IMAGE EVALUATION TEST TARGET (MT-3) 7 // :/ Vo V 5r ^<< 1.0 I.I 1.25 ll!M 132 iSiJi IM M 12.0 ^ 1.4 nil 1.6 Photographic Sciences Corporation « ^ # \ \ 4^^ ^^^ 6^ 33 WEST MAIN STREET WEBSTER, NY 14580 (716) 873-4503 ^ % ^ c^ CIHM/ICMH Microfiche CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques Technical and Bibliographic Notes/Notas techniques et bibliographiques The Institute has attempted to obtain the best original copy available for filming. F'^atures of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. L'Institut a microfilm^ le meilleur exemplaire qu'il lui a 6t6 possible de se procurer. Les details de cet exemplaire qui sont peut-Atre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la methods normale de filmage sont indiqu6s ci-dessous. D D D D D D D D Coloured covers/ Couverture de couleur I I Covers damaged/ Couverture endommagde Covers restored and/or laminated/ Couverture restaurde et/ou pelliculde I I Cover title missing/ Le titre de couverture manque I I Coloured maps/ Cartes g6ographiques en couleur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Reli6 avec d'autres documents Tight binding may cause shadows or distortion along interior margin/ La reliure serr6e peut causer de I'ombre ou de la distortion le long de la marge intdrieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajoutdes lors d'une restauration apparaissent dans le texte, mais, lorsque cela dtait possible, ces pages n'ont pas M film^es. Additional comments:/ Commentaires suppldmentairdS; I I Coloured pages/ Pages de couleur Pages damaged/ Pages endommagdes □ Pages restored and/or laminated/ Pages restaur^es et/ou pelliculdes r~7 Pages discoloured, stained or foxed/ UlJ Pages d6color6es, tachetdes ou piquies □Pages detached/ Pages ddtachdes rr^ Showthrough/ I I Transparence □ Quality of print varies/ Quality indgaie de I'impression □ Includes supplementary material/ Comprend du materiel suppl6mentaire D D Only edition available/ Seule Edition disponible Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une pelure, etc., ont M film^es A nouveau de fagon d obtenir la meilleure image possible, This item is filmed at the reduction ratio checked below/ Ce document est film6 au toux de reduction indiquA ci-dessous. 10X 14X 18X 22X 26X 30X J 12X 16X 20X 24X 28X 32X The copy filmed here has been reproduced thanks to the generosity of: National Library of Canada L'exemplajre film6 fut reproduit grflce A la g6n6rosit6 de: Bibliothdque nationale du Canada The images appearing here are the best quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. The last recorded frame on each microfiche shall contain the symbol ^^> (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Les images suivantes ont 6t6 reproduites avec le plus grand soin, compte ter.u de la condition et de la nettetd de I'exemplaire filmd, et en conformity avec les conditions du contrat de filmage. Les exemplaires originaux dont la couverture en papier est imprimie sont filmis en commenpant par le premier plat et en terminant soit par la dernidre page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, selon le cas. Tous les autres exemplaires originaux sont filmds en commenpant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernidre page qui comporte une telle empreinte. Un des symboles suivants apparattra sur la dernidre image de cheque microfiche, selon le cas: le symbols — ^- signifie "A SUIVRE", le symbols V signifie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be ent'rely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre filmds A des taux de reduction diffdrents. Lorsque le document est trop grand pour Atre reproduit en un seul clich6, il est film6 A partir de Tangle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 M ANN S( AlTTIIiil THE MAGISTRATES' MANUAL: BEING ANNOTATIONS OF THE VARIOITS ACTS RELATING TO THE RKJHTS, POWERS, AND DUTIES OF JUSTICES OF THE PEACE ; WITH A SUMMAKY OF TIIK CRIMINAL LAW. nv S. R. CLARKE, OF OHGOOIIK HAI.I,, IIAUHIHTKK-AT-LAW ; A.THUU OK "THE OKIMINAI. .,AW OK CANAl.A," "THE INMO..VKNT A.T UK I«75 AND AMENDINO AOT.S," ETC. fabor omniit bintil. TORONTO : HART ife RAWLINSON. r. RINO-STREET WEST. 1878. -X EnU.ro.1 a.vor.lin,^ to Act of the Parliament of Canada, in"u,^e year of „ur Lor.l one th..UHuna ei^ht Imn.hv.l an.l seventy-eiKht. by Samiki. ]{.)Bin.son Clakkk in ti.e oftiee of the Minister of AHrioiilture. riUNTKI) HV iniNTKH, KOSK Si Co., TOIIONTO. PKEFACE. our Lord one LAKKK, in tlie No previous writer on magisterial law has cited the cases decided in Canada, either as to the practice or the law with which the magistracy have to deal. Besides, the ever active legislatoi-s have wrought consideral)le alteration in the stiitute law since the last publication on the sulyect. The within work cites all the cases which have been decided in Canada, in any way relating to the rights, powers, and duties of Justices of the Peace. 80 far as api)licable, the English cases, down to the first day of Jan.iary, 1878, have also been given. Several Canadian cases, in advance of the regular reports, have been kindly furnished me by H, C. W. Wethey, Esquire, reporter to the Court of Queen's Bench in Ontario. My thanks are also etically arranged, and the latest cases in England and Canada, more particidarly such as elucidate any principle or are of general application, have been cited. Should the work supply the want which I have reason to V)elievo has been long felt by the magistracy, my aim and ambi- tion will be abundantly satisfied. S. R. C. Toronto, 22mi January, 1878. TABLE OF CONTENTS. PAOB Table of abl)reviation8 vii Table of cases ix Introductory chapter 1 An Act reapoctiiif^ the Duties of Justices of the Poace out of Sessions, in relation to persona charged with indictable oflences 22 An Act respecting the Duties of Justices of the Peace out of Sessions, in relation to Summary Convictions and Orders 95 An Act respecting the prompt and summary Administration of Criminal Justice in certain casus 193 An Act respecting the Trial and Punishment of Juvenile Offenders 208 An Act for the more speedy trial in certain cases of Perscms charged with Felonies and Misdemeanors in the Provinces of Ontario and Quebec 210 An Act to protect Justices of the Peace and other oHicers from vexatious Actions 22fi Summarj' of the Criminal Law of Canada, alphabetically arranged 247 Revised Statutes of Ontario 3()6 An Act respecting Summarj' Convictions before Justices of the Peace..,. 306 An Act respecting the Procedure on Appeals to the Judge of a County Court from Summary Convicti Bates, Re 3(i7 Bates V Walsh 23!» Baxter v Hallett 23!) Bay lis v Strickland lit Beal, ex parte 281 Beebe, Re 117 Begbie v Levi 363 Belanger V fJravel 1!> Bennet v Watson 1 13 Bessell v Wilson 232 Betters worth v Hough 23»;, 24 1 liirch V Perkins 117, 22(> Bird V Brian 403 BisBonette v Bornais 230 Blake V Beech 100, 101 Blossom, ex parte 52,53, 54 Booth V Clive 230 Booth V Shadgett 305 Bott V Ackroyd 121 , 227 ' Bonlt( )n V Fitzgerald 293 Bowes V Fenwick 208 j Bradbury v Hotten 281 , I'Aue lirash <) t V Taggcirt 1 53 Breakey v Breakey 209 Brennau V Hatelio 229 Brett vC'onant 322 Brett V Robinson 271 Bnu'ljH V Spilsburg 231 Briglit, Be .... 132 Brisson V Lafontaine '2iV> Brittain v Kinnaird !9 Brodeur, ex parte ... . 150 Brown, Re 309 Brown V Ougj' 334 Bro8.s V Huber,97, 237, 239, 241, 1.44, 333 Burgoyne v Moffat 40 liurney v (Jorhani 227 Bn.stard v Schotield, ^*e 10 Butt V Ccnant 351 , 354 Campbell v Flewelling 244 Carignan, ex parte 115, 157 Carniithacl, Re . 117 ("aijK'ntt r v Stanley 300 Carr V Stringer 305 Carr v Tannahill 323 Caiswell V Huffman 230 Cartier v Burland 227 Caudle V Fergu.son 23, 220, 250 Cave V Mountain 227 Caven, ex parte 2(tO Chancy v Payne 120, 129, 130 Charles v (Jieene 120 ('barter v Creame 129 Church, ex parte 108 Clapp V Lawniaon .... 148 Clarke, Re 17 Clarke V Donelly 323 Clehuid V R<.bin8on 99, 198 Clemens <( t v Bemer 153 Clitlord, ex parte 38*) Clissold V Machell 18 Codd vCabe 202 Cohen v Morgan 25 TABLE OF CASES CITED. PAflE Col Bank of A v Willan 227 Ciilcniaii, Re 352 Coles V Coulter 9(5 Collier v Hicka 44 Collins V Hopwood 127 Collins V Rose 234 Colville, ex parte 4 Condoll V Price 23(> Conklin, Re 30, !)»>, 102, 2(14 Connolly v Adams 238 Connors v Darlin<; 5, 23, 42, 48 Coiiroy V IVIcKenney 55 Cope V Barber 275 Cooper V Slade 271 Cooper V W. Hoard 102 Corby V Mo Daniel 32,3 Corrivean, ex parte 52 Corsant. (|t v Taylor 151, 153 Cornwall v H 2l!t, 351 Coiisiiie, ox parte 114, 305 Cox V Reid 23(1 Crawford v Beattie 23, 30, 31, 48, 102, 105. 22\ven 230 Neill v McMillan 238, 240 Neville v Corporation of Ross 241 Newhold V Coltnian 6 Newton V Harland 294 Oliphant v Leslie OUanl (| t V <'wens ( )naaiikennit. Ex parte Onley v Gee 2()!t, O'iieilly n t V Allan . . 150, Orr V Spooner Osborii V (lor.gh Ovens V Taylor 17, 228, 260, Pacaud v (^luosnel I'acaud V Roy I'arks, Kxparto : I 'arkyn v Staples Peacock v R Poaso V McAloon Peate v Dickens 1 Verless, Re Penny v Slade Perluun, Ex i) R V Coote 43, 2HH R V Corcoran ..... 348 II V Cotton 233 R vCox 363 R V Cozens 10 II v Crab 310 \{ v Cracknall 330 II V Craig 127, 298 R V Creamer 270 Rv Rv Rv Rv Rv Rv Rv Rv Rv R V R V R V R V R V Rv R V R R R R R R R R R R V R V R V R V R V Rv Rv R V R V R V R V R V R V R V R R R R R R R R R V R V R V R V R V U V FAOE Cregnn !*.... 201 Cridland 20, 115 Cronan 201 Cronin 258 Cr< iteau 48 Crouch 308 Cru.se 328 Crutchley 33.i Culhnu 314, 310 Cummins 45, 314 Curi,'erwen 209, 270 Curl 303 Curran 250 Ciurie 351 Curtley 254, 340 Cutbush 130 Daman 9(5 Davis 340 Davey 355 Dayman 233 Denhiim 388 Derl)y.Hhiro 141 Dingman 201 Dogherty 324 Doherty 355 Downes 333 Dimlop 298, 351 Dunn 290 Eaves 140 Edgill 258 Edwards 125, 200, 330 Elston 320 Evans 103 Ewing 30t> Eyre 27 F.'dkingham 274 Faneuf 200 Farrell 41 Fanon 249 Faulkner 389 FcigiiHon 132, 401 Ferrall 121 Fitch 343 Field 288 Finkle 288 Finiiiu ;'<85 Fisher 325 Fitcii 310 Fitzgerald 52, 352 Flannigan 11, 119, 390 Flattery 345 Fletcher 14, 23, 100 Flintsiiiro 131 XIV TAHLE Ol' CASKS CITED. R V R V R V R V R V R V R V R V R V Rv R V R V R V Rv Rv R V R V R V Rv Rv R R R R R R R R R R R R R V R R R R R R R Rv R V R R R 11 R R R R R R R PAdE Flinton 3(50 Forbes 201,291 Foster 319 Fox 131 Francis 290,343 French 299, 400, 403 Fretwell 250 Fnrzey 350 Gale 314 (Janes 2(51 Gardiner 330 (ioiuniell 317 ()iil)bon8 . 2(59 Giles 297 Glover 27(5, 31(5 (Jlyde 311 GoU" . 3(15 Gokling 104 Goodall 3(12 (ioi xlnian 259 Gould 297 (Uoen 131,229 (JritKn 15(5, 275 (luardiansC Union 142 Gutlirie 2(50 Hudlield 32(5 Hague 271 Hall <>9 Hamilton 43, 330 Hants 145 .Hardy 32(5 Harnier 2(50 Harris 303 Harslunan 2(5(5 Hartley 233 Hawloy 248 Haynes 351 Hazell 125 Hazleton 318 Hearn 44 Heuuning 10 HeiuieHsy 8, 313, 320 Hertfordshire 15 Heustis 10, 17 Hibl)ert 248 Hicklin 303, 321,334 Higgins 52, 3M Highani 103 Hillnian 250 Holison 340 Hoggard 128, 401 Holloway 355 Howarth 317 R V R V R v Rv Rv R v R V Rv Rv Rv Rv R v Rv Rv R v Rv R v R v Rv Rv Rv R V R V Rv R V Rv R V Rv Rv R V R V R V R\ R V Rv Rv R V R V Rv Rv Rv R V Rv Rv Rv R \ Rv Rv Rv Rv Rv ' Rv R v PAOE Huber 334 Hughes 315 Hulcott 131 Humphreys 287 H untingdon 121 Hyde 127 Hynes.^ 252,353 Isaacs 250 Ingham 233 Ion 298 Jacobs 2(59 .James 37 Jarrald 274 Jarvis 27(5 .lerteries 125 Jenkins 272, 288 Johnson 121,127 Jones 53, 100 Joyce 299 Jukes 120,129, 387 Justices, itc 125, 147, 3(59 Kay 299 Keith 299 Kelly 349 Kenny 340 Kent 139 Kerr 308 Kesteren 233 Keyn 27 Kiddy 122 Kilham 317,319 King 253, 340,403, 407 Lancashire .. 142 Langbridge 40 Langley 352 Langmoad 340 Leeds 145 Lenni ix 100, 385 Leominster 140 Lovecijue 129, 3(50 Lewis 280 Light 2(52 Lincolnshire 140, 141 Liston 121 Littlechild 99 Liverpool .... 1 46 Loci- 261 Lockott 290 Loudon 114 Lougee 160 Lowenbruck 310 Lumley 2(59,270 Lynch 253 TABLE OF CASES CITED. XV PAUE 1 R V Lyon 258 R v R V Mahey 132, 277 R v R V Madden 2(59, 287, 302 R v R V Mailloux 350 R v li V Maiicliuster 140 R v R V Manning 258, 328 R v Rv March 258 R v R V Martin 293, 317, 330 R v R V Mason 100, 277, 330, 393 R v R vMay 279 R v R V Merionoth 145 R v R V Meyer 15 H v R V Meyers 334 R v Rv Middlesex 141 K v R V aiiddleton 31 1, 313 R v Rv Miller 41 Rv Rv Mills 317 R V R V Milne 27, 97, 157 R v R V Mondelet 249 R v R v Mopsey 299 R v R v Murris 2(14 R v R V Morton 57 R v R V Mosier 1 , 55 R v H v Mnllady 54 R v R V xMumo 197 R v R V Murphy 52 Rv R V Murray 309 R v R V Mussett 20. 21 R v R V Mutters 310 R v R V M'Cann 30t' R v R v M'Cathey 340 R v R V M'C.innell 114, 3!>5 R v R V McD(jnaId 2!»1, 2!)7, 29H, 351 R v R V McDowell 331 U v li V McGrath 254, 311, 312 R v 11 V McCireavy 293 R v R V Mcintosh 33(i R v R V Mclntyre 15 R v II V McMahon 253 R v Rv McMillan 105 R v R V Nash 298 K v R V Nasmith 301 Rv R V Naylor 317 R v R vNejius 315 R v R V Nichol 139, 158 R v R V North 99 R. v R v Nottl 129 R V R V Nuunely 20 R v R V O'Leary .... 131, 134, 202, 203 R v R V Olitier 248 R v R V Osier 128 R v R V Oulton 306 i K v R vOver 120 I PAGE Oxford 139, 307 ( )xford8hire 233 P.ih-niah-gay 289' Pain 127 Paris 334 Parker 39 Parlee 408 Parnell 355 Patchett 120 Patenian 290 Paton 390 Paynter 233 Pearson 200 Penihleton 327 Percy 233 Perkins 100 Phelps 250 Philpot 275 Pickfurd 330 Pdultun 332 Prince.. 248, 311, 313, 318, 319 Pratten 99 Rainsford 353 Hand 15 Reardon Md Redman 329, 330 Reed 303 Heopelle 300 Rice 198, 334 Richards 39, 121,342 Ridgway 318 Rinaldi 298 l{itchie 48 Kitson 290 Roberts 123, 270 Roliertsou 255, 331 Uobin.son.... 204, 317, 329, 330 Roddy 405 Unss 128 Row Roy 279 |{us8oll 150 Sadler . . 127 Salop 145 San.siinie . ... 40 Sitchwell 259 Saunders 51, 135, 303 Scaifr 40, 54 Scliuiidt 345 Scott 17, 18, 129,309 Sharpe 27, 337 Hhiiw..23, 51, 105, 125, 127, 259, 202 XVI TABLE OF CASES CITED. PA Rv Shickle 310 R V Simmons 15, 155 R V Shrcjpsliire 235 R V Slaven 373 R V Shiviii 252, 253, 341 R V Sleep 278 R V Smitli . . .102, 107, 12!), 261 , 270, 330, 330, 345, 340 R vSmyth 2!)4 R V Suiiler 30(j, 3(i6, 380 R V Somersetsliire 10 R V Spackmau 120 R V Spanner 273 R V Spencer . . 316 R vStailord 405 R V Staffordshire 140, 145 R vSt. Albans 40, 140 RvStannard 108 R V Steel 3(K> R. V Stephenson 40 R V Stevenson 41 R V Stokes 307 RvSt. Paul 131 R V Strachan.127, 300, 394, 3U5, 400, 401, 404, 400 R,v Stripp 38 Rv Surrey 15 R V Sutton 330, 38() RvTatlock 252 R V Taylor 200, 342, 07 R vThallman 303 R V Thomas 270, 300 R V Thomson 287,288 R vThurborn 311 R v Tinning 354 R v Tisdale 201, 341 R vTudd 130 R v Toronti) Street Railway Co. 300 R V Tijtnesa 131 RvTownley 309, 311 R vTubboe 20t R vTuke 30(1 R v Turner 120, 278,40!i R v Treuiai-then 355 R v Vamlerstein 200 R v Vincent 348 R v Voko 200 R V Wagstattb 333 R V Wakefield 247 R V Walker 121, 204, 300 PAOE Rv Walton 330 R v Warburton 279 Rv Ward 334 R V Wartman 5 Rv Watts 38,30,40 R V Webster 10,305 R V Weeks 276 RvVVelch 327 R V Wenmouth 273 Rv West 140 Rv Westley 265 R v White. 3, 128, 274, 346. 386, 388 R V Whitmash 353 Rv Wield 129 Rv Wiley 345 Rv Wilkes 136 R V Williams 120, 278, 202, 330, 301 R v Wilson 240,293 Rv Wo(.dhall 312 Rv. W..rtman 127 R V Yarringt(jn 351 R V Yeomans 150 R V York 140 Ranney (jt. v Jones 153 Rawlins v Ellis 29 Ratt v Parkinson 229 Rawnsley v Hutchinson 142 Read v Toker 236 Reeve v \\\ lod 300 Renl V McWlunnie.127, 133, 304, 402, 404 Reynolds v Durnf < ird 395 Roberts v Egerton 261 Robinson, Re 51 Rockwell V Murray - . 266 Ross, Re 365 Russell V Lh)yd 294 Sandiman v Breach 363 "Scotia," The 230 Scott V I)ickHon 141 Scott V Henderson 323 Scott V Stanstield 19 Selmes v .1 udge 236 Selwood V Mount 130, 145 Shaw v Morloy 268 Shea V Choate 329 Slater, Re 197 Simkin, Ex parte 141 Small V G T Railway 334 Smith, Re 132, 142, 296 Smith V Evans ; 26 Smith V Simmons 244 TABLE OF CASKS CITKH. xvn l«J7 j41 [Yii 25 2U PAOK Smith V Sparrow 353 Smyth V McDonald '624 Siiillane v Wilton 150 Sprung V Andorsun. . 226, 227, 228, 231, 240 Squier Strickland v Ward 241 Sunnier v IMonayle 237 Sweitnian v Guest 115 Switzer, Re 202 Taylor v Fenwick 239 Taylor v M.irahall 403 Tempest v Chambers 25 Thomas v Piatt 337 Thompson, Ex parte 200 Thompson, Re 67, 204 Thompson v Durnford 99 Thorpe v Oliver 230 Topeneo v Martin 277 Trigerson v Hoard 118 Trowley, Ex parte 150 Turner v Postmaster-General 100, 101 Upper V McFarland 238 I"A(!R Wakefield v West Riding .. 15, 1(»5 \N asliingtoii v Young 305 Watkins, Ex parte 145 Watkins v Major 21 Watson v Foiirnier 234 Wafaun v Toronto G A W Co . . 334 Watts, l{e 146 Weaver v Price 20 WY'hl.'s Case 303 Wemyss v Ho]ikins 203 West V Small wood 22(5 Westhrook v. ('alaghan 2r>4 Whelim V Stevens 117, 230 White v Feast 21 Wliittier V Dihlee 229, 248 Whitter v Frankland 30 Wilkinson v Dntton 20(» WiJkins v Hemsworth 131 Williams, Ex parte 362 Williams, Ke 103 Williams V Adams 20 Willis V Hridger 355 Wils.m, Re 140 Wilson V (irayl)iel 130, 402 Wilson V Stewart 110 Wood, Ex parte 100 Woodhoiise, Ex parte 385 Wray v Toke 395 Young V Higgon 235 tl.( till On fit; ate con itie sue hLsc Pax 72, his olijr siiii] pow I'iot' feloi iiior vvhic stati Q B. (Ont.), 288. The mere appointment as Justice will not authorize the peri-on 2 MAGISTRATES MANUAL. apjiointed to act, until he has duly qualified. But if any ))erson act as a Justice of the Peace without being qualified, his acts are not invalid ; his name being in the Coniniission, and lie being therefore a Jiistice of the Peace (Margnte, P. v. Honnari, ti B. & A., 2G6) ; but he is liable to a penalty of one hundred dollars. Rev. Stat. (Ont.}, chap. 71, s. 12. Under the Con. Stat. Can , chap. 100, s. 3 ; Rev. Stat. (Ont.), chap. 71, s. 7, a Justice must have an interest in land in his actual possession to the value of 81,200. But thi.s statute does not re- q\iire him t(j have a legal estate in the property ; it is sufficicmt if the land, though mortgaged in fee, exceeds by 81,200 the amount of the mortgage money. Fvdser q.t., v. McKemie, 28 Q. B. (Ont.), 2.55. The object of the statute, as to the qualification of Justices of the Peace, was twofold : first, that the Justices should be of the UKjst sufficient persons ; secondly, that they should be wortli in unencumbered real estate to the value of 81,200, at least, to satisfy any one who should lie wronged by their proceedings. In an action against defendant for acting as a Justice of the Peace with- (lut sufficient property qualification, where the evidence offered by tlie plaintiff as to the value of the land and premises on which defendant (jualified, was vague, speculative^ and inconclusive, one of the witnesses, in fact, having afterwards recalled his testimony as to the value of a portion of the premises, and placed a higher estimate upon it ; while the evidence tendered by the defendant was positive, and based upon tangible data, it was held that the jury were rightly directed, " that they ought to be fully .satisfied as to the value of the defendant's property before finding for the plaintiff, that they should not weigh the matter in scales too nicely balanced, and that any reasonable doubt should be in favour of tlie defendant." Hquier, q.t. v. \Vihy Dcdiinw* Potestctnn, to administer oaths and declarations, and it confirms such oatlis so taken, and indem- nities the Justice from all penalties and fc'-foitures in respect thereof. The Act also prescribes before w],om oaths shall here- after be taken. The oath of ([ualiiication is as follows : — " 1, A.B., do swear that I, truly and ho)Hi fide, have to and for my own proper use and benefit, such an estate as (qualifies me to act as a Justice of the Peace for the county {or as the vase may be) of , according to the true intent and meaning of the Act re.specting the (jualification and a]»}»ointment of Justices of the Peace to wit (nature of such estate, whether land, and if land designatinfj), and that the same is lying and being (or i.ssuingout of lands, tenements, and hereditaments situate), within the Town- ship (or in the several Townships, or as the case may be) of . So help me God." A certificate of .such oath is then to be deposited in the office of the Clerk of the Peace for the County. Rev. Stat. (Ont.), chap. 71. s. 9. A certificate purporting to be under the hand and seal of tlie Clerk of the Peace, that he did not find in his office any qualifi- cation filed by the Magistrate, is not sufficient evidence that the Magistrate is not pro])erly qualified to take a recognizance. ]{. v. White, 21 C. P. (Ont.) 854. A person assuming to act as a Justice of the Peace, not under anv commission as a Justice, but as an Aldermati of .a citv, is not as such Alderman legally qualified to act as a Justice until he has taken the oath of qualification required byTthe Municipal Acts Rev. Stat. (Ont.) chap. 174 (R. w.Jioyle, 4 C. L. J., N. S. 256 ; 4 P. R. (Ont.) 256). But having taken such oath^he is not required to have any ad- MAGISTRATES MANUAL. ditional property qualification or to takt^ any further oath to en- able hiui to act as a Justice of the Peace. Rev. Stat. (Ont.) chap. 174, s. 307. As to tlie «jualificati<>n of Mayors, Reeves, Aldermen, kc, see Rev. Stat. (Ont.) chaj). 174, s. 70. No Attorney or Solicitor in any Court whatever sliall he a Justice of the Peace durini^ the time he continues to practise as an Attorney and Solicitor. Rev. Stat. fOnt.) chap. 71, s. 5. No per-- son having', using oi- exercising the ottice of Sheiifl" or Coroner, shall he competent or . s. G. The Statute 1st Mary, sess. 2, chaj). S, s. 2, which provides that no person exercising tlie otHce of Shi-riti' of any county shall use or exercise the office of Justice of the Peace by force of any com- mission or otlierwi.se in any county where he shall be Sheriff, (hn*- infif the time of liis exerci.sing the office of Shoiirt', has not l)een affected by any .subsecjuent ad in due form an.) It is necessary that the number of Justices required by the Act or law on which the information or complaint is framed, should INTRODUCTORY CHAPTER. ft hoar and decide the case, hut in the ahsence of any provision in the Act or law on which thi' procoedinfjs are founded, recjuiring two or more Justices, then one Justice may hear, try, and deter- mine tlie case. 82 & 33 Vic, chap. 31, ss. 27 & 28. In the case of a person charij<'d with felony one Justice cannot admit to bail. 32 .V ;i3 Vie., chap. 30, s. 52. Under tlie (yonnni.ssion of the Peace, Justices have a general power for conservation of the peace and the apprehension and conniiitment of felons. The commission gives them jurisdiction in all indictahle offences to discharge, admit to bail, or commit for trial. Connors v. DarUmj, 23 Q. B. (Ont.) 543. The maxim omnia pne>mmuntur rife esfie actu does not apply to give jurisdiction to Justices or other inferior tribunals. R. v. Atkin>^o)t, 17 C. P. (Ont.) 302. On this principle in a pro.secu- tion for a penalty under a by-law of a corporation, the by-law nuist be proved, for it nnist a])pear on the face of the ])roceedii that there is jurisdiction. M. v. Wartman, 4 Allen, 73 ; h. :. All Saints, 7 B.kC.7H5. Before proceeding in any matter the Justice should consider 1st, whether he has jurisdiction — this is given l)y his con.»mis- sion, or by the particular statute under which the proceedings are taken ; 2nd, If more than one,or an\- particular description of Justice is recpiired. In indictalde cases one Justice may do everything reipiired to be done out of sessionsi except admit to bail. (8ee section 52 of 32 cVr 33 Vic, chap. 30.) In summary l)roceedings one Justice may receive the information and issue the summons, oi- warrant and process for enforcing judgment, even when the statute recjuires the case to be heard by more than one Justice. (32 c*c 83, Vie., chap. 31, s. Ho.) 3rd, Whether a time is liuiited for any of the proceedings. In indictable cases, with very few exceptions, there is none. In sunnuary cases the in- formation must be laid within three month'^ (See 32 v^' 33 Vic, chap. 31, s. 20.) In general the authority of Justices is limited to the district for which they are appointed, and they can only exercise their powers while they are themselves within that district, for their authority is local rather than personal, but it seems that acts purely 6 MAGISTBATES MANUAL. ministerial, such as receiving informations, taking recognizances, &c., may be done elsewhere, though anything founding proceed- ings of a penal nature, and any coercive or judicial act is utterly void unless done within the district. Dalton, c. 2.5 ; see Xev:- hold V. Coltman, 6 Exch. 189. A Justice's jurisdiction is limited to the county or place for which he is appointed, and to give him jurisdiction the oHence must be committed in that county or place, and the offender must resido there, or if not so coi.unitted the offender must reside or be in such county or place. (32 & 33 Vic, chap. 30, s. 1 ; lb., chap. 31, s. 1. The Imperial Statute (28 Geo. 3, chap. 49, s. 4) enabling Jus- tices of the Peace for counties at large to act as such within any city being a county of itself, situate therein or adjoining such county, is local in its character and is not in force in this Pro- vince. Therefore, in the case of a felony committed in a county, Justices of the Peace of that county have no jurisdiction to ad- minister oaths or examine witnesses in a city within the comity in relation to that felony so connuitted outside of the city limits. R. v. Mow, U G. P. (Ont.) 307. See also Hunt v. McArtlno', 24 Q. B. (Ont.), 254. By the 32 & 33 Vic, chap. 29, s. 8, where a felony or misde- meanor is committed on the boundary of two or more districts, counties or places, or within the distance of one mile of any such boundary, or in any place witli resp(!et to which it may be uncer- tain within which of two or more districts, counties or places it is situate, or when any felony or misdi'meanor is Viegun in one district, county or jdace, and completed in anotlier, evei-y such felony oi- misdemeanoi' may be dealt with, in([nired of, tried, determined and punished in any one of the said dis- tricts, counties or places, in the snme inaiuuT as if it had been act\uillyand wholly connuitted therein. By .secti(«u 9, when any felony or misdemeanor is committed on any persim, oi on or in respect of any ])i'operty in or upon any coach, waggon, cait, or other carriage whatever, employed in any journey, or is com- mitted on any person, or on or in respect of any jiropertv on board any vessel, boat or raft whatever, employed in any voyage; INTRODUf'TORV CHAPTER. or journey'^upon any navigable river, canal, or inland navigation, such felony or misdemeanor may be dealt with, inquired of, tried, determlneiV and i)uiuslied in any district, county, or place, through any |)art whereof sucli coach, waggon, cart, carriage or raft passed in the course of the journey or voyage during which such felony or misdemeanor was committe(l, in the same manner as if it had been actuallv committed in such district, countv or place. And by section 10, in all cases where the side, centre, bank, or other part of any highway, or of any i-iver, canal, or navigation, constitutes tl;e l)oundary of any two districts, counties, or places, any felony or misdemeanor mentioned in the two last preceding sections may be dealt with, inijuirod of, tried, detenuijied, and punishen to try the principal felony, or any felonies com- mitted in any place in which .8 act, by reason whereof such person shall have become such accessory, has been committ\ Yic, chap. 17, s. 2, repi'aled so much of the abovi^ section as related to felonies not wholly committed in Canada, and to persons accessories to such feloiues. Under the 32 k 33 V^ic, chap. 21, s. 121, persons liaving in their possession in any part of (Janada, [)i'o[)erty stolen in another |tarf, may be tried and dealt with wlu're tlu-y have the property; and under s. 112, where a party has in his j)oss(\ssion in (,'ana. In foi'geiy, the offender, whether pi'iiuupal or accessory, may be tried in the county or place where he is apprehended or is in cus- tody. 32 iS: 33 Vic, chap. 19, s. 48. In tin; cases, also, of bigamy and perjury, the offender may l)e tried and punished in the county or place where lu> is apprehended or is in cnstody. 32 \' 33 Vic, cliap. 20, s. 58; 32 \- 33 Vic, chap. 23, s. 8; 33 Vic, ehaj). 2<;,s.3. As to kidnapping, see 32 i^- 33 Vic diap. 20, s. 71. See section 4 of the 31 Vic, chap. 14, as to the venui^ under the Act to protect tlie inhabitants of (^anaila against lawless aggres- INTRODUf'TOHY CHAPTER. 9 sions. St-'e s(;ction 88 of the 31 Vic, chap. 10, as to the venue in the case of otfences against the Act for the regulation of the postal .service. See section 100 of the 40 Vic, chap. 10, as to customs otfences. It is to be observed that under the Interpretation Act, 31 Vic, chap. 1, s. 7, twenty -fifthly, if anything is directed to be done by or ])efore a magistrate or a Justice of the Peace, or other public functionary or otficer, it shall be done by or before one v/hose jurisdiction or jiowors extend to the place where such thing is to be done. As the words, " dealt with, in(|uired of, tried, determined, and pvuiished," fre([uently occur in the statutes, it may be observed that the words, " dealt with," ajtpiy to justices of the peace ; "in- (piired of," to the (band Jury; " tried," to the Petty Juiy ; and "determined and pvnii.shed," to the Court. R. v. Ruck, 1 Ru.ssell. 757. note y. In all cases the first otheial step to be taken by the Justice is to receive an information or complaint in writing jmd upon oath generally, from a ciedible person, that an offence has been com- mitted within his jurisdiction, such information or compliiint stating as near as may be, the vrnnc of the ofnuler (if known), the nature of the offhicc, the person l(ia' vhre the said offence was perpetrated. Although the statutory form of iuf'ornuition given by the '\'l & 83 Vic, chap. 30, schedule A, does not contain a prayer for the issue of a sunnnons or warrant, it is u.sual after the statement of the offence to add, " and tlu' said informant prays that a wai'- rant may issue to apprehend the said A. P>., and to cause him to be brought before the said .lustice, or .ucli other Justice as may then ]n\ tliei'c ; or that a siniunons may issue recjuiring the said A. B. to appear Itefore tlie sai .^2 & 33 Vic, chap. 30, s. 31. In the case of sunnnary convictions the defendant has a right to give evidence both of himself and witnesses. 32 ic 33 Vic, chap. 31, s. 39. The evidence should be taken down in writing, (see R. v. Flanni- gan 32 Q. B. (Ont.) .593, 59!),) as near as may be in the words of the witnesses ; the evidence of each to l)e signed l>y him, as also by the Justice or presiding Justice Before the witness signs the evidence he has given, it should hv read over to him, to ascertain whether it has been correctly taken down, or that his right mean- ing has been expressed: any mistake should be corrected befori' he signs it. If the Justice should see any good cau.se for so doing, he may adjourn the hearing of the case to some futuie dav , and in the meantime commit the defendant to the comnujii gaol, oi- may discharge him, upon his en 'I'ing into a recognizance, with or without sureties, for his ai)pearance at the time appointed. 32 vV 33 Vic, chap. 31, ss. 22 \: +(>. Peisons eluugcil with indictalilf ofle!!cs may be I'cmandcd ly warrant from time to time foi- any period not exceeding eight days at any oni; lime, or uuiy be verbally i-enumded for any time not excee j)roceedings should be coui- ;i'U '',' novo unless the parties elioo.se to waivtt the objection. /''•„. -7< or, 34 J. P. 727. The chairman or presiding Justict' may >'.'ve ''■^ "•' is not entitled to a doiihle or i-asting vote. If the Justices a,i'(* ('(jually divided in opinion, there should hi' no adjudi- INTRODUCTORY CHAPTER. 13 cation, but th(5 Justices shouM adjourn tht,' case to a futuiT ut retired from the hench before the other Justices came to the vote, tlie Court helil that it invalidated the decision. R. v. Herffonlsliire, 6 Q.B. 753. But wliere the Magistrate did not know, and from the nature of tlie proceedings coukl not know that lie was interested in the matter, this rule has been holden not to apply. li. v. Snr- rey, '1\ L. J. M. (J. 1J>5. Tf the Justice is interested, it is immaterial that he takes no j)art in the matter. If there is a disqualifying interest, the Jus- tice should not sit in the case, and the Court will not enter into the question as to whether his interest ati'ected the decision. A disqualifying interest is not confined to peciniiary interest, but the interest if not pecuniary indst be sulistantial. Pecuniary interest, however small, disqualifies the Justice, so tloes real bias in favour of one of the parties ; but the mere possibility of bias does not ipso facto avoid the Justice's decision, li. v. Meyer, L. R., 1 Q. B. D. 173 ; R. v. Raiul, L. R. 1 Q. B. 280-3. If the Justice is interested in the pi-osecixtion, as where he is a member of a Division of the Sons of Tenq)erance, by which a prosecution for selling li(pior is carritMl on, he is inconq)etent to try the case, and a conviction before him is bad. R. v. Sinw)ovs, 1 Pugshy^ 150. An attachment has been granted against Commissioners of a Court of Re(}uests, for trying causes in which they were inter- ested, though the interest was remote. R. v. Mclntyve, Taylor, 22. On a])plicati()n for a certiorari to quash an order or convicti(jn for interest in the Justices, it should clearly appear that the appli- cant did not know of such interest, .and did not aequicset in the jurisdiction. Kv parte I/cheMer, 25 J. P., 5(5, Woh'jichl v. Wixf RiiViiig, 35, L. J., M. C, 09. If any person assault a Justice, the latter might, at the time of the assault, order him into custody, but when the act is over, and time intervenes, so that there is no pivsent disturbance, it be- comes, like any other offence, a matter to be dealt with upon pro- per complaint upon oath to some other Justice, who might issue his warrant, for a magistrate is not allowed to act officially in his own case, except Jin, Doug. 42(i ; R. v. Somn'set.shin', 1 J). & R. 442. The misconduct nuist have arisen in connection with liis public duties. R. v. Arrowsniith, 2 Dowl., N. S. 704. And when' a crimi- nal information is applied for against a magistrate for improperly convicting a person of an offence the Court will not entertain the motion, however Ijad the conduct of the magistrate may ap- pear, imless the party applying- make oatli that he is not really guilty of the offence of which he was convicted. R. v. W/'hsfcr, •ST. R., 888. And indeed in all cases of an application for a crimi- nal information against a uiagistrate for anything done l)y hiui in the exercise of the duties of his otlice, the (piestion has always I leen not wliether the act done might, upon a full and mature in- vestigation, be found strictly right, but from what motive it hail proceeded, whether from a dishonest, oppressive or coiTupt uiotive, or from mistake or erroi', in the former case alone they have be- come the oojects of punishment, li. v. Bvown, 3 B. & Aid., 432-4. It is to be observed that the 32 \:; 33 Vic, chap. 31, s. 82, does not pri'vent the [)rosecution i)y indictment of a Justice of the Peace for any offence, the commission of which would subject him to indictment at the time of the coming into force of this Act. No a))plication can be made against a Justice for anything done in the execution oi his office without previous notice. R. v. Hevi- Ing, ') B. & A. (Kid. The Justice is entitled to six days' notice of motion for a criminal infornuition. R. v. Jlevstis, 1 James 10 1 ; /il(.^ BitKtard V. Schojleld, 4 0. S. 11. The affidavit in supi)ort of the motion should not be entitled in a suit pending {ib). Where the notice is to answer the application within foui- days INTRODUCTORY CHAPTRR. 17 after the service of the notice, it will not sufiice, though the motion is not actually made until the six days have expired. The application must not (when the misconduct occurs before the term) be made so late in the term that the magistrate cannot answer it the same term, because the pendency of snch a motion might affect his influence as magistrate in the meantime. R. v. licii.stis, 1 James, 101. Justices of the Peace acting judicially, in a proceeding in which tlitv have power to fine and imprison, are Judges of Record, and have jiowei- to commit to prison orally without warrant for contempt committed in the face of the Court. Arrdstrowj v. Mc- (Mfrcii, 1 Hannay, 517 ; Ovens v. Taylor, IJ) O.P. (Ont.), 53. Thus if the Ju.stice be called "a rascal and a dirty mean dog," "a damned lousy .scoundrel," "a confounded ; Giujy v. Kerr, Stuart, 292 ; Garner V. Coleman, 10 C.P. (Ont.), lOG ; Agneiv v. Steivaii, 21 Q.B. (Ont.), 306. And from the opinion of the Court in Garner v. Cole- man, supra, and Scott v. Stansjield, L. R. 3 Ex., 320 ; 18 L. T. N. S., 572 ; it would seem that no action at law can be maintained against a Judge of a Court of Record for anything done in his judicial capacity though there is malice and a want of reasonable and probable cause. The Coui-t do not say that the Judge is not amenable to punishment by impeachment in Parliament, but seem ilisposed to protect him from an action before a Jury. The gene- ral rule is that a Justice like other Judges is not liable for any mistake or error of judgment, or for anything he does judicially when acting within his jurisdiction, though he may be wrong. Garvoit V. Farrand, B. & C, Gil ; Mills v. Collett, G Bing., 8.5. Where a Justice of the Peace acts judicially in a matter in which by law he has jurisdiction, and his proceedings appear to be good upon the face of them, no action will lie against him or if an action be brought the proceedings themselves will be a sutH- cient justification. See Brittain v. Kinnaird, 1 Brod. & B., 432 ; Fc wcett V. Fowles, 7 B. & C, 394. If, therefore, an action of tres- pass be brought against magistrates for convicting a person and causing him to be imprisoned in a case where the magistrate had jurisdiction, the plaintiff must be non-suited if a valid and sub- sisting conviction be adduced and proved. Stamp v. Siveetland, 14 L. J. M.C., 184 ; Mould v. Williams, o Q.B., 409 ; or,if the con- viction has been quashed, then case, not trespass, is the form of action that ought to be adopted. Baylis v. Strickland, 1 Man & Gr., 59. All this is now fully declared in Ontario, by the Rev. Stat. chap. 73, s. 1, et seq., see notes to this Statute, post. What we have hitherto been considering have been actions 20 MAGISTRATES MANUAL. against Justices for something done by them in thoir judicial character. For what they do in their ministerial character with- out reference to their judicial authority, their j)ower of justifying will (U'i)end in a great measure upon the legality of the proceed- ings upon which these acts are founded, see Weaver v. Price, 3 B. & Ad., 409. Thus, if the Ju.stice exceeds the authority the law gives him in his ministerial acts, he thereby subjects Jiim.self to an action as if he commit a prisoner for re-examination for an un- rea.sonal»le time, although he do so from no improper motive, he is liable to an action foi' false imprisonment. Davis v. Capper, 1^^ B. vV- C, 28. So if he couuuit a man for a supposed crime where there has in fact been no accusation against him. he is liable to an action of tresjmss for false imprisonment (Morgan v. HiKjhex, 2 T. R.,22o) ; but if he commit him foi' a reasonable time, although the statute under which he is acting gives him no authority to do .so, he is not liable to an action, for authoiity so to conuiiit is given to Justices. 82 k 33 Vic, chap. 30, s. 47 ; Gelan v. Hall, 27 L. J. M.C., 78 ; Haylock v. Sparke, 4 E. & B., 471 ; Livford \.FUzro>/, 13Q.B.,240. When property or title is in question, the jurisdiction of Justices of the Peace to hear and determine in a sununaiy manner is ousted, and when a bona fide claim is made the Justices have no jurisdiction and ought not to convict. R. v. Cridhind, 7 E. fc B., H.kS. It is not .suthcient to take away their'jurisdiction that the defendant hova fide l)elieved that he l)ad a right, it i > for the Justices to decide, if the claim of right is fair and reasonaltle, and if they h'>ld that it is not, they aie bound to go on and
  • ut if the matter is doul»tful, it will Ite enough to stop their proceedings, and they cannot give themselves jurisdiction by a False decision. R. v. Nidineli/, E. B. & E., 852. But although as a rule Justices have no j)ower to emiuire into a case iTivolving i) title to real property yet, when the title is itself the (piestion which they have to decide, their jin'isdiction remains. Wiltlnmn V. Adams', 2 H. .V S., 312. A ho)i the appi'ehension of the offender at any place In CJanada, out of the nuisdiction of tlie^Justice i.ssuing the warrant (see section 23). The form of infoi'ination given in the .schedule to this Act does not contain any statement of the oO'ence. The author has, there- foif su|>plemente(l the l''orii\ A, with statements of offences in ditlerent cases. As we have already .seen, the Infoiiiiation should also contaiii a j)rayer for the issue of a siunmons or warrant. The information need not bo written on parchment, nor does it reijuire 24 MAGISTRATES MANUAL, the statement of any venue in the body thereof, but the district, county, or place named in the margin thereof, shall be the venue for all the facts stated in the body of the information. Where it is necessary to state the ownership of property lie- longing to partners'in trade, joint tenants, parceners, or tenants in common, it is sufKcient to name one of such persons, and to state the ])roperty to belong to the person so named and another or others, as the case may be. See R. v. Cavanagh, 27 C. P. (Ont.), o37 ; 32 & 33 Vic, chap. 29, .ss. 13, 15, 17. As to the descrip- tion of property in the information in diiferent cases, and when it is unnecessary to lay it in any person, see 32 & 33 Vic, chap. 29, ss. 19-22. The information is not to be held insufficient for want of the averment of any matter unnecessary to be proved, nor for the omission of the words, " as appears upon the record," or " as appears by the record ;" or of the words, " with force and arms ;" or of the words, " against the peace ; " or for the insertion of the words, " against the form of tlie statute," instead of the wor<:ls, " against the form of the statutes," or vice versa, or for tiie omis- sion of such words, or for the want of an addition, or for an imperfect addition of any person mentioned in the information, oi- for tilt any person mentioned in the information is designated by a name of office or other descriptive appellation instead of his proper name ; or for omitting to static the time at which the otience was committed, in any case where time is not of the essence of the olfence, or for stating the time imperfectly, or for stating the offence to have been committed on a day subsequent to the laying of the informati(jn, or on an impossil)le day, or on a day that never happened, or for want of a proper or perfect venue, or for want of a projier or formal conclusion, or for want of or imperfection in the addition of any defendant, or for want of the statement of tlu^ value or price of any matter oi' thing or the amount of damage, injury, or spoil, in any case where the value or price, or the amount of damage, injury, or spoil is not of the essence of the ortence. 32 & 33 V., chap. 29, s. 23. Section 24 provides :— Whenever it is necessary to make an averment in an informa- tion as to any instrument, whether the same consists wholly or in INDICTABLE OFFENCES. 25 part of writing, print or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or fac-siinile of the whole or of any part thereof. Section 25 provides : Whenever in any information it is necessary to make an averment as to any money or to any note of any bank, or Dominion or Provincial note, it shall be sufficient to de- scribe such money or note simply as money, without any allega- tion (so far as regards the description of the property), specifying any particular coin oi- note, and such averment shall be sustained by proof of any amount of coin, or of any such note, although the particular species of coin of which such amount was composed, or the particular nature of the note be not proved. See Ji v. Cavanagh, 27 C. P. (Ont.), o:37 ; as to infoi-mations for otfenei's committed after a previous conviction, see 32 ^ 88 Vic, chap. 29, s. 26. Informations before Magistrates must be taken as nearly as pos- sible in the language used by the party complaining. See Cohnt v. Moiyan, (i D. & R., 8 ; ^fcXdlifi v. Garfkskove, 2 C. P. (Ont.), 404. If by reasonal)le intendment the int'ormation can be reatl as liis- closing a ci'iminal ott'ence, the rule is so to read it. See Lavrtn- 8071V. Hill, 10 Ir. C. L. R., 177. An information charging the plaintitl' with having unlawful 1\ taken away a pair of shvitters belonging to the plaintiff, and hav- ing converted the same to his own use against the form c^f the statute, does not charge a felony. Tempct^f v. Chainhern, 1 Staik., 07. An information charging that the plaintiff did "abstract fVnm the table in the house of John Kvans, a pa[ter being a valunlile security for money," does not charge a felony. Sm'itk v. I'Jruits, 13 C. P. (Ont.), 00. An information that " the said Kllen Kennedy has the key of a house in her j)ossession, the property of the complainant, iind would not give it u[)" to the complainant's agent, contains nothing which by reasonable intendment can be construed as chaigiug criminality. Lawrenson v. Hill, 10 Ir. C. L. K., 177. 20 MAGISTRATES MANUAL. An information which stated that A. B. had neglected to re- turn a gun which had been lent to him, and for which he had been repeatedly asked, was not construed as charging criminality. McDonald v. Bulwer, 11 L. T, N. S., 27. If the information discloses no offence in law, it will not authorize the issue of a warrant by a magistrate as thei'e is no- thing to found the magistrate's jurisdiction. Stephens v. Ste})hens, 24 C. P. (Ont.), 424. The warrant mentioned in this section must be under the hand and seal of the Justice, and directed as in form B. It may be issued on a Sunday as well as on any other day. See section 8. The information mu^'i • ' be in writing and on oath when it is intended to issue a \"i. : M, ' the first instance. Friel v. Fergu- son, 15 C. P. (Ont.), .>o^. i-joe sec. 9, as to the cases in which a warrant may issue in *ho first in.-tance. See sec. 27. The warrant of a magi.sl, '■e i;-:.y2>rn7U( /rtcie, not conclusive, evidence of its contents, and thoug.i a .varrant recites the laying of an information, and though in an action against the magistrate it is put in on belialf of the plaintiff, still the recital of the infor- mation is not conclusive, and evidence may be given to show that such information was not in fact laid. Friel v. Fenjuson, 15 C. P. (Ont.), 5.S4. 2. In nil cases the Justice or Justices to whom the charge or c>)nipliiint is preferred, iiiBtead of issuing in the first instance liis or their wa'rant to ap- preliend the pei'.soii charged or complained against, may, if he or they think tit. issiie his or their sininnons (C) directed to such i)erson, requiring him to ai^iear before tlie .Justice or Ju;^tices, at tlie time and place to be thei'ein mentioned, or before such other Justice or Justices of the same Territorial Division as may then bo there, and if, after being served with the summons in manner hereinafter uuiutioned, he fails to appear at such time and place, in obedience to such suuunons, the Justice or Justices, or any other Justice or Justices of the Peace for the same Territorial Divisicui, may issue his or tbfir warrant (D) to apiirehend the person so charged or complaineil against, and cause such ijcrson to bo brought l)ef(U'e him or them, orb(>fore some other Justice or Justices of the Peace for the same Territorial Division to answer to the chai-ge or complaint, and to bo further dealt with according to law ; but any Justice or Justices of the Peace may, if he or they see Ht, issue the warrant hereinbefore lirst mentioned, at any time before or after the time uientionert in the summons for the appearance of the accused party. INDICTABLE OFFENCES. 27 Under this section it would appear that the power to finally dispose of the ease does not belong exclusively to the Justice who issues the summons, though in this Act there is no provision similar to that contained in sections 85, 8G and 87 of the Act re- lating to summary convictions and orders, see R. v. Milne, 25 C. P. (Ont.), 04. 3. In all cases of indictable oflences committed on the high seas, or in any creek, harbour, haven or other place, in which the Admiralty of England have or claim to have jurisdiction, and in all cases of oflfences committed on land beyond tlie seas for which an indictment may he [)referred, or the offen- der may be arrested in Canada, any one or more Justice or Justices for .any Territorial Division in which any person charged with having committed, or being suspected to have connnitted any such otience, shall be or be suspected to be, may issue his or their warrant (D 2) to apprehend such person, to bi' dealt with as therein and hereby directed. The great inland lakes of Canada are within the Admiralty jurisdiction, and offences committed on them are as though com- mitted on the high seas, and therefore any magistrate of this Province has authority to incjuire into offences connnitted on said lakes, although in American waters. M. v. Sk(iri>, 5 P. R (Ont.), 1.S5. As to the jurisdiction of the Admiralty, see li. v. Keyn, L. R., 2 Ex. D., G3. See also on the above section, li. v. A'///r, L. R., 8 Q. B., 487. The Statute .']2 c^; 3.S Vic, chap. 21), s. VM), enacts, when any felony punishable under the laws of Canada iias been connnitted within the jui'isdiction of any (vourt of Admiralty in Canada, the same may be dealt with, incjuired of, tried, and determined in the same manner as any other felony committed within that jurisdic- tion. 4. In case an indictment be found by the lirand Jiuy in any Court of Crim- inal .(urisdiction, against any person thou at large, and wlielhtir such person liiis been bound by any recognizance to appear to answer to any such charge, or not, and in case such person has not apiJeared and pleaded to the indict- ment, the person who acts as Clerk of the Crown or Chief Clerk of such Court, whull, at any time at the end of the term or sittings of tlie Court at which tlie indictment has been foimd, upon application of the prosecutor, or of any per- 28 MAGISTRATES MANUAL. son on his belialf, and on payment of a fee of twenty cents, grant to such prosoctitor or person a certificate (F) of sucli indictment liaving been found ; and upon production of sucli Certificate to any Justice or Justices of the Peace for the Territorial Division in which the offence is in the indictment alleged to have been committed, or in which the person indicted resides, or is sup- posed or suspected to reside or be, such Justice or Justices shall issue Ins or their warrant (G) to apprehend the person so indicted, and to cause him to be L'ought y)efore such Justice or Justices, or any other Justice or Justices for the same Territorial Division, to be dealt with according to law. This certificate can only bo. obtained after the assizes or sessions, for during the assizes or sessions the prosecutor may obtain a Bench warrant (see section 17). But it is not only in cases where the ])rosecutor has omitted to apply for a Bench warrant during the assizes or sessions, but also where he has applied and got it, that this mode of obtaining a Justice's warrant to apprehend a party indicted may bo useful — for it may often happen that whilst the Bench warrant is in the possession of a constal)le in another county, or in a distant part of the same county, there maj'^ be an opportunity of ap])rehending the defendant in anothtj- part of the county or in another county. An indictment may be preferred for any offence, at the Court having jurisdiction to try it, without any preliminary intpiiry be- fore Justices, except in cases provided by the 32 k, H'i Vic, chap. 29, s. 28, as amended by the 40 V'ic, chaj). 2G. If the Justices l)efore whom any person is charged with an\' of the offences named in these statutes refuse to connnit, the prose- cutor, if he desire it, may enter into a recognizance to prefer an indictment for the offence ; and such recognizance, with tiie in- formation and depositions, if any, shall be returned to the Court in which the indictment is to be preferred. 32 & 33 Vic. chap. 2U, s. 29. The finding of an indictment in the cases menticmed in the fourth section of this Act, gives the Justice jurisdiction to issue his warrant to ap[)rehend the person against whom such indict- ment is found. 5. If the person be thereupon approliended and brought before any such JuBticti or Justices, such Justice or Justices, upon its being proved upon oath INDICTABLE OFFENCES. 20 or atHrmation bef or affirmed in manner aforesaid except only in cases where by some .\ct or law it is .specially proviiled that tlie inforniafiou and complaint may be i>y i>arole merely, and without any oath oralfirmation to suppiut i>r substan- tiate the same. .\ sunnuons issued under the 4 \:. ;'> \' ic, chaj). 2(i, for uiaii- ciiuis injuries to propeity, uiust be upon complaint under oath, /;./; purte Hook, 8 L. C. li, 4i)li. 30 MAGISTRATES MANUAL. 11. No objection shall be taken or allowed to any information and com- plaint for any alleged defect therein, in substance or in form, or for any vari- ance between it and the evidence adduced on the part of the prosecution, before the Justice or Justices who take the examination of the witnesses in that behalf. A man accused of crime before a magistrate, who raises no ob- jection to the form of the information, and is tried and convicted, is by the operation of this section much in the same position as a man indicted for crime who omits to demur to or quash the indict- ment, pleads not guilty, is tried and convicted. All defects apparent on the face of the information are waived. Gratvford v. Beattie, 39 Q. B. (Ont.), 28 ; R. v. Cavanmjh, 27 C. P. (Ont.), 537 ; 32 &L 33 Vic, chap. 29, s. 32. In R. v. Cavanagh, supra, it was held that an information for an offence punishable on summary conviction, might be amended ; and in Crawford v. Beattie, supra, it seemed to be assumed that the same course might be pursued in the case of an information for an indictable offence. On objec- tion, therefore, taken to an information, the magistrate may allow it to be amended in the same manner as an indictment under 32 & 33 Vic, chap. 29, s. 32 ; 'see also Re Conklin, 31 Q. B. (Ont.), IGO. This section was framed not only to meet the case of a variance between the information and the evidence (see Whittle v. Frank- land, 5 L. T., N. S., 039) ; but to cure defects in the information either in " substance or in form," where the evidence discloses an offence. But it does not enable the Justice to summon a person for one offence requiring a particular punishment, and without a fresh information, convict him of a different offence requiring a different punishment. Martin v. Pridgeon, 1 E. &; E., 778 ; R. v. Brkkhall, 10 L. T., N. S., 385. The plaintiff was brought before defendant and another magistrate on the 2nd of January, 1875, under a summons issued by defendant, on an information that he did on &c" obtain, by false pretences, from complainant, the sum of five dollars contiary to law," omitting the words " with intent to defraud," which, by the Statute 32 & 33 Vic, chap. 21, s. 93, is made pai-t of the offence. The plaintiff did not, when before the magistrate, pretend ignorance of the charge, or take any objection INDICTABLE OFFENCES. 31 to the information, and it was held that the defendant had juris- diction, for the information might, by intendment, be read, as charging the statutable offence, and if not, the plaintiff should have taken his objection before the magistrate, when the information might have been amended and re-sworn, and that he was pi-ecluded from raising it in this action. Cnnvford v. Beattie, iV.) Q. B. (Ont.),13. 12. If a credible witness proves upon oath (E 1) before a Justice of the Peace, that there is reasonable cause to suspect that any property whatsoever, on or with respect to which any larceny or felony has been coinmittetl, ia in any dwelling house, outhouse, garden, yard, croft or other place or places, the Justice may grant a Warrant (E 2) to search such dwelling house, garden, yard, croft or other place or places, for such property, and if the same, or any [tart thereof be then f(jund, to bring the same and the person or persons in whose possession such house or other place then is, before the Justice grant- ing the Warrant, or some other Justice for the same Territorial Division. By the Act respecting larceny and other similar offences, 32 to 33 Vic, chap. 21, s. 117, if any credible witness proves upon oath, before a Justice of the Peace, a reasonable cause to suspect that any person has in his possession, or in his premises, any property whatsoever, on or with respect to which any offence punishable, either upon indictment or upon summary conviction, by virtue of this Act has been committed, the Justice may grant a warrant to search for such property, as in the case of stolen goods. In cases of forgery, express provision is also made for the issue of a search warrant, 32 & 33 Vic. chap., 19, s. 53. So in the ease of larceny from mines, or of oi'es, minerals or quartz, a general search warrant may be issued by a Justice of the Peace as in the case of stolen goods, 32 & 33 Vic, chap. 21, s. 33. So in the case of making gunpowder, &;c., to commit offences, 32 & 33 Vic , chap. 22, s. 63. The party requiring a search warrant must go before a Justice of the Peace of the county or other jurisdiction where the pre- mises intended to be searched are situate, and make tmth of cir- cumstances, showing a reasonable ground for suspecting that the goods are upon these premises. He must also shew, upon oath, either that the goods v/ere stolen or that he has reason to suspect 32 MAGISTRATES MANUAL. tliiit they have heon stolen, for a positive oatli that a felony was fonunitUMJ, of jfoods, is not necessary to justify a niai,nstrate in grantin the sununons or warrant, the Court will order them to issue it. R. V. Adamson, L. R., 1 Q. B. D., 201. 1 1. Eveiy such Summons shall be served by a Constable or other Peace Otticor upon the person to whom it is directed, by delivering the same to the party personally, or if he cannot conveniently be met with, then by leaving the sjinie for him with some person at his last or usual place of abode. 1 ."). The Constable or other Peace Ofticer who serves the same shall at- tend at the time and place, and before the Justice or Justices in the Sum- mons mentioned, to depose, if necessary, to the service of the Sununons. 10. If the person served does not appear before the Justice or Justices, at the time and i^lace mentioned in the Summons, in obedience to the same, the Justice or Justices may issue his or their ^y arrant (D) for apprehending the party so summoned, and bringing him before him or them, or before some otlier Justice or Justices for the same Territorial Division to answer the cliarge in the information and complaint mentioned, and to be further dealt with according to law. 17. Every Warrant (B) hereafter issued by any Justice or Justices of the I'eace to apprehend any person charged with any indictable offence, shall be INDrCTABLK OFFENCKS. 33 uniler the hand and seiil, f)r hands and .suals, i)f tliu Justice; or .lusticus issu- ing the same, and may ho directed to all or iiny f>f the (%)iistahies or other Peace Officers of the Territorial Division within which the same is to he ex- ecuted, or to any such ConHtahlo ami all other Constables or Peacti Otticers in the Territorial Division within which the .Justici' or Justices issuini^ the same has jurisdiction, or i^enerally to all the Constaljles or Peace Officers within snch last mentioned Territorial Division ; and it shall state shortly the otl'ence on which it is founded, and shall name or otherwise descrihe the ottender, and it shall order the i)erson or peianns to whom it is directed to apprehend the offendi'r, and bring Iutu before the .Fnstice or Justices issuing the Warrant, or before some other Justice or Justices of the Peace for the same Teiritorial Division, to answer to the charge contained iu the informa- tion, and to be further dealt with according to law. If the '.vairant is directed to any person, not n constable, lie is not Itonnd to execute it, and is not punislialtlc if he does not execute it, but a constable is bound to execute it if directed to him. Under this section the warrant may be direeteil tn ull or any of the constables or other peace officers of the territorial le by name, and though the pla(;e within which such wairant is executed be not within the place foi' which he is constable or peace officer. See section 20. It also authorizes the execution of the warrant (in case of its being backed under the 23rd sec- tion), in any place in Canada where the otFender may Ije found. The 23rd section authorizes the execution of the warrant by the person bringing it, and all others t(j whom the sanui was origin- ally directed, and all constables of the territorial division in which the warrant has been endorsed. 34 MAOT8TEATES MANUAL. Where a warrant was directed to the Constable of Thorold, in the Niagara District, authorizing him to search the phiintiff's house, at the Township of Louth, in the same district, it not appearing tluit there was more than one person appointed to the otHce of Constable of Thorold, it was held that the direction to the Coristable of Thorold, not nanunghim, to execute the warrant in the Township of Louth was good, for although a warrant t(j a peace officer, by his name of office, gives him no authority out of the precincts of his jurisdiction, yet such authority may be ex- [)ressly given on the face of the warrant, as in this case. Junes V. Ross, :J Q. B. (Ont.), 328. 18. It shall not bo necessaiy to luake the Warrant roturnable at any parti- cular time, but the same may remain in force initil exouuteil. 19. Such Warrant ni.ay be executed by apprehending the oftender at any place in the Territorial Division withhi whicli the Jiistice or Ju.stices is.suing the .same have jurisdiction, or in case of fresh pursuit, at any piece in the next adjoining Territorial Division, and within seven miles of the border of the first mentioned Territorial Division, without having the Warrant backed, as hereinafter mentioned. The seven miles are measured, not by the nearest practical )le road but, by a straight line from point to point on the horizontal j.lane, " as the crow Hies." Lake v. liuHey, 24 L. J., N.S., Q.ll, 273 ; li. v. Waldev, !) Q. B., 70. 20. In case any Warrant be directed to all ConstabUa or other Peace Offi- cers hi the Territorial Division within which the Justice or Justices iiavo jurisdiction, any Constable or other Peace Officer for any place within such Territorial Division nuiy execute the warrant at any place witlun the jurisdic- tion for which the Justice or Justices acted when he oi- they granted such Warrant, in lii.o manner as if the Warrant had lieen directed specially to such Constable by name, and notwithstanding the place within which such War- rant is executed be not within the place for which he is Constabli! or I'eaco Officer. Where an offi^ncc was committed in the county of O., and war- rants were issued for the arrest of the guilty parties, persons from another county who came to assist tlie ( Vjnstables of the county of G. in makhig arrests, were held entitled to the same protection as the constables. R. v. Chumon, 3 Pugsley, 54G. INDICTABLE OFFENCES. 35 21. No objection shall be taken or allowed to any Summons or Warrant for any defect tnerein, in substance or in form, or for any variance between it and the evidence adduced on the part of the prcjsecution, before the Justice or .Jiistices who takes the examinations of the Witnesses in that behalf as here- inafter mentioned. 22. Hut it' it api)ears to the .lust ice or Ju.stices that tlie party charj^ed has been deceived or misled l)y any such variance, such .lustice or Justices, at the reipiest of the party charged, may adjourn the hearing of the case to some future day, and in the meantime may remand the party, or admit him to bail as hereinafter mentioned. 23. If the person against whom any Warrant has been issued, cannot bo foimd within the jurisdiction of the Justice or Justices by whom the same was issued, issued are the same as prescribed by section 2, to precede tho issue of the warrant where tho person has failed uftor INDICTABLE OFFENCES. »7 service to appear on an ordinary summons, and such wairant can be backed as provided by section 23. See s. 2G, Kerr's Acts, 74-5. A witness cannot refuse to attend on beinn; served witli a sum- mons or subpoena, until his exitenses are paid. R. v. James, 1 C. k P., 322. 20. If any person so summoned neglects or rofusos to appear at the time and place appointed by the Summons, and no just excuse be offered for such neglect or refusal (after proof \ipon oath or affirmation of the Summons liav- ing been served upon such person, either personally or left with some person for him at his last or usual place of abode), the Justice or .Fustices before whom such person should have appeared may issue a Warrant (L. 2) to bring .such person, at a time and place to l)o therein mentioned bof(jre the Justice who issued the Summons, or before such nther .Justice or Justices of the Pej»ce for the same Territorial Division as may then be there, to testify as aforesaid, and the said Warrant may, if necessary, be backed as hereinbefore mentioned, in order to its being executed out of the jurisdiction of the Justice who issued the same. 27. If the Justice bo .satisfied by evidence upon oath or aflirmatidu that it is probable the person will not attend to give eviilence unless comiielled so to do, then, instead of issuing such Sunnuons, the Justice may issue his War- rant (L 3) in the first instance, and the Warrant, if necessary, may be backed as aforesaid. 28. If on the appearance of the person so sununoned, either in obedience to the Summons or by virtue of the Warrant, he refuses to be (examined upon oath or affirmation concerning the pri'mises, or nifuses to take such oiith or afhrmation, or having taken such oatli or atlirm;ition, refuses to answer the "(uestions eoneerning tlie ])remis('S then put to him without giving any jtist excuse for such refusal, any Justice of the Peace then present and thei'o hav- ing jurisdiction, may, by Warrant (Ij4\ commit the person so n^fusing to the C(mmiou gaol or other place of conlinement, lor the Territorial Division where the ])erson so refusing then is, there to I'emain and be iniprisoni'd for any time not exceeding ten days, unless he in the meantiiiio consents to be ex- amined and to answer concerning the premises. 2!t. In all liases whei'o any person appears or is brought before any Justice or Justices of the Peace charged with any imlictable oU'ence, whether com- mitted in Canada or upon the high seas, or on land beyoinl the sea, and whether H\ieh person appears voluntarily Ujion Suninion.s or has been appre- hended, with or without Wiirrant, or is in custoily for the same or any other offence, such Justice or Justices before he or they conuuit sucii atscused per- son to prison for trial, or before ho or they iidmit him to bail, shall, in the 38 MAGISTRATES MANUAL. presence of the accused person (who shall be at liberty to put questions to any witness produced against him), take the statement (M) o7i oath or affirma- tion ?if those who know the facts and circimistances of the case, and shall p\it the same in writing, and such depositions shall l)e read over to and signed re- spectively by the witnesses so examined, and shall be signed also by the •luaticc or Justices taking the same. It will be observed that the depositions under this section must be taken in the presence of the accused person, and there is there- fore no i^owcr to proceed ex j) the depositions {R. v. Clirldopher, 1 Den. (IC, 530), tliough the accused be present at the time {R. v. W/>, ])ears., (548. At the close of the witness's examination, it would be well ibr the Justice to put any (|n(\stions— answers to which would in his oj)inion ten<1 to throw light on tlie facts and cii'cumstances of tlie case, The accused person should thenbeasked by the Justice if he hoH any (questions in cross-examination to put to the witness ; if ho INDICTABLE OFFEXCES. 89 declares that ho does not wish to cross-t3xauiine, tliat fact should he noted in the deposition, but if he declares that he desires to cross-examine, his ([uestions, when pertinent to the matter in issue, must be answered by the witness, and must be reduced to writing by the Justice together with the answers of the witness thereto. Care must be taken to distinguish between the examination nnd cross-examination of the witness ; if necessary, the witness can be re-examined, the deposition must tlien be read over to and signed by the witness and liy the .justice taking the same, all in th(} presence of the accused. It. v. Watti^, i) L.T., N.S., 4.')3 ; Kerr's A(!ts, 78-9.- The Justice is bound to examine all the pai'ties who know the facts and circumstances of the case. The depositions of the wit- ness should be taken carefully; as far as possiljle, the very words made use > f should l»e preserved. It is not, however, necessary to take down all that a witness may state, since that which is clearly irrelevant or not admissible as evidence, ought not to be admitted. If, however, any doubt should arise as to admissibil- ity, the better plan is to take it and leave it to another tribunal to decide whether it sliall be used or not {'ih). Under this section, it is not necesK.iry that each de))osition should ])0 signed by the Justice taking it. Tlieri'fore, whei'e a nuiid)er of depositions taken at the same hearing on several sheets of paper, were fastened togetlusr, and signed j)y the Justices tak- ing them, once only, at tlu; end of all the depositions, in tin; form given in the Schedule M, it was held that one of these deposi- tions was admissible in evidence undei- siu'tion JiO of the Act, after the death of the witness making it, although no part of it was on the sheet signed by the Justice. II. v /■'(n7.v;r, L.R., 1 C. ( ". R., 225 ; R. V. Rleluinb, 4 V. & F., SGO, overruled. Although the prisonei' ]>e cautioned, as |)rovide(l by the Mist section, before he makes his stattmient, yet if his statement amount to a confession, and he was induced to make it by any previoiLs promise of favoui' or threat, it cannot be read in evidence against him ; unless, indeed, before he made the statement ht^ had been undeceived as to the tlireat or promise, and told that he lias no- thing to fear from the one or hojie fi-om the other. The y2nd ssec- 40 MAGISTRATES MANUAL. tion of the statute was intended to remove this diflBculty, and compliance with its provisions is only necessary in cases where such a threat or promise has been holden out ; and in order to undeceive the prisoner in respect to it, and make his confession evidence against liim notwithstanding. In all other cases it is sufficient to give the caution lequired by the 31st section, after which any confession not induced by threat or promise may Ije given in evidence against the prisoner. It. v. tiansome, 1 Den i). C, 545; R. V. Bovd,ib. 517. Under the .SOth scctii)n tlie deposition of a witness who is dead may be read before tlie Grand Jury for the purjiose of finding a l)ill, as well as before the Petty Jury at the trial, li. v. Clanents, 20 L.J., M.CjlDS. The presence of the accused and the Justice is indi.spensable. R. v. M'atis, .S3 L.J., M.C., OS. Although the cases of death, illness, and aljsence from Canada are alone expressly stated in this section as those in which the deposition of a witness may be read against a prisonei' on his trial, it is probable that such dejtosition may also be read in evidence if the witness be lied-ridden, though otherwi.se not in ill-health {R. v. Steplienson, SI Ij.J.,M,C., 147), or if he have become insane, or if he be kept out of the way by the prisoner {R. v. Scaife,20 L. J.,M.C., 22i) ; 17 (). H., 2SN), or by some person on his behalf at the time of the trial ; and it is admissible where the witness, having been struck by paralysis, is unabK' to s])eak though .still able to ti'avel (R. v. iJockJxd'n, Dears. \; \>. 2()S); but it nuist lelate to the charge on which the prisoner is being tried. R. v. LaiKjbvnhje, \ Den. O.C, 448. It was proposed to lead the deposition of a witness, on the ground that the witness was so ill as not to be able to travel. 'J'he evidence upon that point was as follows: — The medical attendant of tlie witness was called and said, " I know M. L., ,she is very nervous and ,s(>vt'nty-four years of age. I think ,she would faint at the idea of coming into Court, but I think that .she could go to London to see a doctor without difficulty or danger. I think the idea of seeing so many faces would be dangerous to her, and that she is so nervous that it miglit b(( dangerous to her to be examined at all. 1 think she couM distinguish between the Court going to INDICTABLE OFFKNCES. 41 her house, and she herself coming to the Court." The witness, whose deposition it was pro})Osed to read, lived not far from the Court. The deposition was held inadmissible. R. v. Farrell, L. R., 2 C. C. K.,116. Upon the trial of the prisoner for obtaining money by false pre- tences, it was proved by a female servant and the l)i'other of the prosecutrix, that she was daily expecting her confinement, and the latter stated that she was " j)oorly otherwise," and was therefore too ill to travel, it was held upon this evidence, the Statute 3:^ \: 38 Vic. chap. 30, s. 30, authorized the presiding Judge to receive the depositions of the prosecutrix taken before the committing magistrate; that there may be incidents in regard to parturitio)i, to bring the case within the statute ; that it is in the discretion of the presiding Judge to determine, whether the evidence of illness is sutticient that it is not necessary in such case to produce medi- cal evidence. R. v. Stevenwn, L. & C, 105. Formerly depositions were i-eceivable only when the indictment was substantially for the same offence, as that which the defendant M'as charged with ])efbre the Justice. Now by the 32 \r 33 Vic, chap. 29, s. 58, dcipositions taken in the i)reliminary or other investiga- tion, of any charge against any i)ers()n may be read as evidence in the prosecution of such peison for !iny other offence whatsoever. The .statement of a deceased witness taken on oath by a magis- trate, detailing the circumstances undei' which a felony was com- mitted, is admissible in evidence on the trial undei' the (N. H.) 1 Rev. Stat. chap. 15(J,s. 7, though it is hemled " the complaint of" \'C., instead of " the examination " of the deceased, anth) .section, hicomhe v. Stc. Mdrie, 15 L. (!. J., 270. IK). Tho.IiiHticoiir.JuHtioL'H hIkiH, hofitrouny witness is oxaminod, adininistor to Hucli wituuHs tlic nsuiil oath or iifHnmition, which hiicIi .liiHticc or .hiaticos iiro horoby oiiipoworod to do ; luiil if upon tlio trial of tlio purnou acuuHud, it 42 MAGISTRATES MANUAL. be proven upon the oath or affirmation of any credible witness, that any person whose deposition has been taken as aforesaid is dead, or is so ill as not to 1)6 able to travel, or is absent from Canada, and if it be also proved that such deposition was taken in presence of the person accused, and that he, his Counsel or Attorney, had a full opportunity of cross-examining the wit- ness, then if the deposition purports to be signed by the Justice by or before whom the same purj)orts to have been taken, it shall be read as evidence in the prosecution Avithout further proof thereof, unless it be proved that such deposition was not in fact signed by the Justice purporting to have signed the same. The deposition is nota(Iiiussi))le on the i^n-onnd merely that the prosecutor, after using every possil)le endeavour, cannot find tlie witness. Th(> Justice must j)roceed in the manner pointed out by tliis sectior. A defendant, arrested on a warrant, was brought l)efore a Justice who examined liini, but took no evidence either of the prosecutor or witnesses, and conunitttid defendant to gaol, saying he could not bail. The defendant did not ask to have any hear- ing or investigation, or produce or offei' to produce any evidence, or to give bail. It was Jieid that the conunitinent, without tlie appeaiance of the prosecutor, or examination of any witnesses, or of t]\v. defendant, according to this section, or any legal con- fession, was an act wholly in excess of the; jurisdiction of the magistrate and illegal. Connors v. Darlinij, 28 Q. B. (Ont.), 541. 31. .After the examinations of all the witnesses for the proseciitiim have been completed, the Justice, or one of the Justices Ijy or before whom the examinations have been completed, .shall, without reursuant to the provisions of the above sec- tion. See .sec. 47. 39. If iiny witness rofusos U> outer into Recognizance, the Justice or Justices of tlie Peace by liis or their warrant (P 1), may commit him to the CianuKJu (jlaol f(jr the Territorial Division in whicli tlie accused party is to ho tried, there to he imprisoned and safely kept until after the trial of such ac- cused party, unless in the meantime such witness duly enters into a Recog- nizance Ijefore some one Justice of the Peace for the Territorial Division in which such gaol is situate. 40. If afterwards, for want of sulhcierit evidence in tliat behalf or other cause, the Justice or Justices before whom the accuse party has been brought, do not commit him or hold him to l)ail for the oflence charged, such Justice or Justices or any other Justice or Justices for the same Territorial Division, by his or their order (P 2) in that behalf, rcay order and direct the Keeper of the (iaol where the witness is in custody, to discharge huu from the same, and such Keeper shall thereupon forthwith discharge him accord- ingly- After ail the evidence is taken and there appears to be no case against the prisoner, the discharge is verbally made, no d(jcument or writing of any kind being re([uired. 41. If from the absence of witnesses, or from any other reasonable cause, it becomes necessary or advisable to defer the examination (jr further exami- nation of the witnesses for any time, the Justice or Justices before whom the ' '"^ed appears or has been brought, may, by his or their warrant {Q I) from tnne to tmie, remand the party accused for such time as by such Justice or Justices in his or their discretion may be deemed reasonable, not exceeding eigl clear days at any one time, to the cf)mmon gaol in the Territorial Divi- sion for which such Justice or Justices are then acting. There is no power at one time to remand for a period exceedir)g eight clear da; , but at the expiration of such time there may be a further remand for eight days, and so on. A remand for an uii- 48 magistrates' manuat,. reasonable time would be void. Connovfi v. Darling, 23 Q. B. (Ont.), 547-ot. Committing Magistrates are not responsible foi* the condition of the lock-ups, and a Justice who remamls a }>i'isoner under thi.s section, without any express direction to take him to the lock-up, is not responsible for the prisoner's sutterings in the lock-up, if the constal.le takes him there instead of to the connnon gaol of the county (Jrnwford v. Beatfie, 39 Q. B. (Ont.), 13. 42. If the riniiaiul bo fi)r a timu not oxcoodint^ throe ch'ar y sections o2 and ofj), the accused is, in cases of misdemeanor, entitled to bail, but in felonies he is not so entitled. As a general rule it may be sai. Ifum the Constable delivering to the .lustice or Justices the Wairnnt, informati(m (if any), de})(isitions and l{cco<.'nizance.s. and proving on nath or affirmation the hand-writing of tlie .Justice or Justices who has subscribed the same, such Justice or Justices In fore whom the accused party is produced, shall thereuiion furnish such Cmisiable with a receiptor certificate {\\ I:), of his or their liaving received from liim tl.e body nf the aceused l>arty, to- gether with the ^Vnrrant, information (if any), depositions and Ilecognizancos, and of his havifig proved to him or them, upon oatli or aflirmation, the hand-writing of the . Justice who issued the Warrant. 50. The said Constable, on producing such receipt or certitieate to the proper officer for paying such cliarges, sliall lie entitled to be paid all liis rea- sonable chiirges, costs and expenses of conveying such accused party into such other Territorial Division, and of returning from the same. 51. If such Justice or Justices do noi commit the accused party for trial, or hold him {<> bail, then the Kecognizances taken before the first mentioned Justice or Justices shall be void. 52. When any |)erBon a])pears befcu'c any .Justice of the Peace charged with a felony, nr suspicion of felony, other than treas'iu or fidony punishable with death, or felony inuler the .\ct for the better protecti :>n of the ('rnwn and of the Governnujut, and the evidence adduced is hi the opinion of such Justice, sufficient to put such accused [larty on his trial, but does not furnish such a strong presumption of guilt as to warrant his committal for trial, the Justice, INDTCTABLE OFFENCES. Ol jointly with some other Justice of the Peace, may admit such person to hail upon his procuring ami producinij; such surety or sureties as in the opinion of the two Justices will bo sufficient to ensure the appearance of the person chargoil, at the time and place when and where he ought to be tried for tliu otlence ; and thereupon the two Justices shall take the Recognizances (S 1, 2,) of the accused person and his sureties, conditioned for his appearance at the time and place of trial, and that he will theii surrender and take his trial and not depart the Court without leave; and when the otfence conmiitted or sus- pect?d to have been committed is a misdemeanor, .any one Justice before whom the accused party appears may admit to bail in manner aforesai*! ; — And such Justice may, in his discretion, rerpiire such bail to justify upon oath as to their sufficiency, which oath the said Justice may administer, and in defaidt of such person procuring sufficient bail, then such Justice may com- nut him to prison, there to be kept until delivered according to law, Under tins and the olJth section, it is only the Justice who took the evidence that can hail. Under the oOth section of the Act, certain functionaries, such as any Police Magistrate, District Magistrate, or Stipendiary Magistrate, have tlie power of two Justices of the Peace, and may admit to hail. The amount of hail is fixed hy the Justice, the character of the charge and evidence, position of the accused hoing considered. Sureties are usually householders, hut it is in the discretion of the Justice to accept whom he will ; he may examine i)roposed sure- ties on oath, hut the examination sliould tend to the sutHcieiu'y of the surety, and not to ehariictei'. li. v. Iin(lai!, the nalure of the crinu' and punishment, and the weight of evidence are to be considered. He Uohinsiw, 2.S L. J. M. (_!., 25; R v. Jiarronct, 1 K. & H. 1. In the case of murder, Justices never admit to bail if the I'vidence be strong against the accused, and the same in the case of stabbing or wounding where (k'ath is likely to ensuo. MAvOISTRATES MANUAL. Prisoners charged with muider cannot be admitted to bail, unless it be under very extreme circumstances, as where facts are brought before the Court to show tliat the bill cannot be sus- tained. The fact that prisoners indicted for wilful murder cannot be tried until the next term, is no ground for admitting them to bail. R. V. Murphy, 1 James, 158. But accessories after the fact, who have merely harboured prisoners guilty of murder, may be admitted to bail {ih.) A prisoner charged with murder may in some cases in the exer- cise of a sound discretion be admitted to bail. On an application for bail, the Court may look into the information, and, if they find good ground for a charge of fehmy, may remedy a defect in tlie commitment, by charging a felony in it so that the ])iisoner would not be entitled to bail on the groinid of the defective comm I cmcnt. R. V. Hujf/iiiH, 4 O. S., 83. A person chaiged with having murdered his wife in Ii'eland will not be admitted to bail, until a year has elapsed fi-om the time of the tirst imprisonment, although no pro- ceedings have in the meantime been taken by the Crown, and no answer has been received to a conuuuiiication from the Provincial to the Home Government on the sul)ject. U. v. Fitz L. C. R., 24!). A j)risoner charged with fehjny may be released or bail, if it is satisfactorily established, that, unless liberated, he will in all pro- bal)ility not live until the time Hxeil for his trial Ex pivvte UIoh- 8utn, 10 L. C, J., 71. A pi'is(nier confined upon a charge of arson, may be admitted to bail after a Itill found by aGrandJuiy, if the depositions against him are found to create but a very slight suspicion of his guilt. Ex parte Ma. A prisoner was charged with conspiiacy to kidnap (Jiie G. N. S. and steal andcai-ry him away into the United States. The ( rraiid Jury found a true bill against him for misdemeanor. Jlc was twice tried for the offence, on the first occasion the jury after thrci; days' deliberation, being unabK' to agree, were discharged ; and on the second occasion, the jury did not agi'('e after three days' deliberation, and weri^ also discharged. It was held that under these cii'cumstances the prisoner was entitled to bail by virtue of the Con. Stats. L. C., cha[). !•.'>. The circumstances raising a presumption of his inn'ii't^' lilos^o in, 10 L. C ').,, 30. The word " may" in this (o2nd) section must be considered a8 conferring a power, and not as giving a iliscretion. The object of 64 MAGISTIUTES MANUAL. the Act is to declare that one Justice cannot bail in felony, but may in misdemeanor. Ex parte Blosnoin, 10 L. C. J., 07. If an offence is l)aila])le, and the party, at the time of his ap- prehension, is una]»le to obtain immediate sureties, he may at any time on producing proper persons as sureties Ije liberated from con- finement, lb., (I(S. The reason why [)arties are conunitted to prison by Justices before trial, is for the purpose of ensuring or uwiking certain their appearance to take theii- trial, and the same principle is to l)e adopted on an application for bail. It is not a (juestion as to the guilt or innocence of the prisoner. On this account it is necessary to sei^.whethei' th? offence is serious and severely puni.shable, and whether the evideuce is clear and conclusive, li. v. Brijnes, 8 U.C. L.J., 70 ; M. V. Scaifii, 9 Dowl. P.tJ., ooS. Wlien the charge against a prisoner is tliat he procured a person to set fire to his house, with intent to defraud an insurance com- pany, and it is shown that the prisoner attempted to bribe the con>stulile U) allow him to esca})e, the probal)ility of his ap])earing to stiuid his trial is too slight fo)' the Judge to order liail. li v. Bryiii'S, .snpra. The |)rinciple uj)on which a party committed to take his trial for an offenci' may lie l)ailed, is founded chiefly upon the legal pro]»al)ility of his ajtpearing to take his trial. Such probaltility docs not exist in contemplation of law when a crime is of the highest magnitude, the evidence in support of the charge strong, ami the punishment the severest known to the law. Kr 2)arte Mni/iilrc, 7 L. (1 R., ')9. On an ap])lication by })risoners in custody on a charge of niMnler under a coi'oner's warrant, it is pi'(jper to consider the probabUity of tlieii- forfeiting their bail if they kno.v themselves to be guilty ; and where in such a case there is such a presumption of the guilt of th(! prisoner as would wariunt a Gi-and Juiy in finding a true bill, they shoidd not be admitted to bail, J{. v. Miilladij, 4 P.R. (Ont.j, 314-. It has been held that although a statuti^ may require the pre- sence of three Justices to convict of an otl'enct", yet one has power to bail the offender ; and a sucoml arnist foi' the same cluuge by the same complainant before the time appointed for the hearing is INDICTABLE OFFENCKS. 55 illeyal. Ki7ifj v. Orr, 5 O.S. 724. But under the aV)Ovo section one Justice cannot bail exctipt in the case of a niisdeineanor. It is a misdemeanor for Justices or Juilges to exact excessive bail ; and the party may also l)ring an action or apply for a crim- inal information. It was held befoi'e the pJi,ssin<^ of the IG Vic, chap. 17!>, that Magistrates M'^ere not liable for refusing to admit to bail on a charge of mistlemeanor, in the absence of any proof of malice. Coni'oji V. McKenneij, U Q.B. (Ont.), 4;i!) ; see McK'nileyv.Mnvsic,, I5C.P. (Ont), 2:M) ; see It. v. Mo^t'irr, 4 P. R. (Ont.), 64, as to bail. A Ju.stice of the Peace niiglit perhajjs in a mattei- in which he could properly act, and in which hi; was bound to ailmit a penson charged with an offence to bail, be prosecuted for maliciously re- fusing to take bail. McKinhyx. Mansic, jo C. P. (Ont.) "i.SO. Where plaintiff was arrest(>d and iunirisoned l)y a Magistrnti' on an information laid by defendant himself, a Magistrate, who was present when the Magistrate iffuscd to grant bail, it was held in th -■ al)sence of any evidence, that th(! defendant had directed the officer to take the plaintiff to prison, or ha. 'I'M). r»;). fn all caaos of foloiiy, or suspicion of foluiiy, other than treuHoii or felony, jmuishalile with (loath, or felony nnder the Act for the l)etler protec- tion of the Orown anil of tlu; (lovornnient, and in all ca.ses of niisdemeanoi , where tlu^ party aecusivl has tieen liiially eonnnitted as heiviinafter provi«ied, any .hulgo of any Superior or (!onuty Court, having jurisdiction in the Di.s- trict or (Jonuty, within the limits of which such accused ])arty is contined, may, in his discretion, on appli(^ation made to him for that jniipose, order such accuseil party or person to bo ailmittod to bail on entering into lU'cog- nizanee with sulHcient sureties before two Justices of the I'eaco, in .sneli amount as the Judge y any of the Acts thereby extended in any Court, Magistrate or Tribunal, may be exercised resjiectively by any Court, Magistrate or Tribunal of like name or kind in the said Province. 54. No Justices of the Peace, (jr County Judge shall admit any persench or Superior Court ; and nothing herein contained, shall prevent such Courts or Judges admitting any person caccused of misdemeanor or felony to bail when tlioy may think it right so to do. oo, In all cii.ses wliere a Justice (jr Justices of the Peace admit to bail any person who is then in ;uiy prison cliarged with the offence for which he is so adniitte' party fo bail as hereinbefore provided, but if the offence be a felony, anl the evidence given is such as to raise a strong prestuaption of guilt, then the Justice or Justices shall by his or their Warrant (T 1), commit him to the Comnujn Gaol for the Territorial Division to which he may by law be com- INDICTABLE OFFENOES. 57 '& n mitted, or in the case of an indictable oflFence committed on the high seas or on land beyond the sea, to the Common Gaol of the Territorial Division within which such Justice or Justices have jurisdiction, to be there safely kept until dolivered by due course of law : Provided that in cases of misdenieanur the Justice or Justices who have committed the offender for trial, may, at any time before the first day of the sitting of the Court at which he is to be tried, bail such offender in manner aforesaid, or may certify on the l^ack of the Warrant of committal the amount of bail to be reciuired, in which case any other Justice of the Peace for the same Territorial Division may admit such person to bail in such amount, at any time before such first day of ihe sitting of the Court aforesaid. It would seem that a discharge under this section does not operate as a bar to the same person l)eing again brought up before another Justice; and committed upon the same charge upon the same or different evidence, li. v. Morton, 19 (1 P. (Ont.) 20. Justices ought not to balance the evidence and decide according as it preponderates, for this would, in fact, he taking upon them- selves the functions of the Petty Jury and }>e trying the case. They should consider whether or not the evidence makes out a strong, or probable, or conflicting case of guilt. In the first case they should commit, in the second and third they should admit to bail. If, however, fiom the slender nature of the evidence, the unworthiness of the witne.sses, or the conclusive proof of inno- cence ju'oduced on the part of the accused, by way of confession and avoidance, they feel that the case is not sustained, and that if they send it for trial he must be acquitted^ they should dis- charge the accused. Kerr's Acts, 100, 1. If the evidence goes to prove an offence which the Justices cannot decide summarily, they ought to dismiss the com])laint or commit the person charged for trial. Rr ?Vio7///).svn?, *iO L. J., M.C, 19. If the warrant be defective or bail a new warrant may be made out iuid lodged with tlu; gaoler to cure the defect, and this even in a case whore the warrant is in IIk; luiturt; of a con- viction as well as commitment as umler the Vagrant Act. I'Jx parte Cross, 'Hi L .3., M.C, HOI. 57. The Constable or any of the Ctmstablos or f)ther persons to whom any Warrant of Commitment authorized V)y this or any other Act or law is direc- ted, shall convey the accused person therein named or described to the gaol 58 MAGISTRATES MANUAL. or other prison mentioned in siich Warrant, and there deliver him, together with the Warrant to the Keeper of such gaol or prison, who shall thereupon give the ConstaVjle or other person delivering the prisoner into his custody a receipt (T 2) for the prisoner setting f(jrth the state and condition of the pri- soner wlien delivered into his custody. 58. At any time after all the examinations have been completed, and before the tirst sitting of the Court m which any person so committed ti> jiri- son or admitted to bail is to l)e tried, such pers(jn may ruijuire ami .shall Ije entitled to have from the Officer or person having the custody of the same, copies of the depositions on which he has been committed or bailed, on pay- ment of a reasonable sum for tlie same, not exceeding the rate of hve cents for each folio of (jue hundred words. St'o ante, p. 14. 50. Any Judge of the Sessions of the Peace for the City of Quebec or for the City of McMitreal, or any Police Jfagistrate, District jNIagi.strate or Sti- pendiary Magistrate, appointed for any Territorial Divisi(jn, or any IMagis- trate authorized l)y the liiw of the Province in which he acts, to perform acts usually I'eijuired to be done by two or more Justices of the Peace, may do alone whatever is authorized by this Act to be done l)y any two or more Jus- tices of the Peace, and the several forms in this Act contained may be varied so far as necessary to render them api'licable to such case. See also 82 & 83 Vie., cluip. 'Mi, s. 8. (U). P]vt'ry Cor iner, upon any iu([uisition taken liefore him, whereby any person is indicted for manslaughter or murder, or as an accessory to murder before the fact, shall, in piesence of tlie party accused, if lie can lie appre- hended, put in writing the evidence given to tlie Jury before him, or as much thereof as may be material, giving the party accused full opportunity of cross-examination ; and the Coroner shall have authority to bind by recog- nizance all such persons as know or declare anything material touching man- slaughter or murder, or the offence of being accessory to murder, to a2)2)ear at the next Court of Oyer and Terminer, or Gaol Delivery, or other Court or term or sitting of a Ct)nrt at which the trial is to bo, then and there to prose- cute or give evidence against the party charged ; and every such Coroner shall certify and subscribe the evidence, and all the recognizances, and also the in(|uisition before him taken, and shall deliver the same to the proper Officer of the (.'ourt at the time and in the manner specified in the thirty- eighth section of tliis Act. 61. When anj* person has been committed for trial by any Justice or Jus- tices, or Coroner, the Prisoner, his Counsel, Attorney or Agent, may notify the committing Justice or Justices, or Coroner, that he will bo 8ot)n as coun- INDICTAI5LE OFFENCES. 59 sel can be heard, move one (»f Her Majesty's Courts of Superior Criminal Jurisdiction for the Province in which such person stands c/■ clerk) then empjoj'ed in that capacity by one C. D. , did then and there in virtue thereof, receive a certain sum i)f money to wit, to the amount of for and (m acccmnt of the said C. D. , and the said moT ey did framlulently and feloniously embezzle. Fahe Pretence.i, A. n. , on the day of , at , unlawfully, fraudulently and knowingly liy false pretences, did obtain from one C. D., uLr yards of mu.ilin, of the go(jds and chattels of the said C. D. , with intent to defraud. Offeneea (djainsf tli<' llalntaiUm. A. B. , (m the day of , at , did unlawfully, feloniously and maliciously set fire to the dwelling house of C. D. , and the said C. D. , (or some iitfier per.vDt. hy natnc, or If the lUDii.e lie unknown, some persim) being therein. MaliriouH //(jio'/r.s to Property. A. B. , on the day of , at , did unlawfully, fehmiously, and maliciously set tire, or attem[it to set tire to a certain building or erection, that is to say (u house or barn or bridge, or as the cose may he), the property .>f one C. D. (or ((s the case may he), Fonjery. A. IJ. on the day of , at , did fehmiously forge [or utter, knowing the same to be o.rged), a certain proinis.iory note, e.te. ^or feloniously, wilfully, and without the CvHisent of the (jwner, did mako an alterafion in a certain written instrument with intent to defraud, which aaid alteration is aa follows, that is to say, nc as the rase mny he). Coining, A. B., on the day of , at , did fehmiously counterfeit a gold coin of the United Jlvingdom, called a sovereign, current by lar' in C'anada, with intent to defraud, had in his poHsossioa rfe of u gold ooiu of thu United Kingdom, INDICTAliLE OFFENCES. 63 called a xinyvciqn, ciirrent by law in Canada, knowing the same to bo counter- feit, and with intent to defraud by utteri))tj the sanio /V/'JK/'I/. Heretofore to wit, at the (Am^'rxs) lio!den for tlie County («;• Pislrict) of , on tlie day of , in the year of Our Lord one tlmusaud eittht hundred and . before , {one nf fhr Jiuhji-.^ nf Our IjikIi/ fhr \hin'ii), a certain issue V)etween one E. ¥. and one .). H. in "* ceT'tain action ol rorcuiihf, was tried, upon wliich trial A. |}. appeared as a witness for and on belialf of the said E. F., and was then and there didy .siDoni, before the said , and did then and tliere, upon liis imlli iiforesaid, falsely, wilfully, and corrui)tly ih^pose and sunir in sid)stance and to the etl'ect following, " that lie Miw titt s(tid (!. It. duly txcciite tin' dirtl dii irliirli the .saiil urtimi inis lirt or begin todemolisii, etc.), ii certain buihling or erection of C. \). Offences nijaui.st the Ailiinnixtritlinii nf Jiidicv, A. H., on the day of , at , did feloniously, iMda\^idly, and cf)rr>iptly taki' or receive money 'indcr pretiiice of helping CD. to a chattel {i>r money, etc.) that is to say a horse {or live dollars, "/• a note, or a carriage), which had been stolen {or tis the cose nioii he), the said \. H. not having used all d>ie diligence to cause the person by whom the said goods were so stolen to bo brought to trial for the same. Bigamy i>r Offt ncea ayaind the. Law for the Velehration of Marriaye. A. B,, on the day of , at , being then married, did feloniously marry C. D. during the lifetime of the wife of the said A. B.— (or nut being duly authori^ied did celebrate {or assist in the celebration of), a 64 MAGISTRATES MANUAL. marriage hetwetni CD. and E.F.,— or being duly authorized to marry did celol)rate inarriiiyi> between C. D. and E. F. before proclamation of banns according to law, ar without a license for such marriage luider the hand and seal of the Governor. Offpiices relating to the Army. A. H. , not being an enlisted soldier, on the day of , at did iierauade (or procure) C. D. , a soldier, to desert the Queen's service (or a*' the. ciisi' nuiij bf). Offences against Pulilic Morals aiid Decency. A. B., on the day of , at bawdy, or disorderly house [or rooms). , did keep a common gaming. INFORMATION AtJAINST AN AOOESHOKY AKTKR THE FACT TO A FKI.ONY WITH THE I'KiNi'ii'AL (n(jt in Statute, (3ke's Form, ji. 4H7, No. 2). Procce'l (IS i)i No. I^Kiipra, and 'i.ftcr lii-srrili'niii the. offence of flic priiuipal, state th !(.■*: — And that C. S., of, etc., well knowing the said A. M. to have committed the felony aforesaid, afterwards, to wit, on the day of instant, at the of aforesaid, feloniously did receive, hiirl)Oiu', and maintain ilie said A. J{. THK 1,IKK WITHOUT THK PRINCIPAL OR WUKllK TlIK TRINCIPAl. UNKNOWN (uot in Statute, Oke's Forms, p. 487, No. 3). Proceed k.s in No. 1, siq)ra, to the statement of the offence, then thus: — That (>n<' .\. 15., of, etc., (or some i)erson or persons wlu)so name or names is or are unknown), on the day of at the of etc. , feloniously did ((/cfcrt/je the (ffnice of the principal), and tiuit E. S., of well knowing the said A, B. (or person un- known) to have committinl the felony aforesaid, afterwards, to wit, on the day of • at the of afore- said, feloniously did receive, harbour, and maintain the said A. \\. (or person unknown). General Form. Describe the (t(f('nce in the fermH In trhich it is described in the lair, or stdtr such Jactf< (tn eonditiite the iifjeniw. intended to Ke chitrijed, and if the of' nee be felo)hy, date the ad to have been done feloniously. INDICTABLE OFFENCES. 05 (B) S<'r S». 1, 17. WAKRANT TO APMIEHEVD A PKRSON I'HAKdED WITH AX IXDICTABLE OFFENCE. Canada, Province of District {or County, United Counties, "/ ((.s- the case man he,) of To all "I u: / of the Constables or other Peace Officers in tlie District («/■ I iunty, U.iited Counties, or as the ease uuui he,) of ; Wlioreas A. H., of {labourer), huth this day , been char<5ed upon oath bit. . ' tiio undersigned. (o?k') of Her Majesty's Justices of the Peace in .md n uu' said District (or Ooiinty, United Counties, <)/• as the ease iiniii he) of , for that he, on , at , did ( conmiand you, in Her Majesty's tiiiine, forthwith to apprehend (he said A. I}., and to bring him before {me) or .■ioiu( ou",. f Her Majesty's Justices of the Peace in and for the said District . '• ■ '< inty, United Counties, or as the case may he,) of , to answer unto the said charge, and to be further dealt with according to law. (>iven under {my) Hand and Seal, this day of , at , in the District (Cotuitu, (Do.,) aforesaid. .1. S. [,....] (C) Hee 88. 2, l:^. StrMMO.VS TO A I'EHSON OHAKtJBD WITH AN INDUrTAnLB OKFENCK. Canada, District {or County, United Counties, (>*• as tfw ease uiai/ lie,) of I'i' \. n. of , {labourer) NVh(>reaa you have this day been ciiarged before tho undersigned (one) ot Ht.r Majesty's Justices of tho IVace in and for the staiil DiMtrict ("/County, Ignited Counties, or aa the ease may ^t',)of for that you on 1 at , {d'c., statintj shortly tke offetwe) : These aro therefore to t'ommand you, in Her Majesty"-* name, to he and appear before {me) on . •'i.t o'clock in the {fore) noon, ftt , or before such other .hmticeor .lustioos of tho Peace of tho same District {or County, United 6(; MAGISTRATES MANUAL. Counties, as the case may be,) of , as may then be there to answer to the said charge, and to be further dealt with according to law. Herein fail not. CJiven under (mi/) Hand and Seal, this da\ of , in the year of Our Lord , at , in the Disorict {or County, d-r.,) aforesaid, J. S. [l. s.] (1) DKPOSITION OF THE CONSTABLE OF THE SERVICE OF THE SUMMON-S (not in Statute, Oke's For. No. 9. p. 11). Canada, Pre vince of , District (or County, United Counties, or as the case may be,) of The deposition of J. N. Constable of the of C, in the said (countii,) taken upon oath before me the undersigned, one of Her Majesty's Justices of the Peace for the said (county) of C, at N., in the same (county), tiiis day of 1^ > who saith that he served A. B., mentioned iu the annexed (or within) summons, with a duplicate thereof, on the day of last personally (or " by leaving the same with N, 0., a grown person, at the said A. B's usual or last place of abode at N., in the county S."). Before me J. S. J. N. (D 1) Hee ss. 2, Ki. WAKUANT WHEN TUK SUMMONS IS DISOBEYED. Canada, Province of , District {or Coanty, United Counties, oc as the case may be, ) of To all or any of the Constables, or other Peace Olhcers in the said District (or County, United Counties, nr as the case may be,) of : Whereas on the li, of the day of (instant or last past) A. , was charged before (wic or us,) the undersigned, (or INDICTABLE OFFEN'CES. 67 itamc the Magistrate or MmjiHtrates, or as the case may he) (one) of Her IMa- josty's Justices of the Peace in and for the said Distri it) or County, United Counties, as the ease may be) of for that (cbe., as in the l^ammons) ; And whereas (I, or he, the said Ju.itiee of the Peace, or we or they, the xaid Jiistiees of the Peace) did then issue {my, our, his or their) Svnunions to the said A. B., commanding him, in Her Majesty's name, to be and appear be- fore (mt) on at , o'ck)ck in liie (fore) noon, at , or before such other Justice or Justices of the Peace as sluiuld then be there, to answer to the said charge, and to be further dealt with according to law ; And whereas the said A. 13. hath neglected to be or appear at the time and place appointed in and by the said Summons, although t hath now been proved to (me) upon oath, that the said Summons was duly .served upon the said A. B. ; These are therefore to comniand you in Her Majesty's name forthwith to apprehend the said A. B. , and to bring him be- fore (we) or some other of Her Majesty's Justices of the Peace in and for the said District (or County, United Counties, or as the case may be,)oi , to answer the said charge, and tn be further dealt with accord- ing to law. Given under (my) Hand and Seal, this in the year of Our Lord , at County, &c.,) of aforesaid. day of , , in the District (or J. S. [l. s.] (D 2) See r 3. WARRANT TO Al'I'RbHKNI) A I'ERSOK CHARGED WITH AN INDICTABLE OKFKNCK COMMITTED ON THE H1«H SEAS OR ABROAD. For ojffhices committed o)t, the high seas the warrant may be the same as in unlliiarij cases, but describing the offence to lutre lieen con\mitted " on the hi!j;h soas, (lut of the body of any District or County of Canada and within the jurisdiction of the Admiralty of England." Foniffewes committed abroad, for n'hich parties may be indicted in Caiiada, the W'arrtutt also may be thcsame as in ordinary cases, but describiiuf the offence til have been committed " on land out of Canada, to wit : at , in the Kingdom of , "c at , in the Ibland of . in the West indies, or at , in the East Indies," "»■ as the case may be. 68 MAGISTRATES MANUAL. f- (F 1) Sec s. 12. INFORMATION TO OBTAIN A SEARCH WARRANT. Canada, Province of District (r*;' County, United Counties, nr (US the case inay be,) \ of J The information of A. B., of the , of , in the said District {or County, ((•<■.,) {iieomnn), taken this day oi , in the year of our Lord , before me, W. S. , Esquire, one of Her Majesty's Justices of the PeacOj in and for the District ((*/• County, United Counties, or as the case may be,) of , who saitli that on the day of insert lh<' (lescripfioit. <>J urtides stolen) of the goods and chattels of Deponent, were feloniously stolen, taken and carried away, from and out of the {Dwell- ing H tliv ca.ir may ha). 