict, u ghter, H)ur at )e incur- sfortune, without Punishment for offences with intent to commit murder, though no injury effected* By Sec. 10, whosoever shall attempt to administer to any person, any poison or other destructive thing, or shall shoot at any person, or shall by drawing a trigger, or in any other manner attempt to discharge any kind of loaded arms at any person, or shall attempt to drown, suffocate, or strangle any person, with intent to commit murder shall, although no bodily harm shall be effected, be guilty of felony, and punishable by imprisonment and hard labour at the discretion of the Court. Punishment for cutting and maiming loith intent to disfigure By Sec. 11, whosoever shall unlawfully and malici- ously shoot at any person, or shall by drawing a trigger, or in any manner, attempt to discharge any kind of loaded arms at any person, or shall stab, cut, or wound any per- son with intent to maim, disfigure, or disable such person, or to do some other grievous bodily harm to such person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and punishable by imprisonment and hard labour at the discre- tion of the Court. use to be live thing, 11 by any ily injury, r, shall be Punishment for sending explosive substances, or throwing destructive matter, with intent to do harm. By Sec. 12, whosever shall unlawfully and malicious- y send, or deliver to, or cause to be taken* or received, by any person, any explosive substance, or any other 2C2 I' ^i i*. 306 PERSON-OFFENCES AGAINST. „. otherwise apply '»;; J^^Lt u- burn, ma™, aU- other deatmc.ive mailer, «•*'"«" rtevom fij„re, or disable any person, or lo do om ^^^^^^ hL;har..wherebyanyper.jh b^^^ disBgured, or disabled, or rece.vc ^^ .^^^^ carriage of any "o™"-;"''; "; . ^on or olher noxious or cause to be taken by ber, any P ^^^^^^^^ ^^ thing, or shall ""'"'^.'^'^^^i^e intent, shall be guiUy of at the discretion of the Court. ^ BySee...ifanywomans«^^--;:^:^^^^ and shall b, -"*' ''"■^l"^;;:^^: to conceal .he birth able by imprisonment. Sodomy. PERSON — OFFENCES AGAINST 807 )on, ., or dis- kvous med, lodily mpri- urt. te mi8- to her, ioxiou8 )r other guilty of I labour conceal it» f a child, ing of the tVie birth d punish- bominable nd, or any Rape, By Sec. 16, every person convicted of the crime of Bape, shall suffer death as a felon. Criminal knowledge of a girl under ten, and above tcny and under twelve years of age. By Sec. 17, if any person shall unlawfully and carnally know and abuse any girl under the age of ten years, he shall be guilty of felony and suffer death. And if any person shall unlawfully and carnally know and abuse any girl, being above the age often years, and under the age of twelve years, he shall be guilty of a misdemeanor and punishable by imprisonment. Wfiat shaU be sufficient proof of carnal knowledge in thefow preceding cases. By Sec. 18, it shall not be necessary in any of the cases above mentioned to prove the actual emission of seed, in order to constitute a carnal knowledge, but that the carnal knowledge shall be deemed complete upon proof of pene- tration only. Forcible abduction cf a woman^ with intent to marry her on account of her fortune. By Sec. 19, where any woman shall have any interest in any real or personal estate, or shall be an heiress pre- sumptive, or next of kin to any one having such interest. ! ft f t 308 PERSON — OFFENCES AGAINST. and any person shall from motives of lucre, take away or detain such woman against her will, with intent to marry or defile her, or to cause her tcrbe married or defiled by any other person, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and punished by imprisonment and hard labour. Unlawful abduction of a girl from parents or guardians. By Sec. 20, if any person shall unlawfully take, or cause to be taken, any unmarried girl, under the age of sixteen years, out of the possession or against the will of her father or mother, or any other person having the lawful care or charge of her, such offender shall be liable to fine and imprisonment. Child stealing. By Sec. 21, if any person shall maliciously, either by force or fraud, lead or take away, or entice away or detain any child under the age often years, with intent to deprive the parent or parents, or any other person, having the lawful care or charge of such child, of the possession of such child ; or if any person shall with such intent, receive or harbour any such child, knowing the same to have been by force or by fraud, so taken, enticed away or detained ; every such offender, and every person aiding or abetting him, shall be guilty of felony, and punishable by imprisonment. This IS not to extend to a father taking his illegitimate child* son. By Minist form in sucii n from til guilly piison^ PERSON — OFFENCES AGAINST. 309 Bigamy. By Sec. 22, if any person, being married, shall marry any other person, during the life of her former husband or wife, whether the second marriage shall have taken place in this Province or elsewhere, every such offender, and every person counselling, aiding, or abetting such offen- der, shall be guilty of felony, and punishable by imprison- ment and hard labour. This however not to extend to any second marriage contracted out of this Province by any other than a subject of Her Majesty resident in this Province, and leaving the same with intent to commit the offence, or to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time ; or shall extend to any per- son, who at the time of such second marriage shall have been divorced from the bond of the first mcrriage, or to any person vviiose former marriage shall have been de- clared void, by the sentence of any Court of competent jurisdiction. Arresting a Clergyman during Divine Service. By Sec. 23, if any person shall arrest a Clergyman, or Minister of the Gospel upon any civil process, while per- forming Divine Service, or shall with the knov\ ledge of such person, be going to perform the same, or returning from the performance thereof, every such offender shall be guilty of a misdemeanor, and punishable by fine and im- piisonment. ^^^T ^At^ '*^ ^iw 'm 310 PERSON-OFFENCES AGAINST. Punishment /or assau» on «f ''^ ;^; shipicreckcd p^ opcriy. a„.hor-.oJ, o„ accoun, of O.e . ,^ ^.^^^^^^^ ^^ ^^ „„y ,bou.*epro,erva.on f n -^^ :blebyimpnsonme,.o.Jhannabo«r. nnnvictcJ of tl.c folUm ing oirencM, V-,. .. of any --"'»"" '^ or Bevcnue Officer in .he a,,auU«l.on „„y Peace Officer or ._^ ^.^ exocOon of hi. d-'y, "' •;!;::, ^y person «Uh in- „f ,uch Offinr,-«l -'!■-"; „,,;el,e„.-.o„ or de- ,e„, .0 re.i»l or prevent *» ' "'^ j^ . ,,„„ f„ra„y ,-,„er of the party s„ ''-^:^i:^ ^ ,^1 by .aw u. be :r;:r!;:-n-a:x.oh.,pr..^ c or if nnNMH-.von shnU unlawfully nnd vs.th By Sec. 2b, .f nn> V^' ^ . „,„ai bue.ncBP, or use any ..Ler violence ; »; 'J f , ^,,^,,,e to any any person «lrall beat, wound, or u«. a) PERSON — OFFENCES AGAINST. 311 or ally and any »ore, rtish- peri5on with intent to deter or hinder him from selling or buying any wheat or other grain, flour, meal, or malt, in any market or other place, or shall beat, See., any person having the charge of any wheat, &c., whilst on its way to or from any city, market, town or otiicr place, with in- lent to stop the conveyance of the same ; every such of- fender, may be convicted thereof before two Justices of the Peace, and imprisoned and kept to hard labour in the Common Gaol or House of Correction, for any term not exceeding three calendar months. ences, •of any • in the ;in a'ui vith in- i or de- fer any kW to be ^Aiittedin wages — iciit, and to ohsiruct age, ifc. and tsJth n\ l)U8»ncBP, lent ; or if jnce to any Common Assault, Battery, Sfc. By Sec. 27, where any person shall unlawfully assault or beat any other person, it shall be lawful for any Jus- tice of the Peace, upon complaint of t!ie party aggrieved, praying him to proceed nummarily under this Act, to liear and diterminc sui h oflencc, and the oirentler upon con- viction thereof before liim, shall lorfeil and pay such fine as shall appear to him to be meet, not cxcecdit-g, together with co.^ls, if ordered, tl.c Bun> of five ponnd;^. Which fine shall be paid to tho Treasurer of the lMur\icipal Dis- trict or place, where the olTencc was coiiunittcd, and make part of the fumlsof such District ; or if the conviction be liad in any place, not within any Municipal District, then Buch fine shall be paid to such olTicer, and be applied to Buch purposes as other fines and penalties are by law. And the evidence of any inhabitant of the Municipal Dis- trict shall be admitted in proof ol the olTenco, notwith- etanding such application of the fine incurred thereby. And if such fine as shall be awarded by the said Justice, together with the costs if ordered, shall not be paid, either 312 PERSON — OFFENCES AGAINST. r immediately after the conviction, or within such period, as the Justice shall at the time of the conviction appoint, it shall be lawful for him to commit the offender to the Com- mon Gaol or House of Correction, for any term not exceed- ing two calendar months,unles8 such fine and costs be sooner paid. But if the Justice upon the hearing of any such case of assault or battery jshall 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 accordingly dismiss the complaint, he shall forthwith make out a certificate under his hand, stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint was preferred. And if the costs be not immedialely paid upon dismissal, or within such period as the Justice shall at the time of such dismis- sal appoint, it shall be lawful for him to issue his warrant to levy the amount of such costs within a certain time to be in the said warrant expressed, and in case no distress sufficient to satisfy the amount of such warrant shall be so found, to commit the party by whom such costs shall be so ordered to be paid to the Common Gaol of the District, county or division where such offence shall be alledged to have been committed, there to be imprisoned for any term not exceeding ten days, unless such costs shall be sooner paid. Effect of the certificate given as above directed. By Sec. 28, if any person against whom any such com- plaint shall have been preferred for any common assault or battery, shall have obtained such certificate as aforesaid, PERSON — OFFENCES AGAINST. 313 or having been convicted, shall have paid the whole amount adjudged to be paid under such conviction, or shall have suffered the imprisonment awarded for non- payment thereof, in every such case he shall be released from all further or other proceedings, civil o r criminal, for the same cause. fVlien the Justice may discharge the offender. By Sec. 29, when any person shall be summarily con- victed before a Justice of the Peace of any offence against this Act, the Justice may discharge the offender from his conviction, upon his making such satisfaction to the party aggrieved, for damages and costs, or either of them, as shall be ascertained bv the said Justice. On certain complaints for Assault and Battery in zohich the Justice adjudicates. By Sec. 30, in case the Justice shall find the assault or battery complained of, to have been accompained by any attempt to commit felony, or shall be of opinion, that the same is from any circumstance a fit subject for a prose- cution by indictment, he shall abstain from any adjudica- tios thereupon, and shall deal with the case in all respects in the same manner, as he would have done* before the passing of this Act. Nor shall the Justice hear or deter- mine any case of assault and battery, in which any ques- tion shall arise as to the title of any lands, tenements or hereditaments, or any interest therein, or accruing there- from, or as to any bankruptcy or insolvency, or any execu- tion under the process of any Court of Justice. . ' h ■upw-;-.' 314? PERSON — OFFENCES AGAINST. r Disturbing persons assembled for religious worship. By Sec. 31, if any person shall wilfully disturb any assemblage of persons met for religious worship, by pro- fane discourse, by rude or indecent behaviour, or by making a noise, either within the place of worship, or so near it, as lo disturb the order and solemnity of the meet- ing, such person shall upon conviction thereof before any Justice of the Peace, on the oath of one or more credible witness or witnesses, forfeit and pay such sum of money, not exceeding five pounds, as the Justice shall think fit. Fines how to be levied. By Sec. 32, in default of payment of any fine imposed under the authority of this Act, on a summary conviction before any Justice of the Peace, together with the costs attending the same, within the period specified for the payment thereof at the time of conviction by the Justice before whom such conviction may have taken place, it shall be lawful for such Justice to issue his warrant, directed to any Constable, to levy the amount of such fine and costs within a certain time to be in the said warrant speci« fied, and in case no distress sufficient to satisfy the amount shall be found, it shall be lawful for him to commit the oftender to the Common Gaol of the District wherein tJie offence waf committed, for any term not exceeding one month, unless the fine and costs shall be sooner paid. Appeal from convictions to the Quarter Session. By Sec. 33, any person who shall think himself aggriev- ed by any summary conviction under this Act, may appeal By Sessior from. By under every death '"1^ PERSON— OFFENCES AGAINST. 315 any pro- •r by or 80 meet- •e any •edible noney, (fit. mposed ividion le costs for the Justice )lace, it directed ine and nt speci- j amount nmit the erein tke ding one >aid. lion. faggriev- ay appeal to the next Court of General or Quarter Sessions, which shall be holden, not less than twelve days after the day ot such conviction or decision, for the District wherein the cause of complaint shall have arisen, provided that sucli person shall give to the other party a notice in writing of such appeal, and of the cause and matter thereof, witliin three days after such conviction, and seven days at least before such Sessions, and shall also either remain in cus- tody until the Sessions, or enter into a recognizance with two sureties before a Justice of the Peace, conditioned, per- sonally to appear at the said Sessions, and to try such appeal, and to abide the judgment of the Court thereupon, and to pay such costs as shall be by the Court awarded, and upon such notice being given, and such recognizances entered into, the Justice before whom the same shall be entered into, shall liberate such person if in custody, and the Court at such Sessions shall hear and determine the matter of the appeal. Appeals triable bij Jury. By Sec. 34, authority is given to the Court of Quarter Sessions to summon a Jury to try the matter appealed from, and to determine accordingly. Punishment of accessaries. By Sec. 35, in the case of every felony punishable under this Act, every principal in the second degree, and every accessary before the fact, shall be punishable with death or otherwise in the same manner as the principal in m ■fel I. It. ,■ * 'f t4 316 PERSON — OFFENCES AGAINST. the firet degree is by this Act punishable, and every ac- ces3ary after the fact in any felony punishable under this Act, shall be liable to imprisonment for any term not ex- ceeding two years. Offences punishable by imprisonment. By Sec. 36, when imprisonment is awarded on convic- tion, it shall be lawful for the Court to sentence the offen- der to hard labour in the Common Gaol or House of Correction, and also (o direct that the offender be kept in solitary confinement for any portion of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year, as to the Court shall seem meet. Jury may acquit of felony, and convict of assault. By Sec. 37, in any felony including an assault against the person, the Jury may acquit of the felony, and convict of the assault. By Sec. 38, this Act not to affect the laws relating to the Government of Her Majesty's Land or Naval Forces. Persons imprisoned may be pardoned. By Sec. 39, the Queen, or Governor, &c., of the Pro- vince may extend the royal mercy to any person impris* oned by virtue of this Act, although imprisoned for non- payment of money to some party other than the Crown. B I obsel title,! .jll^J. , PERSON — ENCES AGAINST. 317 Provision/or offences against this Act, punishable on Suminary Conviction. By Sec. 40, where any person shall be charged on the oath of a credible witness before a Justice of the Peace, with any offence punishable upon summary conviction by virtue of this Act, the Justice may summon the person charged, to appear at a time and place to be named in such summons, and if he shall not appear accordingly, then, upon proof of the due service of the summons upon such person, by delivering the same to him, the Justice may either proceed fo hear and determine the case ex- parte, or may issue his warrant for apprehending such person and bringing him before himself or some other Jus- tice of the Peace ; or the Justice before whom the charge is made, may issue such warrant in the first instance, with- out any previous summons. Limitations for Summary Proceedings. By Sec. 4)1, the prosecution for every offence punish- able on summary conviction by virtue of this Act, shall be commenced within three calendar months after the commission of the offence, and not otherwise. Form of Conviction. By Sec. 412, a form of summary conviction is given, for which, see title. Conviction. I would here refer the Justice of the Peace, to the observations made on the Act of 4th and 5th Vict. c. 25, title, Larceny, as applicable to this Act. 2D2 ikt 318 POSSE COMITATUS. 1 PETIT LARCENY. By the Act, 4th and 5lh Vict. c. 25, Sec. 2, allibimer distinction between Grand and Petit Larceny is abohshed, and every Larceny is subject to the same incidents, (ex- cept as regards the degree of punishment) as Grand Lar- ceny was before. See Larceny. Petit Treason, see Treason. POISONING. See Persons ^Offences jigainsi, Act 4«>."'^^'»/::;r, ttual ...ody of .hcsald That tbe sa,d C- D- ^ '"^ ^i,^„, ^f ,He said warrant, after- wards (or «'*»<««'•»« ''■l'^""_7 „f with my be) to wit on the ^^^ a.. B. force and violence, and »6» "» ;;;^,„„, f„,eibly, and „s such keeper as f ^^'f • ^^ ^Jj^j eLape and go at feloniously breal. t e s„d » ^ _ ,^ ^^^^ ^^.^ „rgetheref«.n.cuton c« y ^^^^^ E.H. of the sau and the sa,d A. B. furtl ^^ ^^^^ ^^^ ^„j „„ ,.,,h„f-----;^"2:.said, unlawfully and felon,- aforesaid at . . . ^ p, to break, anct ously, »-"'.»'«''°".VgTj n ner aforesaid, and did escape from the sa,d Gaol m ^^^^^ ^.^ for this purpose debvcr and cauee ^^^^^_^ ^^ ^^^ C. D.. «l.»e a prisoner th .d ^^^^^^^^ said warrant, two steel ries, ne 6 ^ „na by means of , therefrom. . „. . in the said Sworn at , ,.<• i » i. District, tin. -dayofy^s.,^„„,)A.u. 18 , before me. (Signed,) W. Km ^"P- &APE. 325 The warrant to apprehend the parties on this informa- tion, as well as all examinations and other proceedings to be had thereon, are in the usual form, observing always to state the ground, upon which such warrant or other proceedings are founded, as contained in the information. Taking the above information as a model, otiiers may be founded thereon for offences of this description, accor- ding to the various circumstances of each particular case. PUBLIC WORSHIP. See Church. RAPE. See Person — Offences Jl gainst, 4.th and 5th Vict. c. 27, s. 16, 18. Information for Rape. District of ) Information of A. B. of the Parish of- f ) in the said District, Spinster, (or widow, or married woman, as the case may be) taken before me, W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District. The said A. B., being duly sworn, deposeth, and saith, that on the day of instant. at the Parish aforesaid, G. D., of in the said District, labourer, did violently and feloniously make an assault upon her the said A. B., and her the said A. B., 2E Hi* t 4' 326 RECEIVERS OF STOLEN GOODS. did, then and there, violently and against her will, ravish and carnally know. Wherefore prays Justice. The warrant and other proceedings on tiiis oiTence are the same as in other cases of felony. I I, I RECEIVERS OF STOLEN GOODS. See Larceny^ ^th and 5th Vict. c. 25, s. 46, 47, 48. Information against a receiver of stolen goods. District of ) Information of A. B., of the Parish of \ in the said District, yeoman taken before me W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District, The said A. B., being duly sworn, deposeth, and saith, that on the day of at the Parish aforesaid, three silver table spoons of the value of three pound?, tl»e property of this Deponent, were feloniously stolen, taken and carried away from and out of the dwel- ling house of this Deponent situate in the said Parish, by some person or persons unknown, and this Deponent fur- ther saith, that C. D., of in the said — — District, labourer, did, on the day and year last aforesaid, at aforesaid, feloniously receive and have the said silver spoons, well knowing the s. mo to have been stolen, taken and carried away as aforesaid. — Wherefore prays Justice. Sworn at ————— in the said District, this — day of 18 — , before me, . (Signed) W. R., J. P. (Signed,) A. B. year feloni knovN awaj cealj his #p RECEIVERS OF STOLEN GOODS. 