!N .IBRARY INIVERSITY Of I CALIFORNIA^/ '.?? y THE POWERS AND DUTIES OF JUSTICES OF THE PEACE IN IRELAND, AND OF CONSTABLES A3 CONNECTED THEREWITH; WITH AN APPENDIX OF STATUTES AND FORMS BY RICHARD NUN, ESQ., ASSISTANT BARRISTER FOR THE COUNTY OF TYRONE, AND JOHN EDWARD WALSH, ESQ., BARRISTER AT LAW. DUBLIN: HODGES AND SMITH, COLLEGE-GREEN. MDCCCXLI. LOAN STACK DUBLIN : PRINTED BY GRAISBERRY AND GILL. N85- PREFACE. THERE is, perhaps, no part of our legal system in which a wider difference exists between the state of the law in England and in Ireland than in that portion of it, the administration of which devolves upon the magistracy ; the obvious consequence of which is, that the English works treating of the office of a Justice of the Peace, numerous as they are, are of little or no practical utility to a justice in Ireland, while similar works adapted to the law in this country are comparatively few. It is to supply the deficiency thus felt to exist that the following work was undertaken. The subjects treated of are those only which come within the jurisdiction of magistrates acting out of Quar- ter Sessions. The duties of justices at Quarter Sessions embrace so many topics, and so large a portion of our criminal law, that it would be impossible to treat of them usefully within the compass of a single volume ; added to which, it was considered that, however useful and proper the introduction of these subjects may be in books for the use of magistrates in England, where the 678 IV PREFACE. business of the sessions is transacted by magistrates alone, it would be comparatively of little use to magistrates in this country, where the business of the sessions is con- ducted with the assistance, or under the advice, of the Assistant Barrister for the county. The object aimed at has been, therefore, rather to supply full and accurate information on the subjects which the work embraces, than to treat cursorily of a great many topics, the variety of which tends rather to confuse than to instruct. Nothing, however, has been omitted which it was con- ceived could be useful to magistrates acting individually or at Petty Sessions ; and it is hoped that the various practical directions, of which the Editor is induced, from the most diligent research through other published works upon this subject, to believe that several appear now for the first time, may be especially useful to them. A small part of the work may, perhaps, seem too purely theoretical or technical to be practically use- ful to magistrates ; some of the subjects introduced are, however, of such a nature that it could not be omitted without rendering them incomplete, and materially les- sening the utility of the work to professional readers, for whose convenience also copious references to the authorities are given throughout. The catalogue of offences introduced in the chapter on " Bail" will be found to contain a concise description of every offence now punishable by indictment, with the punishment annexed to each, whether by Statute or at common law. The offences are arranged under the leading division of " Felonies" and "Misdemeanors," and PREFACE. V for facility of reference, in alphabetical order. This may be useful for readily ascertaining the degree of punish- ment to which, in every case of conviction for an in- dictable offence, the offender is liable. With the exception of the general provisions of the Constabulary Acts, the duties of constables treated of are those only which are intimately connected with the office of magistrates, a knowledge of which is not only useful to enable the latter properly to direct their officers, but is in fact essential to the right understanding the nature and extent of their own powers and duties. In the Appendix of Statutes will be found almost all the Acts investing justices with summary powers which they are ordinarily called upon to exercise. Those Acts, however, which relate to revenue prosecutions have (with the exception of the Acts relating to game certificates and the regulation of public-houses) been omitted; such of the duties of magistrates connected with them as are not peculiar and prescribed by the particular Acts, are, of course, treated of in common with similar proceed- ings connected with other subjects ; but as revenue prosecutions in Ireland are almost invariably conducted by persons of professional education, who can readily refer the magistrate to the particular Statute under con- sideration, it was considered that the introduction of the particular Acts themselves (which are very numerous and complicated) would have greatly increased the bulk of the work without an adequate addition to its practical utility. It is proper to account for two other apparent VI PREFACE. omissions the Statutes relating to the Inland Fisheries and the Mutiny Acts. With respect to the former, which are at present in a state of considerable confusion, it was understood that they were undergoing revision, and it was therefore thought improper to burthen the work with a body of law which was so soon to be repealed or altered ; and with respect to the latter, the Acts being annual, and therefore liable to continual alteration, it was thought more safe to refer the reader to the Statute Book for the current year, which is to be had at every Petty Sessions. As to the authorship of the work, it was originally designed and for the greater part executed by Mr. NUN, but various circumstances having interposed to prevent its completion by him, he has now placed it at my dis- posal, and the two first parts, particularly the chapters relating to Informations, Examinations, Bail, and Com- mitment, have had the advantage of being also again re- vised and corrected by him immediately previous to pub- lication. For any errors or omissions in the other parts of the work I am alone responsible. JOHN E. WALSH. 9, GREAT CHARLES-STREET, Oct. 1841. TABLE OF CASES. A. ^ PAGE. PAGE. Sroughton v. Mullahoe . 321 Addis, ex parte . . 676 Brooks, q. t., v. Milligen . 553 Aldridge, ex parte 579, 625 Burdett u. Coleman . 193, 207 Anon. (2 Salk.) . . 640 Burdett v. Abbott . 198, 202 688 Burley's Case . 318, 351 Apothecaries' Comp. v. Bartley . 538 Butcher's Case . . 349 Arbuckle v. Taylor . 323, 328, 333 Butler v. Turley . 609 Arrowsmith v. Le Mesurier 99 Butt v. Conant . . 159 Ashley, Case . 687 Butt v. Jones . 227, 228 Askem v. Hayton . 687 Atkinson v. Carty . 113, 321, 537 Atkinson's Case . . 444 C. Attorney-General v. Davison . 308 Attorney-General v. Siddon . 555 Calcraft v. Gibbs . 73 Attorney-General v. Morley . 567 Cave v. Mountain 322, 325, 326 Avery v. Hoole . . 576 Cathcart v. Hardy . 600 Aveson v. Kinnaird . 360 Chance v. Adams . 570 Chittinston and Penhurst, inter. Inh. 640 B. Christian's Case . 362 Claxton, Eliz. Case . 523 Balwin v. Blackmore . . 675 Clifford v. Brandon . 121, 123, 126 Bane v. Methuen . 153 Cloud v. Turfery . 564 Barman v. Ellice . 314 Cohen v. Morgan . 164, 167 Barton v. Crawford . . . 35 Colborn v. Stockdale . 579 Baston v. Carew . 554 Cole's Case . 636 Batty v. Gresly . 187,477 Collier v. Hicks 76, 78, 593 Becwith v. Philby 103, 104 Collins v. Rose . . 694 Bennet v. Watson 332, 384 Cooke v. Nethercote . . 126 Bennet's Case 501, 502 Cooper v. Booth . 251 Billings v. Prin . . . . 63 Cornish v. Pugh . .597 Blankley v. Winstanley 61. 62 Coster v. Wilson 609, 674, 678 Blatch v. Archer 193, 207 Cowles v. Dunbar . 103 Blunt v. Grimes . . 72 Cox v. Coleridge 75, 76 , 307, 358, 359, Boucher's Case . . 183 367, 368 Bradberry's Case . . 344 Crepps v. Durden . 553 Bradshaw's Case . 665 Cropper v. Horton 68,331, 332 Brandling v. Kent . 491 Crooke v. M'Tavish . . 548 Branwell v. Penneck . . 697 Cross v. Smith . . 694 Bridge's Case . 458 Crouther's Case . 102, 192 Bridget v. Coyney . 98 Crozier v. Cundy . 250 Bristol Gov. of Poor v. Wait . 658 Curtis's Case 199,201,227 Vlll TABLE OF CASES. PAGE. D. Groome v. Forrester 615, PAGE. 630, 631, 675 Daniell v. Phillips . 614, 675, 678 Daubeney v. Cooper . 76, 592, 594 Guppy v. Brittlebank . . 103 Davis v. Russell . 98, 103, 104, 218 Davis v. Nest .... 573 H. Davison v. Gill .... 636 Hall's Case . 318, 351 Day v. King . . 638, 640, 660 Hall v. Roche . . 1 94 De Beauvoir v. Welsh . 47, 48 Handcock v. Baker 105, 199, 200, 210 Dennis v. Lane . . . 522, 529 Hanway v. Boultbee . . 109, 609 Deybel's Case .... 560 Hardy v, Ryle . 697 Dickenson v. Brown . 185, 192, 229 Hardman v. Whitacre . 616 Ditton's Case .... 586 Hare's Case . 341 Dingle's Case . . 308, 310 Harris v. Stewart . 658 Doe v. Ridgwav .... 360 Harris's Case . . . 187 Doyley's Case . . . 318, 351 Hatton's Case 62 Drummond's Case . . . 360 Hawkins, Ex parte . 560 Drury v. Defontaine . . . cxci Helier's Case 50 Dublin, In re G. Jury of Co. 485, 491 Hereford, Mayor of, Case 66 Dunbar v. Callan, . . .102 Hill, Ex parte . . 494 Duncan v. Thwaites, . . . 307 Hill v. Bateman . . 669 Dunne, In re . . . .529 Hinman's Case . . 341 Hobbs v. Branscomb . 103 E. Holiday v. Oxenbridge . 107 Housin v. Barrow . 187 Elderton's Case . . . 476, 672 Howel v. Jackson . 125 Elmy and Sawyer, In re . . 679 Hudson v. Ashe, . 493, 494 Elsee v. Smith .... 245 Hunt v. Andrews . 609 Ennet v. Sir T. D. Osborne . . 113 Huntley v. Luscombe . 493 Entick v. Carrington . . . 246 Hutchinsy. Chambers 658 ,660,661,665 Excise Commissioners v. Thomson 48, 545 Hutchinson t;. Lowndes 151, 476, 671, 672 F. I. Fearshire's Case . . . .163 Fennell i>. Ridler . . . cxci Ingle v. Bell . 127 Finlay v. Gowle .... 554 Isaacs v. Brand . . . 102, 105 Fisher's Case . . . .341 Fitzwilliam's Case . . . 687 J. Flemming and Windham's Case . 854 Forbes' Case . . . .120 Jacob's Case . 341 Ford's Case . . . .103 John's Case . 361, 364 Foxw. Gaunt . . . 106, 126 Johnson v. Reid . 677 Freeman v. Weston . . . 234 Jones v. Williams 3 Jones v. Vaughan 34 Jones's Case . 339 Judd's Case . 482 Genner v. Sparks ... 98 Juson v. Dixon . . 662 Gibbs v. Stead . . . .657 Gilharn's Case . . . 339, 352 K. Gillman v. Connor . . . 322 Gimbert v. Coyney . . 196,663 Kendal's Case . . 480 Glynn v. Thorpe . . . 499 Kingy. King . 536 Goff's Case . . . 69, 675 Kite, ex parte . 62, 555, 557, 559 Goss v. Jackson, . . . 636 Gray v. Cookson . . . 642 L. Griesley's Case . . . .590 Griffith v. Harries . . . 633 Lambe'sCase 341,342, 344,347,351 Groenvelt's Case . 447, 479, 672 Lancaster r. Greeves . . 697 TABLE OF CASES. IX PAGE. PAGE. Launock v. Browne . . .193 Pettit v. Addington . . .68 Lawrence v. Hedger . . .104 Penny v. Slade .... 63 Ledwith v. Catchpole . . . 103 Pitty. Webley "... 97 Levy*;. Edwards . . 125, 128 Platt's Case . 156, 373, 478, 489 Lewis v. Arnold . . .125 Pocock v. Moore ... 99 Listen;. Garland . . . 548 Pressley's Case . . . 346, 347 Lloyd v. Sandilands . . . 204 Price v. Messenger . . .250 Long's Case .... 352 Prosser v. Hyde . . . 645, 693 Lovelace's, Lord, Case . . 659 Lowther r. Earl of Radnor . . 697 Q. Lyons v. Purcell . . 687, 688 Queen's Case. . . . 163, 341 Iff. R. Mann v. Danvers . . . 596 Margate Pier Company v.Hannam 8 Ramsley, ex parte . . .613 Marriott v. Shaw . . . 553 Ratcliffe v. Barton . . .251 Mash's Case .... 482 Massey v. Johnson . 638,642,677 Reason v. Lisle .... 570 Mathews v. Ringsford . . 227 Redford v. Birley . 121,131,140 Mayhew v. Locke . . 68, 69 Reeve y.Poole .... 