70 MAGISTKATES MANUAL. (G) See s. 4. WARRANT TO APPREHEND A PERSON INDICTED. Canada, Province of District (or County, United Counties, or an the case may he) of To all or any of the Constables, or other Peace Officers, in the said District (ur County, United Counties, as the case may be) of : Whereas it hath been duly certified by J. D., Clerk of the Crown of {name the Court) (or E. G. Deputy Clerk of the Crown, or Clerk of the Peace, as tlie case may be) in and for the District (or County, United Comities, or as the case may be) of that (<£'C., stating the certificate) ; These are therefore to command you in Her Majesty's name forthwith to apprehend the suid A.B, > and to bring him before (me), or some other Justice or Justices of the Peace in and for the said District (or County, United Counties, or as the case may be), to be dealt with according to law. Given under my Hand and Seal, this day of , in the year of our Lord , at , in the District (or County, dbc, aforesaid. J. S. [l. s.] (2) DEPOSITION THAT THE PERSON APPREHENDED IS THE SAME WHO IS INDICTED (not in Statute, Okes For. p. 491). Canada, | Province of Disti'ict (or County, United Counties, or as the case may he), of The deposition of J. N. , of the of , in (County) of , constable, taken upon oath before me, the undersigned, one of Her Majesty's Justices of the Peace for the said (Countij) of , in the same (Covutii), this day of , A. U, 18 Who saith, I well know A. B. , ui &c., described in the certificate of J, D. , Clerk of tlio Crown of (or Clerk of the Peace of, as the cast may be), now produced by me ; that 1 never hoard mention of any other person of the same name as the said A. B., living at or near the of {or *>' INDICTABLE OFFENCES. '1 titc case nuiij he) ; that A. B. , apprehended (by me) and now here present, it) the same person who is charged in the indictment referred to in the said cer- titicate. Taken and sworn before me, the (hiy and year and at the place above mentioned. .J. S. J. N. (H) See s. 5. WARRANT OF COMMITMENT OF A PERSON INDICTED. Canada, Province of District {(»• County, United Counties, <>r as the case mail In) of J To all or any of the Constables^ or otlier Peace Officers in the said District {vr County, dc.,) of , and the Keeper of the Common (Jaol, at , in the said District {or County, United Counties, <»• as the <(».sr maij be) of Whereas by a Warrant under the Hand and Seal of (ime) of Her Majesty's Juatices of the Peace in and for the said District (ar Co\inty, I'nited Counties, ar as the case may be) of under Hand and Seal , dated , after reciting' that it had been certitied by J. D. fdc. , as in the lertijirate), ( ) the said .Justice of the Peace commanded all nr any of tlie Constables, in Her Majesty's name, forthwith to apprehend the said A. R. and to bring him before (]tim) the said Justice of the Peace in ana for the said District (or County, Uiutctl Counties or as the rase inaij be), of or before some other Justice or Justices in and for tlio said District (or Co\inty. United County (or as the ease maij be), to be dealt with according to law ; And whereas the .said A. li. , hath been apprehended under and by virtue of tliesaid Warriiiit, and l)eing now l)rought before (no-) it is hereupon duly proved to ( luij upon oath that the saiil A. B., is tlie same person who is named and charged by , in the said indictment ; These are therefore to command you the said Constables and Peace Officers, or any of you, in Her Majesty's name, forthwith to take and convey the said A. B., to the said Ci'mmon(Jan| at , in the said District (or County, United Counties, or as the easi /aai/ ie), of , and there to deliver him to the Keeper thereof, together witli this Precept ; and (7) hereby command you the said Keeper to receive 72 MAGISTRATES MANUAL. the said A. B., into your custody in the said Gaol, and him there safely to keep until he shall thence be delivered by due course of law. (iiven under (my) Hand and Seal, this day of , in the year of Our Lord , at , in the District (or County, d-c.,) afore- said. J.S. [l.s.] (3) DEPOSITION THAT THE PEKSON INDICTEIJ IS THE SAME WHO IS IN CUSTODY FOR SOME OTHER OFFENCE. (Not in Statute, Oke's For. p. 492.) Proceed as in the form No. 2 to the asterisk,* then thus : — that A. B., now coutincfl in the (coniiiKiii gaol) at , in the (foHnfij) of , is the same person who is indicted and referred to in the said certificate. (1) /See s. 6. AVARRjINT TO DETAIN A PERSON INDICTED WHO IS ALREADY IN CUSTODY FOR ANOTHER OFFENCE. Canada, "i Province of District (ur County, United Counties, or i us the casi: may be) j of 'J To the Keeper of the Common Gaol at , in the said District (vr County, United Counties, or as the case may be), of : AVhereas it hath been duly certified by J. D., Clerk of the Crown of (name the Court) or Deputy Clerk of the Crown, or Clerk of the Peace of and for the District (or County, United Counties, or as the ease may he), of that d-e., statiny the Certijieate); And whereas (I am) informed that the said A. B., is in your custody in the said Common Gaol at aforesaid, charged with some offence, or other matter ; and it being now duly proved upon oatli before (me) that the said A. B., so indicted as aforesaid, and the said A. B., in your custodj' as aforesaid, are one and the same person ; These are there- foi'e to command you, in Her Mcijesty's name, to detain the said A. B., in your custody in tlie Ciimmon Gaol aforesaid, until by Her Majesty's Writ of HalH'a-< Corpi(s, he shall be removed therefrom for the purpose of being tried upon the said indictment, or until he shall otherwise be removed or discharged {/ V fe fA # 1.0 I.I »:: IIIM 140 IIIM |M M 1.8 1.25 1.4 16 „ . _ 6" _ ► w, w ^ 7« MAGISTRATES MANUAL. will not appear 7uluntarily fur the purpose of bein^ exaniikied as a witness [or if a wanant be granted i:: the Jint hiataiice, " without being compelled so to do)." Before me, J. S. J. N. (LI) See 8. '26. SIIMMON.S TO A WITNESS. Canada, Province of , District {ur Connty, United Counties {ur (IS tJui case may be) of To E. F., of , iJiaboHrer) : Whereas information hath been laid before the undersigned, one of Her Majesty's Justices of the Peace in and for the said District {or County, Unitod Counties, or as the case may be], of , that A,B. (n, at , or before such other Justice or Justices for the same District (or County, United Counties, or uk the case may he), as may then be there, to testify what he shall know concerning the said charge so made against the said A. B. as aforesaid. Given under (my) Hand and Seal, this day of , in the year of Our Lord , at , in the District (or County, <(•(•.), aforesaid. J. S. [l.s.1 (L 3) See 8. 27. WARRANT KOH A WITNESS IN TIIK FIHST INSTANCE. Canada, Province of , District {or County, United Counties, or (w the ease may be,) of h To all or any of the Constables, or other Poiico Orticors in tlu- said District (fir County, United Counties, or as the case may he,) of Whereas information liivs been laid before the undersigned, (ron ) nf Hei Majesty's Justices of tlie I'eace, in and for tlie said District (or County. United Comities, or as the case may be,) of that (dc., as in the mim- mont) ; and it having been made to appear to (me) tipim oath, that E. F. of , (labonrer), is likely to give niatenal evidence for the pro- secution, and that it is probable tliat the said £. F. will not attend to give evidence unless compelled to do so : 'riiese me tliorofori' to iimunaiid you to 7« MAfUSTUATES MANUAL. to bring and have the said E. F. before (me) on at o'clock in the (Jon) noon, at , or before such other Justice or Justices of the Peace for the same District (<>»• County, United Counties, w cm the aise iniifi lit,) lis may then be there, to testify wliat he shall know concerning the said charge so made against tlie said A. U. as aforesaid. (liven tindor my Hand and Seal, this day of in the year of Oi:r Lord , at in the District (or County, dr.,) aforesaid. J. S. fL. s.) (L4) AV<(. 28. WARKANT OK r(tMMiTMKNT oF A WITNES.S KOK KEKUSINO TO BE SWOKN, OE TO »;IVE I^yiUENCE. Canada, Province of , District (or County, I'nited Counties, or (1,1 the caw mny he) of To all or any of the Constables, or other Peace Officers, in the District (or County, United Counties, or as thr rn.ir mmj hi) of , and to the Keeper of the Counuon Ciaol at , in the said District {or County* I'nited Counties, or hk the ruse ttuiy he\ of : Whereas A. U. was lately charged before [one] of Her Majesty's Justices of the Peace in and for the said District [or County, United Counties, or uk the ruse mnij hi] of for that [li'r., fw in the i^innnions] ; Aiul it liaving been nuido to aitpear to [/fU'lupon oath that E. F. of was liku'ly to give material evidence for the prosecution, [/] duly issue 1 [luij] Summons to the said E. F. retpiiring him to be and appear before mo on , at , or before such other Jus- tice or Justices of the I'eace for the same District [or County, United Coun- ties, <)(' lis the eiisr niiiij he\ as should then be there, to testify what ho should know concerning the said charge souuule against the said A. ii. as aforesaid ; and the said E. F. now appearing before [me] [or being brought before [me] by virtue of a Warrant in that behalf to testify as aforesaid,] and being re- (juired to make oath or atlirmation as a witness in that behalf, hath now refused so to do, [or being duly sworn as a witness doth now refuse to answer certain (piestions concerning the ])rei.iises which are now here put to him, and more particularly the following | without otl'ering any just excuse for such refusal : These are therefore to conunand you, the said Con- INDICTAIU.E OFFENCES. 77 •stables, Peace Officers, or any rd , at aforesaid. day of in in the District [County, e iiuiy he,) of Toall or any of the Constables, or other Peace Officers, in the District (<*»■ County. United Cimnties, or as Ow. case tnay he,) of and to tho Keeper of the Common (Jaol at , in the said District {or County, United Counties, or a i the ease may In:) of Whereas A. H. was this day brought before me, tho undersigned, {one) of Her Majesty's Fustices of tho I*oaco in and for the said (Coiot^;/) of , for that he tho said A. B. on &c. , at iVc. , {hrre .itate the chanje as in the Summons, iVarrant or caption of the depositions) ; And whereas (me E. F. of \o., hero in tho presence of tho said A.B. now undor examination before mo tlio said Justice im the charge aforesaid, now voluntarily appears as a witness for the prosecution in that behalf, and tho said E.F. ai)poaring to mo, upon oath, likely to give nmterial evidence for tho prosecution, but being ref the said {Common Giud) to receive the said E. F. into your custody in the said ((.'owimoTt Gaol), and him there safely keep for the space of dbys for his said contempt, unless he shall in the meantime consent to be examined and to answer concerning the premises ; , and for your so doing this shall be your sufficient Wan-ant. (liven under my Hand and Seal, this in the year of otir Lord (Comity) aforesaid. day of at in the J. S. [L. 8.] (M) See s. 29. UKPOSITIONH OF WITNESSES. Canada, Province of District [or County, United Counties, or fts the ca^e may be,] of The examination of C. W. of , [farmer], and E. F. of , [labourer], taken on [oa(/i] this day of , in the year ( >f Our Lord , at , in the District [or County, KI*O81TI0Ni' OP THE WITNESSES UN THE KBMAND DAY. (Not in Statute. ) This xoUl be o i the like caption as the preceditig, but insteud of repeating the offence say from Hie a4teri$k : with the felony (or misdemeanor) before niiin- tionod. ^ INDICTAHLE OFFENCES. 7M The jurat mil be (ut follows: — The above depusitions of F.G., &c., were taken and sworn before me at , on the (lay of 18 , the depositions of CD., and E.F., taken on tlio day of 18 , (and the depositions of C.H. and L.M. taken on the day of 18 ,) being at the same time severally read over and resworn in the presence and hearing of the before-named prisoner. J. 8. llliere the name jusiicc hears the further eridenee on the remand day, they inntUI be no neeesnitij for the former depositions to be re-sworn, andeonseqnenthj no allusion to it in the urat. If on the remaml day there w a eommittal for trial by atiother jnstiee iinthont any udditioiuil ei'idem;e, place the folbnriiuf jurat : " The foregoing deposi- tions of CD. and E.F. taken (m &c. (and the depositions of F.G., &c., taken on &c. ,) were severally read over and re-sworn before me at, , on the day of IH , in the presence and hearing of the before-named prisoner. J. L. (N) .SW 8. 31. r .STATEMENT OK THE Ai:cL\sF.O. Canada, ] Province of , District (or County, United Counties, or as the case may be,) of A. B. stands charged before the undersigned, (one) of Her Majesty's Jus- tices of the Peace, in and for the District (or County, United Counties, or as the ease may be) aforesaid, this day of , in the year of our Lord , for that the said A. B. , on , at , d-c, {as in the captions of the depositittns ;) And the said charge being read to the said A. B. , and the witnesses tor the itrosocution, V. D. and E F. , being severpUy examined in his presence, the said A. B. is now addressed by me as fol. /ws : ' Having lieanl the ovidencn, do you wish "to say anything in answer to tii' charge \ You are not obliged to say any- ■' thing, unless you desire to do so ; but whatever you say will betaken down " in writing, and may be given in evidence against you at your trial. " Where- upon the said A. B. saith as follows: {Here state irhateeer the prisoner maii say, and in his very wonLs as nearly m possible. Oct him to sign it if he will.) A. B. Taken before me, at , the day anil year tirst above mentioned. J. 8. 80 MAGISTRATES MANUAL. (7) MEWORANDt'M TO BE WRITTEN ON DOOUMENTS PRODUCED IN EVIDENCE. (Not in Stattite. Oke's For. p. 502. No. 44.) This is the plan (n of the depositiom) ; if there- fore, he the said C. D. shall appear at the next Court of Oyer and Terminer or Qoneral Gaol Delivery, (or at the next Court of General or Quarter Sessions INDir-TABLE OFFENCES. 81 of the Peace), to be holden in and for the District (or County, United Coun- ties, or as the case ma;/ he) of * , and there prefer or cause to be preferred a Bill of Indictment for the offence affiresaid, against the said A. B. and there also duly prosecute such indictment, then the said Recognizance to be void or else to stand in full force and virtue. it CONDITION TO PRO.SECUTE AND OIVE KVIDENCE. (Same itt otio, to thp((!/• County, United Counties, or as thr- erne may be,) of , and there to give evidence before the Gniiul Jury upon any Bill of Indictment which may then and there be pre- ferred against the said A. B. for the oH'ence aforesaid, and also to give evi- dence upon the trial of the said A. B. for the said otl'enco, if a True Bill should be found against him for the same. Given under my Hand and Seal, tliis iu the year of our Lord , at District (()/• Comity, iti.,) aforesaid. day of 9 in tho J 8. [L. S.] 84 MAGISTRATES MANUAL. (P 2) ^Ve B. 40. SUBSEQUENT ORDER T(» lUSCilAROE THE WITNE.S8. Canada, Province of , District f(»/- C< m nty , United Counties, or as the case nmy he, of To tl>e Keeper of tlio Common Gaol at , in the District (ur County, Sec), of aforesaid Whereas by O'*;/) order dated the day of ^i»M'., us in thi' Wurrnnt h) iipprehend), and it appears to (ine)ttt be necessary to remand the said A.B. : These are therefore to command you, in Her Majesty's name, forthwith to convey the said A. B. to the (Common (Uiol or Lock-xp Ilousi) at , in the hai UAL. (Q 2) See a. 44. RECOGNIZANCE OF BAIL INSTEAD OF KEMAND ON AN ADJOURNMENT OF EXk AMINATION. Canada, Province of , District {or County, United Counties, vr as the case may be), Of Be it remembered, That on the day of , in the year of Our Lord , A. B., of {labourer), L. M. of (f/rocer), and N. O. of {butcher), personally came before me (one) of Her Majesty's Justices of the Peace for the said District {or County, United Counties, or as the case may be), and severally acknowledged themselves to owe to our Sove- reign Lady the Queen, Her Heirs and Successors, the several sums following, that is to say : the said A. B. the sum of , and the said L. M. and N. 0. the sum of each, of good and lawful current money of Canada, to be made and levied of their several yoods and chattels, lands and tene- ments respectively, to the use of our said Lady the Queen, Her Heirs and Successors, if he, the said A. B. fail in the condition endorsed. Taken and acknowledged the day and year lirst above-mentioned, at before me, J. S. OONDITION. The condition of the within written recognizance is such, that whereas the within bounden A. B. was this day {or on last past) charged before me for that (ttc, a^t in the Warrant): And whereas the examination of the Witnesses for the prosecution in this behalf is adjourned until the day of {instant) ; If therefore the said A. B. shall appear before me on the said day of {instant), at o'clock in the (forej noon, or before such other Justice or Justices of the Peace for the said District {or County or United Counties, of or as the ruse may be), as may then bo there, to answer (/fo// r) to the said charge, and to be further dealt with according to law, the said recognizance to be void, or else to stand in full force and virtue. INDICTABLE OFFENCES. 87 (Q C) See s. 44. NOTICB OP BECOONIZANCE TO BE GIVEN TO THE ACCUSED AND HIS SURETIES. Canada, Province of , District (or County, United Countii- j, or (18 the case may be) of Take notice that you A B. , of , are bound in the sum of , and your Sureties L. M. and N. O. in the sum of , each, that you A. B. appear before me J. S. one of Her Majesty's Justices of the Peace for the District (or County, United Counties, or as the case may be), of , on , the day of { it^stant,) a,t o'clock in the (fore) noon, at , or before such other Justice or Justices of the same District, {or County, United Counties, or as the case may be) as may then be there, to answer (further) to the charge made against you by C. D. and to be further dealt with according to law ; and unless you A. B. personally appear accordingly, the Recogniz- ance entered into by yourself and Sureties will be forthwith levied on you and them Dated this day of , one thousand eight hundred and J. S. (^J 4) See 8. 45. CERTIFICATE OF NON-APPEARANCE TO BE ENDOKSEU ON THE RECOGNIZANCE. I hereby certify that the said A. B. hath not appeared at the time and place, in the above condition mentioned, but therein hath made default, by reason whereof the within written Recognizance is forfeited. J. S. (R 1) See s. 47. WARRANT TO CONVEY THE ACCUSED UEFORE A .JUSTICE OF THE COUNTY IN WHICH THE OFFENCE WAS COMMITTED. Canada, Province of , District (or County, United Counties, or as the case may be,) of To all or any of the Constjibles, or other Peace Offlcers in the said District (vr County, United Counties, or as the case may be) of 88 magistrates' manual. Whoreas A. B. of {labourer), hath this day been charged before the undersigned (on f) of Her Majesty's Justices of the Peace in and for the said District {or County, United Counties, or as the case viay be) of , for that(t('C., as in the M'orrant to ojiprehend) ; And whereas (/) have taken the de- position of C. D. a witness examined by {mc) in this behalf, but inasmuch as (7) am informed that the principal witnesses to prove the said otfunce against the said A. B. reside in the District {or County, United Counties, or as the case may be,) <>i where the said oflence is alleged to have been conmiitted : These are therefore to coiumand you, in Her Majesty's name, forthwith to take and convey the s-^id A. B. to the said District {or County, United Counties, or as the rase ma\i be,) of and there carry him before some Justice or Justices of the Peace in and for that District {or County, United Counties, or as the case nuiij be,) and near unto the {Township of ) where the oft'ence is alleged to have been committed, to answer further to the said charge before him or them, and to be further dealt with according to law ; and (/) hereby further command you to deliver to the said Justice or Justices the information in this behalf, and also the said de- position of C. D. now given into your possession for that purpose, together with this Precept. Given under my hand and seal, this the year of our Lord , at {or County, <(<•.,) of aforesaid. day of , in , in the District J. S. [L.S.] (R 2) See a. 4'.). RECEIPT TO BE (IIVEN TO THE CONSTABLE BY THE .JUSTICE FOR THE COUNTY IN WHU;H the OFFENCE WAS COMMITTED. Canada, Province of , District (or County, United Counties, or as the case may be) of I, J. P., one of Her Majesty's Justices of the Peace, in and for the Dis- trict {or County, &c.) of , hereby certify that W. T., Constable, or Peace Officer, of the District (or County, United Counties, or as the case may be) of , has on this day of , one thousand eight hundred and , by virtue of and in obedience to a Warrant of J. S., Estp'iro, one of Her Majesty's Justices of the Peace in and for the District (or County, UniteJ Counties, or as the ca»c may be) of produced bafore mo, one A. 6. charged before th« said J. S. INDICTABLE OFFENCES. 89 with having (dbc, sfatint) shotHy theofence,) und delivered him into the custody of by my direction, to answer to the said charge, and further to be dealt with according to law, and has also delivered unto me the said Warrant, together with the information {if any)in that behalf, and the deposition (s) of C D. (<»/«/ of ) in the said Warrant mentioned, and that he has also proved to me upon oath, the hand-writing of the said J, S. subscribed to the same. Dated the day and year first above mentioned, at District (or County, dtc.) of . , in the said J. P. (S 1) Scr a. 52. RECOGNIZANCE OF BAIL. Canada, province of District (<»• County, United Counties, <»■ ns (he ca.te mi(\i he) of Be it remembered, that on the of Our Lord , A. B. of (grocer,) and N. O, of day of , (IdhoHrer,) L. in the year M. of , (butcher,) person.'iUy came before (hs) the undersigned, (fwo) of Her Majesty's Justices of the Peace for the Di.strict (or County, United Counties, or ns thr vohc way he,) of and severally acknowledged themselves to owe to our Sovei-eign Lady the Queen, Her Heirs and Successors, the several sums following, that is to say : the said A. B. the sum of and The said L. M. and N. (>. the sum of each of good and law- ful ciUTent money of Canada to he made and levied of their several goods and chattels, lands and tenen)onts respectively, to the use of our said Sovereign Lady the Queou, Her Heirs and Successors, if he, the said A. B. fail in the condition endorsed. Taken and acknowledged the day and year first above mentioned, at before us. J. S. OONOITION. The condition of the within written Recognizance is such, that whereas the said A. B. was this day charged before (ii.i,) the Justices within men- tioned for that (tic., an in the H'^arrunt) ; if therefore the said A, B, will appear at the next Co>irt of Oyer and Terminer (or General Gaol Delivery 90 MAGISTRATES MANUAL. {or Court of General or Quarter Sessions of the Peace) to be holden in and and for the District (or County, United Counties, or iis the case may be) of , and there surrender himself into the custody of the Keeper of the Common Oaol or Lock-up House) there, and plead to such indictment as may be found against him by the Grand Jury, for and in respect to the charge aforesaid, and take his trial upon the same, and not depart the said Court without leave, then the said Recognizance to be void, or else to stand in full force and virtue. (S 2) See s. 52. NOTICE OF THE SAID RECOGNIZANCE TO BE GIVEN TO THE ACCUSED AND HIS BAIL. Take notice that you A. B., of are bound in the sum of and your Sureties (L. M. and N. O.) in the sum of , each, that you A. B. appear {d'c, as in the condition of the Recognizance,) and not de- part the said Court without leave ; and unless you, the said A. B., person- ally appear and plead, and take your trial accordingly, the Recognizance entered into by you and your Sureties shall bo forthwith levied on you and them. Dated this and day of , one thousand eight hundred J. S. (S 3) ^ee SB. 53, 55. WARRANT OF DELIVKRANCE ON BAIL BEING GIVEN FOR A PRISONER ALREADY COM*aTTED. Canada, Province of , District {or County, United Counties, or fw the case vmy be) of T«i the Keeper of the Common Gaol of the District {or County, United Counties, or as the case may he) of at , in the said District {or County, United Counties, or as the case may be). Whereas A. B. late of , [labourer,] hath before [us] [two] of Her Majesty's Justices of the Peace in and for the said District [or County, United Counties, or as the case may br] of , entered into his own Recognizance, and found sufficient surutius for his appearance at the next Court of Oyer and Terminer or General (^aol Delivery [or Court of Genera INDICTABLE OFFENCES, 91 or Quarter Sessions of the Peace] to be holden in and for the District [o» County, United Counties, or as the case may be] of , to answer Our Sovereign Lady the Queen, for that [d-c, as in the commitment], for which he was taken and committed to your said Common Gaol : These are therefore to command you, in Her said Majesty's name, that if the said A. B. do remain in your custody in the said Common Gaol for the said cause, and for no other, you shall forthwith suffer him to go at large. Given under our Hands and Seals, this day of y in the year of Our Lord , at in the District [oy County, &c.,] aforesaid. J. S. [h. s.] J. N. [l. s.] (T 1) See s. 56. WARKANT OF COMMITMENT. Canada, Province of , District [or County, United Counties, or as the case may be] of To all or any of the Constables, or other Peace Officers in the District [or County, United Counties, or as the case may be] of , and to the Keeper of the Common Gaol of the District [or County, United Counties, or as the case may be] at , in the said District [or County, &c.,] of i Whereas A. B. was this day charged before [me] J. S. [onk] of Her Majes ty's Justices of the Peace, in and for the said District [or County, United Counties, or as the case may be] of on the oath of C. D., of [farmer,] and others, for that, [tOc, statinij shortly the offence] ; These are therefore to command you the said Constables or Peace Offiaers, or any of you, to take the said A. B. and him safely convoy to the Common Gaol at aforesaid, and there deliver him to the Keeper thereof, together with this Precept ; And I do hereby command you the said Keeper of the said Common Gaol to receive the said A. B. into your custody in the said Common Gaol, and there safely to keep him until he shall ])e thunce delivered by duo course of law. Given under my Hand and Seal, this day of , n the year of Our Lord , at , in the District [or County, «&c.,l of aforesaid. J. S. [l. h.] 'ifH magistrates' manual. (T 2) Sec 8. 57. gaolers' receipt to the constable fob the prisoner. I hereby certify that I have received from W.T. , Constable, of the District [(/>• County, &c. ,] of , the body of A. B. , together with a War- rant under tlio Hand and Seal of J. S., Esquire, one of Her Majesty's Jus- tices of the Peace for the said District [or County, United Counties, or as the case («(»;/ he,] of , and that the said A. B. was [sober, or as the case may be,] at the time he was delivered into my custody. P. K. Keeper of the Conunon Gaol of the said District [or County, &o.] (10) complaint of bail for a person cnAROEn with an indictable opfencr IN OROER that HE MIGHT BE COMMITTED IV DISCHARGE OF THEIR RECOGNI- ZANCES. (Not in Statute. Oke's For. p. 514, No. 70.) Prori'fd ns in form No, 0, ante to the asterisk* ulterbuj it to two complaints if there he more than one surety, then thus: that they the said CD., and E, F., were on the day of now last past, severally and respectively bound by recognizance before .1. P., Esquire, one of Her Majesty's Justices of tho Peace for tlio said (county) of , in the puni of each, upon condition that one A. B., of itc, should appear at the next term of the Court of Queen's Bench (Crown Side), for the District of , (or Court of Oyer and Terminer and General Gaol Delivery, or Court of General Quarter Ses- sions of the Peace), to be holden in and for the {Conntij) of , and there surrender himself into tho custody of the Keeper of the {Comnwn Gaol) there, and plead to such indictment as might be found against him by tho grand jury for or in respect to tho charge of (stating the charge shortly), and take his trial upon tho same and not depart the said C(jurt without leave ; and that those complainants have reason to suspect and believe and do verily suspect and believe, that the said A. B. is about to depart from this part of the country ; and therefore they pray of me the said Justice that I would issue my warrant of apprehension of the said A. B., in order that he may be surrendered to prison in discharge of them his said bail. Before me, J. P. C. D. E. F. INDICTABLE OFFENCES. 93- (11) WARRANT TO APPREHEND THE PERSON OHARGEn. (Not in Statute. Oke's For. p. 514, No. 71. Venue should be as in T, 1.) To all or any of the Constables and other Peace Officers in the said District (or County, United Counties, or as the case may be) of , and toC. D. and E. F. , severally and resjjectively. ) Whereas you the said C. D. and E. F. , have this day made to wit : ) complaint to me the undersigned, one of Her Majesty's Justices of the Peace in and for the said (Cmintij) of , that you the said C. D. and E. F., were, &c., (ns in the complaint, No. (10), snpni fi> ihi cml) : Tliese tare therefore to authorize you the said C. D. and E. F. , and also to cnnnuand you the said {(^onstahle or other Peace Officer), in Her Majesty's name fortli- with to apprehend the said A. B. , and to bring him before me or eijme Justice or Justices of the Peace in and for the said {Connfii), to the intent that ho may be committed to the {Common (htol) in and for the said {('ouHtij), until the next Court of Oj'er and Terminer and (feneral (!aol Delivery {or Court of General Quarter Sessions of the Peace, to be holden in and for the .said {County) of "/• dr., «>■ the case maij he), unless he find new and sufficient sureties to become bound for him in such recngnizance as aforesiiid. Given under my Hand and Seal, this day of if our Lord , at , in the {Cr County, United Counties, or as the cane ma\j lit) of , and to the T<. Cj' T of the Common Gaol of the District (<»• County, United Counties, ,. • ... the case matj be) at , in the said District {or County, tS-c.,) 1 Whtireas on the day of instant, complaint wiw to wit : ) made to me the tmdorsigned (or J. S.) one of Her Majesty's Justices of the Peace, in and for tlie said (Co\inty) nf . by C. D. and E. F., of ./k/), I (or the said Justice) thereupon issued my warrant authorizing the said C. D. and E. F., and also couuimnding the said Constables of , and all nther IVace Officers in the said {Conntij) of , in Her Majesty's name forth- with to apprehend the said A, B,, and to bring him (follow to end of warranty 04 MAGISTRATES MANUAL. preceding form, sni)ra) ; and whereas the said A. B., hath been apprehended under and by virtue of the said Warrant, and being now brought before me *:h.o said Justice(o>-me the undersigned, one &c.,;and surrendered by the said CD. andE. F., his said Sureties, in discharge of their said Recognizances, I have required the said A. B., to find new and sufficient sureties to become bound for him in such Recognizance as aforesaid, but the said A. B. hath now refused so to do ; These are therefoi-e to command you the said Constables (or other Peace Officers) in Her Majesty's name, forthwith to take and safely to convey the said A. B., to the said (Common Gaol) at , in the said (County) and there deliver him to the Keeper thereof, together with this pre- cept ; and I hereby command you the said Keeper to receive the said A. B. into your custody in the said (Common Gaol), and him there safely to keep until the next Court of Oyer and Terminer and General Gaol Delivery (or Court of General Quarter Sessions of the Peace), to be holden in and for the said (County) of , unless in the mean time the saidjA. B. shall find new and sufficient Sureties to become bound for him in such recognizance as aforesaid. Given, &c., (as in the preceding form, supra.) SUMMARY CONVICTIONS AND ORDERS. 95 32 k 33 VIC. CHAP. XXXI. An Act respecting the duties of Justices of the Peace, out of Ses- sions, in relation to summary convictions and orders. [Assented to 22nd June, 1869.] Whereas It -s expedient to assimilate, amend and consolidate the statute law of the several Provinces of Quebec, Ontario, Nova Scotia and New Brunswick, res[)ectinf< the duties of Justices of the Peace out of Sessions in relation to summary convictions and orders, and to extend the same as so amended to all Canada : Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Cautada, enacts as follows : 1. In all cases where an information is laid before one or more of Her Ma- justy's Jnstici,-s of the Peace fur any Territ(jrial Division of Canada, that any person, i)eir^ within the jiu'isdiction of such Justice or Justices, has commit- ted or is suspected to have committed any otience or act over which the Par- liament of Canada h.as jurisdiction, and for which he is lialile l)y law, upon a Suuunary Conviction for the same befoi-e a Justice or Justices nf the Peace, to Ix," imprisoned or fined, or otherwise punished, and also in all cases where a complaint is made to any such Justice or Justices in relation to any matter over which the Parliament of Canada has jurisdiction, and upon which he or they have authority by law to make any order for the i)ayment of money or utherwise, such Justice or Justices rf the Peace may issue his or their Sum- mons [A], directed to such person, stating shortly the matter of the informa- tinn or complaint, and requiriiin him to appear at a certain time and place, Itefnre the same Justice or Justices, or before such other Justice or Justices of the same Territorial Division as may then be there, to answer to the said information or complaint, and to be further dealt with according to law. This Act did not come into oflect in Manitoba until the 1st day (if July, 1871. On and after that day it was in force there, suh- jri-t to the amendments mad*' in the 32 \: 33 Vic., chap. 30, and to tho.se of the 33 Vic, chap. 27. See 34 Vic, chai). 13, Sched. A. The Act was extended to Prince Edward Island l»y the 40 \'ic, ehap. 4, and to the District of Keewatin, by the 3!) \'ic. chap. iM, except so much of the Act or of any Act amending it as gives any appeal from any conviction or order adjudged or made under it ; 96 MAGISTRATES MANUAL. and to the North-west Territories, V)y the Act 38 Vic, chap. 49, except so much of the Act or of any Act amending it as gives any appeal from any conviction adjudged or made under it. The Act, was also extended to Bri\ ish Columbia by the 37 Vic, chap. 42. This section points out the distinction between an informailon and complaint. It is called an information where it is for an of- fence punishable on summary conviction, a complaint where it is sought to obtain an order merely ; a similar distinction exists be- tween convictions and orders, the former following an information and tiie latter following a comj)laint. See Movant v. Taylor, L. R. 1 Ex. D. 188. Under section 20 of the Act, complaints need not be in writing unless required to be so by some i)articular Act or law upon which such complaint is framed, but the Justice may, if he thinks fit, require them to be in writing. By section 24, all complaints and informations, unless some ])articidar Act or law otherwise refjuires, and except in cases where it is herein otherwise provided, may respectively be made oi' laid without any oath or aftiruiation as to the truth thereof. It is not necessaiy that an information should Ijc on oath or even in writing, unless recpiired to be so by some statute. Basten V. Garew, 3 B. & C. 649 ; Frid v. Fergmon, 15 C. P. (Ont.) 594; lie Conklin, 31 Q. B. (Ont.) 108 ; see section 24. By section 25 of this statute, where a warrant is issued in the first instance, the information must be upon oath. By the same section every infor- mation or complaint must be for one oft'ence only, or for one matter of complaint only. By section 25 every complaint or information may be laid or made by the complainant or informant in person, or by his coun- sel or attorney or other person authorized in tliat behalf. The person aggrieved or some specified individual must be the informer, if the statute so states. R. v. Daman, 2 B & A. 378. But if no prosecutor is described, then any person may inform. Morden v. Porter, 7 C B. N. S. 041, (iven though the penalties go to a speci- fied individuals. Coles v. Gotilton, 2 E. & E. 095. Where no time is specially limited for making the information or complaint, it nm.st, by section 20, be laid within three months from the time when the matter of the complaint or information SUMMARY CONVICTIONS AND ORDKHS. 97 arose. The word " month" means calendar month, 31 Vic, chap. 1 , sec. 7 fourteenthly. The time counts fnmi the matter which ^ives rise to the real ott'ence or cause of propeee observed. In the absence of any direction in the Act or law uptm which the complaint or information is franuMl, one Justice is suf- ficient. See sections 27 and 28. Where two Justices ai-e required, they must be ])resent and acting together during the whole of the hearing and determination of tlie case. See section 88. See also 31 Vic. chap. 1, s. 7, twenty-tifthly. lTnlst section of this Act, certain persons, such as the Recordei-, Police or Sfi- pendiary Magistrate, have the power of two Justices of the Peace, and may do alone whatever the Act authorizes two Justices to do. See also section 59 of the 32 & 33 Vic. chap. 30. Justices of the Peace have no jurisdiction to convict summarily at conunon law in any case, but in all cases a direct legislative authority must ))e shewn or the convictioji will be illegal. Bvoxn V. Ifiihn; 18 Q. B. (Ont.), 28(j. See also Fi'iynson v. Athnns^rt C^. B. (Out.), 194. The jurisdictiim of Justices to hear and determine offences sum- marily is entirely given by the statutes creating the offence — 7 98 MAGISTRATES MANUAL. although owing to some omission in the statute, summary juris- diction may not be expressly given, the Justices may still pro- ceed when it may reasonably be implied from the rest of the statute, that such jurisdiction was intended to be given to them. CuUen V. Trimhle, L. R., 7 Q. B., 416. The information should contain the name, addreas, and occupa- tion of the informer ; the date and place of taking, and description of the Justice receiving it ; the name of the accused, or a full description if tlie name is not known — see section H, which re- quires the Warrant to name, or otherwise de-scribe, the oii'ender — tJie date and place of the coumii-ssion of the otfence, shewing the jurisdiction of the Justice ; but stating the place in the mar- gin of the information is sufficient, 'and it need not be set out in the body. 82 & 33 Vic. chaj). 29,;s. U ; R. v. Cavanagh, 27 C. P. (Ont.), 537. The charge must be set out in such distinct terms that tht.' accused may know exactly what he h;is to answer, for the accused cannot Vx^ convicted of a different offence from that contained in the information. Martin v. Pr'ubjeon, 28 L. J. M. C, 179; ex parte Hogiu'., 3 L. C. R. !)4. There must also be an allegation of any particular matters necessary to l)ring the accused under the scope of the Act or law on whicli the proceedings are founded, i. e. when any particular description of person i.s mentioned in the Act, the accused must be describt;d as such person, aud when such words as " maliciously," " knowingly," tVcc , are used, the offence must be described as hav- ing been so connuitted. In stating the offence in the summons, or Warrant, the nearer the exact words of the statute are followed the better. Ex parte Perham, 5 H. & N., 30. If the proceeding is on a second offence the previous conviction .should be mentioned. Certainty and precision are re(|uired in the statement, and de- scription of an ortence under a penal statute, and an information charging several offences in the disjunctive is bad, though the words of the statute are copied in the information, the statute relating to several offences in the disjunctive. Ex parte Hoyne, 3 L. C. R. 94. The confession of the defendant to an information defective in the al)Ove particulars will not aid or cure the defect. SUMMARY CONVICTIONS AND ORDERS. 90 So an infoi'ination charging an oti'ence in the alternative, is bad. Therefore, where the information charged the defendant with "it'lUng l»eer or ale without a license, the Court held that it was liad, both in matte and substance, and could not be made out by evidence nor helj ed by intendment. K v. North, G D Q. B. (Ont.), 431); and if a party apj)ears and defends without any summons being i.ssued, he cannot afterwards object that there was no complaint on oath. E.c purti Wood, 1 Alhm, 422. But in order to give jurisdiction over the person of the offender, in the case of a sumiucuy conviction, it must eithei' appear that an information has been laid, or that the information has been waived. Sfoiress v. Lake, 40 Q. B, (Ont.), 326 ; R. v. Fletcher. L. R, 1 C. C. R., 320 ; IHakev. Beech, L. R., 1 Kx. 1)., 320 The plaintiff, on an information against him, under the (Ont.) 37 Vic, chap. 32, for selling li(|af)r without a licens(>, was brought b('foi'(; tlie defendants magistrates. It was proved that this was his second offence, though the infornuition did not chaiijfe it as such. The ])laintifr, )'ej)re,sente(l by counsel, disputiul the evidence as to tlie tiist conviction, but did not object to the information I'lsonei ami (he magistrates convicted and adjudged him to lie imprisoned foi SUMMARY CONVICTIONS AND ORDF.US. 101 ten days, which they iiad power to do only for a second offence. Tt was held that the plaintiff had waived the objection to the in- tVinnation, and that deferx'^nts were not liable in trespass. Stonesi< V. Lake, 40 Q. B. (Ont.), 320 ; see also Appleton v. Lepper, 20 C. P. K)nt.), 142 : Powell v. Wniiamsnn, 1 Q, B. (Ont.), 154: Friel V. Ferguson, lo C. P. (Ont.), 584. If no information is laid, and the objection is not waived, the conviction will be illegal. The re'^pondent laid an information brffjre a Justice, that a house was " Kept or used as a coiinnon gaming house," and thereupon the Justice granted a warrant under which the appellant was arrested at the house in question. He was l)rought before two Justices, and charge(l under the " Act for the Suppression of Betting Houses," as " the person " who ' having the management of a room " in the house used it " for the purpose of betting with persons resorting thereto." No information was laid, nor was any sunuuons issued under the last named stntute, and the appellant did not waive this omission. It was held that the appellant could not, under these cii'cumstances. lir legally convicted. Blah v. Beech, L. R., 1 E\. D., ;}2(). Where the infoi-mation is for one offen(!e, and where, if the dc- tcmlant appear, the charge against him is for another offence, the pidceedings are irregular, and a conviction eainiot be upheld. M'ltiiii V. Pridgeon, 1 K. cV: E., TTM. But such an irregularity may lir waived. Turner v. Ponfmasfer,ii. 5 B. ^^^ S., 75(). P^very objection to any information, for any defect apparent on tlirface thei'eof, should be taken l)efor(! the magistrate, when the sulistance of th«^ information is statctl to the defendant undersec- ti)bjection will be waivt'(l, and if the olijection is taken, the magistrate may forthwith cause the infor- mation to bo amended in such particular. Se(> R. v. C'ltvanagh, ■17 ('. P. (Ont,), 5.S7, iu which it was lu>ld that the .S2 & 3.S Vic, chap. 29, s. 32, applied to infoi'mations in cases of sunniiary con- victions ; see section 1 s.-s. 1, Where, therefoi'e, oltjectiun was taken to a conviction for ,selling linuor without liei'nse, that the conviction did not name or otherwise dosciilte the person to whom the li(pior WHS sold, it was held that tlu; objection sli(»uld have lieen made before the nuigistratci, and though a fatal objection, if 102 MAGISTRATES MANUAL. taken at the proper time, it was removed by the delay. The Court also seemed to be of opinion that section 5 of this Act (32 & 33 Vic, chap. 31) would of itself have been a sufficient answer to the objection. R. v. Cavdiuujli, supra. According to the decision in B. v. Gavanagh, 27 C. P. (Ont.), 537, that the Act respecting procedure in criminal cases 32 & 33 Vic, chap. 29, applies to informations in cases of summary convictions (see section 1 s.-s. 1) ; all the provisions of that Act already given in relation to indictable cases (see a)ite, 23-4) will apply to informations under this Act. The 14th section of this Act con- tains express provision in regard to the statement in informations of the j)roperty of partners or municipal cor|)orations. See also 32 k 33 Vic, chap. 29, sections 17 to 22 inclusive. The principle which li. v. (Javanayh , supra, sustains, namely, lequiring objections to be raised before the n)agistrate on tlie original hearing, is further enforced by the 07tli section of this Act, which provides that no appeal shall be .successful on the ground of variance, unless insi.sted on before the Justice, and un- less it appear that the Justice refused to adjourn, though it was shewn to him that the defendant was deceived or misled. See sections oand 12, also section 08. In ti. V. Cavan<(ly here, or limit the effect of the words " or otherwise." (lb.) 2. Every such summons slmll be served by a Constable or other Peace Officer, or other per.son to whom tlie same may be deliveied, upon the per- ,son to whom it is directed, l)y delivering,' the aaiiu- to the party personally, or by leaving it with some person for him at his last or most usual place of abode. If the summons cannot bu personally .si-rved it nuist be left for him at his prtisent j)lace of abodt! if he have one, or if not, then at his last place of abode. R. v. Evanx, l!l L. J., M. C, 151 ; R, v. Hiilharn, 7 E. \: B. 6.')7. it should l)e served a i-easoiuible time liefore the day appointed in it for his appearance, l>ut it is for the •Justice to decide whether the summons has been served a reason- able time before or not. Two days or more would generally be ileemed reasonable, {He WUliions, 21 \j. J., M. C, 40 ; vx purte Hop- wood, 15 Q. B. 121) ; as to rea.sonable time see .section 7 and note thereon. An objection to the service should be taken at the hear- ing. R. V. Berry, 23 J. P. 8(5. A summons under this Act may be served by any person to whom it is delivered, including eithertho 104 MAGISTRATES MANUAL. informant or complainant. The summons should bo signed in du- plicate, and one of them retained by the party serving. 3. The Constable, Peace Officer, or person who serves the same, shall attend at the time and iilace, and ])efore the Justice or Justices in the summons mentioned, to depose, if necessary, to the service thereof. It seeius thiit a connnissioner for taking affidavits has no power to sAvear to the affidavit of service of the sunnuons. M. v. Goldivij, 2 Pugsley, 8S.1. Under this section it seems the Justice must swear to the affidavit of service liimself. In every case wliere an oath or affirmation is directed to be made lu-fore a Justice, he has full i)ower and authority to admin- ister the same, and to certify to its being ma. 3 Allen, 281. See also sections 21 and 22, which contain fur- tlur provisions as to adjourinnent when the 'efendant appears to lia\(' l)een misled. t'. If till) pt^rHnii survecl with a Suiiiiiinns doi'H not aiipoiir bofon: tin- .liixtice or JiisticeH uL tlie tiiao and placo inentit)iu'd in tho SiininionH, and it l>i' madu to appear to tho Justice or .Justices, by oath or atlirniati'iii, that tlic Smanions was d\ily servi'd what the .histice or .l\iHtici;« decni a ri'ii.siiiiiil(K> tiiiu' l)efore the time therein api>ointod for appearing to tho saiae, then tlie •lusticoor Justices, upon oatii or aflirniation being laado before hini or tluni, .■^uliHtantiating the matter of tl'e information or complaint to his or their satis- fiutiun, may, if he or they think fit, issiie his or their Warrant (H) to appro- iuiul the party so siinuinaiud, and to bring him before the saniu Justice ur 100 MA(J1STRATES' MANUAL. •Justices or before some other Justice or Justices of the Peace in and for tlie same Territorial Divisi(»Ti, to answer to tlie said information or complaint , and to he further dealt with according to law ; or the Justice or Justices be- fore whom any such information is laid, for any such offence as aforesaid, punishable on conviction, upon oath or afhrmation being made before him or them substantiating the matter of the inform;;tion to his or their satisfaction) may, if he or they think fit, instead of issuing a Summons, issue in the first instance his or their Warrant (C) for apprehending tlie person against whom the information has lieen laid, and bringing him before the same Justice or Justices, or before some other Justice r)r Justices of the Peace in and for the same Territorial Division, to answer to the information and to be further dealt with according to law ; Provided that where a Warrant is issued in the first instance, the Justice issuing it shall furnish a copy or copies thereof, and cause a copy to be served on each party arrested at the time of such arrest. The latter part of tliis section, which authorizes the issue of a warrant in the first instance, is confined to informations and does not extend to coniphiints or orders. Under the 1 Vic, chap. 21, s. 27 a magistrate could not cause the arrest of a party in the first instance on a charge of neglect to perform statute labour. That Act required tlie prior issue of a summons. Crovkliite v. SoraervUle, 3 Q. B (Ont), 129. Where an Act of Parliament gives a Magistrate jurisdiction ovi'r an ofience, it im])liedly gives him power to make out a Warrant, and bring befoi'e him any person charged with such offence. Bane v. Methiien, 2 Bing. 03. Complaint under oath of an assault was made before a Justice on which he issued a summons, the defendant not appearing, the Justice on i»roof of service of the summoiis issued the warrant B, under this section, upon which the defendant was arrested, brought before the Justice and convicted — he protesting against the pro- ceedings. It was held that as there was a complaint under oath, the Justice had authority to issue a warrant in the first instance, and that his having used the form (B) instead of (C), did not make ih-^ p -v. -;t Illegal, and tliat lie had jiower to convict, though the u > , ! . t,i •ed was tlefective in not stating the day the del i. •'..:< V". X,:.) appear, li. v. Perkinn, Steiihens Dig. N. B., 250. If where a Summons has been issued, and upon the day and at tlie place SUMMARY CONVICTIONS AND ORDERS. 107 therein appointed for the appearance of the party summoned, the party fails t<> appear in obedience to the Summons, then, if it be proved upon oatti or aflir- mation to the Justice or Justices present, that a Summons was duly served upon the party a reasonable time before the time appointed for his appearance, tlie Justice or Justices of the Peace may proceed vx parte to the hearing nf the information or complaint, and adjudicate thereon, as fullj' and effectually to all intents and purposes as if ae party had personally appeared before him or them in obedience to the Summons. Justices ought to be very cautious how they proceed in \\\v absence of a defendant who lias been summoned only, unless they have strong ground for believing that the .summons has reachfil him, and that he is wilfully disobeying it ; and this rule applies, though under the second section of the statute, the summons may be legally '":erved by leaving the same at the last or must usual place of abode of the defendant. The defendant was a tish- erman, and went to sea in pursuit of his calling on the 9th of March. On the same tlay a summons for an assault was taken out against him requiring him, to appear to answer the charge upon the 12th. On that day it having been proved that a sum- ihons was served on the defendant on the lOth by leaving it with his mother at his usual place of abode, the Justice convicted him in his absence, though it did not appear that the defendant's mother knew the nature of the sunnnons. The defendant re- turned on the 9th of April, and was arrested under the conviction, but the Court held that there was no evidence that a reasonaltle time had elapsed between the time of the service of the summons and the day for hearing, and that the Justices had therefore no jurisdiction to convict, li. v. >Si)iith, L. K. 10 C^. B., 004. It will be observed that the sixth section of the Act gives the Justice tice power to issue a warrant on the non-appearance of the party in obedience to the summons. It is reconuui'uded that this course be pursued by the Justices In every case before conviction. It is .sanctioned also by the 32nd section ol' this Act. Where a statute fixed no period for delay betwt.'en the service and the return of the summons, it was held that a service on the defendant at his domicile, twenty miles from th« place where he was by the writ sununoned to appear on the t'ollovving day, at ten o'clock in the forenoon, the service being etlected about three 108 MAGISTRATES MANUAL. o'clock in the afternoon of the day preceding, was not reasonaVde, and the plaintiff could not legally proceed ex parte. Ex parte Church, 14 L. C. R., SLS. S. Everj' Warrant to apprehend a Defendant that he may answer to an information or complaint shall be under the hand and seal or hands and seals of the Justice or Justices issuing the same, and may be directed to any mie or more, or to all of the Constables (or other Peace (Officers, of the Territorial Division within which it is to be executed, or to such Constable and all other Constables in the Territorial Division within which the Justice or Justices wlio issued the Warrant hath or have jurisdiction, or generally to all the Constables (or Peace Officers) within such Territorial Division, and it shall state shortlj' the matter of the information or complaint on which it is founded, and shall name or otherwise describe the person against whom it has been issued, and it shall order the Constables (or other Peace Officers) to wliom it is directed to apprehend the Defendant, and to bring him before one or more Justice or J.stices of the Peace, of the same Territorial Divi- sion, as the case may require, to answer to the information or complaint and to be further dealt with according to law. See observations under section 17 of the 32 & 33 Vic, chap. 30, n))tr, p. 33-4. 0. It shall not be necessary to make the Warrant returnable at any parti- cular time, but the same may remain in full force until executed ; and thj N\';m'ant may be executed l)y appi'ehending the Defendant at any place in the Territorial Division within which the Justices who issued the same have jurisdiction, or, in case of fresh pursuit, at Jiny place in the next adjoining Territorial Division within seven miles of the border of the first mentioned Torritnrial Division, without having the Warrant backed as hereinafter mentioned. 10. In all cases where the Warrant is directed to all Constables or Peace Officers in the Territorial Division within which the Justice or Justices who issued the same have jiirisdiction, any Coustable or Peace Officer for any place within the limits of the jurisdiction may execute the Warrant in like manner as if the Warrant was directed specially to him l)y name, and not- withstanding that the place in which the Warrant is executed be not within the place for which he is a Constable or Peace Officer. 11. If any person against whoni any Warrant has been issued be not foimd within the jurisdiction of the Justice or Justices by whom it was issued, or, if he escapes into, or is, or is suspected to be in any place within Canada, out of the jurisdiction of the Justice or Justices who issued Ihe Warrant, any Ju.stico of the Peace, within whose jurisdiction such person may be or be sus- SUiMMAHY CONVICTIONS AND ORDERJ^. ior» pected to be, upon proof upon oath oraflirniation of the h.amhvriting of the Justice or Justices issuing the Warrant, may make an endorsement upon it, signed with his name, authorizing the execution of the Warrant within his jurisdiction ; and such endorsement shall be a sufficient authority to the per- son bringing the Warrant, and to all other persons to whom it was originally directed, and to all Ct)n8table8 t^r other Peaue Ofiiueis of tfie Territonai Division wherein the endorsement has been made, to execute the same in miy place within the jurisdiction of the Justice of the Peace endorsing the same, and to carry the offender, when apprehended, before the Justice or Justices who first issued the Warrant or some other Justice having the same juris- diction. 12. No objection shall be taken or allowed to any Warrant issued as afore- said, for any alleged defect therein in substance or in form, or for any vari- ance between it and the evidence adduced on the part of the Informant or Complainant, but if it appears to the Justice or Justices present and acting at the hearing, that the party apprehended under the Warrant has been deceived or misled by any such variance, such Justice or Justices may, tipon such terms as he or they think fit, adjourn the hearing of the case to some future day, and in the meantime commit (D) the Defendant to the ComiunnCiani. or other prison, or place of security within the Territorial Division or iii.-u'e wherein the Justice or Justices may be acting, or to such other custody as the .Fustice or Justices think tit, or may discharge him upon his entering into a Recognizance (E), with or without surety or sureties, at the discretion of the Justice or Justices, conditioned for his appearance at the time and place to which the hearhig is so adjourned. 13. In all cases where a Defendant is discharged upon Recognizance and does not afterwards appear at the time and place in the Rucngnizancc nieii- tinnod, the Jiistice who took the Recognizance, or any Junticc nr Justices whn may then be present, having certified (F) upon the back of the Recogni- zance the non-appearance of the Defendant, may transmit sucli Recognizance to the proper C)fiicer in the Province ajtiioiuted by law to receive the same, to be proceeded upon in like maimer as other ReLO^Miizances. and suchCorti- ticate shall be deemed sufficient jjc/j/k* /((cic evidence ni tlie non-appearance of the said Defendant, and the Justice or Justices may is8\io his or their \N arrant for the apprehension of tlie Defendant on the information or com- plaint. 14. In any information or complaint or proceedings thereon, in which it Im necessary to state the ownership of any property belonging to or in possession of partners, joint tenants, parceners or tenants in conmion, or fior indirin, it shall be sutlicient to name one of such persons, and to state the projiorty to l>elong to the person so named and another, or others, as the case may be ; and whenever in any information or complaint or the proceedings thereon, it 110 MAGISTRATES MANUAL. IS iiecocHsai-y to mentio"^, for any purpose whatsoever, any partners, joint tenants, parceners or tenants in common, or par iiuliciii, it shall be sufficient to describe them in the manner aforesaid ; and whenever in any information or complaint, or the proceedings thereon, it is necessary to describe the ownership of any work or building made, maintained or repaired at the expense of the Corporation or inhabitants of any Territorial Division or place, or of any materials for the making, altering or repairing the same, they may be therein described as the property of the inhabitants of such Territorial Division or place. * 15. Every person who aids, abets, counsels or procures the commission of any offence which is punishable on summary conviction, shall l)e liable to be proceeded against and convicted for the same, either together with the prin- cipal offender, or before or after his conviction, and sluiU be liable, on convic- tion, to the same forfeiture and punishment as the principal offender, and may be proceeded against and convicted either iu the Territorial Division or place where the princip.i-1 nfffinder may be convicted, or in that in which the otlVmce of aiding, abetting, counselling or procuring was committed. Wliere a master intends a servant to commit some offence, he should be sunnnoned as principal, and the servant as aitling and abetting, (Wilson v. Stetvurt, 3 B. tSi S.,913); or the master may be charged with aiding the servant. Hoiuells v. Wynne, lo G.B.N.S. 3. In some cases the master may be responsil)le for the criminal act of his servant, though done without his knowledge, — as, for example, under the Licensing Act. Mullins v. Collins, 38 J. P., 34'. A conviction cannot be procured under this section, unless the ))rincipal offence has been committed. Though there may be accessories after the fact in regard to felonies, there can be none such in the case of an offence punishable on sununary conviction, as tlie above section only a[)|)lies to aiding, cVc, the commission of any offence. Kerr's Acts, 165. 1(). If it be made to appoiir to any Justice of tlie I'cace, by the oatlx or aftirmation of any credible person, that any person within the jiui.sdictionof such Justice is likely to give material evidence on behalf of the prosecutor or complainant or defendant, and will not voluntarily apjiuar as a witness at the time and place appointed for the hearing of the information or complaint, the Justice shall issue his Summons (G 1) to such person, requiring him to be and appear at a time and place mentioned in the Summons, before the said Justice, or any other Justice or Justices of the Peace for the Territorial Division who may tiion be there, to testify what ho knows concerning the information or complaint. SUMMARY CONVICTIONS AND fUlDKRS. Ill Under this section the witness must be within the jurisdiction of the Justice, but eitlier party, either prosecutor or defendant, may invoke the provisions of the section. The plain rule is that witnesses for the defence, in the absence of any provision expressly taking away the right to examine them, are admissible as a matter of un([uesti()nable right. Where, therefore, a party was convicted under the Public Health Act (Ont.), 36 Vic, chap. 43, the magisti-ates refusing to hear witnesses for the defence, on the ground that the statute made no provision for such witnesses being called, the complaint was re-opened by the Court. Be Holland, 37 Q. B. (Ont.), 214. A Justice cannot be oi'dered to attend at the house of an infirm witness to take his deposition. Ex parte Klmbolton, 25 J.P., 759. Every prosecutor of any information who has not a pecuniary interest in the result, and every complainant, whatever his interest may be, is a competent witness, and a liability for costs will not rxclude a prosecutor, see sec. 45. The 32 & 33 Vic, chap. 29, s. .')8, and following sections, contain the law as to witnesses and evidence in criminal cases. As a general rule crime or interest does not exclude a witness, see sec. 02. The sixty-fourth section of this Act was amended by the 40 Vic, chap. 26. The Justice under this section can, as we have already seen, issue his summons to \vitnesses for the informant, coin])lainant, or defendant, whilst under the 32 & 33 Vic, chap. 30, he can only summon witnesses for the prosecution, but the person .so to be summoned must by the oath or atttrmatiou of the person whose ileposition supports the application, be shewn to be within the jurisdiction, i.e., the territorial division, of the Justice to whom it is made ; whilst under the 32 i^' 33 Vic, clia[). 30, he can summon any one within the limits of C'aiiinla. The power of the Justice under this section to is.sue summons and warrant is conditional n})oii its lieing made to ajiptvar by the (xith or (iffiymatUm of any credible person, that any person within the jurisdiction of such Justice is likely to givi; material evidence on behalf of the prosecutor, and will not voluntarily appear; with- out .such oath the summons or warrant is unauthorized. Cross v. Wilcox, 39 Q. B, ((Jnt.), 193. 112 MA(JISTRATE,S MANUAL. These sections in no manner apply to th(3 case of a ])n)secutor unwilling to proceed, and entitled so to refuse (as for instance where the charge is of assault only), but only to the case of a niatoi'ial witness other than the prosecutor refusing to atteny the Sinnnions, and no just excuse be otiered for .such neglect or refusal, then (after proof upon oath or attirmation of the Sununons having been served upon him, either personally or by leaving the same for him with sf>nie person at his last or most usual place of abode) the Justice or Justices before whom s';.-i person should have appeared may issue a Warrant (G 2) to bring and have audi pers(jn, at a time and place to be therein men- tioned, before tlie Justice who issued the Summons, or before any other .Justice or Justices of the Peace for the same Territorial Division who maybe then there, to testify as aforesaid, and the said Warrant may, if necessary, be backed as hereinbefore mentioned, in order to its being executed out of the jurisdiction of the Justice who issued the same. IH. If the Justice is satisfied, by evidence upon oath or affirmation, that it is probable that the person will not attend to give evidence without being compelled so to do, then instctad oi issuing a Summons he may issue liis War- rant (U 3) in the tirst instance, and the Warrant may, if necessary, be backed as aforesaid. U). If on the appearance of the person so summoned before the last men- tioned Justice or Ju.sticea, either in obedience to the Summoms, or upon be- in'_;- brought liefcre him or them, by virtue of the Warrant, kucIl person refuses to be examined upon oath or attirmation concerning the premises, or refuses to take an oath or athrmation, or having taken the oath or attirma- tion refuses to answer such ([uestions concerning the premises as are then put t(j him, without ottering any just excuse for his refusal, any Justice of the Peace then present, and having jurisdiction, may, by Warrant ((i 4), commit the per8t)n so refusing to the Common Gaol or other prison for the Territorial Division where the person then is, there to remain and be imprisoned for any time not exceeding ten days, unless in the meantime, he consents to be ex- amined and to answer concerning the premises. A Justice of the Peace may counnit a feme covert who is a SUMMARY CONVICTIONS AND ORDKRS. 113 material witness on a charge of felony brought before him, and who refuses to appear at the Sessions to give evidence, or to find sureties for her appearance. Bennct v. Watmn, 3 M. & S. 1. A magistrate has no right to issue a waicant for the apprehen- sion of a person to attend to find bail for his appearance as a witness at the Assizes, although it is sworn that the witness is material and has refused to obey a summons which had previously been issued to givo evidence before the magistrate. Eva as v. Rees, 12 A. & E., 55. 20. In all cases of complaint upon which a Justice or Justices of the Peace may make an order for the payment of money or otherwise, it shall not bo necessary that such complaint be in writing unless it be reprohon(l the Defendant, and in every case where the Justice or the Justices i.ssue hiH or tlieir Warrant in the first instance, the matter of the information sliall be 8ul)stantiated by tLj onth or affinnation of the informant, nr by some witness or witiiesses on his behalf, before the Warrant shall be issued ; am' " .'ery c(miplaiiit shall be for o7^ i.-.atter of complaint only and not for twn or more matters of complaint, and every information shall bo for one ofi'enco only, and not for two or more ollencos, and every complaint or information may bo i,;id or made by the complainant or informant in person, or by his Couniel or Attorney, or other person authorized i . that belialf. This sect'on does not prevent a |)riiu'ipal and an ai such direction in any .\o( the custody of the constable, " or to such other safe custody " as the Justice may think fit (lb.). A wan-ant of connuitment for an indefinite time, or which directs the pi'isoner to be kept in custody until the costs are paid, without stating the amount, is bad, Dawson v. Framr, 7 Q. B. (Out.), 3tU ; see also Dickson v. Cvahh, 24 Q. B. (Ont.), 494; fol- lowed iii Mofdtt V. Barnard, 24 Q,B. (Gnt.), 4i)«. A wan-ant reciting a coroner's in((uisition, and stating the ort'ence as follows: — that C "stands charg(Ml with having iiiHicted lilows on the l)()(ly of tlie said F," and not showing tlu; place where the blows, if any, were inllicted, or the off'en(;t;, if any, was committed, is bad. Ii( Carniirharl, 10 U. O.L.J. , 32.'). The war- i-ant .should show the place. He Birhi', 3 I*. II. (Ont.j, 270. Omitting to state the conviction of a defendant in his warrant of coiujuitment, will not subject a Justice to an action for false imprisonment, provided the actuid conviction is pioved u])on Iuh defence. Wlichni v. ^Sfe^rns, Taylor, 24'). 118 MAOISTHATES MANUAL, A warrant, for non-perfoniiance of statute laboiii-, to imprison for the remainder of the jienalty, for twelve days absohitely, and not unless the fine and costs should be sooner paid ; and after alleging summons, appearance, conviction, and warrant of distress, averred that part of the sum directed to be levied had been made, and that the ])laintifl" had no more goods, it was held that the warrant was clearly bad, because it was after part of the fine had been paid, and was for an absolute time, and not unless fine and costs should l)e s(joner ])aid. Trhjcrnon v. Board, P.O., O.S. 40'). Under the Summary Punishment Act, magistrates could not issue their warrant to iniprison absolutely for so many days, l)ut only to imprison foi- so many days, unless the fine and costs be sooner paid. Ferguson v. Adam^, 5 Q.B. (Ont.), 194. 34. If upon the day and at the place sti appointed, the Defendant appears voluntarily in (obedience to the Summons in that behalf served upon him, or is brought before the .Inatico or Justices by virtue of a Warrant, then, if the Complainant or Informant, having had due notice, does not appear by him- self, his Counsel or Attorney, the Justice or Justices shall dismiss the com- plaint or information, unless for some reason he or they think proper to adjourn the hoaring of the same to some other day, upon such terms as he or they think tit . which case tlie Justice or Justices may ccmimit (D) the De- fondiint in the meantime to the Conniion Gaol, or other prison, or to such other custody as he or they think tit, or may discharge him upon his entering into a Rocogiiizance (E) with or without snrety or stireties, at the discretion of the Justice or Justices, conditioned f(U' his appearance at the time and place t(i which ancli heming may be adjourned. 35. If the Defendant dies not afterwards appear at the time and place men- tioned in his Recognizance, then the Justice who took the Recognizance, or any Justice (ir .luHtices then and there pi-esent, having certi tied (F) on the back of tilt! iicingnizaiice the non-appearance of the Defendant, may trans- mit the Recognizance to the proper ofHcer appointed to receive the same, to bo proceeded upnn in like manner as nther recognizances, and such certiticate shall be deemed suHicient jiiinid fariv evidence of the non-appearance of the Defendant. 30. If bittli parties ap[ieiir, either persoinilly or l)y their resiioctive Ctmnsel or Attorneys, before the .lustice or Justices who are to hear and de- termiiut the complaint or information, then the said .lustico or Justices shall proceed to hear and determine the same. 37. In i^ase the Defendant be [iresent at the hearing, the substance of the SUMMARY CONVICTIONS AND ORDERS. 119 information f)r complaint shall be stated to him, and he shall be asked if he lias any canse to show why he should not be convicted, or why an order should not be made against him, as the case may be. 38. If he thereupon admits the truth of the information or complaint, and shews no sufficient cause why he should not be convicted, or why an order should not be made against him, as the case may be, the Jiistice or Justices {iresent at the hearing, shall convict him or make an order against him accordingly. 39. If he does not admit the truth of the information or complaint, the Justice or Justices shall proceed to hear the Prf)secutor or Complainant and such witnesses as he may examine, and such other evidence as he may adduce in support of his information or complaint, and shall also hear the defendant and such witnesses as he may examine, and such other evidence as he may adduce in his defence, and also hear such witnesses as the Prosecutor or Complainant may examine in reply, if such DefendaTit has examined any witnesses or given any evidence other than as to his (the Defendant's) general character. Although this section docs not say how the examination shall be taken, yet it seems to be the duty of the magistrate to take the examination and evidence in writing. R. v. FlanvUjav, 32 Q. B. (Ont.), 093-599. Under this section the prosecutor or complainant has no right to go into evidence in reply, unless the defendant lias examined witnesses other than as to his i^t^neral character. 40. Tlie Prosecutor or Complainant shall not be entitled to make any obser- v;vtions in reply, upon the evidence given by the Defendant, nor shall tht- I'efondant be entitled to make any observaticms in reply upon the evidence given by the Prosecutor or Complainant in reply. 41. The .lustice or Justices, having heard what each party has to say, and the witnesses and evidence adduced, shall consider the wliole matter, and, unless otherwise provided, determine th'- same, and convict or make an < 'rder ujion the Defendant, or dismiss tlu' information or complaiut as the c;i8e may be. 42. If lie or they convict or make an order against the Diffeudaiit, a minute at care must be taken with the })art of the order reciting tlit; i' • hich give the jurisdiction, for it is essential that the order -' r an the face of it that the Justices had jurisdiction to uuikc il. otherwise it will be bad (R. v. Spackman, 2 Q. B., 301) ; or T m fact tl.e Justices had not juris- diction, although it be represented '\ tn. jdce of the order that they had — the order may be impugned upon afhuavit and quashed, although it appear good on the face of it. R. v. Bolton, 1 Q. B., 0(j. An order may be good in part antl bad in the rest. jR. v. Over, 14 Q. B., 425. It must appear also that the person upon whom the order was made, either was present at the hearing or was sunnnoned in order to show that he had an opportunity of resisting the order if he objected to it, unless indeed the order be intended by the statute to be ex parte, and be made upon the application of the party to whom it is to be directed. In the last part the only care requisite is, that the matter of complaint be adjudged to be true (R. v. Williams, 21 L. J., M. C, 150 ; and that the order be strictly such as is w^arranted by the statute. The 32 i: 33 Vic. chap. 31, s. 51, provides in case an order be made, and no particular form of order is given by the Act or law, giving authority to make such order, and in all cases of orders made ujider the authority of any Act or law hitherto passed* whether any particular form of order is therein given or not, the Justice V)y whom the order is made, may draw up the same in such one of the forms of orders (K 1, 2, 3), as may be api)licable to the case or to the like ett'ect. Where an order of a Justice or Justices legally made, re(iuiies a person to do any certain act, and, ujxjii SUMMARY CONVICTIONS AND ORDERS. 121 being pi^-rsonally served with the order and required to do the act he refuse or neglect to do it, this is a misdemeanor at common law, punishable upon indictment by fine or imprisonment or both. M.y. Bidivell, 17 L. J., M. C, 99 ; R. v. Ferrall, 20 L. J., M. C, 39 ■ Rv. Walker, L. R., 10 Q. B., 355. A defendant who has been convicted is not entitled of right to a copy of the conviction, to enable him to appeal against it. R. V. Huntingdon, 5 D. & R., 588. He is, however, under this section, entitled to a minute, or memorandum of the conviction, without any fee, and if he wants the copy of conviction for pur- poses of defence in any action, a Justice who refuses it may have to pay the costs of a certiorari to obtain it. R. v. Huntingdon, supra. A copy given to the defendant will not be binding, since the Justices may draw it up in an amended form any time before a return to a certiorari, though after a commitment or distress, and after return to the sessions. R. v. Richard'^, 5 Q. B., 920 ; R. v. .lohnson, 3 B. & S., 947. A. Justice is liable to an action if he prevent, by undue delay and after notice, the defendant from pro.secuting liis appeal. Prom'r v. Hyde, 1 T. R., 414. The blanks in the conviction should be filled up before signa- ture. Bott v. Ackroyd, 28 L. J., M. C, 207. The magistrate need not fix the amount of penalty at the moment of conviction. It is enough that it be fixed in the con- viction when drawn up. R. v. Liston, 5 T. R., 338. The Justices can mitigate a penalty where no minimum is fixed by the statute. 43. If the Jiiatice or Justices dismiss the information or comphiint, he or tliey may, when recjuired so to do, make an order of dismissal of tlie same (L), and shall give the Defendant a Certificate thereof (M), wliich Certiticato upon being afterwards i)roduced, shall, without further proof, be a bar to any siibseifuent information or ctmiplaint for the same matter, awitist the same party. The certificate of dismissal in this section refers to a dismissal on the merits. Foster v. Hull, 33 J. P., (J29. 44. If the information or complaint in any case negativts any exemption, , exception, proviso, or condition in the Statute on whioii the same is friimed,. MAGISTRATES MANUAL. it sliall 111 it 1)0 necessary for the Prosecutor or Complainant to prove such ni-(,'ative, but the Defendant may prove the affirmative thereof in his de- fence, if he would have advantage of the same. 4> Every Pnisecutor of any information not having any pecrtniiary inter- est in the result, and every Complainant in any coiuplaint, whatever his in- terest may be in the result of tlie sauie, shall be a competent witness to sup- port such information or complaint ; and every witness at any hearing shall be examined upon oath or affirmation, and the Justice or Justices be- fore wliom any witness appears for the purpose of being examined, shall have full pensation for a wrong he cannot testify, and the same rule applies to the infoi-mant's wife. On the other hand a com- plainant seeking an ortler, whatever his interest may be, is a coni- petent witness, and his wife is also competent. Kerr's Acts, 202. This section requires that the witnes.ses shall be examined on oath. Where magistrates first took the examination of witnesses not on oath, in support of a conviction, and afterwards swon' them to tlie truth of their evidence, the Court expressed its dis- ajtprobrttion of the practice. R. v. Kiddy, 4 D. & R, 7S4. It is to be observed that, undei' the })()tli section of this Act, tilt' t'videnee of the i)arty aggrieved, and also the evidence of any inliabitant of the district, county or place in which any otience was conunitted, shall l>e admitted in proof of the ott'ence, net- withstnnding that any forfeiture or penalty, inciu'red by the of- fence, may be payable to any })ublic fund of such district, county or place. 4(). Before or during tlie hearing of any information or complaint, any one . Justice or the Justices present may, in iiis or their discretion, adjourn the liearing of the same to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties, or of tiieir res- pective Attorneys or Agents then present, and in the meantime the Justice ir Justices may sutfer the Defoiulant to go at large or may connnit (D) him to the Common (iaol or otiiei' i)risnn, within the Territorial Division for SUMMARY CONVICTIONS AND ORDF-HS. i2:i which the Justice (ir Justices are then acting, or to sucli other safe oistody as the Justice or Justices think tit, or may discliarge tlie Defendant upon his recognizance (E), with or without sureties, at tlie discretion of the Justice or Justices, conditioned for liia appearance at the time and phice to wliich such hearing or further liearing is adjourned, but no such adjourinnent shall lie for more than one week, A prosecution for selling li(j[Uor without license was instituted before A, a Justice of the Peace, who, on the return of the suni- nions, adjourned the trial. The defendant thi'U went hefort^ another Justice, and admitted the sale, whereu])on such Justice imposed a fine upon him. At the adjourned hearing- before A, the defendant pleaded this conviction in bar, but A notwithstand- ing proceeded with the case, and convicted the defendant, and this conviction was held good. R. v. Rohcrts, Stc^phens' Dig. N. B., 2o«. One Justice of the Peace has power at the retuin day of the suunnons to adjourn the ju'oceedings to a future day under the Sunnnary Conviction Act in New Brunswick (1 Rciv. Stat., chap. IMN, s. 21), though jurisdiction t(^ hear the case is given to two Justices. Kr piii'tc Holder, Stephens' Dig. N. B., 2o6. The same rule would seem to apply to this secticjn of the statute. Where a person was bi ought V)efore a magistrate on a charge of threatened a.s.s.-uilt, and was ordered by the nuigistrate to find sureties to keep the ])eace, which, not being immediately able to do, he I'emained in the custody of a lolice constable for thro*- hours, during which time the magistrate frecpiently visited him to ascertain if he had found bail, and at night n/)hdev v. l\'n)(/, (i O. S., 50(5. But when a magisti-ate allows a prisoner to de[)art without e.xamining into the charge against him with a direction to appeal- next morning at the police office, and in tlu^ meantinu' on the ground that he was as.saulted by the pri.soner when in custody befoic him, gives 124 MAGISTllA'l'ES MANUAL. a verbal order to a constable to apprehend him and take him to the station-house or gaol ; such imprisonment is illegal, and the magistrate cannot justify the arrest. Powell v. Williamson, 1 Q. B. (Ont.), 154. 47. If, at the time and place to which the hearing or further hearing has been adjourned, either or both of the parties do not appear, personally or by his or their Counsel or Attorneys respectively, before the Justice or Justices or such other Justice or Justices ;i3 may then be there, the Justice or Justices then there present may proceed to the hearin;,' or further hearing as if the party or parties were present. 48. If the Prosecutor or Complainant do not appear, the Justice or Jus- tices may dismiss the information with or witlKJUt costs, as to him or them seems fit. 49. In all cases when a defendant is discharged upim his recognizance, and does not afterwards appear at the time and place mentioned in the recogniz- ance, the Justice or Justices who took the recognizance, or any other Justice or Justices who may then be there pre-seut, having certified (F) on the back of the recognizance the non-appearance of the accused party, may transmit such recognizance to the proper officer appointed to receive the same by the laws of the Province in which the recognizance was taken, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient ^rima/aoic evidence of the non-appearance of the Defendant. 50. In all cases of ccmviction where no particular form of conviction is given by the Act or Law creating the offence or regulating the prosecution for the same, and in all cases of conviction upon Acts or Laws hitherto passed, whether any particular form of conviction lun been therein given or not, the Justice or Justices who convict, may draw up his or their con- viction, on parchment or on paper, in such one of the forms of conviction (I 1, 2, 3,) as may be applicable to the case, or to the like effect. Where an Act of Parliament gives the form of conviction for nny offence prohibited by the Act, that form must be followed, and a wari'ant granted on a conviction drawn up in any other form is illegal, and the Justice and those acting under it, are tres- passers. Dansoii V. Gill, 1 East, (54 ; Goss v. Jackson, 3 Esp., 198. In the use of the forms of conviction given by this Act, it must be remembered that they are applicable to all ])revious penal stat- utes, whether they contain particular forms of convictioiLs or ordei SUMMARY CONVICTIONS AND ORDERS. 125 orders or not ; and to all subsequent statutes not containing parti- cular forms of convictions or orders. Ex parte Allison, 10 Ex., .■).t1. If by any subsequent statute a particular form be prescribed as indispensably necessary, such provision must be strictly com- plied with. R. V. Jefferies, 4 T. R , 169. The blanks in the form of a conviction for a penalty and costs to be levied by distress, and in default of sufficient distress by imprisonment, are to be fillolaint, to one oflence or matter of complaint, also limits the convic- tion to one ottence, save where the contrary is provided l>y a subse- (j[U' +atute. In all cases then the wording of the statute crea- ting ..e offence is to be carefully considered in order to determine whether distinct penalties are incurred for each of the several acts chai'ged, or whether they form but one aggi'egate offence, and require but one penalty. See Colli /is v. Ilo/^'-'Ood, 15 M. & W. 4.59; Paley 218, 221. But of late years the distinction formerly recognised as existing between joint and several offences has been done away with, and the Courts treat all persons connnitting an offence together as liable each to the full penalty imjiosed by the statute on the person committing such offence, .so that in all such cases it is the better plan to have an information and summary case for each person charged. Mayhew v. Wonlh'jj, 14 (.'. B., N. S., r>50; Kerr's Acts, 197. i sufficient, if a conviction follows the foinis set cut in the st .J, for the forms are intended as guides to Justices. an, B. (Ont.), 552. A conviction adjudging the defendant to lie imprisoned for twenty-five days, or payment of £5, and costs, in the alternative is bad. R. v. Sadler, 2 Chit., 519 ; R. v. Worl- man, 4 Allen, 73; R. v. Pain, 7 D. c^' R., 078. 128 MAGISTRATES MANUAL. All exceptions contained in the enacting clause of a statute, must be negatived in the conviction. For instance, if a statute imposes a penalty for selling liquor without license, except upon a requisition for medicinal purposes, the absence of such requisition must be shewn in the conviction. R. v. White, ?l C. P. (Ont.), 354. This rulo,however, applies only where the exception is contained in the same section of the statute as that constituting the offence, and where the exception is in a different subsequent section, it need not be negatived in the conviction. R. v. Breen, 36 Q. B. (Ont.), 84. Evt.'n where the exce[)tion in such subsequent section is incorporated by reference with the enacting clause, for the re- ference must be in the enacting clause itself, and not to it. See also R. V. Stmchan, 20 0. P. (Ont.), 182. ' A conviction under a by-law must shew the by-law, that the Court may judge of its sufficiency. R. v. Ross, R. & J. Dig., 1979. And it must also shew by what municipality the by-law was passed. R. V. Osl,')', 32 Q. B. (Ont.), 324. Where a form of conviction is not sanctioned by any statute, it must be legal according to the principles of the connnon law, and a conviction which did not express that the party had been sum- moned, nor that he appeared, nor that the evidence was given in his presence, cannot be supported. Moore v. Jarron, 9 Q. B. (Ont.), 233. But where the general form of conviction prescribed by this section is used, it is clearly not necessary to shew that the defen- dant was summoned or heard or any evidence given. R. v. Caistev 30 Q. B. (Ont.), 247. The charge in a conviction must be certain, and so stated, as to be pleadable in the event of a second prosecution for the same otfence. II. v. ILupjanl, 30 Q. B. (Ont.), 152. A magistrate, in order to have a good justification under a con- vietitm and warrant, nuistgive in evidence a conviction not illegal on the face of it, and a warrant of distress supported by that conviction, and not on the face of it, an illegal warrant. Eastman V. /2«y, 6 Q. B. (Ont.), (MI. In describing the oti'enco in convictions it is not autticient to state as the ott'eace that which is only the legal result of certain SUMMARY CONVICTIONS AND ORDERS. 129 facts, but the facts themselves must be specified, for instance, a conviction that the defendant used blasplieinous language is not good, the exact words used should be set out in the conviction. Re Donclly, 20 C. P. (Ont.), 165. In framing a conviction where it is immaterial by what means the act prohibited has been effected, it is in general sutticient to follow the words of the statute where it gives a particular des- cription of the offence. But there are exceptions to this rule. Tims under the Act respecting Vagrants 82 k, 38 Vic, chap. 2p,i] Q. B. 880. ( )ne of several persons in partner.ship may be convicted of an offence conuuitted l)y the firm foi' all wrongs are several as well as joint, ^ful^inf^ v. Hellaniere, 7 L. C. J., 228. For a statutory ilhistrrttion of this principle, see 32 & 33 Vic. chap. 21, s. 91, as to frauds by miller.-., factors, wai'eliotisemeii, tJce. A conviction cannot at conmioii law be amended. A* v. Jiih'f* S T. R., ()2o. The magistrate, howev discharged. Hut a good coumiituient may bt\ substituted for a bail one, on tlie return to the writ. R. v. SniUh 3 H. & N. 227. But if instead of con- J) 130 MAGISTRATES MANUAL. victing the defendant the Justice refuse to convict him and dis- miss the case there is no mode of reviewing his decision ; the court will neither grant a inandaitiiis re([uiring the magistrate to lehear the case nor award a certiorari to bring up the proceedings. Ej: parte B. l F. P. I. Co., 7 Dowl., G14. It may be observed that although a conviction may be drawn up in a regular form, at any time before it is returned to sessions, an order or warrant of commitment cannot. It v. Barker, 1 East, 18G ; M. V. Cheshire, o B. isz Ad., 439 ; Hutchinson v. Lowndes, 4 B. & Ad., 118. Although a magistrate may draw up a conviction in a more formal manner than was done in the first instance, and may j-eturn the amended form as his conviction to the sessions or the Court of Queen's Bench upon a certiorari, or probaV)ly he may return an amended conviction to the sessions even after liaving returned an eiToneous one. Seht'ood v. Mount, 9 C. t^ P., 75. Yet he cannot do this after the first conviction has been quashed, either upon appeal or by the Court of Queen's Bench, or after the defendant has hvvM discharged by the Court of Queens Bciich by reason of a bad conviction being recited in the warrant of couunitment. Chancij v. Payne, 10 L. J., M., C. 114. After a first conviction has been returned to the sessions anil filed, the Justices may if they tliink it v. Grayhiel, o Q. B, (Ont), t'll. A convictit>n will be (juashed if the summons states no i)lace where the ofi'ence was committed, although tlu' place appear on tlii^ face of the conviction. Ex parte Jjeonanl, (i L. C, 11, 480. 51. in case lui order bo niiKlu,^ani mi particular funii of urdor ia givoi' l\v tho Act or Law K'\''"V! aiitliority to iiiako siich order, luid in all cases nf ordois made under the authority of any Acts or liawH hithttrto passed, whether any particular form of order is therein given or not, tho Justice or .Justices l)y whom the older is nuido, may draw up tho aauiv' in audi one of tlio forms of orders (K 1, li, li) aa uuiy ho ap|)lic'.il)le to the case, or to tho like otloct. Tliis section of the Act relates to orders generally an^- xxniJi, 7 A. ic. K., 807. No order can be made in the absence of the party whose in- terests are atiected by it. R, v. Toinct^x, 14 L. J., M. C., US. An order may be goitil in part and void for the residue. R. V. Fo.t', (J T. R., lis. An order of Justices bad in part may i)e en- forced as to the good [>art, provided that on the face of the order the two parts are clearly sfpinulile, and it is not necessary in -iK'h case to (|uash the liad part of the order before enforcing the ivsidue. R. v. (J ma, 20 L J., M. C, KiS. The signature is an essential part of the order, and the order cannot be considered as made until it is reduc«'d into writing and signed bv the Justice. R. v. Flintsltirc 10 Jur., 47"). -VJ. In all ciiMca when by any Act or Liiw uiitlionty i« given te cuniuiit a lnM8un ti) prisnn, or tu levy any Huni npun IiIh gnuds i>r chattuKs l)y ili.stri'Ms, inr not obeying an Mnlcr nf a .liiMtico er .luHticcs, tins Dofunilant Hhall bo -ri'ved with a cepy nf tin? .Minnti' >tutiite applies to i>i'iiir>t and not (.'o/mvV- '/i'/(,s, and on eon\ ietion of the ilefeiidant of an unhiAvful assault under the 32 \- 33 Vic. chap. 20, s. 43, it is not necessary tliut he slioidd be served with a copy of th.' miiuites of the con- vit'tion lielbre he is inijirisoned, tliis si'ction not ajiplying to con- victions. A', V. (>' l^tiii'ii, 3 I'ngslev, 2(J4. 132 MAGISTRATES MANUAL. 53. In all cases of summary conviction, or of Orders made by a Justice or Justices of the Peace, the Justice or Justices making the same, may in his or their discretion, award and order in and by the conviction or order, that the defendant shall pay to the prosecutor or complainant such costs as to the said Justice or Justices seem reasonable in that behalf, and not inconsistent with the fees established by law to be taken on proceedinf:;8 had by and before Justices of the Peace. A conviction adjudging the defendant to pay a sum for costs, without .saying to wlioui the costs are to be paid, is void under this section. The conviction should order the costs to be paid to the compbiinant. R. v. Mahey, 37 Q.B. (Ont.), 248. 54. In cases whore the Justice or Justices instead of convicting or •"•>king an order, dismiss the information or complaint, he or they, in his or their discretion, may, in and by his or their order of dismissal, award and order that the prosecutor or complaiuiint shiiU pay to the defendant such costs as to the said Justice or Justices seem reasonable and consistent with law. Before this enactment the party could not be punished for non- payment of costs in tlie same way as for non-payment of penalty. 11 \. Burfov, 13 Q.B., 38!). A warrant of connuituient for non-payment of penalty and costs, where the conviction did not mention costs, would 1)6 illegal. Leary v. PaMck, 15 Q.B., 2()«), A warrant of commitment for non-payment of a penalty cannot be executed on a Sunday. I'Jf/yivfov v. Lichfield, 2 E. & B., 717. 55. The sums so allowed for costs shall in all cases be specified in the con- viction or order, or order of dismissal, and the same shall be recoverable in the same manner and luider the same warrants as any penalty adjudged to bo paid by the conviction or order is to be recovered. A warrant to connuit for non-payment of the costs of an appcud to the sessions, unless such sum and all the costs of distress and commitment and convoying the i)arty to gaol be sooner paid, should show th(^ (Wiointt of the costs of distress, commitment, and conveyance; to gaol. DicLwn v. Crahb, 24 Q. B. (Ont.), 41)4; .sec also DdV'mn v. Fr(m'i\ 7 Q.B. (Ont.), 3!)1 ; see also sections (12, (14, and ().•>; Ra Ih-iiihl , 1 U,C.,L.J.,N.S., 240; Re Smith, ih. 241 ; R V. Fcrgmon, 3 O. S., 220. W SUMMARY CONVICTIONS AND OKDERS. 1.S3 In a conviction for a penalty to l)e levied by distress, and in •lefault of sufficient distress, imprisonment, it is no objection that the conviction specifies the amount of costs of conveying the party to gaol in default of sufficient distress ; specifying the amount is only a notification to the defendant what he shall have to pay in the event of no distress and he is arrested. Reld v. Mc Whlnnle^ 27 Q.B. (Ont.), 289. 50. Ill cases where there is no such penalty to be recovered, .such costs shall be recoverable by distress and sale of the goods and chattels of the l)arty, and in default of distress, by imprisonment, with or without hard labour, for any time not exceeding one month, unless the cosls be sooner paid. •^7. Where a conviction adjudges a pecuniary penalty or compensation tn be [laid, or where an order reciuires the payment of a sum of money, and by the Act or Law authorizing such conviction or order, the penalty, compensa- tion, or sum of money is to be levied upon the goods and chattels of the De- fendant, by distress and sale tiiereof ; and also in cases where, by tlie Act /, 3 l^igsley, 2U4. Where l»y an Act power is conftsrred upon Justices to issue a distress warrant " if they shall think fit," they nnist not refuse to issue it, merely l)ecause they think the Act of Parliament does an injustice in giving such power in the particular case. It. v. liololer, 4 H. \- S., Do!). If the wan-ant is .specially directed to the jierson who is to exe- cute it, or generally to all other constat »les or jieaci! ofiicers of the division, any jx-rson coming within this description may law- fully execute it, but whore it is directed to the Constable of A that SUMMARY CONVrCTIONS AND ORDERS, 135 is the Constable of such Division, it cannot lawfully V)e executed l)y any other person. B. v. Smidcrx, L. R., I (J. C. R, 75. t)0. Tn all cases where a Justice of the Peace issues any warrant of distress, he 'nia\- suffer the Defendant to go at large, or verbally, or by a written war- rant in that behalf, may order the Defendant to he kept and detained in safe custody, until return has been made to the warrant of distress, unless the Defendant gives sufficient security, by recognizance or otherwise, to the satis- faction of the Justice, for his appearance before hiui at the time and place ajipointed for the return of the warrant of distress, or before such other Jus- tice or Justices for the same Territorial Division, as may then be there. (il . In all such cases where a Defendant gives security by recognizance, and do'.'S not afterwards appear at the time and place in tlie said recognizance mentioned, the Justice who hath the same, or any Justice (jr tlustices who may then be there present, upon certifying (F) on the back of the recogni- zance, the non-appearance of the Defendant, may transmit tlie recognizance tn the proper officer appointed by law to receive the same, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient primn faeic evidence of the non-appearance of the De- fendant. ('i2. ]f at the time and place appointed for the return of any warrant of dis- tress, the Constable who has had execution of the same returns (N 4) that he eiuild find no goods or chattels whereon he could levy the smn or sums therein 111 ntioned, together with tlie costs of, or occasioneil by, the levy of the -i ,i.ue, the Justice of the Peace before whom the same is returned may issue \m warrant of commitment (N 5) directed to the same or any other Constable, reciting the conviction or order shortly, the issuing of the warrant of distress, and the return thereto, and re([uiring the Constable to convey the Defendant to the Common Gaol, or other prison of the Territorial Division for which tlie Justice is then acting, and there to deliver him to the Keeper thereof, and requiring the Keeper to receive the Defendant into such gaol or prison, and ilnre to imprison him, or to imprison him and keep him to hard labour, in ih>' manner and for the time directed by the Act or Law on which tin) convic tiou or order mentioned in the warrant of distress is founded, uidess the sum or sums adjudged to be paid, and all costs and charges of tiie distress, and also the costs and charges of tln^ commitment and i;onveying of the Defendant tn pris(m, if such Justice thinks lit so to order (the amount thereof being ascertained and stated in such commitment), be sooner paid ; but if no term of imprisonment be specifitid in the Act or Law, the period for wjiioli the •Instico shall order the Defendant to bo so imprisoned shall not exceed throe niniiths. •>;{. Where a Justice or Justices of the Peace, upon any information or 136 MAGISTRATES MANUAL. complaint adjudges or adjudge the Defendant to be imprisoned, and the Defendant is then in prison undergoing imprisonment upon conviction for any other offence, the warrant of commitment for the subsequent offence shall be forthwith delivered to the gaoler or other officer to whom it is directed, and the Justice or Justices who issued the same, if he or they think fit, may award and order therein, that the imprisonment for the subsequent offence shall commence at the expiration of the imprisonment to which the Defendant was previously sentenced. Where the defendant is summarily convicted at one time of several offences, the Justice has power under this section to award that the imprisonment under one or more of the convictions, shall commence at the expiration of the sentence previously pronounced. R. V. GuHmnh, L. R., 2 Q. B., 379. This section refers solely to those cases in which the defendant is already in the gaol of the territorial division, for which the ma- gistrate acts. Should the defendant be in j)rison, however, in another division on another conviction, this section does not apply, and on his liberation therefi'om, he should be arrested on the com- mitment indorsed, as provided by section 11 of this Act, and conunit- ted to the custody of the gaoler of the division within which the conviction or order was made. When a Justice convicts a defend- on the same day, of two or more offences, the conviction and com- mitment in one of the cases should adjudge, and order the im- prisonment to commence at the expiration of the imprisonment adjudged and ordered in the other case. M. v. Wilkes, 4 Bui'-., 2577 ; R. V. Cidbask, L. R, 2 Q. B., 87i), 64. When any information or complaint is dismissed with costs, the sum awarded for costs in the Order for Dismissal may be levied by distresp (Q 1) on the goods and chattels of the Proseciitor or Complainant in the manner aforesaid ; and in default of distress or payment, the Prosecutor or Com- plainant may be committed (Q '2) to the connuou gaol or other prison, in manner aforesaid, for any time not exceeding one month, unless such siun, and all costs and charges of the distress, and of the commitujont and convey- ing of the Prosecutor or Conqjlainant to priscm (the ii'nount thereof being ascertained and stated in the commitment), be sooner paid. 65. Unless it bo otherwise provided in any special Act under which a con- viction takes place, or an order is made by a Justice or Justices of the Peace, or unless some uther Court of Appeal having jurisdiction in the premises, is SUMMARY CONVICTIONS AND ORDERS. 137" provided by an Act of the Legislature of the Province within which such con- viction takes place or such order is made ; any person who thinks himself aggrieved by any such conviction or order may ajypeal in the Province of Que- bec to the Court of Queen's Bench, Crown side ; in the Province of Ontario, to the Court of General or Quarter Sessions of the Peace ; in the Province of Nova Scotia, to the County Court of the district where the cause of the in- formation or complaint arose ; in the Province of New Brunswick, to the County Court of the district whore the cause of the information or complaint arose ; in the Province of Manitoba, to the County Court of the County where the cause of the information or complaint arose ; and in the Province of Bri- tish Colun:bia, to the County or District Court at the sitting thereof, which shall be held nearest to the place where the cause of the information or com- plaint arose ; in case some other Court of Appeal be provided in any Pro- vince as aforesaid, the appeal shall be to such Court ; every right of appeal shall, unless it be otherwise provided in any special Act, be subject to the conditions following : 1. If the conviction or order be made more than twelve days before the sit- tings of the Court to which the appeal is given, such appeal shall be made to the then next sittings (jf such Court, but if the conviction or order be made within twelve days of the sittings of such Court, then to the second sittings next after such conviction or order. 2. The person aggrieved shall give to the i)rosecntor or complainant, or tn the convicting Justice, o)' one of tlie convicting Justices for him a notice in writing of such appeal, within four dt'iys after such conviction or order. 'S. The person aggrieved shall either remain in custody luitil the holding of the Court to which the appeal is given, or shall enter into a recognizance with two surticicnt stu'eties, before a Justice or Justices of tlie Peace, condi- tioned personally to appear at the said Court and to try sucli appeal, and to abide the judgment of the Court thereupon, and to [lay such costs as shall be by the Coin-t awarded ; or if the appeal be against any conviction or order whereby only a penalty or siun of money is adjudged to V)e paid, the person aggrieved may, although the order direct iniiirisonment in default t)f pay- ment instead of remaining in custody as aforesaid, or giving such recognizunce as aforesaid deposit with the Justice or Justices convicting or making the order such sum of money as such Justice or Justices deem sutticiont to cover the sum so adjudged to be paid, together with the costs of the convictit n or order and the costs of the appeal ; and upon sucli recognizance being given or sucli deposit nuide, tlie Justice or Justices l)efore whom such recognizance is entered into, or deposit nuide, shall liberate such person, if in custody, and the Court to which such api)eal is made, slwul thereupon hear and detfiniine the matter of aiijieal, and make siu'h order therein, with or witlmnt costs to either l)arty, including costs of the Court below, as to the Ccmrt seems meet ; and in 138 MAGISTRATES MANUAL. case of the disniissiil of t'-e appeal, or the athrmance of the conviction or order, shall order and adjudge the otieiider to be pniushed according to the convic- tion, or the defendant to pay the amount adjudged by the said order and to pay .such costs as may be awarded, and shall if necessarj', issue process for enforcing the judgment of the Court, and in any case where, after any such deposit has Iteen niadt- as aforesaid, the conviction or order is affirmed, the Court may order the sum thereby adjiulged to be paid, together with the costs of the Conviction or order, and the costs of the appeal, to V)e paid out of the money deposited, and the residue if any, to be repaid to the defendant ; and in any case where, after any such deposit, the conviction or order is (luashed, the Court shall order the money to be repaid to the defendant, and the said Court shall have power, if necessary, from time to time by order en- dorsed on the conviction or order to adjourn the hearing of the appeal from one .sittings to another or others of the said Court ; in every case where any conviction or order is (piashed on ajijjcal as aforesaid, the Clerk of the Peace or other proper otlicer shall forthwith erulorse on the conviction or order a nuiuiorandum tliat the same has been cpiashed ; and whenever any copy or certificate of such conviction or order is made, a copy (jf svich memorandum shall be added thereto, and shall when certified under the hand of the Clerk of the IVace, or of the proper officer having the custody of the same, be suffi- cient evidence in all Courts, and for all purposes that the conviction or order has been (|uashe(l. See 88 \'ic., cliai). 27, s. 1 ; 40 Vic, chap. 27, .ss. 1^2. In Prince Eihvaid Island the appeal lies to the Supreme Court at the sitting thereof heM noxt after tlis expiration of twelve (lays from the time when such conviction was had or siich order made the proceeilini^'s prior to the appeal being ooverned by the Act 82 it 88 Vic., chap. 81, s (i5 as amended ]»y the 88 Vic, chap. 27. This provision is contained in tlie 40 Vic, chap. 4, s. G which takes effect on the 1st of April, 12. It is not essential that the notice of appeal under the 33 Vic, chap. 27, should l)e signed l»y the l>arty appealing, nor need the notice set forth the grounds of appeal. Under the !)(Jth section of this Act (32 cVr 33 Vic, chap. 31,) the several forms in the schedule to the Act contained or forms to the like ellrct are deemed good, valid and suthcient in law. A notice therefore following the form given in the J^3 Vic, chap. 27, but not signed by the appellants is suHicient. Ji. v. Xiehol 40 Q. 11, (Out.), 4(i. The notice may b(\ signed by the attorney's clerk for the appellant. R. v. Koif, L. II. (S, Q. B., 'AOo. Whei'e there are several appellants they may cither join in one notici^ or each of them may give a separate notice. 7^. v. Oxford, 4 Q. B., 177. No practice of the sessions can 0. There had been a conviction before two magistrates for a brcael; of the licence law. Theeounsel for the defendant then demand('(l an ap])eii! — one of the magistrates asked him to prepare the bond and he himself would see the other nccessaiy papers tiled. The de- fendant's counsel thereupon had the liond prepared, sent it to the defendant and told her that the magistrates would instruct her what else was necessary. The defendant thereupon got the bond executed and gave it to the magisti'ate, who said " it was all rigid. " Theie was no affidavit tiled on the appei',1 as recpiired by Kev. Stat. N. S.. eluii). 22, s. 28, on ap[)lieation to set aside the appeal, it was held that the appeal nuist be allowed, the appel- lant having been misled l>y the conduct of the magistrate. McKiii/ V. Mrldi;/, Thomson, 75. An appeal under the Con. Stat. V. C., chap, 114, was held not to Ite waived by the appellant, paying the line and costs. lie, ./c.s- //Vr.s' Vi,,i\ 13 C. \\ (Out.) I5!l. There can be no doubt that, when' the notice of apjieal and the recognizances are So help you (>od." And the Court, on the lindingof the Jury, shall give such judgment wa the law ivipiires ; and if a Jury lie not ,so demanded, the Court shall ti'y and he tlie absoluie judges as well of tl'j facts as of the law in respect to such conviction or ilecision ; hut no witness shall in either case he examined \tho was not examined before tiie Justice or Justices at the liearing of the case. ' The .'}(» \'ic., ehap. .')M, .■>. '1. provides, and bu the axoidance oi • ioubt it is hereliy declared anil enacted, that tlu- Court of Gene- ral or Quarter Sessions of the Peace appealed tn may grant oi' fel'use. in its discri'tiiin, the reipiest uf tin' appellant or lespondent t(i have a jury empanelled to try tlie bul> nf the ease undei- this section. Tniler the fornuT statutes, the appellant coulil not of lioht demand that a jury lie empanelled to try the appi'al. It was dis- eietioaary with the eonrt tn I ly the ap|ier.l or to grant a .lur\'. (lUrln'i, V. bJafuo. \'\ b, C. K. ^71; H> V. C , L. .1.. M. \ tiial liy ,)ury was warraiueil I'ly the l.S \- I !■ \'ic.. ehap. 'j b llcsjihr n ml Sh,tv\ K; Q. B. (Out.), 104. Under the Act as at preNcnt tVamed, the ((iiiit nuiy grant n jury 144 MAGISTRATES MANUAL. at the request of either the appellant or respondent, and if a jury is not demanded, the couii must try it. Where neither piirty demands a jury, tlie court has authority to try tlie ai)peal without one, and a party who insists upon the trial without a jury, cannot afterwards nave a trial by jury. B. V. Bradshmv, 38 Q. B. (Ont.), 504. <)7. No judgment shall bo givon in favour of the appellan*^^ if the appeal is based on an objection to anj' inforniatii.n, complaint, or summons, or to any warrant to apprehend a defendant, issued upon any such information, com- plaint, or summons, for any alleged defect therein in substance or in foi-m, or for .anj variance between such information, complaint, summons or warrant, and the evidence adduced in support thereof at tlie hearing of such informa- tion or complaint, — unless it shall be proved before the Court hearing the a])i)eal that such objection was made before the Justice or Justices of the Peace before whom the case was tried, and by whom such ccjnviction, judg- ment, or decision was given, — nor imless it is jiroved that notwithstanding it was shown to such Justice or Justices of the Peace that by such variance the person suuunoned and appearing or apprehended, had been deceived or niisled, such Justice or Justices refused to adjourn the hearing of the case to some further day, as provided by this Act. (18. In all cases of appeal from any .summary conviction or order had or made before any Justice or Justices of the Peace, the Court to which such appeal is made shall hear and determine the charge or comi)laint on which such conviction or order has been had or made upon the merits, notwith- standing any defect of form or otherwise in such conviction or order ; and if the person charged or complained against is found gnilty, the conviction or order shall be affirmed, and the court shall amend the same if necessary, and any conviction or order so affirmed, or affirmed and amended shall boenforced in the same manner as convictions or orders affirmed in appeal. 00. And for the more enectual prevention of frivolous appeals, the Court uf (Jeneral or (i)uarter Sossious of the I'eace, or otliei' ('oiirt or Jiidgt^to whom an apfieal is made, \\[)r, 111- any otlior .TuHtice of tlio Poaoo fnr tho .same Tcrriterial Ilivisiun, may issue tlie warrant of distress, nr eoinniitnient fur cxccntinn nf tin- same, as if nil appeal had lieen breuudit. 71. Nm ennvielien 111' oi'diM', allii'uird nr aliirnie(l and amenili'd, in appeal sliall lie cpiashed fur want of fei'in. nr he renieved liy rcrfiiiriirl int.i any nf lli'i' M;ijesty'H Snperinr Cnurts nf llcenrd : and im warrant nr enniiiiitincnt >li:ill he held vnid hy i-easnn nf any 'lefeet therein. ]irnvided it 1m^ therein :dlei,'ed that the party haa been ennvieted and there he a ynnd and valid ccn- vii'timi to sustain the same. (3!) Vic, ehap. '27. s. -. ) 10 146 MAGISTRATES MANUAL. In England it has boen lield that an enactment similar to tlii>. precluded the issuing of a certiorari for the purpose of bringing up a case stated by Justices in Quarter Sessions for tlie opinion of the couit. R. V. Chantrell, L. R, 10 Q. B., 587. This section does not prevent the issue of a certiorari when the notice of appeal to the sessions is void, and the appeal is dismissed. For instance, if the notice is for the next sittings of the court, where the conviction is ivithin twelve days of such sittings. In such case it cannot be said that there is an appeal, or that the conviction is " athrmed or athrmed and aniendt'(l in appeal " under the statute. 1{. \. Casvell, .S.S Q. B. (Ont.), 80:l This .section, it would seeni,does not prevent the issue of tlie writ at the suit of the jiiosecutor, I{. v. Allen. 1.') East, *}3':i ; n(jr where there is u ])liun excess of juiisdiction by the Justice, llcs- pcUra'inl kS/nia\ H) Q. B. [Out.;, 104. So a certiarari wouM lie Avhcre there is an ab.sence of jurisdiction in the convicting Justice, or a conviction on its face defecti\e in sulistaiiee. lie Watts, 't P.R. (Ont). 207: .see uls.. l{,' JI,,ll,,ni)lies to cases where an adjudication has taken placi', but even M'here the appeal has gone off on a jtreliminary oljection to the right of enter- ing it, and eonsefiuently a certiorari will not Ite granted by tlir Superior ('ouit, even when the ajipeal to the sessions has r.(jt been decidi'd on the inerits. l\. \. Firhiin. (i I*. U. (Ont.), 07 71:'. Evejy JiiHtin nf tlio IVuce bofniv wlioiii any in'isuii .sliall I't'.stiimiiiU'ily convicted ef 1111} ntrciico l>y viitiieuf this Act, sluill tnuisiuit tlic cdiivicticpii tu till' Ceiu't of (iciural ur (,j)iiartcr ScsHiniiH nr U> tlie CeiiH discliaigiiii,' the fuuetinns of tlic Court of (Jciu'ial or (.,)uaitiT ScH.sioiis ,i« aforesaid, or to any otlicr Court or Judi,'e to wliicli tlio ri>{ht of ajipcal is given I)}' section sixty- live of this Act, iiH tiio case may l)e, in and for the District, County or phice wiierein the ofliMiee lias liei'ii eoiiiinitted, ln'forethe time wlieii an appeul fioin Hucli conviction coiiM he lieard, then- to he kept hy liic iiroper olhcer ilmoll^ the records of tho Court ; and if such convicti(»n lias houn aiiiiealud against, and a deposit of moiu\\ made, .sliiiil return the deposit into tlie said Court and upon any iiidielmeiit or information aiiuinst any person for a suhse<(iKnt SUMMARY CONVICTIONS AND OP.DKRS. 147 otfence, a copy of such conviction, certified by the proper officer of the Court, or proved to bo a true copy, shall be snfticient evidence to prove a conviction for the former offence, and the conviction shall be presumed to have been unappealed against, until the contrary be shown. Althouifh tins section does not mention orders, but appears to I'elate to convictions only, it is conceivet aftei'wards he set aside or vacated in couse'[nenee of any defect of form what- ever, but tlie construction shall he such a fair and liberal construction as will be agreealile to the justice of tlie ease. Where the conviction shews that the defendant has ap[)eared and pleaded, the constiuetion must lie such a fair and libi-ral con- struction as will be agreeable to the Justice of the case. A', v. n,isivcii, 'M Q. B. (Out.), :U):i, .sio. 74. If upon any Appeal the Court trying the Apjieal orders (.■itlier paity to ]iay costs, the (jrder shall direct the costs to be paid to the Clerk of the I'eace or other pn)per tttHcer of the Co\irt, to be by liini paid over to the [larty entitled to the sann', and shall state witliin what time the cost.s shall bo jiiiid. Where I lie oiiler oi" sessions, by mistake, onlel'cil the costs to lie paid to the party instead of to the cli'ik ot' the peace, it was liolden that it did md atl'ect the \ ability of t'leoidei, luit was mei-eiy an orroneous jjroeodure, ami upon a|t|)licatiou for a crrt'njridi to re- move it. in order to its lieing (piashi'd, dii the groiunl that the •lustices had no jurisdiction to make it ithe cii'tim'dri being taken away), the court refused it. A', v. liiinaif. 22 I^. .J., M. (."., Il'7. 7i>. If the same bo not paid within the time so iimi'ed, and the parly or- • lei'od 1 1 p,iy the sa'ni; lias not beeii'ibouii 1 by any recogniz inc" comlitioiu'd to 148 MAGISTRATES MANUAL. pay such costs, the Clerk of the Peace or his Deputy, on application of the party entitled to the costs, or of any person on liis behalf, and on payment of any fee to which he may be entitled, shall grant to the party so applying, a Certificate [R] that the costs have not been paid, and npon production of the Certificate U> any Justice or Justices of the Peace for the same Territor- ial Division, he f)r they may enforce the payment of the costs by Warrant of Distress [S IJ in manner aforesaid, .and in default of distress he or they may commit [S 2] the party against whom the Warrant has issued in manner hereinbefore mentioned, for any time not exceeding two months, unless the amount of the costs and all costs and charges of the distress and also the costs of the commitment anf' conveying of the party to prison, if the Justice or Justices think fit so ti. order (the amount thereof being as- certained and stated in the commitment), be sooner paid. Tlic issuing of ca warrant of comniitnieni under this section is discretionary, not compulsory, upon a Justice of the Peace, and the coiH't will therefore, on this ground, as well as upon the ground that the party sought to be committed has not been made a party to the ap])lieation, refuse & ma ndan tits against th<> Justice to compel the issue of the warrant. The propei- course, where Justices refuse to act according to the duties of their of+ice, is to proceetl under the Rev. Stat. (Out.), chap. 7.S, s. (i. Rr Drla.Dtn/ v, Mac Nah, 21 C. P. (Ont.), :)()3. A Justice of the Peace who convicts, and issues a wan-ant re in a case of this kind. See 31 Vic, chap. 1, s. 7, thirty- fifthly, sixthly and seventhly. 70. Ev(>ry .lu.stice of the Peace shall make a ri'tnrn in writing umlcr his hand of all C')nvictinns nride l)y him to the next ensuing (iciioral or Qiiiirtor Sossiims of tlie I'l'iuH', or to the n<'x^- term or sitting of any (!oiirt having jurisdiction in ai)ln'al as hercinlu'foro provided, at which, in cither case, the appeal can be hoanl, for the District or (louiity or place in which such con- viction takes |)laGe, .and of the receipt and a|)|tii(!ation by him of the moneys received fiMiii the Defendants (and in cii'^e of any convictions before two or mor(\ .huticcs, such Justices bcin.; present and joining thei't'iii, shall nuike a joint Return thereof,) in the following form : - SUMMARY CONVICTIONS AND ORDERS 149 Return of Convictions made by me (or us, ,(»• the case muu be) in the month of 18 . 3 a V .c o .s ■■c >-- a- > V V 0) -; 0) ra-r; •2