327 avish e are 48. rish of ^'eoman one of ace, in id saith, Parish of three oniously le dvvel- arish, by ment fur- aforesaid, have the lave been tVherefore B. Information against the person suspectpJ of stealing, and against the person suspected of receiving the property stolen. District of ) Information of A. B., of the Parish of ) in the said District, yeoman, taken before me W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District. The said A. B., being duly sworn, deposelh and saith, that on the day of , at the parish afore- said, three silver table t^poons, of the value of three pounds, of the goods and chattels of this Deponent, were feloniously stolen, taken and carried away from and out of his dwel- ling house in the said Parish, by some person or persons, and this Deponent further saith that lie hath just reason to suspect and believe, and doth verily suspect and believe, that the said silver spoons were so stolen, taken and car- ried away by one C. D., of in the said District, labourer, he the said C. D., having been seen coming from and out of the said dwelling house, a short time be- fore it was ascertained that the said silver spoons had been so stolen (or xuhalever other cause of suspicion there may be) and this Deponent further saith, that he hath been eredibly informed and doth verily believe, that E. F. of ■ — in the said District, labourer, on the day and year last aforesaid, at the said Parish of did feloniously receive and have the said silver spoons, well knowing the same to have been stolen, taken and carried away as aforesaid, and that the said E. F. doth now con- ceal the said silver spoons in his dwelling house, or other his premises as aforesaid. Whereupon this Deponent i ^ 328 RECEIVERS OF STOLEN GOODS. prays Justice, and that a search warrant be granted to him, to search for the said silver spoons in the dwelling house and other the prennises aforesaid of the said £. F. Warrant to apprehend, on suspicion of stealingi and search warrant on suspicion of receiving and concealing the property stolen. District of ) W. R., Esquire, one of Her Majesty's ) Justices of the Peace, in and for the said District. To any Constable, or other Peace Officer in and for the said District. Whereas A. B., of the Parish of- in the said District, yeoman, hath this day made oath before me the said Justice, that on the day of at the Parish aforesaid, three silver table spoons, of the value of three pounds, were feloniously stolen, taken and carried away from and out of his dwelling house in the said Parish by some person or persons, and that he the said A. I?., had just reason to suspect and believe, that the said silver spoons were so stolen, and carried away by one C. D., in the said District, labourer, he the said C. D., Ituving been seen coming from and out of the said dwel- ling house a short time before it was ascertained that the said silver spoons had been so stolen. These are there- fore to charge and command you, and each and every of you, that you take the said C. D., and bring him 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, and whereas, the said A. B., hath this day further In supposi necessg receii hovvevl by suci 1. 1 ti RECEIVERS OF STOLEN GOODS. 329 him; louse eaich ig the jesly'a le said for the le said me the at e value [ carried he said said A. the said r one C. d C. D., id dvvel- that the re there- every of m before he Peace jording to ly further made oath before me that he hath been credibly informed, and doth verily believe that E. F., of in the said District, labourer, on the day and year last aforesaid, at the said Parish of , did feloniously receive and have the aforesaid silver spoons, knowing the same to have been ro sto'' , taken and carried away, and that the said silver ^onb "> now concealed I i^ said E. F., in his dwelling house, or other the premises of the said E. F., at aforesaid, and therefore praying that a search warrant may be granted to search for the said silver spoons in the said dwelling house, and other the premises of the said E. F., these are tiierefore further to charge and command you and each and every of you, with necessary and proper assistants, to enter in the day time the said dwelling house, and other the premises of the said E. F., and there diligently to search for the said silver spoons, and if the same, or any of them shall be found upon such search, that you bring the same so found, and also the body of the said E. F. before me, or some of Her Majes- ty's Justices of the Peace for the said District to be dealt with according to law. Given under my hand and seal at in the said District, this day of ■ one thousand eight hundred and . (Signed) W. R., J. P. [Seal.] In cases of suspicion, it will seldom happen, as here supposed, that the same person will be able to give all the necessary information of the several facts of stealings of receivings and of comealing, the property stolen. It is, however, necessary that these facta should be ascertained by such witnesses as can give a reasonable account of their 2E2 330 RECOGNIZANCE. suspicion and belief, and of the circumstances on which these are founded. In a case of this kind, where much depends upon the evidence to be elicited from the examination of witnesses, and from the return to be made by the officer, or officers charged with the execution of the search warrant, unless the Justice is satisfied of the guilt of the accused, he is bound by the Act of 4th and 5th Vict. c. 24, s. 1, 2, to call in the aid of a brother Magistrate, and with him to deliberate and determine, whether the parties accused are to be committed, admitted to bail, or discharged. The above applies to cases of felony, which are to be tried before a Court and Jury, but besides these, there is a number of offences for stealing, which, by the before men-> tioned Act of the 4th and 5th Vict. c. 25, may be heard and determined before a Justice of the Peace in a sum- mary manner ; in all such cases, the receiver may be tried and convicted in the same manner. See s^ 52. RECOGNIZANCE. A Recognizance^ is a bond or obligation of record, whicii a man enters into before some Court of Record, or Magis- trate duly authorised, thereby acknowledging himself to owe to the Queen a certain sum, with a condition to do r>ome particular act, as to appear at the Sessions or As- sizes, to keep the peace, to be of goo 1 behaviour, or the like. Some recognizances, Justice of the Peace are enabled to take by the express words of certain statutes, but in other cases, as for the peace and good behaviour, it is rather by reasonable intentment of law, than by any (( (t (( sv ai «LJ ««b| «ti (( ^ JUE RECOGNIZANCE. 331 to express authority given them, either by their commission, or under any statute. But whenever a statute gives a Justice power to bind over any man to appear at the As- sizes or Sessions, or to take sureties for any matter or cause, he may take a iccogoizance, and in general, where a Justice has authority on any occasion to order a man to do some particular thing, it seems that he has an implied power to bind the party by recognizance to do it, and upon his refusal to be bound, to commit him for a contempt, but a Justice can take no recognizance of any other matter than what concerns his duty as a Magistrate, and if he do, it is void,— I>c/^ c. 168, 176. Every obligation and recognizance taken by Justices of the Peace, must be made to our Lady the Queen, on pain of imprisonment of any person, that shall take it otherwise, — 33, Hen. 8, c. 39. And it ought also to contain the name, place of abode, and trade or calling, both of principal and sureties, and the sums in which they are bound, — Barl. Rocog. The manner of taking a recognizance is, to call the parties by their names,'thu8 : — " You A. B., acknowledge " to owe to our Sovereign Lady the (^ueen, the sum of " £ , and you C. D., and E. F., acknowledge " severally to owe to our Sover j,n Lady the Queen, the " sum of £ , to be levied of your respective goods " and chatties, lands and tenements for the use of our said " Lady the Queen, her heirs andsuccessers, if default shall " be made in the condition following, that is to say, if you « the said A. B., shall make default in appearing and " answering, &c." The parties need not sign the recognizance, but the Justice, in order to expedite the business at the moment. V * * (i ! ll J 1 332 RECOGNIZANCE. merely makes a memorandum of it at the foot of the ex- amination, as A. B., £ C. D., and E. F, £ each, that A. B. appear, &c., and afterwards draws up the recognizance in proper form, so as to make a record of it, and subscribes his name, without his seal. Every re- cognizance must be returned to the next Sessions, or to the Court, where proceedings upon it may be had. In general the party's own recognizance, without sure- ties, is all that is required from witnesses to appear, and prosecute or give evidence, but a married woman cannot bind herself, neither can one under age, and must there- fore enter into recognizance with sureties. The usual course, where a married woman is a material witness, is to join her husband, or some other competent person, in the recognizance with her, as surety for her appearance. Recognizance by husband and wife, for the appearance of the wife, to give evidence. PiSTRiCT OF ) Be it remembered, that on the day DF ) ) of , in the year of our Lord one thousand eight hundred and , A. B., of the Parish of in the said District, yeoman, and E. B.,his wife, personally came and appeared before me, W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District, and acknowledged themselves to owe to our Lady the Queen, that is to say, the said A. B., as well for hi nself as for his said wife, the sum of £ to ]vs made and levied of his goods and chattels lands, and tenements, to the use of our said Lady the Queen, her heirs and successors, if default shall be made in the follow- ing condition : — in tht trict, me of tl acknl our that and tl to bej and ^f I RECOGNIZANCE. 333 m The condition of the above recognizance is such, that if the said E, B., shall personally appear at the next en- suing Court o( (Quarter Sessions ofihe Peace, or Court of King's Bench, holding criminal jurisdiction in and for the said District, as the case may be,) and then and there give evidence of all she knows on a certain com- plaint and accusation against one C. D., for having feloni- ously stolen, taken and carried away certain goods and chattels, the properly of J. G., and that the said E. B., shall not depart the said Court without leave — then the above recognizance to be null and void, otherwise to re- main in full force and virtue. Taken and acknowledged the day and year above vviitten before me. (Signed,) W. R., /. P. S Recognizance with sureties by a person accused of any crime or misdemeanor. District of ) Be it remembered that on the day in the year one thousand ;Be 5 of A. B., of the Parish of- eight hundred and — — , in the said District, carpenter, C. D., of .^ in the same District, yoeman, and E. F. of the said Dis- trict, yeoman, personally came and appeared before me W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District, who acknowledged themselves to owe and to be indebted to our Sovereign Lady the Queen, in the sum of JG , that is to say, the said A. B., in the sum of £ , and the said C. D. and E. F. each in the sum of £ to be made and levied of their goods and chattels, lands and tenements respectively, to the use of our said Lady ' i !il i M Zx 334 RECOGNIZANCE. the Queen, her heirs and successors, if default shall be made in the following condition : — The condition of the above recognizance is such, that if ♦he above bounden A. B , shall personally appear at the next ensuing Courl o( {Quarter Sessions of the Peace, or Court of King's Bench holding criminal jurisdiction in and for the said District, as the case may be,) to be holden at . in the said District, on the day of next, at nine of the clock in the forenoon, then and there to answer to all such charges and accusations as may then and there be made against him on the part and behalf of our said Lady the Queen, for {here state the par- iicular crime or offence of which the party is accused) and that the said A. B., shall, not depart the said Court without leave, — then the above recognizance to be null and void, otherwise to remain in full force and virtue. Taken and acknowledged the \ day and year above written I, before me. i (Signed,) W. R., J. P. Recognizance without sureties by several persons to ap- pear and give evidence. District of ? Be it remembered that on the ) day of in the year of our Lord one thousand eight hundred and A. B. of the Parish of in the said District, labourer, C. D. of the same place, carpenter, E. F. of the same place, yeoman, and G. H. also of the same place, yeoman, per- gonally came and appeared before me, W. R. Esquire, Reel til \ RECOGNIZANCE. 335 one of Her Majesty's Justices of the Peace in and for the said District, who acknowledged themselves severally to owe and to be indebted to our Sovereign Lady the Queen, that is lo say, the said A. B. in the sum of JC the said C. D. in the sum of j£ , the said £. F. in ihe sum of JB , and the said G. H. in the sum of j£ , to be made and levied of their goods and chattels, lands and tenements respectively, to the use of our said Lady the Queen, her heirs and successors, if default shall be made in the following condition. The condition of the above recognizance is such, — that if the above bounden A. B., C. D., E. F., and G. H — shall severally appear in their proper persons at the nt .\t ensuing Court of (Quarter Sessions of the Peaccy r^r Court of King'' s Bench holding criminal jurisdiction in a ad for the said District, ets the case may be,) to be holden at in the said District, on the day of next, at nine of the clock in the forenoon, and then and there severally give evidence, of all they severally know, on a certain complaint and accusation against one J. K. for (here state the crime or offence with which the 2)any is charged^ and that the said A. B., C. D., E. F., and G. H., shall not depart the said Court without leave, — then the above recognizance to ' e null and void, other- wise to remain in full force and vi;l :. Taken and acknowledged the day and year above writttii before me. (Signed) W.R.,/.P. Recognizance, with sureties, to keep the peace, or be of the good behaviour. m I . ^1 ■■vn RECOGNIZANCE. 336 D,s™cx o. ) Be U -e^W »hat - *e^^^ ^^ ^^ \ of J'"^ ^ A. B., of the .Uoasand eight h»"''«'^^7^., DU.rio., yeoman, CD, Parish of- „ p jiso of Ihe same place, of, he eame place, yeoman, E.J., _^^_ w. ,e„man,person.Uy^ame-^P^^^^ R.,E«l«-.re.one ofHe M , y_^^^^ ,^^^^^ ^ i„a>idforll>e8a.dD..tne.a _^ j^^j^ „,g .0 owe, and to be ■"-><='" -^'"J^. B., in the sum of Queen, that .s to say, . g. F, each in the sum S ,»'l"'"»"','';^;teld of their goods and „,-£. , to be made and levieu ^^ ^e^ttels, lands and teneme-ts ^^ t— rs, if de- our said Lady the Queen, hjr^h- fault shall be -''-;** cognizance is such, that The cond,t.on of the abo ^^^ ^^^^^ ^^^^^^^^ ^^,. if .He above bounden A. B-. ^^ .^^^ „f ,,,, p,,ee, to peat at the next Court oi vi^^^ ^^^ ^^^^ ^. ^ ^.^^.^^ „„ .he be hoUen at ^^ j^ „„a receive what _ day of ■ , ' .. K, that Court, and i„ ,he meant.me shaU k ep ^ P^^^^ ^^^ ^„ ,„ 4,Aar<<««-) towards our sa.u u j ^^ ,-,ege people, and especa^y '°;;'^; ,„;„„„,)_,,„„ the '" *" »'" '"'";: t:^"'a^a'oid,'otherwise to remain said recognizance to be null in full force ami virtue. Taken and acknowledged the V day and year above written f before me. , „ S (Signed,) W. R., J' P' RECOGNIZANCE. 337 to It may be advisable for the Justice in most cases on complaints ma le, to obtain surety of tlie peace, for threats, or other violent language or behaviour, to bind the party complained of, to keep the pea'ie for a certain space of time, as for three, six, or twelve months, without requir- ing his appearance before the Sessions, for unless the com- plaint is there intended to be renewed, this appearance is unnecessary, and loss of time and trouble thereby incurred. Recognisance with sureties, to enter and try an appea from a summary conviction before a Justice. District of ^ Be it remembered, &c., {as in the pre j[ ceding forms.) The condition of the above recognizance is such, that if the above bounden A. B., do and shall personally ap- pear at the next Court of General or Quarter Sessions of the Peace, lo be holden at , in and for the said District, and shall then and there enter and try his iippeal, whereof he hath given notice, against a conviction of him the said A. B., betfring date the day of instant, (or Iw^t) under the hand and seal of J. G., Esquire, one of Her Majesty's Justices of the Peace, {or under the hands and seals of J. C, P. R., Esquircsy two of Her Majesty's Justices of the PcacCf as the case may be) in and for the said District, for the said A. B., having (set forth the ojj'ence for which the conviction was made,) and that the said A. B., shall abide the order of and pay such costs as shall be awarded by the said Court of General or Quar- ter Sessions of the Peace, then this recogiiizance shall be void, otherwise to remain in full force and virtue. Taken and ncknowIe»lged the "^ day and year fn>t above written, befure me. (Signed,) VV. R., /. P. 'iF 338 1^ 1^ BELIGION-THE CHRISTIAH. KELiaiON-THE CHKISTUN. „ffec.sActe«.l>or 1. 1 .aeas »' ^^ superintends S„pren.e Being, ana a firm P"="°!' teV.efof a future state eve'ry action in human l.fe ^^-i^^^^H ^,^,. „C Jvards and ^'^'^l^^^ religion,) are ed and forcibly tnculcated by the c ^^^^^ „ot only calculated to control tlo mora ^^^ a„d restrain those crimes "'""^ ^^'^^^ foundation of goodorderofsociety«a;^ ^0^^^^ ,.„ judicial oaths, ^v "' ' ^^1, ;, highly by denying its truth, or deprecatmg .^^^, iservilg of temporal P"— ;;;;,,„, j moral censure, by reason of their '°"'^'" J ,„e^iy,_4, B(a. obligation, and all -"« f ""^ " ™^^^^^^^^ Al- Com. «. Therefore »" P'*;'";' ', c'hristiat. religion Wuighty, or turning *»— Stable at common law into contempt and rtd.cule, are m^ ^^^ ^^_ ^^ as public libels,-!, •^''"•'•••.^n^ „„ i,„p„s- l pubhcation stahng, that our Sav^ ^ ,or, a murderer in F'-P ^; °"',„;X J „Uvoys be so, „„„s and scandalous 'b»'.; '';»Xed to be the basis „,Ue the Christian rehg.on^ CO «*^^_ of the law of the land,-l, V.a ^ ^^^_ I„ liUe "-"".^^'^^^'t d snd New Testament. .ItscUing the truth of >'»";'';.„";„„,„,„„ of the will of .,«i„g that there was ngenmn ^^^^^^^^^^ God, existing in the world, ana RELIGION — THE CHRISTIAN. 