546 Maybe* v. Parker . . .185 R. r. Adams . . . .116 Mills v. Collet . . . .164 R. v. Adderly . . . .548 Mills v. Wilkins . . . .637 R. v. Ahern .... 579 Milton v. Green . . . .196 R. v. Aikin . . 584,594,624 Milward v. Cuffin . . . 658 R. v. Aire and Calder Navigation Com- Mitchell v. Troup . . .551 pany, 638 Money v. Leach . . . 182, 248 R. v. Allen (Cited, 5 D. & R.) . 628 Monteth's Case .... 480 R. v, Allen (15 Ea.) . . 644, 685 Morgan v. Brown . . 618,631 R. v. Allington . . . .518 Moriarty v. Blake ... 34 R. v. Arnold (8 C. & P.) 310, 334 335 Morley v. Hocken . . . 665 R. v. Arnold (5 T. R.) . . . 573 Moseley's Case . . . 362, 364 R. v. Ashton .... 630 Mure v. Kaye .... 54 R. v. Atkins . . . .71 R. v. Austin .... 559 N. R. v. Bainbridge,. . . .527 R.. Baines . . . 567, 579 Newman v. Bendyshe . . . 630 R. t>. Baiston . . . .70 Newman v. Hardwick . . 656 R. v. Baker (2 M. & Rob.) . . 360 Nicholson v. Hardwick . 103, 104 R. v. Baker (1 Str.) . . .627 R.y. Bardell .... 64 0. R. u* Barker . . . 642, 644 R. v. Barlow . . . .47 O'Brien v, Whitelaw . . .557 R. v. Barnes .... 675 Omichund v. Barker . . .162 R. v. Bartlet (2 Sess. Cas.) . 68 Osborne v. Gough . . . 397 R. v. Bartlet (7 C. & P.) . 339 R. v. Barratt 549, 584, 594, 624, 632 P. 682 R. v. Barron .... 307 Padfield v. Cabell . . 186,659 R. v. Bat tarns .... 686 Paine, ex parte .... 569 R. v. Baynes . . . . 640 Painter, v. Liverpool Gas Company 581 R. v. Bean .... 572 584, 658 R. v. Beardmore . . .819 Palmer v. Forsyth . . . 687 R. v. Bedfordshire Js. . . . 692 Parton t. Williams . . . 242 R. v. Bellamy . . 548, 549, 635 Partridge v. Naylor . . .616 R. v. Bellingham . . .130 Pellew v. Inhabitants of Wondworth548 R. v. Bengough . . . .712 Penton v. Brown . . . 204 R. y. Benn . . 580, 581, 658 TABLE OF CASES. PAGE. R. v. Bently . . . .346 PAOF:. R. v. Clark (8 T. R.) . . . 627 R. v. Biers . . . .570 R. v. Clement . 68, 331, 589, 590 R. v. Birnie . . 113,321,545 R. v. Clewes . . .341, 356 R. v. Birt . . . 120, 121, 123 R. v. Bissex . . 544, 638, 639 R. i'. Commins . . 581, 594, 598 R. v. Blackwell .... 544 R. v. Bleasdale . . . .616 R. v. Constable (10 Mod.) . .156 R. v. Constable (7 D. & R.) 81,581 R. v. Bonn .... 76 R. v. Cooke . . . .156 R. v. Bonner . . . .361 R. v. Cooper .... 672 R. v. Bonny .... 366 R. v. Corden . . 549, 575, 595 R. v. Booker .... 494 R. v. Court .... 352 R. v. Boultbee . . . .691 R. v. Courtey .... 56 R. v. Bower .... 533 R. v. Coveney .... 508 R. v. Bradley .... 566 R. v. Crisp . . . 601, 613 R. v. Bright . . . .126 R. v. Crofts .... 549 R. v. Bringloe .... 532 R. v. Crooke . . . 583, 594 R. v. Broderip . . . 48,546 R. v. Crotchet . . . 362, 363 R. v. Brooke 80, 238, 240, 378, 398, 68 1 R. v. Brown (1 Hud. & Bro.) 174, 373 R. v. Crowther 309, 598, 602, 625, 626 R. v. Crowhurst .... 566 R. v. Brown (8 T. R.) 562,595,673 R. v. Cross . . . .712 R. v. Brownell . . 331,588,589 R. v. Cumberland Js. . . . 689 R. y. Brunton . . . .319 R. v. Cundick .... 449 R. v. Bryan .... 578 R. v. Curl ..... 526 R. v. Bryan (H. Cr. L.) . . 148 R. v. Curran . . . .109 R. v. Buckinghamshire Js. . 48, 546 R. v. Dalton . . . .174 R. v. Buckly . . . 685 R. v. Daman . 549, 557, 563, 575 R. v. Bucks Js. (1 B. & C.) . . 646 R. v. Darlington . . . 688 R. v. Bucks Js. (2 M. & S.) . . 694 R. v. Daunt . . . .211 R. v. Burchett . . .665 R. v. Davies (10 B. & C.) . 568, 569 R. v. Burgiss .... 219 R. v. Davies (6 T. R.) . .612 R. v. Burley . . . 318,353 R. u. Davis (1 Burn.) . . .323 R. v. Burnaby . 72, 559, 609, 573 R. v. Davis (6 C. &P) . . 339 R. v. Bui-rough . . .571 R. w. Davis (5 B. &Ald.) . . 640 R. v. Bykerdyke . . .71 R. v. De Meirre .... 46 R. v. Cain . . . 350 R. v. Dempsey . . . 633, 634 R. v. Calamins . . .157 R.V.Derby . 182,184,216,333 R. v. Cambridge University . 581 R. v. Derrington . .* . 353 R. v. Campbell . . . .361 R. v. Despard . . . .480 R. v. Carew . . .160, 373 R. v. Devon Js. (3 N. & P.) . ; 692 R. v. Carroll .... 422 R. v. Devonshire Js. (1 M. & S.) . 694 R. v. Cashiobury . . . 689 R. v. Dixon . . . 447, 551 R. r. Cass 350 RV Dnhlivn KcrQ r A f\ R. v. Catherall . 558, 572, 634, 674 ** j-yuuuyn . Oi)o o4U R. v. Dodd . . . .551 R. v. Chancy . . 578, 677, 678 R. v. Dogherty .... 532 R. v. Chandler (14 East) 53, 157, 599, R. v. Dorchester, Js. of .63 613, 630 R. v. Dove . . . 562, 625 R. v. Chandler, (Ld. Raym.) 558, 569, R. v. Doyle . . . .351 629, 632, 670,674 R. v. Chapman . . . .574 K.u.Drake 569,617,630,631,638 R. v. Drew . . . 335, 350 R. v. Chappel . . . . 347 R. v. Dromgoole 555, 573, 636, cccxxviii R. v. Chaveney . . . .571 R. v. Dunne . . 350, 354, 529 R. v. Cheere .... 445 R. v. Dyer . . . 581,583,624 R. v. Cheshire Js. . 644, 692, 639 R. v. Earnshaw . . . 570, 577 R. v. Child . . . .141 R. v. Eaton . . 645, 685, 688 R. v. Chipp . . . 558, 569 R. v. Clark (1 Salk) . . 366, 446 R. v. Clarke (2 Str.) , . 378, 398 R. v. Edwards (1 Phil. Ev.) . . 356 R. v. Edwards (4 T. R.) . . 384 R. v. Edwards (1 Ea.) . 559, 599 R.y.Clark(Cowp.)575,577,595,616,6l7 R. v. Ellis . 339 TABLE OF CASES. XI R. v. R. v. R. t'. R. r. R. v. n.v. R. v. n.v. R.v. R. v. R.v. R.v. R.v. R.v. R.v. R.v. R.v. R.v. R.v. R.v. R.v. R.v. R.v. R.v. R. v. R.v. R.v. R.v. R.v. R.v. R.v. R. v. R.v. R.v. R.v. R.v. R.v. R.v. R.v. R.v. R.v. R.V. R.v. R.v. R.v. R. v. R.v. R. v. R.v. R.v. R.v. R.v. R.v. R.v. R.v. R.v. R.v. R.v. PAGE Ellwell 623,630,674,687,712 Enoch .... 354 Essex Js. . . . 691, 693 Excise, Commissioners of . 690 Fagent . . . .364 Fallows . . . .508 Farrand .... 365 Farrell . . . .583 Fell . . . .477 Finnerty . . . .210 Fleet. .... 307 Flintshire Js. . . 693 Flockwood Enclosure Co. . 47 Forbes . . . 310, 313 Ford 578 Foster . . . .347 France . . . 505, 508 Fuller (Ea. P. C.) . . 565 Fuller (7 C.& P.) 346, 358, 359, 508 Fuller (ILd.Raym.) 555, 568, 601 Gage .... 595 Gardener, .... 576 Gay 357 Gibbs (1 East.) Gibbs (1 Str.) Gilkes Gillies 70 . 570 . 696, 697 . 449 612, 626, 634 . 694 66 . 476 . 321 48, 545 551, clxxxvi . 508 . 351 . 334 . 548, 627 . 629 Gloucester Js. Godderidge Goodall Gooding Gort, Js. of Gossen Grady Graham . Green (5 C. & P.) Green (10 Mod.) Green (Cald.) . Gregg 477,530,537,671,675 Hale (Cowp.) . .613, 634 Hale (3 Bur.) . . .675 Halls (1 Ad. & Ell.) . . 546 Hall (1 T.R.)578,595, 598,622,638 Hall (Cowp.) . . 619, 631, 674 Hall, (3D.&R. M.C.) . 157 Halloway . . . .533 Hanson . . . 602, 689 Hants, Js 646 Hardwick . . . .355 Harpur 549, 580, 614, 673, 677 Harris, (Mo. Cr. C.) . .341 Harris, (7 T. R.) . . 630 Harrison and Co. . . 558 Harte . . . .557 Hartington, Inh. of . . 639 Hartley . . . .570 Harwood . ,581 PAGE. R. v. Hawker . . . .623 R. v. Hawkins, (2 B. & C.) . 565 R. v. Hawkins, (Fort.) 669, 677, 678 R. v. Hawk . . . .630 R. v. Haynes .... 70 R. v. Hazel . S59, 599, 637, 640 R. v. Hellier . . . .541 R. v. Helps . . 632, 677, 678 R. v. Hendon . . . .693 R. v. Hennessy . .. . xxviii, 690 R. v. Hereford Js. . . .691 R. v. Herts Js 694 R. v. Higgins . 71, 159, 471, 444 R. v. Highmore .... 599 R.v. Hill . . . .577 R. v. Holland . . . .504 R. v. Hood, . . . 181, 478 R. v. Hooper and others . 373, 387 R. v. Homer . . . 174, 480 R. v. Hoscason . " 66, 616, 632 R. v. How 571 R. v. Howarth . . .109 R. v. Howe .... 356 R. v. Hube . . . 617,675 R. v. Hughes (3 B. & A.) . 584, 658 R. v. Hughes (4 C. & P.) . .122 R. v. Hughes (1 Cr. & D. C. C.) 220, 336, 337, 343 R. v. Hulcott, Inh. of . . 640 R. v. Hunt . . . .121 R. t'. Huntingdon, Js. of 642, 643, 693 R. v. Hutchinson (2 B. & C.) R. v. Hutchinson (3 Rep.) R. v. Inge . R. v. Jackson R. v. James (B. & A.) R. v. James (2 Str.) . | R. v. James (Cald.) . j R. v. James (1 D. & R.) R. v. Jervis R. v. Jeffries R. v. Jenkins R. v. Jennings 360 54 . 697 . 398 68, 69 . 70 573, 575 . 675 574, 577, 579,602 599, 629, 636, 638 . 357 65 R. v. Johnston (2 Rep.) . 73 R. v. Johnson (1 Str.) 155, 557, 582, 583, 584,597, 599, 624 R. v. Jones (Car. Cr. L.) . . 164 R.v. Jones (6 C. & B.) . .219 R. v. Jones (R. & R. C. C.) . . 349 R. v. Jones (IB. & Aid.) . . 494 R. v. Judd .... 481, 482 R. v. Jukes, 564, 576, 579, 641, 685, 690 R. v. Kaye 687 R. v. Kennett . . . .131 R. v. Kent . . 555, 583, 623, 624 R. v. Kenyon . . . .688 R. v. Kerr . . 220, 337, 343 R. v. Kiddy . 161, 555, 597, 598 Xll TABLE OF CASES. R. v. Killett R. w. Killinghall . R. v, Kimberley . R. v. Kingston . R. v. Kynaston . R. v. Lancashire Js. of R. v. Langley PAGE. , 627 , 366 54 . 350 , 190 , 692 3 R. v. Layton . 578,616,684,712 R. v. Lee, (5 Esp.) . . .307 R. v. Lee, (R. & Ry. C. C.) . . 319 R. v. Leeds Js 690 R. v. Leicestershire, Sheriff . 665 R. t>. Lemon . . . .507 R. v. Levermore .... 688 R. v. Lewis, (6 C. & P.) 338, 339, 34 1 R. r. Lewis, (Str.) . . .541 R. v. Lingate .... 355 R. v. Little . . 561, 579, 596, 630 R. v. Llewellyn . . . .564 R. v. Lloyd (4 C. & P.) . . 360 R. v. Lloyd (Ea. P. C.) . .571 R. v. Lloyd, (2 Str.) . . 627, 639 R. v. Lomas .... 684 R. v. Lopdell . . 559, xxiv, xxviii R. v. Lovet . . 553, 557, 628 R. v. Lowndes . . . .481 R. v. Mallinson . . 155, 582, 623 R. v. Macnamara . . 686, 688 R. v. Marks . . 174,373,481 R. v. Marriot . . . 577, 602 R. v. Marsh 564, 569, 611, 627, 628 R. v. Marshall . . . .572 R. v. Martin, (9 C. & P.) . . 444 R. v. Martyn, (13 Ea.) . . 584 R. v. Mathews .... 553 R. v. M'Cahy and others . . 517 R. v. M'Kenzie .... 532 R. v. M'Nicholas . . 611,627 R. v. Meade . . . .360 II. v. Merceron .... 339 R. v. Middlehurst . . .639 R. v. Middlesex, (6 M. & S.) . 694 R. v. Middlesex, Js. (1 Chit. Rep.) 694 R. v. Midlam . . . 643, 645 R. v. Millard . . . .682 R. v. Mills 350 R. v. Milnrow, Churchwardens . 610 R. v. Milton . . . 195, 252 R. v. Monckhouse . . . 665 R. v. Moore, (8 C. & P.) . . 347 R. v. Moore, (Ld. Raym.) . . 563 R. v. Mosley . . . .685 R. v. Mucklow . . . .687 R. v. Muilrnan . . 54,385,517 R. v. Murray . . . 611,627 R. v. Myers . . . t 202, 680 R. v. Nash . . . 670, 687 R. v. Nettle . . . . 534 PAGE. R. v. Neville . . 578, 632, 669 R. v. Newcastle, Js. . . .691 R. v. Newton .... 47 R. v. Nield, (6 Ea.) 571, 572, 573, 574, 637 R. v. Nockolds .... 694 R. v. Nolan . . . 351, 352 R. v. North, (6 D. & R.) . 567, 672 R. v. North, (1 Burr.) . .579 R. v. Nute 353 R. y. Oakley . . . 563,712 R. v. O'Donnell . . . .219 R. v. Osborne . . . .506 R. v. Oxfordshire Js. . . . 694 R. v. Pain . . . 567, 577, 672 ft. v. Palmer . . . .398 R. v. Parker . . . .365 R. v. Parnell .... 532 R. v. Parratt .... 350 R. v. Partridge .... 350 R. v. Patchett . . . 631, 634 R. v. Payne 615, 619, 630, 631, 674 R. v. Pearce, (6 T. R.) . .571 R. v. Pearce, (9 Ea.) . . . -628 R. v. Peckham . . . 635, 548 R. v. Pembroke .... 694 R. v. Pereira .... 566 R. v. Perkins . . . .361 R. v. Phillips . . . 446,471 R. v. Pickering .... 593 R. v. Pickles . . . .577 R. v. Picton . . 624, 625, 635 R. v. Pike and Wife . . .360 R. v. Pikesley .... 338 R. v. Pinney . . . 131, 132 R. v. Pitt 451 R. v. Pond 46 R. v. Popple well . . .571 R. v. Potter . . . 346, 508 R. v. Pountney .... 354 R. v. Pratten . . . .576 R. v. Price 639 R. v. Priest . . 633, 634, 636 R. v. Pressly . . . .346 R. v. Preston . . . 161, 590 R. v. Pullen . . . 558, 635 R. v. Rabbits and another . 570, 639 R. v. Rawlinson .... 546 R. v. Reason, (6 T. R.) . 612, 613 R. v. Reason, (1 Str.) . . 364, 365 R. v. Reason andTranter, (Phil. Ev.) 365 R. v. Reed 627 R. v. Remnant . . . 479, 480 R. v. Reeve . . . .685 R. v. Revel ... 67, 68 R. v. Reynolds and others . . 