  • H If not paid, why not, and general observa- tions, if any A. B., Convicting Justice, or A. B. and C. D., Convicting Justices {/ if. I. v. Curl is, 1.-) ('. P. (Ont.), :}00 ; O'Reillu 7. t. v. Alhiv, II Q B. (Ont.). 411. The illegality of a conviction is no excuse; for iKjt leturning it, but if on that account the tine has not been levied, a return should be made explaining the circumstances (07^t' (7/^ de Justice' or b\' two oi' moi'e, and if two or more Justices act and are in default, tite ])enalt_v on all is single, only 8S(), and it seems that all the Justices might be sued together, or any one of them, at the election of the plaintiff Di',th> q. t. V. Pr>'sf,,,), 84 (.1 B. (Ont.), 257. It is conceiveil that the Rev. Stat. ,'Ont.), chap. 7''>, ^. 8, assimi- lates the law in Ontario, to that prevailing under the Dominion Act, and that there is not now in Ontario a separate penalty on '■((ch of .several Justices joining in a conviction. An action brought against a Justice for non-return by fraud and collusion, in order to prevent the Justice being lialile to |iay the penalty to others, will not l)ar a subsiMpient action brought in good faith for the penalty. luUi/ q.t. v. Cowmi, bS Q. B. (Ont.), 104. 152 MAGISTRATES MANUAL. A Justice committed and fined the plaintiff for carrying away some cordwood, after notice of appeal the prosecutor finding that the conviction was improper went to the Justice who drew tor him a notice of discontinuance which was served on the person acting as Attorney for the plaintift' before the meeting of the next Quarter Sessions. The Justice sent a general return to that court including this and anotlier conviction, but ran his pen through the entry o' this conviction, leaving the writing howevei' ([uite legible, and wrote at the end of it " this case withdrawn In- the plaintifi'." This was ht-ld a sufficient return within the 4 k 5 Vic, chaj). 12; Ball q.t. v. Frastr, 18 Q. B. (Ont.), 100. It has been held that if one Justice of several who convict, makes the return and signs the name of the other convicting Justices to it by their direction or express authority it is suffi- cient. McLellan q.t. v. Brown, 12 C.P. (Ont./ 542. It seems that there must be a return of the conviction in tlie form given by the Statute, and transmitting the conviction itself is not the same thing as making a return of it though one return may include several convictions. The conviction and the return of it are separate instruments and both should be returned by the Justice. See McLennan q.t. v. Mclniyre, 12 C.P. (Ont.), 54(i ; Doaoyh q.t. v. Luiujworth. 8 C.P. (Ont.), 487. In an action for the penalty the plaintifi" may sue for himself only, and need not sue qui tarn. Dralce q.t. v. Preston, 84 Q. B. (Ont.), 257; but the declaration must allege the defendant's neglect to have been contrary to the statutes, not merely the statute, there being two statutes upon the subject, each requiring a different return, lb. In an action against a J ustice of the Peace for a penalty in not returning a conviction, it is no objection to the declaration that the i^laintiff" sues for the Receiver-General, and not foi- Her Majesty the Queen ; inasmuch as suing for a penalty for the Re- ceiver-General for the public uses of the Province, is in fact suing for the Queen. Baglif q.t. v. Cnrtis, 15 C.P. (Ont.), 300. A conviction made by an alderman in a city must be returned to the next en.suing general ses.sions of the peace for the county, and not to the Recorder's Court for such city. Kecnahau q.t. v. SUMMARY CONVICTIONS AND ORDERS. 158 Egleaon, 22 Q.B. (Ont.), 026 ; see Metcalfe q.t. v. Reeve, 9 Q.B. rOnt.), 263. An order for the payment of money under the Muster and Ser- vants Act, ( 'on. Stat. U.C, chap. 7o, is not a conviction which it is necessary to return to the sessions. Mauneij q.t. v. Jone.'<, 21 Q.B. Ont.), 370. The county courts have now juiisdiction to try an action for a penalty against a Justice of the Peace ,vhei-e the penalty claimed does not exceed !?80. Brash q.t. v. Twjyart, 16 C. P. (Ont.), 41.'). This case does not over-rule U Redly q.t. v. Allan, 11 Q.B. (Ont.;. .")2(i, ^liere having heen changes in the jurisdiction of the county courts since it was decided. See also Medcalfe v. Wkldejiehl, 12 C.P. (Ont.), 411. A plaintiti' suing a Justice of the Peace for the penalty of !?S() under the Rev. Stat. (Ont.), chap. 70, s. 3, for not returning a conviction, is entitled to full costs without a certificate. Sfinson y.^ v. Gue.s.% 1 U.C.,L.J.,N.S., 19, following Oi^e///// q.t. v. Alia,,. II Q.B. (Ont.), o26. A penal action for not leturning a conviction is founded on tort and for that reason cannot be brought in a division court. Cor- ■^ant q.t. V. Tai/lor, 10 C.L.J., N.S., 320. It would seem that the right to legislate on returns of convic- tions and tines for criminal ort'ences, belongs to the Dominion and not the Provincial legislature. Clemens' q.t. v. Bemer,7 C.L.J.,N.S, 120. 77. And any Justice or Justices td whom any sucli moneys luay be after- wards paid, shall make a return of the receipts and application thereof, tu the next General or Quarter Sessions of the l^eace, or other Court as afori- said, which return sliall bo tiled by the Clerk of the Peace, with the records if his office. 78. In case the Justice or Justices, before whom any such conviction takes place or who receives any such moneys, neylect or refuse to niaki- such return thereof, or in case any such Justice or .lustices wilfully nudu' a false, ]iarti;il or incorrect return, or wilfully receive a lariier amount of fees than by law they are authorized to receive, such Justice or Justices, so neglecting, or re- fusing, or wilfully making such false, partial or incorrect return, or wilfvdly receiving a larger amount of fees as aforesaid, shall forfeit and i>ay the sum of eighty dollars, together w'tli f\dl costs of suit, to be recovered by any [ler- 154 MAGISTRATES MANUAL. son suing for the same by action oi deht or information in any Court of Recoi'il in tlie Province in wliicli siirli return oiiglit to have been or is made, one moiety whereof shall l)e paid to the party suing, and the other moiety into the hands of Her Majesty's Receiver General to and for the public uses I'f tlie Dominion. 7!'. All pr(.isecutions for penalties arisiiii^ under the provisions of the next [irecedim? section shall be commenced within six months next after the cause of action accrues, and the .same shall be tried in the District, County or place wherein such i)enalties have been incurred, and if a verdict or judgment passes for the defendant, or the plaiutiH' becomes non-suit, or disconthuies the action after issue joined, or if upon demurrer, or otherwise, judgment bo given against the plaintiti", the defendant shall recover his full costs of s\iit, as between Attorney and Client, and shall have the like remedy for the same, as any defendant hath by law in other cases. 80. The Clerk of the l*eace of the District or County in which any such ret\irns are made, or the pi'oper officer, other than the Clerk of the Peace to whom such returns are made, shall, within seven days after the adjournment of the next ensuing General or Quarter Sessions, or of the term or sitting of such other court as aforesaid, cause the said returns to he published in (me public news[)aper in the District or County, or if there be no such newspaper, t]\eu in a newspaper of an adjinning District or County, and shall also fix up in the Court House of the District or County, and also in a conspicuous place in the olHce of such Clerk of tlic Peace, for public inspection, a schedule of rlie returns so made by such Justices ; and the same shall continue to be so fixed up and exhibited, until the end of the next ensuing General or Quai-tcr Sessions of the Peace, or of the term or sitting of such other Court as afore- said, and for every schedule so made and exhil^ited by the said Clerk of the Peace, he shall be allowed the expense of jjublication, and such fee as may l)e tixfd by competent authority. HI. The Clerk of the Peace or other officer as last aforesaid of each District or County, within twenty efore the end of Octolu'r in each year, transmit to tlie Ministei- of Agri- eultnre, or other mini.sttir named in tlie Act, trne copies of all such r(_'turns for the year ending the thirtieth day of September preceding, instead of transmitting the same at the times required hv this .section of the Act. SUMMARY CONVICTIONS AND OUDKHS. 155 82. Ni)thins{ in the six next preceding' sections shall liave the eflect of pre- vontinix any ju-rson nggrieved, from prosoiiiting by indictment, a .Justice of the Peace, for any (iffence, the commission of whicli would stihject him to in- dictment at the time of the coming into force of this Act. 83. In all cases where a Warrant of Distress has issued against iiny person, and such penson pays or tenders to the Cf)nstahle liaving the execution of tiie «ame, the sum or sums in the warrant mentioned, together with the amotmt of the expenses of the distress up to the time of i)ayment or tender, the Coi;- stahle shall cease to execute the .same. 84. In all cases in which any person is imprisoned for non-payment of any penalty or other sum, he may pay or cause to he paitl to the keejier of the prison in which he is imprisoned, the sum in the Warrant of Connnitment mentioned, together with the amount of the costs, charges and expenses (if any) therein also mentioned, and the keeper shall receive the .same, and shall thereu[>on discharge the person, if he be in his custody for no other iiiatttr. 8.">. In all cases of siunmary proceedings befoi-e a Justice or Justices of the Peace out of Sessions, upon any informaticm or complaint, one Justice may receive the information or complaint, and grant a summons or warrant there- on, and issue his sunnuons or warrant to compel tjie attendance of any wit- nesses for either party, and do all other acts and mattt;rs necessary, prelimi- nary to the heanng, even in cases where by the statute in th;it behalf the information or complaint must be heard and determined by two or more •Fustices. An infonnauion to be fried l)oforo two Justices of the Peace is tiood tliough oiily signed \>y one. Falcoiihrkh/e <]. I. v. T(). Tncler this statute, one Justice may receive the complaint and Ljiant the sunnuons, even wliere tlu' infoi'mation and complaint must lie lieiO'd and determined by two or mou' Justices. R. v. S'nHiii()n''<, 1 Pugslcy, l')8. In the event of the case being lieard before two Justices, and of tluir being divided in opinion, tliey cannot call in a third Jus- tice to subnnt the notes of the evidence to him, and ther<'U[>()n with him dotei'mine the case, he being a party to tlie conviction or order as one of the Justices having lieanl the ca.se. Kerr's Acts, 173. The .special authority given to Justices must be exactly pur- 15() MAGISTRATES MANUAL. 1 sued according to the letter of the Act by which it is created, or their acts will not be good. When two Justices of the Peace are appointed by statute to adjudicate upon complaints, more oi' less than two tloes not meet the recpiirement. R. v. Loagce, 10 C. L. J., N. S., 13"). And where a statute empowers two Justices of the Peace to convict, a conviction by one only is not suthcient. lie Croiv, 1 U. C. L. J., N. S,:}02. If one Justice make a conviction wlicre, by statute, two are recpiired to convict, he is liable in trespass. Graham v. Mt Ar- thur, 25 Q. B. (Ont.), 478. When the statute under which the information i,-. lai Bing. N. C, 319; R. v. Coliv, Burr. S. C, 13(1. See also sec- tion «8. Wlum Justices are cail''d upou to do an act within tl/eir iuri><- diction, and they do it, they am fandl ofjiclo with respect to that act, and cannot treat it as a nidlity a)»d do it over again, not ean any other Justice tlo so ; it must be (piashed first i-ither on aj)peal or upon certiorari before they or others again e.xercise their juris- diction in respect of it, H(». .Aftor a oiiso Iuih lieouhoiinl aiul (lotia'iniiiud, niio .Justice) may i»suo all warraniH of distress or (.•(uam'tjuont thoroon. SUMMARY CONVICTIONS AND ORDERS. 157 F)ut it would seem that it is not necessary that th*^ nia<:fistrate who convicts should also issue the warrant of distress or commit- ment under this section. The wai'rant of commitment should, however, sh(nv liefore whom the conviction was had. Re Crow, 1 TT. C, L. J. N. S., 302. 87. It shall not be iieceaaary that the Justicj who acts before or after the iiearing, bo the Justice or one of the Justices by whom the case is or was heard and determined. A. ca.se may he returned l)efore one magistrate and adjourned from day to day hy one or ni()re,anlaint sliall bo heard and di'terniined l)y two or more Ju.sticea, or that ;i cunviction or ordor sliall be made ))y two or more Justices, sucli Justices must l)e present and acting together during the whole of the hearing and determination of the case. See also :}1 Vic, chap. 1, s. 7, twenty-tifthly. 80. When several persons join in the commission of tlio same offence ami uiMin conviction tliereof, eacli is adjudged to forfeit a bum eipiivak'nt to the value of the pro[)erty, or to the anjomit of the injiuy done, no further stun shall be paid to the party aggriovei)oiiited for any District, County, City. Moronifli, Town or IMace ami silling al a Pobce Court or otlier place aiipointed in that ixdiaif, sliail have fnll power to do alone whatovor is 158 MAGISTRATES MANUAL. authorized by thiH Atit to be done by two or more Justices of the Peace ; ami the several f'lrnis hei^-^inafter contained may be varied so far as it may hi' necessary to reader them applicable to Police Courts, or to the Coiirtor other [ilace of sitting of such fuuotionary as aforesaid. 02, Any .Fudge of Sessions of the Peace, Police Magistrate, District Matris- trate or Stipendiary Magistrate, sitting at any Police Court or other place appointed in tliat behalf, shall have such and like powers and authority to preserve order in the said C'ourts during tlie holding thereof, .and by the like w.iys and means as now bylaw are or may be ';xercised ami used in like cases and for the like purposes by any Courts of Law tu Canada, or by the Judgi-s thereof respectively, during the sittings thereof. 1t3. Any Judge of the Sessi ('ourt, othcer or prison, as is mentioned in the context and to which the con- text may ajjply, (>."). The words "Common (laol" or " F'rison,'' whenever they occiu- in this Act, shall be held to nu'an any place other than a Penitentiary, wliere parties charged with otl'ences against the law are usiially kept and detained in custody. !Hi, The several forms in the Schedule to this .Vet contained, varied to smt tlie ease, or forms to tin' like ellect. shall lie deemed good, valid and sutHci- eiit in law. Soe A' V. y'nhoi +og. B. fOnt ), 7(i. 07. This Ai't shall coinmeno- and take etlcct on the lirst day of .laiiuaiy, in the year of mir Lonl. one thousand eiglil liiuHiifd and seventy. SUMMARY CONVICTIONS AND ORHEHS. 15i)' SCHEDULE. (A) »St'.' s. 1. SUMMONS TO THE UEKKNDA.NT ll'ON AIS INFORMATION Ol! ( OM I'LAINT. Canada, I'mvince of , District (oc County, ^^ United Countios, "/■ nf To A. li., of {hhiin, •<■)■) : WliereasinfonnntiMU Imth this day liocn laid (-., fuinidaint hath this day l)cen madtO h-'fm mdorsignod (on.') of Her Majesty's .lusticos of the IVace in and for tlic sai.i District (../• County, United (.'(.\inties, City. Town, S:c.,iis the case ma\i he), of , (for that yo\i, /((/<■ stofi >e and apjiear on , at i.clockinthc forenoon, at , hefove nie, or such .lustiee or Justices of the I'eace for the said District {■ f/,< I'K.sc iimij hv) aforesaid. J. ;s. [I,.s.l (1'.) Nm s. (i. WAUIiA.NT WHEN ThK st\IM<'NS l-^ h|NO|;|;M-,n. Caniu.a, l'i'o\ince of District (d/ County, I ruled Counties, or (IS Ihl' I'K.sr ()/(/'/ ''I'), of To all Ol any ot ihe Coustaid.'M or other I'eaeetMhcers in ihe District (■ / Ciuiuty, United CouutieB, o/ o.i Hi, m.M- i,i,nj h, ) ii\ : Wh.Teas on last pas), inforuiuH'm was laid {«i complaint was made) hefor.' , (..ne) of Her Majesty >* Justices of the Peace iu and I(j0 MAdlSTHATES MANUAL. for the said District (or County, United Counties, or as the case may he), of , for that A. B. , (Sec, c.v 'm thi' Su.inmons): And whereas (I) the said Justice of the Peace tlien issued (my) Snninions unto tlie said A. B. , com- niandin<5 him, in Her Majesty's name, to be and appear on , at , o'clock in the (/"*•«) noon, at , before (me) or such •Tustice or Justices of the Peace as miglit then be thei'e, to answer unto the said information {or comphiint), and to be further dealt with according to law; And whereas the said A. B. hath neglected to be and appear at the time and place so appointed in and Ijy the said Summons, although it hath now been proved to me upon oath that the said S\immons hath been duly served upon the said A. B. : These are therefore'to command you, in Her Majesty's name, forthwith to apprehend the said A.'B. , and to bring him before (me) or some one or more of Her Majesty's Justices of the Peace, in and for the said Dis- trict (or C'lunty, United Cimnties, ')/■ ((,s the case may l)e), to answer to the said information (or complaint) ; and to be further dealt with according to hiw. Given under my hand and seal , this day of , in the year of our Lord at . in the District ((•/■ County. United C(Uinties, nr eing now made before lur ,->ul)stantiating tlie matter of stieli infnrmatiun : 'I'liese are therefore to t'ommund you, in Her Majesty's naiiic. forthwith tn apprehend the said A. H, and to Itriny iiim before (me) or some one or more of Her Majesty's Jus- SUMMARY CONVIf.'TlONS AND ORDERS. 1()1 tices of the Peace in and for the said District, {nr County, United Counties, of <(s ihe case may he,) to answer to the said information, and to be further dealt with according to law. Given under my Hand and Seal, this the year of our Lord , at itc, <(.s the caxt may 6e) aforesaid. day of in , in the District (Cnuuty, J. S. [L..S.] (D) See 88. 12, 22, 34, 4(), WAKRANT OF COMMITTAI, FoK SAKE ( I.SToDV I>rRINli jKX AI>.I( lUFiNMENT (JT THE HEAHIN(;. Canada, ^ I't'iivince of DLstrict {or County, , Tnitcd Counties, or a.i ihe case inaij he,) nf To all or any of the Constables or Peace Oflicer.s in the District (<«*• Cminty, United Counties, or as the case moij he) of , and to the Keeper of the Counnoi) Gaol (or liock-up Housed at : NVhertMH on last past, info-niation wa.s laid (nr c,) of , for that (((■'•., as in thv !ns) ; And whereas the lii'aring of the same is adjourned to the of {instant,) .It o'clock in the (fore) noon, at , and it is neceHsar\ that thcsaiil A. i{. should in the meantime be kept in safe custody : These iiro tluTefore to comm.uid you, or any oiu' of tlie said CoiistableK or Peiioe OHi- cvVH, in Her Majesty's name, forthwith to onvey thj said A. H, to the < 'oinmon Gaol {or Lock-up House,) at , and there deliver him into the custody of the Keeper (hereof, togotlier with this Precept; And I hereby require you, the .said Keejier, to reocivc tin- sai 1 \. II. into your eus'ody in the .said Comiaoii (laol {or Loek-iiii House) and there safely lui p liim until the day of jOWtt*)/) when you are liiTeliy reijuired to convey and have him, the said A. h., at the time and place to which the said hearing is so ailjourned as aforesaid, la-fore such •liistices of the J'eace for the said District {nr County, I'nited Counties, n 162 MAGISTRATES MANUAL. as ihe nixf laaij be) as may then be there, to answer further to the said infor- mation (or complaint), and to bo further 'ealt witli according to law. Given under my Hand and Seal, tliia day of in the year of our Lord , at , in the District {vr Countj', *fcc. , (IS tJie case may be) aforesaid. J. S. [l. s.] (E) Sec ss. 12, 22, M, 46. RKCOflNIZAN<;E FOR THE Vl'PEAUANCE OF THE DEFENDANT WHEN THE CASE Is ADJOURNED, OR NOT AT ONCE PROCEEDED WITH. Canada, Province of , District {or County, United Co\uitie8, (*/■ as the, ('line may be) of Be it romembored, That on , A. 13. of (htbourer). and L. M. of , (ijronr), ami O. P. of {yeoman), per- sonally came and ai)poared liefore the undersigned, (one) of Her Majesty s Justices of the Peace in and for the said District (or Count}', liiited I'ountios, (!/• a.s i/(i' rase maii he) of , and scNcrally ackiuiwlodged thom- selvos to owe to our Sovereign Lady the <^uoen the several sinns following, that ib to say : tlic said A. B. the sum of and tlie sftid L. M and O. P. the sum of , each, of go(jd and lawful curreni money of Canada, to be made and levied of their several goijds and cliattels, lands and tenements respectively, to the use of our said Lady the Queen, Her Heii.>* and SuccesHors. if he the .said A. B. shall fail in the conditii.m endorseil ("/• hereunder written). Taken and acknowledged the day and year first above mentioned at before me. J. S. [L.,s,| The comlition of the within (or the above) written recognizance is such th.al if the .said A. B. shall ]>(U'sonally ap})ear (Ui the day of (iii.-itant,) at o'clock in the (/'"c') noon, at , befoie me or sticli .Justices of the Peace for tlie said District (or (Jounty, Tnited Comities, or aafhe case maij be) as maj' then be there, to answer furtlier to tlie information (or complaint) of C. D. exhibited against the .said A, B. and to he further dealt witli a.(HM>nling to law, then the said recognizance to be void, or else to stand in full force and virtue. SUMMARY CONVICTIONS AND ORDERS. 1G3 NOTICE OF SUCH RECOOXIZANCE TO BE GIVEN' TO THE l)EPE>fDANT AND HIS SURETIES. Take notice that you A. B. , are Ixnind in the sum of and you L. M. and 0. P., in the sum of , eacli, tliat yuu A. B., appear personally on at o'chjck in the (/"»•<•) noon at , before me or such Justices of the Peace for the District (or County, Uni,,jd Counties, or as the case may hr) of as shall then he there, to answer further to a certain information (or complaint) of C. D. the further hearing of which was adjourned to the said time and place, and unless you appear accordingly, the recognizance entered into by you, A. B., and by L. M. and 0. P. as your sureties, will forthwith be levied on you and them. Dated this and day of , one tlionsand eight hundred J. S. [l. h. ] (F) .sV,; ss. 13, 23, 35, 49, 61. ' KRTIFICATE OF XON-APPEAUANCE To !iE ENDOKSEI) ON' THE nEFE\nANT*S RECOUNIZANCE. 1 hereby certify, that the said A. B. hath not appeared at the time and ]ilaco in the said condition mentioned, but tiierein hath made default, by ruason whereof the witiun written recognizance is forfeited. J. S, [I. s.] Canada, I'rovutceof , District {or County, United Counties, or -' (G 1) See s. 10. SUMMONS TO A WITNESS. , in the saiil District {or County, I'uited Cniiutifs, Tr> E. F. of or an tlie ea.^e may he) of Whereas information was laid (or O'.uiplaint was made) before (otun) of Her Majesty's .lu.stiiesof the Peace in and for the .Haid Districtl ic t'lmnty. United Counties, or as the ejutv rniiij Iw) of , for that (v^c , an ui. tlie 164 magistrates' manual. tiummons,) and it liath been made to appear to ine upon (oatJi) that you are likely to give material evidence on behalf of the prosecutor (or complainant or defendant) in this behalf ; These are therefore to require you to be and appear on , at o'clock in the (fore) noon, at . before me or such Justice or Justices of the Peace for the said District (or County, United Counties, or as the case may he,) as may then be there, to testify what you shall know concerning the matter of the said information (or complaint). Given under my hand and seal, this year of our Lord , at ((s the case may be) aforesaid. day of in the in the District (or County, or J. S. Ll. ,s.] (G 2) See s. 17. WARKANT WHERE A WITNESS HAS NOT OUEYED A SUMMONS. Canada, Province of , District (or County, United Counties, or ((.s the rase may he), of To all or any of the Constables and other Peace Officers in the said District (or County, United Counties, or as the rase may he), of Whereas information was laid (or complaint was made) before (o)ie) of iler Majesty's Justices of the Peace in and for the said District (or County, United Counties, or as the case may he) of , for that (. into your custody in the said Common Gaol (or Lock-up House) nnd tlure safely keep him ui^til next, the day of {Instunf), when you are hereby commanded to convey and have him at , it o'clock in the noon of the same day, l)efore me, or such Justice or Justices of the Peace of the said District (or ''ounty. United Comities, (;/■ «,s the ease man '"') '•'^ 'ii'i'J' Hi^-''^ l^t; there, to an- swer to the said inf(jrmation ('>/■ comi^laint,) and to be further dealt with ac- rording to law. (iiven under mj- hand ami seal, this in the year (jf (jur Lord , at (lie County, as the ease may hi) iiforesaid. day of , , in the District J. S. [i,. s. I IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 Mi ilia 121 ■' ilia m Si" 1.8 1-4 IIIIII.6 ^ 'W /} /y VI c^J '4^'^^ M o 7 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY )4580 (716) 877-4503 t-p- 16.S MAOIbTUATES MANUAL. (£ 1) .Sec 88. 42, 50. < O.NVIi TlOX KOK A I'ENALTY TO HE LEVIED IIV UIlSTRKSS, AND IN DEFAULT UK SI'FKICIENT DISTRESH, IIY IMTKLSONMENT. Canada, ProviiiL'o i)f , DiHtrict [(>»• County, L'liited CoiintieH, or '(« the «'(Wt' mai/ he,\ of <■ Be it reiiicuibcred, Tliat on thu day of , u) thu year of our Lord, , at in the said District [m County, United Counties, 'l(icc tchenaml >rher<' iiih itiitliil, \ iiud I adjudge the said A. li. for his said offence to forfeit and pay the Hiuu of [stiifimi tin; jjitKiltij, iiml ul.tv the roiiipviisdtiini. if "»i//,J to bo paid and applied according to hvw, and also to pay t(j the said C D. the HUUi of , for his costs in this behalf ; and if the said several sums lie not imid forthwith ["/• on or 'n^fore the of next,| * I order that tiie same be lovief sutHcient distress, * I adjiulge tlie said A. H., to be InipriHoned in the Common (Jaol of the said District [d/ County, United Counties, oc k.s tli<' fa.v nunj hr,] at in the said District [i>r County] of [there to be kept at hard lal)o'U' if such be the sentence i for the space of unless the said several sums and all costs and (.liargoH of the said distress [and of the conunitnient and conveying of the Huid A. \\. to the said liaol] be sooner paid. (liven under [my] iutml and seal, the day and year first above mentioned, at in the District [or County, United Counties, o/ us thv cii,sv nii'/in- ilftut or hin fuh.ihi, or it (r/7>r((c.t he hits no ijooit.i irhereon to lenj u dintresH, then iimtiitd of thi iriinls lirtifnii tlo' nstirisks * * ftnij, " inasmuch as it hatii mnv been made to appear tome tiiat tins issuing of a Warrant of Distress in tliis liehalf Would be ruinous to the said .\. l\. or his family,'' [or, " that the said A, 15. hath no goods or chattels wluurou to levy the said sums by distrress.") I adjiulge, iVc. , [us iduu, to the. ox/.] SUMMARY CONVICTIONS AND OUDKKS. l(il» I (I 2) .See 88. 42, 50. lUNVK'TlON FOR \ PENALTY, AND IN DEFAULT OF PAVME.VT, IMPKLSON.MENT. Canada, Province of District (or County, United Countie8, or as the case nuiy be,) of Be it remembered, that on the day of , in the year of our Lord, , at , in the 8aid District (oc County, United Counties, iir as the case mari he,) A. B., is convicted before tlie undersigned, (vite) of Her Majesty's Justices of the Peace for the said District, nr County, United Counties, or as the case may be,) for that he the said A. B., (dr., stathuj the offence, ami the time aiul place irhen a)nl ichere it was citunnitted,) and 1 ad- judge the said A. B. for his said offence to forfeit and pay tlie sum of (.it be /,>/»< at hard lalvntr) for the space of , unless the said sums and the costs €\nd charges of conveying the said A. B. to the said Common (iaol, shall i)e sooner paid . (iivon under my hand and seal, the day and year first above mentioned, at in the District (or County, United Counties, <>r as the case may b<\) ■ifiiresaid. J.S, [L.S.I (I :i) N.e 88.42, 50. lONVIOTION WIIKN TIIK I'UNISII.MKNT IS IIY IM PKlsoNilKNT, tVc. Canachv, Prt'vince of District {or County, I'luted Counties, or as the case may be,) of l^e it romomborod. That on the day of , in the year uf our Lord , in the said District («r County, United Counties, or as the 170 MA(}rSTHATFS MANUAL. m.sr mni/lii,) A. |{. is convicted liefore tho iiiuler»igiu'(l (../(. )(.f H. r Majesty's iIustiecH of the Peace in and for the said District {i>r County, I'nited ("ouu- ties, uritnthc rase may be,) for that he the said A. H. {dr., stating tlu- «;/fin«r iiihI ihv tiiin iind jilmr wlunt mul lolieie it wan committal); and I adjudge the SMid A. 15. f ir his said offence to be imprisoned in tlic Coninioii (laol of tlie said I)istri<,t {or ('oiiiity, I'nited ('o\intii's, nr iix tin mm' inxy In',) at in the Cunnty of (and there to ho kept at hard labour) for the space of ; and I also adjudj,'c' tliesaid A. li. to pay l'< the said C. D. tiie HUiu of for iiis costs in tiiis beliiilf, and if the said sum for costs iie not paid fcirtiiwitli, (<)/• on or before next,) tiien * I order thai the said sum \h'. levied by distress and sale of the yoods and chattels of the said A. B. ; and in defiiiiit of sntliciciit distr 'ss in that behalf. * I adjiid^'L- the said A. 15. to be iinprisuned in the sud Coniinoii Ciaol, (and kepi there at hard lalionr) for the space of , to coinniunce at and from the term of his imprisonment .iforesaid, unless the said sum for costs shall be sooner paid. (Jiven under my hand and seal, the day and year lirst above mentionot, at in the District {or County, United Counties, "c n^ tin msf uimj /.. ,) aforesaid. .1. S. (... .,| * (h\ irliifi III, imminy of a ilistrets wornint imulil be rnmnia tn tin Ih'feinl- iiiil and fii.-pear to me that the issuing of a warrant . , and iiis family, {or. " tliat the said .\. 15. hath no j^oods or chattels whereon to levy the said .sum 'or cnsts by distress ") ! adjud^'e, t\l:c. (K 1) .s'.r ss. 42, ni, OIIUKK KOK r.W.MKNT ol • MONI'.V TO IIK I.I'.VIKI' ItV IHSTUESS, .VM) IN UK- FAULT itV UI.STKKHH, IMI'RIMINMEM. CaiHldft, Province of District (or County, ^ I'l.'tiMl Counties, or a.s titr ca.ir inaii In,) of ' . I5e it remend)ered. That rin compliiint was nindu before the uiider- signud, (imv) of Her Majesty's Justices of the Peace in and for the said Dis- SUMMARY CONVICTIONS AND OHDKHS. 171 trict {or Ce the .said .lustice, but the said A. H. although duly called doth not appear by himself, his Counsel or Attorney, and it is now satisfactorily proved to me upon oath tliat the said \. H. liiiH boon duly served witii the sinnnions in this behalf, whicli recpiired liim to l)e and appear iiere tiiis day before me, or sucii .lustice or Justices of tile Peace for the said District (oc County, United Counties, nr as tin: case uiaij he,) as sliouhl now be here, to answer to the said complaint, and to Ite further dealt with acconling to law.) and now having h(!ard the matter of the said Complaint, I do adjudge tiiu said A. H. (to pay to the said C. D. the sum of forthwith, (i<» on or lieforo next, or r(.i the Act i>r Lull- iiiini riiiiiiri,) and also to pay to the said C. D. the sum of for his costs in this liehalf ; and if the said sevenil sums bu not paid forthwith, (<>)• on i>r l)efore next), then I adjudge the said A. B. to bo im- prisoned in the C(»nunon (iaol of the said District (or County, United Coun- ties, or lis the ruse iiiiuj he,) at , ill the said District (or County of (there to be kept at hard labour if fhi Art or J^mr nuthori.es this) for the space of , unless the said several sums, and costs (and charges of commitment and conveying the said A. ii. to the said Common (■aol) shall be sooiitir paid. (Jiveii uiuU-r 0(i;/> Hand and Seal, this day of , 111 the yeai of our Lord , at , in the District (< / County, United Counties, or us the <:nse may he,) aforesaid. J. S. [•'• «-J SUMMARY CONVIfTIONS AND oUDERS. 173 (K3) .S.f«8. 42, f)l. ORDER FOR AN'Y OTHER MATTKK WUKKE TUK lUsollEYINti OK IT |x PUNISHAIU.E WITH IMVKISitNMKNT. Canada, 1 Province of District [or County, United Counties, or a/I thf ('(Mc )iiuy /it',] nf IJe it remembered, That on complaint was made In-fore the undersigned, {din') of Her Majesty's Justices of the Peace in and for tho said District (<<»■ County, (nited Counties, «/■ us fli> <•'(». nKtij Ik,) of , for that stittiinj fill' /l(l•^s thtiUintj th> ('oinjildHidit t<> th>^ urib r. I'-ith till dull mill /ilnci irfii're and ivhiii thai occunril) and now on tliis day, to wit, on , at , tile parties aforesaid appear lieforo mo the said Justice. ('>/• the said C. D. appears beforemethe said Justice, but the said A. li. although duly calle'(uired him to be and ajipeiir here tliis day before me, or sucli Justice or .his*'C08 of the Peace for the said District {or County, I'nited Counties, or as fhf nt.^i- ttinij /»,)a8 should now be here, to answer to the said cou.plaint, and to be further dealt with according to law,) and now having hccard the matter of tho said complaint, I do there- fore adjudge the said A. li. to (/oii «^»^■ tin unittfr r((iiiin ,) and if upon a copy of tlie Minute of this Order being served upon the said A, B. either personally or by leaving the same for him at his last or most usual place (jf abode, he shall neglect or refuse to obt-y the same, in that case I adjudge the said A. H, for sucli his disobeilionco to be imprisoned in the t'ommon (Saol of tlie said District ((»>■ County, United Counties, «» k.s ^/ic iM< until h, I at in the said Countv of (there to bt) kept at hard labour if tin' Stututv utitliori.c this), for the spate of unlesM the said order bo sooner obeyed, and I do also adjudge the said A. |{ to pay to the said C. D. tho sum of for his costs in this bi'half. and if the said sum for costs be not jiaid forthwith, (er on or before next,) 1 order tho same to be levied liy disticss ami sale of the goods aiul chattels of tho said A. IJ., and in default of sutHcient disf.'.is in that behalf, I fidjudgo the said A. M. to be imjjrisoned in the said Common (iaol (there to be kept at hard labour) for (he space of to commence at and from tlu! termination of his iin}irisoniuent aforesaid, unless the said sum for costs Hindi be sooner paid < liven under ((/ii/) hand and seal, this day of III 174 MAfUSTRATFs' MANUAL. the yuar /• County, United Counties, or as th'' ■<■"»'' /»ii<2/ /.'■ J of , for that [ti'r. , r<,s- in thi' SKriimans to the Difethlaiii, ami now at this day, to wit, on , at , both the said liartijs appear before nie in order tliat I shouhl lioar and determine the said informati(»n ("*■ complaint] [<)/• tiie aaid A. I?, appeareth before me, but the said C. D. although duly called doth not ajiiiear,*] whereupon the matter of the said information [or complaint] being by me duly considered [it mani fi'stly apiiears to me that the said information [«r complaint] is not proved,] I do therefore dismiss the same, and do adjudge that the said C. D. do i>aytn the said A. H. the siim of for his costs incurred by him in his defence in this behalf : and if the said sum for costs bn not paid forthwith, nr (111 (ir before ,] I (irder that the same l)e levied by distress and sale of the goods and chattels of the said C. D., and in default of sutticien' distress in that behalf, I adjudge the aaid C. D. to be imprisoned in the Com- mon (Jaol of the said District [or (,'ounty, U'nitod Counties, or as the rasr itiaij /)(■] at in the said County of [and there to lie kept at hard labour] for the space of , unless the said sum for costs and all costs and charges of the said distress [aiKl of tlie connnitment of the said C. D. to the said ("onunon (iaol,] shall bi^ sinma' paid. < liven under my hand and soal, this day of in the y. ar of onr Uord , at . in tlu^ District [()/• County, I iiited Counties, or as thf ruse iiimi hr\ aforesaid. .I.S. |L. S,J * if the Inforinaiit [or (\nn})lninant\ do nut ajtiimr, thisr woriU may hr omitted. SUMMARY CONVICTIONS AND (MlDLKS. 175 CM) S^e 8. 43. CERTIFICATE OF DISMISSAL. I horel)y certify that an information [itr complaint preferred by C. D. against A. B. for that [m- U8and eight hundrt'd J. S. [l. S.J (N' 1) .sVvs.57. WARRANT OK IH.STRKSS I'l'ON A CONVIUTIUN FOR A PENALTY. Canada, Province of, District [ur County, Tnited Counties, or itn till I'li.ir inm/ /" j of To all or any of tlu' Cunstaliles, or other Peace Otlicers in the said District ["/• County, I'liited (/muitios, as tin' r-nsi mmj in ot NVliereas A. I>. , late uf , {luliiiiinr) was on this day (i>c or last |iast) duly ciiuvicted bL'fore (oii>) >i Her Majesty's Justices of the Peace, in and for the said District (.(/ County. I'uited Counties, or us thu casf uiuy hi'\ of fnr that {slntimi >h, i;//'i )(-•(■ OS in thi' riiiii-irfiiiii) aufl it was thereby adjudged that the said .\. i'>. , -should for siu'ii his otl'ence forfeit and jiay, ['ic, <'■•> in thi I'lHivirfiun], and sliouhl also pay to the said C. D. the sum of for his costs in that behalf ; and it was thereliy (irdered that if the said se\eral sums .should iH>l 1)0 paid [ /(i,7/m'(7/i I the same slumld Ite levied by distress and sale of the gcioils and chattels nf the said .\. I{. ; and it was thereby alsn adjudged tliat till' said \. H. , in default of sulticieut distress, should be imprisoned in the t'limiiK a (iaol of the said District (.ir County, I'uiteil Counties, «»• k.s tin' nisf iii'iif liA I at in tlu e ."said County of \iinil ihrn to hi' unless the said several hpl iithiiril Inhoiir] for the space of suuis and all costs and charges of the said distress, and of the commitment :viid Conveying of the said .\. it., to the said ("ouniiou (iaol should be sooiu'i' paid ; * .\nd wherea-f the said A. !!., being so convicted as nforesaid, and leuig [/loi/J ro(iuired to pay the said sums of and 176 MAfilSTUATES MANUAL. hatli not paid the same or any part thereof, hut therein liath made defaults ; These are therefore to command you, in Her Majesty's name, forthwith to make distress of the goods and chattels of the said A. 13. ; and if within days next after the making (if such distress, the said sums, together with the reas J. S. [l. s.] (N 2) Sff s. 57. WAKKANT OK DISTRESS ll'ON AN ((UHKK KoB THK PAYMENT OK MONEY. Canada, Province of , District (or County, I'nited Counties, or ((.f the cose vuiy be,) of To all or any of the Constables, or other Peace Oflicers, in the said District (((» County, I'nited Counties, or an the vase maij /(e) of Whereas on last past, a complaint was made liefore (o/ic) of Her Majesty's Justices of the Peace in and for the said District C(i/- County, Inited Counties, o/- (t.< //n' case moy In-) for that [dr., '(.s in the order,] and afterwards, to wit, on , at the said i)artie8 appeared before {as in the artter,) and thereupon the matter of the said comjdaint having been considered, the said A. H. was adjudged [to pay to the said C. D. the sum of on or before then next,J and also to pay to the said C. D. the sum of for his costs in that behalf : and it was ordereil that if the said several sums should not be paid on or before the said then next, the same should bo !ovi(Ml l>y distress and sale of the goods and chattels of the said A. H. ; and it was adjudged that in defaxdt of suflicient distress in that behalf, SIMMAliV CONVKTIOXS AND t>HDi;i{S. 1 I 4 thu siiid A. B., sliDuld bo iiiiprisonoil in the Cttmiiiun Oaol <>f the said District \<)i- Couiitj', or riiitfd Counties, m- n.i Ihf fusr iiniii h, \ at , in the said County of (and there kejjt at hard labour) for tlie si)ace ,,f , unless the said several sums and all costs and charges of tlie distress (and of the conuaitnient and conveying of the said A. IJ. to the s.iid Conniion (!aol) should be sooner paid : * And whereas tlie time in ami l)y the said oi'der appointed for the payment of the said several sums of and hath elapsed, Imt the said A. I?, hath not paid the same, or any part thereof, but herein hath made default; These are there- fore to command you, in Her Majesty s name, forthwith to make distress of the goods and chattels of the said A. IJ. ; and if within the sjiaee of days after the making of such distress, the said last mentioneil sums, to- '41'ther with the reasonable charges of taking and keei»iug tlu' said ilistress, >hall not be paiil, that then you do sell the said goods and chattels so bj- yuu distrained, and to pay the money arising from such sale unto nie, [)trirtin(i JuKticit «.< flu riisi niiiii In ] that 1 [oc hej may pay and apply the same as by law directed, and may render the overjilus, if any, ou ileniand to the said A. !{. ; and if no such distress can be found, tlieii that you ei'rtify the same unto me. to the end that such proceedings may be had therein, as to law doth apiiertain. tiivtii untler my hand ami seal, this in the year of our Lord , iit |h)- County, i>r K niSTKESS. Canada, I'ldvinco of , District ("/' County, liiited t'ounties, nc '' ((.« thf I'llHI' tlKIl/ III',) of Whereas jiroof ujion oath hath this day been made before me, one of Hi;r Majesty's .Itistici'S of the Peace in and for tiie said District (nr County, lin- led ('otnities, i>r as (I,, nisf nnni In) that the name of .1. S. to the within Warrant subscribed, is of the hand-writing of the Justice of the Peace within mentioned, 1 do therefore authorize V. '\\ who bringeth me this War- runt, and -ill other i>erHons to whom this Warrant was originally direoti'd, or by whou. the same may be lawfidly executed, and also all Couatubles and 12 178 MAOISTRATKS MANT^AL. iithur Pence Officers in tlio said District [or County, rnitcil Coinitios, "c n.i thf rtiHc mini /»(■,) uf to execute the same within the said District {or County, United Counties, or astht case may be) (liven under uiy hand, tliis sand eiglit hundred and day of , one thou- (». K. (N t) Srr S. (52. (!ONSTABLE's UETIKN To A WAHRANT oK ursTRESS. I, W, T. , Constable of . in the District \or County, f'nited Counties, or n.t fhc rosr mmi In] of , hereby ceiiify to T. S. , Es- ((Uire, one of Her Majesty's .Justices of the Peace for the District \or County, Ignited Counties, <>»• ((.■jf/ic rosr mdiihit] that by virttie of this Warrant, I have made diliifcnt search for the floods and chattels of the within niontioiu'd A. H. , and that 1 can tiud no sufficient yoods or chattels of tiie said A. T{. whereon to levy the sums within mentioned. Witness my liaiid, this eight himdred and day of , one thousand .1. S. [I., s.l (N 5) Sr^ .s. (J2. WAKUA.NT or roMMITMENT Inl! WANT oK OlSTRESS. Caiiiida, I'roviiict.' tin /■(/.<( iiioi/ /n,] of at , in the said District |.i/- County of ; Whereas [tV<\, d.s In lithrr of thr forciiohuj liistres.t }i'nrriinfs, N. I, 2, lo fhe astvrUks* oiul then thus]; And whereas afterwards on the day of ,in the year aforesaid, I, the said Justice, issued a War- rant to all or any of the Constables or other Peace Officers of the District [or County, United Counties, or its the ease, nuaj he,] of conuuandinL; SrMMAKY rONVKTlONS AND ORDERS. 179 them, nr iiiiy nf thciii, to le^•y the said sums of and by distress iiii'l salo nf tho i^oods and chattels nf the said A. B. : And wheiviis it iiii]a';ifrt to iiio. as well })y the ivtnrn to the said warrant of dis- tress, V)y tlie Constable who had tho execntion of the same, as otlicrwiso, that the said Constable hath made dili;,'ent search for the goods and chattels of the said A. H., hut that uo autticient distress whereon to levy the sinnf above nuiitioncd could be found : These are therefore to command you. the ^aid Con.stal)les or IVaec Otliccrs, or any one of you, to take the said A. H.. and him safely ti> convey to the Common (laol at aforesaid, and there deliver him to the said Keeper, tojrether with this IVecept : And 1 do hereby command you, the said Keeper of the said Common (iaol, to re- ceive the said A. H. into yoiu- cubcody, in the said Common (Jaol, there tc< imprison him [and keep him at hard labour] for the space of , uidesH the said st^veral sums, and all tlie costs and chartfcs of the aaid distress, and tif the c )nnuitment and conveying of the said A. 15. to the said Coni! i-n MaolJ aniountin;f to the further stun ;;f . shall be sooner paid unto yon, the said Keeper; and I'or so doing, this shall be your snihcient warrant. Given umler my Hand and Seal, this year of ( Mir Lord , at '/(( nisr iiiiiij /i( ,] aforesaid. day of in the in the District [nr Count}', or o.i J. S. \L. s.l (() I) ,Sn s. ;■)!». WAHKVNT OK rnMMITMFlNT t I'.iN A roNVIiTloN K(Mt A I'KNAt.TV IN TlIK KIKsr INSTANrf;, Canada, I ■ 111 V Mice of , District (m- County. Iiiited Comities. "/• lis flir i-ii.\ of Her Majesty's .lusticesof the Peace, in ami for thi' said District |()/- County, United Counties, i>r us thi ruse maj/ he] for that [^t'lliiui fhr iilt'fiiri' Its ill fill' rotmction], and it was thereby adjudged that the 180 MAGISTRATES MANI'AL. said A. I>. , fnr lii.s nliein'c Hlumld forfeit iiml pay the siiiii to the said ('. I), tlii' sum nf for his costH in that ln'half ; and it was thcrcliy further adjudi,'i'd that if the said several suiuh sho\d. Hlniuld he im- priHoued in the ('oininon (Jaol of the said District [";• Couut_^ , I'uited (!oun- tios, '. hath not paiil the same o7' any ]iait thereof, hut tlu!i'ein hath mach? rison him [and keep him at hard lal)o\n'| for thi' sjiace ot unless the said several snms [and costs and charges of cariying him to thr said Common (Jaol, amounting to the fiu'ther sum of ill h sooner p lid unto you. the said Kei'per ; and for your so doing, this shall h your sullit'ient wariant. >{ ii in the District |'. (iixeu under '"." Iiami ind sea 1. tl us 'i.V the vear ,f our Lord tJounty, 11/' us thr ru sv mil II hi] aforesaid. .1, S. [I, |() 'J] Sn s. ni*. WAIiliANT dl' ( oMMITMKNT oN AN olinKl; 1\ rilK KiltsT ISsTASCK. Canada, l'ro\inci' of , District |ii/ Comity, I niteil Counties, ^r • IS till' iiisi nniji III I of .J To all or any of the ConstaMes and oliu'r Teacc ( Mlicei's in the said Distri<'t. |o;' County. Cuited Counties, nr us tin- msi //my /x | of , and i" the Kei'iier of the Com m^n (Jaol of the District or County, l' nit ed Counties. I//' .IS the I'lisr vxiji hf\ of at ill the said District [m County I of Whereas on hist past, complain* was made hefore the nndi r signed, [o»i(] of Her Majesty's •Instices of the i'eace in and for the said Dis- SUMMARY COXVrCTfONS AND OllDEHS. 181 tnct [or County, I'nited Counties or on the case maij lie] of ur that Lciu iDi ill thr iinlfrl, (iiul iifterwiii'dB, to wit, on tlu day of at thr piii'ties apjjuiirod heforo nio, tho said Justice tut it mnijlii- ill till' iirdir], and thereupon having considered tlie matter of tiie coniphiint, I adjudged tlie said A. B. to pay the said C. ^). the sum of , tn ;ir before tiie also to ]>ay to the said 0. D. the siuii of ay of then next, and for liis costs in that be- half ; and I also thereby abjudged that if the said several sums should not lie paid on or before the day of thtn next, the said A. IJ. should lie imprisoned in the Connnon (Jaol of the District [u/ County, I'nited Counties, said County of tu or OS tlo' rasi' iioiij In )f at m tht and there be kept at hard lab(jur] for tlie space on- of unless the saiil several sums [and the costs and charges of c veying, the said A. I>. to the said Connaon (iaul, os tlo- (((.s. uoni '., | shoidd be sooner paid ; And whereas the tiiue in and by the said order a})i)ointed for the payment of the said several sums of money hath elapsed, but the said A. \\. hath not paid the same or any part thereof, but therein hath made de- faidt ; These are tlu'refore to command you. the said Constables and IVace Othcers, or any of yciii, to take the said A. !!. and iiim safely to convey to tlie saiil Couunon (!aol, at aforesaid, and there to deli\er him to the Keeiier thereof, together with this I'recept ; and I do hereby cunniiand you, the said Kee])i;r of the said Connnon (iaol, to receive the said A. \i. into your custody in the sai/' County, nr ii.s Ihr rosv .I.S. (Q l)-.s'.r s. (14. WAUll.WT •)!•" IllsrUK.SS l''OK COSTS ll'ON AN oKhKI! I'OK IIIS.M ISSA I. of A.\ INKOK.MATION (II! ( DMIM.AI.N T. Caiuuhi, I'rovinct! of District (<'/Connty, I uited C'ounties.o/- lis till' r'd.sc /((((// III), of To all or any of the Constables or other Peace Oliictus in the said District (or County, I'nited Counties, / complaint) was not proved, (/) therefore dismissed the same and a«■) of , and to the Keepei' of the Common Gaol of the said District (or County, Ignited Counties, or as ilic case mail he) of , at , in the said District (or County) of : Whereas (d'C, as ii( tlic last foim, to the asterisk,* ami then tints): And whereas afterwards, on the day of , in the year aforesaid, I, the said Justice, issued a warrant to all or any of the Constables or other Peace (Xticers of the said District (or Cnunty, United Counties, or o.s the easi man ^"^) commanding them, or any one of them to levy the said sum of for costs, by distress and sale of the goods and cluittels of the said C. D. ; And whereas it appears to me, as well by the return to the said warrant of di.stress of the Constable (oi' Peace Otlicer) charged with the execution of the sanuj, as otherwise, that the said Constable hath made diligent search for the goods and chattels of the said C. D., liut that no siitticient distress whereon to levy the sum above mentioned could l)e found ; These are therefore to command yo\i, the said Con.stables ami Peace Oflicers, or any one of you, to take the said C. D., and liim safely convey to the Common Gaol of the said District (orCouuty, United Counties, m us the eusi' may In), at aforesaid, and there deliver him to the Keeper thereof, together with this Precept ; and I hereby connuand you, the saiil Keeper of the said Conuiiou (iaol, to receive the said C, D. into your custody in the saidCouunon Gaol, tluiro to imprison him (and keep him at hard labour) for the sjiace of , unless the said s\un, and all tin* costs and cliarges of tiu! said distress (and of the commitment and conveying of the said C. D. to the said Common (Jaoj, amounting to the fiutliei' sum of ), shall l)e soontM- paid uj) unto you the said Keeper ; imd for yoin- so doing, this slinll be your sutlicieut warrant. (iiven under my hand and seal, this day of , in the year of our Lord , at , in the District (ur County, or o.s tin ease inaij '") aforesaid. .1. S. |i,. s,] 184 MAfUSTRATES MANUAL. (R) .SV.' s. 75. (;ERTIFI(JATK UK ( t.r.KK op the CKAtE that THK CdSTS OK A.\ Al'l'KAL AHK NOT I'AII). OfKcf of the Clerk of the Peace for the District (nr County, United Coiintiea, ()/■ ".s the i'((se tiiitij hv) of TITT.K ol- THK APPEAL. I hereby certify tliat at a Court of General or Qiiarter Sessions of the Peace {iir titlur ('i)iiif (I'lsclitii'iiliKj till' fuiiiluins nf flw Cotiii of (linevdl hi Qiunfir Sf't- ioHx, us the CKSi' utdij In), holden at in and for tlie said District (nc County, United Counties, or an tlic ckni iiKdj /«) on last past. an apiieal )ij' A. 15. at^ainst a convicti(jn (<'>■ order) of J.S., Eaiiuire, one of Her Maje.sty'.H Justices of the Peace in and for the said District (on ordered tiiat tlie .said conviction ("/■ order) should he continni'd (<-/■ (|uaslu!d), and tliat the said {A}iiii'llinit) sliouhljjay to the said (HiK/xiiiilnit) the sinu of for his costs incurreil l>y liini in the said aiii)eal, and whicli sum was tlierehy ordered to he paid to the Chi'k of the Peace for the said District (or Coiuity. I'liited Comities, or us tin- msf mo 1.1 '"'), on or l)efore the lay :.f instant, to be by hiui lianded over to the said {lii.itixiiiiliiit), and I further certify tluit the said sum for costs has not, nor has any part thereof, liuen paid in obedience to tlu! said ordi'r. ai Dated this id day of line thou-sand eii-lit liundrcd (i. n. Clei'k of the IVuce, (s I) Sir s. 7r». WAKItAM' III' nisTHEss Ktlll t OSTS OK AN AI'I'EAI, AiiAINST A CONVIlTloN Ol; OUUEK. Canada, Province of , District ("/■ I 'oniity, United Counties, or i(.\ tlir rd.sc »(((('/ /«'), of To all or any of the Constables or other Peace Otlicers in the said District (> County, Unitod Counties, or us tlir ntsv imni In) of Whereas (it'i'. , us in thr irurrunls of ilistn.ss, .V I, '2, unti, mul tu tin iinl oj ■ SUMMARY CONVICTIONS AND ORDERS. 18o ttn: sttifi nil lit ot'thi Cniii-Uiinii nr Onhr, mul tin n ^/ho) : Aii'.' whereas the said A. B. appealed to the Cuiirt of (Jeiieral (Jiiarter Sessiniis of the \'eiico (nr ctln i Court ilischf(rniis of flo Couit of (ti m i-nl or (^hmrlir Si'.'isioiis, rfs till aisr ))iiiij hi) for the said District («/ County, Tiiited Cotinties, or us flu nisr riKiij III), against tlie said Conviction or Order, in wliicli apjieal the said A. B. was the,'Ap[>eilant, anuartcr Sessions of tiio l'eai:e (')/ ofln r Court, •'■■< tin nisi inmj In), for the saiil District (<<»■ County, l'nitcistriei , that he {or Co\ni ty, r nited Counties, or os tin rnsi nnnj In) of may pay and apply the same as by law directed ; and, if no sucli distress can be foinid, then that you certify the same unto me or iui,\ oilier .lustice of the I' f-.rtl le sai ne District {or County, Cnited Counties, or ns tin III I III III ). to the end that sucii proceedings may be had tlieiein as to law doth appertain. oi: (liven under my Hand and Sei-,1, this lay of if Our Ijoril at in the District (lo- County , Ml tiie yeai *'/ Its fin I'lisi Will In), aforesaid. O, K. 180 MAGISTRATES MANUAL. (S 2) Sfr a. "."i. WARRANT OF COMMITMENT FOR WANT OF DISTRESS IN THE LAST CASE. CaiKUlil, Province of District ',«/• County, United Counties, i^' ('..f thii (•««' moil III) ..f J To all or any of the Constables, or other Peace OtHccrs, in the said District [(*/■ County, United Counties, or us On faxf mnij bc\ot and to the Keeper of the Common Gaol of the said District [of County, United Coun- ties, ")■ ((.s- fin cdsf nuiy In] of , at , in the said County of Whereas [/• County, United Counties, or as the run mail l>i]t}{ , connnandini,' them, or any of them, to lo\'y the said sum of , for costs, by distress and sale of the goods and chattels of the said A. B. ; And whereas it appears to me. as well by the re- turn to the said Warrant of Distress to the Constable [nr I'eace Otlicer], who was charged with the exee\ition of the same, as otherwise, that the said Con- stable hath made diligent search for the goods and chattels of the said A. B. , htit that no sutHcieut distress whereon to levy the said sum above mentioned could be found ; These are therefore to oouuuaud you, the said Constables or {*eace otiicers, or any one of you, to take the said A. B., and him safely to convey to the Conunon Gaol of the said District {i>r Comity, United Counties of (IK tin: rasr )i\mj /x ], at aforesaid, and there deliver him to tlie saidke(>iier thereof, together with this l'n'cei>t ; and 1 do hereby com- mand you, the said Keeper of the said Common (Jaol, to receive the said A. B. into yoiu- custody in the said Conunon N nATH. Canada, PrcivincL' (if , District (<>r County, Inited Counties, <>r ((.< tlie cane may hi ,) of The information [or complaint] of CD., of the To\vnslu[) of in the said District [or County, United Counties, m- as the case man ''^'J "^ [hdHiiinr]. [Tf iirt'fen-i'd hijaii A'turiKii nr Afirnl, snii :] "D.E.) his duly authorized Agent ["C Affonuii], in this behalf, taken niion oath, he- fore me, the undersigned, one of Her Majesty's Justices of the Peace, in and for the said District [d/' Count j-, United Counties, cr (i.s //n' <'((.-.v )naii hr] ni , at N., in the said District [County, or an the ra^f itaiy hp], i,f this day of , in the year of our Lord, one thousand eight hundreil and , who saith* that [he hath just cause to suspect and believe, and doth suspect and believe that| A 15., of the \ti,iniship] of , in the said District ["/• Cotmty, <».< '/(<■ rn.tf man In] of , within the space of , \tli' timi iivthin irltirh ih infi'i iiiiitiiiii \(ir c(i)iij)lainf\ inust hr hild] last past, to wit, on the day of instant, at the [^M(■/l.s/l;/>] of in the District [('iti(i(tii, iir as till' rafr »*/";/ ''i] aforesaid, did [/n/r mt md thr oJf'Dur d'c.,] con- trary to the form of Statute in such case made and provided. C D. D. E.] Taken and sworn before me, the day and year and at tlie place above uien- 'ioned. J. S. (i!;>r ol' ni'I'Kl! ok OISMIS.SAT. ok A\ INFoKM \TIoS' or rOM>M.,\INT. ( 'anada, . vince of , District (or Coimty, United Counties, or as thi' rasi' vi.aij hr,) of He it remombereil, tliat on , information was laid fo/' oom]ilaint w!iH made) before the undersigned, (oio) of Her Maji'sty's .Justices of the Peace in and for the said District^fo/ County, United Counties, or an the cakr 1.S.S MAOrSTRATKS MANUAL. iiKiij III) of . for that ('I''-) ''■•* '" '/"' Sammmi.'i utthv Ih/indintf) tiiul now at this day, to wit, on , at , {if (f Kiui iiiljiiiiniiiii lit iiisiif hirr :) "To wliich clay tho hearing of this ease hath been iluly udjoiirnffl, of whicii tlie said <'. I), hiid iliie notice," hotli tlie said parties apiJcai' before me in order tliat I sliould hear and determine tiie saiil information, ((>;• complaint) (or tlie said A . H. appeareth before me, but the said C. D., although duly called, dotji not ajjpear) ; whereupon the matter of the said information {ai complaint) beini,' liy me duly considered. (it manifestly api)ears to me that the saitl information {m coniplanit) is not proveil. ami ( / /' fill I iifiii'iiiii iif (of <'iiiii}iliii iiiiiit) iln not ii jifhtir till XI ii'orilt iitmi III' onntli'l) I do therefore dismiss the same, ami do adjiulge that the said C D. do pay to the said A. B. the sum of for his costs incurred by him in defence in his behalf : Jind if the said sum for co.sts be not [)aid forthwith (<'/ on or before ), I order that the same be levied by distress and sale of the goods andchattels of the said C. D. and in default of sutlicient distress in that behalf, I adjudge the said 0. D. to be imi)risoned in the Common ( CJiven under my Hai;d an. was con- victed of haviiv.; '<>r was >>/ .irrcral Ihfi inlnutii, nv li'i en Allivncii, it nm caxibi hr illljitl'l. -'-i Vil , Chiljl. i'l', K. //, KOH.M OK liKidOMZAME J< i TKV TllK An'l'.Al., iVlC. \\v it rememhered, that on , A. B. of (liihniirrr,) ;ind L. M., of {iiriiri'r] and N. <>.. of (ijriniiini,) per- sonally came hefoie the nndersiifned, {idk) of llcr Majesty's .Fusticea of tlio reacoin ami for the said District (or County, I'nited Counties, "/• ((.s flu msi iiniij hi\) of , and severallj' acknowh'dLjed theniselv'(!s to owe to our Sovereii,'!! Lady the (i>ueen, the several sums following, that is to say, the said A. r>. the sum of , and the said L. 1\T. and N. O. the sum of , each, of good ami lawful money of Canada, to ]>u niaiU' and levied of their several goods and cliattels, lands and tencnieids res])ectivc]y. to the \ise of our said Lady tiie (.tiieeii, Her Heirs and Successors, if he the said \.i>. shall fail in the cnmlition endorsed. Taken and acknowledged the day and year lirst mentioned at , liefore me .1. S. The condition of the within written Uecognizanci^ is s\ich. that if the said A. I>. shall at the (/((..'O (ieneral or (,>mirter Sessions of the Peace (i>r nflii r Ciiiiii iri.srliiiriiiini flu fuiiiiiiiii^ iif flu Ciiiii nj llnufuf "f <,)iiiiifi )' Si.-i.tiuiis, u.s tin riisi' 1111(11 III) to he liolden al , on the day of next, in and for the said District (Hr County, I'nitecl ( 'oiuities, m- ii.< tin III.. I iinni lir,) of , enter and proscctite an apiJcal against a certain conviction liearing dati' the day of instant, and madi liyfine^tlu! said .lustice, wherehy he the said A. P>. was convicted, for that he tile said A. \\. did on the day of , at the township liK) MAfilSTRATKs' MANUAL. iif , ill thi' said District (nr County, Ignited Ctmntiea, nr tm th' I'm,^ iiiWJ III .) of , (linr .^if (Hit til'' iil}'riiri ii.^istdtnl in tin riiitiirtinn) ; And fiu-tlier. that if tht; said A. 15. shall abide hy and didy perform tin- ordei' of the Coiirt to lie made ui" n the trial of such appeal, then the said Reco'^niz- ancetobe void, or o.]m> to .•c'lain iti full force .md virti.c FORM <>K NoTHK OK sICH RE(<)<:XIZ.4NCE To UK (ilVKN TO TIIK UKKKNUAXT (Arn;i,i,ANT) and his si kf.tiks, Taive notice, that yon A. \i. are bound in the sum of and yon, L. M., and N. O. in the sum of each, that you the said A. B., at the next General or Quarter SesBions of the Peace to be hoMen at , in and for the said District (dv County, United Comities, <>/• "s tin cwsc Dnnj In ,) (jf , enter and i)rosecnto an Appeal against a conviction (->/• order) dated the day of {inufdiit,) whereby yon, \. !>., were convicted of (o*- order, i^'c.,) .s^(//'/( upon the trial of .sucli Appeal : and unU'Ss you, the said A. B., prosecute sucli Apjical accorilin^dy, the ixecoyntzance entered into by yon will forthwith be levied on you, and each of yoii. Dated this hundred and day of one thousand ei'dit SUUETIKS. roMI'l.AIM ItV IHF. rAlllV Til I! K ATKN Kl>. I'oll SIHF.TIKS FOi; TIIK I'KAiK,. I'rnrnil lis ill Ihi l'\i,)ii (T) til tin iistiiisl: *, tin n : that A. I!, of the ('/'miv/- >7it'/() of , in the District (County, nr us tin- ,((.st' tnnii Iw) of , did. oil the day of (instant !<)■ la.st past. ((< tht ckm iiikij bi), threaten the said C. D. in the words or to the ett'ect following, that is to say, (■•i' it renienibei'eti, tliat on the day of , in the yoar of our Lord , A. 15. of (lalioiirer), L. iM. of (;/»•<»•«/■), and N. (). of (hntrli.yt, [lersonally cnme before (".<) the mulorsignet', (hnj) ni Her Majesty's .Justices of tlie Peace for tlie said District {nr Ctiunty, United Counties, / fh< ('i>}irt of (h'nurnl (^)u(irfir Scsxinns, as the cnse ma;/ hf.,) to be liolden in and tor the said District (or County, United Counties, cc a-i fh'- '''(>•«■ }n./■ (Jcuinty, (iiitcd Covm- ties, (1/ (»s //(I nisi' )iiini Ik ) iif ^ liy ('. I), nl tlio to'wiisliiii of ill tin- said District (Cmiiity, nr n.i >lir rust inmj In) (litlnmrfr,) tliat A. 15. nf, iVc. on tlu! day of , at the towiishij) nf aforesaid, did thrcati'ii ( ■inl nf ruiiii'liiiiit, n.s in fmni iilixni, in III, i„isl tiiisr, Hull) : And whereas tlie said A. I'., was tliis day lirnuyht and appeared liefnre tlio said .Iiistiee ("C d. Ij., Kscjuire, one nf Hi r .Maji'sty's .Justices of tlie Peace in and for the said District (or Cnuiit^-, I'liiteil Coun- ties, "/• "s till' (•'(.•«' iiiiiij In) nf , to answer untn tlie saiil cninplaint : And* liaviiiLj Ueeii r('c|uiii'd \>\ me tn enter iiitn Ids nwn Hecognizaiice in tlie Sinn of witli twn siitlicient sureties in tlie sum nf each, as well for his appearance at the iii'xt (Jeiieral or <,>uarter Sessions of the Peace, (iiiiilliiiCinirf ilixrliiirfj'uuj fhr fii iirfiini.i nf Dio ('ouil nf (lnuiiil nr nmirfii- SfHsiiiii.'i, as thi nisr iiuiij he,) to he held in and for the said District (m/ County, I'nited Counties, m- nx tin ci/.s. )/,,n/ l„ ,) of . to do what shall he then and there enjoined him hy the Court, as also in the iiieaii- tiiiie to keep the Peace and he of yood hehavioiir towards Hor Majestj' and Her lies^e people, ami especially towards the said C. D. , hath refused and nei^lected, and still refuses and neglects to find such sureties) ; These are therefore to coiiiinand you and each of you to take the said A. P., and him safely to convi'v to the {(Jididiidh (innl) nt aforesaid, and thereto deliver him to the Keeper thereof, together with this Precept : And I do lierehy cniiimaiul ymi tiie said Keeper of the ( ' ''hhiiiuh Gmil) to receive the said A. J». into your custody, in the said (Co)/ui(n)i /i'i/«/,) there to imprison him until llu' said next General or Quarter Sessions of the Peace (or the next tcnii or sittiii'_f of the said Court discharLfiiig the functions of the Court of (ieiieral or (Quarter Sessions, (ns the ii/.st hkhi In,) unless he in the nieantiiiie liml sullicieiit sureties as well for liis appearance at the said Sessions ("c Coi'ii) as in the meantime to keep tlie i'eace as afijresaid. (!i\en under (imj) Hand and Seal, this day nf , in the yisir of Our Lord , at , in the District {or County, or us Hic cn-fi mini In) aforesaid. .T. S. [L.«.] SUMMARY ADMINISTRATION OF CRIMINAL JUSTU.'E. 193 32 & 33 VIC, CHAP. XXXII. An Act respecting tlie prompt and siunniary admini.stration of Crinunal Justice in certain cases. -] [Afclent magistrate," and the expi'ession " tlu^ magistrate " shall have the same meaning and include the like fiinctionarieN find tribunals as with respect to the Provinces of Quebec and Ontario. .'37 \'ic., chaj). MU, s. ."}. And tlie expression " tliu Coiiiuinii Ciiinl (n- othur place < if cnntinonient," .shall in the case of any ntl'emliT wlio.se age at the time . This Act was extended to Mtmitoba by the '\7 Vic, chfip. 'V.) : to I'riiice Edward Jslantl by the 40 Vic, clnip. 4.; to tlu' District of iveewatin by the 81) Vic, chap. 21 ; aiil ( 'it v of Toronto, keep a coniiiion, 'Msoidoily, bawily-hoiise on (jbieen Street, in tilt! said city," etc., and coiiiinitted to ( Jaol at hard labour for six months. A hiilH'iif< rar/iiis and criiit>ri(ri issue<|; in ivtiirn, to whicli the commitment, conviction, iid'ormalion, and depositions, were brouo'ht up. ( )n application for her discharijiv, no motion beino- made to ipiash tlu; conviction, it wtis held, — (1) No olijcction that the commitment state[M'iid ujion the fact of the party I jeinu' charyei 1 beF ore tlic! convictiU!'' Jiisti ce. That point. howe\-er, was not decided ; the Coui't merely intiiiiating that it might ()!• might not lie a defect in the conviction. Ciiless the commitment must contain all that the conviction does or ought to (toutaiu, it is unnecessary to state the information in it : and moi'(> espi'cially as by the form given hy the statute it does not appear noccissary that the iiifoiinatioii should be set. out in the conviction. (')) Nor that tin; conviction was not sustained by the infori na- tion, the latter being that defendant was the kee]iei'()f awell-kiiown disorderly house; and the former that the prisoner did keeji a common, disorderly bawdy-house, for the coinmidiient would not be void on the face of it hecau.se of a vaiiance bcstween the original SUMMARY ADMIXISTRATION OF CRIMINAL JUSTICE. 197 information and the conviction made after hearing- evidence. But if the prisoner had heen cliari^ed with the information, and on beintts, and there was evidi'uce, the (Jourt will ni'ver enter into the (piestion whetiuu' the maj^nstrate has drawn the ri^'ht c(jnclusiiin i'lom it. (8) Nor that the oHeiice of " keepiui;' a couuuoii disordnly lia Wily -house," was not sutHciently certain ; for the le«,'al nieaniiiLC of the last two w^rds is clear, and a iiousi' will not be less a public nuisance because it is biund to be disKiiK'ily as w(dl as baw4 Q.B. (Ont.), 44. It is to be ob,sei'ved that the jurisdiction of the mi\i>-istrat(! in cases of this kin. A citmiction undi'rthis statute for kee|)ini;- a lnjuse of ill fame, oi'beinj,^ an inmate of such a house, adjuiiicaliiii^' that the accuseil NliiHiJd pay a tine of !?')() forthwith, and be im])risoned for three uionths unless the tine be sooner jiaid, is not wai'ranted by sec- tion 17 of the statute, I'or im])risoinuent is oidy authorized l>y the Act when it has l)een awardeil as a substantive jiunishment. I{e \t would seem that tluju^^di a magistrate may have a ;,'eneral 198 MAfJISTRATES MANUAL. jurisdiction to hear any complaint against a disorderly inn or house, he has no right to issue a warrant to arrest a casual guest visiting a licensed tavern as a guest at a time sul)se(|uent to the charge, and \n no way piesiint at or assisting in any disturbance or disoi-dei-. C/eland v. Robinson, 11 C. P. (Unt.), 421. The (;wner of a house letting it to several young women for the ]»urpose of prostitution cuiniot 1)0 imlicted for keeping a dis- orderly house. It. v. Stavnard, 9 Cox. C. C, 40") ; li. v. lin rrcll, (ih.), 255. It is not necessary that the disordei'ly conduct shcjuld be vis- it »!<■ from the exteiior of the house. J{. v. Rice, L. R., 1 C. C II., 21. See also vagrancy, ^vo.s'<. Ill case uiiy per.son i.s chiiryo charge against him, and (if the charge is not one that can \)v tried stnumarily without the consent of the accused) .shall tlien say to him, these words, or wor not tieci-^s.sary. 4. If the person chargi-d confesses the charge, tho magistrate shall then proceed to puss such sentence upon him as may by law l)e pas.sed (subject to the provisions of this .\ct,) in respect to stu:h oU'ence ; but if tlu^ person charged says that he is n(jt guilty, the magistrate shall then examine the 200 MAGISTllATES MANUAL. witnesses for the prosecution, and when the examination has been completed, the magistrate shall inquire of the person charged whether he has any de- fence to make to such charge, and if he states that he has a defence, the magistrate shall hear such defence, and shall then proceed to dispose of the case summarily . Under this Act, the magistrate may, before any formal examin- ation of witnesses, ascertain the nature and extent of the charge, and if the party consents to be tried sunnnarily, may nsduce it in- to writing. It would seem that the magistrate may then (that is when a person is charged before him prior to the formal examin- ation of witnesses) reduce the charge into writing, and try the party upon the charge thus reduced to writing, and if this is the meaning of the statute, it would not signify whether the original information and warrant to apprehend did or did not state a charge in the precise language of the Act. But the magistrate must eith' r, by the original information, or by the charge which he makes when the party is before him, have the ehargi:' in writ- ing, and luust read it to the prisoner, and ask him whether he is guilty or not. It ai)peiired on an ai)plication for a hubeas corpus, that tlie information laid before a police magistrate, and warrant to apprehend, were for an assault and beating, but it was disputed wiiether upon the examination and trial this was all the cluirge made, or whctlK'r he was not then charsjed with an a<^gravated assault under Con. Stat. Can., chap. !()•'), s. l,s.-s. 4, and whethci- wlien he pleaded guilty, lie did so under the former or latter chai-ge. The information .seemed to be laid under Con. Stat. (Jan., chap. I>1, ss. 87, *iH, for an assault and beating, while the conviction purported to be under Con. Stat. Can., chap. 10'), and imitosed the punishment ])rescribed by tlie latter statute. Numerous conti'adictory allidavits were filed, the Justice alleg- ing that the defendant was charged with an aggravated assault, and "'it.]' )' ill knowledge of the fact, consented to the cliaige being S". Ml .. i. j osed of by the Justice according to the statute, ■. ! I' M.e V.' v«'-dant contradicted this ami alleut'd that he would I. , ,t (■ .'.- ' 1 guilty if hi! had known thechai-ge was of aggra- vated asKiiUi . Four .seveial warrants of commitment weie in the gaoler's hands, upon one at least of which the jjrisoner was detained SUMMARY ADMINISTRATION OF CRIMINAL JUSTICE. 201 in custody. They were all for the same offence, one having been from time to time substituted for the other. It was huld that a ehar<^ft' of an assault and beating is not a charge of aggravatctl assault, and a complaint of the former will not sustain a convic- tion of the latter under t^" ; statute, though when the party is before the magistrate, the chai'ge of aggravated assault may ha made in writing and followed by a conviction therefoi'. lie McKlnnon, 2 U. C. L. J., N. S., 327. 5. In the case of larceny, feloniijiLsly receiving stolen property (.r attempt to commit larceny from the person, or simple larceny, charged under the first or second sub-section.s of the second section of this Act, if the Magistrate afti'r hearing the wliole cast; foe the prosecution and foi' the defence, tindstlie charge proved, liieu he shall convict the persijn charged and commit him to the Conniion (iaol or other place of continenient, there to he imprisoned, witli or without hi.rd labour, for any period not exceeding six months. (J. If in any case the Magistrate finds the nit'oiiuu not proved, he sliall dis- miss the charge, and make out and deliver to the i)erson charged a certiticate under his hand stating the fact of such dismissal. 7. Every suci\ conviction and certiticate respectively nuiy be in the foruis A and IJ, in this Act, or to the like eiiect. M. If (when his consent is necessary) thi' per.sou charged does not consent to I'ave the case heard and determined by the Magistrate, or in any case if it appears to the Magistrate that the oil'ence is one which, owing to a previous conviction of the person charged, or fiom any other circumstance, ought to l)e made the std)ject of prosecution by imlietment rather than to be dispo.sed of binnnuirily, such Magistrate .shall deal with the case in all respects as if this Act hail not been jiassetl ; but a previous conviction shall not pre\ent the Magistrate from trying the otliirder stuaniarily, if he tliiidvs lit so to do. !t. ]f upon the hearing of the charge the Magistrate is of ojiinion that there are cironnstances in the ease which render it inexpedient to intliit any pun- ishment, he may dismiss the per.son charged without proceeding to a con- viction. lU. Where any person is charged before a competent Magistrate with simple larceny, or with having obtained pro)ierty by false pretences, or with having endiezzled or having feloniotisly received sUden jiroperty, or with couunitting larceny from the person, or with larceny as a clerk or servant, and the value of tlie lu'operty stolen, obtahied, embezzled, or received exceeds ten dollars, and file evidence in suj)port of the prosecution is in the opinion of the Magis- trate siiflicient to put the purstju on his trial for the otl'unce charged, such 202 MAGISTRATES MANUAL. Magistrate, if the case appear to him to be one which may properly be dis- p in the case of any other person cliarged with any su':h ottence on the com- [jlaint of any such sea-faring person wliose testimony is essential to the i)ronf "f the offence, and such jurisdiction shall not depend on the consent of any •sucii party to be tried by tlie Magistrate, nor shall such party l)e asked whether he consents to be so tried. 17. [n any case sinnmarily tried under the third, fourth, tifth, or sixth sub-section of the second section nf this Act, if the Magistrate linds tlie charge jiroved, he may cnnvict the person charged and commit him tn the Comninn (ianl cjr otlier place of cunlinement, there to be imprisoned with or without hard labour for any period not exceeding six months, or may con- deuni him to i)ay a line not exceeding, with the costs in the case, one hundred dollars, or tn Imth tine and imiirisonment, nnt exceeding the said periny Warrant of Distress under the iiand ami seal of the Magistrate, nr the [>iirty convicted may be enudemned (in ad- dition to any other imprisonni'iut on the same conviction) to be committed to the Common (laol or other place nf cnnlinement, f(;r a further perind not ex- ceeding six months, vndess such tine be sooner paid. Ill Prince Edward Island, lint's colieett'd undur this Act arc to Im' jiaid over to tlii^ I'rovincial Secretary and Treasurer, 40 Vie. chap. 4, s. 8. 18. Whenever the nature of the case reriuires it, tlie forms given at the end nf this Act .shall be altered by nmitting the words stating the con.sent of the party to be tried })efore thti Magistrate, and by adding the reipiisite words stating the line imposed (if any) and the imprisonment (if any) to which the party convicted is to be subjected if the fine be not sooner paid. 10. Where anyj person is charged before any Justice y any (jther com- l)etent Magistrate in the sauie City. 22. If any person sull'ei'ed to go at large upon entering into such lleci^ni- zancf as the Justice or Justices are autlmri/ed under any such Act as last mentioned to take, (^n the remand of a [)arty accused, conditioned for his ajipoaraiice l)efore a competent Magistratu under the [ireceding section.'^ of this Act, does not afterwards appear i)ursiiant to such Uecuarter Sessions of the I'eace, for the District, County or Place, tliere to Ije ke])t by the proper Ctficer among the records of the Court. 24. A copy of such conviction, or of such certificate of dismissal, certified by the proper Otlicer of the Court, or proved to be a true copy, shall be suliicient evidence to prove a conviction or dismissal for the oil'ence mentioned therein, in any legal proceedings whatever. 25. The Magistrate, by whom any person has been convicted under this Act may order restitution of the property stolen, or taken or obtained by false pretences, in those cases in which the Court before whom the person convicted would have been tried but for this Act, might by law order i-u- stitution. SUMMARY ADMINISTRATION OF CRIMINAL JUSTK!!-;. 20o As to restitution of stolen property, see 32 & 33 Vic, chap. 21, s. 113. 20. Every Court held by a competent Magistrate for the purposes of this Act, shall be an open public Court, and a written f)r prir.ted notice of the day and hour for holding such Court, shall be posted or affixed by the Clerk of thi^ Court upon the outside of some conspicuous part of the building or place wliore the same is held. 27. The provisions of the Art respectituj the duties nf Justices of the Pence oiif of Si'ssiiiiis, in rehttiiiH. to .•iummarn cini.vi^'tti))ts (itul orders, and the pro- vi.sions of the Art n'spcctinii the dntli'S of Ju-xtiees of thf Penee out if Svmuiu^ in irlatioH to persona e.kar'2. Kv.'ry tine imposed under the authority of this \rA, shall l)e paid to tlie Ma:,'istrate, who has imi)osed the same, or to the (Jlcrk of the Couit or Clctk of the Peace, as the case may be, and shall be; \ty him paido\er to tlh County Tit'asurer for ('ounty purposes if it has been inip'sed in the I'rovince of Ontario,— and if it has been imposed in any new district in the I'rovince of • (hieliee, eonstitnttid bv any .\ct of the Legislature of the Late Province of Canada piissed in or after the year one thoiisand ei'^ht hundred and fifty- 20G MAGISTRATES MANUAL. seven, then to the Sherift" of such District us Treasurer of the Building and Jury P'uini for such District to form pavt of the said Fund,— and if it has been inijxjscd in any other District in the said I'rovince, then to the Pro- tlionotary of such District, to he by liini applied under the direction oi the Lieutenant-Governor in Council, towards tho keeping in repair of the Court House in such District, or to be by him added to the moneys and fees col- lected by him for the erection of a Court House and (Jaol in such District, so long as such fees shall be collected to defray the cost (if such erection ; and .in the Province of Nova 8cotia to the Coiinty Treasurer for County purposes, and in the Province of New Pjriniswick to the County Treasurer for County purposes. 33. In the interpretation of this Act the word " i)roperty " shall \>o con- strued to include everything included under the same w■ the cii>te maij /»■, of I lay of , in the yeiir aforesaid, A.B., hciiig charm'd })e- fore lue (and consenting to my deciding upon the charge siunniarily), for that he tlie said A.B. , itc. (sfafimj tin' nffini-c clmnjiil, and tin tiiiir ami /ihiri' irhitt ait'l ir},,rr all<'(jcil to hair hicii nnnmitfeil), I did, after liaving .summarily adjndic.ated thereon, dismiss the said charge. (riven under my hand and seal, tliis aforesaid. day of J. S. [L.S.J FORM C. .s'•(,' )/).«;/ '« of, to wit : (hiy of , in tht^ year He it remembered that on tlie of oin- Lord , at , A. B., being charged lx;f(>ve me the midersigned , of the said City (and consenting to my deciding upon tlie charge .summarily), for that he the said A. B.,».V:c. {stutiiaj theoffmrc, ami thf 1 11)11' ami pi (Iff irlii'n ((ml n-hi'ri- rorniiutfril), and pleading guilty to such charge, he is thereupoji convicted l)efore me of the sai of the County (Jourt, being a .Justice of tho I'eace, Pol'ce Magistrate or Sti[)endiary Magistrate, or aTiy two Jtistices of the Peace acting within their lespective jm-isdictions ; — and as res[)ects tho Province of Nova Sc *ia or the Province of New I$rnnswick, the said ex- pression shall mean and inehide any functionary or tribunal invested or to be invested by tho proper legislative authority with power to do acts usually re([nired to ])e done by two or mort! .lustices of the Peace ;- and the ex- pression " the .Itistices" shall have the same meaning as the expression " two or more Justices of the Peace " as above d(!tined ; -and tuo expression "the Connnon (iaol or other place of continenient " shall include any lieforniatory i'risoii provided for the rece[)tion of juvenili' oU'enders in the Province in which the conviction reiorred to takes placi', and to which by the law of tliat Province the oHeMKhM' can be sent. This Ai't was extemled to Mauitdlia l>y the 37 Vie., ehai). 3i). to the Distriet of Kcewatiii hy the 3!> \'ie., ehap. 21, and to l:jr*ti.-;!i Columhia by tlie 37 Vic, chap. 42. The expression "any tvo or more Justices " and tlie ex pi'ession " the .lustiees '" shall, with I'espeet to tlie Province of .Mauitolia, have the sa,me mean- ing and ,nclud(! tlie liki- functionaries and triliunais as with re- spect to the said Pi(i\ inces of Qucdiec ami Ontario, and the ex- |iression " the ( 'onniion (!aoloi' other place of confinement " in eithei' of the siiid .\ets shall have the sa,me meanintf with respect JUVENILE OFFENDERS. 205 to the said Province of Manitoba, as witli respect to the other Provinces mentioned in the said Act. 37 Vic, chap. 39, s. 3. In applying the Act to the District of Keewatin and to Bi-itish Cohunliia, the expression " any two or more Justices " shall be construed as including any magistrate having the powers of two Justices of the Peace. The Act shall not apply to any otience punisliable by imprisonment for two years and upwards, and it shall not 1)6 necessary that the recognizance be transmitted to any C'lerk of the Peace. 37 Vic, chap. 42, schedule A. ; 39 Vic, chap. 21. The Act was also extended to Prince Edward Island by the 40 Vic, chap. 4, but in this Province the expression " any two or more Justices" siiall be construed as including anv magistrate having the powers of two Justices of the Peace, and the Act shall not apply to any otience punishaVde by imprisonment for two years and upwards, anlace of eonlinement within the jurisdiction of such Justices, there to be imprLsonml with or withtiut hard labour, for any term not exceeding three months, or, in the discretion of such Justices, shall forfeit and pay such sinu, not exceeding twenty dollars, as tiie said .Justices may adjudge. ;t. 'rhi> Justices bef )re whom any person is chargi'd and proceeded against uuilci' this Act, l)efy his own consent by a .ludge of a County Court in the Province of Ontario, under any .\ct then in forci' for that puriiose. ti. Kvery ])er8on obtaining such certificate of dismissal as aforesaid, and every person convicted under the authority of this Act, shall be released from all further or other criminal proeeediiigs for the sumo cause. 7. In case any person whose age is alleged not to exceed sixteen years It charged with any otlenco mentioned in section two, on the oath of n credible witness before any .Itistico of the Peace, such Justicu may issue his summon^ or warrant, to sununnn or toapprehind the [jerson so charged, to a]i[iear K>- .IIiVKNFLK OFFRXDERS. 211 fnro ;iny two Justici^s of the Peace, at a time and [dace ti> be iiaineil in sucli .suimiiniis (ir warrant. 8. Any Justice or Justices nf tlie Peace, if lie or tiiey think tit, may remand for further examination or for trial, or sutler to go at large upon his thid- iiii,' suttici(!iit sureties, any such person charged liefore him or them with any such otleiice as aforesaid. !>. Every such surety shall be bound by recoi.,'ni/,ance to In; conditioned for the appearance of such person before the same or some other Justice or Jus- tices of the l\'ace for further examination, or for trial before two or more Justices of the Peace as aforesaid, or for trial by indictment at tlie proper I'ourt of Criminal .luiisdiction, as the case may be. 10. Every such recouiii/.ance may be enlar'^ed from time to tiim; by any such Justii'e or Justices or Court to such furtlier time as he or they afnioint ; and evtiry such recoL;iii/,ance not so enlarged sliall Ix; discharged without fee or reward when the party has appeared according to the condition theri'of. 11. .Viiy Justice of thi' Peace may, by summons, reipiire the attemlance of any person as a witness upon the hearing of any case before two Justices under the authority of this .\ct, at a time and place to be nanird in such "umiuons. 12. .\iiy such Justiei' may reipiire and bind by recognizance all [ler- sdiis whom hi' considers necessary to be examined touching tin; matter of such charge, to attend at the time and [ilace a[ipointed by him. and then and there to give evidimci' upr nm, S. J., lieiarder, Ac, , of the of , ()»• as the ease mail he) for that ho tlie said A. O. did {fjieeifij the offetiee anil the time ami plaee ivhen ami vhere the same a-as eummlttetl, as the ease maij lie^ hut \rithoiit settimj farfh the e) '<:nre), and we the said J. P. and J. R. {or I the said S. J.) adjudge the said A. 0. for his said offence to bo imprisoned in tlie (or to be imprisoned in tlio and tliere kept at hard hibour, for tlie sj)ace nf , i(,r we (nr 1) adjudije the said A. O. for his said offence to forfeit and pay , {here state tin poialtji aefiiiillij imposed,) and in default (jf i in :uediate payment of the said sum, to be imi)ri8oned in tlie {or to l)e imprisoned in the , and kept to liard labour) for the s^'ace of , unless the said sum shall be sooner paid. Given under our hands and seals {or my liaml and seal) the day and year first above mentioned. And the conviction shall beg(jod and effectual to all intents and purposes. l(). No s' 1 conviction shall be (juashed for \i-ant of form, or be removed by eertioran or otherwise, into any of Her Mijesty's Sii])erinr Courts of Ue- coi'd ; and no warrant of commitment shall be held void by reason of any de- fect therein, provided it l>e therein alleged that the party has been convicted, ami there is a good and valid conviction U) sustain the same. Soo 82 \- .S3 V^ic, cluip. 31, s. 71, and nutos tliei'e()ii, ante, ]). ltd. 17. The .fusticos before whom any per.snn is convicted under the provi sioiis of this Act, shall forthwith transmit the conviction and recognizauoes to Mu! Clerk of the Peace for the district, city, county (jr union of cotintios wherein the ntl'ence was conunitted, there to \m' kept by the proper olliour among the records of the Court of (Jen sral or Quarter Sessioin of the Peace, or of any other Court di.scharging the functions of a Court of General oi Quarter Sessions of the Peace. 18. Kacli such Clerk of the Peace shall transmit to the Secretary of State of Canada, a ijuarterly return of the names, oH'ences and puni.ihments men- tioned in the convictions, with suih oMier particulirs as m ly from tim* to time bo reijuired. JUVKNILE OFFtNDFRS. 213 19. No conviction under tlie authority of this Act shall he attended with any forfeituie, excejit such ]>eiialty as may be imposed by the sentence, but whenever any person is adjudged guilty under tiie provisions of tiiis Act, the [(residing Justice may order restitution of the property in respect of which the offence was conunitted, to tlie owner thereof or his representatives. 20. If such property be not then f(.irthcoming, the Jtistices, whether they award punishment or dismiss the com|ilaint, may inquire into and asceiiain tlie value thereof in money, and if they think jjroper, order payment of such stun of mone}' to the true owner, by tlie person convicted, either at one time or by instalments, at such jk rinds as the ("oiu't deems reasonable. ■JI. The party so ordercil to pay inay be sued for tlie same as a , at tlu' re(piest of the prosecutor or of any other peiH>in who appears i.n recognizaiu'e or sum- inoiis to prosecute or gi\i' evidence against such ]ierson, order payment to the- prosecutor and witnesses for the prosecution, of such sums of money as to them seem reasonable iviid siitHcieiit, tc I reindiurse such pr'isecutdr and wit- nesses for the expenses they have severally ii curred in attending beforo them, and in otherwise carrying on such prnsectitioii. and also to comju'iisato them for tlieir troiilde and loss of time therein, and may order payment to the Constables and other Peace Othceis for the aiiiirehension and ilet.'iition of any person so chargetl. '2h. .\nd although no conviction takes place, the Maid .lustices may older ^14 MAGISTRATES MAN L' AL. ill] iir ail} of tlie jiaynionts afuresiiid, wlioii tlioy arc uf opmiuii that Iht; par- ties or any of tlieiii have acted hottn Jiik. 2(5. Every tine iiujiosed under the authority of this Act shall ho paid t > the Jvistices who impose the same or to the Clerk of the Recorder's Court, or the Clerk of the County Court, or the Clerk of the Peace, or other proper officer, as the case may be, and shall be by him air of the Court House in such district, or tunt\- purposes. Sue as to Princt' Edward Island, 40 Vic, chap. 4, s. 8. 27. The amount of expenses of attendin.^ before the Justices and tiio com- pensation for trouble and loss of time therein, and the allowances to the Con- stables and other Peace Olhcers for tlio apprehension and detection of the ollcndei', and the allowances to be paid to the prosecutor, witnesses, and con- stables foi' attending at the trial or examination of the oll'iniiler, ehall lie ascertained by and certified under the han Is of such Justices, but the amount of tlie costs, charges and expenses attending any .such prosecution, to be allowed and paid as aforesaid, shall not in any one case excje Inhe sum of eight dollars. 28. Eveiy sucli order of payment to any prosecutor or other person, after the annmnt thei'eof has bei'ii certitied by the jn'oper Justices of the Peace as aforesaid, shall lie forthwith made out and delivcreiie3's received by liim under this Act, the nirtney in such order mentioned, and shall l)e allowed the same in his accounts of such uDueys. 2!». The Act chapter one hundred and six of the Consolidated Statutes of Canada is hereby repealed, except as to cases pending luider it at the time of the coming into force of this Act, and as to all sentences pronounced and pmiishments awarded under it, as regards all which this Act shall l)e cnn- strued as a re-onactnient of the said Act with the amendments iiereby made and not as a new law. 30. This Act shall commence and take effect on the first day of January, in the year of Our Lord one thousand eight hundred and seventy. 210 MAGISTRATES MANUAL. 32 c^ 33 VIC, CHAP. XXXV. An Act for the more speedy trial, in certain cases, of persons charged with felonies and misdemeanors in the Provinces ijt" Ontario and Quehec. [xlsi^entcd to 22non being so arraigned and consenting iis aforesaid, pleads not guilty, the Judge shall appoint an early day, or the same day, for his trial, and it shall be the duty of the County Attorney or Clerk of the Peace to subp(emi the witnesses named in the depositions, or such of them, and such other witnesses as he may think rerpiisite to prove the charge, to attend at the time api)ointed for such trial, and the prisoner being ready, the • ludge shall proceed to try him, and if he is found guilty, .sentence shall be passed as in the last preceding section mentioned, but if he is found not guilty, the Judge shall immediately discharge him from custody so far as respects the charge in ((uestion. Under this statute it i.s not necessary to have nu^re tlum one record, in which sliall he entered the proceedings tVoui time to time taken, until the final determination of the matter. After the prisoner ha.s hearil the charov read tn him, and lifis '■lected to have it tried by the Judge and lias pleaded to it, ar.d has V»een tried, he cannot object to tlie record wlueh has iinii made up against him, because it desci'ibes oi- lays the charge ii, different forms to moet the facts of the case, so hjU'' as it loos not iniitain different distinct offences. The Judge's jurisdictiuii i'^ iiut confined to the trial only of the eharoe us stateil in tlio (iiminit- uient. Where therefore a prisoner was committed to gaul fur trial on a charge of kidnapping another person, with intent to cause ■>uch person to be secretly confined or imprisoned in < 'anada, whi<'li is made felony under the Statute li'l vV .So Vic, chap. :i(», .s. (l!t, and on being brought before the Judge under this statute ('.]•> \- :>:i Vic, chap, 8.")), was charged and tried also for tlu' other ofloiu'e under the .statute of, without lawful authority, forcibly seizing and confining any other per.son within < anada. It was held that this 218 MAGISTRATES MANL'Al.. luiyiit !>(• lawfully dune, tlic })iisonoi' l)oin^ comniitttMl on achiugo fui wliicli lie niiglit hv trk'il at the Sessiuns, Cornvxdlx. R., 38 Q. B. (Ont.j, 1()(). Till' puiposr of tlu' statutf was not to conipol the Judge to tiy the })ii,soiiei' upon any charge lie was contined upon, in the lan- '•uiiij'e of that charp(enaed to attend and give evidence before such.ludge sitting on any such trial on tlie day ai)pointed for the same, shall be V)o\nid to attend, and remain in atteml.ince tlu-ougliout the whole trial, and in case he fails so to attend he shall be held guilty of contempt of t'ourt, and he may be pro- ceeded against tiierefov accordingly. 7. I pou i)roof to the satisfaction of the .Judge of tlie service of sul>[)o'na upon any witness who fails to attend before him as reipiired liy such subpo-na, and such Judge being satislied tliat the presence of such witness before him is indispensable to the ends of justice, he may by his warrant cause tiie said witness to beaiiprehended, and forthwith brought before him to givi' evidence as required by such subpo-na, and to answer for his disreganl of the same, and such witness may be detained on such warrant before the said .ludgi' or in the Common (Jaol, with a view to seciu-e his presence as a witness ; or in thedis- ci'etion of tlie Judge, such witness may be releaseil on recognizance with or without sureties conditioned for his a[>pearanee to give evidence as therein iiuntioned, and to answi'r for his ilefiuit in not attending upi>n tlie saiil s'lhpiena as f(U- a contempt ; the Judge may in a summary manner examine into and dispose of the charge of contempt against the said witness, who if found guilty thereof may be lined or imprisoned, or both, such tine not to ex- ceed one hundred dollars, ami sucli imprisonment to lie in the I'ommon (iaoj, with or without hard laiiour, and not to exceed the term of ninety days ; the said w.irrant may be in the Form " C," and the conviction for contempt in 220 MAO ISTR ATKS MA N UAL, the Form " D" to this Act, and sbiill bo authority to the persons .and othcers therein required to acf, to d(f as therein tliey are respectively directed. 8. All the powers and duties hereby conferred iind imposed upon the Judi;e, shall be exercised and performed in the Province of Ontario by any County Judge, junior or Deputy Jtidge, .uitliorized to act as < hairman of the General Sessions of the Peace ; and in tlie Province of Quebec in any D st Jet wiierein there is a Judge of the Sessions, by such Judge of Sessions, and in any Dis- trict wherein there is no Judge of Sessions but wiierein there is a District Magistrate, by such District .Magistr;ite, and in any District wherein there is neitlier a .Fudge of Sessions n^rribr thr Judyr) ,,n ^^^^ r District, as the case ^^. Peace Otticers in the said County {or Dis- iiiay be) of , ! trict, r/.s t/it: m.'su '.my he) of To wit : j Whereas it having been made to appear before me, that E. F. , in the said County \i'r District, nr us tin- iioc mnii he,] was like to yivo material evidence iin lielialf nf the prosecution [«'/ defence, an tin: rase ».«(/ hi'] on the trial of a certain charge of [as Imrinij, ai.st- m<(ij hr,\ bef
    on the said E. F., or of the said E, F. 
 having been tltdy bound in recngnizance to appear before me [as the ruse iium 
 III ) ; And whereas the said E. F.. hath neglected to appear at the trial and 
 place appointed, and no just excuse has been oHered for such ncgU'ct : Tlu'se 
 are therefore to enunnau., ainl alsn tn answer his contempt fnr sucii 
 neulect . 
 