339 n impos- blasphe- QyB be BO, > the bamii a book, — reslamcut, the will of 18 the only true faith which laid any obhgation on the conduct of mankind,— and in other respects ridiculing and vilifying the Prophets, our Saviour, his Disciples, and the Holy Scriptures — it was held to be an infamous and blasphe- mous libel. Although the Almighty does not require the aid of human tribunals to vindicate his prccepfs, it is r 3vertheless incumbent on the law to shew its abhorrence of doctrines, which are not only an ofience against God, but subversive of all law and government, from their direct tendency to dissolve all the bonds and obligations of civil society. It is upon this ground indeed that the Christian religion constitutes the law of the '.and — for if the truths of revelation and the existence of a God were suffered to be openly im^jugned, the solemnity of an oath, on which the administration of Justice mainly depends, would be utterly destroyed, and the law thus be stripped of one of its prin- cipal sanctions for the discovery of truth, namely the dread of future punishment, — 1, East. P. C, 5. — Holt on Libel, 60 no{a.— Vint. 293.-3, Kcb. 607. All publications tending to vitiate and corrupt the minds and morals of the people, whether by writing, print, picture, or symbol, are likewise indictable as libels at com- mon law. For any attempt of this nature to destroy morality, is an attempt to destroy the very bonds of society and government, since government is no more thun public order, and that is founded on morality, — such an offence also is in technical language against the peace of the Queen, for peace includes good order and government, and that peace may be broken in many instances without any actual force, as in tlie case of every act openly com* mitted against religion or morality, — 2, Str. 783. The Christian relij^ion, according to itigh legal authority, I .V -% 340 RESCUE. IS part and parcel of tlie law of England. To re- proach, or blaspheme it theiefore, is to speak in subver- sion of the law — and to saj-, that religion is a cheat, manifests plainly a wish and endeavour to dissolve all those obligations wherebj' civil society is preserved, and is held to be an indictable offence at common law, — Vent. 293,-3, Keb., 607. It is to be hoped that there will be few, or no occasions for prosecutions on this head, — but should any offences of the above description nrise, whicli from the informa- tions and depositions, laid before the Justice of the Peace, shall appear to him to be of that notorious and infamous character, as to require his interferance, he will issue his warrant to arrest the offender, and on default of good and sufficient bail, commit him to gaol, to abide his trial before the Court. There is no specific form required for drawing the informations, warrants, Stc. in this case — a detail of the circumstances by the witnesses in their depositions, establishing in a satisfactory manner the extent of the offence, will in this, as in other cases, be a sufficient ground for the proceedings of the Justice, ac- cordrhg to the forms used in other cases of misdemeanor. RESCUE. /2e«ct'e, signifies the forcibly setting any man at liberty from legal arrest or imprisonment, and it is generally the same offence in a stranger so rescuing, as it would have been in a gaoler to have voluntarily permitted an escape^ nr in jRescu he fell fnisder. escape rescuei provide same re there I Foste?'. Bytl; intent tc tlie part J offence, arrested and impi informal] officerl DiSTRIC RESCUE. 34-1 PI* in the prisoner iiimself to have broken prison. A Rescue therefore of one apprehended for felony is said to he felony ; for treason, treason ; and for a misdemeanor ^ a misdemeanor also. But here likewise, as upon voluntary escapes, the principal must first be convicted, before the rescuer can be punished to the same extent as the law provides for the crime of the party rescued — and for tlie same reason, beause it may probably turn out in fact, that there has been no offence comuiiUed, — ],Hale, 607, Foster. 3i4.—i^, SI. Com. 131, i2. 4' R.VoS. By the Act of Mi and 5th Vict, s. 25, an assault with intent to resist or prevent the apprehension, or detainer of the party so assaulting, or of any other person, for any otlier offence, for which he or they may be liable by law to be arrested or detained^ is a misdemeanor, punishable by fine and imprisonment. t\ Information for rescuing a prisoner in the custody of an officer. District of ) Information of A. B., of the Parish of in the said District, yeoman, taken before me,W. R., Esquire, one of Her Ma- jesty's Justices of the Peace, in and for the said District. The said A. B., being duly sworn, deposelh and saith, that by virtue of a warrant under the hand and seal of F. G., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District, bearing date the day of ■ instant, addressed and delivered to hiiD) this deponent, he the said deponent was commanded and re^ 2F2 342 RESCUE. quired to take the body of C. D., of the Parish of in the said District, labourer, and to bring him the said C. D., before the said J. G., being Justice as aforesaid, in order to be examined touching a certain felony, charged on the oath of one E. F., of the said Parish of — — yeoman, to have been committed by the said C. D., for liaving on the day of at the Parish, last aforesaid, feloniously stolen, taken, and led away, a cer- tain black gelding of the value often pounds, the property of the said E. F. That afterwards, to wit, on the day of—— instant, at the Parish last aforesaid, he this Deponent, by virtue of the said warrant, did arrest and take the said C. D., and while he the said G. D., was by- virtue of the said warrant held and detained in the custody of this Deponent, he the said C. D., and G, H., late of in the said District, labourer, and J. K., late of the same place, labourer, well knowing the said C. D., to be arrested and detained as aforesaid, afterwards to wit, on the said — — — day of at the said Parish of did violently assault, beat, and ill treat this De- ponent, and with force and violence, him the said C. D., did rescue out of the custody of this deponent and against his will, by means whereof the said G. D., did escape and go at large where he pleased. Wherefore prays Justice. Sworn at this — before me. (Signed) — in the said District, day of 18—, W. R., /. P. (Signed) A. B. (( (( sons. The warrant to apprehend the offenders, is in the usual form, reciting in it the above information. In the exam- inations of the parties, and of any other witnesses to be .^-iv^'. RIOT, ROUT, &C. 343 taken in their presence, it is not necessary to recite t!ie whole of the information but to state the charge generally thus : — " Examination of G. H., of — — brought " before me, VV. R., Esquire, one of Her Majesty's Jus- " ticet?, Stc, on a charge of having violently and forcibly " rescued and set at large one C. D., from the custody of " A. B., while arrested and detained by virtue of a legal " warrant for felony." In the warrant of commitment, however, it will be pro- per to set out the information, so as to show the nature and extent of the oflence and the legality of the arrest. From the above, other informations may be drawn for any offence committed under this head, the main objects to be attended to for this purpose, are to set out a legal warrant regularly granted, by competent authority, for some criminal offence, committed within the jurisdiction of the Magistrate granting it, the time and place of arrest or detention within that jurisdiction, the mode and manner of the rescue, and when, where, and by whom committed. '*l5ii!i'I RIOT, ROUT, &c. A Riot is a tumu'tuous meeting of three or more per- sons, who actually do an unlawful act of violence, either with, or v/ithout a common ca jse or quarrel — or even do a lawful act with force and violence, — 2, Deacon^ 1113. —4, Bl. Com. 1*6. A Rout is where three or more meet to do some unlaw- ful act, upon a common quarrel, as forcibly to break down a fence upon a right claimed of common or of way — and make some advances towards it, but without actually "^1 344 RIOT, ROUT, &.C. I If ^ executing it, — a Rout may be said to agree with a Riot in all particulars, except that the offence of the Rout may be complete without the execution of the intended enter- prize, — 1, Hawk. c. 6, s. 8. Sec. 9, an unlawful assembly, is where three or more assemble themselves together with intent to do an unlaw- ful act, as to pull down enclosures, &c., but separate with- out doing it, or making any movement towards it. Sec. 12, the punishment for offences of this kind at common law, is fine and imprisonment, which the Court may apportion according to the circumstances of the offence. To constitute a riot, there must be some circumstances of actual force or violence, or at least an apparent ten- dency thereto, which are calculated to strike terror among the people, such as the show of offensive weapons ; threat- ening speeches, or, turbulent gestures, but it is not neces- sary that personal violence should actually have been committed, — 1, Hawk. c. 65, s, 5. — 2, Camp. Rep. 369. It seems also that the violence and tumult must be in some degree pre^peditated in o Jer to convict the defen- dants of a riot. For if a number of persons, being met together on any lawful occasion, happen on a sudden quarrel to fall together by the ears, this is not a riot, but only a sudden affray, of which none are guilty but those actually engaged in it, because the design of their meeting was innocent and lawful, and the subsequent breach of the peace happened unexpectedly, without any previoua intention, — Salk. 595. Whoever encourages, or promotes, or takes part in a riot, whether by words, signs, or gestures, or by wearing the badge or ensign of the rioteni, is himself to be consider- I ..:,/jK.i^--^z. ;-;>*'■«■'' RIOT, ROUT, &,C. 345 ed a rioter, for in this case all are principals, — 1, Hi ■. 463 — 2, Camp. R. 370. By Stat. Geo. 1, st. 2, c. 5, s. 1, commonly called the Riot Act^ persons to the number of twelve or more, un- lawfully, riotously, and tumultuously assembled, to the danger of ihe public peace, remaining together for one hour, after being commanded to disperse by proclamation by one or more Justices, shall be adjudged felons. By Sec. 2, of this Statute, the Justice is required to make the Proclamation among the rioters, or as near to them, as he can safely come, and with a loud voice com- mand, or cause to be commanded silence to be kept, while the Proclamation is making, and then with a loud voice make, or cause to be made Proclamation in these words, or like in effect. " Our Sovereign Lord the Ki?is[, {or Lady ihc Queen,) " chargeth and commandeth all persons being assembled " immediately to disperse themselves, and peaceably to de- " part to their habitations, or to their lawful business, " upon the pains contained in the Act made in the first " year of King George, for preventing tumults and " riotous assemblies,''^ — God save the King ( Queen.) Every Justice is required, upon notice of any such assembly, to resort to the place and make Proclamation as aforesaid. The Proclamation must be read correctly, for any vari- ance will be fatal, — Burns J. Should the rioters, to the number of twelve or more, continue and remain together by the space of one houri after such request or command made by Proclamation, the parties so remaining are guilty of felony punishable with death, — 1, Geo, 1, c. 5, s. 2. V (| --— -"%. T' g WOT, ROUT, &.C. o n „f ihe above Statute, if any person sWl AndbySec.5,onh ab^e ^^^. ^^^^^^ b- „»h fotce and. arms w. M > a ^^^. ^^^^, .„j„_ tractor in an, manner wlMly a ^^ ^^ ,„ orhurt, any person ' »« "rm" Proeiamation, thereby rYT «!: *— not be tnaae, tire offenaer dirccleJ, whereny ...■,. „iih Jeath. is gaiity of felony ^-JP"" ''""^^^ .entioneJ statute But before tbe passrng of ^^'^^^^^^^^ y^„. ,, ,. 7, .. of the 1st Geo. l^''""' ";• J ^^^ „c them at least, and ,_,he Justices ° * J^^, :,„„„,y,were authorised the Sheriff, or tmde. Sh«i» o' ^^^^ ,„ ^uend ,0 arrest any rioters, and all P"^"' j,^^ battery, the Justices •'-"PP-f^f /^^.'.hat may happen in wounding or kdbrg "f *«,,"'' '_, Uak. 495.-'- .„pp,essing the rio. ,s 3 ..^fi^Ue, ^_ , Hav,k. c. 65, •1--*' 1,^,, statutes, the common Independent^ , how - , ^^^.^^ ^„„^,,,„, „ ,„y law authonses the bherin, ^^.^ , ,„ Cher Peace Officer, .0 do j *;^;^'„„,^, „ ,oa,- ,„ppress ariot, and to »"'-^^„X*may'lawfuUy en- ,.thim,and -JJ^^^l rrbanc;s.by s.aying.hose, deavour to appease »» "^' ^„„„Ung their p»r- wUomheseesen^^dttereu. ^^ ^^^^___.p.. pose, and by ^W ^^"^tm themselves in order .0 Bos. and P. 260. information for riotous,, assembling together and commit- ting outrages, U RIOT, ROUT, StC. 347 District of ) Information of A. B. of the Parish of — ) in the said District, '-yeoman, taken before me, W. R. Esquire, one of Her Majesty's Justices of the Peace in and for said District. The said A. B., being duly sw> .n, deposeth and saith, tliat on the day of at the Parish of in the said District, C. D., of in tiie same District, labourer, E, F., of the same place, labourer, G. H., of the same place, labourer, and divers other per- sons to the number of (twenty,) and more did unlawfully, riotously, and tumultuously assemble and meet together to the disturbance of the public, and that they the said C. D., E. F., G. H., and others aforesaid being so assembled and met together, did wilfully and maliciously break and destroy the windows of the dwelling house of the said A. B., in the said Parish of and did then and there, forcibly and with violence, enter the said dwelling houae and break and destroy the goods, chatties and fur- niture of the said A. B., being therein, and did then and there assault, beat and ill treat the said A. B., to his great injury and damage and against the peace. Wherefore prays Justice. Sworn at in the "> «aid District, this day I .gigned,) A. B. of 18— .before me. j (Signed,) W. R., /. P. J The proceedings before the Justice on this complaint are in the usual form for a misdemeanor. "U Information for felony, in continuing a riot for an hour, after the Riot Act has been read. -■Lf^t''^'S^'^'^ .^. RIOT, ROUT, &C. r A Ti of the Parish of 1„ST«CT0. !I*7;;r[j:,- D-,s,ric., yeoman .a.en ^ wT TJ Esauire, one of Her the said Visincl. The saiJ A. H- ULint " J ^^ ^^^^ p^,.,,), „f Ihat on Oie TT nlLpi C D. of the same Patisli, V F of the .ame place, labourer, and G. H. of labourer, E. F. ol me i ^.^^^ ^j|^^^ p„. U,e same place, =''' -^';^;*^^ „„,e, being then and sons to the number of (twent; J assembled .here unlawfully, riotous^ -^ — ^,,, („„,^„. together to the disturbance of he pv P ^_^^ ^^. Jy /-..^"'"'^''^^"'Vd ' G Enquire one of the then and there e<'™;;"'!'"\',;.,„„;a to keep the peace Justices of Her ^i^f^^lX^^^L.^ nLe in Her i„ and for the sa,d P'"™*' '^ ^ ^ ^y the Statute in that Majesty'sname .ntbeformdre e^by^ themselves and "'" "T^otpa t 'r habitatLs, or to their lawful peaceably o depa,t to ^ ^^^ ^^,^^^^ ^f„^. business, the sard C- D. *- > notwithstanding saidtothenumbe 0^ u n ) _ .^^^_^^,^_ ^^^ peace. sworn at in the said Dirtriel, this ^'^1 "f )■ (Signed) A. B. _ 18 — > before me. (Signea,)W.R.,«^-^- RIOT, ROUT, &C. 349 The proceedings on this information by the Justice are the same as in the cases of felony. Information for riotously beginning to demolish (or for demolishing a house) under Act -i and 5 Vic. c. 26. s. i>. District op Information of A. B., &c. The said A. B. being duly sworn, deposeth and saith, that on the day of , at the parish aforesaiil, C. D. of the parish of in the said District, labourer ; E. F. of the said parish, labourer, G. H. of the same parish, labourer, together with divers other persons, to the number of (twenty) and more, being then and there unlawfully, riotously, and tumul- tuously assembled and met together to the disturbance of the public peace, and being so assembled and met together, they the said C- D., E. F., G, H., and others aforesaid, to the number of (twenty) or more, did then and there feloniously, and with force and violence, Ijegin to demolish and pull down (or, demolish and pull down,) the dwelling-house (or, any house,) of one J. G., situate in the said parish of , against the form of the act in such case made and provided, and against the peace. Sworn at aforesaid, ^ this day of- - — f ,18-, C Before me, W. R. J. P. ^ (Signed) A. B. The proceedings on this information by the Justices are the same as in other cases of felony. 2G Si 350 ROADS, &c. RO AD S.— RAIL-ROAD S.—TURNPiKE RO AD S. Roads, — See Highways, RAIL-ROADS. Ihe following Rail-roads are now established by law in this part of the Province ; — By the Statute 2d Will. 4, c. 58, a rail-road is established from Lake Champlain to the River St. Law- rence — amended by the Ordinance of 4-th Vic. c. 18. By Ordinance of 4lh Vic. c, 10, — amended by Act of 4rth and 5th Vic, c. 47, a rail-road is established from Sherbr. ':e to a point upon either bank of the River Richelieu. By Ordinance, 4th Vic. c. 41, a rail-road is established from the city of Montreal to the Province line, at or near Point au Baudet, — extended by Act of 4th and 5th Vic, c. 49. By Ordinance, 4th Vic, c. 41, a rail-road is estab- lished from Carillon to Grenville. By the above Statute and Ordinances for the establish* ment of the several Rail-roads therein mentioned, the following matters and things fall within the summary jurisdiction of the Justices of the Peace. Ist. If any person shall in anyway obstructor interrupt the free use of the rail-road, or of the carriages, engine?, or other work incidental or relati ve thereto, or connected therewith, such person shall for every such offence incur ROADS, &.C. 351 a forfeiture or penally of not less than five pounck nor exceeding ien pounds. See Stai. 2 Will, 4-, c. 58, s. IS. OrdAth Vic, c. 10, s. 18. Ord. Mh Vic.f c. 4>l,s. 19. Ord. ^tth Vic.f c. 46, s. IS. 2nd. In all cases where the intended rail-road shall cross any public highway, on a level iherevith, the rail- road company shall station and constantly keep at lea?-t one person as a guard, whose duty it shall be, to prevent any obstruction being or remaining upon the said rail- roads, or upon such public highway, and tc watch over the safety of the persons and property passing and conveyed either upon the said highway, or upon the ^aid rail-road — and for each and every neglect or refusal to comply with this provision, the aaid company shall incur a penalty of five shillings for each olVonce. Sec Ord. ^ih Vic, c. 10, s. G. 3rd. When the rail-road crosses any public highway on a level therwith, the Rail-Road Company shall erect, and at all times maintain, a good and sulllcieni gate on each side of such public highway, which gites shall bt« constantly kept shut, except at such time as waggons, carts and other carriages pass ihrounh, and every drivtu" or person entrusted with the care of any waggon, cart or other carriage, is directed and required to cause the said gates and each of them to be shut, as soon as such cat ts and other carriages shall have passed through, under a penalty of five shillings for each offence. See Stat. 2, JVm. 4-, c. 58, s. G. Ord. iih Vic. c, 4>\, s, iu Ord. ith Vic. c. 4G, s. G. i?- , Is ,, ' 3f)2 ROADS, &,C. 'ith. All lilies and forfeitures as above imposed, or which shall be imposed by virtue of any rule, order or law to be made in pursuar.ce of the authority granted to the said Rail Road Companies, (of which rule, order or by-law, when produced, all Justices are requ'rcd to take notice) the levying and recovering of which fines, shall, upon proof of the oflence before any one or more Justices of the Peace for the District within v.'hich such oflence shall have been committed, cither by the confession of the party or parties, or by the oath or affirmation of any one credible witness, (which oath or aflirmation, such Justice or Justices are empowered and required to administer without fee or re- ward,) be levied by distress and sale of the olTender's goods and chattels, by warrant under the hand and seal, or hands and seals of such Justice or Justices, and all such respec- tive fines, forfeitures and penalties, when not otherwise directed by law, shall be paid into the hands of the Trea- surer or Receiver of the monies raised by virtue of the Statute and Ordinances aforesaid, and shall be applied to the UhC of the said-rail roads, and for want of suificient goods and chattels, whereof to levy such penalty antl ex- penccs, the oflendcr ^hall be committed to the common Gaol of the District, within which such oflence shall have been committed, there to remain without bail or main- l)rize, for such levm, not exceeding one month, as such Justice or Justices, shall think proper, unless such penalty or forfeiture, and all costs and expences attending the same, shall be sooner paid and satisfied. See Stai. 2, Wm. 4, r. 58,j.