389 R. v. Rhodes . . . 672, 686 | R. v. Ring 588 TABLE OF CASES, Xlll PAGE. PAGE. R. v. Ridgway .... 573 R. v. Stokes (Cowp.) . . . 202 R. v. Ridpath . . . .389 R. v. Stone (2 Ld. Raym.) . 556, 597 R. v. Rispal . . . 71,511 R. 17. Stone (1 Ea.) 584, 594, 602, 624 R. v. Rivers . . . 338, 341 R. v. Storr . . . . 71, 72 R.U.Roberts . ..." .571 R. t7. Surry Js. (5 B. & Al.) . .691 R. v. Robinson .... 647 R. v. Surry Js. (5 M. & S.) . . 693 R. v. Roe (2 H. & B.) . . . 556 R. 17. Surry Js. (2 T. R.) . . 689 R. v. Rogers (1 Ld. Raym.) . 525 R. v. Sussex .... 693 R. 17. Rogers, (1 D. & R.) . . 677 R. v. Swallow . . . 553, 634 R. v. Rosier, .... 356 R. v. Sweet .... 639 R. v. Row (Russ. & Ry. C. C.) . 355 R. v. Symonds . . 619,631,633 R. v. Rowe (Batty) . 174,373,481 R. v. Tarrant .... 346 R. v. Rowe (MS.) . . .235 R. v. Taylor (2 Chit. Rep.) . .613 R. v. Rouvillet . . . .236 R. t7. Taylor (3 Bur.) . . 97, 182 11. v. Royce . . . .123 R. v. Taylor (D. & R.) . 562, 678 R. v. Sadler, (2 Chit.) 563, 567, 672 R. v. Taylor (8 C. & P.) . . 354 R. v. Sadler, (4 C. & P.) . . 590 R. v. Taylor(Hayes, Cr. L.) 148 R.. Sainsbury . . 61,80, 713 R. v. Taylor (Peake.) . 162 R. v. St. Mary in the Devises, . 687 R. v. Telicote . . . 345 R. v. St. Mary, Nottingham . 618, 631 R. v. Territ . . . 685 R. v. Salop Js. (4 B. & A.) . 691 R. v. Thackwell ... 693 R. v. Salop Js.(M.&S.) . .691 R. v. Theed . 627 R. v. Salop Inh. (18 East.) . .515 R. v. Thomas . . . 350, 353 R. v. Salter . . . 230, 387 R. t7. Thompson . . 349, 629, 640 R. v. Seale 638 R. v. Thornton .... 339 R. v. Selway . . 570, 625, 627 R. v. Thrill . . . .687 R. v. Sexton . . . 336, 340 R. t7. Thurtell and Hunt . . 318 R. v. Shaw . . . 353, 384 R. v. Tilly 597 R. v. Shellard . . . .342 R.t7. Toke . . . 558,567,640 R. v. Sheppard . . 350, 352, 363 R. v. Tolley . . . .549 R. v. Shibbeare . . . .381 R. v. Tooley . . . .126 R. v. Silcot . . . 568, 579 R. t7. Tracy .... 397 R. v. Simons .... 346 R. v. Treeve .... 446 R. v. Simpson, (Str.) 153, 582, 594, 624 R y. Tregartken . . . 529 R. v. Simpson, (Mod. Cr. C.). . 354 R. v. Trelawney . . . 566 R. v. Simpson, (10 Mod.) 157, 558,581, R. v. Tubby .... 339 586, 661 R. t7. Turner . . . 594, 602 R. v. Smith (5 M. & S.) . . 556 R. v. Twyford . . . .546 R. v. Smith (1 Str.) . . .505 R. v. Upchurch . . . 120, 122 R. v. Smith (Holt.) . . .308 R. v. Von Butchell . . 362, 363 R. v. Smith (Stark.) . 312,477,671 R. v. Von Hanbeck . . . 572 R. v. Smith and Homage . . 338 R. 17. Venables . 544,581,623,639 R. v. Smith (8 T. R.) . .612 R. v. Vincent . . . 120, 122 R. v. Smyth (2 Ld. Raym.) . 70 R. v. Vipont . 598, 626, 627, 630 R. v. Soley 121 R. t7. Waite . . . .540 R. v. Solomons . . 616,630,631 R. v. Walkely .... 350 R. t7. Somerton . . . .568 R. t7. Wall . . . 677, 690, xxviii R. v. Soper . . . 696, 697 R. v. Walsh . . 562,579,641 R. v. Sparling . . 561,571,574 R. v. Walter (3 Esp.) . . . 551 R. v. Speed . . 72, 565, 629 R. v. Walter, (7 C. & P.) . .341 R. v. Spencer .... 354 R. v. Walter, (10 Mod.) . . 677 R. t7. Spilsbury . . . 346, 361 R. v. Warneford . . 611, 627, 628 R. v. Stafford Js. (5 N.& M.) 581,658 R. v. Weale .... 559 R. v. Stafford Js. (12 Ea.j . . 690 R. v. Webb .... 338 R. v. Stevenson . . . .82 R. v. Weir 196 R. v. Stewart . .174, 373,481 R. t7. Whately . . , .609 R. 17. Steward of Hav. Atte. Bower. 47 R. 17. Wheeley . . . .338 R. v. Stokes (5 C. & P.). . . 188 R. 17. Whitelock . . . .674 XIV TABLE OF CASES. PAGE. PAG&. R. v. Wilkes, 97,106,177,182 Soward v. Legatt . 602 385, 478, 526, 577, 614 Spenser, ex parte, . 685 R. v. Williams .... 48 Still v. Walls . . 476, 642,671 R. v. Willis . . . .554 Strathrnore, Countess of, Case . 532 R. v. Wilson (Holt, N. P. C.) 336, 339 Swinstead v. Lyddel . . 491 R. v. Wilson . 563,581,629,712 R. v. Wilts 694 T. R. v. Wilton Mayor of . . 584 R. v. Windsor .... 570 Talbot v. Hubble Tarrant's Case 53, 62 . 346 R. v. Winwick Inh. . . .187 Taunton y. Costar . . 74 R. v. Woodcock (7 Ea.) . . 600 R. v. Woodcock (1 Leach) . . 364 R. v. Woodham .... 233 Taylor v. Lawson Theobald v. Crickmore Thomas's Case . . 314 . 663 . 344 R. v. Woodhouse . . . 680 R. v. Woolcock . . 121, 140, 141 Timothy v. Simpson Tinckler's Case . . 126 . 364 R. v. Worcester . . . .713 R. v. Wrottesley ... 73 Turner v. Meymott 74 R. v. Wyat, (2 Lord Raym.), 180, 195, V. 217, 225,226, 633, 647, 659, 660, 665, 670 Vane's, Lady, Case . 532 R. v. Wyld . . . .314 R. v. Wyndham . . . .182 W. R. v. Yarrington . . .70 Ward v. Snell . . 493 R. v. Yeates .... 560 Warwickshall's Case . . 349 R. v. York (5 Burr.) . . 672 R. v. Yorkshire Js., W. R. (3 M. & S.) Welbourn's Case Welshmen's Case 362, 364 . 365 690 R. v. Yorkshire, W. R., Js. (7 B. & C.) 69 1 Westonrivers, Inter. Inh. of, White v. Taylor . . 688 . 102 R. v. Yorkshire, Js. (4 B. & Ad.) 691 R. v. Yorkshire (Doug.) . . 693 White v. Edmunds White's Case . 232 . 335 Reynolds v. Hankin . . .180 Wicks v. Clutterbuck . 673, 678 Rix, in re . . . 611, 627, 628 Wild's Case 352 Robson v. Spearman . . . 676 Rogers v. Jones .... 678 Rook's Case . . . 48,510 Rourke v. Pepper . . . 478 Rudd'sCase 315,317,318,319,373 WHes v. Cowper Wilkins v. Wright 644, 645, Wilkins v. Hemsworth Willes v. Bridges Wilson v. Rastal . 670, 696 671, 677 . 644 . 534 48 Russen v. Lucas . . .99, 227 Wilson v. Weller . 665 Wingfield v. Stafford . . 576 O. Woodcock's Case, 308,310, 360, 361, Samuel v. Payne . . .103 362, 364 Sander's Case .... 557 Wooding v. Oxley . 119 Sandiman v. Breach . . . cxci Woodward v. Cotton . . 552 Scavage y. Tateham . . 322, 323 Wooton v. Harvey . 657 Sedley v. Arbouin . . . 494 Wright's Case . . 352 Selwood v. Mount . . .613 Wright v. Court . 215, 218 Semayne's Case .... 202 Wright v. Clements . 572 Sexton's Case .... 343 Wright v. Litler . . 360 Shaftsbury, E., v. Russell . . 662 Wyndham's Case . 153, 478, 479 Sharp v. Aspinall . . 557, 640 Shergold v. Holloway . . . 659 Y. Siddon v. Attorney-General . 551 Sly v. Stevenson .... 276 Yoxley's Case . . 675 Smith v. Sibson .... 682 Smith, ex parte, . . . .575 . Souden's Case . . . .560 Zouch v. Emprey . 691 TABLE OF STATUTES. PAGE. PAGE. 28 Edw. 1, St. 3, c. 11, . . 446 4 Anne, c. 3, ss. 1 5, cxcii cxciv 1 3, St. 2, c. 16, 1 2 Geo. 1, c. 5, s. 4, . . cviii 2 ,, 3, c. 3, . 145 2 c. 11, s. 12, 5 5 3, c. 2, . 439 2 c. 17, ss. 25, 7, 1517, 34 3, c. 1, 522 24, cix cxiii 5 Rich. 2, c. 7, 454, 1 2 c. 20, s. 5, 547, n. (a) 13 2, St. l,c. 7, 6 4 c. 4, . ccxxxvi, ccxxxvii 15 2, St. 1, c. 2, 454, li 4 c. 5, s. 1, . . 468 2 Hen. 5, St. 2, c. 1, 3 6 c. 5, s. 12, 386, 447 8 Hen. 6, c. 9, ss. 1 to 7, 1 liii 8 c. 9, . . 439 3 Hen. 7, c. 1, 536, n. (a) 8 c. 15, s. 4, . 415 3 c. 3, 493, n. (a) 9 c. 8, s. 3, Eng. . . 458 10 c. 13, . . 439 12 c. 3, s. 1, . . 424 10 c.22, 1, n. (a) 3 Geo. 2, c. 4, . 413, 463 28 Hen. 8, c. 1, 547, n. (a) 3 c. 13, ss. 4, 5, . 15 28 c. 7, . 439 3 c. 14, ss. 1116 xviii xxi 33 c. 1, . 439 5 c. 12, ss. 15, . xlix, 1 3 & 4 Ph. & M. c. 11, s. 7, . . 459 9 c. 6, . . 116 2 Eliz. c. 1, s. 12, . 439 9 , c. 8, 2 c. 2, ss. 2, 3, 8, . 466 13 c. 8,s.2, . . 456 28 c. 1, ss. 1, 2, . 463 17 c. 2, ss. 21 0, . ccxxxvii, 10 Car. 1, St. 1, c. 13, ss. 1, 2, 454, liii, ccxxxviii liv 17 c. 4, s. 1, . 439, 397, 10 Car. 1, St. 2, c. 14, s. 4, 5 n. (a) 10 St. 3, c. 20, ss. J, 2, . 403 17 c. 5,s.4, . xxi, xxii 10 & 11 Car. l,c. 4, s. 8, 303 17 c. 10, xxii xxiv 10&11 c. 10, 539, n. 0) 17 c. 11, . . . 413 10&11 c. 16, 117, n. (a) 17 c. 40, s. 10, Eng. . 458 17 & 18 Car. 2, St. 2, c. 6, s. 18, . 466 23 c. ll,ss.7, 9, . . 469 1 Will. 3, St. 2, Eng. . 397 23 c. 14, 14 7 c. 9, ss. 15, 7, cxlviii, 25 c. 8, ss. 1 5, . cxiii cxv cxlix 25 c. 15, ss. 13, 12 , 13, ccix 7 c. 13, s. 3, . 5 ccxi 7 c. 17, ss. 14, . cxc 29 c. 5, . . 399 cxcii 29 c. 81, s. 3, . cxv 7 c. 17, s. 7, . . 98 33 c. 16, s. 18, 2 7 c. 18, s. 4, . 416 1 Geo. 3, c. 11, 2 9 & 10 Will. 3, c. 41, Eng. . 301, 1 c. 17, ss. 2, 3, 5, xxiv, xxv 458 2 c. 2, s. 3, . . xxix 10 Will. 3, c. 8, ss. 2 20, liv Ix 3 c. 19, . . . 134 XVI TABLE OF STATUTES. PAGE. PAGE. 33 Geo. 3, c. 29, ss. 13, xxv xxviii 33 Geo. 3, c. 29, ss. 1,4, . 141, 172 5 c. 10, ss. 1 3, xxviii, xxix 33 c. 56, s. 12, . . 15 7 ,, c. 16, ss. 4, 6, . . 7 34 c. 22,s.5, . . . 413 11 c. 7, s. 2, . . . 430 35 c. 29, ss. 12,78, . 409 13 c. 31, Eng.] . 190, n. (6) ss. 53, 54,72, 74, 78, 451 13 & 14 Geo. 3, c. 46, s. 21, . 303 36 c. 25, s. 2, 2 13 & 14 c. 18, s. 8, . 5 36 , c. 31 . . . 440 15 & 16 c. 21, ss. 1, 2, 147,148 37 c. 21, ss. 1, 2, . . Ixiv 15 & 16 c. 21, s, 6, 24, 131, 52 37 c. 24, s. 2, . . . 444 15 & 16 c. 21, ss. 2, 21,23, 473 37 c. 40, . . .403 15 & 16 c. 21, s. 28, . 177 37 c. 50, . 397, n. (a) 17 & 18 c. 19, s. 1, . 282 37 c. 54, ss. 11 16, 413 17 & 18 c. 19, ss. 10, 12, cxcvi 37 c. 54, s. 17, . .445 17 & 18 38 c. 53, s. 2, . . 413 19 & 20 ,. c. 29, s. 2, . 45 38 c. 53, ss. 3, 4, . . 414 21 &22 cr 11, ss. 2, 9, 15, 373, 38 c. 53, s. 6, . . 274 n. (a) 39 c. 63, s. 1, . . 413 21 &22 ,, c. 11, s. 8, . 487 39 c. 63 s. 6, . . . 273 21 & 22 c. 11, S .4, . . 493 39&40 c. 89, Eng. 300, 302,420,458 21 & 22 c. 16, s. 15, . 413 40 21 & 22 c. 16, s. 16, . 410 40 c. 71, ss. 1 14, cxcvii cci 22 & 23 c. 23, s. 28, . 456 40 c. 80, s. 6. . .451 23 & 24 c. 19, s. 13, . ccxi 43 c. 57, ss. 13, . . 455 23 & 24 c. 20, s. 1, . 430 43 c. 86, ss. 6, 7, 9, 11 23 & 24 c. 20, ss. 7, 8, . 433 17, 19, . cxvi cxix 23 & 24 c. 22, s. 22, . 414 43 c. 92, s. 2, . . 395 23 &24 c. 23, s. 28, . 456 43 c. 139, s. 1, . . 413 23 & 24 c. 39, ss. 13, 14, 302 43 c. 139, s. 2, . . 455 23 & 24 c. 39, s. 9, 710, n. (a) 43 c. 139, s. 3, . . 448 23 & 24 c. 39, ss. 1315, 43 c. 139, s. 7, . . 280 19 cxcvi 43 c. 143, s. 6, . . 34 23 &24 c. 48,s.l6, . 435 44 c. 13, ss. 14, . 369, 371 23 & 24 c. 48, ss. 5, 815, 44" ,, c. 92, s. 1, . . 220, 391 18 ,19,21 23, ccxxxviii ccxlii 44 c. 92, ss. 3, 4, . 190, 394 26 Geo. 3, c. 24, ss. 64, 65, . . 412 44 c. 92, s. 5, . 225, n. (6) 26 . c. 24, s. 66, . liv 45 c. 41, ss. 3, 4, . . cxxi 26 c. 24, s. 74, . 131, n. (a) 45 > c. 92, s. 1, . . 392 +t\j j j 26 c. 43, ss. 11, 12, . 108 45 c. 92, ss. 1, 2, . 189,190 26 c. 43, s.1 3, . . 288 45 c. 92, s. 2, . . 183, 184 26 c. 43, ss. 1 38, cxxii cxxxii 45 c. 92, ss. 5, 6, . 190, n. (b) 27 c. 15, ss. 1 4, 135138 46 c. 54, ss. 9, 10, . 415 27 c. 15, ss. 1,3, 5, . . 432 46 c. 106, s. 62, . . 411 27 c. 15, ss. 6, 12, . . 426 47 S. 2, c. 15, s. 15, . . 415 27 c. 15,8.11, . . 451 47 S. 2,c. 25, ss. 7, 8, . 416 27 c. 15, ss. 8,9, 10, 12, . 433 47 S. 2,c.54,ss. 1 4, 256258 27 c.35, ss. 1 23. Ix Ixiv 47 S. 2, c. 54, ss. 5, 6, 260, 261 27 c.35, s. 5, . . . 456 47 S. 2, c. 54, s. 8, . . 262 27 c. 35, s. 9, . . .283 47 S. 2, c. 54, ss. 9, 10, . 261 27 c. 53, s. 2, . . cxcv 47 S. 2,c. 54, s 11,. 262,403 28 c, 49, ss. 1, 8, 1922 47 S.2,c. 54,3.12,263,402, 442 cxxxii cxxxv 47 S. 2, c. 54, ss. 13, 14, 15, 29 c. 30, ss. 1 5, xxxv 264,265 31 e. 17, ss. 10, 11, . 432 49 c. 13,s.2, . . 414 31 c. 18, s. 3, 511, 70, n. (6) 49 c. 120, s. 29, . . 46 31 c. 23, s. 3, . . cxv 49 c. 120, ss. 51,55, 110 31 ,, c. 31, s. 4, . . . 447 49 c. 126, ss. 19, . 461 31 c. 38, s. 1, . xxxvi 50 c. 32,ss.213, clxxxv cxc 33 c. 27, ss. 3, 4, . . 410 50 c. 59, ... 462 TABLE OF STATUTES. fcvii PAGE. 50 Geo. 3. c. 102,s. 1, . clxxviii 50 c. 102, ss. 1, 2, 3, . 426 50 c. 102, s. 7, . .114 50 c. 109, ss. 2, 3, . 263,264 50 c. 109, s. 4, . . 20 51 c. 63,s. 2, . . 401 51 c. 63, ss.5, 6, . .411 52 c. 12, . . .458 52 c. 156, ss. 1, 3, .411 53 c. 89,5.6. . . 