 (Jiven under my hand tliis 
 l»ur Lord IS . 
 
 day of 
 
 in the vear nf 
 
 .I.S., 
 
 •ludge. 
 
 SCHEDILE D. 
 
 (L.y.) Canaila. He it remendiered that on the day nf 
 
 Province of f in the year of our Lord 18 . h\ the 
 
 (County or District) I (Cnunty '>/' District (ts the case man /"') of 
 
 To wit : ' E. h\ is convicted before me. for that he the said 
 
 K. F. did not attend before mo to give evidence on the trial of a certain 
 charge against one A. |{. nf larceny, {or us the ('((.sc nimi /«■,) although duly 
 subpteiiaed tir bound by recognizance lo appear and give evidence in that 
 I ehalf (d.s thr (((.M nimi In) but math' default therein, and hath nnt shown lie- 
 fore nu; any sufticient excuse for such default, and 1 adjudge the said E. F. 
 
SPEEDY TRFAl, IN CERTAIN CASKS. 
 
 223 
 
 fill' liis said ntlVnci' to bo ini])ris(iiiccl in tlic CoimiiDii (ia<'l of tlie (Co nty "/ 
 District) of at for the space of lliere to 
 
 he kept at hard labour (itml in i-tisf u juu' is dlsn iatrinhil to /»■ im/ios.J, tjn n 
 liroiri'il) And I also adjudge that the said E. F. do forthwith [ay to and 
 for the use of Her Majesty a tine of dollars, and in default <■{ 
 
 l)ayment that the said tine with the costs of collection be levied by distri'ss 
 and sale of the goods and chattels of the said E. F. (riddlese.K, > at London, in the County of Middlt'scv, bofnic 
 To wit: MNilliam Elliot, Esipiire, County Judge of tiie 
 
 .said County, exorcising criminal jurisdiction under the provisions of tlu; 
 Act, entitled " .\ii .\ct for the iiioii^ s[i('i.'dy trial in certain cases of per- 
 sons charged with felonies and misdcmeaiKirs in the Provinces of Ontario 
 :iud (j)iiel)ec,'' Isaac I.ell Cornwall, who is committed for trial to the Com- 
 mon (!aol of the said County, and is now a prisoner in close ciistoily then in, 
 stands charged this day before the .said Judge, sitting in pulilic open Court 
 .issembled for the trial of the said Isa;ic Kell Cornwall. First count, for 
 that he, the .said Isaac Hell Cornwall, on the fointli day of -lime, in the year 
 A. D. IHT'-*, at the City of London, in the said County, did feloniously and 
 witlioiit lawful autiiority, forcibly sei.'e and coulini! one James llufiis lirattMU 
 witiiin Canada, against the form of tlie Statute in such case madeand provided, 
 and against the [leaceof our Lady the (Jueeii, Her Crowu and Dignity, Second 
 count, and for that he, the said Isaac Roll Cornwall, afterwards, to wit, on 
 the day and year last aforesaid at the City and t'onnty aforesaid, without 
 lawful authority, did fidoniously kidnap one .liunes Uufus lirattou, with 
 intent to cause the saiil James I^ufns Bratton to lie unlawfully transported 
 out of Canada against his will, against the form of the Statute in such ca.se 
 madeand (iroviiled, and against the peace of our Laily the Queen, Her Crown 
 and Dignity. 
 
 (Signed) CiiAiti.Ks Hr'rriitNHoN, 
 
 County Crown Attoric'y, County of Middlesex. 
 
224 
 
 MAGISTRATES MANUAL. 
 
 Isaac Boll Cunnvall, within named, upon the within charge being read tn 
 him by the Jndgc in open Court, and being informed by the Judge that he 
 has liis option cither of being forthwith tried without the intervention of a 
 Jury upon the said charge, or of remaining untried until the next Court of 
 Oyer and Terminer of this County, consents to be now tried upon the said 
 charge, by the said Judge, without a Jury, and the prisoner pleads not 
 guilty to the said charge. 
 
 I'pon tlie accusation was endorsed the following i-vder : — 
 
 " Okdek Amendixg Accusation. 
 
 " Ciiiiiifij J II, hit's CrimhuiJ Cuini, Cmnthj of Midi 1 1 <:■■»: y. 
 
 ''The Qiwn V. Crmritll. 
 
 " It is ordered that the accusation be anijnded by tlie inserting the name 
 James before the names Enfiin Bratttm. 
 
 " By the Court, 
 
 "(Signed) Ciiaui.ks HrTciirxsov, 
 
 "Clerk of the Peace." 
 
 SCHEDULE F. 
 
 sHKurFF's NOTICE, (Nol iu Statute.) 
 
 To Hi& Honour the County Judge of the 
 
 County of Middlesex. 
 
 Pu"suant to the second section of the Act for tin" more speedy trial ii certain 
 cases of persons charged with felonies and misdemeanors in the Provinces 
 of Ontario and Quel)ec. 
 
 1, William Glass, Sheriff of the said county, certify tliitt the several persons 
 whoso names are mentioned in the first column of the Schedule hereunder 
 written, were committed for tri;d to the Connnoii <}aol of the said county, 
 and were received l)y tlie (Jaolor of the saiil (iaol on the days severally men 
 tionod ill the second column of the said Schedule, opposite the names of the 
 said persons respectively, and w re .so conuuitted to the said (i/vol, ami 
 were received each severally, umier ami by virtue of a W.irrant from L. 
 Lawras(m, IMM., on a charge of being guilty of ai otleiice which may be 
 tried at a tJuiieral Sessions of the Peace, and that the nature of the change 
 
SPEEDY TRIAL IN CERTAIN CASES. 
 
 225 
 
 against the said several persons respectively, as contained in the warrant of 
 commitment, is sot forth in the third coliunn of the said Schedule, opposite 
 the names of the said several persons respectively. 
 
 SCHEDULE .VUOVK KKFERRED TO. 
 
 N'.wiE OF Pri.soner. Time when commit- N.\TrRE ok ch.vhges as containkd i.n 
 
 ! TED FOK llUAL. THE WaUHAXT OF COMMITMENT. 
 
 Isaac Hell Cornwall, 
 
 London, 15th June, 
 
 1872. 
 
 For that he did tinlawfully and 
 
 ''•'I'cihly kidnajiand take one Rii- 
 
 loth June, 1872. fus iJratton, without authority, 
 
 with intent to transport him out 
 
 of Canada ayainst his will. 
 
 (Signed) \V. (J., 
 Sheriff of the County ..f Middlesex. 
 
 ir, 
 
226 
 
 magistratf:s' manual. 
 
 REV, STAT. (ONT.), CHAP. 73. 
 
 An Act to protect Justices of the Peace and other Officers from 
 
 vexatious actions. 
 
 Hkk MA.iE.sTy, by and witli the advice and consent (jf the Legislative As- 
 sembly of the Province of (Jntaiia, enacts as follows : 
 
 Every action brought against any Justice of the Peace for any act done by 
 him in the execiiticjn of hi.s duty as such Justice, with respect to any matter 
 witiiin his jurisdiction as such Justice, or against any other otticer or person 
 fulfilling any public duty, for anything by him done in the performance (jf 
 such public tluty, whether any such duties arise out of the Common Law or 
 are imposed liy any Act, either of the Imperial or Dominion Parliament, or 
 of the Lt^gislature of this Province, shall be an action on the case as for a 
 tort, and in tlie declaration it shall be expre.s.sly alleged that such act was 
 done malicioiisly iiud without reasonaljle and probaljle cause, and if at the 
 trial of any such action, ujtou the general issue pleaded, tlie plaintiH' fails to 
 prove such allegation, he shall bo non-suited or a verdict shall be given 
 for the defendant. 
 
 When the Justice has jurisdiction ovei' tlie subject niattei' of 
 C()ni))lMint and over the [)crson of the party, an action of tres)»ass 
 will not lie against the Justice ludess there is malice or want of 
 rt'asonahle and prohal»le cause (Ifal/cfi v. Wilmof, 40Q,B. (Ont.), 
 2(l3;/^"r(A V. Perkins, 2 Pug'sley, 327); hut if the matter was 
 one in which the magistrate hail no jurisdiction at all, then he i^ 
 a trespasser. West v, Stiuillwood, 3 M. ,!c W., 41S. 
 
 Whenever theie is an arrest, and it can he said there was iki 
 jiu'isdiction, trespass is the proper foiin of action. Si'e Hunt, v, 
 iM cArfliur, 24! Q,. B. (Out.), 2.U. Whenever it can he said tliat 
 tliere was juri,sdictiplHu,t v, Ac/*/)*/', 20 ('. P 
 (Ont,), I3/nv. Drcow, 25 C. 
 P. (Ont.), IH; Gardner v. Bwrwdl, Taylor, 189. 
 
 When a Justice acts within his jurisdiction and without mal- 
 ice, h(' is free from ilama;L>es. Cartier v. Burlond, 2 Revue Crit- 
 ic pie, 475, 
 
 After a conviction hy a mavlfz,'r, 18 Q. B. (Ont.j, 575. 
 
 The , justice is not deprived of the protection of this section by 
 some i)'regularity in drawing up the conviction, such as signing 
 the conviction leavine' blaid'roi/(l, 28 L. J., M. ( '., 207 ; ami when su})[)osing the facts al- 
 leged to be true, the magisti'ate has jurisdiction, his liability to be 
 sued or his exemption from such lialiility on the ground of juris- 
 "lietion camiot be affected by the truth or fulsi'h()od of tlio c facts 
 of ly the sidliciencyor insullicieiieyof the evidence iuMueei I f)r tlu- 
 |)urpose of establishing them. ('rm and in the same case as he 
 might have done before the passiny of this Act with and probable cause. 
 
 This section nuist be rend in connection with the first section of 
 the Act, and therefore where, in the cuur.se of a matter transacted 
 heforea Justice, there has l)een an excess of jurisdiction, the second 
 section does not a]iply tndess the action in which it is sought to 
 lie applied is biought for an act done in respect of that part of the 
 matter, or some part of it which was beyond the jurisdiction. 
 liarton v. Jirirknell, 1 .S Q. B., WXl 
 
 Wlier(> a conviction contained no adjudication as to costs, but 
 the Justices i.ssued a warrant of distress reciting the conviction 
 as adjudicating costs, and the party's goods were seized as well 
 for tlu* costs as the ])enalty, this was holden to be an excess of 
 jurisdicti(m.^ within the meaning of the above section, and thnt 
 trespass lay for it. Lmry v. Pairuk, 19 L. J., M. C, 211. The 
 
PROTECTION FROM VRXATIOTTS ACTIONS. 
 
 •229 
 
 meaning of the words, "exceeded liis jurisiliction " in the above 
 .section, means assumino- to do something which the statute, undei' 
 wliich the Justice is proceeding, could by no possibility justify. 
 Rati V. Parkinson, 20 L. J., M. C, 208. And they apply only to 
 cases where the act, in respect of which the action is brought 
 against thti Justices, is itself an e.Kcess of jui'isdiction. Barton 
 V. Brkknell, 13 Q. B., 303; Somervillev. Mirrhomc, 1 B. eV S., ().-)2. 
 So if an order be good in part and liad in part, a Justice may is- 
 sue a warrant of distress to enforce so much of it as i.s <>ood, 
 witiiout subjecting himself to an action. R. v. Green, 20 L. J., M. 
 €., KiS. 
 
 When magistrates counuit a person upon a general charge of 
 felony given upon oath, they will not be liable to an action of 
 ti't'spass, although the facts sworn to, in order to sub.stantiate 
 that charge, may not, in point of law, support it. Q-ardner v. 
 Burwell, Taylor, 18!). 
 
 If a magistrate cause a ])arty to be wrongfully imprisoned 
 without any reasonable cause until he give his note to obtain a 
 discharge, the magistrate is liable in trespass. Brenmm v. Hate- 
 lie, V) 0. S., 308. 
 
 A magistrate sued in trespass for an alleged illegal proceeding 
 under the 4 tlv^ 5 Vic, chap. 20, may givi' in evidence a tender 
 of amends, undei- the plea of the general i.ssue. Moore v. llol- 
 dge of the circumstances on which he preferrcl the charge 
 against the defendant. The Court, however, held that this was 
 clearly no ground foi' re(iuiring that express malice should be 
 |>roved against him. (h'r v. S/iooner, 1!> Q, B. (Ont.), (iOl. 
 
 Defendant as a Justice i.ssued a warrant against the i)laintiH" 
 
230 
 
 MAGISTRATES MANUAL. 
 
 upon a complaint for detaining- the clothes of one K. The plain- 
 tiff on being told by the constable that he had the warrant, went 
 alone to flefendant, heard the evidence, was allowed to go away 
 without giving bail, and returned the next day when he was dis- 
 charged. It was held that no imprisonment was proved, and that 
 defendant having jurisdiction over the subject matter of the com- 
 plaint was not liable in trespass, even if the infonnation were 
 insufficient in point of form. IViorpe v. Oliver, 20 Q. B. (Ont.). 
 2G4. 
 
 A magistrate has no jurisdiction to administer an oath and take 
 examinations within thv. limits of a foreign country, and a com- 
 niitment founded on such ])roceedings is void and affords no justi- 
 fication in an action of trespass against the magistrate. Nary v. 
 Owen, Berton, N. B. Reps., 377. 
 
 It was laid down in a suit before a Justice for wages, in the 
 Vice Admiralty Coui't of Quebec, that although Justices of the 
 Peace exercising suuunary jurisdiction are the sole judges of the 
 weight of the evidence given before them, and no other Court 
 will examine whether they have formed the right conclusion from 
 it, vet other Courts mav and ou^'ht to examine whether the 
 premises stati'd by the Justices are such as will Avarrant the 
 conclusion in jKjint of huv. TJie. ScolUi, 1 Stuart, V. A. Heps. 
 KiO. 
 
 Justices cannot give themselves jui'isdiction by finding that as 
 a fact which is not a fact, and their warrant in such case will be 
 no protection to the officer who acts under it. The Hditlee, 'I 
 Stuart, V. A. Reps., 2'); 10 L. C. R., 101. 
 
 An action for false imprisonment was brought against the in- 
 formant, the bailiff making the arrest, and the two conniiitting 
 Justices, and judgment was rendered against the four, jointly, liut 
 it was held that the two(;ommitting magistrates were alone liable 
 in damages, and the judgment against the other two was set aside. 
 BiKKO'iiftfe <{'• lior)ia)n, 2 L. C, L. J., IJS. 
 
 Omitting to state the conviction of a diifendant, in his warrant 
 of eonnnitment, will not sulject a Justice of the Peaife to an 
 action for false imprisonment, provided the actual conviction is 
 proved upon his defence. Wliehiii, v. Stevens, Taylor, 24'). 
 
 D> 
 
PROTi:CTI()N FROM VEXATIOUS ACTIONS. 
 
 231 
 
 3. Where a conviction (»r ortlor has been made by a Justice ov Justices 
 of the Peace and a warrant of distress or of commitment has been granted 
 thereon by some other Justice of the Peace bona Jid-, and without collusion, 
 no taction shall be brcm-^ht against the Justice who granted such warrant by 
 reason of any defect in the convictiim or order, or for any want of juris- 
 diction in the Justice or Fiistices who made the same, but the action (if any 
 is brought) shall be against the Justice or Justices who made the conviction 
 or order. 
 
 4. No such action shall be brought for anything done under such conviction 
 or f)rder mitil the conviction f)r t^rdor has been quashed eith(!r u])on appeal or 
 upon apj)lication to one of the Supei'ior Courts of Common Law : nor shall 
 any such action be brought for anything done under any warrant issued by 
 such Justice to procure tlie appearance of the i>arty, and which has been 
 followed l)y a conviction or order in the same matter until the conviction or 
 order has been (plashed as aforesaid. 
 
 An action of trespass will not now lie aj^ainst a niai^istratc until 
 the "conviction or order has been ([iiashed," for the statute' limits 
 the form of acticm to case so long as the magisti ate had jurisdiction 
 over the matter adjudicated upon, llanok'' v. Adami^oii, 14 0. P. 
 (Ont.j, 2U1. 
 
 A conviction not set aside protects a magistrate against an 
 action of trespass. Gates v. Dovenlsh, (J Q. B. (Ont.), 2f!0. 
 
 A conviction bad on tlie face of it, though not (piaslifd, is no 
 'lefence to an action of trespass. lii'KjfjK v. SpUdmiy, Taylor, 24-). 
 
 Where a conviction exists de facto, though it is unsustaiiuible, it 
 is necessary tliat the same be quashed ))efore an action of trespass 
 or trover is brought against th(^ magistrate for the property 
 di.sposed of by the conviction (Joiie.^ v. Hohhn, 13 C. L. J., N. S., 
 19 ; Graham, v. McAvtkar, 25 (,^. B. (Out.), 47'S) ; and under the 
 Rev. Stat. (Ont.), chap. 73, eV(Mi in cases where the magistrate has 
 notjurisdiction or has exceedetl his jurisdiction no action will lie 
 against him for anything don«» under an order until the same h.is 
 been (|uashed. S/iniiKj v. ArKlcrsoji, 23 C. P. (Out.), l.')2. 
 
 l)Ut an order or conviction not under seal need not Im- (|uashrd 
 brfore action, Mclhmahl v. Stia-kcu, '^^ Q- •"'• (t)nt.), 577 : UAUnv- 
 uh^ Ifaach' y. Adams<)n,\4-(\ P.(()nt),20l ; sea imthvr Hoard \\ 
 Dwnn, 1 Revue Criticpie, 247. 
 
 A conviction made bv one magistrate in a matter in which 
 
232 
 
 MAGISTRATES MANUAL. 
 
 jniisdiLtion was given to two only must be ([uashed though 
 wholly void. Graham v. Mc Arthur, 25 Q. B. (Out.), 478. 
 