\ 43. Ord. ^ih Vic, c. 10, *. 46. Ord. 4//i Vic.fC, 41, 5. 49. Ord. Mh Vic, c, 46, s. 46. m- ROADS, &C. 353 TURNPIKE ROADS. The following turnpike roads have also been cstablishetl by law, in this part of the Provinces. By Ordinance of 3rd Vic. c. 31, amended and enlarged by Ordinance of 4th Vic. c. 7, and further amended by Act ith and 5th Vic. c. 35, provision is made for the im- provement of the roads in the neigbourhood of, and lead- ing to the city of Montreal, by the establishment of sun- dry turnpike roads, as therein mentioned. By Ordinance of 4th Vic, c. 17,*. 13 Sf 15. Ord. ^th Vic, c, 22, s. 17 Sf 18, before two Justices. 6th. In case the road, or any part of it, or the bridge over the River Yamaska, shall at any time be out of re- pair, it shall be lawful for any person to make complaint thereof in writing to the District Surveyor— or if there he no such officer, to any two Justices of the Peace having jurisdiction within the locality, in which such part cf the said road or bridge, so being out of repair, may lie, and sucb District Surveyor, or Justices, shall thereupon, with- out ilelay, view and examine the part of the said road or bridge, so co't oined 0^, and shall, if such complaint be found to be just, give notice in writing to the toll gatherer, or gate keeper of the said bridge, as the case may be, to repair the said road or bridge ; nnd in case the same be not repaired within such reasonable time as the said Sur- veyor, or the Justices may appoint, he or they shall order in case cate, g made grant all int^ ficate order t| Di8tri( Wll l llll ROADS, &.C. 357 the two toll gates nearest to the place so out of repair, or the toll gates on the said bridge, as the case may be, to be thrown open, and the said toll gates shall thereupon be kept open, and no toll siiall be collected thereat, untill such pari of the said road, or of the said bridge, so out of repair, shall have been sufficiently repaired, and a certifi- cate from the said Surveyor, or Justices of the Peace, be granted to that eflfect. And every gate keeper, or toll gatherer, who shall not immediately obey such order to throw open such gates, or who, during the time such gates ought to have been kept open as aforesaid, shall hinder or delay any person passing, or take or demand any toll, shall for each oflence forfeit the sum of forty shillings to the party aggrieved, to be recovered with costs as hercinalter provided. Provided always, that if the District Surveyor, or such Justices of the Peace, shall, after the part of the said road or bridge, so out of repair, shall have been suf!^i- ciently repaired, refuse to grant a certificate to that elTect, or if by reason of their absence, application cannot be made to them, the gatekeeper of any gate which shall have been so thrown open, may apply to any two Justices of the Peace, having jurisdiction wiihin the locality in which such gate shall be s-tuate, and such Justices shall thereupon examine into the matter in question, (and may, in case the said Surveyor shall have refui^ed such certifi- cate, summon him before them) and shall, il due proof be made of the suificient repair of the said road or bridge, grant a certificate to that efiect, which certificate shall to all intents and purposes have the same eflecl as the certi- ficate of tiie District Surveyor, or of the Justices by whose order the gates were thrown open, and may condemn the District Surveyor, if he be found in fault, to pay the costti 'il 4! ^I*^ 358 ROADS, &C. of such summons ant) proceeding thereupon, which costs shall be levied by distress and sale of his goods and chat- tels under the warrant of the said Justices, or of one of them, if not forthvvilh paid. See Ord. Mi Vic, c. 11, s. 23, before two Justices. Ord, Uh Vic, c. 22, s. 22, before ivoo Justices. 7th. If any Gate-keeper or Toll-gatherer shall unwar- rantably hinder, or delay any traveller or passenger liable to pay toll, or shall demand more than allowed by law, he shall for every such offence forfeit a sum not exceed- ing twenty shillings to the person aggrieved. See Ord.Uh Vic.,c. 11, s.2i<. Ord. 4M Vic.f c, 17, s. 10. Ord. 4//i Vic.y c. 22, s. 23. 8th. The penalties imposed upon Gate-keepers and Toll-gatherers shall be recovered with costs, by complaint before any one of Her Majesty's Justices of the Peace having jurisdiction in the locality within which the offence shall have been committed, on the oath of one or more credible witnesses other than the party aggrieved, and may be levied with costs by distress and sale of the offender's goods and chattels, by warrant under the hand of such Justices, or one of them. And whenever goods and chattels of the defendant cannot be found to satisfy the judgment which may be rendered against him, it shall be satisfied by the company of the proprietors of the road, and if on demand, payment of the forfeiture and cosw awarded by judgment be refused by the said com- pany, the amount thereof may be recovered with costs, before any two Justices as aforesaid, in the manner afore- said, from the said company, and may in like manner be levied by distress and sale of the goods and chattels of the ROADS, &C. 359 said company, under the warrant of such Justices, or of any one of them. See Ord. Vic.f c. 11, s. 25. Ord. Vic, c. 22, s. 24. 9th. By Ordinance of the ^th Vic, c. 7, s. 11. — no person shall at any season of the year, for hire, or any valuable consideration, ferry, or transport by water car- riage, any other person or persons, or any quadruped, vehicle, package of goods or any moveable effects, upon or across the several rivers mentioned in this Ordinance, (the VAssomption, Ottawa, and St. Lawrence,) at any place or places within half a league of the bridges which the Trustees are by the said Ordinance authorized to con- struct under the penalty of five shillings for each person, quadruped, vehicle, package or moveable effects, which shall be so ferried or transported, which penalty with costs of prosecution to be recovered on the oath of one or more credible witnesses before any one Justice of the Peace for the District, and to be levied by warran* under the hand of such Justice or Justices by distress and sale of the de- fendant's goodd and chattels. And by Sec. 20, of same Ordinance, it is further or- dained and enacted, that all the provisions, enactments, penalties, and other matters and things made and provided in and by the Ordinance of the 3d Vic, c. 31, for the en- forcement of any of die powers thereby conferred on the Trustees, or on any person or officer, for the better preser- vation of the roads thereby placed under the controul of the Trustees, or the collection of the tolls therein imposed, or for the commutation of any such tolls, and not thereby expressly altered or repealed, shall be and are extended and shall apply to like cases, matters and things, touching ' i.i 360 ROADS, &C. the roads and works placed under the controul of the said Trustees by this Ordinance, the tolls thereby imposed or the pow 3 here conferred. See Ord. Uh Vic, c. 7, 5. 11, & 20. The several penalties imposed by the before mentioned Ordinances, not exceeding forty shillings, for each offence, may be sued for and recovered with costs, on the oath of one credible witness before any one Justice of the Peace of the District, where the offence is committed, (in some instances two Justices are required, as before noticed after each Ordinance cited) who may on coriviction, in default of payment of the penalty, commit the offender to the com- mon Gaol for a period not exceeding two weeks for each offence, except for any offence committed against the Or- dinance of ^th Vic, c. 8, where the commitment is limit- ed to six days. By the Ordinance of 4th Vic, c 1 1, and ith Vic, c. 22, one moiety of the penalty is to be paid to Her Majesty, and the other moiety to the informer, by the other Ordinances, one moiety of the penalty goes to the informer, and the other moiety to the Trustees for the benefit of the road, except by the Ordinance of ^th Vic, c. 8, where the whole penalty is given to tiie Trustees. In the complaints that may be made before the Justices of the Peace for the infringement of the enactments of the before mentioned Act and Ordinances, whereby a penalty has been incurred, such complaint, from the summary nature of the proceeding, should be embodied in the sum- mons to be served on the offender, without the formality of a previously written information. bags oftei may conf Her( Tl plait] ROADS, &C. 361 n n 1 . j il 1 ^ .^s il Summons, for obstructing a rail-way, by throwing and leaving impediments on it in the way of the Engine. District of ; VV. R., Esquire, one of Her Majesty's ) Justices of the Peace, in and for the said District. ToC.D., of the Parish of labourer. in the said District, You are hereby required and . ommonded to appear be- fore the said Justice {or if before two Justices, then say,) and J. G., Esquire, another of Her said Majesty's Justices of the Peace, in and for the District, at in the Parisii of in the said District, at tlie hour of in the forenoon, to answer the complaint and information made before me, this day against you by A. 13., of the said Parish, Engineer, for having on the day of instant, obstructed and interrupted tiie free use and communication on the rail-road establish- ed (between the Lake Champlain and the River St. Law- rence) in the said District, by depositing and leaving on the said rail road, in the Parish aforesaid, sundry packages, bags and bundles, whereby you have incurred a penalty often pounds, which penalty the said A. B., prays you may be condemned to pay, with the costs in this behalf, conformably to the law in such case made and provided. Hereof fail not. Given under my hand and seal at in the said District, this day of , one thousand eight hundred and . (Signed) W. R., /. P. This form of summons will apply to most of the com- plaints that may arise on any of the before mentioned Or- 2H ? it: IMAGE EVALUATION TEST TARGET (MT-3) ^ *^% V .^I^ ^ Liii 11.25 ISO ^^^" MI^^B lb u lU u m ■ 40 U 11.6 V '/ Photographic Sdences Corporation 23 WIST IMAIN STRUT WIISTM.N.Y. MSIO (7U)l79-4»03 ,^ 5^ 362 ROBBERY. dinances, and a summary conviction may be had thereon} either by defiiult, should the ofiender fail to appear, after being duly summond, or after bearing him and hia wit- nesses, as the case may be. The returns to the sessions of these summary convic- tions, may be made according to the requirements of the Ordinance of the 2d Vic, c. 20, of which a form has been given. But in case of an appeal to the Sessions, the con- viction must be drawn up according to the general form given under the title, Conviction, By Act 4th Vic, c. 26, s. 14>, if any person shall un- lawfully and maliciously break down, level or otherwise destroy, in whole or in part, any turnpike, or any wall, chain, rail, post, bar, or other fence, belonging to any turnpike gate, set up or erected to prevent passengers pass- ing by without paying any toll, directed to be paid by any Act or Acts, Ordinance or Ordinances, relating thereto, in force in this Province ; or any house, building, or weighing engine erected for the better collection, ascertainment, or security of any such toll, every such offender shall be guilty of a misdemeanor and punished accordingly. ROBBERY. Robbery, signifies a larceny from the person, committed ojienly and violently, and may be defined to be, the fel- onious and forcible taking of goods or money, of any value, from the person of another, against his will, by violence, or putting him in fear,— 4, BL Coni, 243.-2, East. P, c. 797. ROBBERY. 363 The gist of the oflence, being the force and terror used by the offender, the value of the property stolen is quite immaterial, for a penny as well as a pound, forcibly taken or extorted, constitutes in law a robbery, — 3, Inst. 69. — 1, Hale. 532. — 1, Hawk. c. 34, s. 16. To make it a robbery, the taking must in all cases be by means of sorap violence, or putting in fear ; for if a thief, claudestinely steals a purse, and on its being discov- ered in his possession, denounces vengeance against the owner, if he should dare to mention it, or to take any step against him, and then makes off with it, this is not rob- bery, but only larceny from the person, the words of menace being used after taking the purse, — 2, East. P. C.726.— I, Hafe. 534. Nor will any stealing of property amount to robbery un- less it is taken in the presence of the owner, — 2, East, P. C.708. Also, although goods may be taken by violence or put- ting in fear, sufficient to constitute a robbery, yet, if the felonious intent, or animus furandi, be wanting, this is no robberyj as when a man with menaces, or violence, demands and obtains property from another, under the bona fide impression, that the property is his own, this, although nn unlawful act, will amount ony to a trespass, —3, C. and P. 409. The principle of robbery being violence, some degree of force is therefore necessary, to constitute the offence, but there may be a constructive as well as an actual force, for where such a tenor is imposed on the mind, as not \o leave the party a free agent, and in order to get rid of that terror, a man delivers his money, this is a sufficient force in law. And where actual violence is used, there need »^ a 36i ROBBERY. M not be an actual fear, for the law, in odium spoliaion's, will presume it,— 2, Eai>t. P. C. l^l.—Fost. 28. By Actof ith and 5th Vic, c. 25, robbery is consider- ed under difierent degrees of aggravation. By Sec. 6, it is enacted that, if at the time of the robbery, the offender shall stab, cut or wound any person, he shall be guilty of felony and suffer death. By Sec. 7, whoever, being armed with any offensive weapon or instrument, shall rob, or assault with intent to rob, any person, or shall together with one or more per- son or persons, rob, or assault with intent to rob, and at the tjme, or immediately before, or immediately after such robbing, beat, strike, or use any other personal violence to any person, shall be guilty of felony, and liable to im> prisonment and hard labour at the discretion of the Court. And by Sec. 10, and Sec. 11, whoever shall assault any person with intent to rob, or shall with menaces or by force, demand any chattel, money, or valuable security of any person with intent to stab, shall be guilty of felony, and liable to imprisonment for three years. By Sec. 53, every principal in the second degree, and accessaries before the fact,are punishable in the same man- ner as the principal, and every accessary after the fact, is punishable by imprisonment. Informatio • felony, for robbing a person violently in a dwelling house with stabbing, &c. District of ) Information of A. B., of the Parish of ■■ ) — — in the said District, yeoman, taken before me, W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District. pon, then ROBBERY. 365 The said A. B., being duly sworn, deposeth and saith, that on tl.e day of instant, at the Parish aforesaid, one C. D., of — — in the said Dis- trict, labourer, in and upon the said A. B., in the dwelling house of him the said A . B., in the said Parish of did feloniously make an assault, and him the said A. B,, did put in bodily fear and danger of his life, and him th e said A. B., did then and there with some sharp and dan- gerous instrument, stab, cut and wound, and fifty pieces of silver coin, of the current coin of this Province called dol- lars, of the value of twelve pounds ten shillings, and one silver watch, of the value of three pounds, of the moniep, goods and chattels of the said A. B., in the said dwelling house, then and there violently and feloniously, did steal, take and carry away against the peace, &c. Sworn at in the said •\ District, this — — day of 18 — , before me. (Signed,) W. E., J. P, " (Signed) A. B. The like for a felonious assault with intent to rob. District of Information, &c , (as above.) The said A. B. being duly sworn, deposeth and eaith, that on the day of -^ instant, at the Parish aforesaid, one C. D., of — ■ in the said District, labourer, with a certain offensive wea- pon, called a pistol, which the said C. D., in his right hand then and there held, in and upon the said A. B., unlaw- 2H2 //I 366 ROBBERY. fully and feloniously did make an assault, with a felonious intent, the monies of the said A. B., from the person and against the will of him the said A. B., then and there fel- oniously and violently to steal, take, and carry away, against the peace, &c. Sworn at ■ in the ^ said District, this day of 18 — , before me. (Signed,) W. R., J. P. >. (Signed,) A. B. The like for a robbery on the higliway. District of ) ) Information of &c., (as above.) The said A. B. being duly sworn, deposeth and saithy that on the day of instant, at the Parish aforesaid, on the Queen's highway there, one G. D. late of in the said District, labourer, and C. F. late of the same place, labourer, in and upon him the said A. B. feloniously did make an assault, and him the said A. B. in bodily fear and danger of his life, on the highway aforesaid, then and there feloniously did put, and fifty bank notes, of the incorporated Bank of in the said Province, of the value of one pound five shillings each of the current money of the said Province, and one pocket book, of the value of one shilling like current money, of the monies, goods and chattels of the said A. B., from the person and against the will of him, the said A. B., on the highway aforesaid, then and there feloniously and vio- lently did steal, take, and carry away, against the peace,&c. Sworn ar in the said District, '^ this day of 18 — $ before me. (Signed) W. R., /. P, (Signed) A. B. SEARCH WARRANT. 367 Informations for offences of this description will neces- sarily vary in their circumstances, and the above forms are given merely to show the essential facts upon which the crime of robbery is founded, viz, — violence, ot putting in fear, at the time of the offence committed. On these informations, the warrants for apprehending or committing the offenders, their examinations, the examination of the witnesses, and their recognizances to appear and give evidence, are in the usual form hereinbefore referred to. SEARCH WARRANT. By Act of the 4th and 5th Vic, c. 25, s. 55, it is enac- ted, that if any credible witness shall prove upon oath be- fore a Justice of the Peace, that there is reasonable cause to suspect that any property whatsoever, or with respect to which any {larceny or felony) shall have been com- mi'.ted, is in any dwelling house, out house, garden, yard, crolt, or other place or places, the Justice may grant a warrant to search such dwelling house, out house, garden, yard, croft, or other place or places, for such property as in the case of stolen goods. A warrant of this description is a judicial act, and not to be granted without due examination of the fact, and it ought to confine the search to those particular places, which the party swears before the Justice, he has reason to suspect, contain the property. And therefore a gene- ral warrant to search all suspected houses for stolen goods, is illegal on the face of it, for it would be extremely dan- gerous to leave it to the discretion of a Common Officer, to arrcit what persons, and search what houses, he thinks f 368 SEARCH WARRANT. fit, and as a Justice cannot legally grant a blank warrant for the arrest of a single person, leaving il to the party, or to the officer to fill it up, so for the same reason, he can- not grant a general search warrant, which might in its consequences have the effect of a hundred blank warrants, —2, Hale. 150.