451 54 c. 115, . . . xxx 54 c. 116, ss. 1,3 6, ccvii ccix 54 c. 146, ss. 1 2,. . 440 54 c. 159, ss. 11 28, Ixxx Ixxxiii 54 c. 159, s. 22, . . 60 54 c. 186, . . 190, n. (6) 55 c. 100, ss. 21 34, Ixv Ixix 56 c. 56, s.l, , . .176 56 c. 56, s. 21, . . 298 56 c. 56, ss. 2239, 299300 56 c. 56, ss. 3752, . 415 56 c. 88, s. 1, . . . 710 57 c. 7, ... 403 57 c. 56, ss. 2, 3, 4, 495497 57 c. 108, ss. 1 8, cxciv, cxcv 58 c. 47, v 58 c. 75 ss. 1, 2, 3, . Ixiv, Ixv 58 c. 82, . . Ixix, Ixx 59 c. 41, s. 9, . . . 114 59 c. 41, s. 10, . . 115 59 c. 56, ss. 3, 12, 17, . 462 59 c. 69, s. 4, . . . 60 59 c. 69, ss. 3, 7, 8, 12, . 454 59 c. 92, ss. 1, 2, 4, . . 51 59 c. 92, ss. 1,2,. . 195 59 c. 92, s. 3. . . . 224 59 c. 92, s. 5, . . cxix cxxi 59 c. 92, s. 7, . . 60, 663 59 c 109, s. 64, . . 454 60 c. 1, ss. 1, 2, . . 144 60 c. 4, s. 3, . . . 388 60 c. 8, s. 1, . . . 285 60 c. 8, s. 2, . . . 286 60G.3.andlG.4, c. 1, s. 1, . 473 60 c. 9, s. 16, 390 60 c. 11, ss. 25, 36, 451 1 Geo. 4, c. 14, . . 486 n. (a) 1 c. 57, s. 2, . . . 402 1 & 2 c. 63, . . .52 1 & 2 c. 77, . . . 492 1 & 2 c. 88,3. 1, ... 431 3 c. 23, s. 1. . . . 620 3 c. 23, s. 2, . . 63, 647 3 c. 23, s. 3, . . 641 3 c. 116, s. 7, . . . 415 4 c. 33, s. 2, . . . 4 4 c. 48, . . . 401 PAGF. 4 Geo. 4. c. 55, . . .451 4 c. 55, s. 70, . . 409 4 c. 87,s.l, 2, . . 472 4 c. 87, ss. 1 10, . clxxviii clxxxii 4 c. 88, . . . ccxlii 5 c. 18, s. 1, 2,4, . 666, 669 5 c. 18, s. 3, . . . 682 5 c. 18, s. 6, . . .35 5 c. 25, s. 5, . . . 445 5 c. 53, s. 22, . . 414 5 c. 74, . . ccxii 5 c. 91,s.31, .710, n. (*) 5 c. 96, ss. 132, . ccxix ccxxxiv 5 c. 102, s, 9, . . 2 5 c. 102, s. 14, . . 45 5 c. 113, ss. 9, 10 . . 436 5 c. 113, s. 11, . . 470 6 c, 16, s. 27, . . 276 6 c. 43, s. 2, . . 468 6 c. 43, ss. 113 . cxlii cxlv 6 c. 51, . . 517, n. (a) 6 c. 78, ss. 17, 19, . . 109 6 c. 78, ss. 21, 25, . . 430 6 c. 99, . . ccxliii 6 c. 129, ss. 1 13, xxxvi xlii 7 c. 16, s. 16, . 598, n. (6) 7 c. 16, s. 38, . . 416 7 c. 38, ... 57 7 c. 42, ss. 1 9, . cci ccvii 7 c. 61, ... 2 7 c. 74, s. 6, . . 319,482 7 c. 74, ss. 25, . 699, 701 7 c. 74, ss. 11,61,109, 110, 135, . . cxlvi, cxlvii 7 c. 74, s. 46. . 487 n. (a) 7 c. 74, s. 62, . . 702 7 c. 74, s. 81, . 700, n. (6) 7 c. 74, ss. 91, 92, 94, . 327 7 c. 74, ss. 9092, 91, 96, 97, 100, . 485-86 7 c. 74, ss. 104, 105, 702-3 7 c. 74, s. 109, . 703-4 7 c. 74, s.l 11, . . 704 7 c. 74, s. 113, . . 705 7 c. 74, s.l 16, . . 670 7 c. 74, s. 140, . . 705 7&8G.4,c. 18, ss. 1 4, . . 459 7&8 c. 41, . . . 385 7&8 c. 49, ss. 1, 2, . . Ixix 7&8 c. 53, s. 11, . .45 7&8 c. 53, s. 34, . . 282 7&8 c. 53, s. 40, . . 380 7&8 c. 53, s. 43, . . 7 7&8 c. 53, s. 44, . . 453 7&8 c. 53, s.56, . . 415 7&8 c. 53, s. 67, . . 562 XV111 TABLE OF STATUTES. PAGE. PAGE. 7&8G.4.C.53, s. 68, . 67 9 Geo. 4. c. 56, ss, 1 7, 18, . 406 7&8 c. 53, s. 109, . 255 9 c. 56, s. 19, . . 440 7&8 c. 67, ss. 17, . 8386 9 c, 56, s. 21, . . 417 7&8 c. 67, ss. 8-17, . 8689 9 c. 56, ss. 24, 25, . 457 9 Geo. 4, c. 18, ss. 17, 18, 19, . 279 9 c. 56, s. 26, . . 389 9 c. 18,s. 35, . 415 9 c. 56, s. 33, . . 402 9 c. 54, s. 1, . 357, 375 9 c. 56, s. 35, . .107 9 c. 54, s. 2, . 304, 328 9 c. 82, . . .ccxliii 9 c. 54, s. 3, . . 305 10 c.l, s.l, . . .444 9 c. 54, ss. 5, 6, . . 306 10 c. 7, ss. 29, 37, . 467, 9 9 c. 54, ss. 13, 15, . . 401 10 c. 7, ... 6 9 c. 54, s. 16, 56, 438 10 c. 34, s. 3, . . . 427 9 c. 54, s. 21, 405,412 10 c. 34, ss. 4, 8, 9, . . 425 9 c. 54, s. 23, . 402 10 c. 34, 10, 11, .57 9 c. 54, ss, 24, 27, . . 55 10 c. 34, s. 12, . . 422 9 c. 54, s. 35, . 614 10 ; , c. 34, s. 17, . . 449 9 c. 55, ss. 19, 20, 26, 29, 10 c. 34, s. 18, . . 404 31, 3336, 53,55, 57 10 c. 34, s. 20, . -406, 446 73, . Ixxxiv, xciii 10 c. 34, s. 22, . . 402 9 c. 55, s. 3, . . 421 10 c. 34, s. 23, . . 440 9 c. 55, s. 5, . . 435 10 c. 34, s. 24, . .441 9 c. 55, s. 8, . . 438 10 c. 34, s. 25, . . 407 9 c. 55, s. 9, . . 419 10 c. 34, s. 26, . 57, 405 9 c. 55, s. 10, . 407 10 c. 34, s. 27, . . 447 9 c. 55, s. 11, . 417 10 c. 34, ss. 2831, . 443 9 c. 55, s. 12, 13, 14, . 418 10 c. 34, ss. 3236, . i 9 c. 55, s. 15, . 419 10 c. 34, ss. 3745, . ii, iii 9 c. 55, s. 16, . 423 10 c. 34, s. 39, . . 469 9 c. 55, s. 17, . 424 10 c. 34, s. 40, . . 403 9 c. 55, s. 19, . 254 10 c. 47, s. 2, . . 259 9 c. 55, s. 21, . 467 10 c. 50, s. 124, . . 415 9 c. 55, s. ss. 22, 23, . 450 10. c. 56, ss. 2,78, 2129,32, 9 c. 55, s. 25, . 406 38, 39, . clxvii clxxii 9 c. 55, s. 30, . 424 11G. 4, &1W. 4, c. 20,s. 64, 698, n. (6) 9 c. 55, ss. 31, 32, . 440 11 c.20,ss. 83 87, 416 9 c. 55, s. 35, . 417 11 c. 20, s. 88, . 403 9 c. 55, s. 38, . 438 11 c. 20, ss. 8890, 462 9 c. 55, s. 39, . 407 Will. 4, c. 44, ss. 112, 265269 9 c. 55, s. 40, . 409 c. 44, ss. 13 28, 270272 9 c. 55, ss. 42, 43, 44 , . 452 , 2 c. 30, s. 106, . . 454 9 c. 55, s. 46, . 447 , 2 c. 33, s. 95, . . 456 9 c. 55, s. 47, . 431 ,2 c. 44, ss. 2, 3, 6, 473, 4 9 c. 55, s. 48, . 467 ,2 c. 44, s. 4, . 429, 466 9 c. 55, s. 49, 75, . . 56 ,2 c. 44, ss. 5, 6, . . 468 9 c. 55, s. 51, . 409 ,2 c. 44, ss. 8, 9, . 588, 89 9 c. 55, s. 52, . 448 ,2 c. 55, s. 17, . . 284 9 c. 55, s. 54, . 402 ,2 c. 55, ss. 18, 19, 21, 285 9 c. 55, s. 56, 107, 243 ,2 c. 55, s. 29, . . 419 9 c. 56, ss. 5, 19, 30, 32, 35 ,2 c. 55, s. 35, . 323 n. (c) 39, cii cviii ,2 c. 55, s. 36, . . 386 9 c.' 56, ss. 3, 4, . . 423 ,2 c. 57, ccxlii 9 c. 56, s. 7, . 424 2 c. 4, s. 1, . 410 9 c. 56, s. 8, . 425 2 c. 4, s. 2, . 435 9 c. 56, s. 10, . 435 2 c. 4, s. 5, . 397, n. (a) 9 c. 56, ss. 12, 13,. . 404 2 c. 16, s. 3, . .415 9 c. 56, s. 14, . 405 2 c. 16, s. 4, . . 456 9 c. 56, s. 15, . 471 2 c. 16, s. 15, . . 464 9 c. 56, s. 16, . 453 2 c. 21, ss. 1, 5, xxxiv TABLE OF STATUTES. XIX PAGE. PAGE. 2 Will. 4, c. 34, ss. 3, 4, . . 407 5, 6 Will. 4 c. 3236, . xciv cii 2 ,, c. 34, ss. 5, 8, 10, 12, 408 5,6 c. 33, s. 3, Eng., 376, n. (c) 2 c. 34, ss. 7, 8, 12, . 448 5, 6 c. 59, s. 9, . .111 2 c. 34, s. 9, ' . . 406 5,6 c. 59, ss. 1 21, xlii xlviii 2 c. 34, s. 14, . . 279 5, 6 c. 62, s. 5, . . 449 2 c. 34, s. 15, . 397, n. (a) 5,6 c. 62, s. 12, . cxxxv 2 c. 34, s. 18, . . 402 5,6 c. 62, ss. 18, 20, . 450 2 c. 37, ss. 1, 2, clxxii 5, 6 c. 63, s. 28, . . 303 2 c. 40, s. 32, . . 456 5,6 c. 63, ss. 6, 7, 913, 2 c. 40, s. 33, . . 416 19,21,25,26, 27, 2 c. 53, s. 49, . .416 2936, 39, ccxii ccxix 2 c. 106, s. 3, . . 416 6 c. 13, . 1633 2,3 c. 75, s. 18, . . 442 6 c. 14, s. 40, . 276, 277 2, 3 c. 82, ... 441 6,7 c. 4, ... 407 2,3 c. 85, . . 705, 706 6,7 c. 14, s. 130, . . 404 2,3 c. 88, s. 40, . . 415 6,7 c. 29, s. 4, . . 36 2,3 c. 88, s. 42, . .451 6,7 c. 29, s. 32, . . 2 2,3 c. 108, ss. 122, 3744 6,7 c. 32, ss. 1, 4, . clxxiii 2,3 c. 118, . 142,144,466, 6, 7 c. 34, . . 89, 96 cxlviii 6,7 c. 38, ss. 4, 5, 6, . 291 3,4 c. 49, . 6, n. (a) 441 6,7 c. 38, ss. 711, 292295 3,4 c. 51,s. 27, . . 415 6,7 c. 38, s. 12, . . HI 3,4 c. 51, s. 29, . . 449 6,7 c. 38, s. 17, . . 295 3,4 c. 53, s. 12, . . 45 6,7 c. 38, ss. 4, 5, 8, 9, 12 3,4 c. 53, ss. 34, 35, 297, 298 16, 1924, clvii clxiii 3,4 c. 53, s. 51, . 323, n. (c) 6,7 c. 55, ss. 1, 9, 13, 3,4 c. 53, s. 53, . . 109 19, 25. clxxiv clxxvi 3,4 c. 53, ss. 53, 61, . 470 6,7 c. 62, s. 7, 596, n. (c) 3,4 c, 53, ss. 5860, . 437 6,7 c. 62, s. 13, . . 698 3,4 c. 53, ss. 77, 88, 89, 59 6,7 c. 76, s. 6, . 286, 460 3,4 c. 53, s. 90, . . 679 6,7 c. 76, s. 23, . . 288 3,4 c. 53, s. 115, . . 67 6,7 c. 79, . xciii, xciv. 3,4 c. 57, s. 41, . . 449 6,7 c. 84, . . ccxliii 3,4 c. 68, ss. 15, 16, 17, 290 6,7 c. 89, . . xxxvi 3,4 c. 68, s. 18, . . 291 6,7 c. 114, ... 78 3,4 c. 68, s.21, . . 141 6,7 c. 114, s. 34, . . 504 3,4 c. 68, ss. 1, 68, 1015, 6,7 c. 116, ss. 4 174,717,735, 1839, Ixx Ixxx cxlix clvii 6, 7 ,, c. 117, s. 59, . . 45 3,4 c. 78, s. 2, 4 7 c. 2, s. s. 2, . . 736 3, 4 c. 82, . . 6, 161, n. 7 c. 2, s. 3, . 723 n. (a) 3, 4 c. 91, ss. 13, 715, 716, n. * 99 7 c. 2, s. 4, . . . 721 3,4 c. 91, ss. 4, 8, . . 713 7 c. 2, s. 5, . . 729 n. (a) 3,4 c. 91, s. 9, . 714,717 7 c. 2, s. 6, . 366 in note 3,4 c. 91, ss. 35, 43, 714, n. (a) 7 c. 2, s. 14, . 718, 719, n. (a) 3,4 c. 103, . ccxlii 7 c. 2, s. 16, . . . 733 4 c. 8, ... 714 7 Will. 4 & 1 Vic. c. 36, ss. 5,25,31, 465 4,5 c. 35, s. 8, . . 447 7 c. 36, ss. 26, 27, 427 4,5 c. 35, ... xxx 7 c. 36,ss.28,29,30, 4,5 c. 40, ss. 1,2,4,7,8, 32, . . 428 10,11, clxxii, clxxiii 7 c. 36, ss. 32, 35, 4,5 c. 52, s. 15, . . 58 36, . . 466 4,5 c. 93, . . .693 7 c. 36, s. 35, . 402 5,6 c. 19, ss. 14, 15, 53, 59 7 c. 36, s. 37, . 57 5,6 c. 19, ss. 37, 38, . 58 7 c. 36, s. 47, . 435 5,6 c. 19, s. 40, . . 469 7 c. 84, . . 417 5,6 c. 27, s. 19, . . 455 7 c. 84, s. 2, . 403 5,6 ,, c. 27, ss. 112, 2123, 7 c. 85, ss. 2,3, . 425 TABLE OF STATUTES. PAGE. * PA GET, 7 Will. 4 & 1 Vic. c. 85, ss. 4, 5, . 421 1 & 2 Vic. c. 99, ss. 8 13, 653655 7 c. 85, s. 7, . 402 1 &2 c. 99, 83. 15 19 . 656 7 c. 86, s. 6, , 402 1 &2 c. 99, s. 16, . 618 7 c. 86, ss. 2, 7, . 418 1 & 2 c. 99, s. 18, 536, n. (a) 7 c. 86, s. 9, . 435 1 & 2 c. 105, . 161, 463 7 c. 87, ss. 1,2, . 435 2 & 3 c. 37, s. 3, . cxxxv 7 c. 87, ss. 27, . 434 2 & 3 c. 48, . . 715 7 c. 87, s. 8, . 436 2& 3 c. 51, s. 9, . . 416 7 c. 87, s. 9, . 402 2 & 3 c. 74, ss. 15, clxxxii 7 c.88, s. 2, . 427 clxxxv 7 c. 88, s. 4, . 402 2&3 c. 74, ... 472 7 c. 89, ss. 2, 3, 9, 2&3 c. 75, ss. 15, . . 18 10, . . 405 2 & 3 c. 75, s. 6, . . 19 7 c. 89, ss. 4, 5, . 435 2 & 3 c. 75, ss. 10, 14, . 16 7 c. 89, ss. 6, 7, 8, 436 2&3 c.75, s. 11, . . 17 7 c. 89, s. 11, . 402 2&3 c. 75, ss. 12, 13, . 28 7 c. 90, s. 1, . 406 2 &3 c. 75, ss. 15, 21, . 26 7 c. 90, ss. 13, . 418 2 &3 c. 75, s. 16, . . 27 7 c. 90,s.5, . 401 2&3 c. 75, s. 17, . .30 7 c. 91, ss. 1, 2, . 403 7 c. 91, . 432437 Vic. c. 23, . . . . 402 2 &3 2 &3 c. 75, s. 19, . . 32 c. 75, ss. 19, 21, . 29 c. 25, . . . . 36 2 & 3 c. 75, s. 22, . . 24 c. 27, ... 706708 c. 66, ss. 1 3, . . xlviii, xlix c. 67, ss. 1, 2, 3, . ccxxxv c. 83, ... ccxlii 2 & 3 2&3 2 &3 2&3 c. 75, s. 24, . . 25 c. 75, s. 26, . . 653 c. 75, ss. 27, 28, . 655 c. 75, s. 30, . . 224 & 2 Vic. c. 28, s. 10, . . 277 2&3 c. 77, . . in, iv, v & 2 c. 28, ss. 1 28, . vi xviii 2&3 c. 78, s. 16, . . 36 &2 c. 48,s.7, . . 451 2&3 c. 79, s. 1, . . 295 & 2 c. 56, ss. 10, . . 465 2&3 c. 79, ss. 4, 5, . 296 & 2 c. 56, ss. 23, 24, 708-9 2 &3 c. 79, s.6, . . 297 & 2 c. 56, s. 23, . . 67 2&3 c. 79, ss. 1, 4, 7, 8, &2 c. 56, ss. 6,7, 53,57 60, 9, ... clxiii 70, 98, 109, 111, 113, 2&3 c. 85, ss. 212, xxx, xxxiv 118,119,121,cxxxvi cxli 3 & 4 c. 29, s. 8, . . clxvi &2 c. 71, s. 2, . . 259 3&4 c. 91, . . . cii &2 c. 71,s.3, . . 269 & 2 c. 77, . , : 161, 442 & 2 c. 78,ss.2,3, 17, 19,21, 22, . clxxvi, clxxvii & 2 c. 99, ss. 17, . 648652 & 2 c. 99, s. 5, . 650 n. (a) 3&4 3&4 3 &4 3 &4 c. 97, ss. 13, 15, . 467 c. 97, ss. 5, 6, 13, 14, 16, 17, clxiv clxvi c. 100, ss. 47, . cxli c. 107, s. 88, . . 457 The editions of the principal Text Books referred to by the pages, are : Burn's Justice, 28th edition, by J. Chitty, M. Bere, and T. Chitty. Dickenson's Quarter Sessions, 4th edition, by Serjeant Talfourd. Paley on Convictions, 3rd edition, by Deacon. Bacon's Abridgment, edited by Gwillim and Dod. Hayes* Cr. Law, 1st edition. Archbold's Cr. Law, 7th and 8th editions, by Jervis. Phillips on Evidence, 8th edition. In the other Text Books referred to (of which there is more than one edition) the paging is generally preserved the same in all the editions. The references to Hawkins' PI. of the Crown are given both to the common editions and to Curwood's, CONTENTS. PART I. CHAPTER 1. Of the Office of Justice of the Peace, 2. Of the Office of Constable ; the Constabulary ; Special Constables, ..... 