 5. If such last iiieiitioned warrant has not been followed by a conviction or 
 order, or in case it is a warrant upon an information for an alleged indictable 
 oflence, if a sunniions was issued previously to such w^arrant, and such sum- 
 mons was served ui)on such person either personally or liy leaving the same 
 ffir him with some pers(jn at his last or most usual place of abode, and he did 
 not appear according to the exigency of such sunuuons, in such case no such 
 actitu shall be maintained against the Justice for anything dune under such 
 warrant. 
 
 Tliis section has heen holden not to have reference to a case 
 where the magistrate, having convicted a man summoneil him to 
 shew cause wliy he had not paid the penalty and costs, and because 
 he did not attend personally, but merely by his counsel and attor- 
 ney, and the magistrate issued his warrant to bring him up to 
 shew cause, and he was apjirehended upon it, for which he bi-ought 
 an action of tiespass against the magistrate, the Court held that 
 the action lay, for this section relates only to cases where the 
 summons and warrant aie before conviction and not to a summons 
 and warrant after conviction. Bessell v. WUso)i, 24 L. J., M. 
 C, 94. 
 
 (i. In all caseH where a Justice or Justices of the Peace refuse to do any 
 act relating to the tluties of his or their otHce as such Justice or Justices, the 
 party reciuiring such act to be done may, upon an affidavit of the facts, ap- 
 ply to either of the Superior Courts of Common Law, or to the Judge of 
 the County Court of the County or United Counties in which such Justice or 
 Jiistices reside, for a rule calling upon such Justice or Justices, and also the 
 party to be aliected by such act, to show cau.se why suoh act should not be 
 done : and if, after due service of such rtde, good cause is not shown against 
 it, the said Court may uuike the same absolute, with or without or upon pay- 
 ment of costs, as may setni meet, and the Justice or Justices, upon being 
 served with such ride al'solute, shall obey the same, and shall do the act rc- 
 (piired ; and no action or proceeding shall be commenced or prosecuted against 
 such Justice or Justices for having obeyed the rule and done the act required 
 as aforesaid. 
 
 Under this section, it is only where Justices would need protec- 
 tion, if they proceeded to do "any act relating to the duties of 
 
PROTECTION FROM VEXATIOUS ACTIONS. 
 
 O •! •> 
 
 their office " tliata rule calling upon them tosliew cause wliy sucli 
 act sliould ncjt l>e done, can Ite yranted. 
 
 Therefore, where Justices had refused to hear a sunnuons against 
 a person for having a lioard over his door, stating that he was 
 licensed to retail beer, kc, he not being so licensed, contrary to 
 the :}') iV :>(J Vic, chap. 74, s. 11 ; the court refused a luie against 
 the Justices, under this section, but granted a rule nisi for a man- 
 .lamus. B. v. Percy, L. R., 9 Q. B., 64. 
 
 Under this section, if a Justice refuse to do any act, either of 
 the Superior Courts of Conuiion Law may oi'der liim to do it. 
 Although tlie court will thus interfere in cases where they think 
 that the Justice ought to do the act, yet if they tliink tliat the 
 Ju« M. \:, W 
 194. 
 
 The word "month" in this section means a calendar month . 
 Rev. Stat. (Dnt.j, cliap. I, s. 8, s.-s. 1.5. 
 
 10. No such action shall be commenced against any Justice of the Peace 
 until one month at least after a notice in writing of the intended action has 
 been delivered to him, or left for him at his usual place of abode, by the 
 
PROTECTION FROM VEXATIOUS ACTIONS. 
 
 23^: 
 
 party inteiuling to commence the action, or by liis attorney or agent, in 
 which notice the cause of action, and the Ciiiirt in wliich the same i.^ intended 
 to be brought, shall be clearly and explicitly stated ; and iijion the back 
 thereof shall be endorsed the name find place of abode of the party intendiitir 
 to sue, and also the name and place of abode or of business (>f his attorney "v 
 agent, if the notice be served by such attorney or agent. 
 
 It would appear that the words, " one month at least," mean a 
 clear month's notice, exclusive of the first and last days, or the di! y 
 of giving notice and suing out the writ. Ih'iupsci/ v. Ihuijherfii. 
 7 Q. B. (Ont.), 313; Vouuy v. Iliuyon, 9 L. J., M. C, 2il ; R. v. 
 ^Shropshire, S A. & E., 173. 
 
 Where the notice was served on the 2Sth of March, and the 
 writ sued out on the 29th of April,, this was held sutticient as 
 heing at least one month's notice. Mcintosh v. VdnHfeeiilm rth 
 Jidy. On the 7th of July a second notice of action was served 
 on defendant, and a writ issued on Monday, the 9th of Auifust. 
 It was held that if the second notice was had the plaintiff eouM 
 avail him.self of the first notice, notwithstanding the discontinu- 
 ance of the suit connnenced thereon, the object of the notice 
 iieing to enable the l)arty to tender amends, and the discontinu- 
 ance of the first writ or giving the second notice in no way pie- 
 vented this. It was also held that tlxjugh the last da\- of tlie 
 niontli's notice expired on Sunday, the defendant had not the 
 whole of the following day to tender amends, and, theiefore. the 
 act ion was not connnenced too s(jon. Hatch v. Taiilor, 1 Puusle\-, 
 39. 
 
 \V .ere a Justice acts either wholly without jurisdiction, or en- 
 tirely in excess of his jurisdiction, the notice of action need not 
 contain an alletration of malice. Ih. 
 
 The efiect of *^his section is to protect persons acting illegally, 
 hut in the supposed pursuance an'rmn, 40 Q. B. (Ont.), 98. When what is 
 complained of is tin.' negligent omission to do what tlie defend- 
 ant was called u}»on to do in the discharge of the duty of his 
 othce, then no notice of action would he reipiirtMl ; lnit when; tlir 
 party neglects to do an net, ann over the })laintitl"aii(l thesuliject mattei'. Ildockc v. Adam- 
 so». 1 M'. P. ront.,, 201. 
 
 If it lie doulitl'ul whether deieiidant was acting in the e.xecu- 
 lioii of his duty, it should he left to the jury to say wliether tlusy 
 iM'lirvcl he was acting as a magistrate or ik/I. and if they lind in 
 his tavou) on that point, noticr must he proved, Curswcll \. 
 Iliiff'hiini, I (,). B. (Ont.j, 381. 
 
 rmh r the 2!> Vic., chap. 38, procet>dings undei- the Master and 
 Servant's Act f( 'on. Stats, T, (J., chap. 75) must he taken within 
 one month after the engagement has ceas(>d. A magistrate hav- 
 ing entertained a case under the Act, notwithstanding more than 
 a month had elapsed since tlie termination of the engagement, 
 and although he was told that lu' had no jurisdictiiin and was 
 
m 
 
 PROTECTntN KR(»M VEXATIOUS ACTIONS. 
 
 2.S7 
 
 iUid 
 
 shown a professional opinion to tliat ettVct ami ret'errt'd t<» the 
 statute, the court held in an action against the magistrate that 
 tlie jury were warranted in finding that he did not Ijo'iki jUh hc- 
 lii've that he was acting in the execution of his duty in a uiattei' 
 within his jurisdiction, and that he was, therefore, not entitled to 
 notice of action. Cummiim v. Moure, 87 <.^. B. (Ont.). I'M). 
 
 Defendant, a Justice of the Peace, connnenced a trial, but lieing 
 i'C(|uired as a witness iji the cause, another Justice took up the 
 ti'ial during the exaunnation, aftei' whieli the defendant resumed 
 it. and during the lattei' stage of the trial eommitteij an assault 
 (in the ]tlaintifi' It was held tho.t, though the defendant, wht-n 
 lie conniiitted the assault. wasactii:g without jurisdiction, liaving 
 no riglit to resume thr trial under tiie Rev. Stats N. B., cha|i. I. '37. 
 -. 2S, still, if he had I'easonable groumls to believe that he had 
 iinisdicti(Mi to do so, he was entitleH<(;ilr, Stephens^Dig.. N. B,, 1(). 
 
 Where the plaiutitr's evidence shows that the defendant sunl in 
 iivspass was acting /*(*/*(« _/if"(7*' as a Justice of the Peace, and the 
 •lury so find, tin' plaintiH' must prove notice of actior., and this 
 inongh defemlaut has pleailed only the general issue without ad- 
 (|ing " l»y Statute" in the margin. Marsh v. Bindion. \ <.^. B. 
 Ont,), 3:)4.. 
 
 A magistrate is entitled to notice though he has iu'ted without 
 jntisdiction. WIhmv it was clear that defendant had acted as a 
 •bistice and there was no evidence of malice, except the want of 
 jurisdiction, it was Indd not necessary to entitle him to notice to 
 l-ave it to the ]\\\y to say wlu'ther he had acted in good faith. 
 /wes'N V. lliihcr, 18 (.1 B. ^"Ont.j, :>S2. 
 
 Where a magistrate acts in direct contravi'ution of the statute 
 in issuing a wai'rant without tlie projx'r information under the 
 statute, or without even a verbal charge having lieen laid against 
 ihe plaiiitH", and there is no evidence of iMrmi fulex on his part, he 
 i^ n(tt entitled to notice of action. FrUI v. Fcriiiisaii. I.') < '. V. 
 ^< >nt.), 584. 
 
 The .histice must honestly believe that hi' was acting in the 
 • xccution (jf his tluty us a magistrate with respect tovsome matter 
 
28S 
 
 MAGISTRATES MANUAL. 
 
 within his jurisdiction, or he must lionestly V>elieve he was actinji; 
 in tlie (execution of his office. Ho must believe in the existence 
 of those facts, which, if they had existed, would have afforded 
 him a justification under the statute, and honestly intended to 
 put the law in force (lb). 
 
 In the above case the court expressed an opinion that the fact 
 of a magistrate issuing a warrant without the limits of the 
 oo\uity for which he acts, does not necessarily disentitle him to 
 notice of action. 
 
 Where a magistrate acts cleai'ly in excess of, or without juris- 
 diction, he is nevertheless entitled to notice, unless the bona, fijfi's 
 of" his conduct l)e disproveil ; but the ))laintiff may I'ecpiire that 
 (juestion to be left to the jury, and if they find that he did not 
 honestly lielieve he was acting as a magistrate, he has no claim to 
 notice. Xeill v. MrMllbiv, 2.') Q. B. (Unt.), 4«o. 
 
 The following notice of action : — '' And also for that you on" 
 ikC; "at" ice, ilid cause the hor.se upon which the said J. IJ., was 
 then riding, to be seized, taken, and led away, and the said J. F. 
 to be oliliged to dismount and give u]) the said horse, and con- 
 verted and disposed of the saiil horse toyom'own use, ami also for 
 t!mt you caused the saddle and brid, taken, and carried away, and to be converteil 
 and dispo.sed of to your own use, and othei' wrongs to the sai'l 
 .). U., then and there did" &C., was held sufficient to enable tin' 
 plnintifl' to recover the value of the horse as being his |»ropertv. 
 L'ppri'w MrFarlaud, .') Q. B. (Ont), 101. 
 
 So the following notice was lu^id sufttcent : " For that you (the 
 defendant), on" cVe., "at" kc, " seized and took away divers goods 
 and chattels of the plaintiff," stating the valui\ "and conv(>rte(l 
 iind clisposed theieof to your own use, and olhei' wrongs to the 
 said (the plaintiff'i, did to his great damage of £')(), and against 
 th»> peace of oiu' Lady the Queen." (iitlenpie v. WrUjItl, 14 Q. I! 
 (Ont.), 02. Seea.s to form of action, ('oinntlf;/ v, A. 
 (Ont), 327. 
 
 A notice of action was given to a .lusMce of the Peace in the 
 following words ; — "To dohn (1. Bowes, of the ( 'ity of Toronto, 
 Es(Hiin', 1, Annie Ai-mstrong, of the City of Toronto, in (he Vv"- 
 
mmm 
 
 PR0TF:CTI0N FR(>M VFXATIOT^^ vcttovs. 
 
 230 
 
 I Q. 1'. 
 
 vincf of Canada, spinster, residing with my father, James Arm- 
 strong, at No. 1 48 Duchess Street, in the said (Jity of Toronto, ifec," 
 and was signed by the phuntiff, and endorsed " C. P., Armstroii;/ 
 V. Bov;es. Notice of Annie Armstrong to Jolm O. Bowes. Tlio 
 M'ithin namiMl Annie Armstrong resiflesat Nd. 14S Dnoliess street, 
 in the Citv of Toi'ontt), Cameron & Me.Miehael foi' the plaintiff"." 
 ft was held that this notice di brought, stateil. Aruish'o)!;/ v. lioirt's, \'2 C V. 
 'Ont.), 530. The place of alxide or Itusiness of the attoiney or 
 agent is neces.sary if the notice issei-ved ])y tli(> attorney or agent, 
 or the clerk of the att(M'ney for him. .\ person who sei'ves it as 
 agent for the plaintifi', must enliip of (laiafraxa, in the ('uunty ol Wellington, labourer," withotit 
 
240 
 
 MAGISTRATES MANUAL. 
 
 giving tlie lot and concession, was held sufficient. JVeillw McMil- 
 lan, 25 Q. B. (Ont.), 48r,. 
 
 A notice of action describing the plaintitf'.s residence, as of the 
 Township of B., in the County of P., is sufficient. McDoiuild 
 V. Stuckcy, .SI Q. B (Ont.), 577; see also, Xtdll v. McMillan, th 
 Q. B. (Ont.), 485. 
 
 This notice may be served before the conviction, order or war- 
 rant complained of has been ([uasluid, under the 4th section of the 
 Act. Ihijilock V. ;^p(irke, 22 L. J., M. C, 67. 
 
 A notice ot action charging a .Justice with an ai'i'est and impri- 
 sonment, nuist state the tirae at which tlie grievance was com- 
 mitted, or otherwise it will be defective. Spi'ung v. Andernon, 'I'i 
 ('. P. (Ont.), 152. 
 
 A notice of action in tl•(■^pass under" The Division Courts Act.' 
 Rev. Stats. (Ont.), chap. 47, s. 231, which is substantially tlie same 
 as the Rev. Stat. (Ont.), chap. 73, was held insufficient for not stat- 
 ing the time and phrce of the alleged tresj)ass. Moore \. (flilleij, 
 32 0. B. fOnt.), 233. 
 
 And it seems in an action against a Justice for arrest and iin- 
 |>risonment, the notice of action must allege a time and place. In 
 an action against a .Justice;, the notice of action stated that th'' 
 defendant assaulted [liaintitr, impi'isoned anle, and ilk'- 
 gally committed and sent him in such custody to the gaol, at the 
 Town (jf Lindsay, and cmusimI him to be thei'c confined foi a long 
 time, riic notice was h(dd iusutlicient, as omitting io state wheie 
 and when the assault took place, and the evidence not being con- 
 fined to the imprisonment at jjindsay. Parlipi v. Siaph's, 1!) (', 
 P. (Out.), 240. 
 
 A notice of action to a per.son acting as a constable under the 
 Con. Stats. L. (J., cha|). 10). stated the cause of action to the etlect 
 following: " For that you on the 20th dny of December, 1pr(!h<'nil anin v. 
 Dcharg, 2 C{in\\)., \[)(>); hiil, if it do, ;nid state it incorrectly, the 
 variance will i)e fatal. Stric/dund v. IT'Ov/, 7 T. II. n:il n. 
 
 A notice that the suit will be brouglit in tlie Court of (^)ueen's 
 I'eneh or Conunon Ph'as is insufficient ; the partictdar court in- 
 tended nmst be specitiinh linixs v. Hahei\ IS Q,H. (Ont.j, 2S2 • 
 Xiu'ilh' V. Corporafioti J{nsK, 22 C.l'. (Ont.), 487 ; see also Arm- 
 ^tnuKj V. llotrcs, 12 C.l^ (Out.), y.V.). 
 
 The foi'uis ))rescribed l)y this statute nuist be sti'ictly fol- 
 lowed in the iKjtice of action, jind wheiv the notice stated that the 
 wiit would lie issued in one of the superior courts, but it was by 
 iiiistake issued in the! other court, it was held that the notice could 
 not be amended, though section 4!) of the Administration of Justice 
 Act, l(S7'i pi'ovides that no prijceeding at law (jr in e(piity siiall 
 be defeated by any foi'mnl olijection. the (tbjeetion not being of 
 -^ucli II <"liaracter as to be cureil by this Act. M'lJrain v. Foley, 
 (! IMl. (Ont.), 1(14; 10 ('.L,J.,N.S.," lo:.. 
 
 It is no objection that the plaintiff declares by adifferent attor- 
 ney from the one by whom the notice' was giviiu and procc.'SH 
 issuiMl. MvKejftie v. Meii'hu.rn, (i ( >. S. 4S(). 
 
 Where a defendant after acc^epting service of an infoi'mal notici* 
 added, " anil agi'ei,' to acct'pt the same as a suliicient notice of action 
 to me miller the statute," it was held that he could not afterwards 
 
 k; 
 
242 
 
 MAGISTRATES MANUAL, 
 
 rely on a defect in the notice. Donaldson v. Haley, 13 C.P. 
 (Ont.), 87. 
 
 No piiiticular addition or de.scrii)tion of the niajjfistrate need he 
 given in tlie notice. Ilaacke v. Adawson, 14 C.P. (Ont.), 201. 
 
 It Is not nece.ssary to give notice of an action for a penalty 
 against a Justice of the Peace foi- acting witliout prop(;r property 
 qualification ; a Justice acting without (jualitication is not entitled 
 to such notice. Crabb qJ. v. Longivorfh , 4 ('.. . (Ont.), "i.S.'i. 
 
 Neithei- is notice of action necessary in an action for lujt i-eturn- 
 ing a conviction. Gra/at qJ. v. McFadkn, 11 C.P. (Ont.), 122. 
 
 11. Ill every such iictimi tlie vemu! sliall lie laid in the (Joiurty where the 
 act 0()iui)liiiiie(l of wa.s cimiiiiitted, uiid in uctioii.s in Ci)iiiity i>r Divisinii Cniirt.s 
 tlie action ahall he lnought in the County or Division within which the act 
 conipliiineil of was coiiiuiitted or in which the defendant reside."?, and the de- 
 fendant may plead the general issue, and give any special matter of defence, 
 excuse or justilicatioii in e\ideiice under such plea at the trial of the action. 
 
 J'J. No action shall he lirought in any County or Division C(airt against a 
 Justice of the I'eace for anytiiing ddiie iiy him in the t'.xecutiK'i of his ntlice 
 if the Justice ohjects thereto ; and if within six days after being served with 
 a notice of any such actirn, such .Justice or his attorney or agent gives a 
 written notice to tlie [daintitt' in the intended action that lie nhjects to l)ei..g 
 siu'il in such County or Division Court for such cause of actinn, no]iroceed- 
 iiigs shall afti'rwards he had in such (Jounty or Division Court in any such 
 action, hut it shall not he necessary to give another notice of action in order 
 .to sue sucli Justice in any other Court. 
 
 U5. In every such case after notice of action has heeii given as afoi'esaid, 
 and before an action has been commenced, the Justice to whom such notice 
 has bi'eii gi\en may tendi'r to the i>arty complaining, nv in his attnrney oi' 
 agent, such sum of mniiey as he thinks lit as amends for the injury com- 
 plained of in such notice ; and after the artion has been commenced, and at 
 any time before issue joined therein, such defendant, if he has not made a 
 tender, ov in addilinn to the tender, may pay into Court such sum nf money 
 as he til in lis lit, and such teinh'r and payment nf ninnt^y into (.'uiiri, or either 
 of them, may aftn wards be given in eviileiiee by the defendant at the trial 
 under tho gonoriil issue. 
 
 Wlicrt' ii .lusticeon receiving notice of tiction, iii)de 
 paid out nf Court to him, and the residue, if any, .shall l)e paid to the plain- 
 tiff. 
 
 15. In case numey is paid into Coiu't in any such action, ami the [daintifi' 
 elects to accept the same in ,satisfacti(jn of his dam.'iges in the action, he may 
 obtain fnmi any Judge of the Court in which the action has been brought, 
 an order that the money shall be paid out of Court to him, and tliat the de- 
 fend.'int shall jjay him his costs to bi; taxed, and thereupon the said action 
 shall lie determined, and such order shall be a bar to any other action for the 
 same can 'e. 
 
 It). If at the trial of any such action the plaintiff does not prove. 
 
 I. That the action was brought within the time hereinbefcjro limited in that 
 behalf ; and 
 
 L'. That such notice as aforesjiid was given one month bi'fore the action was 
 '.•ommenced ; and 
 
 '.). The cause of action stated in such notice ; iuid 
 
 1. Th.it the cause of acti(m aro.se in the County or [ilace l;ud as venue in 
 tile margin of the declaration ; and 
 
 .">. (W'iiere the plaintili' sues in a County or Division ('oiirl) that the 
 cause of .letion arose within the Comity or I'nited Cotinties for which such 
 Courtis liolden ; then and in any such case the plaintili' shall be nonsuited or 
 a veil lilt shall l)e given for the defendant. 
 
 l7. In caso the plaintiff in any siicii action is entitled to recover, and he 
 proves the levying or payment of any jieiialty or sum of money iiiuler any 
 conviction or order as parcisl of the damages he seeks to recover, or if ho 
 proves that he was imprisoned under such conviction or order and seeks to 
 recover damages for such imprisonment, and it is provod that ho was uctuiilly 
 guilty of tho offonco of which he was so convicted, or tli.at lie was lialile by 
 
244 
 
 MAGISTRATES MANUAL. 
 
 law to pay the sum he was so ordered to pay, and with respect to such im- 
 prisonment that he has undergone no greater p\u\ishnientthan that assigned 
 by law for the offence of which he was so convicted, or for non-payment of 
 the sum he was so ordered to pay, he shall not be entitled to recover the 
 amount of such penalty or suuj sd levied or paid, nr any sum beyond the sun) 
 of three cents as damages for such imprisonment, or any costs of suit what- 
 soever. 
 
 In New Brunswick the Rev. Stat. chap. 12!), s. 11, provides that 
 where the plaintiff' shall he entitled to recover in any action 
 against a Justice he shall not liave a verdict for any dania,l)el/ v. FleweU'nxj, sn pra. 
 
 Tlus .st^ction of the statute is not confined to actions in which 
 the Justices had jurisdiction. Jh'oxs v. Ildhcr, 1.") Q. B. (Ont.), 
 02."). Tt extends as well to ti'espass as to case. Ilttacka v. Adiimson, 
 14 C. P. (Ont.), 201. 
 
 Tile damages must be reduced vvheie the defendant is proved 
 
PROTECTION FROM VEXATIOUS ACTIONS. 
 
 245 
 
 Ijuilty of the offence of which he was convicted. H<(,ache v. Adaw- 
 .so7i, 14C. P. (Ont.), 201. 
 
 Tilt' warrant of comiuitment directed the plaintiff to be kept at 
 hard lahoiH", which the Act uinler which the conviction took place 
 does not authorize. The tninkey swore that the plaintiff " did 
 no hard work in gaol," It was held, however, that this was not 
 sufficient to show that he was not put to compulsory work, so as 
 to bring the defendant within that part of the section which re- 
 quires it to be provt^d that the defendant had undtn-j^^one no 
 greater punishment than that assigned by law to the offence. 
 GmhjiHi V. McArfhur, 25 Q. B. (Ont.), 478. 
 
 18. If the plaintitr in luiy such action recovers a verdict, or tlie defendant 
 allnw.s judLtment to [)iisk against liini liy default, the plaiiititl' sliall lie entitled 
 to costs in the same manner as if this Act had not been passed. 
 
 l'.(. If in any such case it is stated in tlie declaration, or in the summons 
 and particidars if the ])laintitt' sues in the Division Court, that the .Act com- 
 plained of was done maliciously and uitliout reasonable and probable cause, 
 the [liaintitt", if he recovers a verdict for any damages, or if the defendant 
 allows judgment to pass ai^ainst him \>y default, shall be entitled to his full 
 costs of suit, to be taxed as between attorney and elicri ; and in every action 
 against a Justice of the Peace for anything; done by him in the execution of 
 his otfice, the defendant, if he obtains judifuient upon vci'dict oi' otlierwi.se, 
 shall in all cases be entitled to hia full costs in that behalf, to be taxed as be- 
 tween attorney and client. 
 
 20. 8o far as applical)le, the whole of this .\ct shall apply for the [irotoc- 
 tion of every oflicer and [ita'son mentioned in tlu; first section hereof, for any- 
 thing done in the execution of hisoiiice as therein expressed. 
 
 The privilege e.xtendeil to Justices by the 4 \: 5 Vic, cliap. 2G, 
 as regards e.vemption from costs, were nut cancelled ly the latter 
 Act, 14 .^' 1") Vic. chap. 54. Flnhi// v. liaUc, !) q. B. (Ont.), G(iG. 
 
 Two actions were brought against a Justice for tres]»ass and 
 false impi'isoniiicnt ; on the .S 0th of August, bSaba verdict for 
 the plaintiff was found in one casi^ of £'1 HKv., and in the other oi' 
 In., it was held that the 14 Sz 15 Vic, chap. 54, applied, and that 
 the |ilaintid was entitled to his full costs in both suits. Kcciij v. 
 Rn'>h.-2 P.R. (Ont.), 155. 
 
 Where the plaintiff was i-estrictcd to only thretj cents (himages 
 
246 
 
 magistrates' manual. 
 
 he was held not to be entitled to any costs. It was held, also, 
 that the 18th and 19th sections of the Con. Stats. U. C, chaj). 126,' 
 taken together must be limited " to any such action " not pro- 
 vided for in section 17 of the same Act. It was held, also, that no 
 one can have costs taxed to him who did not incur costs. Haacke 
 V. Admnson, 10 IJ. C, L. J., 270. 
 
 When a magistrate commits a party for contempt, and on ac- 
 tion l)rought for false imi)risonment the i)laintiff succeeds, he is 
 entitled to full costs without a ceiiificate. Arnioitr v Buswrll 6 
 0. 8., 450. 
 
K^i 
 
 SUMMARY OF THE CRIMINAL LAW OFaCANADA. 
 
 AJ5AND0NIN0 CHILD. 
 (.sVe Child.) 
 
 ABDUCTION. 
 
 Tlic Statute :}2 ^:- 31} Vic, chap. 20, ss. .54, .").5, einbi-aces tliroc 
 classes of cases: — (\) Where a Avoiiian of any age, posscsseil of 
 property, is from motives of hicre taken away or detained against 
 ht)' will, with intent to marry or carnally know her, oi' to cause 
 her to l)e mari'ied oi- carnally known \>y any other person ; (2) 
 \\'here a woman under the age of twenty -one years is fraudu- 
 lently allured out of the possession and against the will of hei 
 father, or of any other person liaving the lawful care or charge of 
 her. with intent to marry oi- carnally know her, or to eau.se her to 
 lie married or carnally known l)y any other person ; ('.)) Whiu'e 
 a woman of any age is taken away and detained l»y force and 
 against her will, with intent to marry oi' carnally know her, oi' to 
 cause her to he married oi- carnally known by any other pei'son. 
 
 It will l»e oliserved that the statut*' applies whether the pi'is- 
 oner's intention is to many the \vt)man himself, oi- to a.ssist any 
 other person to do so. 
 
 It would seem that it is necessary in the second case above put, 
 that the woman should be possessed of property as in the tii'st 
 case, and in neither of tliese cases will the oti'ender take any in- 
 terest in such projierty. 
 
 The alleged wife is in all these cases a competent witness 
 against the prisoner. R v. Wakejichl, 1 Lew., 270. 
 
 In the second case it will be observed that the woman must be 
 taken out of the possession of her father. This involves lioth a 
 hihitifl and also a possession by tlu^ fathei'. 
 
 If the gill leaves without any inducement on the part of the 
 
248 
 
 MAGISTRATES MANUAL. 
 
 defendant, and then goes to him, he is not witliin tlie statute. 
 E. V. (H'lfier, 10 Cox, 402. Neither is he witliin the statute if it 
 does n(jt appear that he knew or had reason to believe that the 
 girl was under the lawful can; or charge of her fatlier or mother, 
 or any other person. R. v. Hihhcrt, L.R., 1 (UJ.li., 1S4. 
 
 Of course mere absence for a temporary puipost', anpeaiance that she was older, 
 or even that he lielieved that he knew she was over that age. R. 
 V. Prince, L. R., 2 C.C.R., 154. A taking by foice is not necessary 
 to constitute the offence. It is inmiateiial whether there bi; any 
 corrupt motive, whether the girl consent, and whether the defen- 
 dant be a male or female. R. v. Havlei), 1 F. ^V: F., (548. 
 
 The expression, " taking out of the pos,session,"' means taking the 
 girl to some place; where the person in wliost; chai'ge she is cannot 
 exercise control over her, for some purpose inconsistent with the 
 object of such control ; a taking for a time only may amount to 
 abduction. If the consent of the person from whose possession 
 the gill is taken is obtained V>y fraud, the taking is deemed to be 
 against the will of .such person. R.\. Prince, L.R., 2 C.C.R,. lo4. 
 
 An information under the 5(ith section of this statute which 
 does not show that the unmarried girl is under sixteen years of 
 age, and is taken out of the po.ssession of and again.st the will of 
 the father is insufHcient. Whittier v. Piblee, 2 Pugsley, 243. 
 
 Under this .")Oth section, the girl must be in the posession of 
 .some per,son having the lawful care or charge of her, but if such 
 exist, tlie consent of the girl to go away will not be a defence for 
 the prisoner. A guardian is a per.son having the lawl.i! care, ^c. 
 within the meaning of the statute, and it is not neces,sary to piove 
 a strict guardianship. If the girl leave hei- guardian's liovise for 
 a particular purpose with his .sanction, and with the intention of 
 retin'iiing, she does not cea.se to be in his [jossession within the 
 nu'auing of the statute. There nnist be proof of the age ol' the 
 gii'l, but the girl hei'self and hei- father or mother are comi)etent 
 to prove this. A certificate is not necessary, at all events where 
 
AHORTION 
 
 249 
 
 the prisoner undertakes to establisli that they;iil was not haptizcc 
 R. V. Mondelet, 21 L. C. J., 154. 
 
 AJ'.ORTION. 
 
 Under the 32 .V- 33 Vic, chap. 20, ss. ol), 60, three classes of 
 persons may be lU'uilty of crimes under tliis heading. The woman 
 herself, the person who procures or supplies the drugs, d^c, some 
 other person. 
 
 For a woman being with child, with int(nit to procuit; her own 
 miscarriage, to administer to herself any poison or other noxious 
 drug, or to use any instrument r)r other means, or for any person 
 to  Al.'OKSSORIKS.) 
 
 A(;c(»MI>l,l('l'L 
 
 A Justice has no jiower to make a promise of ]);ii'don, and it is 
 his duty to connnit an accomplice for ti'ial, notwithstandiuL;' it is 
 intrnd»'(l that ho should gi\i' evidence for the ])rosecution. 
 
 \Vh 
 
 re the evidence would lie too weak to justify a conuuit 
 
 ment, inde])endent of tlu^ testimony of the accomplice, tlu' pro- 
 per course seems to he to take the deposition of the accomplice 
 in th(! usual way, cautioning liim at the same time that he is not 
 Ijoutid to say anything which may criiuinate hiniscjjf In this 
 case the accomplice wouM 1 
 
 (^ lioinid over as a witness, ami tlie 
 
 circumstances explainetl to the .ludge l)efor(! the indi(!tment against 
 till' prisoner is presented to the (irand -luiy. Stone's -lus. Man,, 
 
 AI>in,TKI!ATl(,'N or I'ool), DKINK AND DIUKIS. 
 
 The law on this suliject is contained chielly in tlu^ '.)7 N'ir.chaj). 
 /)< ami 
 Tnirh. I.. !}., !)('. 1'. 4!)!). 
 
 AFFRAY. 
 A fighting lietween two or nicjre [leisoiis in some piiUlic place. 
 
252 
 
 .MA<1IST1{ATKS MANUAL. 
 
 to thr ttjrror of Her Majesty's suhjects : for oxain])le, a prize fight. 
 If it takes [ilace in private, it will 1>" an assault. It difi'ers from 
 a riot, inasmuch as theic must be three persons to constitute the 
 latter, and also in not being' premeditated. 
 
 AGEN'I'S, liANlvEllS, FACTORS, ATTORNEYS. 
 
 The ii2 6: '}3 Vic, cha)>. 21, s. 7. 
 
 Hndei' this section, there must be a diri'Ction in wi'iting to ap- 
 ply the money in a specific mriun'r. Wlieic tln'it! is no sucli direc- 
 tion in wi-iting, the priscjiier ca.inot lie eiiii\i(di!d. I\. v. Cooper, 
 L. U., -H'.C. R.. 12:}. 
 
 The second branch ot" the section seems to a])]ily to cases whei'e 
 the party deals with the securities without authority, and contrary 
 to till' )»in'pose for wliich thi'V wei-e entrusted, and where the se- 
 cui'ity, &c.,is used for the ]»urpo-;e {'<>]• which it is enti'usted, the 
 charge cainiot be sustained, unless, |)erhaps^ in a case vvli(>re it is 
 shewn that the ])risoner at the time of receiving' the stMtiu'ity, in- 
 tend<'ingtlie act is alone liable, /h. s. !)1. 
 
 In regard to agency, a man is in geiierid liable ibr what he au 
 thori/es another person to do Thus where s(!vera! })ei'sons com- 
 liine t'or an uidawful ])urpose, any act by oni! of such persons in 
 lo'iifiifiilioti of such purposes renders all lialde. li. v. Cnrllrj/. 27 
 Q. B. (Ont), (il.S ; R. v. Shirin, 17 C. 1». (Ont.j, 20:). 
 
 See /)o.s^. Indictable uti'ences ; also Principals and acessori(^s. 
 
 So the owner of a shop is criminally lialjlo for any unlawful 
 
AO'JRKSSIONS liY SlliJ KCTS OF FORKI(;N STATKS. 
 
 25S 
 
 act (lone tliei'uin in liis abseiico, by a clrrk or assistant ; asl'oi' in- 
 stance, foi' the sale of li(|iu)r witliout license by a female attend- 
 ant. R. V. Iia by the .S7 \'ic., chap. -i'l. See 
 ulsotheol V. ' liaii. I (i, and .">:! \'ic.. elinii. 1 . 
 
 '1 
 The secono scdinii of tlic statute does iiiit apply to a 
 
 Brit 
 
 ish 
 
 subject, but only to a citi/en or subject of any foiv'iLjn state or 
 country. Se«' R. v. MrMxhnv, 2n(,>. 15. (Ont,). 1!)."). 
 
 The iiiii i ction ol' the statnt<> ap])lies to the case of a Ihitish 
 
 diject. 
 
 Liiiich. •!('> (IY'k 'Out.), _M).S. 
 
 W 
 
 tl 
 
 lere the prisc-nei' is iirovei 
 
 1 tol 
 
 ia\e saiil he was an .Aineriean 
 
 lere is no eVl- 
 
 litizeii. and had lieeu in the American army, ami tl 
 .leiice olilivd to contradict this, it is evidence an'ainst the prisoiiei' 
 Is liis own admissions and ileclarations of the country to wlrch he 
 lielonoe;!. R. V. Sliiriii, 17 r. \\ rOnt. 20."). 
 
 Where a lai';^'e body of armed men enter Canada, with intent to 
 levy war, any jierson Joinin;.': them /'// "//// elm rui'trr, \]\o\\'j;]\ in 
 itself peaceable, such jis repoiter merely, i> 'ijually liable with the 
 ithers, for there is a eonimon unfawful purpose, and any net in 
 piiisinnee of it invoU'es a sliiwe of the common miilt. /i. \'. Li/in'li. 
 •H\{). \i f>)u\.), 20S. 
 
 Il i-; not neee^sjiry in order to rcider a pjirt y amenable to the 
 ^tat\ite, that he shouM jictiially have arms upon his person, it is 
 ipiite sufficient that he is picsent and concerned with tliosi' who 
 lire armed for all who nre present at the couimis-ion of the oHence 
 
 ;in 
 
 princi[)als, and arealike culpable in law. R. v. ^Shir'tn, 17 C. P. 
 (Ont.), 205. 
 
 Under the fourth section of the Art the oflVnce in the case of a 
 foreiLrner, ;ind a subject is substantiall\- ditt'erent, In the case 
 of a liritish subject, tin' Aet in the seconil section re(|uires proof 
 
I 
 
 254 
 
 MA(}ISTRATF,S MAN'I'AL. 
 
 not only of the HtafiiK as su(;li sultjcct, l)Ut also (f joinini;' with 
 foreigners in the conmiission (jf it, iSe(.' R. v. Marjrath,, 20 Q. B. 
 (Ont.), 'J8.5. 
 
 APOSTACY. 
 
 'i'lie inijterial Statuti; !) iV 10 Win. 111., chaj). 32, s. 1, piovides 
 that if any one educatiMl in oi' haviiin' made profession of the 
 Christian relitjion, })y writing, pri)iting, teaching or advise.d speak- 
 ing, maintains that then; are in(ji'e (lods than one, or denies the 
 Clu'lstian religion to lie true or the H(jly Scrij)tin'(.' to Ix; ol Divine 
 authority, for the second ott'ence, )>e.sides lunng incapahle' ()f hring- 
 iuL; an action, or lieing guardian, execiitoi', legatee or grantee, mu.st 
 sutler imprisonment for three years without hail. Thei'e shall he 
 no |»rosecution for s\ich words spoken, uidess inl'oruiation of such 
 words he given on oath hctorc a Justice, within four diiys after 
 ihey are spoken, and the prosecution he within three; months 
 aftrr such information. The otlrnder is to he discharge! 1, if within 
 t'uur mouths after his lirst con\ictiou lie renounces his error. 
 
 AIM'KKNTI'i;. 
 
 Tlie Con. Stat. U. ( '., chap. 7<», contained [tio\isions respecting 
 apprentice's and minors. See Kvx. Stat. fOnt.j, cha|i. i'J.i. 
 
 AVhen the defendant, a .lustice of the Peace, convicted oiie Q,, 
 an np|)rentice, for li;i\iiig ahseiited himseir iVoni his master's 
 M'l \ ice without leavt', a:Ml aauu' section, the person 
 to whom st(jlen |)ro]ieity is otrcicd may arrest the })arty offering' it ; 
 .s(('also 82 .V 88 Vic., eliap. 2!), s. 8. 15y the Art ivspectin.t^- 
 malicious injuries to propei-ty,(82\'88 V^ic, cha|). 22, s. (i!),) pei'.sons 
 found eonniiittine' any offence a;4ainst the Act may in like manner 
 be imiiiediat(dy apjireheiided without a wanaiit by any peace 
 ollieer. or the owner of the property injured, or his ser\aiit. Siiiu- 
 l;ir piii\ision is made by the 82 iV 88 \'ic., chap. 2!), s. 2, and by 
 section 4 any person may a)ipreliend any other person Found 
 committing' an\' indictalih otl'ence in the ni'lit ; so bv section 5 
 
 a constable or pence ollieer ma}' without a warrant take into 
 
 custody any person whom lie finds lyii 
 ' d" 
 
 ]■>■ nr 
 
 literiuL;' in aiiv high- 
 
 way, vartl ov other jilace dm iiil; tlie iii'^lit, and whom lie has 
 
 d 
 
 cause to suspect of ha\ iui;' ciimmitted or bein^ about to cummil 
 
 iii\' \'i 
 
 ">V 
 
 B.V 
 
 section <■) Mich peiMin must 
 
 bnaiLiiit beloie ;i 
 
 .lllstice of the J'eace b\ noi-ll (if ll 
 
 le IoIIowuil:' Ma\' 
 
 Inder the 88rd section of the ."{'J \- ;|:{ \'ic., chap, bs, relatiiie' 
 III cnin, iVc, any person may apprehend any other per,s(jn biuinl 
 commit tiiiL,' an indictable offence against the Act, and nia\- c(iii\ .n 
 
 or 
 
 i\e)' him to some pea< e otiicer. 111 order to hi 
 
 1, 
 
 ii'UlU" 
 
 (■iin\e\-e(| as soon as reasonadl\' may oe helore a.hi-^ticeol tbi 
 
 'eace. (o be deiilt W it h ai'<'o|(lii|M' t o law 
 
 ndei the :V2S. 8: 
 
 \' 
 
 ic 
 
 chap. 2(>, s. 87, ]iersons (list iirbini^ any as^enlblilL;■e of person- met 
 f(ir religious woiship may be arrested on \ lew iiy an\ jieace 
 ollieer present at such nieetine\ or l)y any other person thereto 
 
 'eace j)resejit theical. 
 
 \ I 
 
 ibidK' authori/.ed by an\' Justice of the J 
 
2cG 
 
 MA(aSTHATES MANUAJ- 
 
 See further as to arrest,the Act tor the better preservation of the 
 peace in the vicinity of ])ubiic works (32 \: 33 Vic, chap. 24, s. 8) ; 
 also tlie Act r(,'specting certain ort'eiiccs relative to Her ^lajesty'.s 
 army and navy (32 i.V: 33 Vic, chap 2"), s. 7,) also the Act res])ecting 
 cruelty t7. Pursuit after an interval of threi! hours would not be a fresh 
 |)uisuit. I)ov'nw(j V. Cdpcl, L. R., 2 C. P., 4/,(') Q. B. (Ont.), 412. 
 
 In Kin;/ \. J'nc, I .'> L. T. N. S. 37, it was left undecided and in 
 doubt whether a magistrate has a right to arrest a person for a 
 nustal)lc to ii]ij)i<'lieii(l liim and take Idui to tlic station-liouse 
 Ml- i^aol, sucli imprisonment is illei^al, and the magistrate cannot 
 justify the arrest. Powell v. WiUnirnxoii. 1 Q. B. (Ont.j, 154. 
 
 TniU'r tlic 1 Vic, chaj). 21, it is illcLjal in a niai;'isti'ate to caust- 
 the ari'est of a ]iarty in the tirst instance, he must he first sum 
 'iioncil lu 'fore him. ('r(nt/,iiHr \. Sommervillc.li (^. B. COnt.). 12!). 
 
 Whei'c a defendant has l»een hroun'ht hefore one mae'istrate and 
 Mailed l>y him, althoun'h the statute may r(M|uire the pi'eseiice of 
 1 hrce to convict the prisoner, a second arrest for the sanu; cliarLi'e 
 liy the same complainant liefore the time ap))ointed for liearini;' is 
 illegal. A'/;(/y v. Orr. ."> (). S. 72k 
 
 After the arrest of a })erson on suspicion of felony, a Justice of 
 the Peace can oidy detain him a reasoiiahle time for examination. 
 Ash/i'ij V. lJiiny the Act :V1 \' :V.\ Vic. cliap. 22 It 
 arises whei'e a person uidawfullv and nialici' I'.slv set.s Hre to the 
 house ot'another, or toany Ituilding descriheil in the Act as the suh- 
 ject of arson. The settinn' ^i''' I'lust he to such an extent that some 
 jiart of the house is actually inirnt, and a hare intent or attem[(t to 
 M't fire to the house is not sufhcient. Arch, t'rini. Pldy-.. ."»()!»: see, 
 liowever, section 12, /'o.s7. The offence mav also he coiumitted 
 wluMi a party sets Hre to a hoirse whether it is then in his |)os- 
 --ession, or the )iossession of any other jieison hnt in such case 
 there must Ite an intent to injure or di'fraud some third person, as 
 lor instance when a man sets lire to his own house to defraud an 
 litsiuance ('om[iany. R. \. Iti\'i,iiis, \-J.('\\ ' hit.j, Hil : M2 iV 
 •'!*? Vic. chap. 22, ss. .*} \- (i7. The liurniiii; must he maiiiiui.. hut 
 ilie malice nee(| not he ijirecied an'iiinst the owner n{' ihf pro- 
 I'erty. :i2 iV :{:$ Vic, chap. 22. ii 
 
 lliiss <'r.. 102."). 
 
 The 7tli section of the .S2 »^- r.\ Vic, chap. 22, extends the 
 17 
 
258 
 
 MA(!ISTRATES MANUAL. 
 
 inoanini;' of the term bnil(liiii>'. Under this section, the Imilding 
 need not iK.'eessarily he a conipleted or finished structuit'. it is 
 sutheient if it is a connected iind entire structure, li. v. MdiiiiitKj, 
 L. R., 1 ('. (J. R., :i:3s. 
 
 Under the :{rd section of the 32 .V' .S.S Vic, ch;»].. 2l\ tli<- intent 
 to injure or dcfrnud is u.ade a part of tlie crime, and must lie 
 ]>roved at tlie tiial. li. v. Vron'iv, .S(i Q. B. (Ont.j, :M-2. 
 
 'I'his intention nnist he to injure or (h'fraud some person \vlio 
 is not ich'ntihed witli tlie (lefenihmt. Therefore a married woman 
 cannot he indictc(l tor settini;' fii/e to tlie house of her hnshand 
 witli intent t(^ injure him. H. v. M7. 
 
 The piisoner wilfully set tire to e-oods coiisistini;' of t'uiuituie 
 and stock in trade, heim^- in a house in his occupation, with intent 
 to defraud an insurance eompauy. 'I'lie house was not set on fire 
 or hui'Ut, hut lie was held uuilty of felony, /i. \. Li/oiis^ S Con 
 
 r. c, 84. 
 
 Throwing' a lii^lit into a letter-liox with the intention of liuru 
 
AltSON. ASSAIT/r AM) I'.ATTERY 
 
 •250 
 
 illy- tlie letters, liiit 
 
 section. 
 
 }{ 
 
 Hi hi 
 
 not tlie liouse, is not ti felony within tlTh 
 <>„,■ lOCo.x (". C. ?.(). 
 
 rndef the Dtli sertinn. recklessly ami neM-liL;-ently settiiii;' fire 
 to fnrests, iVc, is a misdemeanor, and l>y seetion !<> a magistrate 
 may. when the ott'ence is n(jt serious, dispose of the matt-r 
 sunmiarily. 
 
 Tuder section \'l of tlie '.VI \- 2o Vic, chap. 'I'l. unlawfully and 
 maliciously attenijitin^', \)y any overt act, to set tire to any huild- 
 inn' under such circuiustances that if the same wei'*' thei'eliy set 
 Hl'e to the otlendc]' W'oulil he <;uilty of felony, is felony. 
 
 Th 
 
 )ris()ner saturated a l»laidvet with coal oil. and iilaced it so 
 
 woulo 
 
 that if the flames were communicated to it the huildin 
 
 have canuht tire. He then lighted a match and held it in hi.- 
 
 hnu'crs tul it was hurinnn' well, and then jait it down towai'ds 
 the hlanket and yot it witliin an incli or two of the hlanket when 
 the match went out. The Maze did not touch the lilanket, and the 
 lirisoner tlirew away the match and left witlioiit making- anysecond 
 
 attemii 
 
 t. Not 
 
 ire was actuallv commiiincatei 
 
 to tl 
 
 le oil or 
 
 anket, 
 
 it was held that tl 
 
 lese we I 
 
 e overt acts immeiliatelv and directlv 
 
 leiidinn- to the execution of the principal crime, and that the 
 prisoner was [H'operly convicted under this section of an attempt 
 at arson. R. v. (hH>,l,a(t„, 22 (\ P. (Ont), :5:^S. 
 
 Setting' lire to a (piantitv of straw on a lory is not settine- tjri' 
 to a stack of straw within the meanini^- of the 21st section, the 
 the straw lieiiiLi' "" '^"^ ^'^'^y to market, and it not a[)](earin'4 
 whether it was Ik.'Iiil;' removed to or from a stack, li. v. Hatchwell, 
 L. K., 2 V. ('. H., 21. 
 
 ASSAlM.r A.\!) llATTKIiV. 
 
 .\n as.saiilt is an attenn)t unlawfully to apply any, the lea-^t. ac- 
 tual force to till' ])erson of another, diri'ctly or indirectly. See 
 A'. V, SI„H'\ 28 Q. B. fOnt.),()10. 
 
 There nee(| not he an actual toiiehiiit;' of the jiersoii assaulted, 
 hut mere words iiexcr amount to an assault. 
 
 A l)attery is not necessarily a forcihle strikini:' with the hand, 
 or stick or tin; like, hut incliuU-s every toiiehiiiL;' or laying- hold, 
 however tritlini;', of another person, or his clothes in an ani^ay, 
 
200 
 
 MAfJiSTRATES MANUAL. 
 
 I'tiveiigeful, iiidc, insolent or liostile iiiannei', foi' exauiplo, j<>.st- 
 lin;^' anotlu^i' out of tin- way. Thus, if a man sti'ikcs at another 
 witli a cane or fist, or thi'ows a bottle at liini, if" he miss it is an 
 assault, if ho hit it is a liattery. 
 
 There can he no assault wliere tlu' party consents to thi' act 
 done. R. V. Galhr'ic, L. R., 1 C. C. R., 24:i ; K v. Connolbj, 20 
 Q. B. (Ont.), :}20. 
 
 Usin'T insultinij' and abusive lani'iia-'e to a i)erson in his own 
 office, and on tlit! puhlic street, and using- the fist in a threaten- 
 ing and menacing manner to the face and head of a person, 
 amounts to an assault. R. v. ffafmer. 17 Q. B. (Ont.J, ooo. 
 
 A conductor on a train is not liable for an as.sanlt under the 
 Con. Stats. Can., chap. 00, s. 100, in attemi)ting to put a jierson 
 ofi' tlie cars who refuses, after being several times re([uested, to 
 pay his pro[)i'r fare. R. v. Faneuf, •') L. C, J. 107. No doubt, 
 however, if the conductor used more force than was necessary it 
 would auKjunt to an assault. Moderate correction of a servant, 
 or scholai', by his masti^r is not an assault ; but wounding, kicking 
 and tearing a person's clothes do not fall within the scope of 
 moderate correction. Mifcke/l v, Dcfi'h'x, 2 <^. B. (Cnt.j, 4o(). 
 
 Chastisement uiniecessaiy foi' the maintenance of school dis- 
 cipline, and out of ])roporti(m to the natui'e of the offence, and 
 spi'inging from motives of caprice, aiiger, o)' bad temper, caiinot 
 lie justified by a schoolmaster. Bri^son, v. Ldfontcj iic, N L. (,'. 
 
 J., m. 
 
 The offence of assault is a misdemeanor, and is so punishable. 
 R. V. Ti\ lU CP. (Ont.), 4!)-")2. 
 
 [f on the hearing of a charge of assault evidence be given of a 
 higher ofience such as rape, the Justices may still convict of the 
 common assault, provided they disbelieve the evi(lenc<' as to the 
 other point. Ex jutrlc TliompKon, (i 11. \' N., 108 ; \Vi//,i nson \. 
 Dathn, 8 15. S., N21. 
 
 Where a child submits to an act, not knowing its nature, it i> 
 an as,sault ; though if there were a positiv'e will and consent ex- 
 
ASSAULT AND HATT?:i!Y, 
 
 261 
 
 erci-^rd it would not lie. Tlu- prisoner was iiidictL-d for iiKlccciitly 
 sissaultini;' two boys, each of wlioiii was eiy-ht yvuvs of ajj;r. It 
 wa-< lu'ovcd that the prisoner did acts towards tlie hens whicli 
 MiiKunited to indecent assaults if they diil not consent to tliciii. 
 The lioys stated in evidence that they did not know wliat he was 
 ifoing- to do to them when he did each of the acts in (jnestion. It 
 appeared that tlie boys merely snbinittcd to tlie acts, not knowini,' 
 theii' nature, and it was jield that the jirisoiicr min'ht be convicted 
 of an assault. R. v. L<>d\ L.R., 2 C.C'.R., 10. 
 
 It may In; observed that indecent assaults fall within the pro- 
 visions of the :V2 :s: :VA Vic. chap. 'J!*, s. -IS, as amended by the 40 
 A'ic, chaj). 2(5. 
 
 The o2 >.V -S.S Vic, chaj). 20, s. 30, and fVdlowini^ sections, ifovern 
 the subject of assaults ; various acts of assaidt are undn- tliis 
 statute made misdemeanors. By tlie 82 v.V 'M Vic, cliap. 20, s. 
 .")1, on a trial for any felony which includes an assault, there may 
 be an ac([uittal of the felony and a conviction of the assault, if the 
 evidence warrants such finding. Hut umlrr this statute there 
 cannot be a C(mviction of an as.sault, unless the assault is ineludtMl 
 in and forms pai'ct'l of the felony ; and the as.sault iiuist also be 
 conmiitte'N 
 
 
 o^. 
 
 /A 
 
 Photographic 
 
 Sciences 
 
 Corporation 
 
 iV 
 
 iV 
 
 4^ 
 
 o 
 
 ^ 
 
 i\> 
 
 
 6^ 
 
 23 WIST MAIN STRBfeT 
 
 WEBSTER, NY M580 
 
 (716) 872-4503 
 
 V 
 
 '<•> 
 
.V 
 
 
 '*•. 
 
2G2 
 
 MAGISTRATES MANUAL. 
 
 victetl nf assaultinp; a eonstablc in tlie execution of his duty. R. 
 V. Linhf, 7 Cox (\(\, .S.S!>. 
 
 WluTc a ])olicH' otHccr attempts an arrest, by virtue of a yvuv- 
 raiit, for any offence less than felony, a^ for instance, an otience 
 punishalde on suniniary conviction, tlie jterson ivsistin^' such 
 an-est, and assaultin'session at the time. (Joild, \. Cdbc, L. \i., 1 Ex. J)., '.in'l. 
 
 A .lustice of the IVace has no jurisdiction t U. ('., i.. J., i>()0) ; and he must 
 strictly pursue the authority jjfiven, and in order to jj;ive him 
 jurisdiction under the Statute of Canada, (3'2 \- IV^ V'ic, chap. 
 20, s. 43) it is necessary that tlie eomplaii;ant should reipiest him 
 to proceed summarily, and tins ie(|Uest should be made at the 
 time of the coiiiiiiaint, but the rc'.o.iest nei'd n"t appear on the 
 face of the conviction. //>, See also H. v. Shaiv, 2.S Q, H, (Cut,), 
 (IIG. 
 
 Wliei'e the proceedin<;s did not show whether such reiptest was 
 made or not, but it was jiroxtMl that the coiii[)lainant was present 
 at the return ol" tlie summons, and ^mve evidence a^'ainst defend- 
 ant ; if any " intendment " could be nialaiiiant hail made such recjiu'st. • 
 
 li' a warrant of commitment, i.^sued by a Justice of llie Peace, 
 is yood on its face, and the ma<,dstrate had jurisdiction in the case, 
 it is a justification to a constable to whom it is j^iven to be execu- 
 ted, and a ])ers()n resistinj^' him is ^nnlty of an as.sault. H ta war- 
 rant good on its face, will not protect a Justici', if the warrant 
 has no valin beiuin' ''••'l- Apiilcfon v. Lrp/icr,'!^ ( ■. 1*. (Out.), l.SiS. 
 Where the warrant was based on a conviction for an unlawful 
 assault, it was held not necessary, in order to make the warrant 
 legal, antl a justification to the constable that it should be stated 
 in tlio conviction and Wiirrant, tluit the ctimplainiint had reipiested 
 the magistrate to proceed Htuiimarily. 
 

 ASSAULT AND HATTKRY. 
 
 263 
 
 A conviction for an unlawful assault may adjudvfc l, s. WJ , wms 
 that this statute only applied to common a.s.saults ; and the only 
 substantial ditference between the statutes is, that the 44tli sec- 
 tion of the consolidated statute spoke of a common as,sault. Rv 
 McK'nniou, 2 U. ('., L. J., N. S., :}24. 
 
 A conviction by Justices undi'r one statute, for what amounts 
 to an assault, is a bar to a conviction under another statute foi- the 
 same assault. This aiises from the princi|iles of the eounuon law 
 in(h'pendently of any statutoiy enactment, and where the first 
 conviction is by a ci>mpetent jurisdiction, it matters not whether 
 it is by a sunnnaiy proceedin0. But a charLfe of assiiult atid hatterv accom- 
 panied by a malicious cutting' and wuumlinin-, so as to cause griev- 
 ous V»i dily liarm, would ])e liarreil l»y a certificate of acipiittal of 
 assault, and ))att(!rvon the sam»^ facts. Re Coidlin, Ml Q. I). fOnt.;. 
 I().'); so the conviction would hai' an iiidictmeiit for felonious 
 stahhing (It. V. Walker, '2 M. iV: Kolt., 4'4(lj : or an assault with in- 
 tent to commit a rape, lit' ThouipuDH, (i H. \' N., ID.S. 
 
 It lias been held that a ('(jiuplaint under the 4.Srd section cannot 
 he withdrawn by the complainant, even with the c(m.sent of tlif 
 Justice. R(! CotiU'tn, rJl Q. H. (Ont.J, KiO. Th.' contr.iy view is 
 taken in Archl)old's J P., iS.'). 
 
 Uniler st'ction 4(1. the Justice has a discretion to alistain from 
 adjudicatin<;', and lu' may exercise this discretion and al>stain from 
 atljudicating, thouj;h the defendant [tleads {j;"uilty. Re Coidlut, 
 
 S1I jti'd. 
 
 It would seem that the certificate undei- this section must bf 
 obtained from the convicting Justice on the first hearing of the 
 case, and that it cannot be gi-antetl l»y the Sessions on (|uashing a 
 conviction for an a.ssault after an appeal to them. Wcsllit-'dk \. 
 ('(ihi!/h(i,i, 12 C. P. (Ont.). (IK). 
 
 It is imperative; on the Justice who has dismissed the eanst- on 
 the grounds stati'd to grant this certiticate if applied for, and he 
 has no discretion to refuse it, and the certificate has lufii lu'ld to 
 be projM'rly gi'anted after the lapse of sevt n l;iiiu'il to iiml iiifoniieil iiie tliiit C. D. 
 
 of , ill tile (-'oiiiity aforesaid, liiboiiivr, on at , 
 
 • lid (iiiliiwfully aHrta\ilt ami beat liiin, Uie said A. 1$., and wlicreas the said C. 
 I) UeiiiL' duly suiiuuoiied to answer tlie said eliar_;e, appeared before me, one 
 of llei' Majesty's .Jnstices of tile IV'ace for tlie Count}' afort'said, at , 
 
 and tile said A. i>. also tlun and there attetided l)efore nie for the ]iiir- 
 pose of proving the oH'eiice cliarLfed upon the saironj,ilit,it was held that the aliove 
 was not a conviction within the nieaniiiLT <^f the4.')tli section, and 
 was not a har to the action, and also that the convictioji, if any. 
 was not proved. Hurllif/ v. Hi mliiKirsli, I,. R., I ( '. I',, .■)").'?. 
 
 Wlnre ai. ns.sati:. charo-cd in an indietnu'nt, ami that referred 
 lo in a certificate of ilismissal, apjuar to have hecn on tlu' .same 
 day, it is prinui facie evidence Ihat they are om- and the same 
 assRiiJt, and it is incnndient on the prosct^utor to shew that a sec- 
 ond assault occurre<| on the same day, if he alleLfcs it. 
 
 The recital in the certificate (d' the fact of a coni|(laint ha\inn[ 
 
 1 n made, and of a summons liaxino- hren issued, is sufticiont 
 
 evidence of tho.se fact.s. li. v. Westhi/, 11 Co\ i\ ('., l.S!». 
 
 On the heurintf of a chai|,'e of as.sauH, under the Hird sec tioi«, if 
 it Ih' .shewn that a hov-.) 
 
 ArrK.Mi'rs to MriiDKH. 
 
 The Statute 'V2 k liH Vic, chap. 20, renders felonious variou- 
 acts done with intent to connnit murder. See sections 10 to 14. 
 Tlu' 40 Vic, chaj). 2S, substituted a new section foi- the 10th sec- 
 tion of this Act. Thus administering poi.son oi- other destru(;tive 
 tiling (s. 10), d(!stroying or damaging a building with gunpowdei- 
 (s. 1 r, setting Hre to any ship or vessid or any part thereof, or 
 castirg away or destroying any vessel (s. 12), or shooting at any 
 person, or by drawing a trigger or in any other manner attempt- 
 ing to discharge at any pcivon any kiixl of loaded arms (s, 1.*k, or 
 
HKTTING AND POOL SELLING. 
 
 '1^7 
 
 1)V any other means atteniptin*,' to commit nuinler, is folonv (s. 
 14.) 
 
 HAIL. 
 
 (.SVf a)dv, p. 5.) 
 
 HANKUUPTCY. 
 (.See iNsoLVENev.) 
 
 15AUUATHY. 
 
 Tlii.s i.s the oft'oiu-f of fr^^qaentlij inciting ami stinini.,^ np suits 
 and (|UaiTels between Her Majesty's suljects, either at hiw i»r 
 otherwise. The offence is u misdemeanor, punishable by fine and 
 impiisunment. It is insufficient to prove a sin<,de act, inasmuch 
 as it is of the essence of tlu' offence that the offender .should be a 
 ou)iimon barrator. 
 
 l5i:TTIN(i AND POOL SKLLINCi. 
 
 The statute 40 Vic, chap. 31, which ^akes effect on the 1st of 
 May, iJSViS, provides a,s follows : 
 
 1. In ca.se any person uses or knowingly allows any part of 
 any piemises under his control to bi' used for the purpose of 
 recording or registering any bet or wager, or selling any pool, 
 or — 
 
 '2. Kei'ps, exii'bits or employs, or knowingly allows to be kept, 
 exhibited or employi'd in any part of any premises under his 
 control any device or apparatus for the purpo.se of recording or 
 registering any bet or wager, or selling any pool : or — 
 
 ']. Becomes the custodian oi depositary of any money, property 
 or valuable thing stake(l, wagered or pK-dgeil ; or — 
 
 4. Records oi- registers any bet, or wager, or sells any pool — 
 
 Upon the result (<') of any political oi- municipal election, or 
 f/>) of any lace, or (c) of any contest or trial of skill or emiuranct 
 of nuin or beast ; 
 
2f).S 
 
 MAOISTUATKS MANUAL. 
 
 Such poison is .ifuilty of a niisdiMiieanor, and shjill be liaMc to 
 lie iiiiprisonod in any common j^^aol for any tciiii less than one 
 year, with or without hard labour, and to a fine not exceeding 
 one thousand dollars. 
 
 In a prosecution under the Knglish Act, IG tSc 17 Vic, chap. 11!», 
 it was provetl that the appellant occupicil as tenant, a house with 
 a piece of enclosed j^round ailjoining, used for ciickt't, foot-racing, 
 and other games and sports. On the day nanu'd in tlu' summon> 
 fof)t-racing took |ilace on the grounds, to whieli jiersons were 
 admitted on payment of sixpence. Within the grounds, but out- 
 side the space reserved forthe runners, and amongst the spectatojs, 
 some fifteen or twenty professional bettt?r.s stood on cliairs ami 
 stools in different spots, with books in their hands, calling out the 
 odds on the various runners and betting with different persons, a 
 uum behind each of the professional betteis recoiding the Itets in 
 a book, the persons iK'tting paying one shilling each an;l receiving 
 a ticki't. The evidence satisfied the magistrates that the apj)ellant 
 kuew of what was going on, and took no steps to ])revent it, and 
 that he might have prevented it if lie hail wislied. It was held 
 that he uught be convicted of knowingly and wilfully pennitting 
 a place of which he was the occupier, to be used by certain per.sons 
 for the purpose of betting with persons resorting thereto. Haii/h 
 v. Shrfichl, L.U., 10 q.H., 102 ; luishmo,! v. Milln; L. R.. J) Q. B., 
 440, appi(»ved. 
 
 The Knglish Act ivlating to betting houses, u.ses the words, 
 " hou.se, room, or other place." A tree in Hyde I'ark to which a 
 man u.sed to resoit to bet, was held not a " place " under the Act. 
 I^o(/j/('(f V. (\iltci'iif<, I!) (\B., N.S., 70'>. But a temixuary wooden 
 structure erectetl duiing laces, was held to be within this Act. 
 Sliitw V. Morh/i, L.R. .*{ Kx., 1.S7; .so a field is a place within thi."> 
 Act, Kastifood V, Miller, 'M) Ij.T. N.S., 71() ; so is any und»rella on 
 a raee-cour,se. Jiotws v. Feiiwick, IK) L.'i\N.S., 524 ; L.R., !> C.l'., 
 
 Where an information chargecl defendant with liaving on the 
 ■Hli October, and on divers othei* days ami times between the said 
 oth October and the laying the information (Kith Novend)er), kept 
 a bettinir-hou.se, a conviction for .so tisini<' the house on the ' 
 
 November was held ;^oo(l and valid. Unle}/ v. (lee, 4 L.T., N.S.. 
 .'{.S.S. 
 
 The oH'ence of keepiiio- a gamhling-hovise comes within the pro- 
 visions of the 82 \: 38 Vic, chap. 2U, .s. 2H, amended by tlie 40 
 Vic, chap. 2(5. 
 
 RKiAMY. 
 
 Tins oti'ence consists in marrying a second time whili' the defen- 
 dant has a former husband or wife still livin<''. It Is felonv under 
 the statute 82 & 88 Vic, cliap. 20, s. r,H , but the statute does not 
 extend to a second marriage contracted elsewhere than in CiUiada 
 l>y any otlier than a subject of Her Majesty resident in Canada,, 
 and leaviuLi: the same with intent to conunit the (itt'ence ; or to 
 any person marrying a seeond time whose husliand or wife has 
 lieen continually ab.sent from such person for tlie sjmce of seven 
 years then last past, and was not known by such person to be 
 living witlun that time •. nor does it extend to any person who at 
 the time of the .second marriage was divorced frf)m the first marri- 
 age, or to any person whose former marriagt^ has been declait il 
 void l»y the sentence of any couit of competent juiisdiction. 
 
 The fii'st marriage must be valid. If it is .•aid, bigamy cannot 
 be eonnnitted, otherwise if it is vo'tdnhh' only. li. v. JuntliM, I 
 Mood C ('., 140; see Jircilri/ v. limdri/, 2Q. H. (Out.), 8.')8. 
 l)Ut it is not neces.sary that the second marriage should be valid 
 .'ind regular in all respects. 11 v. liravut, 1 ('. \- K., 144: /i. v. 
 Mien, L.R., 1 ('.('.II., 8(i7. 
 
 .\ /*o)((A//Jr belief by the prisoner at the time of the second 
 marriage tliat lier husliand was then dead is no defence, li. v. 
 hr,\ 1 1'. H., (Out.), U.S. 
 
 There must also be jiroof that the husliand or wife was alive at 
 tlie date of the second marriage. /{. v. Lavi/eij, L. li., 1 C C R.. 
 1!MJ ; R. V. Canjenven, L. R., 1 C. C. R., 1. 
 
270 
 
 MAGISTRATES MANUAL. 
 
 Tt lias I icon lielfl that vvliere the pri.sonei' relies on the tir.st wit'e'^ 
 leii;^'theTU'(l ahstiiu'e, ami liis ij^noraiice of her heing alive, lie iiuist 
 show en(|nirit's made, and that he had reason to believe her dead, 
 or at least could not ascertain where she was or that she was 
 livinJ,^ incn-e espeeiully where he has deserted her, and this not- 
 vvithstandintr that the first wife has married aj^ain. Ji. v. Sialth, 
 14 (.^. 1). (( )nt.), .')(!'). It is conceived howevei' that this case will 
 not now apply. I'nder the statute the absence, unless for seven 
 years, would not be a defence for the prisoner, and when there is 
 continual absence for that time, the burdei? of provinj^' that the 
 prisoner knew that his wife was living within that time is upon 
 the prosecution. J{. v. Ciuyenceii, L. R., 1 C C. R., 1. 
 
 After the (.'Xpirati(»n of the seven years the prisoner carniot be 
 convicted, unless the prosecution piove that within such seven 
 yeai's the prisoner was awaiv of the existence of his first wife. If 
 such evidence is not forthcoming, the prisoner may legally marry 
 after the seven years have expired, though it is proved that his 
 first wife is then living. See A', v. Lumley, L. R., 1 C. C. R., JDS. 
 
 In a prosecution for bigamy where there is a foreign nuirriage, 
 the foreign law must l)e strictly proved, and the mariiage must 
 be proved to be in accordance with that law. This is necessary, 
 even whei'e the Justices iji their individual capacity know that 
 the marriage has bi-en celebrated with the formalities retpiired by 
 the foreign law. Ji. v. Sniitli, 14 Q. B. (Out.), oG'). This, how- 
 I'Ver, is not necessary if the mai'riage is admitted by the defend- 
 ant, and there are corroborating circumstances strengthening tin- 
 admission. The testimony of the officiating clergyman, that he 
 had a marriage license which was biought to him by one of tlic 
 parties, that he duly returned the .same, that all the foi-ms of law 
 were observed as re(|uired by the license, and that the luarriagc 
 was performe 
 church, is suflicient proof of the license having been issued and 
 returned, and of the marriage having been duly solenniized. li. 
 V. Alhci, -2 Ohhight, .S7;{. 
 
 it has been held that the admission of the first nuirriage by the 
 prisoner, unsupported by other testimony, is sufficient to justify 
 a conviction for bigamy, .so far as proof of the first nuirriage is 
 concernetl. R. v. Creamer, 10 L. C. R., 404. 
 
lUJIItmiV MrUOI.AKY. 
 
 271 
 
 UKIl'.KItV. 
 
 Tile .']7 Vic , cliap. !), iclatcs to tin- otfoiic-i' of l>ril»orv at elec- 
 tions, rndcr section !>2, it is an otience to jtromise to jiaya voter 
 at an election his tiavellin^' exjienses, conditionally on liis coming 
 anil votinj;' for a ])aiticiilar camliilate, hut a promise to pav a 
 voter his travellin<,' expenses without such a condition is le<,fal. 
 Where a letter  ( ', P., 
 :)().S. 
 
 Tnder section 74, the otience of peis(jnation i.s complete up<»n 
 the personator tendering;' tlu' votining in such house conmiitting any 
 felony, and breaking out of the same. 
 
 Larceny in a dwelling-hou.se is provided for by the 01st section 
 of the Act. This crime differs fronj housebreaking, inasnuich as 
 
hlJIUJLAKY. 
 
 L'73 
 
 tlir 
 
 such 
 
 there nee■■ an intention to connuit the .same. 
 
 So sacrilege is telony under the 4I)th section oi' the Act, so by 
 section ')!> of the Act, being armed by night with any dangeious 
 or offensive weapon, with intent to lireak iritoany dwelling hou.se, 
 and I'ommit any felony therein, or having in pos.sessicjn by night 
 any burglar's implements, or having the face disgui.sed with intent 
 to connuit felony, or being in any dwelling house with intent to 
 connuit felon}', is a misdemeanor. 
 
 An attenipt to commit a burglary may be established on proof 
 of a breaking with intent to rob the hou.se, although then; be no 
 proof of actual entry of any portion of pi'i.soner's per.-on. li. v. 
 S/ninner, 12 Cox C. C, !;-);{ 
 
 Where a prisoner was indicted under the o.Srd section, foi- lireak- 
 ing and entering a shop with intent to connuit a felony, it was 
 proved that he broke in the roof with intent toiaiterand .steal, and 
 was then disturbed ; but there was no evidence that he ever en- 
 tered the .shop. It was held that he miglit be convicted of the 
 misdemeanor of attempting to commit a felony. U. v. linni, L. 
 .S: ('.,12!). 
 
 An opening of a door in a sliop under the sam(! roof where the; 
 prisoner liveil as a servant, for the purpo.se of committing a felony, 
 is a breaking and entering. R. v. Wemnoidh, 8 Cox C. C, 34S. 
 18 
 
274 
 
 MAGISTRATES MANUAL. 
 
 Under the 59th section of this Act, proof of a general intent to 
 break or enter any dwelling house is iiisuthcient. It is necessary 
 that a person should, he proved to have the intent of breaking into 
 or entei'ing some j)artieular building. li. v. Jdrrdld, !) Cox C. C, 
 307. 
 
 CHAMPEUTY. 
 (i^ee Maintenance.) 
 
 CHILI) AHANDoNlNfJ, STEALING, &C. 
 
 The 32 \: 33 Vic, chap. 20, s. 20, enacts that who.soever unlaw- 
 fully abandons or exposes any child, being under the age of two 
 years, whereby the life of such child is endangered, or the health 
 of such child has been, or is likely to be, permanently injured, is 
 guilty of a misdemeanor. There cannot be an unlawful abandon- 
 ment of a child under this section except by a person on whuiii the 
 law casts the obligation of maintaining and ])rotecting the child, 
 and makes this a duty. A person wlio has the lawful custody 
 and possession of the child, or the father who is legally liouiid to 
 providi! for it (see section 2') of this statuti'), may otlend against 
 the provisions of tlu' statute. Jhitsti'angers to the child, under no 
 obligation to provide for it, do not come within the statute. R. 
 V. Wlatc, L R, 1 C. ('. R., 311. if the al)iindonment, instead of 
 merely injuring the health of the child, causes its (h-ath, the 
 prisoner would, it seems, be guilty of mui., 314. Thou'di a father has 
 not tlie actual custoily of his child, yet, as he is legally liound to 
 provide for it, his altandoniuent and exposure of it brings him 
 within the statute. //*., 311. 
 
 So the mother of a chihl, who luus the actual custody of it, may 
 come within the Act. The mother of a child, five weeks of age, 
 packeil it u[) in a hamj)er as a parcel, and sent it by railway, 
 addres,sed to the i)lace where its ]iutative father was then living, 
 giving ilirections to the clerk at the station to l»e very careful of 
 the ham])er and scud il. iiy the next train, but saying nothing as 
 to its contents. The child reached its destination safely, but it 
 was held tliat tlie mother had unlawfully abandoiu'd and exi)osed- 
 the child. R. v. Fssion of the child, or with intent to steal any 
 artick' upon or about the child, or with any such intimt to receive 
 i>r har))()ur any such child, knowing the same to have been so h'd 
 away, is felcny. But persons claiming any right to the po.ssession 
 of the child do not fall within the statute. 
 
 CHURCHES, WORSHIP IN, kC. 
 
 Under the 32 & 33 Vic, chap. 20, s. 30, obstructing or assault- 
 ing a clergyman or other minister in the discharge of his duties is 
 ii misdemeanor. 
 
 This section would onlv ^)rotect the clergyman when en<;acted by the Act lespecting the duties of Justices 
 I if the Peace out of sessions in I'elation to sunuuary convictions 
 and orders. 32 k 33 Vic, chap. 31. 
 
 This Act was extended to Princes Edward Island by the 40 
 Vic, chap. 4; to the District of Keewatin by the 31) Vic, chap. 
 lM ; to the North-West Territories by the 38 Vic, chap. 4!) ; to 
 Hritisli Cohnnbia by the 37 Vic, chap. 42; and to the 1 rovinco 
 of Manitoba by the 34 Vic, chap. 14. 
 
276 
 
 magistrates' manual. 
 
 The mere possession of a large quantity of pieces of counterfeit 
 coin of the same date and make, each })eing wrapped up in a 
 separate piece of paper, attbrds evidence of a guilty knowledge 
 and of an intention to utter under the eleventh section. R. v. 
 Janm, 7 Cox C. C, 53. 
 
 Under the 12th section the prisoner cannot he convicted of fel- 
 ony without proof of the previous conviction, and when a pris- 
 oner is indicted for fel. ny under this .section, and the previous 
 conviction is not proved, he cannot be convicted of the niisde- 
 nicanijr of nttei'ing — the law not admitting uf a conviction for 
 misdemeanor on a charge of felony unless in cases expressly pro- 
 vided for by statute. Jl v. Thomas, L. R., 2 C. C. R., 41. 
 
 It is a mi.sdcMiicanoi' at common law to make uv procure en- 
 graved dies with intent therewith to make a foreign coin, even 
 though all the instruments necessary had not been obtained, li. 
 V. Roherfs, 7 Cox G. C, "M. Hut the pu.s.session of a mould for 
 coining the obvei-se side of a half crown with other coining nui- 
 terials was deemed sutKcient evidence to go to a jury on a charge 
 of felony, li. v. Weeks, S Cox C. C, 455. 
 
 A galvanic battery is a machine within the 24th .section, li. v. 
 Glover, 9 Cox C. c] 282. 
 
 COMPOUNDING OFFKNCKS. 
 
 Aferely to forbear to pro.secitte is no oH'ence, there is wanting 
 something else to constitute a crime, and this essential is the taking 
 of some reward or advantage. But forbeaiing to pros(!Cute a 
 felon on a(!count of some reward receivcid is a mi.sd(>meanor. 
 To corrui)tly take any rewaid for helping a person to property 
 stolen or obtainecl, &c., by any felony or misdemeanoi- (unless all 
 due diligence to biing th!). 
 
 The section only applies to the concealment of the dt-dd body of 
 the child, ane done an act, whether lawful or not, by means prohibited 
 l)y penal law. 11 v. Ru;/, 11 L. C. J., 98. 
 
 The gist of the otft'uce is the combination, therefore the parties 
 will be liable, though the eonspii-acy has not been actually carried 
 into executicm. Hi. HortmuDi x. ii., Ki Q. B. (Ont.), .")4.S. But 
 the combination must be something more than intention merely. 
 See Midciih}) v. 11, L. R., 8 E. k 1. App., 800-817-828. It is not 
 necessary that tlie object should be unlawful, for when two or 
 more persons fi-audulently coml>ine,the agreement may be criminal, 
 althou'di if the awi«n.s used to attain that object should b(Minlawful, see R. v. 
 Roy, 11 L. C. .I.,!)8. See 82 \: 88 Vie., chap. 20, s. 42, as (.. con- 
 spiracies to raise the rate of wages. Under the 'Vl k 88 Vic.,ch!ij) 
 20,8.8. A conspiracy to coiiuiiit iiuii'der is a misdemeanor, ami 
 under the 81 Vic, chaji. 71, aconspiiiicy to intimidate a Pro\ incial 
 Legislative body i.s a felony. Krom \\\v. very nature of conspiijiey 
 it must be biitwiM-n two peisuns at least, and one cannot be 
 convicted unless indeed he is indicteil with othei's, who may, how- 
 ever, be dead or unknow.i. A man and his wife caiujot Vie indiete(l 
 for conspiring alone, because tiiey constitute one jieisoii in law. 
 Arch., Cr. Pldg., 942. 
 
 Conspiracy is one of the otl'enees within the provisions of the 
 32 \: 88 Vic, chap. 2!>, ,s. 28, amended by the M) Vic, chap. 2s of 
 cocks in order tersonfrom criminal 
 liability ; for instance. A, in a fit of voluntary dnud^enness, shoots 
 B dead, not knowing what he dors. A's act is a crinu^ But in- 
 voluntary drunkenness, and diseases caused by voluntary drunk - 
 ijnness may excuse ; for instance, A, under the intlueuce of a drug 
 
DRUNKENNESS. KMBRACERV 
 
 283 
 
 fraudulently administered to him, shoots B dead, not knowing 
 what he does. AV. act is not a crime ; or if A, in a fit of (lelirlinn 
 tremen!^, causwl by voluntary drunkenness, kills B, mistakini,'him 
 for a wild animal, attackinrlrij,(i 
 P. R. (Ont.), 244. 
 
 ELECTIONS. 
 {See BuiiiERY.) 
 
 EMHKZZI.EMKXT. 
 (»See Lakceny). 
 
 EMimACERY. 
 
 This is an attempt to influence a jury, corruptly to give a ver- 
 dict in favour of one side or party by promises, persuasions, en- 
 treaties, money, entertainments, and the like. The offence is a 
 misdemeanor. A jur3'n»an himself may l)e guilty of this (itfeiiec 
 by cori'uptly endeavouring to bring over his fellows to his view- 
 The oftenci! is a misdemeanor, both in the per.son making the at- 
 tempt, and also in those of the jury who consent. 
 
 There are certain other acts, interfering with tlu^ tVet; admin- 
 istration ()i justice at a trial, which art' considered as high mis- 
 prisons and contempts, and arc; punishable by fine and imprison- 
 ment. Such are the following: Intimidatingthe parties orwitntj.sses ; 
 endeavoring to dissuade a witness from giving evidence, though 
 it be without success; advising a prisoner to stand mute ; assault- 
 ing or threatening an oj»pontint for suing him ; a counsel or at- 
 torney tor being em] »loyed against him; a juror for his verdict ; 
 a gaoler or other ministerial officer for what he does in discharge 
 of his duty ; for one of the (Irand Jury to disclose to the pri- 
 soner the evidence against him. 
 

 284 
 
 magistrates' ?ianual. 
 
 ENTICING SOLDIERS OR SAILORS TO DESERT. 
 
 The 32 «fe 33 Vic, chap. 25, enacts that whosoever, not being- 
 enlisted in Her Majesty's service, by words or with money, or by 
 any other means what-o^ver, directly or indirectly, ])ersuades or 
 procures, or j^'oes about or endeavours to j^ersuade, prevail on or 
 procure, any such soldier, sailor, &c , to de.sert, or conceals, receives, 
 or assists a deserter, knowing him to be such, may be conxicted 
 in a sunnnary manner before two Justices of the Peace. See form 
 of information for this offence, ante p. 64. 
 
 This A.ct was extended to Prince Edward Island by the 40 Vic, 
 chap. 4; to British (Jolumbia by the 37 Vic, chap. 42, and to the 
 Province of Manitoba by the 34 V' ic, chap. 14. 
 
 i:SCAPE. 
 
 An escape is where one who is arrested gains his liberty by his 
 own act, O!' through the permission or negligence of others, before 
 he is delivered by the course of the law. Where tlie libera- 
 tion of the party is efl'ected eitlier by himself, or others, witliout 
 force, it is more properly called an escape ; where it is effected l»y 
 the party himself, witli force, it is called prison breaking; Avhere 
 it is effected l)y others, with force, it is commonly termed a rescue. 
 
 Under the 32 & 33 Vic, chap. 2}), s. 84, whoever escapes from, 
 or rescues, or aids in rescuing, any other person from lawful 
 custody, or makes, or causes any breacli of prison, if such offence 
 . 1, s. 7, sixteenthly. 
 
 In indictable cases the 32 & 33 Vic, chap. 30, s. 30, expressly 
 
286 
 
 MAGISTRATES MANUAL. 
 
 empowers the Justice to administer an oath to a witness, and the 
 same power is also <,aven in the case of summaiy convictions. 32 
 (.t .S3 Vic, chap. 31, s. 45. The oath is generally in the following 
 form : — 
 
 " Tlic! evidence you shall give touching this information {i>r ajniplaint, (rr 
 the present charge, or the application, i>f ove section, a i It-position of a witness, purporting,' to have })een 
 taken before a Justict^ (v Justices on the invi-stigation of the 
 charge, and to he signed hy the witness and the Justice or Jus- 
 tices, returned to and pioiUiced from the custody of the proper 
 officer, sliail he prima facie presumed to have been signed by the 
 witness. 
 