— 2, Hawk. c. 13, s. 10, and 17. The warrant ought to be directed to a Constable, or other public or Peace Officer, and not to any private per- son ; yet it is proper that the party complaining should be present and assist in the search, in order that he may identify the goods, — 2 Hale. 150. The Officer is justified, in the day time, in entering and searching the house specified in the warrant, whether the stolen goods are found there or not \ and if the door be shut, and it be refused to be opened by those within, after demand made by the Officer, he may break it open to make the search — but if the goods are not found in the suspected house, then, although the Officer is excused, yet the party who made the suggestion is liable for the trespass, — for as to him, the breaking of the door is even- tually lawful, or unlawful, — lawful if the goods are there, and unlawful if not there,— 2 HaU» 151. Where an Officer in the execution of a search warrant, at the desire of the party, delivered it to him for his peru- sal, and the latter refused to return it, — it was held that the Officer had a right to get it from him by force, and even to coerce his person to regain the possession of it — provided he used no more violence than was necessary, — 3 C. and P. 34.. On the return of a search warrant, aAer the execution of it by the Officer, if it appear that the goods seized by him were stolen, they should not he delivered to the pro- SEARCH WARRANT. 369 secutor, but ought to be deposited in the hands of the Con- stable or some other Officer, after some sufficient mark is put upon them, so as to identify them ; in order that the party robbed may proceed by indicting and convicting the offender, and to obtain restitution. But if it turn out that the goods are not stolen, they ought then to be restored to the possessor, — 2 Hale. 151, With respect to the party in whose custody the goods are found, if it turns out that they were not stolen, he is of course to be discharged j and the same if the goods were stolen, if he is ignorant of the theft ; but though he is dis- charged as an offender, he should be bound over to give evidence as a witness against him who »tole them, and if it appear that he knew they were stolen, the Magistrate must then commit him, or bind him over to answer for the felony,— 2 /fa/e. 152. Information to obtain a search warrant for stolen goods. District of ) Information of A. B., of the Parish of ) 1— — in the said District, yeoman, taken before me W. P . Esquire, one of Her Majesty's Justices c «' the Peace, in and for the said District. The said A. B., being duly sworn, deposeth and saith, that on the day of , one great coat of the value of five pounds, one fur cap of the value of three pounds and one pair of boots of the value of one pound, of the goods and chattels of this deponent, were feloniously stolen, taken, and carried away from and out of the dwelling house of this deponent at the Parish afore- said, by some person or persons unknown^ and that he 4 fl ■8 f. 1:1 / 370 SEARCH WARRANT. hath just and reasonable cause to suspect and doth sus- pect, that the said goods and chattels, or some part of them, are concealed in the dwelling house of C. D., of in the said District, labourer, {here add the causes of suspicion whatever they may bey as thuSf) he this deponent having lately seen upon the person of the said C, D., a great coat, which this deponent verily believes to be his property and part of the goods so feloniously stolen, taken and .carried away as aforesaid. Wherefore prays that a search warrant may be granted 'to him to search the dwelling house of the said C. D., as aforesaid, for the said goods and chattels so feloniously stolen, taken and carried away as aforesaid. Sworn at in the said District, this day of f ^^-^^^^^^ ^^ g^ ■■ 18 — , before me, (Signed) W. R., J. P. Search Warrant. District of ) W. R. Esq. one of Her Majesty's Jus* 5 tices of the Peace, in and for the said District, to any Constable or Peace Officer in and for the said District. Whereas A. B. of the parish of in the said District, yeoman, hath this day made oath before me, the said Justice, that on <— day ot , one great coat of the value of five pounds, one fur cap of the value of three pounds, and one pair of boots of the value of one pound, of the goods and chattels of the said A. B. were feloniously stolen, taken and carried away from and out of the dwelling-house of the said A* B., at the t »w:h; i r wwi g5i »«w » ' .m ' - ^ [i g j ig* ^ '"' SEDITION. 371 parish aforesaid, by some person or persons unknown, and that he, the said A* B., hath just and reasonable cause to suspect and doth suspect, that the said goods and chattels, or some part of them, are concealed in the dwel- ling-house of C. D. of , in the said District, labourer. These are therefore in the name of our Sov- ereign Lady the Queen, to authorize and require you, and each and every of you, with necessary and proper assist- ants, to enter in the daytime into the said dwelling-house of the said G. D., and there diligently search for the said goods and chattels, and if the same or any part thereof shall be found upon such search, that you bring the goods 60 found, and also the body of the said G. D., before me or some other Justice of the Peace, in and for the said District, to be disposed of and dealt withal according to law. Given under my hand and seal at in the said District, this day of , one thousand, eight hundred and (Signed) W. R., J. P. [Seal] SEDITION. Seditiorif is understood to comprise within its meaning, all offences against the Queen and Government, which are not capital, and do not amount to the crime of Trea- son. Thus where there is no actual design against the Queen or the Government in contemplation, — a charge of sedition against the Queen, or of exciting sedition, or of writing, or of doing anything seditiously, will not amount to a charge of treason. ■".-aif J |i W) II .L I l l .H il > » MIM |lil A "•>^V3^.,. n2 SERVICE OF SUMMONSES OR NOTICES. Sedition includes all offences of like tendency witii treason, but without any such direct intent, or overt act, of the psLTty formed, or executed, as to bring it within the more serious offence, — 1, East, P. C, 76.-4, BL Com. 147. — 1, Hawk, c. 65, s. 6. Thus all contempts of the Queen and Her Government — all riotous assemblies for political purposes, all seditions or other acts tending to obstruct the measures, or disturb the course of the Govern- ment, and in general all contemptuout>, indecent, and malicious observations upon the person or government of the Sovereign, or of Her Representative and his aJminis- tration in the Province, whether by writing or speaking, or by any other acts calculated to create jealousies or dis- content in the minds of the people, or to weaken the pub- lic administration, are highly punishable, by fine and im- prisonment. SERVANTS. See Masters and Servantt. SERVICE OF SUMMONSES, OR NOTICES. i In the course of the proceedings before the Justice of the Peace, he will have frequent occasion to issue a sum- mons or notice to persons to appear before him, either to answer to some complaint, or to give evidence touching some information ; and as on the regularity of the service of such summons or notice, the validity of the subsequent proceedings of the Justice will often depend, it is necessry he should have before him such proofs of that service as SESSIONS. 373 th the law requires. Perdonal service is no doubt the best when it can be had, and it should be the duty of the Offi' cer to endeavour, in all cases, to make such service, but more especially where an attachment may follow upon the default of the party to appear. But as it may often be dif- ficult or impossible to make such personal service, the law considers it to be sufficient in most cases, when made at the usual place of abode of the party, describing the place and person, where and to whom such service is made, — see title. Conviction. The Justice should take the affidavit of the person making this service, and note it on the back of such summons or notice, before proceed - ing further thereon, that there may be evidence tu shew the regularity of such proceeding. SESSIONS. ■t\' The Sessions of the Peace is a court of record, holden before two or more Justices, for the execution of their ge- neral authority given them by the Commission of the Peace, as well as by certain Acts of the Legislature. A Commission of the Peace has hitherto generally issu- ed for each of the Districts in this part of the Province, by virtue whereof four General Quarter Sessions of the Peace are by law held in each District, viz : in January, April, July and October. To this Court in its respective sltlings, all Justices of the Peace in the different parts of the Districts, are required to send the return of all sum- mary convictions had bdixe them, and all depositions, ex- aminations, recognizances or other proceedings, having reference to any trial, or examination before it. 21 ■ W '■ . liil . llTWWlWIW I ■ HnWlf"' •5- ■■;s ■»i. t *#* 374 SLANDER. There are also Special ov Petty Sessions f which are held on any special occasion for the execution of some parti- cular branch of the authority of the Justices. SHEEP. For Sheep Stealing, see Larceny^ 4th and 5th Vic, c. 25, s. 29. Maliciously killing or maiming them, see Malicious Injuries to Property^ 4th and 5th Vic, c 26, s. 16. SHIPS. Stealing from any Ship or Vessel in port, &c., see. Lar- ceny, 4th and 5th Vic, c. 25, s. 21. Stealing from any Ship or Vessel wrecked, or in dis- tress, see Larceny, 4th and 5th Vic, c. 25, s. 22. Having in possession Shipwrecked goods, or offering the same for sale, see as above, s. 23, and 24. SHRUBS. Stealing, damaging or destroying them, see Larceny, 4th and 5th Vic, c.25, s. 31, and c.26,8. 19. SLANDER. Slander, is the malicious defaming of a man in his re- putation, prrt (Signed) A. B. District of ) Information and complaint of D. B.« ot \ —^ Esquire, Captain in Her Ma- jesty's Regiment of Foot, now stationed at in the said District, taken before me, W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District. The said A. B. being duly sworn, deposeth and saith, that he is a Captain in Her Majesty's said Regiment of Foot, that on the day of instant, E. F., a soldier in the company of this deponent in the said Regiment, deserted from and leA th^ same. That this deponent hath been credibly informed and verily be- lieves, that one C. D., now or late of in the said District, labourer, did encourage, aid and assist the said E. F., so to desert,and did provide and furnish to the said £. F., the necessary means of his escape. That in consequence the said C. D., hath forfeited and become liable to pny to 313 »Vr'^. -..^i^/mf ^ l LjJliiW 378 SOLDIERS. Her said Majesty the penalty of forty ponnds sterling and costs, and to be further imprisoned and dealt with as the law directs, for all which this deponent prays judgment against the said G. D., and that he may be condemned ac- cordingly. Sworn at -.^— ^— in the > said District, this day of 18 — , before me. (Signed,) W. R., J. P, > (Signed,) A. B. Warrant to apprehend the offender. District op ) W. R., Esquire, one of Her Majesty's ) Justices of the Peace, in and for the said District. To any Constable or Peace Officer in and for the said District. Whereas it appears to me by the oath of A. B., of the Parish of in the said District, yeoman, and by the oath of D. B., Esquire, Captain in Her Majesty's Regiment of Foot, now stationed at— — — in the said District, that on the day of instant, at aforesaid, one C. D., now or late of • in the said District, labourer, did encourage. aid and assist E. F., a soldier in the said Regiment, to desert from and leave the same. These are therefore to command and require you, and each and every of you, that you take the said G. D., and bring him before me and others Her Majesty's Justices of the Peace, in and for the said District, to answer to the raid complaint, and to be further dealt with according to law. i^' C.I tict ani by SOLDIERS. Given under my hand and seal at District, this day of — eight hundred and . 379 — in the said one thousand '' (Signed,) W. R., J. P. [Seal.] Proceedings of the Justices on the above complaint and information, on the defendant's being brought before them, — to be taken down and entered in some of their registers or diaries. District of J At a special meeting of Her Majesty's Jus- \ tices of the Peace, holden at in the said District, on the ■ day of 18 were present »^' W. R., A. M., and J. S., Esquires, Jus- tices of the Peace in and for the said Dis- trict. On the prosecution of D. B., Esquire, "^ The said C D. Captain in Her Majesty's Rgt. f having this day vs, L been brought be- C. D. of- labourer, Defendant, y fore the said Jus- tices on the warrant issued against him by the said VV. R. to answer to the complaint and information made against him by D. B. Esquire, Captain in Her Majesty'3 Re- giment of Foot, for having on the day of instant, at in the said District, -encouraged, aided and assiated one £. F. a soldier in the said Regiment to desert from and leave the same, whereby the said C. D. hath forfeited and become liable to pay to Her said Majes- mmmmmm w 380 SOLDIERS. ty^ a penalty of forty pounds sterling and costs, and to be further imprisoned and dealt with according to law, the said D. B. in consequence praying for judgnient against the said G. D. and that he be condemned accordingly. And the said C. D. having heard the said complaint, as above stated, and being by the Justices asked, what he has to answer thereto, says, that he is not guilty of the offence charged in the said complaint against him. Whereupon the following witness was (or witnetses were) adduced and examined in support of the prosecu- tion. A. B. of the Parish of in the said District, yeo- man, being duly sworn, deposeth and saith, (his evidence to be taken downf if cross-examined by the defendanty — the cross-examination to be taken down in the same man* neVf and so of the other ivitnesses to be adduced. If the defendant produces any witnesses on his defence^ their examination and cross-examination to be taken in the same manner ; if he offers no evidence on his behalf this should be mentioned.) The evidence being closed, the Justices will either im* mediately, or aAer deliberation, pronounce their judgment, either of conviction or acquittal ; this may be entered sum- marily on their minutes, but in case of conviction,it should also be drawn up in the form prescribed by the Ordinance of 2d Vict., c. 20, as hereinbefore stated, and signed by the three Justices, that the same may be forwarded as re- quired to the Quarter Sessions ;— cbut in the rase of a Certiorari issuing from the Court of King's Bench, the conviction must be drawn up according to the general form of conviction, which requires that all the evidence should be set out. See form, under title. Conviction. ■ffiRVM limii wmmm SOLDIERS. 381 Form of conviction on this complaint. District op ) Be it remembered that on the ) day of — , in the year of our Lord one thousand eight hundred and — — — at — in the said t>istrict, D. B., Captain in Her Majesty's Regiment of Foot, who prosecutes 'n this be- half, came before W. R., Esquire, one of Her Majesty's Justices of the Peace, in and for the said District, and gave him the said Justice, to be informed, that on the day of last, at in the said District, one C. D., now or late of , did encourage, aid, and assist one £. F., a soldier in the said Regiment, to desert from, and leave the said Regiment, whereby the said C. D., hath forfeited and become liable to pay to the said D. B., who prosecutes as aforesaid, the penally of forty pounds sterling and costs, and further to be imprison* ed and otherwise dealt with as the law directs, and pray- ing judgment of condemnation against the said CD., in this behalf, and the said G. D., having been brought before us, the said W. R., and A. M., and J. S., Esquires, three of Her said Majesty's Justices of the Peace, in and for the said District, to answer to the said complaint, which said complaint is now here notified and communicated to the said G. D., and the said C. D., is by us the said Justices, asked, if he has any thing to say why he should not be convicted of the said offence as above charged, the said C. D., whereupon pleadeth, that he is not guilty of the said offence. Whereupon, on the day of — ^— — of the year aforesaid, at - — aforesaid, one A. B., of the Parish of , in the said District, yeoman, n credible witness, cometh before us the said Justices, and being by us the said Justices, in the presence of the said ;^*f ■*;, 382 SOLDIERS. G. D.f duly sworn, he, the said A. B.,depose(h and saith, (here state the testimony of the witness in as far as it re- lates to the offence in question^ and if cross-examined by the Defendant^ then state,) and the said A.B., being cross- examined by the said C. D. salth, (here set forth the crosS' examination. If more than one nHtnessis produced in support of the prosecution, state in the same manner, tlie swearing, examination, and cross-examination of every such witness, and the evidence for the prosecution being closed, then say) : — And the said D. B., having no further evidence to offer in support of the said complaint, the said C. D., is by us the said Justices, asked what ha hath to offer in answer to the evidence aforesaid. {If the Defen- dant produces any witness on his defence, then say) : — Whereupon the said G. D., produces and offers as a credi- ble witness on his behalf, one T. B., of in the said District, yeoman, who being by us the said Justices duly sworn, and beingexamined by the said G. D., touch- ing the premises, the said T. Bt, doth depose and say (here state his evidence, and cross-examination if any, and so with regard to any other witness that may be pro' duced by the Defendant ; if the Defendant produces no witness, then say,) but the said G. D., doth not offer or produce any witness before us the said Justices in his de- fence aforesaid . ( Then proceed to enter judgment, thus :) — And forasmuch as upon hearing and fully understand- ing said complaint, and the evidence given in support of it as aforesaid, and also upon hearing the said parties, and fully understanding all and singular the matters and things alleged and approved touching the premises, it manifestly appears to us the said Justices, that the said G. D.,is guilty of the premises as above charged against him in and by thes con\ adju said pena the c said Justi comi said that mittc costs tices. hand day War DlST Tos th SOLDIERS. 383 the said complaint, and thereupon we the said Justices do convict the said C. D., of the offence aforesaid, and do adjudge and condemn him the said C. D., to pay to the said D. B., who prosecutes in this behalf, the aforesaid penalty of forty pounds sterling money of Great Britain, and the costs of this prosecution taxed and allowed by us the said Justices at £ . And further we the said Justices, do adjudge and condemn the said C. D., to be committed and imprisoned in the Common Gaol of the said District, for the space of six calendar months, and that he the said C. D., do further remain and stand com- mitted to the said Gaol, until the aforesaid penalty and costs shall be paid. In witness whereof, we the said Jus- tices, to this record of conviction, do put our respective handi} and seals, at——— aforesaid, this day of — , one thousand, eight hundred and (Signed) W. R., J. P, [Seal.] A. M., 7. P. [Seal.] J. S., /. P. [Seal.] Warrant of commitment on the above conviction. District op ) W. R., A. M., and J. S. Esquires, three \ of Her Majesty's Justices of the Peace, in and for the said District. To any Constable or Peace Officer, and to the Keeper of the Common Gaol, in and for the said District. 