3. Of the Jurisdiction of Justices of the Peace, out of Sessions, . ... 4. Of Petty Sessions, and the Petty Sessions Acts, PART II. PAGE. 113 1446 4774 7496 DUTIES OF JUSTICES OF THE PEACE AS TO INDICTABLE OFFENCES, AND IN PRESERVING THE PEACE. CHAPTER 1. Of Arrest in Criminal Cases, . . . 97 100 2. Of Arrest without Warrant ; of Breaches of the Peace, ...... 101150 3. Of Arrest under Warrant ; of Summons ; of taking Informations; of Warrants, . . . 150 191 Jt 4. Of the Execution of the Warrant of Arrest, . 192 197 5. Of breaking open outer Doors, . . . 198 205 6. Of Assistance, Flight, Resistance; Hue and Cry, . 205 214 7. Of the Duty of Officers after Arrest, . . 215226 8. Of Escape, Rescue, Re-taking, . . . 226233 9. Of Cases where an actual Arrest is not made ; when the Party is in Custody ; after supersedeas ; when the Process is defective, .... 233242 ,, 10. Of Search Warrant; for stolen Goods ; under parti- cular Statutes, ..... 243 303 ,, 11. Of the Informations and Examination of the Ac- cused; Accomplices; Witnesses, . . 304 359 XXII CONTENTS. PAGE. CHAPTER 1'2. Of dying Declarations, . . . 359365 13. Of discharging the Prisoner, . . . 366371 M 1 4._ Of Bail ; Catalogue of Offences, . . . 371474 15. Of Commitment for safe Custody, . . . 474 494 16. Of the Recognizances, .... 495503 ,, 17. Of keeping and returning the Proceedings; the pro- per Court for Trial, .... 503 518 18. Of Surety of the Peace and good Behaviour, . 519541 PART III. OF SUaiMARY CONVICTIONS BEFORE JUSTICES OF THE PEACE. CHAPTER 1. Of summary Proceedings generally; of Informa- tions, ...... 580591 2. Of compelling the Appearance of Parties and Wit- nesses, . ..... 580 591 3. Of the Hearing ; of the Evidence, . . . 591620 tt 4. Of the Conviction; of Orders, . . . 620645 n 5. Of Distress and Commitment in Execution, . 646 683 tt 6. Of Certiorari ; of Appeal, . . . 684694 PART IV. OF THE CIVIL AND MISCELLANEOUS DUTIES OF JUSTICES OF THE PEACE. CHAPTER 1. Of the civil Jurisdiction of Justices; of Duties con- nected with public Institutions, . . . 694 712 2. Of special Sessions; revising Jury Lists; special Presentment Sessions, .... 713 736 APPENDIX OF STATUTES. Statutes relating to Convictions for Assaults, .. the Sale of Bread and Flour, . Building, and Building Materials, >, Butchers, ... Burning Land, . . Chimney Sweeps, . . ,v the Sale of Coals, . . , Commons, ... v _ xv xviii xxi xx j X xii xxii xxx xxx xxxiv xxxiv xxxv xxxv xxxvi CONTENTS, XX111 PAGE. Statutes relating to Witnesses on Coroners' Inquests, . xxxvi ,, ,, Combination, .... xxxvi xlii ,, ,, Cruelty to Animals, . . . xlii xlix ,, ,, Fireworks, ..... xlix 1 ,, ,, Forcible Entry and Detainer, . . . li liv ,, ,, Game, and Game Certificates, . . liv Ixix ,, Sale of Grain, .... Ixix Ixx ,, Summary Powers under Grand Jury Act; Roads, .... Ixx Ixxx ,, Harbours, .... Ixxx Ixxxiii ,, ,, Larceny and similar Offences, . . Ixxxiv xciii ,, ,, Lighthouses, .... xciii xciv ,, ,, Linen , . . . xciv cii ,, ,, Malicious Injuries, , . cii cviii ,, ,, Masters, Servants, Apprentices, . . cviii cxxi " Securities under 20s., . . cxxi cxxii ,, Pawnbrokers, .... cxxii cxxxv ,, ,, Summary Powers under Poor Law, . cxxxvi cxli ,, ,, Pounds, ..... cxlii cxlv ,, ,, Summary Powers under the Prison Act, . cxlvi cxlvii ,, Processions, .... cxlviii ,, Profane Swearing, .... cxlviii cxlix Public-houses, Sale of Spirits, . . cxlix clxiv Railways, .... clxiv clxvi ,, ,, Small-pox, .... clxvi clxvii ,, ,, Friendly Societies, . . . clxvii clxxiv Loan Societies, . clxxiv clxxviii ,, Unlawful Societies, . . . clxxviii clxxxv ,, ,, Stage Coaches, .... clxxxv cxc Observance of Sunday, . . . cxc cxcii ,, Tolls and Customs, . . . cxcii cxcvi ,, Trees, .... cxcvi ,, Trespass, and Meares and Fences, . cxcvii ccvii ,, ,, Wages, ..... ccvii ccix ,, Weights and Measures, . . . ccix ccxix ,, Disputes between Masters and Workmen, . cxix ccxxxv ,, ,, Adjustment of Salvage, . , . ccxxxvi ccxlii ,, Notice of other Statutes, . . . ccxlii ccxliii ,, ,, Disputes as to Coin ; Animals wandering XXIV CONTENTS. PAGE. on Roads ; Merchant Seamen ; Abstract of Inland Fishery Acts, ....... Addenda. FORMS, ...... . ccxliv cccxxxvi INDEX, . . . cccxxxvii LIST OF FORMS. Oath of Office of J. P., ...... 67 Oath of Constable under Constabulary Act, . . . .2021 Registry of Summonses at Petty Sessions, .... ccxliv of Civil Proceedings, ..... ib. ,, of Criminal Proceedings, ..... ib. Return for Chief or Under Secretary, ..... ccxlv Application for Alteration of Districts, .... ccxlvi Oaths and Affirmations ; common Form of Oath, . . . ccxlvii Oath of a Witness,. ..... ib. Affirmations of Quakers or Moravians, . . . ib. ,, Separatists, ...... ib. Persons who have been Quakers or Moravians, . . ccxlviii Interpreters' Oath, ....... ib. FORMS IN PROCEEDINGS FOR INDICTABLE OFFENCES. Summons, common Form, . ... . . . ccxlvi ,, by way of Precept, ..... ib. to Petty Sessions, ...... ccxlvii Warrants and Indorsements ; Warrant to Arrest, . . . ccxlviii ,, a shorter Form, . . ib. ,, ,, Form if Name be unknown, . . ccxlix ,, ,, in the Queen's Name, . . ib. ,, ,, after Indictment found, . . ib. Indorsement of Warrant, . . ccl Supersedeas, ........ ccl Search Warrants ; for stolen Goods, . . . . ccli ,, ,, other Offences under Larceny Act, . . ccli cclii ,, for Bankrupt's Property, . . . . cclii ,, for Coin or Tools, ..... ib. ,, to enter Public-houses during prohibited Hours, . ccliii ,, ,, Information before Warrant to enter unlicensed Premises, ...... ccliv ,, ,, Search Warrant thereupon, .... cclv CONTENTS. XXV Forms to enforce Obedience of Witnesses in indictable Offences. ,, ,, Summons, ..... cclv ,, ,, Warrant or Summons by way of Precept, . . . cclvi ,. ,, Warrant after previous Summons, ib. ,, ,, Commitment for refusing to answer, . . cclvii ,, ,, ,, for refusing to enter into Recognizance, . ib. Informations ; before granting Warrant, .... cclviii ,, Jurat when Interpreter is used, ib. ,, Form when Informant cannot write, , . . ib. ,, Sworn on the Prisoner's Examination, . . . cclix Jurat when Information is resworn, ib. Depositions of Witnesses, ...... ib. Examination of the accused, . . . . cclx ,, where he does not write, ... ib. Commitment for further Examination, ib. ,, of an Accomplice, ..... cclxi Recognizances to prosecute and give Evidence, . . cclxi cclxii ,, Forms to be repeated when taking the Recognizance, 498 9 ,, a Form of Condition to prosecute at Admiralty Sessions, ..... 417, n. (a). Notice of Bail, ....... cclxiii Recognizance of Bail, . . . ib. ,, when Party is Infant, married Woman, or in Prison, ...... cclxv ,, Form to be repeated when taking the recognizance, . 388 ,, Form of Oath, .... 496, and cclxiv Liberate, ........ cclxvi Commitment for safe Custody, ..... ib. ,, if after Indictment found, . cclxvii by way of Detainer, . ib. Forms for describing all indictable Offences of ordinary Occurrence, adapted for Commitments, &c. ,, Felonies, ,, Misdemeanors, Forms for Surety of the Peace and good Behaviour ; Information, ,, Peace Warrant, . Recognizance for a limited Time, ,, till Sessions, ,, Form to be repeated when taking, d cclxviii ccxc ccxc ccxcvii ccxcvii ib. ccxcviii ib. 534535 XXVI CONTENTS. PAGE. Commitment in default of Surety, ..... ccxcviii Proclamation under the Riot Act, . . . . .136 ,, under the Processions Act, .... 143 FORMS FOR SUMMARY PROCEEDINGS. Information before summary conviction, .... ccxcix if for several Offences, . ccc ,, if quit am, ...... ib. ,, when Warrant is issued, . . ib. Summons ; Warrants, ...... ecc ccci Summons of a Witness to Petty Sessions, .... ccci Convictions, General Form : when Defendant appears and makes Defence, . ib. ,, when Summons by one J. P., and Hearing by others, . ccciii when Defendant appears, but does not plead, . cccii ,, if Defendant confesses, .... ib. ,, when Sentence is Imprisonment, . . . ib. ,, when Penalty has been mitigated, ... ib. Award of Costs, ..... ccciv Record of Acquittal, ...... ib. Distress Warrant for a Penalty, ... . ccciv Reciting the Proceedings, .... cccv ,, Return of Nulla Bona, ... . . . ib. ,, Order of Detention till Return can be made, . . cccvi Consent to a Commitment instead of Distress, . . . cccvi Commitment as a Punishment in first Instance, . . . cccvii in Default of immediate Payment, . . . cccviii of Payment in a given Time, . . ib. ,, ,, of Distress, . . . cccix ,, after Consent, instead of a Distress, ... ib. Certiorari, ...... 684, n. (6) Return to Certiorari, ...... cccix Notice of Appeal, ...... cccx Recognizance of Appeal, ..... ib. Forms under particular Statutes : Special Constables Conviction, ..... 43 44 Assaults Conviction, ... ii ,, Forms for describing Offences, . . . ib. Certificate of Dismissal, .... cccxii CONTENTS. XXV11 PAGE. Bread and Flour Form of Information, .... xv ,, ,, Summons, ... ib. Form of Conviction, . . . xvi Forms for describing Offences, . . cccxiiccxiii Burning Land Form of Conviction, . . xxvi Combination Commitment of a Witness, , . xli Form of Commitment and Conviction, * xl Forms for describing Offences, . ccciii - ccciv Cruelty to Animals Conviction, .... xlvi Forms for describing Offences, . cccxiv xv Harbour Act Form of Conviction, .... Ixxxiii Forms for describing Offences under Grand Jury Act, . . cccxv Larceny and Malicious Injuries' Acts. Form of Conviction when Punishment is corporeal, . . cccxvi ,, when Penalty is pecuniary, and Damages awarded, ib. when Penalty only is inflicted, . . cccxvii ,, when Time is allowed for Payment, . ib. for a second Offence, ... ib. Forms adapted to the Larceny Act. Forms for describing all Offences punishable summarily, cccxvii, cccxxii Order to deliver shipwrecked Goods to the Owner, . cccxviii Summons to Persons through whose hands Deer passed, . cccxix Forms adapted to the Malicious Injuries' Act. Forms for describing all Offences punishable summarily, cccxxii cccxxiv Notice to stay Dilapidation by Tenants, . . . cccxxiv Masters and Servants, Apprentices. Discharge of Apprentice on his own Application, . . cccxxiv Conviction of Master for ill Usage .... cccxxv Commitment of Apprentice for Misconduct, ... ib. Discharge in like Case, ..... cccxxvi Conviction for Neglect or Desertion of Workmen, . . cxix Public Houses Notice of Information, .... cccxxvi ,, Warrants to enter .... cccliii, cccliv Form of Conviction under these Acts, . . . clxii Forms for describing Offences thereunder, . cccxxvi, cccxxvii Friendly Societies Conviction for Fraud, .... cccxxx Unlawful Societies, Form of Conviction, . . clxxxi Stage Coaches ; Information under the Act, . . . clxxxix Summons ; Conviction, . . . clxxxix, cxc Trespass, Oath of Arbitrator or Appraiser, . . . ccii XXV111 CONTENTS. PAGE. Wages Form of Summons for Wages, .... cccxxxi ,, Form of order to Pay, ... . cccxxxii Distress Warrant, ib. Weights and Measures Form of Conviction, . . . ccxvii Workmen's Disputes. Order certifying Nomination of Referees, . . . ccxxii ,, second Nomination, . . . ccxxiii Award to be written on the Back, .... ccxxx Indorsement extending the Time for making the Award, . ccxxx Acknowledgment of fulfilment of Award, ... ib. Oath to be administered by Arbitrators, ... ib. Commitment of a Witness, ..... ib. Warrant of Distress, . ..... ccxxxii Return thereto ...... ccxxxiii Commitment thereupon, ..... ib. Commitment without previous Distress, . . . ccxxxiv Adjudication of Salvage Claims, ..... cccxxxiii Certificate and Affidavit of Premises being deserted, . . cccxxxv, cccxxxvi Commitment of a dangerous Lunatic, .... cccxxxiv ADDENDA ET CORRIGENDA. Page 4. The qualification here mentioned is no longer necessary at Presentment Sessions, see p. 717, n. (a). 