 The 82 »fc 33 Vic., chap. 29, s. 58, et seq., contains other provi- 
 sions as to witnesses ami evidence which are not necos.sary to be 
 given here. 
 
 Witnesses are allow(Ml to .speak oi facfs only, and the opinions 
 <\t' witnesses are not, as a general rule, admissible in evidence. 
 
 In order to secure impartial and truthful testimony, it is an 
 established rule that a witness should not, on examination-in-chief, 
 be asked leading (juestions, i.e. (juestions in such form as to sug- 
 gest the answers desii'e(i. Ou cross-examination, however, a wit- 
 ness may be asked leading ([U(!sti(;i\s, the witness not being t'avoui'- 
 able to tlu' i)arty cross-examining. 
 
 Where a prisoner calls witnesses as to character only, it is not 
 usual to cross-examine them, though the strict right to do so 
 exists. After the cross-examination, tlie party producing the 
 witness has aright to re-examine him for the pur[)ose ol'exj)lain- 
 ing any statements of the witness on cross-examination, l»ut unless 
 by [termission of the court, there is no right on re-examination to 
 go into new matter not U'nding to (explain the cn^ss-examiuation. 
 The person ])rodueing the witness sh(juld therefore, on the exam- 
 ation-in-chief, ask all ueces.sajy (piestions. 
 
 A prisoner cannot, in the existing state of the law, give evi- 
 ilence for himself", nor can his wife l»e ailmifcted as a witness for 
 liim. 1{. V. Hiimphreijs, 9 Q. H. (Ont.;, 337 ; li. v. Maidlen, U Q. 
 H. (Ont.), 588. 
 
 Tlie wife of any one of several pristjners jointly indicted, 
 stands in the same position with respect to the admissil)ility 
 of her evidence as her husband, and she cannot give evidence 
 tor either of the prisoners. JL v. I'hovopbun, L. K., 1 C. C. R,, 
 377. 
 
 But a married woman may give evidence in favour of a person 
 who has connnitted a crime jointly with her husl)and, provided 
 
288 
 
 MAOISTRATES MANUAL. 
 
 % 
 
 the ]iiisl)an(l is not on trial for the offence. li. v. Thompso^a, 2 
 Hannay, 71. 
 
 One witness is in n^eneral sufficient. 
 
 In treason, two witnesses are reriuired (see 81 Vic, chap. 09, s. 
 0), and in perjury, if only one witness is produced, his evidence 
 must be corroborated, fn fort^ery also, the evidence of the per- 
 son wliose sif^nature is forged nuist be corroborated. 82 & 88 
 Vic, chap. 19, s. .54. 
 
 It is usual to require that the testimony of an accomplice V»e 
 corroboi'atcid a.s to the iderifity of the accused, but not as to the 
 manner in which the crime was committed. 
 
 The confession of a prisoner is only admissible when free and 
 voluntaiy. Any inducement to confess held out to the prisoner 
 by a ])erson in authority, or any undue compulsion upon him, will 
 be .sufficient to CKclude the confessicm. This rule is carrie(l so far 
 that if an oath is administered to the prisoner before; takin^^ his 
 statement, under the 82 ^ 88 Vic, chap. 80, s. 81, the oath will be 
 a sufficient ccm.straint oi- compulsi(m to rentier his statement inad- 
 missibU-. R. v. Field, 10 C. P. (Out.), 98. But the depositiem on 
 oath of a witness is admissabh; af^ainstsuch witness, if hv. isaftei'- 
 wards chai'ifev. deemed volun- 
 tary. Ji. v. Onote, Hupro. 
 
 A dying declaration is only admissible in tividcsnce where the 
 death of the deceased is the suliject of tlie charge, and the circum- 
 stances of tin; death the subject of the dying decliiratioii. Tlu-re 
 nuist also b(!an iin(|ualilied helief in the neai'ue.ss of death, abeKef, 
 without hope, that the declarant is about to die, and the burden 
 of pioving the facts that rend(M- the dec^laration admissible is upon 
 th<- prosecution, li. v. Jnik'nis, L. R., I (!.(;. R., 192. 
 
 As to the com])et(incy of witnc^.sses, a child of any age, if caj)able 
 of distinguishing between good and evil, iriay l)e admitted to give; 
 
KVIDENCK. 
 
 iHii 
 
 cviflcnco. A child ut" six yeai's of apo was exaiuiiiod ; on Iteing 
 intcno^iitcil l»y tlie Judge ujkI making aiiswcis tliat (here was a 
 Ciod, tliafc peo[)le wo; ' '. he [(iiiiisheil in liell whodiil not speak the 
 trutli, and tliat it was a sin to t(!ll a falsehood unilei()ath,alth(nigli 
 he stilted lie did not know what an oath was. Ji. v. lUralx', .'} L. C 
 K., -IX'l. 
 
 On a trial for iMUi' malfeasance or culpable non-feasance of an otHcer of Jus- 
 tice with relation to his office, is a misdemeanor punishable by 
 fine or im})iis()inuentor both. Foi'feitui-e of his ofiice, if protitablc, 
 will also generally ensue. 
 
 As to malfeasance — in cases of oppi'ession and partiality the 
 officers are clearly j)unishable, and not oidy when they act from 
 corru])t motives, but even when this element is wanting if the 
 act is deai'Iy illegal, foi' exani])le, if a nuigistrato commit in a ease 
 in which he lias no juristliction. 
 
EXTORTION AND OTHER MISCONDUCT OF PUBLIC OFFICERS. 291 
 
 .cquittiU 
 
 (htr V. 
 
 ,I!S. 
 
 ot' .Ins- 
 ill lie l»y 
 I'oti till til', 
 
 ity tlu' 
 let from 
 no' it' tlu' 
 in a case 
 
 Extortion in the more strict sense of the word, consists in an 
 officer's unlawfully taking, by colour of his office, from any man 
 any money or thing of value that is not due to him, or more than 
 is due, or before it is due. This offence is of the degree of misde- 
 meanor, and all persons concerned therein, if guilty at all, are 
 ))rincij)als. Two or more persons may be jointly guilty of extoi'- 
 tion where they act together and concur in the demand. M. v. 
 Ti^'hde, 20 Q. B. (Ont.), 27r>. 
 
 Where two persons sat togetlieras magistrates, and one of them 
 exacted a sum of money from a ])erson charged before them with 
 felony, the other not dissenting, it was held that they might 1)0 
 jointly convicted. lb. 
 
 As to non-feasance. An officei- is equally liable for neglect of 
 his duty as for active misconduct. A refusal Ity any person to 
 serve an office to which he has been duly appointed, and from 
 which he has no ground of exemption, is an indictable otl'ence. 
 An indictment mav be malntiuned against a Deputy Hetui-niiig 
 Officer at an election for refusing, on the re(]uisition of the agent 
 of one of the candidates to achninister the t)ath to certain parties 
 tendering themselves as voters. K. v. Bcnnnit, 21 (.?.!*. (Ont.), 
 2.'J.S. 
 
 Th(! 2() Geo. II., chap. 14, s. 2, gives an action to any person to 
 recover a penalty of £20 agaijist any one wlio demands a greater 
 fee than tiiat whicli is established. 
 
 In an action under 20 Geo. II.. chap. 1 4. s. 2, to recover pen- 
 alties against a clerk of Justices for taking a fee higher than that 
 in the authorized talile, the veinie is local under 81 Kli/., ehap. '), 
 s. 2, though the plaintiffhappen to be the jierson grii'V(Ml. Lririn 
 V. Jhirl.s, L. R., 10 Ex., dule to the (N. 
 15.) Rev. Stat., chap. 1JJ7, is liable to an indictment. J{. v. Mc- 
 l)fl)Kil(J, 4 Allen, 440. The fact that the defendant did not know 
 that the person a.ssaulted was a jteace officer, or that he Mas 
 acting in tlie execution of his fluty, fmiiishes no defence, li. v. 
 Forbes, 10 Cox., 5}(i2. It is sufficient that the constable was actu- 
 ally in tile execution of his duties at the time of the tussault. 
 
292 
 
 MAGISTRATES MANUAL. 
 
 EXTHADITION. 
 
 The 40 Vic, chap. 25, makes provision for the, extradition of 
 fugitive criniinal.s. It ha.s been recently lield that thi.s Act is not 
 yet in force. R.v. Williams, unreported, Q.B.(Ont.), 11 January, 
 1878, Harrison, C J. The 31 Vic, cliap. 1)4, as amended by the 
 38 Vic, clia}). 25, witli the Imperial xVct 33 ^- 34 Vic, chap. 52, 
 must therefore still govern. 
 
 As, liowever, ordinary Justices of the Peace have not now the 
 power to act in extiadition cases, of course it is unneces.sary to 
 treat of the provisions oi these Acts. 
 
 FALSE Py.RSONATION. 
 
 .\t common law false personation is punishable as a cheat or 
 fraud, but certain particular cases are dealt with by statute. 
 
 I'ndei'" The Dominion Kleotions Act, 1874," 37 Vic, chap. !l,s. 74, 
 a pi'tson shall for all purposes of the laws relating to Parliament- 
 ary elections be deemed to lie guilty of the offence of personation, 
 wlmat an election of a uiember of tin; House of Connuons apjilies 
 for a ballot paper in tlio name of some other person, whether such 
 name be that of a person living oi' dead, or of a fictitious jierson. 
 or who, having voted once at any such election, applies at the 
 same election for a ballot pap(!r in his own name ; and the ollence 
 of personation, or of aiding, alietting, counselling or procuring its 
 commission is punishaltle by a line not exceeding ^'2i)0, and by 
 imprisonment not «'xeeeding six mi>nths. Under the 32 ic 33 Vic, 
 chap. 1!), s. (i, personating the owner oi' certain stock, \:c., and 
 transferring or receiving, or endeavouring to transfer or receive 
 the dividends is felony. 
 
 FALSE PRETENCES. 
 {iSct LAUeKNY.) 
 
 FIRE-ARMS, IMPROPER I'.EoF 
 
 ' The Statute of Canada, 40 Vic, clui]). 30, provides that who.so- 
 ever has np(m his person a pistol or air-gun, without reasonal»li' 
 cause to fear an assault or other injury to his person, or his family 
 
FORC'IBLK ENTRY OR DETAIN KR. 
 
 293 
 
 or property, may he re(|uirt'(l to tint! sureties to keep the peace for 
 a term of six months, and V)y section 2, wliosoever, when arrested, 
 either on a warrant issuetl against liim for an offence oi- whilst 
 committini,' an ofieiice, lias upon liis pei'son a i)istol or an air-nun, 
 is liable, upon conviction, to a tine of not less than twenty dollars. 
 So by section 8, having" a pistol or air-gun, with intent therewith, 
 unlawfully and maliciously to do injury to any other person 
 tenders the j)erson lial)le, on conviction, to a tine ncjt less than fifty 
 dcjllai's. 
 
 Offences against the [)r(jvisions of the Act must be prosecuted 
 within one month, and aie to be tried and dealt with in pursuance 
 of the " Act respi^cting the i)rompt and summary administration of 
 criminal justice in certain cases." See the 40 Vic, chap. .SO, s. 5 ; 
 see also 82 & :M] Vic,, chap. 20, ss. 74 and 7C. 
 
 FISHERIES. 
 
 Th(; .'U Vic, chap. 00, was passed for the ivgulation of fishing 
 
 and the protection of fisheries. 
 
 This Act wasamend(iil by the '^H Vic, chap. ']t\. It was extended 
 
 to British (>\)lumbia and Prince Edward Island by tlie .S7 Vic, 
 chap. 28. 
 
 FOlUilU.K KN'TliV OR DETAIN FH. 
 
 The violent taking or after unlawful taking, the violent keep- 
 ing ])ossessi()n of lands ajul tenements witli menaces, force and 
 loins, and without the authority of the law. This otfenee is a 
 iiiisdemeanoi- at common law, and an indictment will lie for it if 
 nccom[)anied by such circumstances as amount to more than a 
 I tare trespass and constitute a pul)lic breach of the jteace. li. v, 
 Wiisou, ST. R.,.S:)7. S.'c, also, R. v. Mxrfhh 10 L. C. II., 4.S:). 
 
 The statutes S liy. IV.. chap, !l ; N Ily. VI., chap, !> ; Hy. 
 VIII., chap. 0, and 21 Jac l,chai). l.'>,asto forcible entries seem 
 
 to be in force in this country. HokIIdh v. FitZijci'ubK I Q H. 
 (Ont.), \W,\ ; li. v. McGrcu')/, :> O. S.,(i20. 
 
 Under these statutes the party aggrieved by a forcible entry 
 and detainer, or a forcible detainer, may proceed l)y comjtlaint 
 made to a local Justice of the Peace, who will summon a jurv and 
 
294 
 
 MAGISTRATES MANUAL. 
 
 call the defendant before him, and examine witnesses on V)oth 
 sides if offered, and have the matter tried by a jury. Russell v. 
 Loud, 14L.C. R., 10. 
 
 A mere trespass will not support an indietment for forcible 
 entry, there must be such force or show of force as is calculated 
 to prevent any resistance. R. w. Smyth, 1 M. & Rob., 155. 
 
 The object of prosecutions for forcible entry is to repress high- 
 handed (efforts of parties to ri^-ht themselves. R. v. Connor, 2 P. 
 R. (Ont.), 140. 
 
 And a party may be f,'uilty of forcible entry by violently and 
 with force entering- into that to wliich he has a legal title. New- 
 ton v. Harland, I M. ^ (ir., (J44. 
 
 Where a person having the legal title to land is in actual pos- 
 session of it, the attempt to eject him by force brings the person 
 who make; it within the pro\isions of the statute against forci- 
 ble entry. It will do so though the possession of the person hav- 
 ing such legal title has only just couuiieneed, though he may him- 
 .self have obtaineil it by forcing open a lock, though liis ejection 
 has not been made by a " uuiltitude " of men, nor attended with 
 any great use of violence, and though the person who attemfits to 
 eject him may even set up a claim to tlu! possession of the land. 
 Laws ((■ Telford, L. R., I Apjjeal Cases, 414. 
 
 This offence is now brought within the provisions of the .*}2 & 
 33 Vic, chap. 21), s. 28, which iccpiires as a preliminary to the 
 present! uent or finding of an indictment by a grand juiy, that 
 the prosecutor or other person presenting the indictment should 
 be bound by recognizance to pro.secute or give evidence against 
 the person accused of such offence. Sec 40 Vic, chap. 20, s. 2. 
 
 FOREIGN ENLISTMKNT OFFENCES. 
 
 The Tmtx;rial Statute 33 & 34 Vic, chap. f)(), governs offences of 
 f1 ■• .• '■•■M- H-iioughout the Dominion of (Canada and tlu! adja- 
 
 - v^ I ,'/'ii .' waters. 
 
 ii i. !<■ t' r-'Uid in the statuti^s of lS72. A warrant of commit- 
 ment v.;C^',< "i ('lat M. was charged, on the oath of W., " For that 
 he, M., was tliis day charged with eidisting men for the United 
 States army, ottering them #350 each as a bounty," without charg- 
 
FORUEUY. 
 
 295 
 
 ing any otience witli certainty, without stating that the men 
 enlisted wei'e subjects of Her Majesty, and without showing- tliat 
 W. was unauthorized l»y license of Her Majesty to enlist, was held 
 Imd. Me Martin, 10 U. C, L. J., i:3(). 
 
 This offence is defined as the frainlulent making or alteration 
 of a writing to the prejudice of another man's right. Re Smith, 
 4 P. R. (Out.), 21(i. The offence is a misdemeanor at common 
 law. It is now governed by the Statute, 'i'l \: H'^ Vic, chap. 1!>, 
 which makes it fcslony. 
 
 This Act was extended to Prince Edward Island hy the 40 
 Vic, chap. 4 ; to the ])istrict of Keewatin by the 39 Vic, chap. 
 21 ; to tlu^ N(^rth-West Territories by the 38 Vic, chap. 4!) ; to 
 Briti.sh Columl)ia by the 37 Vic, cha[). 42 ; and to the Province 
 of Manitol)a by the 34 Vic, chap. 14. 
 
 The 31 Vic, chap. 71, relates to forgery in connection with 
 Provincial Le2fislatur(3s and their Acts. 
 
 Though the Statute 32 t.^' 33 Vic, chap. 19, makes forgery a fel- 
 ony, yet ca.scs not provided f(^r by the statute may still be pun- 
 ished at common law. The 4')th .section of the statute provides 
 that whosoever maliciously and for any purpose of fraud or 
 deceit forges any document oi' thing written, pi'integi'a])hic despatch of the Montreal Tehigi'aph C'o.,and pui'poit- 
 ing to bo sent by one, C, at Hamilt(»n, to M„ at Woodstock, au- 
 thorizing M. to furnish the prisoner with funds. This me.s.sage 
 was delivered to M. by a boy, as from the telegraph office, and 
 upon the faith of it M. endorsed a draft for $H'), drawn by the 
 prisoner on C, on which the prisoner obtained the money. It 
 was held that the prisoner was guilty of forgery. R. v. Stewart, 
 25 C. P. (Ont.), 440. 
 
 The instrument forged must have Home apparent validity, that 
 
206 
 
 MA(iISTI{A'rES MANUAL. 
 
 is, it must purport on the face of it to he good and valid for the 
 purpose for whicli it is created, and not he illegal in its very 
 frame, though it is iuunaterial whether if genuine it would be of 
 validity or not. U. v. liruiun, 3 Allen, 13 ; R. v. Puteman, R. & 
 li., 445. 
 
 An instrument which is declared bylaw to be wholly void, is 
 not the subject of forgery if on its face it affords evidence that 
 it comes within the law declaring it void. Tuylor v. Goldin;/, 
 L>.SQ. B. (Ont.), 1!)al. R. v. Gouhl, 20 C.P. (Ont.), loi). 
 
 It must be proved that the alleged forgery was intended to re- 
 present the handwriting of the person whose handwriting it ap- 
 pears to be, and is proved not to l»e, or that of a pt^rson who never 
 existed. The person whose name is forged is a competent witness, 
 but his evidence re(piires corroboration. 32 k, 33 Vic. chap. 1!), s, 
 o-fc; R. V. McDonald, 31 Q. B. (Ont.), 337; R. v. Giles, (> C.P. 
 (Ont.), 84. Whether he be or be not called as a witness, the hand- 
 writing may be [)roved not to be his by any person ac({uainted 
 with his handwriting, either from having .seen him write, or from 
 l)eing in the habit of corresi)onding with him; and under the 3:^ ic 
 33 Vic, chaj). 29, s. G7, cumpaiison of a dis[)iiteil writing with 
 any writing, proved to the satisfaction of the (Jouit to be genuine, 
 may be made l)y witnesses, and such writings and the eviilcnce of 
 witnesses respecting the same, may l)e submitted to the Court and 
 jury as evidence of the genuineness or otherwi.se of the writing 
 in dispute. The instrunu'nt must be made with intent to de- 
 fraud, which is the chief ingredient of the offence. It is not, how- 
 ever, necessary to prove an intent to defraud, any particular per- 
 son ; it is sutfieient to prove that the party accused did the act 
 charged with intent to defraud. 32 & 33 Vic, chiip. 19, s. 51. As 
 there must be evidence of an intent to defraud the writing of a 
 signature in sp(n't without any intention to defraud or pass it otf as 
 genuine, is not a forgery. A man may di-aw a promissory note for 
 any sum he pleases, and in favoin* of any person, and payable to 
 
S98 
 
 MAGISTRATES MANUAL. 
 
 him or to his (jider, or to bearer, and so lori"^' a.s it remains simply 
 as his oion promissory note, in his own possession, and chart^ing 
 no other person but liimself with ha}>ility lie may alter it at his 
 own free will in all oi any particulars. But when another person 
 becomes interested in the note, or discounts it, or receives it in 
 payment, it is then fraud and forgery to pass it off as containing 
 the names of persons who have not in fact signed or endorsed it. 
 See R. V. Cndrj, 7 C.P. (Out.), 239 ; K v. Dunlop, 15 Q. B. ((Jut.), 
 119 It is the intent to deceive and defiaud tliat the law con- 
 siders criminal, but where this intent exists it is innnaterial 
 whether any person is actually defrauded by the forgery, or that 
 any person should be in a situation to be defrauded by the act. 
 Ry.2i'aHh,-2l L. J. M. C, 147. 
 
 The offence t)f forgery is not triable at the Quarter Sessions. R. 
 V. McDonald, 31 Q. B. (Out.), 337 ; R. v. Dwniop, 15 Q. B. (Ont.), 
 118. 
 
 The offence of utter Inf/ the forged instrument is provided for 
 by the 32 & 33 Vic, chap. 1!), and made an offence of the .same 
 nature as the forgery itself. The words used in the statute are : 
 " offers, utters, disposes of, or puts off, knowing the same to be 
 forged, or altered," &c. A tender or attempt to pass off the instru- 
 ment will be sufficient, and there need not ])e an acceptance by the 
 other. It is an uttering if the forged instrument is used in any 
 waA so as to get money or credit by it, or by means of it, though 
 it is produced to the other party, not for his acce])tance, l)ut for 
 some other purpose. R. v. Ion, 21 L. J., M. C, KJO. Of course, the 
 forged character of the instrument, and the intent to dt^fraud 
 must be proved, as in forgery. It will be also necessaiy to prove 
 that the defendant kneiu the instrument to be forged, as for in- 
 stanct', by showing that he had in his po.ssession other forged notes 
 of the same kind. 
 
 The making on a glass plate, a positive impi-ession of an un- 
 dertaking of a foreign state, for the payment of money, by means 
 of photogj-aphy, without lawful authority or excuse, is a felony 
 within the 19th section of the Act. R. v. Rlnaldi, 9 Cox C C, 
 391. 
 
 Procuring the engraving merely of the royal arms on a plate, 
 
FORGERY. 
 
 299 
 
 in the same position as that in which it would })e found on a note 
 of a banking company in a complete state, a note of which com- 
 pany the prisoner had in his possession, comes within the mean- 
 ing of this section, and the prisoner is rightly convicted of the 
 offence. R v. Keith, G Cox C. C, 53.M. 
 
 A guarantee is the sulyect of forgery within the 23d section 
 though noVonsideration api)ear. E. v. Cm.e convicted of foiging such a 
 document. R. v. Jonce, 10 Cox C. C., 100. 
 
 An I. 0. U. is an undertaking foi- the payment of money. R. 
 V. Chambers, 12 Cox C. C, 10!) ; I.. R., 1 C. C. R., 341. 
 
 A " cleai-ance," or certificate of payment of dues, given by the 
 secretary of a friendly society, is not an acquittance, or recei))t 
 for money witliin this section. R. v. French, L. R., 1 C. C. R 
 217. 
 
 A document in the following foi-m : 
 
 " Thornton, October, 1.S67. 
 " Received of the S. L. H. Soc'y, the sum of £417 13s., on account 
 of my share. No, 8,071. 
 
 ''£i^7 13s. pp. S. A. 
 
 "Wm. Kay." 
 
 is a warrant, authority, or ivcpiest, for the payment of mon(;y 
 within this section. R. v. K/, [,. R., 1 C. C. R., 2.')7. 
 An instrument in the followinu' form : 
 
 "!t?3.50. "Carick, April 10,1803. 
 
 " John McLean, tailor, please give Mr. A. 8teel to the amount of 
 three dollars and fifty cents, and by so doing you will oblige me. 
 
 [Signed] Angus McPhail." 
 
SCO 
 
 MAGISTRATES MANUAL. 
 
 is an order for the payment of money, and not a mere reijuest. 
 R.v.Sfeel, Ui C. P. (Ont.), 01!). 
 But an instrument, as follows : 
 
 " Renfuew, June 13, LSOO. 
 " Mr. McK'iy : 
 
 " Sir, — Would you be good enough as for to let me have the 
 loan of !?10 for one week or so, and send it by the bearer imme- 
 diately, and mncli oblige your most humble servant, 
 
 "J. Almiras, p. P" 
 
 is not an order for the payment of money. R. v. Reopdle, 20 
 Q. B. (Ont.), 2(30. 
 
 " Mr. Warren: 
 
 "Please hit the bearer, Mrs. Tuke, have the amount of ten pounds, 
 and you will oblige me. 
 
 "B. B. MiT(nn-:LL." 
 
 is an order for the payment of money and not a mere re(iuest. 
 R. V. Tuke, 17 Q. B. (Ont.), 2!)G. 
 
 fraudulent markint} ok merchandize. 
 
 The -io Vic, chap. 32, provides that every person who with 
 intent to defraud, or enal)le another to defraud, any person, forges 
 or counterfeits any trade marii, or a|)plies, or causes or procures to 
 be applied any traile mark to any chattel or article not being the 
 production or merchantlize of any per.son denoted or intended to 
 be denoted by such trade mark, or not being the production or 
 merchandize of any person whose trade mark is so forged or 
 countei'feited, is guilty of a misdemeanor. 
 
 This Act repeals sections 30 and 8 1 of the Act respecting forgery, 
 32 k 33 Vic, chap. ID. 
 
 This Act was extended to Prince Edward Island by the 40 
 Vic, chap. 4. 
 
 (jaming and gaming houses. 
 
 The law does not deem it within its province to punish such 
 practices as gaming, unless either some fraud is resorted to or 
 
GAMING AND GAMING HOUSE>S. GAOLS. 
 
 301 
 
 rt'gulai- institutions are (established for the purpose, so as to 
 amount to a public nuisance. 
 
 The 40 Vic, chap. 32, makes provision for the prevention of 
 gambling' practices in certain public ^-onveyances. Section 1 
 provides that "whosoever, in any railway car or steaml)oat used 
 as a pul)lic conveyance for passengtsrs, by means of the game 
 commonly known as ' three card monte,' or of any othei' game of 
 cards, dice, or other instiument of gaml)ling, or by any device of 
 like character, ol)tains from any other person any money, chattel, 
 valuable security or property, shall be deemed guilty of tlie mis- 
 demeanor of having obtained the same unlawfully by false 
 pretences, and shall be liable to be punished liy imprisonment in 
 any gaol or place of confinement for any teiiu less than one year 
 with or without hard labour, and with or without solitary confine- 
 ment ; and every person aiding, encouraging, advising or con- 
 federating with any peison in the conniiission of the said offence, 
 shall be deemed guilty thereof, and liable to be ]iunished in like 
 manner as a pi'incipal therein, and any attempt to conniiit such 
 ort'( ■nee liy actually engaging any ])ers()n in any such game with 
 intent to obtaii money or other valual)le thing from him, shall be 
 a misdemeanor i»unishable in like manner as the offence itself. 
 
 The Act 3iS \'ic., chap. 41, is the general Act for su])piessing 
 gaming houses and to punish the keepers thereof. This statute 
 was amended l»y the 40 Vic, ehaji. 33. 
 
 On report in writing liy the chief constable, kc, that there are 
 good groiuids for l)elieving that any house, room or place is kept 
 or used as a common gaming house, tli(! magistrate may, by order 
 in writing, authorize the constable to enter or break o[)en the 
 doors of cojnmon gaming houses and seize all instruments, of 
 gaming, moneys, kc, and take into custody all persons found 
 therein. 
 
 The offence of keeping a gambling house comes within the 
 l)rovisions of the 32 k 33 Vic, chap 2!), s. 2(S. 
 
 GAOLS. 
 
 The Act 40 Vic, chaj^. 37, provides for the safe custody of pri- 
 
302 
 
 MAGISTRATES MANUAL. 
 
 soners, in places where the common gaols become temporarily 
 insecure. 
 
 The Lieutenant-Governor of any Province may by Proclama- 
 tion, published in the Gazette, declare that the common gaol of 
 any county is insecure, and name the gaol of any adjoining county 
 as the gaoi to which offenders within the first mentioned district 
 may be connnitted or sentenceut it may l)e ground for an a)>plication to 
 the merciful cousidc -ation of the Cjlovornment. R. v. Madden, 10 
 L. C. J., 844. 
 
 Ignorance or mistake o'" "-ct may in some cases be a defence, as 
 loi' instance, if a man intending to kill a thief in his own house, 
 kill one of his own family, he will be guilty of no offence. But if 
 intending to en to the public. If the act be done whei'e a <^reat niimbfi' of 
 persons may be oti'mded by it, and several see it, it is suliieient. 
 U.y. Tln,lh,uiii,:VA L.,I., iM".C^,:)S. 
 
 It nuist, howrvei', be in sin-ht (jf more than (jne person. Wrhh's 
 case, 1 Den. C. ('. R., 3.S.S. 
 
 Printing or })ublishin_i,f indecent or obscene b()i)!;s, prints oi' pic- 
 tures is a misdemeanor ateonunon law, and jjunishable with fijie or 
 imprisonment, or both ( li,\.('in'l, 2 Str., 7>SN); atid it is no defence 
 that the olijeet was not to corru])t. li.x. Ulckliii, L. H., 3 (^).P)., 3(t(). 
 
 Kee})in;^' a booth on a publie lace course, for the purpose of 
 showinj;iin indecent exhiliition. is an ott'ence at common law. R. 
 V. Saamlcrs, L. R., 1 Q. B. D., 1."). 
 
 INiUAXS. 
 'J'he Act 3!) Vic, chap. l.S, amends and consolidates the laws 
 
804 
 
 MAGISTRATES MANUAL. 
 
 vesp('ctin<^ Iinlians. The provisions of this Act are too long to be 
 inserted here. 
 
 INDICTABLE OFFENCES. 
 
 All treasons, felonies, and misdemeanors, misprisons of treason 
 anrl felony, whether existing at common law or created by statute, 
 are the sulijects of intlictment ; so also are all attempts to commit 
 any of these acts. 
 
 All crimes involve the elements of ii'ill. (■vhiiivdl intcrit'iini , or 
 TDdHcr. To make a person a crinvinal, the intention must be a 
 state of mind forbidden by the law. For instance, a ]>erson inno- 
 cently littering a forged note, not intending to defraud, commits 
 11(1 ciimt' ; but if there is such intention the act is stampeil with 
 the character of crime. When tlu' law expressly declares an act 
 to be criminal, the (picstion of intention or malice need not be 
 considcrcil. Malice is found not only in cases where the mind is 
 actively or jiositively at fault, as where then^ is a deliberate design 
 to defraud, but also wheie the mind is passively or negatively to 
 blame— that is, wliei'e there 's cnlpable or criminal inattention or 
 negligence. It is usual to lay down that malice is eitlxM' r.cy^/v.s'.s' 
 oi' /'y* /('('/, as whei'e a ]iei'son with a deliberate mind and formed 
 design kills another; {'!) IiDplit'd or in /c", as where one wilfully 
 poisons another, though no particular eunuty can be ])rove(l, or 
 wher»^ one gives a perfect stranger a blov,' likely to ])roduce (h-ath. 
 Here there is a wilfid doing of a wrongful act without lawful 
 excuse, and the intention is an inference ol' law resulting fi'oni 
 the doin^ the act. The law infers that vvvvy man intends the 
 neccHsary conse(|uence of his owna-et. Malice in its ordinary sense 
 of ill-will Ol- malevolence, is not essential to a crime ; malice in its 
 legal signilication of criminal intention is. For instance, h gal malice 
 may coustituti^ liomi<'ide murtler, though thei'c may be an entire ab- 
 sence of ill-will; where there is ill-will oi' malevolence, honiicide 
 which would otherwise be manslaughter is constituted murder, lu- 
 tentionsometimesdeteiiuines th(^criminulityof an act. Korinstance, 
 A takes a horse from the owner's stables without his consent. If 
 lu' intend to frauduh^ntly deprive the owner of the property, and 
 ajipropriate the hor.se to himself, he is guilty of the crime of lar- 
 
INDICTABLE OFFENCES. 
 
 305 
 
 ir 
 
 ceny ; if he intend to use it for a time and then return it, without 
 depriving the owner of his property thei-ein, it will only be a 
 trespass or civil injury. 
 
 A mere naked intention, however, is not criminally punishable. 
 There must be some cariying out, or attempt to carry out, that 
 intention into action. Thus although A makes up his mind to 
 shoot B, and confesses this resolution, the law is powerless to deal 
 with him ; but directly he does anything in pursuance of that 
 di'sign he is within the grasp of the law. 
 
 If there be a present criminal intention, the prisoner is not ex- 
 culpated because the results of the steps he takes t(i carry out that 
 intention are othei- than those he anticipated or intended. For 
 example, if A, intending to shoot B, .shoot C, mistaking C for B, 
 he is criminally liable ; and if A .shoots at B's poultry and V)y 
 accident kills a man, if his intention was to oceal the poultry he 
 will be guilty of murder. See Hai'rls' Grim. Law, 1, 2. 
 
 An attempt to commit a crime nuist be distinguished fi'om an 
 intention to comnut it. Every attempt to commit a crime is itself 
 an indictable misdemeanor at common law. 
 
 An attempt to conunit a crime, whether the crime attemj»ted be 
 misdemeaiior or felony, is a misdemeanor. R. v. CoiinoUij, 2(3 
 (^.B. (Out.), 822; R. v. Go_ff, !) C.P. (Out), 438. S.. inciting an- 
 other to comnut a misdemeanor, as endeavouring to induce a 
 I ei'son to take a false oath, is a misdemeanoi'. It. v. Qlenwnl, 2(i 
 Q.B. (Out.), 2!)7. 
 
 The act of attempting to conunit a felony nuist bi^ immediately 
 and directly tending to the execution of the |>rincipal crime, and 
 conuuitted by tins prisoner under such cinrnmstances, that he has 
 the power of carrying his intention into exi-cution. R. v. Mi'dimt, 
 2.S Q. B. (Out.), 514. 
 
 It may be observed that the ;{2 v^ JJ.S Vic, chap. 2!), .s. 4!), pro- 
 vides tliat a person charged with any felony oi' misdemeanor, may 
 lie convicted of an (itte)ii})t to commit the same, .ind no pel son 
 tried in this manner shall be liable to be afterwards jjro.secuteil 
 for conunitting or attempting to conuiut the felony or misdemeanor 
 for which he was so tried. See R. v. Weltster, 9 L. (J. R, IDO. 
 
 A disregard of or non-compliaJico with a positive connuand in 
 20 
 
306 
 
 MAGISTRATES MANUAL. 
 
 an Act of Parliament is indictable as a misdemeanor. R. v. Toron- 
 to St. Ry. Co., 24 Q. B. (Ont.), 454. 
 
 By the 32 & 33 Vic, cliap. 29, s. 50, although a felony appears 
 on the facts given in evidence, a misdemeanor with which the 
 party may be charged will not merge therein, and the party may 
 still be convicted of f^uch misdemeanor. But a party cannot, un- 
 der this section, be convicte 
 
 he is presumed to 1h? incapable of crime, and this'presuinption can- 
 not be rebutted by the cleai'cst evidence of a mischievous discre- 
 tion. Between seven and fourteen he is still ],rima facie, deemed 
 by law to be incapable of crime ; but this presumption may be 
 rebutted by clear and strong evidence of such mischievous dis- 
 cretion. An infant under fourteen cannot, however, be convicted 
 of rape as a principal, but he may as a principal, in the second 
 
 degree. 
 
 INSANITY. 
 
 No act is a crime if the ]ierson who does it is at the time when 
 it is done prevented either by dufective mental powers or by any 
 disease affecting' his mind from knowing the nature and (luality of 
 his act, or from knowing that the act is wrong, or from controlling 
 his own conduct, unless the absence of the power of control has 
 been produced by his own default. But an act may bo a crime, 
 although the mind of the person wIkj does it is affected by disease, 
 if such disea.se docs not in fact produce upon bis mind one or 
 other of the effects above mentioned in reference to that Act. 
 
 Every j)e)'son is presumed to be .sane, and to l)e responsible; for 
 his acts. The l)urden of proving that he is irres))oiisil>le is upon 
 the accused person, but the jury may have regard to his a])|»ear- 
 ance and behaviour in coui't. It. v. Oxford, !> C \r P., .')25; R. v. 
 Stokes, 3 C. & K., 185 ; Stepliens J)ig., 17-lS-l!). 
 
 A peison sodeficient in understanding as not to comprehend the 
 proceedings on his trial, cannot be convicted of any offence, the 
 trial must be stopped. 
 
 A deaf nmte being tried for felony, was found guilty, but the 
 jury found also that he was incajiabje of tmdcirstandiiig, and did 
 not understand the proceedings on the trial. It was held that ho 
 could not be convicted, but nnist be detained as a non-sane person 
 during the Queen's j)leasure. R. v. Berry, L. R., 1 Q. \^., T)., 447. 
 
 The 82 & 88 Vic, chajx 29, s. !)!) and following .sections relate 
 to in.sane prisoners. The lOoth section of this Act was amended 
 by the 8() Vic, chap. ')!. 
 
 In New Brunswick the 1 R(!V. Stat., chap. HO, s. 1 . enacts that 
 "any person so disordered in his .senses a.s to be dangerous when at 
 large, n)ay, on evidence of the fact, be apprehended and conveyed. 
 
308 
 
 magistrates' manual. 
 
 to the Provincial Lunatic Asylum on a wairant issued by any twa 
 Justices of any county." " Evidence" in this statute has been held 
 to mean viva voce evidence, and the fact cannot be proved by 
 affidavit. The evidence must also be given before the two Justices 
 acting together, and it is not sufficient that an affidavit be made 
 ))efore one and shewn to the othoi-. McGu irk v. RicJiMrd, 2 Pugsley , 
 240. 
 
 INSOLVENCY. 
 
 Under section 140 of the Insolvent Act of 1875 (38 Vic, chap. 
 16), certain acts done by a^i 'r-olvent with intent to defraud or 
 defeat the rights of his v red' . re declared to be misdemeanors. 
 
 The last clause applies to p;- ^^ ()ledging or disposing of other- 
 wise than in the ordinary wny of hijs trade, any property, goods or 
 effects the price of which reiaanv imp,' ' by him during the three 
 months preceding the insolvency. An in^Mlvit may be guilty of 
 an offence under this section, although the goods are not disposed 
 of to his own use, but to satisfy creditors, and although the term 
 of credit thereon has not expired at the time of the insolvenc}'. 
 7^. v. AVrr, 2() C. P. (Ont.), 214. 
 
 LAHCKNV, E-MUHZZLE-MENT, and ()HTAININ(i I!V lAI.SE PHETFNCES. 
 
 The Act res]iecting larceny and other slinilai' offences, is the 32 
 \: .'i3 Vic., chap. 21. This Act was amended by the 35 Vic, chaps. 
 33 \s 35 ; the 38 Vic, clia)). 40; and the 40 Vic, chap. 29. 
 
 It was extended to Prince Edward Island by the 40 Vic,, chap. 
 4; to the District of Keewatin by the 30 Vic, chaj). 21; to the 
 North-West Tei'ritories by the 38 Vic, chap. 4!) ; to British Co- 
 lumbia by the 37 Vic,elmp. 42; and to the Pi'ovince of Manitol)a 
 by the.'U Vic, chap. 14. 
 
 Theft is the wrongfully obtaining possession of any movable 
 thing which is the prciperty of some other person, and of .some 
 valui', with the fVautbdent intent entirely to dei)rive liim of such 
 thing.and have ordeal with it as the property of .some per.son other 
 than the owner. CV. Law. (\)nn's., 3rd Re[)ort. 
 
 Independently 01 the provisions of the statute, 32 vV: 33 Vic, 
 chap. 21, tlie goods taken nuist \n' jx'rKoiial goods, for none other 
 
LARCENY, EMBEZZLKMENT, &C. 
 
 309 
 
 some 
 such 
 »llior 
 
 Vic, 
 
 )tlu'r 
 
 can be the subject of larceny at common law. It is to be observed, 
 however, that this statute specifies various subjects of larceny, 
 which were not such at the common law. Sections 10 to 14 relate 
 to the stealing of cattle and other animals. Sections 15 to 19 as 
 to written instruments. It was lu'ld ])y the Court of Queen's 
 Bench in Montreal (Dorion, C. J., and Sanborn, J., dissenting) that 
 an unstamped promissory note is a valuable security, within the 
 15th section, and when the payee of such note stole it from 
 the makers, and afterwards stamped and issued it, without right 
 or authority, he was held {)roperly convicted of larceny. R. v. 
 Scott, 21 L. C, J., 225. 
 
 Sections 20 to 27 relate to the larceny of things attached oi" 
 growing on land. These latter, at common law, could not be the 
 subjects of larceny, as they were not personal goods. 
 
 Section 22 of 32 & 33 Vic, chap. 21, applies to the whole or 
 any part of any tree gvoiving and not cut down or made 
 into cordwood. Under the 25th section it seems the offender 
 must have knoivlcdge of the possession, and, reading this section 
 in connection with the others, it seems that, wiiatever trees, &c., 
 are made the subject of larceny in the other sections are, if found 
 in the possessi(jn, or on the premises of any one, to his knowledge, 
 and without accounting for how he came by the same, to subject 
 such ])erson to a conviction for so having thera. And that a ti'ee, 
 cut by the proprietor into cordwood, and taken away by some 
 one after it has been made into cordwood, is, if stolen, a mere 
 larceny of goods and chattels, and does not come within the 25th 
 section of the Act, nor within the hi-ading of thest! sections. Even 
 if the section does apply to trees cut by the (jwner and lying on 
 his land as he felled them, still it does not apply to cordwood, 
 which is not " the whole or any part of any tree." R. v. Caswell^ 
 33 Q. B. (Out ), 303. 
 
 Things attached to the land, and which are not eml)raced in 
 these sections, are not the subjects of lai'ceny, unless severed from 
 the freehold, and unless between the time of severance and the 
 taking, the property thei-ein vests in the ownc^r of the freehold. 
 Where the severance and the taking are one continuous act, there 
 can be no larceny. R. v. Ihwnley, L. R., 1 C. C R., 315. 
 
SlO 
 
 MAGISTRATES MANUAL. 
 
 Partridges Jjdtched and reared by a common hen, while they 
 remain with her, are the subjects of larceny {R. v. Shickle, L.R., 
 1 C. C. R-, 158 ; and section 12 of this statute now applies to any 
 bird oixlinarily kept in a state of confinement, or for any domes- 
 tic }mr])os. 
 
 Sections 28 to 37 of this statute relate to larceny from, mines, 
 or of ores or minerals. 
 
 At common law also, the taking must be of the goods of 
 another. Therefore a man cannot steal his own goods, and hus- 
 band and wife being one in law, they cannot steal each other's 
 goods. 
 
 If any other person assists a married woman in dealing with 
 things which belong to her husband in a manner which would 
 amount to theft in the case of other persons, such dealing is not 
 theft (R. V. Avery, Bell, 150), unless the person so assisting com- 
 mits or intends to commit adultery with the woman (R. v. Mut- 
 ters, L. & C, oil), in which case he, but not she, commits theft. 
 But this exception does not apply to the case of an adulterer or 
 person intending to commit adultery, who assists a married woman 
 to cai'iy away her own wearing apparel only from her husl)and. 
 R. V. Fitch, I). & B., 187. 
 
 So also one joint tenant or tenant in conunon could not steal 
 the goods which belonged to himself and the others jointly. Now, 
 however, section 88 of the statute provides that, whosoever being 
 a member of any co-partnership owing any money or other pro- 
 perty, or being one of two or more beneficial owners of any 
 money or other propei'ty, steals, embezzles, or unlawfully converts 
 the same, or any part thereof, to his own use or that of any per- 
 son other than the owner, shall be liable to be dealt with, tried, 
 convicted and punished, as if he had not been or were not a mem- 
 ber of such co-partnership, or one of such beneficial owners. It 
 is to l)e observed, however, that the Court of Queen's Bench in 
 Montreal has recently held that this statute is nugatory, and that 
 a partner cannot be convicted under it either of larceny, embez- 
 zlement, or uidawful conversion. R. v, Lowenbruck, 18 L. C. 
 
 There must also be an actual or constructive taking of the goods,. 
 
qpp 
 
 LARCENY, EMBEZZLEMNT, &C. 
 
 311 
 
 as larceny involves a trespass. Where the owner by mistake 
 gives the possession of the goods, but the defendant knew the 
 mistake, and intended from the first to steal ; this is a sufficient 
 taking. R v. Middleton, L. R., 2 C. C. R., 38. 
 
 There must also be a carrying away ; but as the felony lies in 
 the very first act of removing the property, the least removing of 
 the thing taken from the place where it was before, with intent 
 to steal, is a sufficient asportation. See R. v. Townley, L. R., 1 C. 
 C. R.. 319. 
 
 To constitute larceny, there must be a felonious intent to take 
 the goods of another against his will, with intent to deprive the 
 owner of his property therein. R. v. McGiuth, L. R., 1 C. C. R., 
 210-11 ; See also, R. v. Prince, L. R., 1 C. C. R, 150 ; R. v. Bailey, 
 L. R., 1 C. C. R., 347. 
 
 Returning the goods may be evidence to negative the felonious 
 intent at the time of taking them, but it is no defence that the 
 prisoner intended to return them when taken. 
 
 A finder of lost goods who converts them connnits theft if at 
 the time when he takes possession of them he intends to con- 
 va'rt them, knowing who the owner is, or having reasonable 
 grounds to bolic've that he can be found. Such coiiversicjii is not 
 theft ((() if at the time when the finder takes possession of the 
 goods he has noUsuch knowledge or grounds of belief as afore- 
 said, altliough he ac(iuires them aftci- taking possession of the 
 goods and before resolving to convert them ; or (h) if he does not 
 intend to convert the goods at the time when he takes possession 
 of them, whether he has such knowledge or giounds of belief or 
 not at any time. If the circumstances are sucli as to lead the 
 finder reasonably to l)elieve that tiie ownei' intended to al)andon 
 his property in the goods, the finder is not guilty of theft in con- 
 verting them. See R.y.Thurboni, 1 Den., 387 ; R. v. Glyde, L. R., 
 1 C. C. R., 139. 
 
 If the thing tak(>n and carried away is on the body or in the 
 innneiliate ])resence of the jter.son from whom it is taken, and if 
 the taking is l)y actual violence, intentionally used to overcome 
 or to j)reventhis resistance, or liy tlnujats of injury to his person, 
 propeity or reputation, the ofi'ence is robbery. Robbery is in fact 
 
312 
 
 MAGISTRATES MANUAL. 
 
 larceny, aggravated by circumstances of force, violence or putting 
 in fear, and a party charged with robbery may be convicted of 
 laroeny, as the latter crime includes the former. R. v. McGrath, 
 L.R, IC.C.R., 210-11. 
 
 For these reasons no sudden taking or snatching of property 
 unawares from a person is sufficient to constitute robbery, unless 
 some injury be done to the person or there be a previous struggle 
 for the possession of the property, or some force Tised to obtain it, 
 antl the fear must precede the taking. Where there is no force or 
 fear, and the property is taken suddenly, the offender is guilty of 
 the offence of stealing from the person. Section 39 of the statute 
 32 & 33 Vic, chap. 21, provides for both the offences of robbery 
 and stealing from the person. So by section 40 a person charged 
 with robbery may be convicted of an assault with intent to rob, 
 and by section 41 an assault with intent to rob is felony. 
 
 In robbery there must be a complete removal of the thing from 
 the person of the party robbed — both a taking and a carrying 
 away. An assault with intent to rob is distinguished from rolj- 
 bery in this that in the former there is no taking or carrying 
 away, the purpose not being effected. A person charged with an 
 assault with intent to rob cannot be convicted of a common as- 
 sault. R. V. Woodhall, 12 Cox, 240. 
 
 If the po.ssession of goods is lawfully obtained from the owner 
 there can be no larceny, norcan there be any larceny if the property 
 in the goods passes to the wrong doer. Where the owner intends 
 to part with the property, though he may form such intention in 
 consequence of some deceit or misrepresentation, there is no larceny, 
 but there may be an obtaining by false pretences. But where the 
 owner does not intend to part with the goods or money taken hy 
 the defendant, and the latter fraudulently gets possession of them, 
 intending not to pay for them, he is guilty of larceny. Where the 
 owner voluntarily parts with the possession intending to vest tli(i 
 pro()erty in the defendant, because he relies on the defendant's 
 fvonum to pay for them, he cannot be convicted of larceny. R.v, 
 Bertl^s, 13 C. P. (Ont.), 610. 
 
 If, however, the owner transfers the possession under a mistake 
 
LARCENY, EMBEZZLEMENT, &C. 
 
 313 
 
 and the prisoner, knowing the mistake, intends to steal, he is guilty 
 of larceny. R. v. Middlcton, L. R., 2 C. C. R., 38 ; (mfc, p. 311. 
 
 Where a servant is entrusted with his master's |)roperty with a 
 general or absolute authority to act for his master in his liusiness, 
 and is induced by fraud to part with his master's property, the 
 person who is guilty of the fiaud, and so obtains the property, is 
 guilty of obtaining it by false j)retences and not of larceny ; because 
 to constitute larceny there must be a taking against the will 
 of the owner, or of the owner's sci-vant duly authorized to act 
 generally for the owner. But where a servant has no such 
 general or absolute authority from his master, but is merely en- 
 trusted with the posses.sion of his goods for a special or limited 
 purpose, and is tricked out of that possession by fraud, the person 
 who is guilty of the fraud, and so obtains the property, is guilty of 
 larceny, because the servant has no authority to ))aii with the 
 property in the goods except to fulfil the special purpose for which 
 they were entrusted to him. R. v. Prince, L. R., 1 C. C. R., 150. 
 
 It is not to be inferred from the foregoing that the offender will 
 entirely escape criminal liability. The l)3rtl section of this statute 
 provides that a person indicted for the misdemeanor of obtaining 
 money by false pretences shall not be entitled to an ac({uittal 
 though it is proved that he obtained the property in such manner 
 as to amount to larceny. 
 
 According to the connnon law, and as illustrative of the dis- 
 tinction between hirceny and embezzlement, if a servant received 
 money on account of his mastei* and put in his pcjcket befoi'e it 
 reached his master's custody (as if a clerk in a shop on receiving 
 money from a customer put it into his pocket before putting it 
 into the till), he could not be convicted of larcen}', for tlu; money 
 was never in the master's possession, but if the servant placed it 
 in the till, his afterwards taking it out of the till, with a feloni(jus 
 intent, would be larceny, and it is still larceny. R. v. Hcnnessij, 
 35 g, B. (Ont.), 003. 
 
 Now, however, section 70 of the statute removes even this 
 distinction. If a clerk, or servant, or person employetl for the 
 p\irpose or in the capacity of a clerk or servant, fraudulently 
 embezzles any chattel, money or valuable security, delivered to, or 
 
314 
 
 MAGISTRATES MANUAL. 
 
 received, or taken into possession by him for, or in the name, or 
 on account of his master or employer, he shall he deemed to have 
 feloniously stolen the same from his master or employer, although 
 such chattel, money, or security was not received into the posses- 
 sion of such master or employer otherwise than by the x'tual 
 possession of his clerk, servant, or the person so employed. This 
 section, however, only applies to cases where the chattel, money 
 orvaluable^security is received from third personsonaccount of the 
 master, and not where it is received dii'ectly from the master. R. 
 V. Cii/inviint<, 4U. C, L. J., 1(S2. 
 
 There may, however, be an embezzlement by a clerk or servant 
 of money received frovi as well as money received for his master. 
 The dirterence is that in the first case the offence is a larceny at 
 common law, when not a mere breach of trust. Under section 
 70, however, of the t]2 ik, 83 Vic, chap. 21, it is not necessary that 
 the servant should receive tht; money by virtue of his employment. 
 Therefoi'e,though the servant receivt's the money without authority 
 and without any duty to receive, he is still liable undei- this 
 section. See Arch. Cr. Pldg., 4o3. But the money must be 
 received " for, or in the name, or on the account, of the master or 
 employer." M. v. Culhnii, L. R., 2 C C. K, 28. As to receiving 
 '' on account of the mastei- " Avithin the meaning of this section. 
 See R V. Gale, L. R., 2 Q. B. D., 141. So also by section 74, if it 
 is proved that a jjcrson charged with embezzlement, took the 
 propi'rty in question in such manner as to amount to larceny, he 
 shall not, by reason thereof, be entitled to be acquitted, but may 
 VjB convicted of the larceny ; and so vice versa, a person charged 
 with larceny may be convicted of embezzlement or fraudulent 
 ap])lication or disposition, t^o also by the common law a l)ailee, 
 or person lawfully acquiring the possession of property for some 
 specific purpose, could not be convicted of larceny in respect of 
 any subsequent felonious conversion, if his intention at the time 
 of obtaining possession wei'e innocent. See Pease v. McAloon, 
 1 Kerr, ll(j. Now, however, by section 3 of this Act, whosoever 
 being a bailee of any chattel, money or valuable security, fraudu- 
 lently takes or converts the same to his r^vn use, or to the use of 
 any jjcrson other than the owner thereof, although he do not break 
 
LARCENY, EMBEZZLEMENT, ilC. 
 
 315 
 
 bulk or otherwise determine the baihnent, is guilty of larceny, 
 but the section is not to extend to any offence punishable on sum- 
 mary conviction, and finally by section 90 of 32 dt 33 Vic, chap. 
 21, "^on the trial of any pei-son for larceny it appears that the 
 proj. -.i-y taken was obtained by such person by fraud, U2i. clerk oi' ser- 
 vant or person employed in the ca})acity of a clerk or servant. 
 
 It is a question for a jury whethei' a person accused of enib'Z- 
 zlerr'ent is a clerk or servant or not. See R. v. Negus, L. R., '2 C. 
 C. 34. A clerk or servant is a person bound either by an ex- 
 p' ^ntract of service, or by conduct implying such a contract, 
 
 to obey the orders and sulnnit to the control of his master in the 
 transaction of the business which it is his duty as such clerk or 
 servant to transact. Ih.; R.v. Tite, L. & C, 33; R.v. Foulhea, L. R., 
 2 C. C. R., 152. 
 
 A man may be a clerk or servant (1) although he was ap- 
 pointed or elected to the emi)loyment in respect of which he is a 
 clerk or servant by some other person than the master whose 
 orders he is bound to obey. McDonald's cctse, L. & C, (So. 
 
 2. Although he is paid for Ids services by a conunission or 
 share in the ^ rofits of the business. R. v. Garr, R. & R., 108. 
 
 3. Although he is a mend^er of any co-partnership, or is one 
 of two or more beneficial owners of the })ro}»erty embezzled. 32 
 & 33 Vic, chap. 21, s. 38. 
 
 4. Although he is the clerk or servant of more masters than 
 one. R. V. Spencer, R. & R., 299. 
 
 5. Although he acts as clerk or servant only occasionally, or 
 only on the particular occasion on which his offence is connnitted. 
 R. V. Hughes, Moo. C. C, 370. 
 
 But an agent or other person who undertakes to transact busi- 
 
:316 
 
 MAGISTRATES MANUAL. 
 
 ness for another without undertaking to obey his orders is not 
 necessarily a servant, because he receives a salary, or because he 
 has undertaken not to accept eni))loyment of a similar kind from 
 any one else, or because he is under a duty, statutory or other- 
 wise, to acount for money or other property received by him. 
 R V. Callahan, 8 C. & P., 154 ; Stephen's Dig., 243-4. 
 
 The offence of embezzlement cannot be conniiitted by the ap- 
 j)ropriation of })roperty which does not belong to the master of 
 the alleged offender, although such property may have been ob- 
 tained by such alleged offender by the impropei' use of tlu; pro- 
 perty entrusted to him by his master, but property which does 
 belong to the master of the offender may be end)ezzled, although 
 the offender received it in an irregular way. R, v. Culluoa, L.R., 
 2 C. C. R., 28 ; IL V. Glover, L. & C, 4()(). Under our statute the 
 pro|)erty nmst be delivered to or received or taken into i)ossession 
 by the servant for or in the name or on account of his master or 
 employer. See ante, \). IU4. 
 
 The infei'ence that a prisoner has em})e/./led projterty by frau- 
 dulently convei'ting it to his own use may be drawn from the 
 fact that he has not i)aid the money or delivered the property in 
 due course to the owner, or from the fact that he has not ac- 
 counted for the money or other property which he has received, 
 or from tlie Tact that he has falsely accoinited for it, or from the 
 fact that he has absconded, or from the fact that upon the exami- 
 nation of liis accounts there a})peared to be a general deficiency 
 unaccounted for ; but none of these facts constitutes in itself the 
 offence of end»ezzlement, nor is the fact that the alleged off'emUu' 
 rendered a correct account of the money or othor property en- 
 trusted to him inconsistent with his having end)ezzled it. Ste- 
 l)hen's Dig., 248-0. 
 
 In order to su|)p()rt a chai'ge of olttaining money by false pre- 
 tences ((r) there must be a jjretence ol' an exist iiiy (net ; (b) it 
 must appear that the i>arty defrauded has been in(biced to part 
 with his money by the i)retence ; and (c) the pretence must be un- 
 true, li. V. Crab, 11 Cox, 85. 
 
 The prisoner must represent some fact as existing which does 
 .not exist, and a mere jyrom'm' by the prisoner as to futuj'e con- 
 
LARCENY, EMBEZZLEMENT, &C. 
 
 3ir 
 
 
 duct will not render him liable-, the prosecutor relying upon the 
 promise rather than being deceived l»y the representation. R. v. 
 BertleH, 13 C. P. (Ont.), G07. 
 
 Not onl}^ is it necessary that there be a false pretence of an 
 existing /act, but the prosecutor uuist be induced to])art with his 
 money in consecjuence of the false pretence, it must l)e the motive 
 operating on his mind and inducing him to part with his money, 
 in other words the ])rosecutor must be deceived by the re]U'esen- 
 tation. 71*. v. Gcmwe/I, 2(i Q. B. (Ont.), 312 ; R v. Counor, 14 C. 
 P. (Ont.), .529. If it is false to his knowledge it does not coine 
 within the statut(>. R. v. il///^.s-, 7 Cox 0. 0., 208. As to what 
 is sufficient, see /»'. v. Hov.nrth, 11 Cox V. C., 5SS. 
 
 The crime of olttainiiig goods by false pretences is c()m]>lete, 
 although at the time when the prisoner made the pretence 
 and obtained the goods he intended to pay for them when 
 it should b(> ill his power to tain " in the :}2 \- X] Vic, chap. 21 , s. !):}, does not 
 mean obtain the loan of, but obtain the property in any chattel, 
 and to constitute an obtaining by fnlse ])retences it is essential that 
 there should be ;m intention !:> de)iri\c tiie owner wliolly of the 
 property in the chattel, ami an obtaining by false pretences the tisc 
 of a chattel for a limited timeoidy, without an intention tod<'pi'i\'e 
 th(! owner wholly of the '-liiittel is not an obtaining by false piv- 
 tences within this section. /;, v. Kilhitm, L. H„ 1 C. C. 11 , 2()1. 
 liut now section !)4 of the Act provides that " Whosoever by JUiy 
 lalse pretence causes or jtrociu'es any money to be paitl, or any 
 chattel oi- valuable secm'ity to lu> delivered to any other pei-son 
 for the use or benefit or on account of the person making such 
 false pretence, or of any other j)erson with intent to defraud, shall 
 
318 
 
 magistrates' manual. 
 
 be deemed to have obtained such money, &c., within the meaning 
 of the statute." 
 
 The expression " false pretence " in the statute means a false 
 representation, made either by words, by writing or by conduct, 
 that some fact exists or existed, and such a representation may 
 amount to a false pretence although a person of common pru- 
 dence might easily have detected it.; falsehood by enquiry, and 
 although the existence of the alleged fact v\as in itself impossible. 
 
 But the expression "false pretence " does not, as we have al- 
 ready seen, include a promise as to future conduct, not intended 
 to be kept unless such promise is based upon or implies an exist- 
 ing fact falsely alleged to exist, or such untrue commendation, or 
 untrue depreciation of an article which is to be sold as is usual 
 between sellers any false pret(!nces. M. v. Wnlgiiuy,^ F. \' F,, 888. 
 
 Where money has l»een obtained on a forged chefjue knowing- 
 ly, it does not amount to larceny, but to obtaining money by false 
 piel.nces, 11 v. Pr\vc(\ L. R., 1 C. C, R., loO. 
 
 'J'lu' falsi' pi'<'tenc(^ may be by a letter written by the prisoner, as 
 well as by express woi-ds. If the words of the letter fairly and 
 
LARCENY, EMBEZZLEMKNT, &C. 
 
 319 
 
 reasonably contain a statement of a false pretence, the prisoner 
 may be convicted, li. v. Cooper, L. R., 2. Q. B. 1)., olO. 
 
 On an indictment for obtaining money by false pretences it was 
 proved that the prisoner, a travelling hawker, represented to the 
 prosecutor's wife that he was a tea dealer from Leicester, and in- 
 duced her to buy certain packages, which he stated to ontain 
 good tea, but three-fourths of the contents of which was not tea 
 at all, but a mixture of substances unfit to drink, and deleterious 
 to health. It was [)roved that the prisoner knew the real nature 
 of the contents of the |)ackages, and that he designedly, falsely 
 pretended that it was good tea, with intent to defraud. It was 
 held that the prisoner was guilty of obtaining mone}' V)y false 
 pretences. R. v. Foster, L. R., 2 Q. B. I)., 801. 
 
 As to the distinctions between hireeny and eml)ezzlement, and 
 the t)btuining of money, &c., by false pretences, it is the essence of 
 the offence of larceny, that tho projierty be taken against the will 
 of the owner. R. v. Prince, L. R., 1 C. C.R., 154. 
 
 The owner of the thing stolen has tio intention to part with 
 his property therein to the person taking it, although he may in- 
 tend to part with the possession. If taken by the consent of the 
 owner; for instance, if he intends to part with tlie jirojierty ; no 
 larceny will be connnitted. 
 
 In false pretences, the jiroperty is obtaineil with the ctMisent of 
 the owner, the latter intending to part with his projierty, but the 
 intention is induced by fraud. It therefore necessarily difters 
 from lai'ceny in the fact, that the property in the ch^ittel passes 
 to the person obtaining it, and it may, though perhiijis not ne- 
 cessarily, differ from larceny in this, that the owner is inihiced to 
 voluntarily part with his property in conse(iuenco of some false 
 pretence of an existing fact mado by tlie person obtaining the 
 chattel. Jiut the crime of obtaining money by false pretences is 
 similar to larcenv in this, that in both oH'cnces there must lie an 
 intention to deprive the owner wholly of his property, in the 
 chattel. See R. v. KiJham, L. li., I (1. C. R., 201. 
 
 Embezzlement consists in obtaining the lawful po.ssession of 
 goods, &c., without fraud or any false pretences, as upon a eon- 
 tract, or with the consent of the owner in the ordinary course of 
 
320 
 
 MAGISTRATES MANUAL. 
 
 duty or employment, or independently of such employment, and 
 subsequently converting the goods, with a felonious intent to 
 deprive the owner of his property therein. It differs from lar- 
 ceny in this, that the possession of the goods, &c., is lawfully 
 obtained in the first instance, without the ingredient of trespass, 
 and the conversion takes place while the privity of contract 
 exists between the parties. 
 
 Under 32 tJc 33 Vic, chap. 21, s. 121, persons stealing property in 
 one part of the Dominion iivy Ix! tried and punishe- 
 lishing anything which rendtn-s another i-idiculous, oi' contempt- 
 il»le is indictable, except it l)e within the fair limits of litei'ary 
 criticism. So words used of a nuin which impair or huit his 
 trade, or livelihood, as to call a physician a([uack, are indictable. 
 To make a writing a libel it nuist be published, though by publi- 
 cation is not neces.sarily meant in a newspaper, tor connuunication 
 to a single person, in a piivate letter, is a publication. No woi'ds 
 spok(Mi, howt'vei- seui'i'ilons, even though spoken personally to an 
 individual, are the subject of an indictment, unless they dircictly 
 tmd to a breach of the peace ; for exampK', by inciting to a chal- 
 lenge. We musthei'c except words seditious, l)lasphemous, grossly 
 immoral, or uttered to a magistrate while in the execution of his 
 duty. 
 
 The publication of any obscene writing is unlawful and in- 
 dictal>le, and itis nodefinice that theol»ject of the party was laud- 
 aide, for, in case of libel, the law presumes that the party intend- 
 ed what the libel was calculated to etiect. J{.\. ll'idihi, L. R., 
 .•{ Q. B., 3()0. 
 
 Proceedings before magistrates, under the 32 k> 33 Vic, chap. 
 21 
 
322 
 
 MAGISTRATES MANUAL. 
 
 31 " in relation to summary convictions and orders " are strictly of 
 a judicial nature, and the place where such proceedings are held 
 is an open court. The defendant, as well as the prosecutor, has a 
 right to the assistance of an attorney and counsel, and to call 
 what witnesses he pleases, and both parties, having been heard the 
 trial and judgment may lie lawfully made the subject of a 
 printed report, if that report is impartial and correct. Lewis v. 
 Levy, E. B. & E., 537. The same rule wuidd apply to investiga- 
 tions by magistrates in the case of indictable offences, so long as 
 the magistrate continues to sit in ojten court, but if he chooses to 
 carry on the proceedings in ])rivate, as he may do under section 3') 
 of the 32 & 33 Vic, chap. 30, then the publication of the pro- 
 ceedings would be unlawful. 
 
 A Justice of tlie Peace may issue his warrant to arrest a 
 party chai-ged with libel. Butt v. Conant, 1 B. 6z B., 54-8. 
 
 The 37 Vic., chap. 38, relates to the crime of libel. Undei- 
 this statute, publishing, or threatening to publish, any libel with 
 intent to extort money, is a misdemeanor, so, under section 2. ma- 
 liciously publishing a defamatory libel, knowing the same to be 
 false, is a misdemeanor. 
 
 This Act was extended to Prince Edward Island by the 40 Vic, 
 chap. 4. 
 
 LOTTKHIKS. 
 
 The Con, Stat. Can., chap. !)5, is the Act now in force les- 
 specting lotterit^s. 
 
 Under. section 1, if any person makes,prints,advertises, or publishes 
 any ])roposal, scheme or jdan for advancing, lending, giving.selling, 
 or in any way disposing oi any property by lots, cards, tickets or 
 any mode of chance whatever, or sells, barters, exchanges or other- 
 wise disposes of, or otters for sale, barter or exchange any lot, 
 card, tick(!t, or other means or device for advancing, U-ndiiig, 
 giving, selling or otherwise disposing of any property by lots, 
 tickets or any mode of chance whatevei', such person shall upon 
 conviction thereof, upon the oath of any one or more credihle 
 witnesses, or upon confession thereof, forfeit the sum of twenty 
 .lollars for each and every such ott'ence, together with costs. &c. 
 
I.f^TTERIES. MAINTENAN'CE. 
 
 323 
 
 By the Imperial Act, 10 & 11 Wm. 3, chap. 17, all lotteries are 
 declared to be public nuisances. The Imperial Act 12 Geo. 2nd, 
 chap. 28, superseded the 10 k 11 Wm. 3, ehaji. 17, with respect to 
 lotteries of horses, carriages and other personal chattels. Clarke 
 V. Donelbj, R. & J. Dig., 1G19. 
 
 The Imperial Act, 12 Geo. 2nd, chap. 28, is in force in this 
 country notwithstanding the (Jon. Stat. Can., chap. 95. Cvonyn 
 V. Widder, 16 Q. B. (Ont.), 350; Corhj v. McDankl, 16 Q. B., 
 (Ont.) 378 ; Marshal v. Piatt, 8 C. P. (Ont.), 189 ; 27 & 28 Vic, 
 cha]). 32. 
 
 When one hundred and f(irty-nine lots of land wfre sold by 
 lottery, thr person getting No. 1 ticket to have the first choice ; 
 it was held that this was a lottery, though it did not appear that 
 thoro was any ditterence in the value of the lots. The lottery 
 consisted in having a choice of the lots, and that choice was to be 
 determined by chance. Poivcrv. Cannitf, 18 Q. B. (Ont.), 403. 
 
 A .sale of land by lot in which there were two prizes was held to 
 be within the 1 2 Geo. 2nd., chap. 28. Marshall v. Platt,H C. P. (Ont.) , 
 189 ; sec also Lloi/d v. Clark, 11 C\ P. ((.)nt.), 248. 
 
 An information to forfeit land sold by lottery, contrary to 12 
 Geo. 2nd, chap. 28, may be filed by a private individual, and need 
 not be by the Attorney-General or any public officer. Mewhurn 
 V. Street^, 21 Q. B. (Ont.), 498. 
 
 lishes 
 •lling, 
 ets or 
 •ther- 
 V lot, 
 
 MAINTENANCE. 
 
 This is the ofiicious intermeddling in a suit that in no way 
 lielongs to one by 'in.a'mtaii\li} 
 
 By .section 2 of the 40 Vic, chap. 35, any person who wilfully 
 and maliciously breaks any contract made by him, knowing' or 
 having probable cause to believe that the probable consefjuences 
 of his so doing, either alone or in combination with others, will br 
 to endanger human life, or to cause serious bodily injury, (jr to 
 expose valuable property, whether real or personal, to destruc- 
 tion or serious injury, is on conviction liable to a fine not exceed- 
 ing one hundred dollars, or to imprisonment for a term not ex- 
 ceeding three months, with or without hard labour. There are 
 other provisions in the Act, and as to the mode of prosecution 
 and the meaning of the term malice, see sections 4 \: .'>. 
 
 The 5 Eliz., chap. 4, is not in force in Ontario, but the 20 Geo. 
 II., chap. 19, is, and under sections .S and 4 jurisdiction is given 
 to two or more Justices, and cannot be exercised by one, and the 
 party cannot be arrested on the complaint but must be sununoned. 
 Shea V. Ckoate, 2 Q. B. (Ont.), 211. 
 
 MENACES AND TUREZ/rs. 
 
 By tiiv, ''.2 & 33 Vic, chap. 20, s. 15,, whosoever maliciously 
 sends, delivers, or utters, or directly or indii'ectly causes to be re- 
 ceived, knowing the contents thereof, any letter or writing 
 threatening to kill or murder any person, is guilty of felony. 
 
 See also the 32 ^V: 33 Vic, chap. 21, ss. 43, 44, 45 ^V- 40, also s. 
 47, as to inducing a person by violence or threats to execute 
 deeds, kc, with intent to defraud ; and also the 32 »S: 33 Vic. 
 chap. 22, s. 58, as to sending letters threatening to burn or destroy 
 houses, buildings, ships, agricultural produce, kc. 
 
 So by the 32 & 33 Vic, chap. 21, s. 4(j, threatening to accuse 
 an\ pti '" of an infamous ciime, with intent to extort mone}-. 
 \».-., is felony. The oftence will be committed though the accusa- 
 tion was n* intended to be made to a magistrate (R.v. Roblvmv. 
 2 Mood., ll-y ; and though the valual)le thing sought to be gained 
 wv.' the sale of a horse. R. v. Jiednuin, 35 L. J., M. C, 89. 
 
 Under section 48 of the 32 cVr 33 Vic, chap. 21, it is iunnaterial 
 whether the menaces threats be of violence, injury, or accusa- 
 tion to be caused or made by the offendei- or by any (jthej- pei- 
 son. 
 
8^0 
 
 MAGISTRATES MANUAL. 
 
 So tlic threat need not be of an accusation as^Jiinst the |>er.son 
 thieat(;nt3(l ; tlireatening a father witli an accusation against the 
 son is sufficient. li. v. liedman, L. R., I C. C. R., 12. 
 
 Under section 4-.) of this statute, as to letters threatening to 
 accuse of crime, witli intent to extort evidence of the truth of the 
 accusation, will not be allowed in defence. R. v. Crackmdl, 10 
 Cox (J. C, 408. 
 
 The 32 & 3.'} Vic, chap. 21, s. 43, makes it felon}' to send, de- 
 liver, or utter, or directly or indirectly cause to be received, 
 knowing the C(jntents thereof, any letter or writing demanding 
 of any person, with menai^es and without any reasonable or pro- 
 bable cause, any property, chattel, uioney, valuable .security or 
 other valualjle thing. The words " without any reasonable or 
 l»rol)able cause " appl}' to the money demanded, and not t) the 
 accusation constituting the threat, R. v. Mason, 24 C. P. (Ont), 
 oN : R. V. GarO.\ue,\ l C. & P., 479 ; R. v. Hamilton, I C. & K., 
 212. 
 
 A mere request without a threat is no offence (R. v. Rohvnmn, 
 2 Kast, P. C, 1 111) ; noi- is an offer to give infoi-mation if money 
 is sent {R. v. Pickfonl, 4 ('. \- P., 227) ; but a lettei' stating that 
 an injury is intended and the wi'iter will not interfere to prevent 
 it u»d(\ss money is sent, auiounts to an offence. R. v. Smith, 1 
 Den. (J. C.,:il(). 
 
 A (h'uiand for nioney liy letter, threatening bodily violence, or 
 to charge with adultery, is an oft'ence under this .section. R. v. 
 ('lni/,iu'r.-<, 10 Vox ('.('., 4:)0. 
 
 The menace under section 44 of the 32 & 33 Vic, chap. 21. 
 nuist be such as to influenet; a reasonalde luiud. /^. v. Walton, 
 L. k C, 2ns. It is innnaterial that the pei'son has no money at 
 the tiuie of the demand (R. w Edn'anls, (i I', ik: P., ">l'>); and ;i 
 conviction may take place thoiigh the money was paid. R. v. 
 Robn-tsoii, L. k C, 4H3. 
 
 The menace nuist be of such a nature and extent as to unset- 
 tle the mind of the person on whom it operates, and takeaway 
 from his acts that element of \'\vx\ voluntary action which alone 
 constitutes consent. R. v. Walton, 1) Cox ('. C, 2().s. If a po- 
 lic(>man, professing to act umler legal authority, threaten to im- 
 
MURDER AND MANSLAUGHTER. 
 
 331 
 
 prison a person on a charge not amounting to an offence in law 
 unless money bt' given him, and the person believe the policeman 
 and give him money, the policeman may be indicted for the 
 offence of demanding money with laenaces with intent to steal, 
 although the offence is completed, and he might also be in- 
 dicted for stealing the money, R. v. Robertson, 10 Cox (j. C, 9. 
 
 MILITARY AND NAVAL STORES, 
 
 The 32 & 83 Vic, chap. 20, was passed to secure the better 
 protection oi Her Majesty's military and naval stores. 
 
 This Act was extended to Priuce Edward Islan 
 of the offence merely without any assent, foi' if a man assent he 
 will cither b<" a principal or an accessory. Thus one will be guilty 
 of misprision who sees a felony committed and takes no steps to 
 secure the apprehension of the offender. The ofljnce is a misde- 
 meanor punishable l)y line and imprisonment. 
 
 MURDER .\ND M.\NSLAU(iHTF,|{. 
 
 Murder is unlawful homicide with malice af()i'ethou<;ht. Man- 
 slaughter is uidawful homicide without malice aforethought. 
 
 Malice is a necessary ingiv(lieiit in and the chief characteristic 
 of the crime of nuirder. Re Amlcrsmi, 11 ('. P. (Out), 02. 
 
 Malice in its legal sense nu'ans a wrongful act done intentionally 
 without just cause or excu.se. Mc/nlijrc v. ,]f(:Bean, 13 C^, B. 
 (Out.), :)42 ; PoHfw'ni v. Mor>iummarily of a nuisance, and fining for the oH'eiiee (/^vw.s v. 
 Ih(hit\ IS Q. B. (Out.), 28(1), ami thcmgh th.> obstruction of 
 a highway is a public nuisance, a cojiviction l)y a magistrat(> for 
 >ueh obstruction and order to pay a continuing fnie, until the re- 
 
334 
 
 MAGISTRATES MANUAL. 
 
 moval of such obstruction, was held had, as unwarranted by any 
 Act of Parliament. R. v. Hither, 15 Q. B. (Ont.), 589. 
 
 To constitute a public nuisance, the thing complained of must 
 be such as in its nature or its consequences is a nuisance, an in- 
 jury or a damage to all persons who come within the sphere of 
 its operation, though it may be in a greater or leas degree. 
 rAttle V. Ince, 3 C. P. (Ont.), 545 ; B. v. Meyers, 3 C. P. (Ont.;, 
 333. 
 
 Throwing noxious matter into Lake Ontario, or any other public 
 navigable water, is a public nuisance, and rendei's the party com- 
 mitting it liable to an indictment. Watson v. Toronto 0. cC- W. Co., 
 4 Q. B. (Ont.), 158. Ob.sti'uctions to navigable rivers are public 
 nuisances. Brownv. OiKjy, 14 L. C. R., 213. 
 
 Di.sorderly houses are public nui.sances, and it is not necessary 
 that an}' disorderly conduct .should be perceptible from the exterior 
 (.f the house. It V. Rke^ L. R., 1 C. C. R., 21. 
 
 So the non-repair of a highway, or the ol)struction thereof, is a 
 nuisance, indictable at common law. li. v. Paris, 12 C P. (Ont.), 
 450. 
 
 The pi'oper reniedy for a public miisance is by indictment. 
 >%iaU v. 0. T. R. (Jo., 15 Q. B. (Ont.), 283. 
 
 The circumstance that the thing complained of furnishes on 
 the whole a greater convenience to the public than it take * away, 
 is no answer to an indictment for a nuisance. R. v. Bruce, 10 L. 
 0. R., 117 ; R. V. Ward, 4 A. .^- E., 384. 
 
 A conviction for obstructing a highway is bad, unless it appears 
 on the face of it that the place was a public highway. R. v. Brlt- 
 tain. 2 Kerr, 014. 
 
 OltSCKNE HOOKS. 
 
 The .sale of an ob.scene book is a mistlemeanor, even although 
 a good ulterior object is intended to be served thereby. R. v 
 Ilicklin. L.R., 3 Q.H., 3(!0. Th(! obtaiiiing obscene prints and libels 
 for the puipose of afterwards publishing and disseminating thcni, 
 is an act done in conuuencing a misdcincanor, an Vic, chap. 4; to the District of Keewatin, by the 3!) 
 Vic, chap. 21 ; to the North West Teiritories, by the 38 Vic, chap. 
 49 ; to British Columbia, by the 37 Vic, chap. 42, and to the Pro- 
 vince of Manitoba, by the 34 Vic, chap. 14. 
 
 Perjury is the crime committed by one, who, when a lawful oath 
 is administered to him in sonic jirocecding in a court of justice 
 of competent jurisdiction, sweais wilfully, absolutely and falsely. 
 in a nmitav unit (cri( (I to the issue or point in ([uestion. 
 
 The offence is a misdemeanor under the 32 \: 33 Vic, chap. 23 
 and it is to be observed also that under the seventh section of this 
 statute, all evidence and proof is nuiterial whether given or made 
 orally, or V)y or in any athdavit, atlirmntion,  
 
 i'ER.SON. 
 
 The Act respecting- offetieos against the person, 32 & 33 Vic, 
 chap. 20, was extended to Prince Edward Island hy the 40 Vic"', 
 chap. 4; to the District of Keewatin by the 3!) Vic, cha)). 21 • to 
 the North-West Territories by the 3S Vic, chap. 40; to British 
 Cobunbia l^y the 37Vic.,chap,42, and to the Province of Manitoba 
 by tJK! 34 Vic, chap, 14. 
 
 PIRACY. 
 
 This ..tfence at comiaon law consists in connnitting those acts 
 <.f roblHTy an.l  
 manner as if cuumitted on the high seas, li v Sli(n;H' 'y P R 
 (Ont.j, 13.5. 
 
 I'ui.U'i:, 
 
 The 31 Vic, chap. 73, authorizes the Governor in Council to 
 appoint C.mnnissioners of Police. Under .section 2, such (Jommis- 
 sioners may appoint police constables, and under .s.rtion 3 disobe- 
 dience of orders, neglect of duty, or any misconduct, as such police 
 constable, entails, on conviction before a Justice of the Peace, a \xm 
 not exceeding forty dollars. 
 
 This Act was extend,..! to Prince Edward Fslan.l by the 40 Vic 
 chap. 4; to the ]:)istrict of Keewatin by the 39 Vic, chap. 21 • 
 22 
 
338 
 
 magistrates' manual. 
 
 to the North-West Territories by the 38 Vic, chap. 49 ; and to 
 British Columbia by the 37 Vic, chap 42. 
 
 POST OFFICE. 
 
 The Act 38 Vic, chap. 7, amends and consolidates the law for 
 the regulation of the postal service. 
 
 Under section 72, and the following sections, a large num))ei- of 
 acts of ditl'erent descriptions are made ci'iminal, sucli as stealing 
 post letters, opening post letter V)ags, stealing pai'cels, receiving 
 post letters or post letter bags, unlawfully issuing money orders, 
 forging ])ostage stamps or money ordei's, stealing any mail key or 
 mail lock, wilfully destroying matter sent by mail or parcel post, 
 enclosing explosive sul)stances in matter sent by i)ost, enclosing 
 a letter, kc, in any other mailable matter, removing postage 
 stamps or marks thereon, with a fraudulent intent, aban- 
 doning, ol)struLjing or wilfully delaying the mail, &c. (40 Vic, 
 chap. 84), cutting or ripping a })ost letter l)ag, being drunk 
 on duty as a mail carrier, refusing to allow the mail to j)ass 
 through a toll-gate, detaining the mail at a ferry, t!cc., soliciting 
 the conuuission of any act proliilnted, mutilating the official books, 
 hypothecating the postage .stt\mps, posting innnoral or obscene 
 books. 
 
 Every pi'incipal in the second degree and every accessory bfforu 
 or after the fact is punishable, as a principal in the first degree. 
 Jb. s.72, ,s.-s. 29. 
 
 Under section 73, the embezzlement or unlawful use of money 
 entrusted to him l)y an officer of, or connected with, the post office 
 is felony. 
 
 Under section 75, wilfully or maliciously injuiing any street 
 letter box, itc, is a misdemeanoi'. 
 
 lender section 7<), using or attempting to use postage stamps 
 which have been used before, subjects the i)arty to a ])enalty of 
 not less than SlO, and not exceeding !?4(). 
 
 Any indictable offence under the Act, may ho dealt with either 
 in the district or county where the offence is committetl, or tliat in 
 which the offender is apprehended or is in custody. lb. s. 79. 
 
PUACTICK. 
 
 339 
 
 to 
 
 PRACTICE. 
 
 As to filing an amended conviction, the practice in moving to 
 quash a conviction is this : when the conviction is returned it is 
 filed. Up to the time of return and filing, the Justice may amend 
 the conviction; hut after the filing of the papers no auKMidmciut 
 can he made. By analogy to tins practice, after notice of appeal is 
 given, and the time for hearing the appeal has' arrived, no amend- 
 ment can be made to the conviction after the proceedings in a[)peal 
 have been entereil on before the couit. li. v. Sinit/i, .S5 Q. B. 
 (Ont.j, r)lS ; see ante, pp. 129-180. 
 