384^ SOLDIERS. Whereas C. D. now, or late of ■ in the said Dis- I trict, labourer, hath this day been convicted before the said Justices, of having on the — — day of ■ at — — in the said District, encouraged, aided, and assisted one E. F. a soldier in Her Majesty's Regiment of Foot, to desert from and leave the said Regiment, by reason whereof the said C. D. hath been by us the said Justices condemned to pay to D. .B Esquire, Captain in the said Regiment, who prosecuted in that behalf, the penalty of forty pounds sterling money of Great Britain, and the costs taxed at and the said C. D. hath also, by us the said Justices, been condemned to stand committed and imprisoned in the said common gaol for and during the space of six calendar months, and further there to remain imprisoned until the said penalty and costs be paid. You the said Constables and Peace OfBcers, and each and every of you, are therefore commanded and required to take the said CD., and him safely carry and convey to the said Common Gaol and deliver him into the hands of the said Gaoler, — and you the said Gaoler are hereby charged and commanded to receive into your cus- tody the said C. D., and him safely keep in the said Gaol for and during the space of six calendar months, and furth- er until he the said C. D., shall have paid the aforesaid penalty and costs. Hereof fail not. Given under our hands and seals at , in the said District, this — — day of , one thousand eight hundred and (Signed) W. R., /. P. [Seal.] A. M., J, P. [Seal.] J. S., /. P. [Seal.] iSub ing an of the cited,- To comm actua the Leach SUBORNATION OF PERJURT. 385 STOLEN GOODS. Receiving — knowing them to be stolen. See ^ct ^th and 5M Ftc, c, 25, sec. 47. See also, Receivers of Stolen Goods. Taking a reward for helping to Stolen Goods. See 4M and 5th Fee, c. 25, sec, 50. Restitution of Stolen Goodd. See ^d ith and 5/A Fic, c. 25, sec. 49. Searching for Stolen Goods. See »^ct ith and 5th Fic, c. 25, sec. 55^ See also, Search Warrant. f SUBORNATION OF PERJURY. Subornation of Perjury at common law, is the procur- ing another to commit legal perjury, who, in consequence of the persuation, takes the oath to which he has been in- cited, — Hawk. B. 1, c. 69, sec. 10. See also Stai. 5, Eliz. c. 9. To render the offence of subornation complete, either at common law, or on the Statute, the false oath must he actually taken, as no abortive attempt to solicit will bring tiie offender within its penalties,— 3, Mod. 122. — I, Lsach. 455. 2K 386 SUMMONS. But the criminal solicitation to commit perjury, though ' unsuccessful, is a gross misdemeanor, and punishable by fine and imprisonment, 2, East, R, 17. — 6, East. 464<. In like manner, the dissuading, or attemptingto dissuade a witness from giving evidence against a person indicted, is an offence at common law, punishable by fine and im- prisonment, — 1, Hawk. c.2\fS, 15. — ^2, Stra, 904. — 2, East. 362. SUMMONS. There are two kinds of process, by which a Justice of the Peace is authorised to call before him, persons accused of any crime or offence, viz, — a summons, and a warrant, It is almost unnecessary to observe, that when proceed- ings are under any particular Act or Ordinance, the course thereby directed, must be strictly followed, but if the law is silent in this respect, it is left to the Justice to adopt the course best suited to the circumstances of the case. The rule generally followed is, that in the following in- stances, a summons, and not a warrant, should be granted. Ist. If the charge be not for some breach of the peace. 2d. If it do not amount to felony, or suspicion of felony. 3d. If it be not so far of a criminal nature, that the Queen must be a party in the prosecution. 4th. When the punishment upon conviction is not cor- poral. 5th. When the information is not upon oath, — 2, Dick, J. 927, 8. The summons should be signed by the Justice, and di- rected to the party against whom it is issued, and where Disi To ;-«S-. SUMMONS. 387 any pariicuiar form is prescribed by law, that form must be observed. The substance of the charge against the party should be contained in the summons, and a certain time and place should be fixed for his appearance, allowing him a reasonable delay for the attendance of himself and wit- nesses. See under the title Conviction, ** Summons.''^ As to the service of the summons, see title, Service of Summons. In cases of felony, or suspicion of felony, or misde- meanor, the Justices are also authorised to summon before them all such persons, as have any knowledge of the facte complained of, and to examine them on oath touching the same, and to bind them by recognizance to aopear and give evidence before the Court, where the trial is to be had ; and in case of such persons refusing to submit to such examinations, or to enter into such recognizance, the Justices may commit such person to the Common Gaol, until they shall submit to such examination or to enter into such recognizance, or be discharged by due course of law, — ^d itk and 5th Vic.y c, 24-, «. 2. Form of Summons, on summary proceeding against a par- ty before the Justices. District of ) W. R., Esquire, one of Her Majesty's *■ \ Justices of the Peace, in and for the said District. To C. D., of the Parish of labourer. in the said District, 388 SUMMONS. Whereas information and complaint have this day been made before me the said Justice against you, the said C. D., that you {here take in the charge made against the party i with the time and place, when and where commit- ted.) These are therefore in Her Majesty's name to com- mand and require you personally to be and appear before me the said Justice, or such other Justice or Justices of the Peace in and for the said District, as may be then pre- sent, at in the said District, on Wednesday, the day of instant,at the hours of ' in the forenoon, to answer to the said complaint as the law directs. Given under my hand and seal at — — in the said District^ this day of — one thousand eight hundred and . (Signed,) W. R , J. P. [Seal.] Summons to a Witness to appear and give evidence be- fore a Justice. District of ) W. K. Esq. one of Her Majesty's Jua» 5 ^'ces of the Peace, in and for the said District. in the said District, To C. D., of the Parish of yeoman. Whereas information and coniiilaint have this day been made before me the said Justice, that A. B.,of — — . in the said District, labourer, (here setfmth the tubstance of the complaint, whether felony, suspicion of felony, or misdemeanor,with the time and place when and where com- mitted,) and it having been stated to me, tlie said Justice, that you are a material v.itness and can give information this 18 SUMMONS. 389 in the premises. These are therefore in Her Majesty's name, to command and require you personally to be and appear before me the said Justice, or such other Justice or Justices of the Peace in and for the said District as sha'l be present, at in the said District, on Monday the day of instant, at the hour of in the forenoon, to be examined touching the information and complaint aforesaid. Herein fail not. Given under my hand and seal at in the said District, this day of one thousand eight hundred and (Signed,) W. R., J. P. [Seal.] Affidavit of the Officer or person serving any summons. District of ) Be it remembered that on this — — ) day of — — ^ — one thousand eight hun- dred and personally came and appeared before me, W. R. Esquire, one of Her Majesty's Justices of the Peace in and for the said District, J. D. of — — {Constable or Peace Officer^ or whatever his character may be,) who, being duly sworn, deposeth and saith, ttiat on Thursday, the — — day of instant, he served a true copy of the (above or within) summons on C. D. the person therein named, by delivering the same to himself personally, (or to the wife, or man, ormaid-ser- vant of the said C. D. at his usual place of abode at in the said District, as the case may be.) Sworn at aforesaid^ this day of 18 Before me, W. R. J. P. 2K2 (Signed) J. D. 390 TAVERN-KEEPERS. SURETY FOR THE PEACE. See Articles of the Peace. TAVERN-KEEPERS. There have been several Acts and Ordinances made on the subject of Tavern-keepers, and persons keeping houses or places of public entertainment in this Province, subsequent to the British Statute of the 14th Geo. 3rd, c. 88. I shall here refer to the more material parts of those Acts and Ordinances, where the ministry or authority of the Justice of the Peace may be required, aud thus far state the law as it now stands on this subject. By the British Statute Geo. 3rd, c. 88, intituled, «^n ".^rf to establish a fund towards further defraying the " charges of the Mministruiion of Justice, and support " of the Civil Government uHhin the Province of Que- " beCf in America^ — a duty of one pound, sixteen shillings, sterling is directed to be paid for every licence granted by tlie Governor, &c., to any person or persons for keeping a house, or any place of public entertainment, or for the retailing any spirituous liquors within the Province, and that any person keeping any such house or place of en- tertainment, or retailing any such liquors, without such licence, should forfeit and pay the sum of ten pounds for every such ofTence, upon conviction thereof. One moi- ety to such person as shall inform or prosecute for the game, and the other moiety to be paid into the hands of the Receiver General of the Province for the use of Hi» llajesty. TAVERN-KEEPERS. 391 By Act of the Provincial Legislature of the 35th Geo. 3rd, 0. 8, intituled, "./^n Act for granting to HisJMajesty " Duties on Licences to Hawkers, Pedlars, and Petty " Chapmen, and for regulating the trade ; and for grnnt- ** ing Additional Duties on Licences to persons for keep- " ing houses of public entertainment, or for Retailing " Wine, Brandy, Rum, or other Spirituous Liquors in " this Province, and for regulating the same, Sfc, — an additional duty of two pounds, currency, was directed to be paid by every person taking out a licence for keepinga house or any other place of public entertainment, or for retail- ing any Spirituous Liquors within the Province, in a less quantity than three gallons at one time, over and above the duty directed to be paid by the before mentioned Statute of 14th Geo. 3rd, c. 88. And by s. 7, it is en- acted, that if any person or persons shall keep any house or other place of public entertainment, or shall retail any spirituous liquors as aforesaid, without having paid the Eaid additional sum of two pounds, every such person shall, for every such oflTence, forfeit the penalty of ten pounds, sterling money of Groat Britain, imposed by the aforesaid Statute upon any person for keeping such house or place of entertainment, or retailing any such liquors vrilhout such licence. By Sec. 15, where the pecuniary penalty by this Act imposed does not exceed the sum often pounds, currency, or if imposed by the aforesaid Act of Parliament, where the same duth not exceed the sum of ten pounds, sterling, it shall be recovered with costs of suit, before any two of Hid Majesty's Justices of the Peace of the District wherein the offence was committed, in the weekly sittings of such Justices directed by law to be held at the Citie* #f 3d2 TAVERN KEEPERS. of Quebec and Montreal, and Town of Three Bivers, except where otherwise provided, and in case of non- payment of the penalty and costs on conviction, the same may be levied by distress and sale of the offender's goods and chattels, and for want of sufficient distress, the offender to be committed to the Common Gaol of the District for a space of time not exceeding six months, nor less than one month, as such Justice may think most proper. By Act of 45th Geo. 3rd, c. 10, intituled, « An Act to prohibit the sale of Goodsy WareSf and Merchandise, WirUf Spirits, and strong Liquors, on Sundays ;" any Tavern-keeper or other persons who keep a public house of any description whatever, who shall sell, vend, or re- tail any goods, wares, or merchandise, wines, spirits, or any strong liquors during the Lord's Day, commonly called Sunday, shall incur and pay for the first offence a fine or penalty which shall not exceed five pounds, and for the second and subsequent offence, shall incur a fine or penalty not less than five nor more than ten pounds currency. By sec. 3, of this Act, the fines and penalties here im- posed shall be recovered before one of His Majesty's Jus- tices of the Peace, nearest the place where the offence has been committed, who is authorised and required to hear and determine such offence in a summary way,eith- er by voluntary confession of the party, or upon the oath of one or more credible witnesses, other than the informer ; and in all cases, where there is a default of payment of the sum forfeited, it shall be recovered by seizure and sate of the offender's goods and chattels, by warrant under the hand and seal of such Justice, addressed to any Peace TAVERN-KEEPERS. 393 v1 Officer, or Serjeant of Militia, and surplus of the money so recovered, after deducting the forfeiture and reasonable charges of seizure and sale, taxed by a Justice of the Peace, shall be returned to the owner. That no suit or action shall be instituted against any person for any fine or forfeiture imposed by this Act, that ehall not be commenced within two months after the off- ence committed. One moiety of the said fines and for- feitures to belong to the person prosecuting for the same, and the other moiety to belong to His Majesty. By Act of 57, Geo. 3rd, c. 16, intituled, « .^n Act " more effectually to provide for the regulation of the " Police in the Cities of Quebec and Montreal, and the " Town of Three Rivers, and for other purposes therein " mentioned^^ it is enacted, il any person licensed to sell spirituous liquors by retail, or to l:eep a house of public entertainment shall knowingly suffer any gaming in any house, out-house, aptytment, or ground, beUmging to, or in his or her occupation, for money, liquor, or otherwise, either with cards, dice, &c., or with any other implement or in any other manner of gaming, by any journeyman, apprentice, labourer, or servant, and shall be convicted thereof on the confession, or by the oath of any credible witness, before any Justice of the Peace, if in the Vil- lages, or Country Parishes, within fifteen days after the offence committed, such person or persons so offending, shall forfeit and pay for the first offence the sum of forty shillings currency, and for the second offence the sum of five pounds, and be deprived of his, her, or their licence, I r 391. TAVERN-KEEPEKS. and also of being incapable of obtaining a licence to sell spirituous liquors or to keep a house of public entertain- ment for the space of one year. Act of 58lh Geo. 3rd., c. 2, intituled, " ^n Ad iopiO' " vide more effectually for the security of the Cities of " Quebec and Montrealf by establishing a watch and " night lights in the said Cities^ and for other purposes ^"^ This Act expired on 1st May, 1821. .1 •1 '\ Act of 3rd Geo. 4th, c. 6, intituled, «' An Act to " amend an Act passed in the 58M year of the Reign of " Geo, 3rd,^^ (as above stated.) This Act was continued to 1st May, 1827, when it ex- pired. Act of 3d Geo. 4lh, c. 1?, intituled, " An Act to extend " the powers of the Justices of the Peace, in certain cases " specified in the \5ih section of an Act of the Legislature " of this Province of the thirty fifth year of the JReign of " His Majesty George the Third, chapter 8/A." By this Act, the powers tiiat may be exercised by any two of Her Majesty's Justices of the Peace in their week- ly sittings to be held in the Cities of Quebec and Montreal} ore conferred on any two Justices of the Peace, residing in the County, where the offr nee uiay have been commit- ted. Provided always, that when any conviction phall take place before such Justices of the Peace, they shall be (( . ti jy TAVERN-KEEPERS. 395 bound to take in writing, the evidence upon which a conviction may have been made, to the end that in case of an appeal, the facts upon which such conviction has been made, may manifestly appear. Act of 7th Geo. 4, c. 12, intituled, << An ^ctto conti- " nue and amend certain Jicts therein mentioned^ estab- " lishing a watchf and providing for the lighting of the '• Cities of Quebec and MontreaV^ This Act expired on 1st May, 1829. Act of 9th Geo. 4-, c. 7, intituled, «.>?« ^ct further to " regulate persons who keep Houses of Public Entertain- *' merUf and retail spirituous liquors, Sfc, and for other " purposes." This Act expired on Ist May, 1831. I fl n Act of 1st Wil. 4<, c. 9, intituled, « Jin Act to *' amend and continue for a limited time, a certain Act ^* passed in the 9th year of the Reign of His late Majes* " ty, ^c." {The above mentioned Act.) This A(;t expired on 1st May, 1834>. Act of 2J Wil. 4, c. 19, intituled, « An Act to amend " a certain Act passed in the first year of His Ma- " jesty''s Reign, for regulating Tavern-keepers.''* This Act expired on I st May, 1834. "ir^ 396 TAVERN-KEEPERS. Act of 4th Wil. 4, c. 9, intituled, «^n ^ct to con' *' tinue certain ^cts therein mentioned.^* This Act expired on 1st May, 1836. Act of 6th Wil. 4, c. 14, intituled, « ^n Act far the *^ further regulation of Taverns and Tavern-keepers y " and for other purposes therein connected.^* This Act expired on 1st May, 183S. m 1 ,- \'i" Ordinance of 2nd Vic, t. 14, intituled, " An Ordin- ** ance to amend a certain Act therein mentioned, and " to provide for the better regulation of Taverns and ** Tavern-keepers,^^ The preamble to this Ordinance states, — Whereas it is necessary to amend a certain Act passed in the thirty- fifth year of the Reign of King George the Third, chapter eight, in soTar as the said Act relates to persons obtaining licences to keep houses of public entertainment in this Province, and to the mode of obtaining such licences. It therefore enacts, that hereafter, no licence shall be granted to any person fur keeping any house or place of public entertainment within any Country Parish or Town- ship, unless the person or persons applying for the same shall produce a certificate, as therein required, from the senior Justice of the Peace, the Officer of*Militia highest in grade, and the Church-warden in ofiice in such parish or township : or, where there is not a Justice of the Peace residing or present within such parish or township, from two Officers of Militia the highest in grade: or, where thcfe is no Church-warden nor Justice of the Peace, from venj Mol tificl Peaf JanI give TAVERN-KEEPERS. 397 on- r the perSi )rdin- i, and IS and ereae it ! ihirty- chapler gaining in ihiB ices. shall be place of )r Town- he same from the ia highest [ch parish the Peace ihip, from or, where eace, from the three Officers of Militia highest in grade, residing within the parish or township, for which such licence is applied for : or, if there be not in such parish or township three persons, who can, under the foregoing provisions, sign such certificate — then from such person or persons resident therein, as shall hold any of the offices or grades as aforesaid. Nor shall any person receive such licence unless the certificate of being a fit and proper person to obtain the same, shall also state, that he has a house, stable, and accommodation for travellers, according to the requirements of this Ordinance, and that he has entered into the bond to Her Majesty, before one or more Justices of the Peace, jointly and severally, witl» two sureties to the satisfaction of the persons granting such certificate, for the payment of all penalties, which he may be con- demned to pay for any offence against the provisions of this Ordinance, or of the Act hereinbefore cited, during the time for which such licence shall be obtained; provided always, that the person or persons demanding such certificate, shall not be at the same time traders in, or retailers of spirits, brandy, wine, or any other kind of spirituous liquors. By Sec. 