16, for 5 & 6 Will. IV. read 6 Will. IV. 57, to the Statutes enumerated in the note, add 9 Geo. IV. c. 55, s. 77, and c. 56, s. 55, and 10 Geo. IV. c. 34, s. 41. 60, In addition to the Acts here enumerated, giving Justices Jurisdiction out of their county, see also p. 397, n. (a) ; and the Acts referred to in the Index, sub. tit. Justices' Jurisdiction. . 63, line 3, for 9 Geo. IV. read 3 Geo. IV. 65, line 7, add where a Statute mentions a Justice residing in the place none other has jurisdiction, see Sharp v. Aspinall, 10 B. & C. 47. 67, line 3, from the bottom, add a reference to R. v. Gregg, pp. 530, 537, n. 88, in the end of sect. 15, for repealed by 6 & 7 Will. IV. read see also 6 & 7 Will. IV. 96. The table here given is (except the last item) that prescribed by the Sch. of 7 & 8 Geo. IV. c. 67 ; but as to the fee for recognizances, see also 6 & 7 Will. IV. c. 34, s. 12, at top of the page. 140, line 7, from the bottom, read 27 Geo. III. c. 15. 141, line 17, read at any time, instead of for any time. . i . 176, add the fees payable at Petty Sessions for engrossing informations for misdemeanors are specified by the Petty Sessions Act, 7 & 8 Geo. IV. c. 67, Sch. ; and no greater fee than 2s. 6d. shall be demanded or received for any number relating to the same transaction, see pp. 95, 96. 190. The last note in this page is to the reference (&) in p. 191. 225, in u. (a) for seems not to, read does not, see p. 731. 243. The references throughout this chapter to Part III. ought to be to the Appendix of Statutes. 302, line 6, add these provisions are extended to the Statutes 55 Geo. III. c. 127, see p. 420. 315, see the addition, supra, to p. 176. 331, n. (b),for R. v. Burnall, read R. v. Brownell. 387, line 15, for sect. 52 read sect. 2 ; and in n. (c),/or Ch. XV. read XVI. 407, 3 lines from the bottom, read the passage as follow counterfeit coin ; or any pieces of metal of a fit size and figure to be coined with intent that they should be coined into coin resembling, &c. 412, 8 lines from the bottom, for tenement, or holding, &c., read tenement, and forcibly and without due authority by law, holding, &c. ; and with re- spect to the proposition in the last 3 lines, see the note (c), p. 712. 437, 5 lines from the bottom, refer also to SMUGGLING. 440, last line and first in the next page, read or personal estate, or being heiress presumptive or next of kin to any one having such an interest, out of the possession, &c. XXX ADDENDA ET CORRIGENDA. Page 452, in line 2 J , after lading insert warehousekeeper's or wharfinger's certificate. 482, to the first marginal note add a reference to p. 183. 514, line 5 from the bottom, mark the passage following as a quotation. 548, as to when time should be counted inclusively or exclusively, and the meaning of " 10 days," " clear days," " days at least," see also p. 691. 585, add a reference to Stat. 1 & 2 Will. IV. c. 55, s. 36 (the Act for pre- venting illicit distillation), which directs, that persons arrested thereunder and brought before a J. P. shall be held to bail in the sum of 20, to appear at the next Petty Sessions of the district; or if he be not willing or able to give bail the Js. P. may proceed immediately to hear and deter- mine. liv, line 13, for or read and. Ixx, line 14, add as to some of the provisions of this Statute, (58 Geo. III. c. 82), see, however, 1 & 2 Viet. c. 28, ante, p. vi, et seq. Ixx, line 13, from the bottom, by Stat. 7 Will. IV. c. 2, s. 17, it is enacted, that notice by the county surveyor shall be no longer necessary. Ixxx. Insert the following : Stat. 4 & 5 Will. IV. c. 50, recites, that by the laws in force animals wan- dering on roads may be seized, impounded, and sold for the purpose of enforcing the payment of the penalty, and that it is in many cases expedient that a power should exist of inflicting penalties for such nuisances, without resorting to a sei- zure of the swine or other animal ; and enacts, " that in case any horse, ass, pig, cow, or other beast, shall be found wandering upon any public road, or about any street or passage of any town, it shall be lawful for any constable or other person to procure the owner of such horse, ass, &c., to be summoned before a J. P. of the county within which such pig, cow, beast, or other animal, shall be so found wandering; and in case that such constable or other person as afore- said, should not know the owner of such horse, ass, &c. , or other beast, it shall be lawful for such constable or other person to seize and drive it or them to the pound nearest to the place where it or they may be found trespassing, contrary to the provisions of this Act, there to remain until the owner shall appear and demand his or her property, notice of which to the person impounding the pound-keeper is hereby authorized and required to give ; and such Justice is hereby authorized and required summarily to hear and determine such complaint, upon the appearance of the party summoned, or in his or her absence, if proof shall be given that such summons has been personally served upon him or her, or left at his or her usual place of abode ; and in case of the proof of such of- fence by the oath of a credible witness, or the confession of the party charged, such Justice is hereby authorized and required to convict such offender in a penalty not exceeding one shilling, without costs, to be levied by distress and sale of the goods and chattels of such owner, or by the sale of such horse, ass, pig, cow, or other beast, such distress or sale to be made by warrant under the hand and seal of such Justice, rendering the overplus, if any, after deducting the said penalty and expenses of such distress and sale, to the owner or owners, on de- mand ; provided always, that nothing herein contained shall be construed to re- peal any provision made by any Act or Acts now in force in Ireland for the prevention of trespass, or for the infliction of any penalty or the recovery of any damages in the case of trespass, or forfeiture or other disposition of any animal found trespassing or damage feasant." Page cxli. With respect to the provisions of the Stat. 3 & 4 Viet. c. 100, see also 4 & 5 Viet. c. Insert in the Appendix also the following : DISPUTES as to counterfeit coin. Stat. 2 Will. IV. c. 34, s. 13, enacts, that " where any gold' or silver coin shall be tendered to any person who shall suspect any piece or pieces thereof to be diminished, otherwise than by reasonable wear- ing, or to be counterfeit, it shall be lawful for such person to cut, break, or de- ADDENDA ET CORRIGENDA. XXXI face such piece or pieces ; and if such piece so cut, broken, or defaced, shall appear to be diminished otherwise than by reasonable wearing, or to be coun- terfeit, the person tendering the same shall bear the loss thereof ; but if the same shall be of due weight, and appear to be lawful coin, the person cutting, breaking, or defacing the same is required to receive the same at the rate it was coined for ; and if any dispute shall arise, whether the piece so cut, broken, or defaced, be diminished or counterfeit, it shall be heard and finally determined in a summary manner by any Justice of the Peace, who is hereby empowered to examine upon oath as well the parties as any other person, in order to the deci- sion of such dispute." SEAMEN in the merchant service. Stat. 5 & 6 "Will. IV. c. 19, contains seve- ral important provisions as to agreements with seamen, punishing misconduct, temporary absence, &c., for which the reader is referred to the Statute, see sects. 1 to 13. Sect. 14 enacts, that " if after a seaman shall have been dis- charged from any ship or vessel three days he shall be desirous of proceeding to sea on another voyage, and in order thereto shall require immediate payment of the wages due to him, it shall be lawful for any J. P. in any part of H. M. domi- nions, on application from such seaman, and on satisfactory proof that he would be prevented from employment by delay, to summon the master or owner of such ship or vessel before him, and to require cause to be shown why immediate pay- ment of such wages should not be made ; and if it shall appear to the satisfaction of such J. that there is no reasonable cause for delay he shall order payment to be made forthwith, and in default of compliance with such order such master or owner shall forfeit and pay the sum of 5." 15. " In all cases of wages not exceeding 20, due to a seaman for his service in any ship as aforesaid, it shall be lawful for any J. P. residing near to the place where the ship shall have ended her voyage, cleared at the Custom-House, or discharged her cargo, or near to the place where the master or owner upon whom respectively the claim is made shall be or reside, upon complaint on oath to be made to such J. by any such seaman or on his behalf, to summon such master or owner to appear before him ; and upon appearance, or in default, on due proof of his having been so summoned, to examine upon the oath of the parties and their respective wit- nesses, if there be any, touching the complaint and the amount of wages due, and to make such order for payment thereof as shall to such J. appear reasonable and just ; "and in case such order is not obeyed within two days next after the making thereof, it shall be lawful for such J. to -issue his warrant to levy the amount of the wages awarded to be due, by distress and sale of the goods and chattels of the party on whom such order for payment shall be made, rendering the over- plus( if any remain) after deducting thereout all the charges and expenses in- curred by the seaman in the making and hearing of the complaint, as well as those incurred by the distress and levy and in the enforcement of the J.'s order ; and in case sufficient distress cannot be found, it shall be lawful for the said J. to cause the amount of the said wages and expenses to be levied on the ship in respect of the service on board which the wages are claimed, or the tackle and apparel thereof; and if such ship shall not be within the jurisdiction of such J. then he is hereby empowered to cause the party upon whom the order for pay- ment shall be made to be apprehended and committed to the common gaol of the county, there to remain without bail until payment shall be made of the amount of the wages so awarded, and of all costs and expenses attending the recovery thereof;" the award and decision of such J. shall be final and conclusive both on seaman, owner, and master. The subsequent sections contain provisions as to apprentices to the sea ser- vice, and the jurisdiction of justices therein. Sect. 38 recites Stat. 9 Geo. IV. c. 31, Eng., (similar to 10 Geo. IV. c. 34, Ir., App. p. i, &c.), and enacts, that " in case of any assault or battery which shall be committed on board any XXX11 ADDENDA ET CORRIGENDA. merchant ship belonging to any subject of the U. K. in any place at sea, or out of H. M. dominions, it shall be lawful for any two Js, P. in any part of H. M. do- minions, upon complaint of the party aggrieved, to hear and determine any such complaint, and to proceed and make such adjudication thereon as by the said Act any two Js. are empowered to do, subject however to such provisoes and limita- tions as are contained therein with respect to the cases of assault and battery therein mentioned ; and the fine or forfeiture to be imposed in any such case shall be payable to the Merchant Seaman's Hospital or institution at or nearest to the port or place where such adjudication shall be made." As to providing for sick, maimed, and disabled seamen, and the families of men killed in the merchant service, see 4 & 5 Will. IV. c. 52 ; and as to East India traders, see 4 Geo. IV. c. 80, and 3 & 4 Will. IV. c. 93. The Statutes relating to the INLAND FISHERIES, omitted for the reason stated in the Preface, are as follows: 2 Geo. I. c. 21, prohibiting using engines or lights for killing salmon above tide or at mill tails ; see however now the subsequent Statutes. 