 After a conviction is I'eturned to the court on a certiorari, there 
 is no powei' of amendment. Where, therefore, two defendants 
 wei'e jointly convicted for keeping li([Uors foi' sale witliont a 
 license, conti'ary to the Rev. Stat. (Out.), chap. bM, s. 40, and a 
 ]>rnalty awai'ded against them jointly, it was hi'M that the e(jurt 
 could not amend the convictiim so as to make separate (Mmvictions 
 against each 0, !).S. 
 
 A ])Cvson was convicted of being (h'unk in u puldic street, con- 
 trary to law, and adjudged to pay a tine of i^oO and costs, or to be 
 imprisoned for six months at hard labonr. There was power given 
 by by-law 47'S of the City of Toronto, to inipris(jn an offender for the 
 above offence ; but in tlu; warrant of commitment no reference 
 whatevca- was made to the by-law. It was held that as there was 
 no conmion law right to imprison any one for being drunk on a 
 public sti'eet, and the by-law not being referred to, the conviction 
 was bad. Re Livivi/sfovc, P.R. (Ont.), 17. 
 
 I>1{I NCI PALS AND ACCESSORIES. 
 
 The Act respecting accessories to, and abettors of, in 
 Vie., chap. 21 ; to the North-West 'J'eri'itories by the .S(S Vie., chap. 
 4!) ; and to Ihiti.sh Columbia by the o7 Vic, ebap. 42 
 
 fn cases of I'orgery.the accessory or abcttoi' may be (Iralt with, 
 tric(l anil punished in the county or place in Vvlnch he is appre- 
 hended or is in custody, o2 \- -S^Vic, cliap.l!), s. 4S. Tin; same 'nde 
 prevails in the case of otfcnces under tlie Act, regulating tlie postal 
 sei-v'.ce. oS Vic, chap. 7. s. 7'1 s.-s. 4. 
 
 'i'lie general detinitisv who were pi'esent aidiiig and al»et- 
 ing the commission of the crime. To constitute' an aider or 
 abettor, the pai'ty luust be actually piv.sent, aiding or in some 
 way assisting in the commission of the offenee, or c(mstructively 
 present for the same purposi', that is, in such a eonvenienl situa- 
 tion as rea"sfei; H C. P. (Otit.j, 2().S. 
 An accessory before the fact is he who, being absent at the time 
 of the felony committed, doth yet procure counsel, conunand, or 
 abet another to conunit a felony. An accessory aftei' the fact 
 is one who, knowing a felony to have been conuiiitte(l ])y 
 another, receives, relie\es, comforts, or assists the felon. It is 
 only in felonies that there can be' accessories, for in misde- 
 meanors all are principals. Sei; R. v. Tisdiilc^ '20 Q. B. (()nt.), 
 273 ; A'. V. Cn.mpbeU, ISQ. B. (Ont.), 417 ; R. v. Benjanun, + 0. P. 
 
 (Ont.;. m). 
 
 On this point the statute 31 Vic., cha]). 72, s. !), provides that 
 aiders and abettoi-s in uiisilemeanors may be tried and ])unish- 
 ed as principals. 'J'hose, therefore, who would Ite accessories in 
 felonies are principals in misilemeanors. So also l)y the '32 tJc 33 
 Vic, chap. 31, s. l.i, persons aiding or procuring, &c , the (tom- 
 mission of any ott'ence, which is pmusliahle on summary con- 
 viction, are liable to Ije proceeded against anses his apprehension. Provided that a married 
 woman who receives, comforts, or relieves her husband, knowing 
 him to have connuitted a felony, does not thereby become an 
 accessory after the fact. Stephens Dig., 31. 
 
 A person chaiged as accessory to murder may be convicted as 
 accessory to manslaughter, if the principal is ac([uitted of the 
 mui'der and found guilty of manslaughter. Where the principals 
 conunit a joint crime, the person harbouring them is guilty of a 
 separate ofi'ence for each" person whom he harbours. R. v. RicJi- 
 nrch, L.II., 2 Q.B.D. 311. 
 
 In the following imaginary ca.ses examples of each of the four 
 kinds of participation in a crime will ])e found. A incites B and 
 C to murder a person. B enters the house and cuts the mail's 
 thi'oat, while C waits outsider to give warning in case any one 
 should appi'oach. B an. 
 (Ont.), 323. In the case (jf girls between the ages of ten and twelve, 
 on a charge of assault with intent to carnally know, ov indecent 
 a.ssault or conmion assault, consent is a defence (//'.). 
 
 Where the woman is an idiot or lunatic the mere proof of th(! 
 act of connection wMl not warrant the case heing left to the jury. 
 There nuistl»e some evidenci' that it was without Jier consent, (;. 
 (/., that she was incapable of expi'essing consent or dissent, or from 
 exercising any judgment upon the matter fiom imbecility of min'. V. Cu,nn,l(>/, 20 q. B. (Ont.), 317. 
 
 The prisoner protV'sseil to give medical and suigical advice f )r 
 money. The prosecutrix, a gii'l of nineteen, consulteil him with 
 reference to illness from which she was sutfering. lie advi.sed 
 that a surgical opi-ration should lie performed, and under pretence 
 
HECEIVINd STOLEN GOODS. 
 
 .S4o 
 
 lout 
 
 I'dlii 
 
 Of if 
 
 ink 
 
 or perfonnini,^ it, 1ia»l Ciirnal connection with the prosecutrix. 
 Slie suliinitted to what was (h)ne, not with any intention that he 
 should liave carnal connection with her, l»ut under the belief 
 that he was merely treating' her iiu;dically and perfoi'niin^' a 
 surgical operation, that belief being wilfully and frau(hileiitly 
 induced by the prisoner. It was lield that the prisoner was guilty 
 of rape. R. \.FhitteT>), L. R.,'2 Q. B. D., 410 ; R. v. n,irron\ L. 
 R, I C. C. U., ir)(i, (piestioned. 
 
 KKCKIVINCi SroLKX GOODS. 
 
 The .S2 & 83 Vie., eliap. :il, s. iud, makes it felony b)r any 
 person to receive goods which have been stolen, if he knows the 
 sauie to have l)een feloniously stolen. There must be a theft of 
 the goods, and this theft must be, a crime, either at eommon law 
 or by statute, befoi'e a party can be convicted of reet'iving under 
 our statute. It. v. Smith, L. R., 1 (J. (A R., 2(i(j. ['.y section 104 
 of onrsti'tute where the original olt'ence isa misdemeanor the oH'ence 
 of the receiver is made a misdemeanor also. Anerty whei'e the original olt'ence is putii^hnlili' on 
 sunnnary conviction aiv liable to punishmeiu on conviction befort; 
 a Justice (jf tlie Peace in the same manner as the original oH'ender. 
 Before there can l»e a criminal recei[)t of goods uixh'r this statub; 
 or at common law, the goods nuist be slofeii, or at all excnts, the 
 stealing, taking, extorting, end»e/./ling or otherwise obtaining, 
 nmst amount to a crime at conunon law or under the statute. 
 For instance, if after goods are stolen, they get back into the posses- 
 sion of the owner so as to be no longer stolen goods, a siilise(|iient 
 receipt li\' the prisoner will not render him liable, ilie goods 
 having' lost the ch.iraeter of stolen goods, li. v. Sch miill . L, |{., I 
 
 ('. C. K.i:.. 
 
 So if the c.irliisi ri' possession still remains in the thief, a con- 
 viction for receiving cannot be sustained. It is also nieessary 
 that the (lefendant should at the time of rt'ceiving the goods 
 know that they were stolen, /i. v. 11'//*//, 2 hen., .ST. 
 
 lnde|ienilently of tlie statute, receiving stolen goods knowing 
 them to bi.' such is a, misdemeanoi-. 
 
 Sections 10:{ of the :{2 \- 'V,] Vic, chap. 21, extends to casoH 
 
34G 
 
 MAOISTIIATKS MANUAL. 
 
 where upon an inciictinent for a joint receipt, it in proved that 
 each of the prisontM-s se})arat(;ly received tlie wliole of the stolt^n 
 property at different times, tlie one receipt Hu})sefpi(!nt to tlic 
 otlier, and it makes no diff'ereiic(; whether tlic receipt was direct 
 from t]i(! tliief or from an intermediate person. Thei'e is no 
 f 
 the pi'operty, and under section I()i2 th(!r- 
 tween sf^parate re'ceij)ts at th<^ smiiic time ;ind sepai'ate I'eceipts at 
 different times. R. v. Rmrdna, L. li, f (J. (.!. R„ :U. 
 
 It iseh^Mr tiiat tlie j^oods the p;iity is cliai'ged with reeeivine- 
 must he stolen Lfoods. A wife, thnu'^h she may have CDiumitted 
 a(hdtery, cainiot stc^al her luisliand's Lfoods, and thei'efdre the 
 adulterer n/eeiviji^' fi'om her th(i e-oods \vlii(;h slie has taken from 
 lier husltanil, carniot 1m- i'ound guilty of receiving stolen g'jods. 
 li.x. KruH!/, I.. R., 2 (I v.. I)., :m. 
 
 Manual [)ossession or touch ,s untiecessaiy. In >irdi'r to sustain 
 a conviction for re(;civiii^' stolen ^oods, it is sntiicient if thrre ho 
 a c(jntrol hy the receivei' over the i^^oods. li. v. Siitlfi\ Dears., 494. 
 
 A person having a Joint p(jssessioii with th(( thief may l»e con- 
 victed as a i'e(;eiver. 11. v. Hohsmi, |)ea,rs., 400. 
 
 It makes no diliereiUM! whether a receiver receiviis for the pur- 
 pose of [trofit or advantage, oi' whether he does it to a.ssist tin; 
 thief II. V. JJiit'is, (iC. \: 1'., 177. 
 
 lielitif, without actual knowl(!(lge, is sufficient to maintain an in- 
 dictment foi' rticeiving goods, knowing them to have lieeii .stuleii. 
 
 H. V. whih; 1 V. \- v.] (it;.-). 
 
 A hushand may he convicteil of lehmiously i'(;(;eiving pro|ierty 
 which his wif(^ has stohsn voluntarily, and without restraint on 
 his part. 11 v. McCdUw//, L. .V C, 2.")0. 
 
 Recent po.ssession of stolen propei-ty is evidence, either thai (he 
 person in |»o.sHeHsion stoh^ the |)roper(,y, or that he re('<'i\ed it, 
 knowing it to he stolen, li. v. Laii'/nudil, \j. ^ C 427. 
 
 If A, in the aliseiK.'e of I!, I'eloinously riici'ives stol(Mi |troperty 
 from the thief, and A sul>se(jUently dt^livers it to R, who know- 
 ingly roceiv(!s it, lioth may he jointly indicti'd. It v. livunlnn. Ij. 
 R., 1 ('.(". R., .SI. 
 
 The late Act, 10 Vie,, chap. 2(i, provides : That where pioceed 
 
RECKIVTNa STOLEN ' ;OODS. 
 
 :U7 
 
 ing arc taken against any person for having received goods, know- 
 ing tliciii to he stolen, or for having 'in his possession stolen i)i'()- 
 perty, evidence may he given at any stage of the proceedings that 
 there was found in the possession of sncli pei'son other jtropcrty 
 stolen within the preceding period of twelvi; months, and such 
 (■vii' ''t of the [)r()ceedings taken against him: PcovidiMl, that 
 »iroof is intendetl to Im; given of siich 
 other property stolen within the ))receding jieriod of twel\-e 
 months, havi , ii found in his jjossession, ;iiid such notice shall 
 spe(;ify the nature or descri[)tion of such other pro[)eT'ty, and the 
 pei'son fi'om whom the same wiis stolen, fli. s. '{. 
 
 Where in'oci edings are taken against any jierson for having i'(^- 
 ceived n.,.i,U., Inowing them to hi' stolen, or for having in his pos- 
 s.V .'}?} Vic, chaj). '2\. s. 
 lO.j.thf receiver, whetliei' cliiirged as an accessory after the fact 
 to the teloiiy, or with a suhstantive felony, oi' with a misdenieiinor 
 oidy, may he dcili with indicteil, tried and punished in !iny 
 county, district or |>lace in which he has or has had any such pro- 
 jieilA' in his possession, or iti iiny phice in which the principal 
 oti'eiider may he tritid. 
 
JUS 
 
 MAG I STO A T i:s M A N V A L. 
 
 RIOTS, ROUTS AND T'XI-AWI'l'L ASSl•::^llll,l)•:S. 
 
 Tlic Act respecting riots (31 Vic, chup. 70), was extended to 
 Prince Edward Islnnd liy the 1-0 Vic, cliap. 4; to trie. District of 
 Keewatin, by tlie 3!) Vic, cliap. '2\ ; to tlie Nortli West Teri'itories, 
 hy tb.c 88 V'ic. cliap. 4!), and to Britisli Coluud>ia, by the 37 Vic, 
 chop. 42. 
 
 A single pei'son cannot be convicted ot" riot, in respect of any 
 acts of Ids alone and iiidependently of and not in concert with 
 otliers. 
 
 A procession having been attacked i>y rioters the prisonei', one 
 of the processionists, and in no way connected with the rioters, 
 was proved, dui'ing the course of the attack, to have tireil ofl" a 
 pistol on two occasions. Hrst in the air and then at the rioters. 
 So fai" as api)eared fi'oiii the evidence, tin.' piisoner acted alone 
 and not i)i connection with any one else. It was lield thata con- 
 viction of the prisoner jointly with a nuiiiiierof otheis for riot 
 could not be sustained. Ji. v. (hyomn, :^(i ( '. P. (Ont.), 134. 
 
 The :)'2 k li'.i Vic, chap. 22, ss. 1.5 .V Id, prohibits the urdaw- 
 fully and with force demolishing buildings iiy persons riotously 
 and tuniultuously assemliled together to the disturbance of the 
 public peace. 
 
 'I'he Act respecting riots and riotous asseinblies, .SI \'ic.. clui]). 
 7<>, provithis that if twelve or niori' persons are unlawfully assem- 
 bled to ihe disturbances of the peace, and lieing rt)(pnred by pro- 
 clamation by a Justice of this Peace to dis])erse, they then (!on- 
 tinne together for an hour aftei', they are giulty of felony. 
 
 ,\n indawful nssendily is any lueetingof three or more persons 
 under such cii'cumstances of alarm, either tVom llie Iju'ge nundiers, 
 the niode or time of the assend)ly, kx\, as in the opinion of lii'ni 
 and rational men are likely to endanger the |ie;uc, there being no 
 aggri'ssivo act actualK- done. li. v. I'inci nl, !) i\\- W, 1)1. 
 
 A rout is said to be the disturbance of the peace caused by 
 those who after assendiling togcither U; do a thing, which if exe- 
 cute(l would auiouid- to a riot, jtrn 
 
 A viot is {I tumultuous disturbance of the p(»ace hy three or 
 more persons assemhliuo- togethci' of their own ?. ;thority witli 
 an intent mutually to assist one another a^'ainst any wlio ()])j)ose 
 them in the execution of some enterjirise of a jrrh'titc naiure, and 
 iiiivrwards ml II (I III/ f'.rccidivf/ tlui same in a vioK'nt and turhulent 
 manner to the terroi- of tlie people, and this whetlier the act in- 
 tendetl lirof itself lawful or utdawful. 
 
 The tlitt'erejice hetween a riot and an unlawful assembly is this : 
 T]\r foi'iiici' is a tumultuous luei'tini;' of persons uj)on some pui'- 
 pose which they dciini//// exfcnte with violeiice, and the hitt(.'r is 
 a mere assembly of ]ieisons u])on a purjtosc. which if executed 
 wouifl make them rioters, liut which they do not execute nor make 
 any motion to execute, /i* v. /w '///, (I C. P. (Ont.i, 87-. 
 
 An exam)»l(' will moi'e clearly show the diH'eicuer lictwcen 
 these three criuies : A liumlied men arun'il with sticks meet to- 
 •j^ether at uii^ht to consult about the destruction of a fence which 
 their landlord lias I'rected ; ihiNisau unlawful asseudily. They 
 march out tou'ethei' from the place of meeting' in tlie direction of 
 the fence ; this amounts to a rout. They arri\'e at the fence, and. 
 amid ^icat confusion, violently pull it down, this is a riot. 
 
 To constitute a riot the oliject need not 1" uidawful if the acts 
 are lone in a manner caletdated to inspire triror. I5ut there must 
 bean unlawful ii>i.<< mhl'Dvi. tlierebtre adisturbance arising' anioii^' 
 piMiple alria('y uiet to;^'ether will lie a nu're atfray, unless. inde(>d, 
 there be a delil)erate forming' into parties. The ol)ject nnist be 
 ofa local or private nature, otherwise, as if to re(Iress a public 
 ^■i'ie\ance, it aniotnits to t reason. 
 
 The e'ist r incd i ni/, 
 that is with circumstances of force oi- \iolence. Therefor*' assem- 
 bliu'^' b)r the purpose of an uidawful oiiject, and a(!tually execut- 
 ing' it, is not a riot if il is doiu' peacealily. 
 
 If a man knowiiie'ly ''oes acts that are unlawful, the presump- 
 tion of law i.s that he intends the natural consiMjuences of these 
 acts, and i^'iioraiu'c of the law will uo( excuse him. 
 
 To constitute an unliiwful assembly, il is not necessary that the 
 purpose for which (he persons as.sembled to^rether was to do an 
 unlawful act ; an intention to do a lawful act in a violent and tur- 
 
350 
 
 MAGISTRATES MAITUAL. 
 
 bulent manner is as much a breach of the law as if tlie intended 
 act were illegal. It is the manner in which the act is intended to 
 be done which constitutes the offence. R. v. Mailloux, 3 Pugsley, 
 403-513. 
 
 To constitute a riot, it is not necessary that the Riot Act, 31 
 Vie., chap. 70, should be read. Before the pi'oclamation can he 
 read, a riot must exist, and the effect of the proclamation will not 
 change the character of the meeting, but will make those guilty of 
 felduy who do not .lisperse witliin one hour after the proclamation 
 is read. R. v. Furzey, G C. & P., , s. \'2 ; 32 \' -3 Vic, 
 cliap. 20, s. 1. '{'he ('ourt, ho\vr\rr, has jurisdiction in the ease of 
 ailministering i)oison or woiiiidiiig with intent to murdei' (40 \'ic., 
 chap. 28, ,s. L), as it is ii(»t now punislialile with death. IJut it has 
 no jurisdiction in the case of rape. 32 >.V 33 Vic, chaj). 20, s. 4U. 
 Under the 40 Vic, cluip. 2th, 
 for the former section does not declare that the parties oti'ending, 
 kit., shall he deemed guilty of the misdemeanor created hy the 
 7Gth, and the clau.se cannot he extended to the creation of a ucav 
 <'rime hy implication. It. v. Bath/ate, 18 L. C. J., 2!)i). 
 
 SODOMY OR UNNATURAL OFFENCES. 
 
 The 82 i^- 83 Vic., chap. 20, s. 03, now governs these otl'ences. 
 
 The [)i'0()f is the sanii' as in rape, with two exceptions. It is 
 not neces.sary to prove the oH'eiu^e to have hcen counnitted with- 
 out the consent of the p(,'rson upon whom it was perpetrated. 
 Both parties, if consenting, are e(|ually guilty, hut if one of the 
 parties is a hoy under the age of fouiteen yeai's, it is fek^ny in 
 the othei- oidy. By the (i-ith section of the Act, to attempt to 
 commit the said crime, oi- to make; an a.ssault with intent to com- 
 
SUICIDE. SUNDAY. 
 
 353 
 
 mit the same, or to make any indecent assault ui)on a male per- 
 son, is a misdemeanor. 
 
 Sending a letter ])roposing the crime, is an attempt to incite. 
 R V. Rainsford, 81 L. T., N. S., 488. 
 
 SUICIDE. 
 
 The attempt to commit suicide, by a person of sane mind, is a 
 misdemeanor at common law, being an attempt to commit a 
 felony. It is not an attempt to conunit murder, suicide having 
 been held not to be murder. R. v. Biiiyess, L. & C, 254. 
 
 uy in 
 lint to 
 
 SUNDAY. 
 
 The words, " or other person whatsoever," in the Con. Stat. U. 
 C, chap., 104, s. 1, Rev. Stat. (Ont.), chap. 18!) are meant to 
 include all persons, cjuHdon generis with those previously men- 
 tioned, but not others (Sdywl'nnnn v. Breach, 7 B. vV: C, 1)0), 
 and they cannot be taken to include all persons doing anything 
 whatever on a Sunday, but must be taken to apply t<) })ersons fol- 
 lowing some particular calling of the same description a.s those 
 mentioned. HeKpeler v. Sh.mv, 16 Q. B. (Ont.), 104 ; R. v. Hf/nes, 
 13 Q. B. (Ont.), 194. 
 
 The work prohibited is not confined to manual labour, and 
 hence includes the sale of a hor.se. Fennel! v. Ridler, 5 B. \: C, 
 400. But the work nuist be in the ordinary calling of the ])arty 
 (Smith V. Sparrow, 4 Bing., 84) ; nor does it include all callings, 
 as, for example, an attorney's woi'k. Reate v. Dickens, 1 0. M. 
 .1^ R., 422. 
 
 This statute does not prohil)it contracts being made on Sunday, 
 such as a bill of Cixehange (Beifhie v. Levi, 1 Car. \:. J., 180), or 
 the hi)'ing of a servant. R. v. Whifnash, 7 B. & f^, 5i)6. 
 
 Baking provisions for customers is a woi'k of necessity (R. v. 
 fJox, 2 Burr., 787); but baking rolls in the way of business is 
 prohibited. Gripps v. Durden, Cowp., 640. 
 
 A person is liable under the Act for plying with his steamboat 
 on Sunday between the City of Toronto and the Island, persons 
 carried between those places not being " travellers " within the 
 
 23 
 
354 
 
 magistrates' manual. 
 
 meaning of the exception in the first section. U. v. Tinning, 11 
 Q. B. (Ont), 636. • 
 
 Where snares were found set on a Sunday, with two dead birds 
 in them, which had been set on the day before, it was held, first, 
 that a " snare " is an engine within tlie 4th section of the Act, 
 and, secondly, that although tlie defendant was not upon the land 
 on a SuiK'ay, he was liable to be cuuvicted for using the snares 
 on that day for the purpose of taking game. Allen v. Thonvpson, 
 L. R., .-> Q. B., 336. 
 
 SURETIES FOR TFE PEACE. 
 
 This is .simply a recognizance entered into by a party with one 
 or more sureties, or by tlie party alone (if his own recognizance be 
 deemed sutHcient), ])efore a Justice of the Peace out of ses.sions, or 
 before the Quaiter Sessions, conditioned for his keeping the peace 
 or being of good behaviour for a ceitain time. Thu authoiity to 
 require it is given to Justices by their couuni.ssion. Therefore, if 
 a thistice of the Peace be satisfied n\)on oatli that a party has rea- 
 .sonable ground to fear, either from the direct threats of another 
 or from his acts or words, that such other person will intliet or 
 cause to be inflicted upon him some personal injury, or that such 
 persim will burn his house or cause it to be burnt, the Justice is 
 bound to cause this secui'ity to be given ; and the same if the 
 threats l)e used against the wife oi' child of the party. But tliis 
 does not extend t(j a man's servants, for they may themselves 
 apply for sureties of the peace against i)ersons fn^m whom they 
 fear personal injury ; nor does it extend to threats as to a man's 
 goods, for it is not a ca.se within the authority thus given. ISor 
 does it authorize the Justice when the applicant acts from mere 
 malice oi' vexation. Buff v. Coruvnf, 1 B. »!c B., .048. 
 
 The complaint which the apjtlicant is required to make states 
 tliat " he iloth not make this complaint again.st, nor refiuii'e such 
 .sureties from the said A.B., from any malice or ill-will, but merely 
 for tlie preservation of his person from injury," see ante, p. 1 00. ( )n 
 application being made for sureties of the peace by complaint to 
 the Justice on oath, the Justice has to consider whether the facts 
 stated sliow a reasonable ground for the party's fear of pers(jnal 
 
SURETIES FOR THE PEACE. 
 
 :}55 
 
 states 
 
 such 
 
 ercly 
 
 0. On 
 
 int to 
 
 facts 
 
 rsonal 
 
 injinv ; and if there be any amlnffuity in the throats, it is for tlie 
 Justice to give them sucli a construction as ho thinks right, and 
 his decision in that respect will be final (K. v. Tregarthen, o B. tS: 
 Ad., (i7!S) if the oath on winch the complaint was founded bo 
 sufKeiont to warrant it. Me Dunn, 12 A. cV: E., oOf). The Justice 
 cannot on such an application convict the party complained against 
 of an assault. R v. Davey, 20 L.J.,M.C., 18!). If he thinks that 
 sureties ought to be given, and the party complained against Ije 
 not ])iesent, he may issue his warrant to bring him before him. 
 This warrant is executed in the same manner as any other war- 
 rant to apprehend a party. As soon as the party is apprtdiended 
 and bi'ought before the Justice, the coniplaint is n^ad ovo' to him, 
 and he is asked if he have any cause to show why he slmuld not 
 give the re(|uired sureties. 
 
 The ])arty complaincil of cannot bo allow(;(l to controvert the 
 trntli of the facts stated in the com[)hiint. Ji. v. Do/ti'i'l//, I .'{ Kast, 
 171. Ail he is allowed to do is to sjiow that the com[)laint is pre- 
 ferred from malice only (l{. v. Parucll, 2 l>urr., '>(), '.> 
 
 
 7 
 
 ///. 
 
 Photographic 
 
 Sciences 
 Corporation 
 
 «v 
 
 ^^ 
 
 <> 
 
 
 ^ 
 
 PI? 
 
 3J WEST MAIN STREET 
 
 WEBSTER, N.Y 14580 
 
 ( 716 I 872-4;.03 
 
 
I 
 
 % 
 
 <^,. 
 
 ■/. 
 
 J? 
 
356 
 
 magistrates' manual. 
 
 In a commitment for want of finding .sureties for the peace, it is 
 not necessary to state that the Justice had information on oath, 
 which would justify him in binding the prisoner to keep the peace. 
 Dawson v. Frtmr, 7 Q. B. (Unt.), 391. 
 
 Ju8tice.s should l)e careful not to recjuiro sureties of the peace 
 without sufficient grounds ; for if they do .so from error of judg- 
 ment, though they have a general jurisdiction over the subject 
 matter, they render themselvcjs liable to an action. Fidlarton v. 
 Stmtzer, 13 Q.B. (Ont), :)7:'). 
 
 Under the Act respecting forgery (32 \^ 33 Vic, chap. 10, s. 58), 
 whenever any person i.sconvicttMl of a misdemeanor under the Act, 
 the court may, if it thinks Kt, in addition to or in lieu of any of 
 the puni.shments l)y the Act authorized, fine the offender, and re- 
 ([uire him to enter into his own recognizance, and find sureties, 
 both or either, for keeping the j)eaee, and being of good behaviour, 
 and the same course may be adopted in the ea.se of felonies. 
 
 The same course may also be adoi)ted undei- the Act respecting 
 offences against the person (32 \: 33 Vic, chap. 20, s. 77) in the 
 case of any indictable misdemeanor piuiishabli! under the Act, or 
 any felony pu 'ishabie otherwise than with death. Undei- the Act 
 respecting larceny aJid other similar offences (32 vV 33 Vic, chap. 
 21), s. 122, and the Act respecling malicious injuries to pro[)erty 
 (32 (!c 33 Vic, cha|). 22, s. 74'j. in tin; case of any indictable nds- 
 deniean, was extended to Prince Edward Island 
 l)y the 40 Vic, chap. 4; to the District of Keewatin by the .S!) 
 VMc elifip. 21 ; to the North-VVe.st Territories by the 38 Vic, chap. 
 4J>; and tf) hritish ('oluiid)ia by the 37 Vic, chap. 42. 
 
 The words, "or without," in the second and fifth sections of 
 tlie 31 Vic, eha[». 0!>, weie repealed by the 32 \: 33 Vic, chap 17. 
 
 Under the 31 Vic, cluip, 74, persons in custody in any gaol on 
 a charge of high ticason or felony may, if the gaol be deemetl im- 
 safe, be removed to any othei- gaol, or any other County oi l)is- 
 
VAGRANCY. 
 
 359 
 
 25 
 
 iiml 
 lii)). 
 
 s of 
 
 17. 
 
 on 
 
 uu- 
 
 )is- 
 
 trict in the Province. The latter Act was extended to Prince 
 Edward Lsiand l»y the 40 Vic., chap. 4; to the District of Keewa- 
 tin by the .*}!) Vic, chap. 21 ; to the North- We.st Territories by the 
 88 Vic.chaj). 4!); and to Briti.sli (voluinbiaby the 37 Vic, chap. 42. 
 
 UNLAWFUL THAININ(J TO THE USE OK ARMS. 
 
 The 31 Vic, cliap. 15, |)rohibits all meetings and a.s.seniblies of 
 pe '^ons for the piirpose of training or drilling themselves, or of 
 being tiained or drilled to the use of arms, or for the purposes of 
 practising military exercises, movements or evolutions, without 
 lawful authority for so doing. Under section 2, such meetings 
 may be dispersed by any Justice of the Peace, and persons at- 
 tending them nuiy be arrested and committed for trial, if not bailiMJ. 
 So also the arms or anuuunition kept for any unlawful purpose 
 may b(; seized and detainelic meeting, Oi- gathering of people not giving a 
 satisfactory acciount of themselves, it is necessary that a convic- 
 tion should shew a reipiest made on the woman, at the time of 
 lier airest, to give an account of hiM'self, and that she did not 
 give a satisfactory account, and that then fore the arrest w»vs 
 made. A conviction, in the words of the statute, " not giving a 
 satisfactory ac<'ount of herself," does not imply or shew such 
 prior tleiiiantl or re(|uest to give an accoimt, atnl is therefoi'e bad. 
 
360 
 
 magistrates' manual. 
 
 R. V. Levecqne, 30 Q. B. (Ont.), 509. The reason of this is obvious, 
 a common prostitute has a right to walk the streets for a lawful 
 purj)ose, and it is only when asked to give an account of hei*self 
 that the obligation to do so arises under the statute. 
 
 Under that part of the section which speaks of persons as 
 vagrants who are able to work, and thereby maintain themselves 
 and families an obligation to maintain must be made out. It i.« not 
 made out in the case of a wife who has left her hasbandand is livinj; 
 in adultery. R. v. Flinton, 1 B. & Ad., 227. A man cannot be 
 convicted, under this section, who offers to take back his wife, 
 although her refusal to return is sufficiently grounded on his ill 
 usage, such offer negativing the refusal to support as well before 
 as after the otter. Flannagan v. Bishop Weai'rtiouth, 8 E. & B., 
 451. 
 
 The wife is not a competent witness under this Act. Reeve v. 
 Wood, 5 B. & 8., 8()4. 
 
 Notwithstanding the provisions of the Acts relating to the se- 
 parate property of a married woman, such woman who, deserted 
 by her husl)and and having no means of maintaining her chil- 
 dren, leaves them and neglects to provide for them cannot be con- 
 victed on that ground as a vagrant. Peters v. Cowle, L. R., 2 Q. 
 
 B. D., i;u. 
 
 If the husband refuse to maintain the wife because she has left 
 him and has committed adultery, he cannot be convicted. R. v. 
 Flinton, 1 B.^ Ad., 227. But it is no defence tha* iC is an in- 
 dustriotis man and is constantly at work. Carpenter v. Stanley, 
 33J.P., :J8. 
 
 The 32 & 33 Vic, chai». 20, s. 25, provides that whosoever 
 being legally liable, either as husband, parent, guardian or com- 
 mittee, nuister or mistre.s.s, nurse or otherwise, to provide for any 
 person, as wife, child, ward, lunatic or idiot, apprentice or ser- 
 vant, infant or otherwise, necessary food, ch)tliing or lodging, wil- 
 fully and without lawful excuse refu.ses or neglects to provide 
 the same, is guilty of a misdemeanor. In the case of a wife 
 prosecuting her husband for neglect to maintain under this sec- 
 tion, it is neces,sary to prove that the defendant is the husband of 
 the ])rosecutrix; that the wife was in need of food clothing or 
 
VAGRANCY. 
 
 361 
 
 com- 
 
 aiiy 
 
 scr- 
 
 wil- 
 
 jvitlu 
 
 wife 
 
 fSCC- 
 
 1(1 of 
 
 lodging ; that the hushand was al>Ie to provido the same Vjut wil- 
 fully ami without lawful excuse refused or negleeterl to do so. 
 The wilful refusal or neglect to provide food, clothing or lodging 
 without lawful excuse is what constitutes the ottence. If it ap- 
 pears that the refusal or neglect instead of being v ''ful is attribu- 
 table solely to want of ability; that the wife is bet r able to siip- 
 port herself than the husband is to suj)port her ; that she is in no 
 need whatever of su])i)ort and does not ask food or re(juire it, that 
 she is living with another man as his wife ; or that without justi- 
 1 cation she absents herself from her husband's roof and without 
 excuse refuses to return ; in these and similar cases it would be 
 absurd to convict the husband as a criminsil, and it nuist be held 
 that there is " lawful excuse " for what otherwise might bi; held 
 wilful refusal or neglect. R. v. Naaitdth (unrt'ijorted), Q. B. (C)nt.), 
 28 Dec, 77, Harrison, C. J. 
 
 A conviction by one Justice of the Peace under this Act is ba. 
 
 A conviction for keeping a house of ill-fame on the Mtli of Oc- 
 tober and on other days and times before that day, was held sutti- 
 ciently certain as to time. The intoiniatioji ilescribed the paities 
 as of the Township of East Whitby, and had "County of On- 
 tario " i)i the margin. It chaiged that they kept a house of ill-fame, 
 but did not expressly allege that they did so in that townshij) 
 or county. The evidence, however, .showed that the plac(! at 
 which such house was kej)t was iv East Whitby, in which the 
 Justices had jurisdiction, and this was held sufficient, li. v. Wil- 
 lUwis, 37 Q. B. (Ont.), 540. 
 
 With legard to the punishment which may be inflicted for va- 
 grancy, the 37 Vic, chap. 43, extends the term of imprisonment 
 
302 
 
 MAGISTRATKS MANUAL. 
 
 to six months. The rulo seems to be tliat where a statute imposes 
 a new puni.shment for an offence the fonnei- punishment enacted 
 by a previous statute for the same offence is abrogated ; therefore 
 in tlie present state of the law tliere can only be an imprisonment 
 for six months according to the later statiite, an, and 
 the latter Act was repealed by the 3!) Vic, chap. 37. 
 
 The provisions of these Acts have been extended to Prince Ed- 
 ward Island by the 40 Vic, chap. 4. 
 
 Under the Knglish Act, correspontling to .section 3 of this Act» 
 an appellant having bi'en convicted ap|)eaKMl from the conviction, 
 and gave due notice to tlui pi'osecutor and to the convicting 
 Justices, and the Justices as well as the pro.secutor wei'e named 
 respondents in the appeal, but the Justices did not appear. The 
 Quarter Sessions (plashed the conviction and ordered the respon- 
 dents, or .some or one of them, to pay tlu^ apj»»dlant's costs. It 
 was held that the Sessions had no jtower to award costs against 
 the convicting Justices. R. v. (roodtdl, L. R., !) Q. H., i)r>7. 
 
 It is perftictly legal for workmen to pi'otect their interests by 
 meeting or combining together, or forming unions in oider to 
 determine and stipulate with their employers the terms on which 
 they will consent to work for them. Hut this right to combine 
 must not be allowed to interfei'e with the right of those workmen 
 who ilesire to keeji aloof from the combination, to dispose of their 
 laltourwith perfect fVeedom as they think fit. Noi'iuust it interfere 
 with the rights of the mastei's to have their contracts duly eai ried 
 out. infraction of such rigiits will laing the wrongdoer within 
 the pale of the criminal law of conspiracy. 
 
 The law on this subject is ])i'incipally('()ntainedinthe Act 35 Vic, 
 chap. 31, and the Act30 Vic, chap. 37 amemling it. IJndeithe I'nd 
 
VOLUNTARY OATHS. 
 
 363 
 
 section of the 35 Vic, chap. 31, prosecutions are to be according to 
 the provisions of the Act relating to the duties of Justices of the 
 Peace out of sessions in n^lation to summary convictions and 
 orders, 32 \i 33 Vic, chap. 31. B>it under the 3rd section of tlie 
 39 Vic, cliap. 37, the accused may on appearing before the magis- 
 trate. Arc, declare that he objects to be tried for such offence by 
 the magistrate, and thereupon the latter shall not ])roceed with 
 such trial, but may deal with the case in all respects as if the ac- 
 cused were charged with an in(('tioii the Court ha.s*a discietion to grant ..jury, 
 nml if a juiy i> not (Iciiiamlecl hy either appi-llant or re.sponilent 
 llie cniirt will procee of ('anaila. 
 Aiil'.\K Ik"). P)ut tills seetion exji-essly pi'ovl les tor thr admis- 
 sion of flllllier e\Idi'lK-e. 
 
 C^iiilrr ilie ('on. Stats, l'. ("..chap. 114, therr was no power of 
 adjournini'iit The appeal was i-eipTn'ed to hf Inai'd at the ( 'ourt 
 of (^)UiirtiT Sessions, ajipealed to, fiiv the Act provided that the 
 court should at xnrh s,\^l,' r, I'ii (^'. W. ''Ont.;, .")l(i. 
 
 Where. tlieivfiH'e. sucli court, aftiM' ,Moof of entry and notice of 
 the appeal, adji'iiriied tln' furl Imt Iii';i:-iii .;• hy order until the next 
 sittings, ami then uiadc an fU'li'r juashing th" conviction, the 
 orders were ipiashed. /''. Sutlie c(jstsiif ;,n apjteal from a Justice's 
 conviction as well as the appeal itself ha 1 to he }. li. ((Jut.), 18k 
 
 Under this section, howi'Ver, tlirie is a powei' of adjourmuent, 
 the practice lieing the ->ame as on a|>pe.il t.i tlii' (ieneral Sessions 
 from a conviction hetore a Justice of I In' I'eace. made under the 
 authority of a statute of ( 'anada. See iiiiti'. p. 18S-142. 
 
 The coint will not give costs on ailjourning an appeal, uidess 
 the otijeetion is made at the time of the adjournment, lie Mc- 
 Cunilx',; -HIQ. H. (Out.), ."ihi. 
 
 It seems doiditful whether undoi' the 82 \- 88 Vic, cluij). 81, s. 
 74, an order of .sessions, simply ordering ccsts of an appc^al to ho 
 paid witht)ut directing them to bo ])aid to the C.'lerk of the Peaco 
 
 24 
 
370 
 
 MAGISTRATKS MANUAL. 
 
 as required by tlie Act is re/:(ular. Re Delttney v. Macmib, 21 C. P. 
 (Ont.), ')(J3 ; see ante, p. 147. 
 
 5. If upon tliu trial at the Ooneral So8."ii((ii8 of the Peace of an appeal from 
 a decision of a Justice of the Peace, upon any matter within the legislative 
 authority of the Legislature f)f Ontario, it is proved upon the oath or athnna- 
 tion of any credible witness, that a person whose deposition hiis been taken 
 upon the original hearing, is dead, or is so ill as not to be able to travel, or 
 is absent from Ontari(j, or if it is proved in like manner that after diligent 
 in(|uiry, such person cannot be foiuid to be served with a subpcena, and if it is 
 also proved thai such deposition was taken in [iresence of tiie person accused, 
 and that he, his counsijl or attorney, had a full o[)portunity of cross-examin- 
 ing the witness, and if the disposition purports to bo signed by the Justice by 
 or liefore whom the same purports to have been taken, it shall be leoeived as 
 evidence in tiie prosecution witiiout further pmof thereof, miless it is proved 
 that the /;/»', [)[». 3S-42. 
 
 ('». Any ai)peliant may almndon liis appeal l)y giving the opposite party 
 notice of liis intention in writing six days l)efore the Ses.sions appealed to ; 
 and tliereui>on tlie .lu.sticc, .lusiii'cs or Police M.'igistrate may tax the addi- 
 tinnal costs, if any, of tlie rcspouiit'Mt. antl add the same to the original costs, 
 and proceed on the? original convicrion, nr m-iler, in the same manner as if 
 there had been no appeal thinon. 
 
 WHKN AViKNOKli AiTS OK CANAliA To AIM'l.V. 
 
 7. If the Parliament of Canadii amends any statute, the operation whereof 
 is extended by virtue of this Act, im such aniendiiunt shall have any force in 
 Ontario, by virtue of this .\ct, until after the teiiiiiiiation of the Session of 
 the Legislature of Ontario, lield next after the passing of the amending 
 statute. 
 
 CHAPTER 75. 
 
 An Act respecting the Pi'ocedure on Apftcals to tlu; Judge of a 
 County Court from Summary Convictions. 
 
 Her Majesty, by and with tiie advice and consent nf the Legishitive Assem- 
 bly of the I'rovhico of <.)ntario, enacts as fuliows : — 
 
 1. In the consiruction of this Act— 
 
 (1.) ''Justice" or " Justice nf the I'eace," shall incUide two or more Jus- 
 tices of the Puaue or a Stipendiary or Police Magistrate ; 
 
PROCEDURE ON APPEALS FROM SUMMARY CONVICTIONS, fill 
 
 (2.) " Conviction " shall include an order niado by a Juatice of the Peace ; 
 and 
 
 (3. ) " Person convicted" shall inchido any person against whom an order is 
 made as aforesaid. 
 
 2. \Vli(>rever, by any statute now or hereafter in force relating to nijvtters 
 within the legislative authority of the Legislature of Ontarin, an a' 'jeal is 
 given to the Judge of the Cdunty Court without a jury, from a sunnuary 
 conviction, had or made before a Justice of the Peace, and no special provi- 
 sinii is made therefor, such aiii)eal shall be to the Judge of the County Court 
 of tile County in which the conviction is made, sitting in Chambers, and the 
 proceedings thereon shall be ;is liereinaftec provided. 
 
 55. In any of the following cases, namely: 
 
 Firstlij. If the appeal is against any conviction whereby only a money 
 penalty is imposed, then, in case the person convicted deposits with tiio con- 
 victing .Justices the amount of the penalty and the costs, and a further simiof 
 ten dolhirs, or with two sufHcient sureties enters into a recognizance ( Form 1) 
 before a .lustice of the I'eace, in a siuu double the amount of the penalty and 
 the costs, conditioned duly t(» prosecute the a])peal, and to abide by and 
 perform the order of the .ludge thereupon, and to pay such costs as he may 
 order ; 
 
 S(('i>iit. If till! appeal is against a conviction whereby im|iri8onment is 
 imposed, then, in case the person convicted, with tw(j sulticiont sureties, en- 
 ters into a recognizance (Form 2), before a Justice of the Peace in a sum not 
 less than one iiundred nor more than two hundred dollars, as the convicting 
 Justice directs, and in double the amount of any penalty and costs which the 
 person convicted has been ordered to pay, conilitioned as aforesaitl, and also 
 containing the further condition that tlu> person convicted will surri'uder 
 himself if the conviction is atlirmed ; 
 
 Tliinlhi. If the [jcrson convicted is in custody for non-payment of a fine 
 and costs, or in couseipieiice of im[irisoniii(.'nt being ini[iuscd as atoresaid, 
 and fails to make the required deposit, or to enter into .i recognizance, as 
 hereinbefore provided, but deposits with the said Jtistico the sum of ton 
 d' liars , 
 
 the said Justice shall, at the reijuest of the person convictoil, made within 
 five days after the date of the conviction, forthwith transmit to the (Merk of 
 the County Court, by registered letter post-paid, all the proceedings ami evi- 
 dence ; which said proceedings and evidence, with a duplicate of any order 
 made by the Judge as hereinafter provided, shall immediately, after the mat- 
 ter has been finally disposed of by the Judge, be transmitted by the Clerk of 
 
372 
 
 MA(J1STIIATKS MANUAL. 
 
 th<; County Court, in nuunior aforosaiil, to the Clurk of tho Peace, to he hy 
 him kept with the records of cciiivictions. 
 
 4. In ;iny of tho cjiaes of the cliiHses firstly iunl secondly ahove mentioned, 
 the convictinj^ Justice, upon the recoj,'nizance heinj^j i^'iven or the deposit made, 
 as the daso may re(iuire, shall stay all iiroceodings ui)on the conviction, and 
 if the person convictetl is in custody, the said Justice shall issue his warrant 
 (Form [\) to liberate such pcr3(jn. 
 
 r>. Tn any of the cases tliirdly above mentioned, the person apiiealiiii,' shall 
 remain in custody while tlie a[>peal is pending, unless he is in custody for 
 non-payment of aline or costs, in which case the convictiii},' Justice shall 
 order his lil)eration ujion his depositinj,' (in addition to the said sum of ten 
 dollars) the iiirioun' for the non-payment of which he is in custody. 
 
 (i. Within ten days after the date of the cimviction, hut not afterwards, 
 iinli'.ss it is made to appear to the Judge that the delay arose wholly fi'om the 
 default of the convicting Justice, the Judge of the County Court, if he is of 
 opinion from the said t.-vidence that the conviction nmy be erroneous, Uiaj' 
 grant a suuumous ciIHul; upon the t.'ouui y Crown .\ttorney and the [irosecu- 
 tor to show cause why the conviction .should nut lie rs to lir ictui'neil !iy the 
 County Court clerk at Barrir, to the niaifist rate's clerk atOrillia, 
 iriov'ed toipiasli tln' ri'turn to the i-crfinra ri, and for another writ, oi' 
 tor an attachment toiMiothaviiiL,'' retu rned the con victioninol mm Hence 
 to it, or for an order to return the conviction forthwith, oi' to 
 amend the return l)y including- the conviction therein. In sup- 
 poit of this motion, it was urirtMl that the nia<,nstrates wroniifully 
 put it out of their jxnver to return the writ hy transmitting;- the 
 papers to the cli'ik of the County Coujt wlim lliry must have 
 known that the time for transmitting the papers had expired, and 
 that the a|)peal was too late. 
 
 The iippliciition was refuse(l, for S liaxin;;' procure/'(', was decided. 
 
 7. l'|inii (hu return (if tlio HUiiuiiuii.s tlm .lti,l:;i! ii|-eii luMiing tlir iiiiilii'u 
 may uitlusr iiHinii or (|iiiih1i tlie cotivictiini, or, if lu; think.s tit, in ly hear the 
 •'viili'iico iif Hiich nthor witiu^ss nr wiliiesHi's as iiiay he iiniiluci'd hiforc him, 
 iir t.lie further i'viilt>iii!i' of any witnens ali'i'iuh' exaniiiuMl, iind ni;iy then nuiku 
 an iMik'r aliivniii'!,', nr aini'iulinir ami atlirniinif, or i|iia^ihiiiy tiie cunviotinn as 
 
374 
 
 MAGISTRATES MANUAL. 
 
 he may think just, and may order the payment of C(«t8 and may fix the 
 aniomit thereof. 
 
 8. T'pnn the production of the .Juds^o's order affirming, or amending and 
 affirming the convic+ion, the Justice who^has made the conviction shall, if 
 the case is one in which a recognizance has not been given, issue his warrant 
 for payment of such further sum for costs as the sum deposited with him is 
 insufficient to pay ; if the conviction is (luashud, the Judge shall order a re- 
 turn of the money deposited, and shall have authority to order payment nf 
 such sum for costs as he may tax and allow, and unless the sum is paid by 
 the complainant, the Justice shall issue his wan-ant to levy the costs. 
 
 9. If by the convictii>n it is adjudged that the person convicted shf)uld be 
 be imprisoned, and the conviction is affirmed, or amended and alliruied, m- 
 the person convicted fails duly lo prosecute tlio appeal, the .ludge shall iss\:i' 
 his warrant (Form 4)fl or other place of 
 imprisnnmeut of the ptTson convicted, and unless siich pers'-n, within one 
 week thereafter, surrenders himself into the custody of the constable or oth."r 
 officer entruHted with the execution of tlie warrant, the condition of the ) - 
 cogniz'.inci^ shall be deemeil broken, and the lecognizance forfeited ; and upon 
 proof .,f the default being made by affidavit of the officer or otherwise, the 
 Jtulge may certify (Form 5^ the default on the back nf tlie recognizance, and 
 shall 1h(ireup(in transndt the recognizance to the Clerk of the Peace ; 
 
 (2.) 8uch recognizance shall be theveafter proceeded upon at the (Jeneral 
 Sessions of the Peace in the same maimer as a recognizance taken upon an 
 appeal tn the Sessions from a sunnnury conviction nniy ])e proceedeel upon ; 
 and the said certificate shall be deemed sufficient in-'niui fuciv evidence of the 
 defa\Ut of the defendant ; l)ut such procuedings shall not relieve the person 
 convicted from undergoing th(> term of iniprisonment to which he was sen- 
 tenced ; and the warrrant of the Judge issued in that behalf, or any new 
 warrant iss\ied by him, may be executed in any part of Ontario in the same 
 manner and subject to the like ctmditions as a warrant of a Justice of the 
 Peace for the aiiprel\ension of an oU'ender. • 
 
 10. If by the conviction only a money penalty is imposed, the .Itidge upon 
 beinn satisfied by aflidavit or otherwi.se that default has been mai^e upon a 
 recognizance given on an ajipeal in such a case, shall certify in likt! manner, 
 as is pidvided in the preceding section, and similar proceetlings shall there- 
 upon be liad in respect of such recognizance. 
 
 n. In ease it is proved to tlii! satisfaction of tlu' .hidge that the [lerson 
 convicted had previously served a portion of his term, tlie Judge shall only 
 isHiio his warrant for the conunitment of the defendant for the residue of the 
 
PROCEDURE ON APPEALS FROM SUMMARY CONVICTIONS. 37'i 
 
 an 
 
 >n ; 
 
 tlio 
 •sou 
 sen- 
 Ill! w 
 aiiH; 
 
 the 
 
 111 ii 
 iier, 
 
 I'l'O- 
 
 'Hdll 
 
 mly 
 tho 
 
 term of imprisonment to which he was sentenced ; tlie Judge may, if he 
 thinks tit, transmit his said warrant to the con victinj^ .Justice in order that ho 
 may place the same in tlie hands of a constable for executiim. 
 
 12. Any warrant issued mider this Act may he directed in the same man- 
 ner, and executed by the like otlicers, as a warrant of commitment ui)on a 
 summary conviction made mider a statute of the Parliament of Canada, 
 
 I'i. In all cases of appeal to a County Court Judi,'c from any summai'v 
 conviction had before any Justice, tho Judge to whom such appeal is made 
 shall hear and di-tennine the charge or complaint on which such conviction has 
 been had, upon the merits, notwithstanding any defect of form or otherwise 
 in such c >nvicti(jii ; and if the person charged or coniplaineil against is found 
 guilty, the conviction shall be attirmod, and the Judge shall amend the same 
 if necessary. 
 
 14. The Justice .shall i-etaiii any moneys deposited with him as aforesaid 
 for the period of six mouths, unless judgment is sooner given ; and u|)oii the 
 judgment in appeal being given, of ui)on the ex[iiratioii of six months from 
 the day of the date of the conviction, the Justice shall pay over such moneys to 
 the person or persons entitled thereto, in accordance with the judgment ; and 
 if the judgment in ajj^jcal is not delivered within six months from the day of 
 the i(hi into any of Her Majesty's Superior ('oiuts of Record, and no wai'- 
 rant or commitment shall be held void by reason of any defect tlierein, [iro- 
 vidod it is therein alleged that the party has been convicted, and there is ii 
 gOf)il and valid conviction to sustain tiie .s une. 
 
 See (inte p. 140. 
 
 1(>. In all cases where it ap[)eai's by the conviction that the person con- 
 victed has appeared and pleaded, and the merits have been tried, and that 
 BUch person has not (in manner hereinbefore i)roviiled) aijjiealed against the 
 conviction where an appeal is allowed, or if ai)pi'aled against, that the 
 conviction has been aflirmed, or aimmderl and atlirmed, siicli conviction 
 shall not afterwar.!'. the 
 
 sum of each, of good and lawf\d money of Canada, to be 
 
 made and levied of their several goods and chattels, lands and tenements, 
 ri'S|iectively, to the use of our said Lady the Qiuh'U, Her Heirs and suc- 
 cessors, if lie the .l,y>. shall fail in the condition hereunder written (ur 
 endorsed). 
 
 Taken and acknowledged tlu' day and year first above mentioned at 
 , before me {<>r us). 
 
 J. S. 
 
 Whereas the siid A. H. was on the ilay of . \.l). 
 
 , convicted before C l>. (and I']. A'.) one (i);'two)c)f Hei' Rliijesty's 
 .Justices of the I'eace for tliesai<[ County (ur United Counties), for tiiat (s/k/- 
 /'/((/ thr snliHtdnrc of Hie rotirirtion) : 
 
PROCEDURE ON APPEALS FROM SUMMARY CONVICTIONS. 377 
 
 And whereas the said A. li. has undertaken tn appeal against the said con- 
 viction to the Judge of the County Ccnirt of the County of 
 (o: Uuite. hereinafter named, or as tint rti.'<(; mail iniiiiri). 
 
 Whereas .1. II. has before OH.SEn OJJ THK UEfOtiNIZAN't'i;. 
 
 I hereby certify that the within-named .1. />'. has not surrendered himself 
 (statiini iirrordiiuf to the fact the ilefanlt on accoind of vjhich t)ie reciKjnizaticr i.s 
 fnrfi'iiiil) in accordance with the condition of thi; within recognizance, but 
 thereiji has made default, by reason whererA,iEHTY, by and with the advice an 
 
 :5 
 
 to 
 
 > 
 
 
 .2 "*^ 
 
 -J 
 
 _. -^ 
 
 3 -fi 
 
 If not paid, why not, and u't'ii.'nvl ob- 
 servation-!, if any. 
 
 
 
 
 
 
 
 
 
 
 
 A. B. , Convicting Justice, 
 or 
 A. B. and C. D. , Convicting Justices (a.s the case ihhii In). 
 
 2. Every such return shall include all convictions and other matters men- 
 tioned in the preceding section, not included in some previous vetr.rn, and 
 also all cases wherein a fine or any part thereof has been paid siiao tlie last 
 previous return ; and in the column for observations in every such case, 
 shall be written the words " P(tiv ref iis- 
 
 ill forfeit 
 til lie re- 
 infonna- 
 
 RETUUNS OF CONVICTIONS AND FINKS. 
 
 381 
 
 tioii) ill any Court of Record in the I'rovince, one moiety whereof shall he 
 {laid to file jiarty suing, and tlie other moi('ty into the hands of the Treasur- 
 er of tln! Province, to and for the public uses of the rntvince. 
 
 4. All i>roHecntif)iis for iienaltics arisiii',' under the provisions of the next 
 preceding section shall he coiunienced within six months next after the cause 
 of action accrues, and the same shall be tried in the County or place wherein 
 such penalties have been iiuMirred ; and if a verdict or judj|iiient passes for 
 the defi'iidant, or the pliiintitl' bt'Conies nonsuited or disconH-uies tlie action 
 after issue jojuerl, or if upon y the Clerks of the Peace shall be entereil of 
 record by them ipiarterly, in the same manner as formerly recorded at 
 Quarter Sessions ; and the duties, liabilities, fees and emoluimuits of the 
 (Jlerks of the Peace in respect thereof, shall continue the same as if such 
 returns had been made to the Court of (ieneral Sessicjiis, luitil otherwise 
 varied bj- competent authority. 
 
 7. The Clerk of the Peace of each County, within twenty ilays after the 
 end of each fJeneral Sessions of the Peace, shall transmit to the Treasurer 
 of the Province a true copy of all such returns made within his (Jounty. 
 
 8. Nothing herein contained shall exonerate Justices of the Peace from 
 duly returning to the General Sessions of the Peace of their resiiective 
 Counties, any convictions, or records of convictions, which are by law ro- 
 (piired to be so returned. 
 
382 
 
 MAGISTRATES MANUAL. 
 
 CHAPTER 77. 
 
 An Act respecting the Foes of Justiciis of the Peace. 
 
 Her Majesty, by and with the advice and consent of the Legislative 
 Assembly of the Province of Ontario, enacts as follows : — 
 
 1. The fees mentioned in Schedule A. to thi.s Act, and no others, shall be 
 and constitute the fees to be taken by Justices of the Peace, or by their 
 Clerks, for the duties and services therein mentioned. 
 
 2. The costs to be charged in al' cases of convictions, where the fees are 
 not expressly prescribed by any r.catute, shall be those contained in Schedule 
 B. to this Act. 
 
 'S. This Act shall not authorize any claim being made by the Justices 
 aforesaid, for fees of any description connected with cases above the degree 
 of misdemeanf)r. 
 
 4. Any Justice or Justices wilfully receiving a larger amoimt of fees than by 
 law are authorized to be received, shall forfeit and pay the sum of eighty 
 dollars, toL'ether with full costs of suit, to be recovereran Infornmtion and Warrant for apprehension, or for an In- 
 
 formation antl Sunnnona for assault, trespass, or other misde- 
 meanor . $0 50 
 
 2. For each copy of Sunnuons to be served on defendant or defeiidants 10 
 
 3. For a iiiihp(i'ti.(( (ouhj mic Sub|)(tina on. each /iidr. to he, chanjed for in 
 
 each casCf'n'hich inaij vo)t,Uuit . Hut in all cases which 'idinit ..« 
 
 «ingie Justice of e 1^:1 :nd\-r""""' rr^''"^ '•^^"'•^' " 
 
 twenty dollars cm ° ;'"' ' "^"^ ;^'''"«'^''" "<' higher penalty tlmn 
 
 cnviiiiont: :;;:' t;:;:^::': ."::"!' "":''. "- ^""^-^^ ^- ^'^^ 
 
 And for the warrant t,. \,yy n,, j.,„„,t^. 
 
 60 
 26 
 
384 magistrates' manual. 
 
 10. And in iill cases where persons are siibp(enaed to give evidence 
 before Justices of tlij I'eace in cases of assault, trespass or misde- 
 meanor, the witness shall be entitled, in the discretion of the 
 Justice, to receive for every day's attendance, where the distance 
 travelled in coming t(j and returning from such adjudication does 
 not exceed ten miles . §50 
 
 And for each mile ab(jve ten 05 
 
 CHAPTER 181. 
 
 All Act icspectitiff tlic Siilo of Kciiiiciiti'd or Spirituous Ijif|Uor,s. 
 
 Hki{ Ma.iksty, by and with the advice lUid consent of tlie Ijcgislative Assem- 
 bly of the Province of Ontario, enacts as follows : — 
 
 1. This Act may be cited as " T/e I^iijiini- Limcic Act." 
 
 INTKKrKKTATION'. 
 
 2. In this Act the words and exprcssiiins fnllowJiiLf shall l)e construed as 
 follows : — 
 
 (1.) " Liipiors " or " Li(jUor'' shall be construed to mean and cnmprchend 
 all spirituous and malt liquors, and all cnml)inations of li(iuors and drinks 
 and drinkable liijuids which are intoxicating. 
 
 (2.) " Tavern license" shall be construed U> mean a license for selling, bar- 
 tering f 
 shall be liable to a penalty of five dollars, besides costs. 
 
 See as to this .section, R. v. Lennox, 20 Q. B. (Ont.), 141. 
 
 30. No person shall sell by wholesale or retail any spirituous, fermented, 
 or other manufactured liciuors, without having lirst obtained a license vuider 
 this Act, authorizing him so U) do ; but this section shall not apply to sales 
 under legal process, or for distress, or sales by Assignees in Insolvency. 
 
 A.S to the penalty foi' contravention of this or the 40tli .section 
 of the Act, see s. 51 
 
 If tlie prosecution is foi- soiling without license the conviction 
 should allege the sale to bo without license. See ex 'parte Wood- 
 house, 3 L. C. R., 1(4 ; see schedule D, No. 3, also section 75 ; see 
 however, McCullt/ v. McCay, 3 Cochran, 82. 
 
 Section 25 of the(Ont.)32 Vic, chap. 32, applied where there was 
 no license ; s. 2() when there was a license to sell not less than a 
 tjuart, but the party was without the license therefor, that is to 
 sell the smaller ([uantity. li. v. Flnnin, 33 Q. B. (Ont.), 523. 
 
 This section prevents any person selling without licen.se, and s, 
 4.3 applies where the oti'eiider has a licouse but sells during pro- 
 hibited hours. 
 
 S5 
 
386 
 
 MAGISTRATES MANUAL. 
 
 2. No person unless duly licensed shall by any sign or notice hold liimself 
 out to the public that he is so licensed ; and the use of any sign or notice for 
 this purpose is hereby prohibited. 
 
 40. No i erson sliall keep or have in any house, building, shop, eating- 
 house, saloon, or house, of public entertainment, or in any room or place what- 
 soever, any spirituoiis, fermented or other manufactured liquors for the pur- 
 pose of selling, bartering or trading therein, unless duly licensed thereto, 
 under the provisions of this Act. 
 
 Under this section, the otlence is keeping liquors, &c., for the 
 ])urpose of selling, bartering, or trading therein. As to the evi- 
 dence necessary to prove that the liquors are kept for such pur- 
 pose, see sections 80 & 96. 
 
 Two defendants cannot be jointly convicted under this section, 
 and an award of one penalty jointly against them is erroneous. 
 The offence docs not arise from the joint act of the defendants, but 
 from the personal and particular omission of each defendant tf) 
 procure a license, and it is several in its nature ; and when such 
 defendants are jointly charged in an information, it is a violation 
 of the provisions of the 32 & 33 Vic, chap. 31, s. 25, whicii 
 requires eveiy complaint to bo for one matter only. See an/r', 
 p. 114-5 ; R. v. Snider, TS C. P. (Ont.), 330. 
 
 Such a conviction of two defendants was therefore quashed on 
 cartiorari R v. ISutton, 14 C. L. J., N. S., 17. 
 
 A conviction for selling licjuor without license, which did not 
 state that the li(|uor was not sujtplied upon a requisition for 
 medicinal purposes, was held bad under the (Ont.), 32 Vic, chap. 
 32, s. 23. R. V. White, 21 C. P. (Ont.), 354. See also ex jyarte 
 Clifford, 3 Allen, 16 ; Mills and Brown, 9 U. C, L. J., 246. 
 
 In the case of R. v. White, supra, the exception was contained 
 in the enao.i'nKj clause of the statute, and it is not to be inferren\ this decision that a conviction under this or the 39th section 
 should negative the exceptions contained in .sections 41 or 42, 
 these exceptions being in f'ifferent subsequent .sections. See 
 ante, p. 128. 
 
 A conviction under this section need not negative the excep- 
 tions contained in sections 41 and 42. 72. v. Breey), 30 Q. H. 
 (Out.), 84. See d with or relating to any grant of any license 
 other than the sum to be paid therefor as the duty \mdcr the provisions of 
 this Act, or to receive, take, or have any note, security, or promise for the 
 payment of any such money or any part thereof, from any person or persons 
 whatsoever ; and any person or perstms guilty of, or concerned in, or party 
 to any act, matter or thing contrary to the provisions of this section, or of 
 sections ten and eleven, shall forfeit .and pay to and for the use of Her 
 Majesty a penalty of not less than fifty dollars, nor more than one hundred 
 dollars, besides costs, for every such otfence. 
 
 Under the old law, where licenses were granted by the councils, 
 it was held that a reeve of a municipality was not liable to con- 
 viction for signing a certificate for a license, and delivering the 
 same to the clerk with instructions not to hand it over to the 
 applicant until the Inspector had reported in favour of the appli- 
 cant. R. V. Paton, 35 Q.B. (Ont), 442. 
 
license, 
 
 ly license 
 
 isions of 
 
 .' for the 
 
 persons 
 or party 
 in, or I if 
 
 of Her 
 liunilred 
 
 himcils, 
 |to con- 
 ling the 
 
 Ito the 
 appli- 
 
 SALE OF SPIRITUOUS LIQUORS. 
 
 391 
 
 48. Any member of any Board of License Commissioners, or any Inspector, 
 officer, or other person who, contrary to the provisions of this Act, knowingly 
 issues, or causes or procures to be issued, a tavern or shop license, or a certi- 
 ficate therefor, shall, upon conviction thereof, for each offence pay a tine of 
 not less than forty dollars, nor more than one hundred dollaru, and in default 
 of payment of such fine the offender or offenders may be imprisoned in the 
 County Gaol of the County in which the conviction takes place, for a period 
 not exceeding three calendar months. 
 
 49. If any officer of any Municipal Corporation is convicted of any offence 
 under this Act, he shall, in addition to any other penalty to wliich he may be 
 liable under this Act, thereby forfeit and vacate his office, and shall be dis- 
 ijualified to hold any office in any Municipality in this Province for two years 
 thereafter. 
 
 50. If any member of any Municipal Council is convicted of any offence 
 under this Act, he shall, in addition to any other penalty to which he may 
 be liable under this Act. thereby forfeit and vacate his seat, and shall be in- 
 eligible to be elected to or to sit or vote in any Municipal Council for two 
 years thereafter ; and if any such person, after the forfeiture aforesaid, sits 
 or votes in any Municinal Council, he shall incur a penalty of forty dollars 
 for every day he so sits or votes. 
 
 51. Any person who sells or bart(?r3 spirituous, fermented or manufactured 
 liipiors of any kind, or intoxicating liquors of any kind, without the license 
 therefor by law recjnired, or who otherwise violates any other provision of 
 tliis Act, in respect of which violation no other punishment is prescribed, 
 shall for the first offence, (ju conviction thereof, forfeit and pay a penalty of 
 not less than t.vonty dollars besides costs, and not more than fifty dollars be- 
 sides costs ; and for the second offence, on conviction thereof, such person 
 shall be imprisoned in the County Gaol of the County in which the ollence 
 was committed, to he kept at liard labour for a period not exceeding three 
 calendar months. 
 
 The occupant of tlie house is the person liable to the [)enalty, 
 under this .section, though tlie sale is made by some other person 
 who cannot be proved to liave acted under or by the directions of 
 such occupant. See section 83. 
 
 52. For punishment of offences against secticonviet_the keeper of having an improper or a riotous or disorderly 
 house, as the case may be, and annul his license, or suspend the same for not 
 more than sixty days, with or without costs, as in his or their discretion may 
 seem just; and in case the keeper of any such inn, tavern, ale-house, beer- 
 house or place of public entertainment, is convicted under this section, and 
 his license annulled, he shall not be eligible to obtain a license for the period 
 of two years thereafter, and shall also be liable to the penalties by the fifty- 
 first section prescribed. 
 
 54. Any person licensed to sell wine, beer or spirituous liquors, or any 
 keeper of the house, shop, room, or other place for the sale of liquors, who 
 knowingly harbours or entertains any constable belonging to any police force, 
 or suffers such person to abide or remain in his shop, room or other place 
 during any part of the time appointed for his being on duty, unless for the 
 purpose of quelling any disturbance, or restoring order, or otherwise in the 
 execution of his duty, shall, for any of the offences aforesaid, be deprived . f 
 his license. 
 
 55. Any person who, having violated any of the provisions of this Act, 
 compromises, compounds or settles, or offers or attempts to compromise, com- 
 pound or settle the offence with any person or persons, with the view of pre- 
 venting any complaint being made in respect thereof, ' r if a complaint has 
 been made with a view of getting rid of such complaint, or of stopping or 
 having the same dismissed for want of prosecution or otherwise, shall be 
 guilty of an offence under this Act, and on conviction thereof shall be im- 
 
SALK OF SPIRITUOUS LIQUORS. 
 
 393 
 
 is Act, 
 com- 
 lof pre- 
 int has 
 ling or 
 hall be 
 Ibe im- 
 
 prisoned at hard labour in the Common Gaol of the <\iunty in which the 
 offence was committed for the period of three calendar months. 
 
 This .section is within the powers of the Provincial Legislature, 
 though under the British North America Act 18G7, s. 91, No. 27, 
 tht' right to legislate as to the criminal law, is vested in the Parlia- 
 ment of Canada. B. v. BuarJman, 30 Q. B. (Ont.), 553. See s. 
 92. Nos. 9, 15, IG. 
 
 See on this section, E. v. Mason, 17 C. P. (Ont.), 534. 
 
 50. Every person who is concerned in, or is a party to, the compromise, 
 composition or settlement mentioned in the next preceding section, shall be 
 guilty of an offence under this Act, jvnd on conviction thereof shall be impri- 
 soned in the Common Gaol of the County in which the offence was commit- 
 ted, for the period of three calendar months. 
 
 57. Any person who, on any prosecution under this Act, tampers with a 
 witness, either before or after he is sunnnoned or appears as such witness on 
 any trial or proceeding under this Act, or by the offer of money, or by 
 threats, or in any other way, either directly or indirectly, induces or attempts 
 to induce any such person to absent himself, or to swear falsely, shall be 
 liable to a penalty of fifty dollars for each offence. 
 
 Penaltieti not to he Ranittfd. 
 
 58. No Police Magistrate or Justice or Justices of the Peace, License Com- 
 missioner or Inspector, or Municipal Council or Municipal officer, shall have 
 any power or authority to remit, suspend or compromise any penalty or pun- 
 ishment inflicted under tliis Act. 
 
 Recovery of PeiiaUiis hy DL^tress. 
 
 50. For the recovery of the penalties in money under this Act, and legal 
 costs, upon and after conviction in cases not appealable, and in cases appeal- 
 able where an appeal has not been perfected according to law, it shall be 
 lawful for any Justice, Justices^or Police Magistrate to issue a warrant of 
 distress to any constable or peace officer, against the goods and chattels 
 of the person or persons convicted ; and in case no sufficient distress is 
 found to satisfy the said conviction, then in cases not otherwise provided for 
 by this Act, it shall be lawfiil for the said Justice, Justices or Police Magis- 
 trate to order that the person or persons so convicted be imprisoned in 
 any Common Gaol or Gaol or Lock-up House, within the County in which such 
 conviction was made, for any period not exceeding thirty days, unless th» 
 penalty and all costs are sooner paid. 
 
394. 
 
 MAOISTRATKS MANUAL. 
 
 PROSECUTIONS. 
 
 66. All informations or compbiints for the prosecution of any otteneo 
 against any of the provisions of this Act, shall be laid or made in writin.,' 
 (within thirty days after the comnii.'jsion of the ott'ence, or after the cause uf 
 action arose, and not afterwards,) before any .Justice of the Poace for tiie 
 County or District in whicli the otfence is alleged to have been committed, i>r 
 in Cities and Towns where there is a Police Magistrate, before such Police 
 Magistrate, but may be made without any oath or aHirmati(jn to the truth 
 thereof, and the same may be according to tlie form of Schedule C. to this 
 Act or to the like effect. 
 
 Under this section the information nuist shew that it is laid 
 within thirty days after tiie coniinission of the ort'ence, or after the 
 cause ^■'' action arose. See ((tite, p. M9. 
 
 But the information need not contain an express alleoatioti to 
 this effect. If it appears on the face of the infoi'mation this will 
 suffice. Thus where a conviction on its face was dated on tlie 
 30th of April, and alleged the sale of liquor on the 12th of April 
 in the same year, it was held no objection that the proceedings 
 were not stated to have been begun within the twenty days f I'oui 
 the offence limited by s. 2.'>9 of the 29 .Jc 30 Vic, chap. .'51, for the 
 fact sufficiently appeared on the face of the conviction. Re'ul v. 
 McWhinnie, 27 Q. B. (Ont.), 289. 
 
 Where, therefore, the information in the form given in "Schedule 
 C," shews the day of sale as in that form, and also the day of the 
 laying of the information, this will be sufficient without any 
 ex[)ress allegation that the laying of the information is within the 
 the thirty days ; provided, of course, that tne fact is so. 
 
 The court would no doubt sustain an information which followed 
 the form C. in the schedule. See s. 7o ; R. v. Stnickan, 20 C P. 
 (Ont.), 182 ; Reid v. McWhinnie, 27 ^. B. (Ont.), 289. 
 
 Under the (Ont.) 32 Vic, chap. 32, it was not necessary tliat it 
 should appear on the face of the conviction that the prosecution 
 was commenced within twenty days of the commission of the 
 offence. This latter point, however, depended upon the peculiar 
 language of the Act, or rather upon the fact that the section of the 
 Act containing the limitation, was entirely distinct from the 
 section creating the offence and imposing the penalty — the latter 
 
SALE OF SPIRITUOUS LK^'JtjRS. 
 
 ;}•♦.'. 
 
 the 
 
 dale 
 
 It" the 
 
 any 
 
 the 
 
 |i\ved 
 • P 
 
 It it 
 
 Ition 
 the 
 
 liliar 
 the 
 the 
 
 itter 
 
 being s. 22, and the former s. 25. The rule in sud cases is that 
 the limitation arising under a distinct clause is mattt-r -f det'ence 
 and need not appear on the face of the conviction. R. v. Sfrdckan. 
 20 0. P. (Ont.), 182 ; Wrxf/ v. T^h, 12 Q. B., 4!)2. 
 
 The conviction was sustained on the above ground, and on the 
 further ground that it substantially followed the form given in the 
 statute, and therefore no further allegations were necessary. See 
 ante, p. 127. 
 
 It has been held in the Province of Queliec that in a prosecution 
 for selling licpior without license, the information need not be 
 under oath. Ex 'parte Cousiiie, 7 L. C. J., 112 ; see also R. v. 
 McConnell, G O. S., 029. 
 
 As the procedure in these prosecutions is governed by tlie 
 Statute of Canada, 32 & 33 Vic, chap. 31 (see Rev. Stat. (Ont.). 
 chap. 181, s. (58), the formalities already .stated to be necessaiy on 
 informations must be observed. See ante, p. 96. 
 
 66. Any person may be prosecutor or complainant in prosecutions under 
 this Act. 
 
 This section expressly enables any person to pro.secute under 
 the Act. See ante, p. 90. 
 
 A Deputy Revenue Inspector may validly sign a plaint oi' in- 
 formation for selling liquors without a license. Reynolds and 
 Durnford,7 L.C.J., 228. 
 
 67. No License Commissioner or Inspector of Licenses, who is a Justice uf 
 the Peace, shall try or adjudicate upon any complaint for an infi-action uf 
 any of the provisions t)f this Act committed within tho limits of the Fiicense 
 District for which he is a Commissioner or Inspector; but this section shall 
 not be construed to apply to a Judtje, or Junior Judge or Depnt}- .Judge of a 
 County. 
 
 68. All prosecutions for the punishment of any offence against any of the 
 provisions of sections thirty-nine, forty, forty-three, forty-four, forty-tive, 
 torty-seven, tifty-one and tifty -three of this Act, or any section for the contra- 
 vention of which a penalty or punishment is prescribed by section hfty-one, 
 whether the prosecution is for the recovery of a penalty or for punishment by 
 imprisonment, may tal ; place before any two or morc'of Her Majesty's Justices 
 of the Peace having jurisdiction in the County or District in which the offence 
 is committed, or in Cities ami Towns where there is a Police Magistrate, 
 
•390 
 
 MAGISTRATES MANUAL. 
 
 before the Police Ma;,'i3trate of the City or Town, who shall have 
 authority to hear and determine any case in which the offence is alleged to 
 have been committed within the County (for judicial purposes) whei'ein such 
 City or Town is situate, in a summary manner, according to the provisions 
 and after tlie forms contained in and appended to the Act of Parliament of 
 Canada, (32 & 33 Vic, chap. 31,) entitled ^'A)i Act respectinri the dntiea of 
 Justices of the Peace out of Sessions, in relation to Summary Convictions and 
 Orders," which Act and the Acts already passed, or which may be hereafter 
 passed, amending the same, shall be held to apply to all prosecutions and 
 proceedings under this Act, so far as consistent with this Act. 
 
 This section re(|uiros that the prosecution be before two or more 
 Justices liaving jurisdiction where the offence is committed, or 
 where there is a Police Magistrate, before such Police Magistrate. 
 As we have already seen, compliance with this provision is neces- 
 sary ; ante, p. 155-0. Where the conviction is by one Justice 
 only, it should either shew that such Justice is the Police Magis- 
 trate, or that he is acting for the Police Magistrate by reason of his 
 illne.ss or absence, or at his request. R v. Clancey, 7 P. R. (Ont.), 
 35 ; Rev. Stat. (Ont), chap. 72, s. 0. And the Justices must be 
 pre.sen>. and acting togethei- during the whole of the hearing and 
 determination of the case; ante, p. 157. But one Justice may 
 receive the information and take all proceedings preliminary to 
 the hearing; aide, p. 155. 
 
 2. The Justices or Police IMagistr.ate sliall in all cases reduce to writing the 
 evidence of the witnesses examined before them, or him, and shall read the 
 same over o such witnesses, who shall sign tlio same. 
 
 See as to thi" clause, R. v. FlaiDiujan, 32 Q. B., (Ont.), 593-9. 
 
 fin. All prosecutions under this Act, other than those nentioned in section 
 sixty-eight, whether for the recovery of a penalty or otherwise, may be 
 brought and heard before any one or more of Her Majesty's Justices of the 
 Peace in and for the County whe>o the forfeiture took place, or the penalty 
 was incurred, or the otlence was committed or wrong done, and in Cities and 
 Towns in which there is a Police Magistrate, before the Police Magistrate ; 
 and the procedure shall be governed by The Act respecting Summary Con- 
 victions before Justices of the Peace. 
 
 The Act referred to is the Rev. Stat. (Out,), chap. 74. 
 
 70. In all cases where the Board of License Commissiuuers in Cities passes 
 
SALE OF SPIRITUOUS LIQUORS. 
 
 3!) 7 
 
 a resolution in pursuance of the powers conferred upon them by the fourth 
 and fifth sections of this Act, and in and by any such resohition, penalties are 
 imposed for the infraction thereof, such penalties may be recovered and 
 enforced by summary proceedings before the Police Magistrate (if any,) or 
 before any Justice of the Peace having jurisdiction , in the manner and to the 
 extent that by-laws of Municipal Councils may be enforced under the auth- 
 ority of " The Municipal Act " (Rev. Stat. (Ont.), chap. 174,) and the convic- 
 tions in such proceedings may be in the form set forth in section four hundred 
 and seven of the said last mentioned Act. 
 
 to 
 
 tion 
 
 be 
 
 the 
 
 alty 
 
 APPEALS. 
 
 (T I cases tinder Section 51.^ 
 
 71. In all cases of proiecution for any oftence against any of the provisions 
 of this Act, for which any penalty or punishment is prescribed by the tifty- 
 first section oi this Act, the conviction or order of the said Justices or Police 
 Magistrate, ai tiie case may be, shall, except as hereinafter mentioned, be 
 final and conclusive, and except as hereinafter mentioned, against such con- 
 viction or order there shall be no appeal to the Court of General ISessions of 
 the Peace, or to any other Court. 
 
 (2) An appeal shall lie from a conviction for any offence ff)r which a penalty 
 or punishment is prescribed by the fifty-first section of this Act to the Jud<,'e 
 of the County Court of the County in which the conviction is made, sitting 
 in Chambers, without a jury, provided a notice in writing of such appeal is 
 given to the prosecutor or complainant within five days after the date of the 
 said conviction, subject to the following provisions. 
 
 (3) The person convicted, in case he is in custody, shall either remain in cus- 
 tody until the hearing of such appeal before the said Judge, nr (where the i)en- 
 alty of imprisonment with or without hard labour is adjudged) shall enter into 
 a recognizance with two sufiicient sureties, in the sum of two huiulred dollars 
 each, before the convicting Justices or Police Magistrate, conditioned person- 
 ally to appear before the said Judge, and to try such appeal and abide his 
 judgment thereupon, and to pay such costs as he may order, and in case tiie 
 appeal is against a conviction whereby only a penalty or sum of money is ad- 
 judged to bo paid, the appellant nuvy (although the order directs imprison- 
 ment in default of payment), instead of remaining in custody as aforesaid, 
 give such recognizance as aforesaid, or may deposit, with the said Justices or 
 Police Magistrate convicting, the amotuit of the penalty and costs, and a 
 further siun of twenty-five dollars to answer the respondent's costs of appeal. 
 
 (4) Upon such letogiuzance being given or deposit made, the said Juatioes 
 or Police Magistrate shall liberate such person if in custody, and shall forth- 
 with deliver or transmit by registered letter post-paid, the depositions and 
 
 ses 
 
398 
 
 MAGISTRATES MANUAL. 
 
 papers in the case, with the recognizance or deposit, as the case may be, to 
 the Clerk of the County Court of the County wherein such conviction was 
 had. 
 
 (5) The practice and procedure upon such appeal, and all the proceedings 
 thereon, shall thenceforth be governed by The Act respediruf the Procedure 
 im Appeals to the Jwhfe of n Co^inty Court from Summary Convictiom (Rev. 
 8tat. (Ont.), chap 75), so far as the same is not inconsistent with this Act. 
 
 In cases other than those imder Section 51. 
 
 72. In all cases of prosecutions for any offence against any of the provisions 
 of this Act, other than those for which any penalty or punishment is pre- 
 scribed by the said tifty-tirst section, an appeal shall lie from any order or 
 conviction, in the same manner and to the same extent as is provided in 
 and by The Act respecting Summary Conmctions before Justices of the Peace. 
 
 The Act referred to is the Rev. Stat. (Ont.), chap. 74. 
 
 PKOCEDURE IN CASES WHEKE PREVIOUS CONVICTION CHARGED. 
 
 73. The proceedings upon any information for ccmimitting an offence 
 against any of the provisions of this Act, in case of a previous conviction or 
 convictions being charged, shall be as follows : 
 
 (1) The Justices or Police Magistrate shall in the first instance inquire con- 
 cerning such subsccjuent offence only, and if the accused be found guilty 
 thereof, he shall then, and not before, be asked whether he was so previously 
 convicted, as alleged in the infonnati(m, and if he answers that he was so 
 previously convicted, he may be sentenced accordingly ; but if he denies 
 that he was so previously jonvicted, or stands nniteof malice, or does not an- 
 swer directly to such question, tiie Justices or Police Magistrate shall then 
 inj>, '\ Allen, 2r had for the \)Ui'po.'ie of being sold, 
 bartered or traded in, under t! e fortieth section of this Act, unless the con- 
 trary is proved by the defendant in any prosecution ; and the occupant of such 
 house, shop, room or other place shall be taken conclusively to be the person 
 who has, or keeps therein, such liquors for sale, barter or traffic therein. 
 
 81. In proving the sale or disposal, gratuitous or otherwise, or consumption 
 of liquor for the purpose of any proceeding relative to any offence under thig 
 Act, it shall not be necessary to show that any money actually passed, or any 
 liquor was actually consumed, if the Justices, Police Magistrate, or Court 
 hearing the case is or are satisfied that a transaction in the nature of a sale 
 or other disposal actually took jdace, or that any consumption of liquor was 
 aboTit to take place ; and proof of consumption or intended constimption of 
 liquor on premises under license or in respect to which a license is re(iuired 
 under this Act, by some per.son other than the occupier of said premises, 
 shall be evidence that such licpior was sold to tho \ erson consuming or being 
 about to consume or carrying away the same, as against the hoUler of the 
 license or the occupant of the said premises. 
 