'i, nothing in the aforesaid provisions to pre- vent Justices of the Peace in the Cities of Quebec and Montreal, or Town of Three Rivers, from granting cer- tificates as heretofore, but only in Special Sessions of the Peace, to be held between the twentieth and thirtieth of January in every year, and of which public notice to he given. By Sec. 3, every person holding a licence to keep a house of public entertainment, who shall, at any hour, re^ fuse to receive any traveller, not residing within the Pa- 2L ^j- t !1 iS ligfgy 7 ' -. -" ' — " "TTT ^ 393 TAVERN-KEEPERS. r rish or Township in which such house is situate, or who at any time shall not have in such house, two good beds at least for the accomodation of travellers, in addition to those used by the family, or shall not have, in a stable attached to such house, convenient stalls for at least four horses, with a sufficient quantity of hay and oats, — may be prosecuted in the same manner, and under the same provisions, and shall on conviction be subject to the same penalties and punishment as are by law provided with re- gard to persons who retail spirituous liquors without a li- cence for that purpose, and such penalties shall be levied, applied and accounted for, and such punishment awarded in the manner by law provided, with respect to those an- nexed to the offence last named. And if sufficient goods and chattels belonging to the person offending, shall not be foun 1, the sa J penalties shall be levied of the goods and chattels of the persons who shall have become sure- ties for the payment thereof. By Sec. 4, no person shall receive a licence ta keep a house of public entertainment, and to sell spirituous liquors therein, unless to the certificate of his or her being a (it and proper person to obtain such licence, there shall be an- nexed an affidavit, {as referred to) duly made and sworn to by him or her, before some one of Her Majesty's Jus- tices of the Peace {by the Ordinance authorised and em- powered to administer the necessary oath]) and every person who shall, in making such affidavit, wilfully swear falsely, shall on being convicted thereof, be liable to the pains and penalties of wilful and corrupt perjury. By Sec. 5, the Justice of the Peace, (or where there shall be no Justice of the Peace,) the Officer of Militia, highest in grade, in each Parish or Township, shall, on or ej J tAVERN-KCEPERS. 399 who beds )n to itable tfour -may same same ith re- it a li- levied, warded lee an- it goods lall not le goods re sure- ) keep a IS liquors r a fit and 11 be an- nd sworn jty's JuB- { and em- ind every iiUy swear [)le to the ury. here there of Militia, shall, on or before the fifteenth day of May, in each and every ^ear, transmit to the Clerks of the Peace, within their respec- tive Districts, a list of the persons to whom certificates have been granted, in their respective Parish or Town- ships, This certificate to be in the form here referred to. By Sec. 6, that no certificate granted, either under the provisions of this Ordinance, or of those of the Act here- inbefore cited and amended, shall give the person or per- sons obtaining it ; any right to obtain a licence to keep a house of public entertainment, or to sell spirituous liquors, but that such licences shall be granted to such persons only among those who shall have obtained such certifi- cates, to whom it shall be deemed meet by the Governor, Lieutenant Governor or person administering the Govern- ment of the Province, to grant the same ; and any such licence may, at any time, be annualled and cancelled by a letter from any Officer, duly authorised to that effect by the Governor, &c., and delivered before two witnesses to the person holding such licence, who shall thereafter be held in all respects, and to all purposes of law, to have no licence to keep a house of public entertainment, or to retail spirituous liquors. By Sec. 7, no licence shall be granted for keeping any such house or other place of public entertainment, until the person or persons applying for the same shall have entered into a bond to Her Majesty, before one or more Justices of the Peace in the sum of forty pounds currency, with two securities, in the sum of twenty pounds each, to do, perform and observe the conditions and requirements of this Ordinance and of the Act hereinbefore cited and amended ; which bond shall, wilhin one month, from the time of the taking of the same, be transmitted by the said i 't; 15 \ - « .Oi. m 400 TAVERN-KEEPERS. ■• « Justice or Justices, to ttie Clerks of the Peace, fur their respective Districts. By Sec. 10, it shall persons who shall have before mentioned, to quors, or to keep a for any person or .cence inA]lii^ manner irituous li- erjlpuntil he, she, or they shall have exhibited such licence to the person, or to one of the persons hereby authonsed to grant certificates for licences, and such person shall, on the first Sunday thereafter, cause such licence to be publicly read at the Church door of the Parish, Seignory or Town- ship, for which the same shall have been granted imme- diately after Divine Service in the forenoon, or where there shall be no Church, then at the place of most pub- lic resort in the Seignory or Township, for which such li- cence shall be granted, and shall affix, or cause to be af- fixed, on the door of such Church, or where there is no Church, at the place of most public resort, a notification, that the person to whom such licence hath been granted, hath been, and is duly qualified and authorised to sell spi- rituous liquors, or to keep a house of public entertainment in such parish or place, and every such person holding such licence, who shall sell spirituous liquors, or keep a house of public entertainment, before he or she shall have exhibited such licence in the manner hereinbefore provid- ed, shall be liable to the penalty or penalties imposed by law on persons selling spirituous liquors without li- cence. By Sec. 11, every person who shall obtain a licence to keep a house of public entertainment, and to retail spiri- tuous liquors therein, shall place upon his house in an ex- posed situation, a notice in legible characters, shewing ..IBH.'.: >•».>. 1 TAVERN-KEEPERS. 401 that such person is so licensed as a Tavern-keeper. And every person who shall refuse or neglect so to do, shall incur the penalty of not less than twenty shilling?, nor more than forty shillings currency, and shall be liable for a second offence, lo the forfeiture of his licence, which he may in such case be condemned to forfeit, on convic- tion of such offence before any two Justices of the Peace. By Sec. 12, whenever any person holding a licence to keep a house of public entertainment; and to retail spi- rituous liquors, shall be convicted of having kept a disor* derly house, or convicted before two Justices of the Peace, of knowingly vending spirituous liquors during Divine Ser- vice on Sundays or holidays (except for the use of tra- tellers, not being persons usually resident in that or any adjoining Parish, Township, or extra parochial place,) or of suffering any seaman, soldier, apprentice, servant or minor, to remain tippling in his or her house after seven o^cIock in the evening in winter, or after nine o'clock in the evening in summer^ or of having committed any felony ; the Court, or such Justice of the Court of King's Bench, or the Provincial Judge, or the Justice of the Peace, before whom such persons shall have been con- victed, shall, if he, or they shall think fit, adjudge and order that the licence thus held by any such person so convicted, shall be forfeited, and that he, or she, shall no longer keep a house of public entertainment or retail spi- rituous liquors in virtue thereof, and that he, or she, shall be incapable of having or holding any licence for such purpose thereafter. By Sec. 13, all and every the provisions contained in this Ordinance shall extend to and have force and effect in all and every Township and Seigniory, and all and 3 L 2 mk:-, ^i V •■ .4 I II iMth-irt«n.i I»I . licly sell, or dispose of any such articles, at any stand or place in any such parish, without first obtaining a licence signed by the Ghurch-warden in office, or by the nearest Justice of the Peace, (which licence must be renewed evert/ year^ and every person obtaining such licence, shall exhibit the same whenever he shall be thereunto required, by any Peace Officer, or Officer of Militia,— and every person who shall in any way offend against the pro- visions of this Section, or any of them, shall, for every such offence, and being duly convicted thereof on the oath of one credible witness other than the informer, before any Justice of the Peace, incur the penalty imposed for •uch offence} not exceeding ten pounds, currency, whero*. TAVERN-KEEPERS. 403 s and ersons ices of r other r other house, nsider- snalties uses or !nce, — id reco- counted 1 regard } liquors jarisbes, r, or any ise pub- Btand or I licence nearest renewed licence, hereunto ia,— -and the pro- br every the oath ■, before posed for ^, where*. of one moiety shall belong to Her Majesty, and the other moiety shall belong to the informer, and the Justice of the Peace before whom such conviction shall takeplace,shall, and he is by the said Ordinance authorised, if sucii penally be not forthwith paid, to commit the offender to the com- mon gaol of the District, for a period not exceeding thirty days, or until such penalty be paid. By Sec. 16, it shall be the duty of each and every Ser- jeant of Militia, in the country part, of this Province, to prosecute each and every person, whom he shall have reasonable cause to believe to have committed any offence whatever for which a penalty is imposed by this Ordinance within the Parish, Seigniory, or Township in which such Serjeant shall reside, and for each case in which it shall be proved by the oalh of any one credible witness, that any such Serjeant has neglected so to prose- cute for any such offence within fifteen days after suffi- cient information had been laid before him, to give him reasonable cause to believe that such offence had been committed, or aAer he had himself such personal know- ledge as would amount to such reasonable cause, he shall for such neglect incur a penalty not exceeding forty shil- lings, to be sued for, recovered and levied in the manner provided with regard to the penalties imposed by this Ordinance : Provided always, that any Serjeant of Militia, who shall under the requirements of this Ordinance, prose- cute any offender, shall, if the offender be convicted, recover his necessary costs and disbursements actually incurred about such prosecution, but shall have no part of the penalty imposed on the offender, which penalty shall in such cases belong exclusively to Her Majesty for public uses in this Province. % i < ' 1:^ 4 I Ti t i 404 TAVERN-KE£P£RS. By Sec. 17, that upon complaint before any ivfo Jus- tices of the Peace residing within tiie Parish, Seigniory^ or Township, of any offence against this Ordinance, such Justices may issue their Summons, under their hand and seal, enjoining the party complained of to appear before them, and answer such complaint, and upon due proof of such offence, by the oath of any credible witness, other than the informer, euch Justices shall adjudge that the offender has forfeited a penalty, equal in amount to that imposed on such offenders, that is to say, a penalty nut exceeding ten pounds currency, one moiety thereof to Her Majesty, and the other to the informer, with costs, and may levy such penalty and costs, by warrant of dis- tress to seize and sell the offender's goods and chattels in satisfaction of the said judgment, — and for want of sufli- cient distress, may issue their warrant to cause the offend- er to be apprehended and conveyed to the Common Gaol of the District, there to remain in safe custody until the said penalty and costs shall have been paid. Provided always that no person shall be detained in such custody longer than three months, by virtue of any such warrant. By Sec. 18, no brewer of ale, beer, or other malt li- quor, nor any distiller, or vender of ppirit?, brandy or other spirituous liquors, shall act as Justice of the Peace, or Officer of Militia, or Church warden under this Ordin- ance, und any order, judgment, or other thing whatsoever given or made by such person, as a Justice of the Peace, Officer of Militia, or Church warden, in or concerning any matter relative to this Ordinance shall be void and of no effect. And any person acting as a Justice of the Peace, or Officer of Militia, or Church warden, in con- travention of thii Ordinance, shall, for each such ofience^ TAVERN-KEEPERS. 405 incur the penalty of ten pounds currency, recoverable with costs by civil action in any Court of competent jurisdic- tion, one moiety of which penalty to belong to the Queen, the other to the person suing for the same. By Sec. 23, this Ordinance was to continue and remain in force until the first day of November, one thousand, eight hundred, and forty-two, and no longer. (But by a subsequent Ordinance of 4th Vic, c, 42, this Ordinance was made perpetual.) I i Form of Affidavit referred to in Sec. 4 of this Ordinance. District of ; I, A. B., of the Parish (or place) of ) , in the County of in the District of , {yeoman)^ being duly sworn, do depose and say, that I am duly qualified, according to the laws of this Province, to obtain a Licence, to keep a house of public entertainment, and to retail spirituous liquors therein. — So help me God. Sworn before me at in the District of day of • thi{ 1 hundred, and -, one thousand, eight \. (Signed) A. B. (Signed) W. R., J. P. .? Form of Certificate referred to in Sec. 5. District of ) We, (or I), the undersigned, (state the ) quality or condition in life)^ of {the place)f in the County of , in the District of , do hereby certify that C. D. of the wme 406 TAVERN-KEEPERS. place is a fit and proper person to obtain a licence to keep a house of public entertainment and to retail spirituous liquors in the place aforesaid, and has given the bond required by law from persons applying for such licences ; and further, that we have visited and know the house and premises of the said C. D., and that he has in and on the same, the bedding, stabling, and accommodation for travellers required by law. Dated at afore- said, this — - day of , one thousand, eight hundred and Signature, or Signatures. Form of Bond required by Sec. 7, of the above Ordin- ance. District of ? Know all Men by these presents, that ) we, A. B., of , in the said District, yeoman^ C. D. of the same place, yeoman^ and E. F. of the same place, yeoman^ are held and firmly bound to our Sovereign Lady the Queen, in the several sums of money hereinmentioned', that is to say, the said A. B. in the sum of forty pounds, current money of the Province, and the said C. D. and £. F., each in the sum of twenty pounds, like current money, to be paid to our said Sovereign Lady the Queen, Her Heirs, and Successors, — for which payment well and truly to be made in manner as aforesaid, we, the the said A. B., C. D., and E. F., do bind ourselves, and each of us by himself, doth bind himself, our, and each pf our heir«, executoc^, and administrators, firmly by TAVERN-KEEPERS. 407 these presentd. Sealed with our seala, dated at ' aforesaid, this day of ■■ — , in the year of our Lord, one thousand, eight hundred, and ^-^— Signatures. A. B., [Seal.] C. D., [Seal.] E. F., [Seal.] M The condition of this obligation is such : — that wliere- as the said A. B., hath applied to obtain a licence to keep a house of public entertainment, and to sell and retail spi- rituous liquors at aforesaid. Now, if the said A. B., shall, during all tlie time the said licence shall be granted to liim, well and truly do, perform and observe the several conditions and requirements of a certain Ordi- nance of the Governor and Special Council of the late Province of Lower Canada, made and passed on the eighth day of March, in the second year of the Reign of our Sovereign Lady Victoria, and in the year of our Lord one thousand eight hundred and thirty nine, and shall aliio well and duly do, perform and observe the conditions and requirements of the Act in and by the said Ordin- ance cited and amended, then this obligation shall be void, otherwise the same shall remain in full force. Sealed, delivered and acknowledged before me, {or us) the subscribing Justice, (or Justices) of the Peace in and for the said District. ,a. , . ( W. R., J. P. (S.gnatures) )^ ^ ^J^ ^ I I 408 TAVERN-KEEPERS. ^ Ordinance of 4th Vic, c. 42., intituled, ".^n Ordin- " ance to repeal in partf and to amende and to render *^ permanent as amended, a certain Ordinance therein " mentioned felative to taverns and tavern-keepers, and « to make further provision relative to the same sub- **Jects.^* The preamble to this Ordinance, states, whereas it is expedient to amend and render permanent a certain Or- dinance passed in the second year of Her Majesty's Reign, and intituled, " ^n Ordinance to amend a certain Jlct " therein Tnentioned, and to provide for the better regula- " Hon of taverns and tavern-keepers," and proceeds to enact, that by virtue of the power given by the 17th sec. of the Ordinance of the 2d Vic, c. 14, to any two Jus- tices of the Peace residing in the County in which the oflf- ence shall have been committed, to hear and determine the same, yet that no offender shall by such Justices be enjoined to appear or to answer any complaint at any place out of the limits of the Parish, Seigniory or Town- ship in which the offence shall have been committed. And by Sec. 5, it is ordained and enacted, that this Or- dinance and the Ordinance hereinbefore referred to (Ord'. 2d Vic, c 14,) shall be and remain permanent and in force, until altered or repealed by competant authority. The complaints to arise on the law relating to taverns and tavern-keepers may be various and frequent, in all which oises, the power and authority of a Justice, or Jus* tices, to take cognizance of such complaints, and the na- ture and extent of the penalties to be inflicted, are suffici- ently pointed out. It may, however, be proper to observe upon the 1 5th and 17lh Sections of the above Ordinance of 2d Vic, c TAVERN-KEEPERS. 409 14', that care should be taken to interpret thetn in sucli way as to prevent any discrepancy in their application. By the 15th section of this Ordinance, it is enacted, that for the offence of selling beer, or any sort of fermented li- quor, or bakes without licence, a penalty not exceeding ten pounds, may be incurred, and the party maybe con* victed of that offence before any Justice of the Peace, who is authorised, when the penalty is not forthwith paid, to commit the offender to gaol, for a period not exceeding thirty days. Now what may be done by or before one Justice, may unquestionably be done by or before two or more Justices, and should the complaint for this offence be brought he- ioxQtwo Justices \hs\.q^Cl of one, they could take cogni- zance of it and convict the offender, but in case of non- payment of the penalty, the two Justices could not inflict a greater punishment, nor commit the offender to Gaul for a longer space of time than thirty days, any more than the one Justice could do under this section of the law. But by the 1 7th section, it is enacted, that upon complaint beforie /wo Justices oi any offence ngAxn&i this Ordinance, they may convict the offender in a penalty not exceeding ten pounds, and for want of sufficient distress, may commit him to Gaol for three months. It cannot certainly be presumed that the Legislature intended by this general clause, that by means of a trial before two Justices, a greatir punishment might be imposed, than that before limited to a particular offence when tried be- fore one Justice, unless such intention were clearly and positively expressed, nor in penal law would such inter- pretation be admitted. The proceedings to be had before the Justices on com* 2M I li ?' 