12 Geo. I. c. 7, s. 1, provides, that persons with their faces blackened or disfigured fishing, or near rivers, may be seized and brought before a J. P., who may convict them summarily. Sect. 2 enacts, that no person not having ^40 per annum free- hold, or 1000 personal estate, or entitled to a fishery, shall keep any engine for killing salmon, or such engines and fish found with offenders may be seized, and the offender convicted summarily. Sect. 3 makes it penal to kill in any manner twelve salmon fry in a day during the months of February, March, April, or May ; and the offender may be summarily convicted. Sect. 4 allows watchmen appointed by owners of fisheries to go along the banks of rivers. 31 Geo. II. c. 13,s. 1, prohibits fishing for salmon in rivers from the 12th of August to 1st February; and the offender may be summarily convicted and punished; and sect. 2 imposes a penalty on owners of fisheries taking salmon from the 12th of August to the 1st February. Sect. 3 excepts from these general clauses several rivers in which the spawning season differs, viz., the rivers Rathmalton, Lachagh, Donnegal, Bundrouse, Sligo, Shannon below Limerick, Boyne, Lough Lean, the rivers Lame, Canagh, Lee, Busk, Newport, and Feal. Stat. 3 Geo. III. c. 35, s. 1, enacts, that no person, except the proprietors or farmers, shall fish during the prohibited season in these rivers, or in the River Earne or fislTery of Ballyshannon between 12th of August and 1st May. 17 & 18 Geo. III. c. 19, s. 6, contains an exception as to the River Bandon, as to which see also 26 Geo. III. c. 50, s. 16. 26 Geo. III. c. 15, relates to the season for fishing in the River Blackwater ; and sect. 17 in the Slaney. 3 Geo. III. c. 35, s. 4, relates to the season for fishing in Lough Foyle; and 32 Geo. III. c. 40, s. 5, to the season for fishing in the Liffey ; and for other pro- visions as to the River Liffey, see also 26 Geo. III. c. 50, ss. 18, 19, and 23. 31 Geo. II. c. 13, s. 4, provides for punishing persons who use any means from 1st of March to 1st June to kill eels, whereby salmon fry may be injured ; other sections provide for recovering penalties. 3 Geo. III. c. 35, provides for punishing any person, except proprietors and far- mers of fisheries, or persons by them authorized, who use for any purpose certain instruments therein described, within a salmon fishery, or who use therein any instruments to kill salmon. 17 & 18 Geo. III. c. 19, perpetuated by 33 Geo. c. 40, s. 4, and 33 Geo. III. c. 50, s. 4, make it penal for any person not qualified to have engines for killing fish other than rods and lines, except the makers or the owners of rivers. Sect. 2 makes it penal to kill fresh water fish without the consent of the owner. Sect. 3 provides for punishing persons fishing at night with lights. And sect. 7, persons fishing with nets in loughs and rivers flowing thereinto from 12th August to 1st January. Sect. 8, for punishing persons obstructing salmon by dams in mill tails. Other sections relate to tarring nets and the recovery of penalties. 23 & 24 Geo. III. c. 40, perpetuated by 33 Geo. III. c. 50, s. 4, prohibits the erection of stages and shades, or the use of certain engines herein described, from 1st of February to 1st September. Sect. 3 prohibits taking trout, except ADDENDA ET CORRIGENDA. XXX111 by angling, from October 1st to February 1st; but as to the River Maine, see 26 Geo. III. c. 50 ; see also a former provision on the same subject in 17 & 18 Geo. III. c. 19, s. 5. 23 & 24 Geo. III. c. 40, s. 4, provides for appointing keepers on rivers, as to which, however, see also 26 Geo. III. c. 50, s. 12. 23 & 24 Geo. III. c. 40, s. 8, prohibits the taking of salmon fry or eel fry, except with a rod. Sect. 9 prohibits shutting the gates of salmon weirs to pre- vent the going up of the spawn. Sect. 10 prohibits fishing with lights, snares, gaffs, and various other instruments enumerated, and provides for punishing offenders and the seizure and forfeiture of the instruments. Sect. 11 makes it penal to obstruct the centre passage in large rivers. Sects. 12 14, and 26 Geo. HI. c. 50, sects. 8 1 1, relate to unlawful weirs. Other sections re- late to the recovery of penalties, &c. 26 Geo. III. c. 50, perpetuated by 39 Geo. III. c. 51, s. 1, makes it penal to have spur walls or tail walls beyond the dimensions herein prescribed, after notice from a J. P. to abate them. Sect. 2 excepts walls constructed with the weir, or for supporting the bank. Sect. 3 provides for the punishment of per- sons found, two or more together, with unlawful instruments for killing fish at night. Sect. 4 provides for punishing and preventing persons near rivers col- luding with offenders fishing unlawfully. Sect. 5 imposes a penalty on persons in whose possession salmon, &c., is found at prohibited times. Sect. 6 pro- vides for punishing unqualified persons found angling without the consent of the owners. Sect. 7 provides for weirs necessai'y for mills or navigation. Other sects, relate to proceedings for penalties, &c. 33 Geo. III. c. 50, s. 1, provides for punishing persons taking salmon peal or fry at the mouths of rivers at forbidden seasons. Sect. 2 prohibits fishing in any manner in any fishery without the owner's consent. 39 Geo. III. c. 51, contains provisions as to boats on the Bann and Lough Neagh. 1 & 2 Viet, c. 76, provides for the summary punishment of persons putting poisonous materials into rivers PART 1. CHAPTER I. OF THE OFFICE OF JUSTICE OF THE PEACE. THE assignment of individuals appointed to keep the Origin of the peace in their respective counties, under the king's com- office ' mission, was first provided for by Statute 1 Edw. III. st. 2, c. 16(), the persons thus appointed were then styled keepers of the peace, and the office thus consti- tuted nearly resembled that of the ancient conservator of the peace, which had existed previously at the com- mon law(). They acquired the legal title of justices, when the Statute 34 Edw. III. c. 1, gave them the power of trying felonies (c), by which appellation they are styled in 36 Edw. III. c. 12, and in all the subse- quent Statutes which relate to this office. Justices of the peace, at the present day, may Mode ofap- be appointed, 1, by Act of Parliament ; 2, by charter P ointment - or grant ; 3, by commission under the great seal. (a) It may be proper here to observe, that the ancient Statutes, prior to 10 Hen. VII. which are referred to in this chapter, were passed in the English parliament, and are to be found in the English Statute book. They are in force in Ireland by virtue of Poyning's Act, 10 Hen. VII, c. 22. (6) Lamb, c. 3 j Dalt. c. 1 ; 2 Haw. c, 8 ; and 3 Burn, 539. (c) Lamb, 23 ; 1 Bl. Com. 351 ; and see Dalt. c. 2, s. a. B Modes of Appointment . 1. By Act of Parliament. 2. By charter 1. Justices of peace by Act of Parliament ; such are the lord mayor, sheriffs, and aldermen of the city of Dublin for the time being, by 33 Geo. IT. c. 10, s. 18; assistant barristers for their respective counties, by 36 Geo. III. c. 25, s. 2; the police magistrates for the police district of Dublin metropolis, under 6 & 7 Will. IV. c. 29, s. 32-, and the justices of the Castle division of the said district, for the counties of Dublin, Wicklow, Kildare, and Meath, by 5 Geo. IV. c. 102, s. 9 ; the inspectors general, deputy inspectors general, provincial, and county inspectors under 6 Will. IV. c. 13; and stipendiary magistrates appointed under the same Act(a). So also the Lord Lieutenant and privy council are empowered by 7 Geo. IV. c. 61, to order the appoint- ment, where necessary, of one or more additional jus- tices in any local jurisdiction, other than a county at large, and thereupon the Lord Chancellor shall, by commission, under the great seal, appoint such per- sons as he shall think .fit, not being more in number than those specified in the order, to be justices of the peace, during his majesty's pleasure, throughout such local jurisdiction. 2. Justices of peace by charter or grant made by the king under the great seal, as mayors and the chief officers in several corporate towns. These the king cannot discharge at his pleasure, nor does their au- thority cease by the king's demise ; but such grants or charters may, for any great misconduct in the execu- tion of the powers therein granted, be repealed (b). The Statute 1 Geo. III. c. 11, also provides, that any *' such justice, on conviction for any offence contrary to his duty, upon an information to be filed in the King's Post, ch. 2. (6) Dalt. c. 3, s.2, 10 j 3 Burn, 552. Qualification. Estate. 3 Bench, shall be disabled to act, if the court or judge shall certify that they are satisfied with the verdict given upon such information. It is, however, to be observed, that although a man be a mayor or alder- man, yet it does not follow that he is a justice of the peace, for that must be by a particular grant in the charter(a). 