SALE OB' SPIRITUOUS LIQUORS. 
 
 4o; 
 
 lunptiMii 
 Ider thig 
 or any 
 Court 
 [f a sale 
 luor was 
 Dtion of 
 |0(iuii'oility. 7^ v. K'ni;/, 20 C P. 
 (Ont.), 24(). 
 
 The statute points at two distinct classes (^f (jtttsnders ; fii'st, 
 tho.se who sell li(pior without a license, and second, those who, 
 havino- such license, sell liipior within the prohibited hours. In 
 the latter case, though the tavern may be the property of the de- 
 fendant, unless he is in occupancy as jn-oprietor or as tenant oi' 
 agent, he is not liable. Thus, if the owner of a tavern, but not 
 occupying it or carrying on the business, had gone into it and sold 
 
408 
 
 MAGISTRATES MANUAL. 
 
 a glass of liquor, he would not be within the Act. So if a 
 stranger, a mere trespasser, went into the tavern either in the 
 absence of, or against the will of the actual tenant or occupant, 
 and not in any way as the agent of the occupant, and sold liquor 
 to another person, he would not be within the Act. 
 
 A conviction that one G. P., of, &c., inn-keeper, after the 
 hour of seven in the evening, and before the hour of twelve o'clock 
 of the night of Saturday, in and at his tavern, &c., being a place 
 where intoxicating liquors were allowed to be sold by retail, did 
 unlawfully sell and otherwise dispose of, and permit, and allow 
 to be drunk, kc, one glassful of beer, Sac , was held bad, as not 
 necessarily bringing the defendant within the class of persons de- 
 signated by the statute of Ontario, 32 Vic. chap. 32, s, 24, viz. : — 
 " The person or persons who are proprietors in occupancy, or ten- 
 ants or agents in occupancy of the said place or places," for the 
 word " inn-kcrper" only amounted to a mere description and not 
 to an averment of his filling such character; and the words " in 
 and at his tavern," did not necessarily mean the proprietor in 
 occupancy, &c., to whom the license was granted, and who alone 
 was liable, but would also include the owner or proprietor, even if 
 he were not the occupant. R. v. Parlee, 23, C. P. (Ont.), 359. 
 
 84. In any prosecution under this Act for the sale or other disposal of liquor 
 without the license required by law, i^ shall not benecess.'\ry thar, any witness 
 should depose directly to the precise description of the liquor sold or bartered 
 or the preci.se consideration therefor, or to the fact of the sale or other dis- 
 posal having, taken place with his ^participation or to his own personal and 
 certain knowledge, but the Justices or Police Magistrate trying the case, so 
 soon as it appear to them or him that the circumstances in evidence suffici- 
 ently establish the infraction of law complained of, shall put the defendant 
 on his defence, and in default of his rebuttal of such evidence, shall convict 
 him accordingly. 
 
 85. In any prosecution under this Act, whenever it appears that the defen- 
 dant has done any act or been guilty of any omission in respect of which, 
 were he not duly licensed, he would be liable to some penalty under this Act, 
 it shall be incumbent upon the defendant to prove that he is duly licensed, 
 and that he did the said act lawfully. 
 
 The general rule of lav is that the burden of proof lies on the 
 party who substantially asserts the affirmative, though he may 
 not do so in form. But where any one is proceeded against for 
 
 
SALK OF SPIRITUOUS LK^IORS. 
 
 409 
 
 5ven if 
 
 defen- 
 which, 
 ia Act, 
 ensed, 
 
 n 
 
 thi 
 
 doing an act which li.; is not permitted to do, unless he has some 
 special license or (pialiticati(jn in his favour, it is sufHcient to charge 
 this want of license or (jualitication against the party, and it is 
 for him to prove his license or qualification affirmatively. A. v. 
 Turner. 5 M. & S., 206. 
 
 Therefore, in a prosecution for selling liquor without licence, it 
 is for the defendant to show his license, not for the informant to 
 negative its existence. Re Burrett, 28 Q. B. (Ont.), .5.')9 ; ex parte 
 Parks, 3 Allen, 237. 
 
 (2) The production of a license whicli on its face purports to be duly issued, 
 and which, were it duly issued, would be a lawful authority to the defendant 
 for such act or omission, shall be prima facie evidence that the defendant is 
 so entitled, and in all ciaes the signature to and upon any instrument purpnr- 
 ting to be a valid license shall jirima facie be taken t(j be genuine. 
 
 Wit)iesseii. 
 
 80. In any prosecution under this Act the Justice, Justices or Police 
 Magistrate trying the case may : ummon any person represented to him or 
 them as a material witness in relation thereto ; and if such person refuses or 
 neglects to attend pursuant to such sumniuus, the Justice, Justices, or Police 
 Magistrate may issue his or their warrant for the arrest of such person ; and 
 he shall theveui'on be brought before the Justice, Justices or Police Magistrate, 
 and if he refuses to be sworn or to aliirm, or to answer any questions touching 
 the case, he may be committed to the Common (Jaol of the County, there to 
 remain until he consents to be sworn or to affirm, and to answer. 
 
 Under the former statute, the informer was a competent wit- 
 ness, being expressly made so by the statute. R. v. Sfrachan, 
 20 C. P. (Ont.), 182. 
 
 87. Any person summoned as a party to, or as a witness in, any proceeding 
 under this Act, may, by the sunniions, be re(iuired to produce, at the time 
 and place appointed for his attendance, all books and papers, accounts, deeds 
 and other documents in his possession, custody or control, relating to any 
 matter connected with the said proceeding, saving all just exceptions to such 
 production ; and shall be liable to the same penalties for non-production of 
 such books, papers or documents, as he would incur by refusal or neglect to 
 attend, pursuant to such suinmons, or to be sworn or to answer any ques- 
 tion touching the case. 
 
 95. Any officer, policema.j oi nonstable, or Inspector of Licenses may, for the 
 purposeof preventing or detecting the violation of any of the provisions of thia 
 Ac*, which it is his duty to enforce, at any time enter into any and every part of 
 any inn, tavern, or other house or place of public entertainment, shop, ware- • 
 
410 
 
 MAGISTRATES MANUAL. 
 
 house, or other place wherein refreshments or licpiors are sold, or reputed to 
 be sold, whether nnder license or not, and may make searches in every part 
 thereof, and of the premises connected therewith, as he may think necessary 
 for the ])iirpo3o aforesaid. 
 
 (2) Every person being therein, or having cliarge thereof, who refuses or 
 fails to admit such oftic '•, policeman or constable, or Inspector demanding to 
 enter in pursuance of this secti(.)U hi the execution of his duty, or who ob- 
 str)icts or attempts to obstruct tlie entry of such othcer, policeman, constable, 
 or Inspector, or any such searches as aforesaid, shall be liable to the penalties 
 and punishments prescribed by section tifty-one of tliis .\ct. 
 
 *M). Any Justice of the Peace or Police ]Magisti'ate, if satisfied by information 
 on the oath of any such othcer, policeman, coustaljle, or Inspector, that there 
 is reasonable ground for belief that any spirituous or fermented liquor is be-.ng 
 kept for sale or disposal contrary to the provisions of this Act in any unlicensed 
 liouse or place within the jurisdiction of the Justice or jMagistrato, may in hi.s 
 discretion grant a warrant under his hand, by virtue whereof it shall be lawful 
 for the person named in such warrant at any time ov tiuies within ten days 
 from the date thereof, to enter, and, if need be, bj^ force, the place named in 
 the warrant, iind every part thereof, or of the premiRes connected therewith, 
 and examine the same and search for liipior therein ; and for this purpose 
 may, with such assistance as ho deems expedient, break open any dc/or, lock, 
 or fastening of such [)remises, or any part thereijf, or of any closet, cupboard, 
 l)ox, or other article likely to contain any such liquor ; and in the event of any 
 liciuor being so found unlawfully keiit on the said premises, the occupant there- 
 of shall, until the contrary is proved, be deemed t(j have kept .such li(iuor for the 
 purpose of sale, contrary to the provisions of the fortieth section of this Act. 
 
 07. It shall be the duty of every otiieer, policeman, constal)le, or Inspector 
 of Licen,ses in eacli Municipality, to see that ihe several provisions of this 
 Act are duly observed, and to proceed by information and otherwise i)rosecute 
 for the punisliment of any oti'enco against the provisions of this Act ; and in 
 case of \vilf]. 
 
 Laid and signed before me the -, ^' ^' 
 
 (lay and year, ;ind at the place | 
 rirst above-mentioned. i 
 
 CD., 
 P.M. o/J.P. 
 
 York, in 
 fore me, 
 Poroiitii, 
 f York), 
 
 SCHEDULE D. 
 
 (SrdioH 75. ) 
 FOKMS Kol{ llEscKIHINd OKFKNCKS. 
 
 1. Neijli'.dimj in hu'p license c.cpowd. (Section li7.) 
 
 "That X. Y. havin^r ., license by wholesale [or a shop, or a tavern, ,.,■ a 
 ves.sel icensej on at unlawfully and wilfully (or negli- 
 
 gently) omitted to expose the .said license in his warehon.se [,. .shop, nr in The 
 bar-room of Ins tavern, or in the bar-salo.-n, or barcabin of his vessel," as the 
 case Ilia If he\. 
 
 2. Neuleeting to e.vhiUit notice of license. (Section 38.) 
 
 '• That X. Y. being the keeper of a tavern \or inn or house ../■ place of pub- 
 lic entertainment j in respect of which a tavern licems.. has duly i.ssue.l ami is 
 in force on ..f i ^^ i, ,■ , 
 
 „ , , , ''^ unlawfully did not t'xhibit 
 
 over he do..,, .f s„eh tavern [..,■ i„u, >Vc.,| in large letters the words ' Licensed 
 
 sell wine, beer, and ..ther spirituous ..r feruu.nte.l li.,un,.s,' as required by 
 
 J he Loiioir License Act.' '' '^ 
 
 'i. •Sail icithont liceii.-ic. (Seclidii ;!0. ) 
 
 "ThatX.Y.,onthe day uf in the year ,.f our Lord 
 
 •me thousand eight hundied and ,it jii ^, ^ 
 
 S"""!^ f , unlawfully did sell liqu.T without the liLse 
 
 therefor by law required." 
 
 4. Keepinij liijiior irithoiit license, (Scctin3 2 
 (4), and 41. 
 
 " That X. Y. having a license to sell by wholesale oii at 
 
 unlawfully did sell li(juor in less quantity than five gallons [or, than one 
 dozen bottles of tiiroo half-pints each, or than two dozen bottles of throe- 
 fourths of a pint each]." 
 
 9. Allowitig tiiiHor to be couHunwd in shop. (Section 45.) 
 
 " That X. Y. having a shop license on at unlaw- 
 
 f\illy did allow li([>ior sold by liini (or in his possossiim), and for the sale of 
 which a license is re Bk it remembered that on the sixth d>ierisks** sail " inas- 
 much as it has now been made to appear to me (or us) that the issuing of a 
 warrant of distress in this belialf would be ruinous to the said X. Y. and his 
 family," or " that the said X. Y. has no goods or chattels whereon to levy 
 the said several sums by distress"], 1 (or we) adjudge the said X. Y. to be im- 
 prisoned in the Common Gaol for tlie County of York, at Toronto, in the said 
 County, and there to be kept at hard labour for the space oi fifteen days, un- 
 less the said sums  Jaiuiaiy, in the year of our Lord one thousand eight 
 To wit : ) hundred and seventy-seven, in tlie City of Turcjnto, in 
 
 the said County, X. Y. is convicted before the undersigned C. D., Police 
 IMagistrate in and for the City of Toronto, in the said County, [nr C. D. and 
 E. F., two of Her Majesty's .iusticoa of the Peace in and for the said County], 
 for that he, the said X. Y., on the thirtieth day of December, in the year of 
 our Lord one thousand eight hundred and seventy-six, at the City of Toronto 
 [or Town.ship of Scarboro], in said County (iis tliv rast' maij //«'),liaving violated 
 a provision of " The Liipmr Licnisf Aet,"' unlawfully did attenijit to settle tlie 
 otfence with A. B., with the view of having the complaint made in respect 
 thereof dismissed. And it appearing to me [or n.s] that the said X. Y. was 
 previously, to wit : on the loth day of December, .\.D. 187t), at the City of 
 Toronto, bt^foro, »fec., duly convicted of having, on the JWlh day of No'.om- 
 ber, A.D. 1876, at the Village of Yorkville, unlawfully sold licpmr without 
 the license therefor by law retjuired. And it also appearing to me [or us] 
 that the said X. Y. was previously, to wit, on the 28ih day of November, 
 27 
 
418 
 
 magistrates' manual. 
 
 A.D. 1876, at the Township of Vaughan, before, itc, (,?ce oboue) again duly 
 convicted of having, on the 2nd day of November, A.D. 1870, at the Village 
 of Markhani fbeing tlie keeper of a tavern, situate in tlie said Village of 
 Markhani^, unlawfully allowed gambling in his said tavern (or a6 the case may 
 he.) 
 
 I [or we], adjudged the offence of said X. Y. hereinbefore firstly mentioned, 
 to be his third offence against " TI«' L'lipnyr License Ad," (A. B. being the in- 
 formant) and I [or we], adjudged the said X. Y. for his said third (jifence to 
 be imprisoned in the Connnon Gaol of the said County of York, at Toronto, 
 in the said County of York, there to be kept at hard labour for the space of 
 three calendar months (.) 
 
 E. F. 
 
 (L..S.) 
 
 SCHEDULE "I." 
 {t^ectian 75.) 
 
 WAHRANT OF COJIJIITMENT FOl! KIKST OFFKXC E WUEUF. A rENALTY IS IMPOSED. 
 
 Ontaiuo. \ To ALL or any of the Constables and other Peace Officers 
 
 County of Y'ork, > in the said County of York, and to the Keeper of the 
 To Wit : ) Connnon Gaol of tlie said County at Toronto, in tlie 
 
 County of York. 
 
 Whereas, X. Y., late of the City of Toronto, in the said County, was on 
 tliis day convicted before the undersigned, C. D., Police IMaj^ist rate in and 
 for the City of Toronto [or C. D. and E. F., two of Her Majesty's Justices of 
 the Peace in and for the (Uty of Toronto o/' County of York, us tlif cn.tf nuni he I, 
 for that lie, tlie said X. Y., on at unlawfully did sell 
 
 li(|Uor witliout the license therefor by law ivipiired (stale ofeiicc «.s in the con- 
 met ion), (A. P. being the hiformant), and it was thereby adjudged that the 
 saidX. Y., for liis said offence, should forfeit and pay the sum of 
 (((.s in coin-iciii>n), and should pay to the said A. B. the sum of 
 for his costs in that behalf. 
 
 And it was thereby further adjudged that if tlie said several sums should 
 not bo paid forthwith, the said X. Y, should be imprisoned in tlie Common 
 (!aol of tlie said County at Toronto, in the said County ;as it appears to mo [ur us) as well, by the return of the saiil 
 wairaut of di.-stress by the constable who had the execution of the same as 
 otherwise, that the said Constable has made diligent search for the goods and 
 chattels of the said X. Y., but that wo sutticient distress whereon to levy the 
 said sums could be found."] 
 
 [Or idiere Ihf issuintj i\f a disfri'ss iwrraiit would bv. rninuu.s to thf difeiuliiiit 
 mill his finnilji, or if it ajqx'tirs thiit he hnn 7io ijooda irhervon to levij a dinhv.sii, 
 thru, instrml of the formjoiiiij neitnls of the iaHUc f 
 
 A.D. 187 , at Toronto, in the County of York. 
 
 or 
 
 CD. 
 C. D. 
 E. F. 
 
 (I., s.) 
 
 (L. S.) 
 (I. S.) 
 
420 
 
 MAGISTKATES MANUAL. 
 
 SCHEDULE "J.'- 
 
 (Section 75.) 
 
 WAKHANT OF COMMITMENT FOB SBOONI) (or THIKD) OFFENCE, WHERE PUN- 
 ISHMENT IS BY IMPRISONMENT ONLY. 
 
 Ontario, 
 County of York, 
 
 To Wit : 
 County of York. 
 
 To ALL or any of the Constables and otlior Peace Officers 
 in the said County of York, and to the Keeper of the 
 Connnon Gaol of the said County, at Toronto, in the 
 
 Whereas X. Y., late of the of in the said County, 
 
 was on tliis day convicted before the nndersigned C. D. &c., (or C. D. and 
 E. F., &c. , as in precedinij form), for that he, tlie said X. Y., on 
 at (atate offence ivlthprevions convictions as .ict forth in tliS convic- 
 
 tiojijor the second or third offence, or as the case may he, and that proceed thns): 
 " And it was thereby adjudged tliat the otl'ence of the said X. Y. , herein- 
 before firstly nientii>ned, was his second (or third) offence against " The 
 Liquor License Act " (A. B. being the informant). And it was thereby fur- 
 ther adjudged that the said X. Y., for his second (or third) ofi'ence, should be 
 imprisoned in the Conunon Gatd of the said County of York, at Toronto, in 
 the said County of York, and there to be kept at hard labour for the space of 
 three calendar months. 
 
 These are therefore to command yon the said Constables, or any one of 
 you, to take the said X. Y., and him safely convey to the said Common Gaol 
 at Toronto, aforesaid, and there deliver him to the Keeper thereof, with this 
 precept. And I (or we) do hereby command you, the said Keeper of the said 
 Common Gaol to receive the said X. Y. into your custody in the said Com- 
 mon Gaol, thei'e to imprison hiui and to keep him at hard labour for the 
 space of tliree calendar months. 
 
 Given under my hand and seal (or our hands and seals), this day 
 
 of A.D. 187 , at Toronto, in the said County of York. 
 
 C. D. (l. s.) 
 
 orC. D. (l. s.) 
 
 E. F. (l. s.) 
 
IXDEX. 
 
 day 
 
 A. 
 
 Abavpoxi.vg CHiLn. See Child. ^■^*"'^- 
 
 ABDrcriox. . . 
 
 . 247 
 
 In cases of offences punishable on summary conviction 1 1 a 
 
 AboKTIOX •••....... Jiu 
 
 Aiii'HE UK Infants 
 
 Accessories ... 
 
 ■*•"•■•■ ^A.(i 
 
 Information against ' 
 
 To felony before the fact M\'o 
 
 To felony after the fact. . ."...... -uio 
 
 In misdemeanors " 
 
 Arco:\ri'r.i( es * 
 
 Accusations— "^^^ 
 
 False, to extort. See Threat. 
 Actions aoaixst .Tisticks 
 
 Form of, whether trespass or case ' .,,,,'. 
 
 Notice of ... * 
 
 Limitation of . -ot-o 
 
 *)*^i 
 
 Ai)JorK\Mi:.VT — "' 
 
 Of hearin.i,^ if party misled q- ito ^ 
 
 etore or dunng heaniifr ..^ , 
 
 Effect of, on Justices' jurisdiction Y^"- 
 
 Warrant of committal durinu- tlie hearing lo^'o 
 
 Ai)MiHAf,TY jriusnicTfox— " 
 
 Odences connnitted within ^^ 
 
 Ai)>rissioNs — "' 
 
 Of accused as evidence against him ,,. 
 
 And confessions. See Eviilence. 
 
 Anui.TKRATioN of food, drink, drugs 050 
 
 Anvi;uTisiN(; for stolen property ^.^ , 
 
 Afkirmatfox — "'^ 
 
 Justices to administer oath, or 
 
 By Quakers, Mejionists, Tankers, &c 28r! 
 
422 
 
 INDEX. 
 
 Afki;ay 'i51 
 
 Ai.KMs 252 
 
 A(.(;i!Ks.sio\s by subjects of foreign states 253 
 
 AlKKUS, i^(.'. — 
 
 In offences punisliablo on suuunary convictions 110 
 
 Amkxdmext — 
 
 Of information or complaint 30-102 
 
 Ofconvictiun 129-130,339 
 
 Conviction cannot be amended after return on cerfi<>i(iri 339 
 
 Of order 130 
 
 Animals — 
 
 Cruelty to 281 
 
 A I'osTAcv 254 
 
 Al'l'KAL — 
 
 In cases of summary convictions 130 
 
 Hearing of, may be adjoin-ned 142, 3G9 
 
 Evidence 7 
 
 3G8 
 
 308 
 
 Appkextioe.. P-UJK. 
 
 Akms— 254 
 
 Illegal drilling to the use of 
 
 A H:\rv- 
 
 Offences relating to, information for. 
 Akkest — 
 
 359 
 
 04 
 
 255 
 
 Of offenders canght in the act at night .... 
 
 W persons in possession of goods .suppo.sed Vo have been stolen '.' 255 
 NV hen constable may make, without a warrant onx 
 
 Aksox. ^oo 
 
 257 
 
 259 
 354 
 
 Attempts to commit 
 
 Articles OF THE Peace 
 
 A.S-SACLT — 
 
 Definition of 
 
 What amounts to 1 
 
 A\'hat does not amount to 
 
 Indecent ... 
 
 
 Conviction of, on trial for felony 
 
 2fi0 
 200 
 201 
 
 On a constable . *'^ 
 
 qi , , 201 
 
 lo what extent conviction of assault bars other proceedin0 
 
 2(i2 
 
 lences. 
 
 8um!>iary proceedings in cases of 
 Assemblies, unlawful. See Riots, etc. 
 A-rrKMi'T to commit felony 
 
 To commit offences. See Indictable Offe 
 Attorxey cannot be a magistrate 
 
 No right to appear in indictable cases 
 
 May apjiear in summary cases , , - „ 
 
 Embezzlement by an " * 
 
 ^ 252 
 
 200 
 
 305 
 
 4 
 
 44 
 
 
 B. 
 
 Bai'KIXG W.\kkant,s 
 
 Bail — 
 
 May be granted if party misled 
 
 On remand or adjournment of liearing \\,\ " 
 
 By justice of county in whicli offender apprehended. 
 
 In misdemeanor 
 
 Accused may be admitted to ', ^ 
 
 In case of misdemeanor one Justice may 
 
 As to when bail will be granted 
 
 As to the sufficiency of sureties 
 
 35 
 
 35 
 
 4S-9 
 
 49 
 
 . 51-3, 0-7 
 
 50 
 
 51 
 
 51-5-0-7 
 51 
 
424 
 
 INDEX. 
 
 PAGE 
 
 Bail (continued) — 
 
 Justices cannot bail in case of treason or felony, punishable 
 
 with death 56 
 
 By Juclji;e of Sujierior Court after coniniittal for trial 58-9 
 
 When Judge of Superior or County Court may order to be admit- 
 ted to 55-6 
 
 Recognizance of 89 
 
 Notice of recognizance of, to be given to accused and liis bail . . 45. 90 
 Warrant of deliverance on bail being given fc^r a prisoner already 
 
 committed 90 
 
 Bailees, larceny by. See Larceny. 
 
 Bankers — 
 
 Embezzlement by 251 
 
 Bankeuptcy, &c. See Insolvency. 
 
 Barratry 207 
 
 Battery. See Assault. 
 
 Bawdy or other disorderly houses a nuisance 334 
 
 Bench Warrant 29 
 
 BeTTINU ANIt Pool. SEr.LlNl!- - 
 
 Procedure for trial of tliese offences 1U4-5 
 
 Statute Prohibiting 207 
 
 Bigamy 200 
 
 Inf ( irmation for 03 
 
 Bill OF Costs. See Costs. 
 Bodily harm — 
 
 Information for 01 
 
 Bribery at elections 271 
 
 BuciOEUV 352 
 
 Evidence of 352 
 
 Threats to accuse of. See Tiireats. 
 
 Burglary 271 
 
 Information fur 01 
 
 Attempt to commit 273 
 
 0. 
 
 Caution — 
 
 To prisomn'H in indictable offences 39, 40, 42, 43, 44 
 
 As to witnesses not iiecesaary 43 
 
 Certifhate— 
 
 Of non-appearance to bo endorsed on recognizance ... 1 18 
 
 Of indictment being found 28 
 
 Of dismissal, form of • 175, 188, 204 
 
. . 251 
 
 . . 207 
 
 . 334 
 . 20 
 
 l!»4-5 
 
 . 2(37 
 
 . 2G9 
 
 ,. 03 
 
 01 
 271 
 
 :.ir)2 
 
 352 
 
 271 
 
 01 
 
 273 
 
 INDEX. 425 
 
 Certificate (continued)— ^•^•'^'• 
 
 Of Clerk of the Peace that costs are not paid ,.« 
 
 CektiokI::- °' '"^"^^ '' *" property aualitication .•:;:::;;;;;.; ^^ 
 
 Conviction not to be removed by 
 
 When m-it of, may issue ... ^*'^'*' 
 
 CHAiMPEItTY 140, 3(i7 
 
 Cha.stisement '^^3 
 
 Lawful, not an assault 
 Chilb— ■ 200 
 
 Abandoning or stealing ' 
 Chukches— 274 
 
 Arson of. See Arson. 
 
 I>isturbii]g worship in 
 
 Claim of right -''•'' 
 
 Cr ,'iuiVMAN— -*'• - 1 . 200 
 
 Assaulting a 
 
 C.KUK of I'oaco to pulilish returns of'<:.;,i;i;,tio„ ':l^; 
 
 ^--I-fEKKS — lo4 
 
 See Embezzlement by . 
 
 \nd servants, larceny by(;oe' Lnrceny/, ^^'!:,^'? 
 
 •oes ,.eeivable by ./ustices ..f the Peace -r't "ei;":; ^.V.V.V; .^'^^ 
 
 Ollences ..".!' -''^' -^- 
 
 iifurmation for ~'" 
 
 M |.:n't — 02 
 
 f witness for refusing to be sworn 
 
 f witness for refiisin"- to (>iifr.r i. f . ., • * 
 
 iKinm., ro cnrei ii.to recognizance at 
 
 distress would l)e ruinous ,, 
 
 no sulliciciit distress ^''"^ 
 
 di^fault of distress '''''* 
 
 ••"••■Hit of, one .Justice I'lny issue '5! 
 
 indictahh) od'eiRVs "... '•'*' 
 
 case i.roseciitordoes not a|,pi,ar '*'"'" 
 
 'UTai.t of, wheflier (o b.. iu writin.^ ; ""'^ 
 
 'h'f.uilt of sureties. See Sureties? 
 
 len; iio siillicieiit distress 
 
 H'V of witnesses "^ 
 
 ' iilso Evidence, Witness. '"^^^ 
 
 I' — 
 
 erence between information and com).laint 
 
 tmn. must be in writing ; '' 
 
 L'li it need not l)e in wrUin-r or on" omII. ,' '."; ...^'" 
 
 C 
 
 Com 
 
420 
 
 INDEX. 
 
 PAGE. 
 
 Cn\rPLAi.\T (fdnliitvcil) — 
 
 Must be for one matter 114-5 
 
 May be laid in person or by attorney 114 
 
 Negativing exception 121 
 
 Or information must be iiiion oatli 29 
 
 Or information mnstbe for one matter only 114 
 
 Or information, time ff)r making 115 
 
 For snreties for the peace, by the party threatened 190 
 
 (^OMl'oUN'niNO oH'onces — 
 
 When allowed , 270 
 
 FeloniuH 27G-7 
 
 Prosecutions for selling liijiior without license 1592-3 
 
 Corrniitly taking reward to recover stolen goods, is 270 
 
 ( )irering rewards luider pn unise of secrecy 270-7 
 
 Compulsion — 
 
 Ell'ect ( if, in removing crime 277 
 
 OoNcEALMENT of l)irth 278 
 
 Condition— 
 
 If negatived, need not be pro\ed 121 
 
 CoXFKSSIoN — 
 
 When admissible 44, 288 
 
 CoNsi;ci TIVI-; imi'iiisonmknt 135 
 
 CONSPIKACV 279 
 
 Falls within the provisions of the Act as to vexatious indictments, 279 
 Coxmtabm: — 
 
 Costs to 50 
 
 To be paiil on producing certificate 50 
 
 To convey accused to gaol 57-8 
 
 lleceiiit to be given to, by Justice 50 
 
 'i"o attiMiii and depose to sci'vice of summons 32, 1(14 
 
 May arrt!st witliout warrant, wlu'U 256 
 
 CoM'KMiT of a .Justice 17 
 
 Of Court 17-18 
 
 Conviction — 
 
 Forms of 119, 124-5, 108 
 
 ]\1iinite or memorandum of 119,121 
 
 To be under seftl 119, 120 
 
 Itlanks tilled Up before signature 121, 125 
 
 ( Ji'ucral reipiisiti's of 125 
 
 Suliicient to follow forms 127 
 
 When it must negative exceptions 128 
 
I'ACiK. 
 
 114-5 
 .. 114 
 .. 121 
 . 29 
 . 114 
 . 115 
 . 190 
 
 . 276 
 276-7 
 ;]!t2-3 
 . 270 
 270-7 
 
 . 277 
 , 278 
 
 . 121 
 
 ... 50 
 ... 50 
 . . .57-8 
 . . . 50 
 .:52, 104 
 ... 255 
 ... 17 
 ....17-18 
 
 INDEX. 
 
 427 
 
 TraiLsniission of 
 
 PA(iK. 
 
 in case of apjieal 
 et 
 
 } s 
 
 Procedure incase of 
 
 ^l.e„ not to bo set aside for defect of f^nn '^:: 
 
 \^iien It must be several and not ' ' '■ ^'^' 
 
 ... ^ . previous, 
 
 L tiller Liquor License Act 
 
 |oint against eacli offender, 
 
 !'•», I (to, 38(j 
 398 
 
 ^\'hen to 1 
 Eet 
 
 urn of. 
 
 '0 m general form . 
 
 .400./, 
 
 124 
 
 lietnriiof under Acts of 
 
 C'f)i'v of order — 
 
 (»nt 
 
 aiio . 
 
 .148, 379 
 .379, 380 
 
 C 
 
 Befondant to 1 
 <^f depositions 
 
 'e served witl- S:c. 
 
 "'I'Viutiiir 
 
 See Dei)o.sit 
 
 ions. 
 
 Cox 
 
 TK.MI'T — 
 
 Ct)KO.\Kl!— 
 
 P'lwer of Justice 
 
 111 cases oi. 
 
 151 
 
 280 
 
 17 
 
 Duty of 
 
 a 
 
 To t 
 
 ran 
 
 all 
 
 Oo.ST.s 
 
 nsmit 
 And -histice, penalty on in 
 
 evidence on api.lication for baJL 
 
 certain cases . 
 
 58 
 58-9 
 58-9 
 
 To Constable, for 1 
 
 coiDiiiitte. 
 
 '"'lying prisoner to county where oil 
 
 eiice was 
 
 Of frivol 
 
 M 
 
 oils aj.peals. 
 
 ay 1)0 awarded in all 
 
 'wer of .histices t 
 
 To I 
 
 o award. 
 
 cases of summary convict 
 
 nuis. 
 
 May b 
 
 '0 specified in convict 
 
 e rix'overed by distr 
 
 Of apj.oal, To wh 
 
 Ion, 
 
 'ess . 
 
 >ni |>ayalil 
 
 , . 50 
 .144-5 
 . 132 
 . i:\2 
 132-3 
 133-0 
 
 ^^ ben case is disniis.soil ... ^'*' 
 
 ;oos,_receivable by Justices' or"tl.eir'cIerks 
 
 t'es in cases not expressly ],rovided. 
 
 132 
 
 382 
 
 CoiNsKi, or .Att 
 
 ornev 
 
 Prosecutor may be lieai'd 1 
 IMay 
 
 examine witness for 
 
 See also ,\ttoi 
 
 iceused. 
 
 CoiNTV Judi. 
 
 ney 
 
 no 
 no 
 
 (! ni 
 
 !iy order party 
 
 44, 115. Hi 
 
 bail ' •' ^""""""■" '"■■Oiai to be admitted t 
 
 Corirr — 
 P] 
 
 58-9 
 
 lice where Jintices tak 
 
 examinations in imjiotabk 
 
 But 
 
 .III. 
 
 ,pi.„ " '" ""iH'iaoie cases not an 
 
 '8 in summary cases "*■* 
 
 115-6 
 
 HT of Quarter Sessions. See Sessi 
 
 ons. 
 
428 
 
 INDEX. 
 
 PAGE. 
 
 Criminal information against Justice lG-17 
 
 CuuELTY to animals 281 
 
 D. 
 
 DAM/fiE, malicious, in general. See Malicious Injuries 324 
 
 Death — 
 
 What offences punishable with 350 
 
 Defence — 
 
 Defendant may make full 110 
 
 Defendant— 
 
 When entitled to a copy of depositions 14 
 
 May make full defence IIG 
 
 Deliver ANCK, warrant of, itc i^)')-Ci, 90 
 
 Dei'Ositiov of witnesses 37-8 
 
 How taken 38-!), 40-1 
 
 Copies of 14 
 
 When defendant entitled to a copy of 14, 08 
 
 When, can be used at trial as evidence 37-8, 40-1 
 
 In case of death, illness or absence 37-8, 40-1-2 
 
 DESEitTKtN, enticing to 284 
 
 Deskktino family. SeeVagrants. 
 
 Detaini'.h, forcible entry and 203 
 
 DlKECTOllS — 
 
 Pulilishing false statement 280 
 
 DiSCHAIiOE — 
 
 Of accused nO-7. 118, 122-3 
 
 < )f accused on recognizance during hearing 1 22-3 
 
 Dismissal 
 
 If pripsecutui- does not ajipear 118 
 
 Order of, nn information or complaint 110, 121, 174 
 
 Certilicat.^ of 121 
 
 Form of onler of, on an information or complaint 174 
 
 Form of certificate of 175 
 
 DisnidU'.iii.v b(iiiHi\ iiifurmation for keeping , <>4 
 
 i'rnfcdiiri' nil trial 105 
 
 Kee[iers of disorderly inns, ito 302 
 
 DlSTlM'.SS — 
 
 Not to bo levied before service of order 131 
 
 Wut this neoil not be done with convictions 131 
 
 I'l'iu'i't'ding in eases nf, if sullieieMl l>e not found .. III!!! 
 
 NVlun warrant of, issued, defendant UL-iy be bailed 135 
 
INDEX. 
 
 PAGE. 
 .16-17 
 
 .. 281 
 
 429 
 
 324 
 
 350 
 
 IIG 
 
 U 
 
 . ... 116 
 . . 55-G, 90 
 
 37-8 
 
 38-0, 40-1 
 
 14 
 
 14, 58 
 
 37-8, 40-1 
 r-8, 40-1-2 
 284 
 
 203 
 
 280 
 
 LI 8, lL>2-3 
 122-3 
 
 118 
 
 . 121, 174 
 
 121 
 
 174 
 
 175 
 
 , (U 
 
 105 
 
 ;102 
 
 131 
 
 131 
 
 133 4 
 
 135 
 
 "Di.STRu.ss (continued)— v\g^ 
 
 If siifKciont, cannot be found 
 
 C^es in which warrant of, uiay'be "issued : ! : !^? 
 
 >J here the issuing of would be ruinous ,^^f 
 
 ^^ arr..nt of, comniitment for want of ^^ 
 
 >V arrant of, f„r coats .. ^-^^ 
 
 Warntnt of, f,>r costs of 'an '^^:a^'s:l ,':[[ --^^-^ 
 
 May be endorsed for execution in another Couni; tr? 
 
 Comnntnient in default of ^ ^'^"^'^ 
 
 Commitment where distre- — -- -" •^■^"*' 
 
 ess ruinous 
 
 J 34 
 
 Costs may be recovered by 
 
 One Justice may issue warrant of ^'^'^ 
 
 15(J 
 
 Forms for warrant of. See Forms 
 
 DlSTUKBAX.E of public worship 
 
 Division, territorial meaning of 
 
 Dkill, illegal 
 
 Driving— 
 
 Wantonly and furiously 
 
 DKUNKENJfES.S— 
 
 • . . . ^li) 
 
 ...50 158 
 
 . .. 350 
 
 .^82 
 
 Crimes committed through, when punishable. 
 
 Dyixg declaration '""^Z ""^ I'-'»«"able 282 
 
 See Evidence. 288 
 
 Ej.ectiox.s — 
 
 Offences relating to 
 
 False personation at . . . 
 Emhezzlement. Hee Larceny. 
 
 By clerks, S:c 
 
 Juf(jrmatiou for 
 
 NVbo is clerk or servant : ' . 
 
 Evidence of embezzlement 
 
 DistinoHon between and larceny 
 -'lice amounts to larceny . 
 
 E. 
 
 271 
 
 If otiVi 
 E.MUHACKUV. 
 
 ENn<.„sKMKNr in backii.Va wirant " ' ' 
 
 Enlistment, Foreign 
 
 Enticing to desert 
 
 Entkv and Detainer, forcible. 
 
 Escape 
 
 Evidence — 
 
 Ilules of 
 
 Mode of taking in indictable caso's" 
 
 35, I 
 
 37 
 
 313-4 
 02 
 315 
 310 
 310 
 314 
 
 2h:{ 
 o«-o 
 
 204 
 284 
 203 
 284 
 
 285 
 ^4 
 
430 
 
 INDEX. 
 
 PAGE. 
 
 EvilJENCK (riintinvfil) — 
 
 Stiitciuent (if accused 42 
 
 At hujiriiii; in suiiiiuiiry cases 11'.^ 
 
 Wiierc infoi'iiiation negatives exceptiuii 121-2 
 
 On appeals from summary convictions 143 
 
 Taking examinations on oath 285 
 
 Form of (.atli 280 
 
 Cross-examination (if witness as to previous statement in writing. 280 
 
 Witnesses must speak of facts only 287 
 
 Witnesses as tocluiracter 287 
 
 Prisituer cannot give evidence for himself 287 
 
 When two witnesses re(piired 288 
 
 Confession, when admissible 288 
 
 In [irdsecutious for receiving stolen goods 28!) 
 
 In prosecutions under the '■ Li(iuor License Act '' 405, 0-7 
 
 No man compelled to criminate himself 405-0 
 
 Who may be liound liy recognizance to give 45 
 
 Competency (if witnesses Ill, 122, 157, 288 
 
 Aliirmations by (.Quakers, Meuonists, Tunkers, i^c 28() 
 
 Admissions and confessions Ii7-8, 287-8 
 
 Examination of witnesses ;{7 
 
 * Leading (|uestious 287 
 
 Witnesses not bound to crinunate themselves 405-0 
 
 Cross-examination 287 
 
 In cases of endiez/.lement 310 
 
 In cases of receiving stolen g(^oi!s 340-7 
 
 Examination oi' Witnkssks — 
 
 In indictable cases 37 
 
 Exi'El'TloNS — 
 
 When to be negatived in convicti(jn 128 
 
 ExKMrnoN — 
 
 If negatived, need not be i)roved 121-2 
 
 Ev I'AiiTr, — 
 
 •lustico may proceed, if snuuiioiis not obeyed I convey accused before a Justice oi the county in which 
 
 the otl'ence was committed 87 
 
 Receipt to be given to constable by Justice of county in which the 
 
 offence was committed 88 
 
 Notice of recognizance of bail to be given to accused and his bail. . . 90 
 Warrant of deliverance, on bail being given for a person already 
 
 committed 90 
 
 \\'arrant ( )f commitment 91 
 
 Gaoler's receipt to constable for prisoner , 92 
 
INDEX. 
 
 ■133 
 
 PAGE. 
 
 .. 67 
 .. 68 
 08, 69 
 , .. 69 
 .... 70 
 ... 70 
 ... 71 
 )ine 
 
 .... 72 
 ... 72 
 ... 73 
 ... 73 
 
 74 
 
 .... 74 
 . . . . 75 
 n or 
 
 .... 70 
 .... 77 
 . . . . 78 
 .... 78 
 
 79 
 
 ... 80 
 sesB 81 
 .... 82 
 ice 82 
 . 84 
 . 84 
 . 85 
 anii- 
 
 . 86 
 leties 8( 
 
 87 
 
 89 
 
 hich 
 ... 87 
 the 
 
 .... 88 
 il... 90 
 ady 
 
 .... 90 
 ... 91 
 ... 92 
 
 P.\OB. 
 
 Forms (confiuHcd) — 
 
 Complaint of bail for a person charged with an indictable offence 92 
 
 Warrant to apprehend the person charged ''3 
 
 Comniitniont of the person charged on surrender of bail 9J 
 
 Certificato of dismissal of juvenile oft'enders 210 
 
 Of conviction 124, 108 
 
 Sufficient to follow in conviction 127 
 
 Of order 1.30, 170 
 
 In cases of summary convictions 158 
 
 On appeal to Judge of County Court in Ontario from summary 
 
 convictions 370-7-8 
 
 Conviction of juvenile offenders 212 
 
 Informations f f >r the peace and good behaviour 1 90 
 
 Cei"tificate of dismissal .... 1 75, 188, 204 
 
 Return of convictions 149, 380 
 
 Oath of iiualiticatiim of Justices 3 
 
 Forms ix Case.s of Summary Coxvictioxs axd Orders — 
 
 Summons to the defendant upon an information or complaint. . . . 159 
 
 Warrant when the summons is disobeyed 159 
 
 Warrant in the Hrst instance 100 
 
 Warrant of committal foi- bafe custody during an adjournment of 
 
 the hearing 101 
 
 Recognizance for tlio appearance of the defendant w lien the case 
 
 is adjourned or not at once proceeded with 102 
 
 Notice (jf such recognizance to lie given to the defendant and his 
 
 sureties 1 03 
 
 Certihcate of non-appearance to be endorsed on the defendant s 
 
 recognizance Ki;? 
 
 Summons to a witness iOI! 
 
 Warrant where a witness has not obeyed a summons 104 
 
 Warrant for a witness in the lirst instance 105 
 
 Commitment of a witiuvss for rofusiiig to be sworn or give e\i- 
 
 flence 160 
 
 Warrant to remand a defendant when appreliendi'd 107 
 
 Conviction for a penalty to be levied by distress, and in default of 
 
 sufficient distress, liy imiirisonment ItuS 
 
 Conviction for a penalty, and in default of payment, imprison- 
 ment 10!> 
 
 Conviction where the puni.shment is by imprisonment 109 
 
 Order for payment of money to bo levied by distress, and in de- 
 fault of distress, imprisonment 170 
 
 Order for payment of money, and in default of payment, imprison- 
 ment , 172 
 
 2« 
 
434 
 
 INDEX. 
 
 PAGE. 
 
 FoKMs IX Casks okSimmary C>»nvictions a^d Oiwv.ns (confinncd) — 
 
 Ordur for any other matter where the disobeying of it is punish- 
 able with imprisonment 173 
 
 Order of dismissal of an information or complaint 174 
 
 Certificate of dismissal 175 
 
 Warrant of distress upon a conviction for a penalty 175 
 
 Warrant of distress upon an order for the payment of money .... 170 
 
 Endorsement in backing a warrant of distress 177 
 
 Constal)le's return to a warrant of distress 178 
 
 Warrant of connnitment for want of distress 178 
 
 Warrant of commitment upon a conviction for a penalty in the 
 
 first instance 1 7^ 
 
 Warrant of commitment on an order in the first instance fSO 
 
 ^\'arrant of distress for costs upon an order for dismissal of an in- 
 formation or complaint 181 
 
 Warrant of connnitment for want of distress in the last case .... !83 
 Certificate of Clerk of the Peace that the costs of an ai)peal are not 
 
 paid 184 
 
 Wan-ant of distress for costs on an appeal against a conviction 
 
 or oi'der 1 84 
 
 Warrant of c(jmniii.'nent for want of distress in the last case 186 
 
 General form of information or of complaint on oatli 187 
 
 Form of order <'f dismissal of an information or complaint 187 
 
 Form of certificate of dismissal 188 
 
 General form of notice of appeal against a conviction or order. ... 188 
 
 Form of recognizance to try the appeal 189 
 
 Form of notice of such recognizance to be given to the defendant 
 
 (ajipellant) and his sureties 1 !I0 
 
 Complaint by party threatened foi" sureties of the peace 100 
 
 Form of recognizance for the sessions 101 
 
 Form of commitment in default of sureties 101 
 
 FoKMS UNUKK TlIK AvT IvEI.ATINO TN OF 
 
 
 
 206 
 
 
 207 
 
 
 207 
 
 F PkoOEEDINOS IN uyu " T,^t.^ T , t '^'*"«-e 3,0 
 
 ^.huiNc.s I M,hK iHE Liquor License Act ". . . 400 410 
 
 General form of information ' ^^" 
 
 Forms for describing offences. . . '*^^ 
 
 Formof information for second, third,' or fourth' oflence 
 
 Summons to witness 
 
 Form of convicti.m for first offence. . . . .' 
 
 Form of conviction for a third offence '^^^ 
 
 Warnint c,f conimitnient for a first ofience'wheie'a 'penalty' i^in;: ''' 
 
 Warrant of ci.nmitment"for 'second ' [or 'third^ 'offbnce,' where ^'^ 
 punishment is by imprisonment only ,„ 
 
 Fraudulent marking of merchandize. . . ^^'^ 
 
 Frivolous appeals— ^^00 
 
 Costs of 
 
 144-5 
 
 a. 
 
 Gamblinv; practices in public conveyances 
 
 GrAxMIX<;— 301 
 
 JVocediire for trial of offences 
 
 And gaming houses. . ^^* 
 
 Gaols— 300 
 
 Accused committed to be conveyed to 
 
 Meaning of " Common Gaol" ^^''l^ 
 
 Act as to safe custody „f i)risoners in ^'^^ 
 
 General Quarter Sessi.ms of tlie Peace '^^' 
 
 350 
 
 H. 
 
 Habitation — 
 
 Offences against 
 
 Hearing — 
 
 Proceedings on 
 
 Where lioth parties appear 
 
 After adjournment '^^"'^ 
 
 124 
 
 62 
 
 • •.. 37-44- 11 5-8- f) 
 
436 
 
 INDEX. 
 
 PAGE. 
 
 Hearino (I'onthvifd) — 
 
 May proceed in absence of either party 116-8 
 
 But not in indictable cases 38 
 
 Heiress, abduction of 247 
 
 H K ; H treason ; 357-8 
 
 HionwAYs — 
 
 ( >ffences relating to 333-4 
 
 What is a highway. See Nuisances. 
 
 Homicide 331 
 
 hoisebreakixg 272 
 
 House of ill-fame. (See Disorderly house) 195 
 
 C( inviction for keeping 339 
 
 HUSBAJS'I) — 
 
 Neglect, of to maintain wife 360-1 
 
 I. 
 
 Idle and disorderly persons. See "Vagrants. 
 
 Ignorance, casualty, misfortune — 
 
 Crimes committed through 302 
 
 Illegai, drill 359 
 
 Imprison m ent — 
 
 Consecutive 135-6 
 
 When, for subsetiuent oflence to commence at, &c 136 
 
 Indecency 303 
 
 Indians 303 
 
 Indictable oftonces ; 304 
 
 Act respecting duties of Justices in relation to persons charged 
 
 with 22 ct .seq 
 
 What crimes are indictable 305-9 
 
 IndK'Tmkxt — 
 
 Certilicate i if, behig f oiind 27-8-9 
 
 Against Justice, not prevented 155 
 
 Infants — 
 
 Crimes connuitted by 306-7 
 
 Abuse of 343 
 
 Information — 
 
 Necessity of, in indictable cases 23 
 
 Form and recjuisites of 23-4-5-6 
 
 Forms of in ditleront cases 60-5 
 
 General form of (i4-5 
 
 How it ditl'ers from com[)hiint 96 
 
 Ilo(|uisite3 of, in cases of summary convictions 96-8-9 
 
INDEX. 
 
 PAQG. 
 
 ...116-8 
 .... 38 
 
 247 
 
 .. 357-8 
 
 .. 333-4 
 
 331 
 
 . ... 272 
 . . . 105 
 33!) 
 
 437 
 
 TAOE. 
 
 302 
 
 350 
 
 . . . 135-G 
 
 13(5 
 
 . . . . 303 
 . ... 303 
 . . : 304 
 rged 
 
 22 vf .stvy 
 
 305-0 
 
 55 
 
 )-7 
 43 
 
 23 
 
 23-4-5-G 
 ....00-5 
 04-5 
 
 .... no 
 
 ..90-8-0 
 
 00 
 31-2 
 115 
 
 .00, J87 
 
 I.NFOKMATiox (continned)— 
 
 When infonnation ,nay be jointly laid agaiHst two ... nq 
 
 insect of, in giving j urisdiction to Justice . . , no i 
 
 N\ hen objections to, sliould be taken "ni 
 
 For one offence will not a^thori^e conviction for' another Mg lOl 
 
 Amendment of information 
 
 ^'iiriances between, and evidence 1 019 !?! 
 
 May be laid in i,er.son or by att, .rney ' ! ? 
 
 Substance of, to be stated to defendant . VJ It 
 
 One Justice may grant even .vhere two Justicesmust hear the case 155 
 
 ^ enue need not be stated in body of 23-4 00 08 -m Z 
 
 Under Liquor License Act .... ' ^' ^^' '^•^^"^^^ 
 
 For one offence only ^^^ 
 
 For an indictable offence ^^^'^ 
 
 To obtain a search warrant 
 
 Complaint or, time for making 
 
 Complauit or, when to be in writing"and on oath 2«) n i 
 
 Complaint or, objections to, not allowed on ', r, - 
 
 To compel finding sureties for the peace, form of Von 
 
 General form of, upon oath ;.;; ^[[^ 
 
 Informer — 
 
 Who may be 
 
 Ix.irRjE.s — 
 
 Malicious 
 
 In.vs — 
 
 Disorderly 
 
 In.sane Prisoners— 
 
 Enquiry as to 
 
 In.sanitv 307-8 
 
 LxsoLVENcv or bankruptcy f^^ 
 
 LvTEREsT disqualifies a Justice ' • • • • • J308 
 
 Lntoxi. ATIN. ; li.juurs. See Spirituous Liquors.' 14, lu, 10 
 
 J. 
 
 Joint — 
 
 Com„iis.sion of offence, penalties how recoverable in such cases 157 
 Intormation or conviction .. <„, ,,-,'. ..J 
 
 Jt'iNT tenants. See Larceny. ' ' 
 
 Jury — 
 
 Appeals triable by 
 
 Justice— l**^-* 
 
 Offences against the administration of, information for 63 
 
 00 
 
 324 
 302 
 
438 
 
 INDEX. 
 
 PAGE. 
 
 Justices of the Peace — 
 
 Two classes of : 1. By connnission 1 
 
 2. By virtue of holding some other office 1 
 
 Powers and duties of 1 
 
 Qualification of 2,3 
 
 Protection of 10, 20, 226 
 
 Acts of either ministerial or judicial 4 
 
 Number of, rei^uired to decide 4, 5, 97, 1 1 1">, 1-^7 
 
 Jurisdicti(m of 5, 0, 7 
 
 General view of procedure before 0, 10, 11, 12, 13 
 
 Procedure before Justices of county where offender apprehended. 4U-50 
 
 Liability of IG 
 
 Not punishable for errors of judgment 10, 22()-7 
 
 Interested 14, 15, 16 
 
 Fees receivable by, or their clerks 382-3 
 
 Who are, by virtue of their office , 1 
 
 Jurisdiction of, in cities 1-6 
 
 Penalty on, for acting without being qualified 2 
 
 Protection of, from vexatious actions 226 d. siq- 
 
 Limitation of actions against 234 
 
 First issuing summons, iiave not exclusive jurisdictif)n 27, 97 
 
 Jurisdiction of, in smumary cases, given by statute 07-8 
 
 Majority should decide 12 
 
 In case of misdemeanor, one may bail 51 
 
 May issue wai'rant if summons not obej'ed 112 
 
 When may issue his warrant in first instance 112 
 
 After hearing evidence, to determine the matter 110 
 
 One may receive information and issue summons in all cases 155 
 
 Where hearing before two, one may issiu^ sununons 155 
 
 Cases in which two are required 156 
 
 Where two required nuist act during whole of hearing 157 
 
 Fiiii''tiouarics wlio have tlie power of two .luaticea 157-8 
 
 One may conqjcl witness to attend, and issue distress warrant. . . 156 
 Acting before or after conviction need not be a convicting Justice 157 
 In case of f eh my two may bail, if evidence not sufficient to com- 
 mit 50 
 
 Duty of, when party connnitted wishes to lie bailed 56 
 
 To transmit evidence on application for bail 58-0 
 
 Juvenile Off'ender.s — 
 
 Act respecting tlie trial and punishment of 208 
 
 Pc.*s(m8 of not more than sixteen years of age may bo summarily 
 
 convicted 209 
 
 Justices may dismiss complaint in certain cases 210 
 
INDEX. 
 
 439 
 
 PAGE. 
 
 . ... 1 
 
 1 
 1 
 
 . . . 2, 3 
 , 20, 22G 
 . .. 4 
 115, 157 
 ..5, (J, 7 
 1, 12, 13 
 3(l.41»-50 
 .... IG 
 0, 22(i-7 
 , 15, IG 
 ..382-3 
 .... 1 
 . .. 1-6 
 .... 2 
 ' et. neq' 
 .... 234 
 .27, 97 
 ,.. i»7-8 
 ... 12 
 .. 51 
 .. 112 
 ... 112 
 ... 119 
 ... 155 
 ... 155 
 .. 15G 
 ... 157 
 .157-8 
 . . 15G 
 CO 157 
 111- 
 
 . . 50 
 . . 60 
 . . 58-9 
 
 . . 2()K 
 
 ly 
 
 . . 209 
 . . 210 
 
 JuvE.MLE Oifenders {continued)— ''■^*'^"° 
 
 Form of certiHcate of di.smis.sal .,, 
 
 Rele.a.se of party obtaining certiticate. .'.'.'.' .'.'.'.".'.','"'. .^jy 
 
 Case may be sent for trial if .Justices thinly tit ou 
 
 Justices to give person charged tlio optie.n of trial by' uu-y 211 
 
 Conipulhng appearance 
 
 Application of (ine.s " 
 
 F^ . . 214 
 t)rin lit conviction 
 
 Conviction not to be .[naslied for defect of form ojo 
 
 Ocmvictionto be sent to clerks of jteace '.".'.".. oyj 
 
 No forfeiture, restitution ~ 
 
 If property is not f<.rtlicoming " ' .",!. 
 
 Elecovery of penalties ^ 
 
 Committal for non-payment .".' 
 
 Expen.ses of prosecution, liow to be paid '....!'...... *"l;j 
 
 If there be no conviction _ ovtA 
 
 Amount of expenses, how to be a.scertained and certified " oi4 
 
 Orders of p.iyment, how to be made, and upon whom 214-5 
 
 Protection of persons acting under this Act ' .).,,j 
 
 L. 
 
 Lau('i;\v — 
 
 fnformation for 
 
 , ,t H 
 
 In a dwelling houHe 
 
 On h.dictment for embezzlement, party 'nniy be 'ciu'vicied of^.'.^'li! 
 On indictment for, party may be convicted of embezzlement 314 
 
 t arty indicted for false pretences may be convicted of '{p^ 
 
 Dehnitioii of term 
 
 As to the subjects of ............,.",.... f!^^ 
 
 As to the per,son,s who may commit \,[. 
 
 Returning thing.s stolen, ,.|r,;et of ' . '{r i 
 
 Distincti.ms between, ami false pretences...".!"...'.'.".'.' '-n,, 
 
 Venue in cases of '_ ' 
 
 destitution of [.roperty stolm ; ' "" 
 
 Of the taking -""' 
 
 The taking mu.st be felonious -Itv 
 
 Lost i)roi)erty ' 
 
 What property is the subject of larceny.'.'.'.". '\!1 
 
 •loint tenants '' 
 
 llusbindand wife [ ^* 
 
 The taking must lio against the will of the owner '{Jl 
 
 Where tho owner parts with the cust.alyonly .312-3 
 
*I0 INDEX. 
 
 PAGE. 
 
 Lahi'KNY (fontinned) — 
 
 Where the owner parts with the possession, but not with the 
 
 property .312 
 
 VVheiHi po-ssession is obtained by fraud 31.3 
 
 Wliere possessiini is obtained without fraud by a trespass 312-13 
 
 Bailee lireaking bulk 314 
 
 Stealing trees 309 
 
 By clerks and servants 315 
 
 By bailees 3M 
 
 Restitution of stolen goods 320 
 
 Lawless aggressions 253 
 
 Lkauino QUE.STIONS. See Evidence. 
 
 Letter Bags— 
 
 Opening post. See I'ost Ottiee 
 
 LiAiiiLiTVof Justice. See Justices. 
 
 Libel and indictable slander 321 
 
 Lni;NHEs — 
 
 Act respecting the obtaining of, for the .sale of licpior in Ontario. . 384 
 
 IjiMrr.vnoN — 
 
 Of actions against .Fustices 234 
 
 Notice of action 234 
 
 As to sunnuary proceedings 5 
 
 As U) indictable offences 5, 115 
 
 Liquor — 
 
 Liipior License Act in Ontario 384 
 
 Interiiretation of 384 
 
 Regulations and prohibitions under 385 
 
 See S])irituous Li(iuorH. 
 
 Lost PuorKRTV. See Larceny. 
 
 Ll iTTERI ES 322 
 
 LUNAIIC — 
 
 Encpiiry as to i)ri8nner being 307 
 
 M. 
 
 Maoistratk — 
 
 See Police Magistrate. 
 Maoistkatks— 
 
 Powers and duties of. See .liisticiis. 
 
 <'nurt, procediiie ipf I), 10, II, 12 
 
 Mail— 
 
 Delaying or obstructing the 338 
 
 M\1nti;na.mi-. and ciiauiperty 323 
 
INDEX. 
 
 441 
 
 PAGE. 
 
 234 
 
 .... 234 
 
 5 
 
 . 5, 115 
 
 . 322 
 
 . 307 
 
 Malfea.sanck hy public officers ^'^^^' 
 
 Mauck defined ^^^^'^ 
 
 See Murder. ' ^^4 
 
 M.\xifiou.s injuries, information for 
 
 To property, Act resijeotintr ; ^'? 
 
 Claim of right negativing malice " ' f^^ 
 
 Must be malice 
 
 And in certain cases the act must be wilfully done .^i" ^ 
 
 MANSLArrrHTKK— "^''"■' 
 
 Information for 
 
 Definitinn of 
 
 See Murder. 
 
 Mahriaoe — 
 
 Solenuiization of 
 MaUKIE1> W'dMK.N - 
 
 Crinuual liability of .._, 
 
 Ma.stek AM) Servant 
 
 Breaches of Cntract Act, 1877, effect of 
 
 Meastke.s— 
 
 Using uidawful weights and . „ , . ^ 
 
 MeXACE.S and TUKEAT.S ' '^7''' 
 
 MiUTAiiVAM) Naval Stohe.s— '^^'^ 
 
 Protection of 
 
 MiLlTAKV EXEKCISEM nR Evol.UTIONS - 
 
 Illegally drilling to the (practice of 
 
 MiNoR.s and ajiprentices _ 
 
 AriMTE (if (Iccisidn _ 
 
 Of eiinvietioii to be made 
 
 Of order to be served . . 
 
 131 
 
 2!I0 
 
 Misi-KisjoN of felony 
 
 MoNEV — 
 
 Stealing same, information for 
 
 Mri!l>KR — 
 
 Uelinition of 
 
 Information for 
 
 Attempt to coutianit 
 
 Malice in 
 
 NMiat amounts to 
 
 01 
 331 
 
 209 
 
 328 
 
 328 
 '28-9 
 
 331 
 
 254 
 119 
 
 Misconduct liy public officers 
 
 Mj,- 
 
I' AGE. 
 
 ... 127 
 
 !, 4()8-<» 
 .. 118 
 .. 124 
 .. 124 
 . . 291 
 
 . 2;}4-5 
 . . 45 
 .. 87 
 ... 188 
 
 . .:3:w-4 
 
 29 
 . 114 
 . 114 
 
 122 
 ... 'Mli 
 
 30 
 t-5,104 
 , 144 
 
 . ;u{4 
 
 22 
 
 . MOf) 
 
 :<92-;j 
 
 255 
 
 .. 208 
 
 290 
 
 INDEX. 443 
 
 PAdE. 
 
 Open Court — 
 
 Place where Justices take examinations not an, in indictable cases 44 
 
 But is in summai-y cases 1 15-(i 
 
 See Attorney. 
 
 Order — 
 
 Distinction between it and conviction 90 
 
 Meaning of term " order " in Act as to summary convictions . .95-1015 
 
 Minute or memorandum of 119 
 
 Forms uf orders 119, 120, 130, 170 
 
 Several parts of and requibites 1 20, 130-1 
 
 Of ilisniis.sal 121 
 
 Minute of order to be served before comnuttal 131 
 
 Orher in Court — 
 
 Preservati(m of 172, 158 
 
 0\VNERSHir OF Fr(H'KRTV, itc. 
 
 How described in infornuition (jr complaint 24, 102, 109, 110 
 
 P. 
 
 Fartik.s — 
 
 If both appear, Justice to liear, &c 118 
 
 Partners — 
 
 Description of property of 24, 109-10 
 
 One of several may l)e convicted 1 29 
 
 Pawnjuuikeks 335 
 
 Payment — 
 
 Of sum mentif)ned in Warrant of Di.stress 155 
 
 Or to Keeper of Prison 155 
 
 Peace — 
 
 On Public Works 335 
 
 Penalty, need not bo fixed at moment of convictiim I2i 
 
 Proci't-diuLfs for recovi'ry of, wlion inipoHcd by Htiitute of Ontario ">(i 
 
 Wliat constitutes the oHoiicu 335-(( 
 
 Subornation of 330 
 
 Oath, meaninj,' of tlie word 335-0 
 
 Peuson — 
 
 Stealing from tlu' 312 
 
 Act respecting oflences against 337 
 
 Personation 
 
 Kalse, at elections 27! 
 
 ..feuj lElfc' 
 
44+ 
 
 INDEX. 
 
 PAGE. 
 PlKACY 337 
 
 Poison — 
 
 Administering , 266- 
 
 PoLICK — 
 
 C( )nimissioners of 337 
 
 PoLICK MA(;lSTliATE — 
 
 Has powers of two Justices 58 
 
 Post Office — 
 
 Offences relating to 338 
 
 Pkactii'K 33!) 
 
 Amending convicti( in 339 
 
 Venne in body of information 339 
 
 Wlien conviction should show by-law . 340 
 
 Pkincipalh and Acmje.ssohies 340 
 
 PUISON - 
 
 Mianing of 158 
 
 Prison i;r— 
 
 Justice to take statement of 42-3 
 
 Procednro when brought before Justice of county other than that 
 
 in whicli dfrcnce committed 49-50 
 
 CJaoler'.s receipt to constable for, and Justice's order 57-8, 92 
 
 Warrant remanding a 47-84 
 
 Warrant for deliverance on bail being given for, already com- 
 mitted '. . . 50 
 
 Detaining, in custody 29-72 
 
 Entitled to copy ( if depositions 43 
 
 PKOCRniUE — 
 
 Bef( ire .1 iistices 36G 
 
 Where penalty imposed by Act of Ontario 3(!() 
 
 ()n appeals to Judge of County Court in »)ntario, from summary 
 
 convictinns 370-1-2-3-4 
 
 Of Magistrate's Courts 9, 10, 11, 12, 13, 14, 37. 48, 9-50 
 
 Pkosec'utou — 
 
 Costs may be recovered from, in certain cases 124 
 
 May be heard by counsel or iittorney IH5 
 
 Witnesses and, to bi' bound over liy recognizance 45 
 
 A competent witness in certain cases 122 
 
 If, does not appear, case may be dismissed 124 
 
 Prostiti'TK 359 
 
 Pkotkction— 
 
 Of Justices 22t; 
 
 PltoVlSO — 
 
 If negatived, need no! be i'ro\ed 121-2 
 
PAOK. 
 
 . 337 
 . 266 
 
 .... 58 
 
 ... 338 
 . .. 339 
 . . . 339 
 .... 339 
 ... 340 
 . . . 340 
 
 ... 158 
 
 . . 42-3 
 
 124 
 111) 
 4.:> 
 122 
 124 
 35!) 
 
 INDEX. 44,^ 
 
 Public Mor.^ls, Offen(-e.s A(!ainst— ^'''"^' 
 
 Information for 
 
 Public Officer.s— 
 
 Offences bv. 
 
 Miu-iea.sance 
 
 Non-fea.sance 
 
 Extortion "' 
 
 Protection of, from vexatious actions 99/. 
 
 Public Peace— *'*' 
 
 Information for oflences against 
 Public WoHK.s— "* 
 
 Preservation of peace, on cjo^ 
 
 Public Worship— ^ 
 
 Disturbance of . . „,._ 
 2/0 
 
 Quakers, TuNKERs, ttc.,— 
 
 Affirmation by .,„ 
 
 Qualification of J ustices \ ,, 1 
 
 Property (pialilication ' ' 
 
 Oath a.s to property (pialilicatiijn 3 
 
 Oertilicato of oath of (lualiHcatiun .5 
 
 Penalty on Justice for actin<{ witliout lieing ((ualilied .."...' 2 
 
 Quarter Sessions OK THE Peack .,-7, 
 
 u u . 'joO 
 
 >5ee Sessions. 
 
 Questions— 
 
 What witness not hound to answer 405.,; 
 
 Leading. See Evidence. 
 
 Kailwavs — 
 
 Oft'encos rehiting to ..o,, 
 
 Kai'i; — " * 
 
 Information for ,.1 
 
 ,.,, ^ . t)l 
 
 >Vliat oiist'.tutes the (jtt'ence jj^.j.^ 
 
 Husband cjiiuiot commit on wife -^lo 
 
 Attiinpts to couuuit .,,', 
 
 , , , . . o+t 
 
 *•" "l'"fH..... .{^^ 
 
 Rec|;IV1N(; ^tiiU'ii u[()ods- 
 
 Kvith'Uiv on prosecutions for 289 34(1-7 
 
 ^^ hiMi a uiiHiiv'Uioanor ... .■,- 
 
 ,,,, . , i4o 
 
 " hen h'lonv. ... .,,- 
 
 .... , ,• 54t) 
 
 <> hat constitutes the olVeuce ;J4ri-(J 
 
 V'oniio in eases of ' - u 
 
 i-ri 
 
446 
 
 INDEX. 
 
 PAGE. 
 Re<'0(1XIZANCE — 
 
 Justices to bind over prosecutor and witnesses by 45 
 
 T( ) be subscribed by Justices 46 
 
 To be transiuitted to the court in which trial is had 40-7 
 
 When void 50 
 
 Transmission of when defendant does not appear 10!>,114, 135 
 
 In case of disti'ess warrants 135 
 
 Discharge of accused on entering into 48 
 
 Coiumitnient of witness for refusing to enter into 47 
 
 Certificate of non-aopearance to be endorsed on 49 
 
 Of bail 48, 50-1 
 
 To prosecute or give evidence 45 
 
 Notice of, to prosecutor and his witness 45 
 
 Notice of, to be given to accused and his sureties 45 
 
 Form of, to try the appeal, i<:c 189 
 
 Form of notice of, to be given to defendants and sureties 190 
 
 Form of, for the sessions 191 
 
 Who to enter into for married women 45 
 
 Re-hearin(} a case 14 
 
 Remand — 
 
 When made 35 
 
 Power (jf Justice to remand the accused 47-8 
 
 1 f f ( ir three days only, may be by verbal order 48 
 
 Accused may be brought up liefore expiration of 48 
 
 Recognizance of bail, instead of 48 
 
 Warrantor 47,84 
 
 Reply, observations in J 19 
 
 Rescue nf ii prisoner 284 
 
 Responsihility for ci'ime — 
 
 In tlie case of infants 30(i-7 
 
 In the case < if women 328 
 
 Lunatics, idiots, itc 1)07 
 
 Druukards responsible for crime 282 
 
 RESTPriTTION — 
 
 When to be made 320-1 
 
 Return — 
 
 Of convictions 14S. 379 
 
 Form of 14:1, 380 
 
 I'onMlty foi' not making 153 
 
 I'eiialty for ri'ceiving more than legal amount of fees 154 
 
 Prosecution must be oommencfd within six months 154 
 
 Of convictions, S:c., to be publislied by Clerk of Peace 154 
 
 Under Acts of Ontario 379, 380 
 
INDEX. 447 
 
 Revised Statutes of Ontari.j ^^^'^' 
 Reward— 300 
 
 Corruptly taking, to recover stolen goods o'm 
 
 Ri(iin— '^1^ 
 
 Claim of 
 
 Riots, routs and unlawful assemblies ........... .^ ." "^" ' 
 
 Dt fiiiition of a riot . 
 
 Definition of a rout , 
 
 An unlawful asseiublv '^^^ 
 
 RoK- ^ 348 
 
 Assault with intent to 
 
 ROBUKRV — 312 
 
 Information for 
 
 Whatis '. .....",[[ :; ^l 
 
 As.sault with intent to commit. ... "^ '^If 
 
 RoL'T.s. See Riots, itc. '^ 
 
 s. 
 
 Sacrilege .... 
 
 Seal- 273 
 
 Warrant must bo under 
 
 Conviction or order nuist be under i lo I'on 
 
 Search warrant . "^^ 
 
 T ^ . :{ I -9 
 
 Information to obtain a • • " 
 
 Under what circumstances a Justice may LTant .i/o 
 
 Servant. See Larceny. 
 
 Masters and, ofi'enccs by 
 
 SERViri: of .summons ". .".'.'.', ."; ^^^ 
 
 Se.s.sions — oL, J UI3 
 
 Jurisdiction and powers of 
 
 Sheriff — 350 
 
 Cannot lie a magistrate 
 
 Shops — ■* 
 
 Liquor not to be drunk in premises having shop licenses. . -^S') 
 
 SMru()Li\o ^'*'" 
 
 SonoMv 3*'- 
 
 SpEEDV trial IN' IKKTAIN CASES— 
 
 Act respectiny- 
 
 ' '^ '^ 1 ( i 
 
 Pmoedure in such cases „,„ 
 
 Forms under the Act * 
 
448 
 
 INDEX. 
 
 PAGE. 
 
 Spiritt'ous LioroKs — 
 
 Act in ( )iitiiri(j re.specting the sale of 384 
 
 Regnliitions and proliibitious under 385 
 
 Notice of license to be placed over doora of taverns 385 
 
 License must be o1)tainiHl for the sale of 385-G 
 
 Cannot be joint c(jnviction for selling without license 380 
 
 Conviction negativing exceptions 38G-7 
 
 Brewer, distiller, chemist or druggist ... 387 
 
 Must not be sold on Sunday 388 
 
 Nor on vessel at [xirt 388-0 
 
 Not to be ci msunied on premises 380, 300 
 
 Penalties under the Act 300-1-2-3 
 
 Compromising offences 302-3 
 
 Recovery of penalties 303 
 
 Prosecutions procedure on 304-5-0 
 
 In certain cases before two Justices 300 
 
 Appeals under the Act 307 
 
 Prt )cedure in case of previous conviction 308-0 
 
 Forms of informations and other proceedings 400 
 
 Convictions 401-2-3 
 
 Forms under Act See Forms, &c 403, 410. 
 
 Evidence on pi'osecutii ms 405-0 
 
 Liability of occui)ant 407 
 
 Burden of proof of license ... 408-0 
 
 Witnesses under Act, summoning of 40'.)-10 
 
 Disorderly taverns 302 
 
 Search warrant may be issueil by Justices in certain cases .... 400-10 
 
 Dei)08iti(jns may lie taken down in writing by the Justice, iV'c 300 
 
 Evidence of sale 40(i-8 
 
 Tampering with witness 303 
 
 No appeal, itc. , to Court of Q\iarter Sessions 307 
 
 Statk>vi;nt — 
 
 ( )f the accused 42 
 
 Stealing — 
 
 Post-letters 338 
 
 From the person 312 
 
 See Larceny 
 
 STirKNiHAKv Maoistr.vte — 
 
 Powers of 58 
 
 May act ah >ne 58 
 
 To have poAver to preserve order 158 
 
 May enforce execution of [)roces8 158 
 
fXRKX 
 
 44!> 
 
 PAGE. 
 
 384 
 
 385 
 
 385 
 
 385-G 
 
 380 
 
 38G-7 
 
 387 
 
 388 
 
 388-0 
 
 380,300 
 
 ...300-1-2-3 
 
 302-3 
 
 303 
 
 ....304-5-fi 
 
 30(> 
 
 307 
 
 308-0 
 
 400 
 
 .. 401-2-3 
 ...403, 410. 
 
 405-() 
 
 407 
 
 ... 408-0 
 ..400-10 
 .... 302 
 
 t 400-10 
 
 .Vc... 300 
 . . . 400-8 
 
 303 
 
 307 
 
 -42 
 
 338 
 
 312 
 
 ...... 58 
 
 58 
 
 158 
 
 158 
 
 I'ACIE. 
 
 Stolen fJdon.s — 
 
 Arrest of persons in possession of 255 
 
 Corruptly taking rewards to recover 270 
 
 Subornation of perjury — 
 
 Information for ()3 
 
 What constitutes the oflence 330 
 
 Suicide 333 
 
 Summary Admini.sthationof Criminal Justice— 
 
 Act respecting 103 
 
 Forms under the Act 200 
 
 Summary Convictions — 
 
 Act respecting 95 
 
 Duties of Justices in rehation to 95 
 
 Forms in sunnnary ca.ses 150 
 
 Jurisdiction of Justices in summary cases 97-8 
 
 Rc(iuisites of information in such cases 08 
 
 Appeals in cases of 130,307-8 
 
 Api3cals from under acts of Ontario 307-8-0 
 
 Appeals from to Judge of County Court in Ontario. ...370-1-2-3-4 
 
 Proceedings, in cases of, one Justice may issue sununons 155 
 
 Appeal in cases of 130 
 
 Summons — 
 
 In indictable cases 26, 27, 32 
 
 In cases of sununary conviction 05, 102 
 
 Must be issued if defendant does not appear 102 
 
 But not required t< > obtain ex parte order 104 
 
 Proof of service of 1 04 
 
 In what cases may issue 32 
 
 How to be served 32, 103 
 
 How directed 32 
 
 No objection allowed for alleged defect in 35, 104 
 
 If not obeyed warrant may lie issued .... 32 
 
 To a witness 36, 74 
 
 Warrant when the, is disobeyed 37 
 
 Justice may issue when information laid 32, 05 
 
 Not obliged in certain cases to issue 105 
 
 If not obeyed, Justice may issue warrant in summary cases 105 
 
 If not obeyed, Justice may proceed exparta 107 
 
 To defendant, on an informati^ 
 
 /, 
 
 '/ 
 
 a 
 
 Photographic 
 
 Sciences 
 
 Corporation 
 
 23 WEST MAIN STREET 
 
 WEBSTER, NY \4580 
 
 (716, 872-4503 
 
 ^^ 
 
 ^^ 
 
 o 
 
 '4^^ 
 
 /<^ 
 
 W 
 
 <* 
 
 Q,^ 
 
 TO 
 
 ■^'- 
 
<> 
 
450 
 
 FNDEX. 
 
 PAGE. 
 
 SuNi>AV (conihmedj — 
 
 I'rofanatiou of 363 
 
 Sale uf intuxicating liquors prohibited on 388 
 
 SUKBTIES— 
 
 Notice of recognizance to be given to accused or defendant and 
 
 his 45 
 
 For the peace 364 
 
 Form of complaint by party threatened, for IWq 
 
 Form of recognizance for the sessions 101 
 
 When party may be bound to kei'p the peace 354-5 
 
 llei;i>gnizjince sliould be for stated time... 355 
 
 Form of commitment in default of sureties 191, 365 
 
 In what cases sureties may bu ordered 355, 36<> 
 
 Tavekss. See Spirituous Liquors. 
 
 TELEuiurn — 
 
 Otlences relating to 356, 357 
 
 Operator divulging secrets u misdemeanor 35(5, 367 
 
 Tehuitokial Division, meaning of 59, 158 
 
 TUUEATS— 
 
 To accuse of a crime 329 
 
 DemanviiUg money or goods by threatening letters 330, 331 
 
 Toaccuse of buggery 329 
 
 Time for laying hiformation in summary casus 90, 115 
 
 For bringing actions. See Limitation. 
 
 Title to lands, Justices not to try (piestions as to 20(5 
 
 Tkade Marks, itc 367 
 
 Thains— 
 
 Ubstructing 326 
 
 Tkansmishion of papers. 
 
 See Recognizance, Deposition. 
 TkeasoiN 357 
 
 High treason dotined 358 
 
 Trees— 
 
 Stealing. See Larceny. 
 
 TREHrAHS — 
 
 See AsBnult. 
 
 See Lai'ceny. 
 Trial— 
 
 Of otl'enders and acceBBories in caBec of forgery 8 
 
 Venue or place of trial in dillerent cases 7, 8 
 
 Tinkers, Qdakeks, iVc— 
 
 Allirmatiou by 286 
 
PAGE. 
 
 . 353 
 
 388 
 
 fondant and 
 
 45 
 
 364 
 
 l'.»0 
 
 191 
 
 364-5 
 
 365 
 
 lUl , 355 
 
 356, 36() 
 
 356, 357 
 
 35(), 367 
 
 5y, 168 
 
 329 
 
 330,331 
 
 329 
 
 90, 116 
 
 260 
 
 367 
 
 320 
 
 357 
 
 368 
 
 8 
 
 7,8 
 
 286 
 
 INDEX. 
 
 451 
 
 jm PAOS. 
 
 Unlawfiil Assemblies. See Riots, &c. 
 
 Unlawful Trainino to tlie nse of arms 359 
 
 Uttbrino POROED Instruments. 
 See Forgery. 
 
 V. 
 
 Vagrancy 
 
 ^KQ 
 
 Common prostitutes oVn „,.' 
 
 INeglect to maintain, Ac Lr. -, 
 
 r\ ... , iJuO-1 
 
 Conviction must bo by r>olico Magistrate or two Justices 361 
 
 Punishment for ;,^, .. 
 
 Valid- '^^^'^ 
 
 Forms in schedule to be m 1 r o 
 
 Variance- ^'^>^^'^ 
 
 Between information and evidence qa 
 
 Between warrant and ovidonco «- 
 
 If, in summons or warrant appear t.. Justices.' they may adjourn 
 the case 
 
 Between information and evidence in' iases of■8ummary'convic- 
 t'"» 104 
 
 The case may be adjourned 104 
 
 Between warrant and ovidpuce, &c. .. 109 
 
 If, in warrant, may adjoufii the case. . . ,(,,', 
 
 Venub in different cases '.' \ 
 
 Vexatious Actions against Justices of the Peace— ^ ^'^ 
 
 Protection against 
 
 When the matter is within his jurisdiction 220' 
 
 Wlien Justice has exceeded his jurisdiction 228 
 
 Acts d(mo under c(mviotion or order o-Vi 
 
 If one Justice cmvict and another grant a warrant ojji 
 
 Conviction or or 
 
 27-8-9 
 
 32-3 
 
 ..33-4,108, 134-5 
 
 34 
 
 34 
 
 35,109 
 
 107 
 
 108 
 
 117 
 
 155 
 
 [ul 134 
 
 135 
 
 mo 148 
 
 150 
 
 . . 2«,32, 105-(! 
 
 37,100 
 
 101 
 
 159 
 
 IGO 
 
 34,108 
 
 107 
 
 175 
 
 170 
 
 177 
 
 178 
 
 178 
 
 1.S0 
 
 I llic lirst iii- 
 179 
 
 PAUE. 
 
 Warrant (cnntinned) — 
 
 ( )f distress for cists uiion an order for disinigsal of 181 
 
 Of distress for coats (jf an !Vi)[)t'al, »tc 184 
 
 Of commitment in want of distress for costs of an appeal 180 
 
 When a constable may arrest withont a 255 
 
 Endorsement of, V.ow performed .. 35 
 
 '7iidor.sement of, ils etlects 35 
 
 3y whom may be executed 33-4, 108 
 
 Search warrant 31 
 
 Form of ri8 
 
 Form of information to obtain a 08 
 
 To apprehend, to be under seal 32-3, 108 
 
 May be issued on Sunday 29 
 
 How and where it may be executed 34, 108 
 
 Need not be returnable at any particular time 34, 108 
 
 No objection allowed for defect in form or substance 35, 109 
 
 In certain cases may issue in the lirst instance 29, 37, 112 
 
 May be issued if summons not obeyed 37, 112 
 
 Backinga 36,108-9 
 
 Of deliverance. Justice may issue, in certain cases 55-0 
 
 To detain a person in custody 110-7 
 
 When witness has not obeyed a sununons 37, 1 12 
 
 For a witness in the first instance 37, 112 
 
 Of commitment of witness for refusing to be sworn or to give evi- 
 dence ;J7, 112 
 
 To be uniler hand and seal of Justice . . . 108 
 
 WeKIHTH ANK Mt.ASUKKH 304-5 
 
 WlFK- 
 
 Cauii jt give evidence for her hu.sband . . 287-8 
 
 A man cannot commit rape on his own 343 
 
 Desertion of, and children 3C0-1 
 
 Husband and, see Larceny yiO 
 
 Witness — 
 
 Foes to 37, 383-4 
 
 Svnnmons to 30, 110, HI, 112 
 
 Warrant whore simimons is disobeyed 37 
 
 Warrant for, in first instance 37,112 
 
 Conniiitment of, for reftising to be sworn or to givd evidence . ..'{7, 1 12 
 
 Examination of H5 
 
 I'owertip sumiiioM ;{(; 
 
 Procedure tncouipi'l attendai'-e of ;{((.7 
 
 Examination of against .ccused 37-8 
 
 May be bound to appear by recognizance 46 
 
t 
 454 INDEX. 
 
 PAGE. 
 
 W11NB88 {coiUinued) — 
 
 May be committed for refusing to enter into recognizance 47 
 
 i*' Discharge thereafter 47 
 
 For defence in indictable cases not admissible 11, 3G 
 
 Different in summary cases 11,110-11 
 
 . ' Prosecutor or complainant is competent 122 
 
 Must be examined on oath 122 
 
 i Not bound to criminate himself 406-6 
 
 Competencyof 111,122,157 
 
 See, also, Evidence 285 
 
 Worship — . • - . r 
 
 Disturbance of public 275 
 
 ■ > 
 
 1 1 > ' . < . i ' k 
 
 95 
 
 i*M 
 
 7G:}8 4 
 
 «... 
 
PAOK. 
 
 eance 47 
 
 47 
 
 11,36 
 
 11,110-11 
 
 122 
 
 122 
 
 405-6 
 
 111,122,167 
 
 285 
 
 275