410 TAVERN KEEPERS. ;t( plaints under these Acts and Ordinances^ begin by a summons to the parly, in which is set out the matter com- plained of in plain and clear language, specifying the time — the placCf and the circumstances ^ which bring it within some clause or section of the Law. The service of the summons, and proof of that service when the defendant does not appear, the taking his defence or answer to the complaint when he does appear, the examination on oath of the witnesses, and the judgment, either of conviction, or of dismissal of the complaint if not proved, must follow in their regular order j when costs are allowed, the amount must be taxed and inserted in the Judgment. And as every Summary Conviction before Justices must be re- turned to the Quarter Sessions, that return should be made out and signed by the Convicting Justice or Justices, ac- cording to the form before stated, as required by the Oidinance of 2d Vic, c. 20. Of all these proceedings the Justice ought to make and keep a regular statement in his Register, that he may be prepared to meet any demand that may be made upon him, either in the case of an appeal to the Sessions, (when such appeal is by law allowed,) or of a Certiorari issuing from the Superior Court, when a conviction must be drawn up according to the general form, in which the evidence must be set out. See what the beforementioned Act of 3d Geo. 4, c. 12, says on this subject. Of all these proceedings sufficient fornft may be drawn from those already given in similar cases, and do not therefore require to be here repeated. THREATS AND THREATENING LETTERS. See Act 4th and 5ih Vic, c. 25, s. 8 and 12. ¥i'^'. THREA J AND THREATENING LETTERS. 411 If one mail threatens another, to deter him from doing some lawful act, or to compel him to do some unlawful one, or with intent to extort money from him, or obtain any other benefit, {whether real or imaginary) to the person who makes use of the threat, this has always been considered a misdemeanor at common law. Thus to threaten a Piaiiitiff, for suing a Defendant, or a Counsellor or Attorney, for being employed against any party in a suit, a Juror, for his verdict, or a Gaoler or other Ministerial Officer, for keeping a prisoner in custody, and properly executing his duty, are offences for which the party may be indicted, and punished by fine and imprisonment, — 4, Bl. Com. 126.-2, Ch. C. L. U9.—2, Dick. 1292. The sending or delivering letters or other writingSf containing threats, with a view, or for the purpose of ex- torting money, was for a long time treated and punished as a capital felon)-, by Statute 9, Geo. 1, c. 21, s. 1, and 27, Geo. 2d, c. 15, but now, by the Act ^th and 5th Vic. c. 25, s. 12, if any person shall knowingly send or deliver any letter or writing, demanding of any person with menaces, and without any reasonable or probable cause, any chattel, money, or valuable security ; or if any per- son shall accuse, or threaten to accuse, or shall knowingly send or deliver any letter or writing accusing, or threaten- ing to accuse any person t)f any crime punisliable by law with death or transportation ; or of any assault with intent to commit any nipe, or of any attempt or endeavour to commit rape ; with a view or intent to'extort or gain from such person any chattel, money, or valuable security, every such person shall bo guilty of felony, and liable to imprisonment and hard labour at the discretion of the Court. 1-1 :■ A li- lt I 412 THREATS AND THREATENING LETTERS, Information for sending a threatening letter to extort money, &c. District of ) Information of A. B. of the Parish of—— ) in the saiJ District, yeoman, taken before nie, W. R., Esquire, one of Her Majesty's Justices of the Peace in and for the said District. The said A. B., being duly sworn, deposeth and saith, that on the day of instant, C. D., of in the said District, labourer, did, knowingly and feloniously, send, or cause to be sent and delivered to this deponent and purporting to be written and signed by the said C. D., (cr in case Ihere be no signature to the letter, or a fictitious one, the contents must be proved, to he in the handwriting of the party suspected, by some person or persons who have seen him write, and who be- lieve the contents of the letter to be in his handwriting,) by which said letter the following menaces and threats were, without any reasonable or probable cause, express- ed towards this deponent, {here insert the menaces) a- gainst the form of the Act in such case made and provid- ed, and against the peace, &c. Wherefore prays justice. Sworn at in the said District, this day of 18 — , before me, .( (Signed,) A. B. (Signed) W. R., J, P. The warrant to apprehend the parts'—his examina- tion, and that of the witnesses, and the warrant of com- mitment, are in the usual form hereinbefore referred to in cases of felony, observing always to state in each docu- ment, the facts set out in the information, as the ground- work of it. TREASON. 413 TIME. In the computation of any given period of time in legal proceedings^ the general rule is, that one day is to be reckoned inclusive and the other exclusive, — 2 Dick, 1297. So where any stated time is limited in a penal Statute for the prosecution of an offender, the day on which the act 13 done, is to be included in the reckoning. — Doug. 465, — 3 T. R» 632. As where a statute provides, that all prosecutions for offences *^ shall be commenced within one month afler the offence committed," the month be- gins with the day on which the offence was committed. —3 East. 4.07,-2 Camp. 296. Where the word, "Month^* is used in any Statute, without the addition of the word, " Calendar^^ or other words shewing that a calendar month is meant, it is to deemed a ** Lunar Month'* of twenty eight days. And in all matters temporal the term monthy is understood to mean a lunar month, — 2 BL Com, 141. — 6 T, i2. 224. —1 Bing, 307. • TREASON. Treason imports a betraying, treachery, or breach of faith, and when levelled against the Queen or Govern- ment, is denominated High Treason* This being the highest Civil Crime which any man can possibly commit, ought therefore to be the more precisely ascertained. To prevent the inconvenience arising from the multitude of 2M2 414* TREASON. Constructive Treasons in England, the Stat, of 25th Ed. 3rd, c. 2, was passed, to define what offences only in future should be held to be treason. This Statute constitutes a part of the Criminal Law of this Province, and comprehends this crime under seven branches : — 1st, When a man doth compass or imagine the death of our Lord the King, of our Lady his Queen, or of their Eldest Son and Heir. This necessarily includes the Queen regnant, as she is invested with royal power, and entitled to the allegiance of her subjects. 2nd, If a man do violate the King's Companion, or the King's eldest Daughter unmarried, or the Wife of the King's eldest Son and Heir. 3rd, If a man do levy war against our Lord the King in his realm. 4th, If a man be adherent to the King's Enemies in his realm, giving them aid and comfort in the realm or else- where. 5th, If a man Counterfeit the King's Great, or Privy Seal. 6th, If a man Counterfeit the King's Money, and if a man bring False Money into the realm counterfeit to the money of England, knowing the money to be false, to make merchandise and trade withal. 7th, If a.man Slay the Chancellor, Treasurer, or the King's Justices of the one Bench or the other. Justices in Eyre, or Justices of Assize, and all other Justices assigned to hear and determine, being in their places doing their Offices. In High Treason there are no accessaries, but all are principals, and therefore whatsoever act or consent will ^r MISPRISION OF TREASON. 415 make a man accessary to a felony, before the act (lone, the same will make him a principal in case of High Treason, — 3, Inst. 921. MISPRISION OF TREASON. The Misprision of Treason, in legal understanding, signifieth, when one knowing of any Treason, though no party or consenting to it, and dolh not reveal it in con- venient time which every subject is bound to do, and give information thereof to the Queen's Privy Council or other Magistrate. Although Treason and Misprision of Treason are not within the letter of the Commission of the Peace, yet inas- much as they are offences against the peace and quiet of the Province, any Justice of the Peace may, either upon his own knowledge, or the complaint of others, cause any person to be apprehended for any such offence, and may take the examination of the person so apprehended, and the information of all those who can give material evi- dence against him, and put the same in writing, and also bind over such who are able to give any such evidence to the King's Bench or gaol delivery, and to certify his pro- ceedings to such Court, and it is advisable, and the usual practice in cases of this kind, for the Justice to send an account immediately of all the particulars to the Privy Council or Secretary of State. There may be also cases of suspicion laid before the Magistrate, particularly in times of trouble, or of disaffec- 416 VEGETABLE PRODUCTION. tion to the Government, grounded upon circumstances that would authorise him to issue his warrant against any person so suspected, either for Treason, Misprision of Treason, or any seditious conduct connected therewith, or leading thereto. The timely interference of the Magistrate in such cases, may often prove instrumental in preventing much disturbance, or in checking its progress. { ^ TREES. Stealing Trees, see Larceny^ 4>th and 5th Vic. c. 25, s.31. Damaging or destroying, see Malicious injuries to Pro* petty, 4th and 5th Vic, c. 26, s. 19. TURNPIKES. See Roadsy Rail Roads^ Turnpike Roads, VAGRANTS. See Idle and Disorderly persons. VEGETABLE PRODUCTIONS. Stealing of, — see Larceny, 4th and 5th Vic, c. 25, sec 34 and 35. Destroying or Injuring, — see Malicious Injuries, Sfc, 4th and 5th Vic, c. 26, sec. 21 and 22. ""7-r'r- ^' WARRANT. 417 WARRANT. A Warrant) is a precept under the hand and seal of a Justice of the Peace, or other public functionary, direct- ed to some Otiicer, or other person, authorising him to do some act, which, by virtue of such warrant, he may law- fully do, within the jurisdiction of such Justice, or of the person granting it. It should set forth the time and place of making, and the ^cause for which it is made — it should be directed to the Constable or other Peace Offi- cer. Or it may be directed to any private person by name, who is no Officer, for the Justice may authorise any one to be his Officer, whom he pleases to make such, —Burns J. a.rest,—! H. H. 581,-1 B, andC. 291. But a warrant left in blank, to be filled up by a third per- son, with the name of th Officer, after the warrant is signed and sealed, is illegal, — 1 East, P, C. 310, — G. T. R. 122. Warrants are of different kinds, the more general are 1st. Warrants to apprehend or arrest a party. 2d. Warrants of Distress. 8rd. Warrants of Commitment. •Ith. Search Warrants. There may also be warrants for other specific objects, unnecessary here to mention. 1st. Warrants to appre- hend or arrest a party may be granted on the information on oath laid before a Justice of the Peace in all cases of treason, felony and breach of the peace, to bring the party before him, either for examination, or for such other or further proceedings as circumstances may require. Also for all such offences as by law he has power to punish, 'V ] 413 "WARUANT. the Justice may issue his vvarratjt, when a different course is not otherwise diiecteJ, — 1 Brod and B. 54-8. A Warrant may be granted on suspicion, for the Jus- tice is the competent judge of the probability offered to him of such suspicion, — 1 H. H. 108, — 4« Bl. Com. 290. A Warrant may also be granted against a witness, who refuses, after notice, to appear before the Justice, and give evidence touching any case of felony or suspicion of felo- ny brought before him, — 4th and 5th Vic, c. 24. — See Witness, Also in various offences punishable on summary con- viction, the Justice may issue his warrant and bring the party accused before him, should he not appear after a summons served on him for that purpose, — 4th andbth Vic, c. 25, sec. 47, c. 2b, sec. 30, c. 27, sec. 40. In all light and petty offences, however, the Justice will seldom find it becoming his office to exercise his power to the utmost extent, when justice may be done by a milder course, more especially where the known char- acter of the parlies concerned would render such proceed- ing unnecessary, and as savouring too much of the *wm- mumjuSf or rigour of the law, — 13 East. 55. Qd. Warrant of Distress. — These are gronted in execu- tion of some judgment, and in general to levy some fine or penalty, of which a party has been convicted on sum- mary proceeding before a Justice of the Peace. As to the form of these Warrants, — see Distrtts. WIPE. 419 3rd. Warrants of Commitment. — These imply the seiuling a person to prison, by the warrant or order of any Court or Magistrate, where the party has been convicted or is accused of some crime or offence. These are as va- rious as the cases in which they may be granted. See Commitment. Uh, Search Warrants. — These are generally granted, to authorise the searching for stolen goods, upon sufficient ground of suspicion being laid before the Justice upon oath. See form under title. Search Warrant. WIFE. a The wife of a man, (in law language, a feme covert^) is so much favoured in law, on account of the matrimo- nial subjection due by her to her hu!«band, that if she com- mit theft, or even a burglary, by his coercion, or merely in liis company, when the law presumes a coercion, she is held to be exempt from punishment, being considered as acting in either of these instances by compulsion, and not of her own free will, — 4 Jil. Com. 28. The presumption of coercion, however, does not amount to more than a prima facie presumption of law, — and therefore if it clearly appear in eviden>'.o, that the wife was not drawn to the offence by the husband, but that she was in fact the principal instigator of it, or was acting her- self as a free and independent agent, she is in this case guilty as well as the husband, — 1, Russ, 16. — 1, Leachf 4-n. { 420 WIFE. r If the wife also procure the husband to commit the oiTencejshe is then an accessary before the fact in the same manner as if she had been sohy — 1, Hale. 516.— 2, Hawk, c. 29, s. 34<. In treason, considered as the highest crime in civil society, no plea of coverture shall excuse the wife, nor any presumption of her husband's coercion extenuate her guilt,— 4, Bl. Com, 29. in murder also, and offences of the like description which are prohibited by the law of nature, and are mala in sCf the wife is held a responsible agent, notwilh- standing the coercion of her husband. In all cases where the wife offends alone, without the company or coercion of her husband, she is then as much responsible for her offence as any feme sole. And when- ever she commits an offence in the absence of her hus- band, it will be no excuse, that she committed it by his order and procurement ; but in such a case both husband and wife may be indicted together, the wife as principal, and the husband as accessary before the fact,^4<, Bl. Com, 29.-/2. and R, 270. If a woman receive stolen goods into her house, know- ing them to be so, or lock them up in her chest or cham- ber, without the knowledge of her husband, she alone may be indicted, and the husband shall not be charged for the offence. But if the ignorance of the ! ict, this -18 8 — , before me. ( ,)W.R.,/. P. J ^*> s (Signed,) A. B. (Signed, The search warrant and other proceedings are in the usual form, — see Search Warrant. WINTER TRAVELLING. By Ordinance of the Governor and Council of the 3rd Vic, c. 25, intituled, " jJn Ordinance to provide for the ** improvement^ during Winter seasonSf of the Queen's ** hightoays in this Province, and for other purposes,^* it is, by sec. 4, ordained and enacted, that when two winter vehicles meet, or a winter vehicle meets a person on horse back, travelling on the same beaten track of snow, it shall be the duty of the driver or drivers of such vehicle, or vehicles, to drive their horses, or other beast of draught to the right, so that while passing, but one of the runners of such vehicles, shall occupy the beaten track. By Sec. 5, the provisions of this Ordinance extend and are applicable to all public roads defined and laid o'U during the winter season by lawful authority, on the rivers and other waters when frozen and on land. By Sec. 6, each and every person offending against the provisions of this Ordinance, shall for each such offence 424 ■WINTER TRAVELLING incur a penalty of ten shillings currency, on conviction thereof before any Justice of the Peace for the District, on the oath of one credible witness other than the informer ; and such Justice of the Peace may, if such penalty be not forthwith paid, with costs of the prosecution, commit the oiTender to the Common Gaol of the District, for a period not exceeding eight days, — one moiety of this penalty to belong to Her Majesty, the other moiety to thje informer. Summons on Complaint for refusing to give one half of a Winter Road to a Traveller. District of ^ W. R. Esquire, one of Her Majesty's Jus- 5 tices of the Peace, in and for the said District. To C. D. of the Parish of — — in the said District, yeoman. Whereas information and complaint have this day been made before me the said Justice, by ^. B. of the Parish of in the said District, trader, against you the said C. D. for that you on the day of instant, at the Parish aforesaid, {or wherever the place may be) while travelling in a vehicle or sled drawn by two horses on the winter roads defined and established in the said Parish, you met on the said road, the vehicle or sled of the said A. B. also drawn by two horses, but that you the said C. D. although then and there requested by the said A. B. refused to give to the said A.B. one half of the said road and to draw your said horses and vehicle or sled to the right, so that only one of the runners of your said vehicle or sled should occupy the beaten track on the said road^ !>' WITNESSES. 425 action ict, on rmer j Ity be ommit , for a of thia r to the aifofa y'sJua- tte said District, ay been 8 Parish you the lace may by two 1 in the )r sled of you the the said 'the said ed to the il vehicle aid road^ but that on the contrary you the said C. D. did retain and occupy the whole of the said beaten track with both the runners of your said vehicle or sled, contrary to the Ordin- ance in such case made and provided, by reason of vvhicli offence, you the said C. D. have forfeited and become liableto pay the penalty often shillings, one moiety thereof to be paid to Her said Majesty, and the other moiety to the said A. B. the informer, and which penalty the said A.B. as well for Her said Majesty, as for himself, demands and prays, that you the said G. D. be condemned to pay with costs. These are- therefore to command and require you the said C. I>. to be and appear before me the said Justice at ————— in the said District, on Monday, the day of • instant, at the hour of ten in the fore- noon, to answer to the said information and complaint, and further to be dealt with according to law. Hereof fail not. Given under my hand and seal at in the said District, this day of ■■■ one thousand eight hundred and — ' . (Signed,) W. R., /. P. [Seal.] The service of the summons and subsequent proceedings in this case are similar t''' those prescribed in offences of this description. WITNESSES. The attendance of witnesses before the Justices of the Peace, out of Sessions, is an essential object in the ad* ministration of Justice, because from their depositions 2N2 sfWMawttanta I ^26 -WITNCSSES. and examinations he is enabled to take such proceedings against oflenders, as the circumstances of the case may require. In all cases of felony, or suspicion of felony, should witnesses refuse to attend before the Justice, after being summoned, or should refuse to be examined, or to enter into recognizance to appear and give evidence before the Court, the Justice may commit them to gaol, there to re- main until they shall consent to their being examined, or to enter into recognizance, or be discharged by due course of law, — 4tih and 5th Vicy c. 24, sec. 2i — Hale. 284. But Justices cannot in general compel the attendance of witnesses before them, except in cases of felony or sus- picion of felony, otherwise than by a notice or summons to that eflfect,— 1 Stark. 81. A witness is not bound to find a surety to join with him in a recognizance for his appearance to give evidence, his own recognizance is all that is required. It is a general principle that no informer, prosecutor or interested person can be a witness in a prosiecution on a penal statute, but in several instances of summary con- viction before the Justice of