3. By commission : and these are appointed at the 3. By com- discretion of the Lord Chancellor or keeper of the mission - great seal(&). It is enacted by 2 Hen. V. st. 2. c. l(c), that the Qualification of justices of peace for Bounties shall be made of the Aunties. ' most sufficient persons dwelling in the same counties, without taking other persons dwelling in foreign coun- Residence, ties. By Statute 18 Hen. VI. c. 11, it is provided, " that Estate. no justice of the peace shall be assigned in any county, if he have not land to the value of 20 by the year ; and that any person, not thus qualified, acting as justice of the peace, shall incur the penalty of 20." But by s. 2 it is provided, " that this ordinance is not to extend to cities, towns, or boroughs, which are counties incorpo- rate of themselves, and which have justices of the peace dwelling within the same ; and further, that if there be not sufficient men learned in the law having lands, &c. to the value aforesaid within any county, the Chan- cellor shall have power to put other discreet persons in such commissions, though they have not lands to such value." This is the only Statute which pre- scribes a qualification of estate generally for justices of (a) By Holt, C. J. in R. v. Langley, 2 Ld. Raym. 1030; Jones v, Williams, 5 D. & R. 662 ; 3 Burn. 544. (&) Dalt. c. 3, s. 7 ; 2 Hen. V. st. 2, c. 1 ; and 18 Hen. VI. c. II, (c) See also 2 Hen. V. st, 1, c. 4,s. 2. Qualification. instances. Special road sessions. peace in Ireland, and the amount which was fixed A. D. 1439, is at this day merely nominal(a). Qualification of A further qualification of estate is, however, in some estate requisite j ns tances, requisite to entitle justices to exercise cer- in particular tain privileges. Thus, the Grand Jury Act, 3 & 4 Will. IV. c. 78, s. 2, requiring justices to hold special ses- sions for the purposes of the Act, prescribes the qualifications of those who may attend, viz. : an es- tate of freehold for life, at least of the annual value of 300, situate in the county ; or being heir apparent thereto ; or a leasehold for life or lives, or a term of which eighteen years are unexpired, of the yearly value of 500 situate in the county; or being possessed of a leasehold for life not being of such value and terms for years as above, which along with it amount to the annual value of 400 ; or, being a magistrate of a city, county of city, &c. whether by charter or otherwise, or an alderman, if there be not more than three magis- trates in the corporation ; or being resident and having a rectory or vicarage of the annual value of 300 ; or, if a resident magistrate 6f the county, being agent to some person having an estate of the yearly value of <6000. The qualification of magistrates making the election of county treasurer under 4 Geo. IV. c. 33, s. 2, are prescribed by that Statute, and by 59 Geo. III. c. 84, s. 2 ; they are the same as the above, except that residence in the county and possessing a property of 10,000 is also a sufficient qualification, and that only chartered magistrates of cities, &c. are included. Act for the The Act for the more easy recovery of tithes of County treasu- icr's election Act. () The Statute 23, 24 Geo. III. c. 30, (amended by 25 Geo. III.*. f9,) which required a qualification of estate for justices of the peace in Ireland, equal to that required in England by the English Acts 5 Geo. II. c, 18, and 18 Geo. II. c. 20, has been.repeale.l by 27 Geo, III. c. 40. Disqualification. Other Offices. >> small value also provided, that no justice should have more eas y re - , , covery of tithe. authority to act thereunder, who has not an estate of freehold of the yearly value of 100, except justices in counties of cities or towns. And, besides the neces- sary qualification of estate, this Act specifically re- quired residence and freedom from interest in the jus- Freedom from tice acting thereunder(a). So some Acts relating to in disputes between masters and workmen, exclude mas- ter manufacturers, or agents from acting as justices under them(a). In some instances persons holding other offices are Disqualifica- disqualified from acting as justices of the peace. Thus it is enacted by 7 Will. III. c. 13, s. 3, that no sheriff County sheriff, or sub-sheriff of any county shall exercise the office of justice of the peace, during the time that he shall act as sheriff or sub-sheriff in the same county, under the penalty of 20, and his acts shall be void. So the 19, County trea- 14 Geo. III. c. 18, s. 8, provides that no treasurer of a SL county shall, during his continuance in office, exercise the office of justice of peace in such county. Thus Stl pendiary rnaistrates. also stipendiary magistrates under 6 Will. IV. c. 13, are disabled from holding any other office under that Act by s. 33. By Stat. 2 Geo. I. c. 11, s. 12, no attor- Not to practise 11 T , . .1 i .11 . ,-, /. in civil bills. ney is allowed to practise in civil bills in the county for which he is a justice. It has been also thought that Coroners, the office of coroner is incompatible with that of a jus- tice, but this opinion has been doubted(). It was formerly thought, that if a man was named in any commission of the peace, and had afterwards a new dignity conferred upon him, that this determined his office ; but by the Statute 10 Car. I. st. 2, c. 14, s. (a) 1 Geo. II. c. 12, s. 2 , vid. post, ch. 3. (6)3 Burn, 554-, Dalt. c. 8, 10 ; 1 Bl, Cora. 353, note by Mr. Christian; 2 Arch. J. P. 20. Oaths. Disqualifica- tion from interest. Oaths. Oath of office. 4, it is provided, that although any justice of the peace be made a peer of the realm, judge, knight, serjeant at law, or sheriff (a), yet he shall remain a justice. The disqualification, in particular instances, arising from interest in the subject matter, or from non-resi- dence, will be particularly noticed in the third chapter, to which, therefore, the reader is referred. No Statute prescribes the form for the oath of office of justice of the peace, but St. 13 Rich. II. st. 1, c. 7, enacts, that the justices shall be sworn, duly and with- out favour, to keep and put into execution all the Sta- tutes and ordinances touching their office. On renewing the commission of the peace, which generally happens as any person is newly brought into it, a writ of dedimus potestatem is directed out of Chancery to some ancient justice (or other) to take the oath of him who is newly appointed, and to certify the same into that Court, at the day commanded by the writ(&). To this oath are usually annexed, if the justice to be appointed be a Protestant, the oaths of allegiance and abjuration ; and, if the justice be a Boman Catholic, the oath pre- scribed by 10 Geo. IV. c. 7(c). The form of the oath of office is as follows : " Ye shall swear, that as justice of the peace in the county of in all articles of the king's com- (a) But as to sheriff, vid. 7 Will. III. c. 13, sup. (&) 3 Burn, 544. Though in Ireland the de. po. is commonly directed to a justice, yet it seems it is not necessarily so ; and in England the prac- tice is generally to name as commissioners in it the attorney suing it out, or the clerk of the peace, and some other person. Stone's Pett. Ses. p. 5. (c) In all cases where oaths are required by law, Quakers and Mora- vians are allowed by 3 & 4 Will. IV. c. 49, to substitute an affirmation ; and by 3 & 4 Will. IV. c, 82, Separatists have the same privilege. By 1 & 2 Viet. c. 77, these provisions are extended to persons who have been Quakers or Moravians, and continue to have objections to taking an oath though they have ceased to belong to these sects, Oaths. mission to you directed, you shall do equal right to the poor and to the rich, after your cunning, wit, and power, and after the laws and customs of this realm, and Statutes thereof made, and ye shall not be of counsel with any person, in any quarrel hanging before you ; and that ye hold your sessions after the form of the Statutes thereof made, and the issues, fines, and amerciaments that shall happen to be made, and all forfeitures that shall fall before you, ye shall cause to be entered, without any concealment or embezzling, and truly send them to the king's exchequer ; ye shall not let for gift, or any other cause, but well and truly ye shall do your office of justice of the peace in that behalf, and that you take nothing for your office of justice of the peace to be done but of the king, and fees accustomed, and costs limited by the Statute ; and ye shall not direct, nor cause to be directed, any warrants, by you to be made, to the parties, but you shall direct them to the bailiffs of the said county or other the king's officers or ministers, or other indif- ferent persons to do execution thereof. So help you God, and by the contents of this book." It is provided by 7 Geo. III. c. 16, s. 4, 6(a), that Qualifying, justices of peace having taken the oaths of allegiance, supremacy, and abjuration, as prescribed by 2 Anne, c. 6, once, shall not be obliged to take the same oaths again on any subsequent commission during the same reign, unless left out of some commission, and after- wards inserted in a future one for the same place. The annual Indemnity Acts, besides affording a protec- tion against any penalty incurred by an omission of any (a) Some of the sections of this Act were temporary and have expired ; but the above provisions, relating to justices of the peace, are perpetual, and similar to those of 7 Geo. III. c, 9, Eng. which seems adopted in Ireland by 21 & 22 Geo. III. c, 48. Determination of Office. of the oaths, allows an additional period, usually till the ensuing 25th of March, for the purpose of taking them(a). It seems also that the acts of a justice who has not duly qualified are not absolutely void, so as to ren- der persons acting under his warrant trespassers^). J'ees. With respect to the fees mentioned in the oath, there are provisions in Stats. 7 & 8 Geo. IV. c. 67, ss. 8, 10, and 6 & 7 Will. IV. c. 34, s. 12, the Acts regulating proceedings at petty sessions, authorizing the clerk to receive certain fees, the amount of which is specified, and prohibiting him from receiving any other or greater fees than those thereby allowed ; and further providing that no fee whatsoever shall be demanded or taken by any person, for any magisterial act done by any justice at any other time or place, or in any other manner than at petty sessions(c). Determination As the office of these justices is conferred by the ice ' king, so it subsists only during his pleasure, and is de- terminable, 1. On the demise of the crown; or now in six months after(d). 2. By express writ under the great seal, discharging any particular person from the office. 3. By superseding the commission by writ of sttpersedeas, which suspends the power of all the jus- tices, but does not totally destroy it, for it may be re- vived by another writ called a procedendo. 4. By a new commission, which virtually, though silently, dis- charges all the former justices that are not included therein ; for two commissions cannot subsist at once(e). And, lastly, the exercise of the office is, as above stated, (a) Vid. last Indemnity Act, 2 & 3 Viet. c. 33. (&) Margate Pier Co. v. Hannam, 3 B. & Al. 266. (c) Pose, ch. 4. (J) By 1 Anne, st. 1, c. 8, s. 2, Eng. adopted in Ireland by 21, 22 Geo. III. c. 48, s. 3. (e) Lamb, 67, 69 ; Dalt. c. 3, s, 8, 9 j 3 Burn, 552 j 1 Bl. Com, 353. commis- sion. The Commission. suspended by the accession of the office of county she- riff or treasurer (a). There are several ancient Statutes relating to the Ancient Sta manner of the appointment of justices of the peace, the provisions of which, being inapplicable to the present state of the country, have been suffered to become ob- solete, and which, being matters rather of curiosity than of practical information, are therefore omitted(&). The commission consists of two parts, or two dif- The ferent assignments. The first assignment which relates to the authority of the justices out of their general ses- sions, empowers each and every of them jointly and severally to keep the peace, and thereby gives to them all the powers of the ancient conservators at common law in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing cri- minals, as also the whole authority which the Statutes have since added thereto. The second part of the commission, or the second assignment, relates wholly to the general sessions of the peace(c). FORM OF THE COMMISSION. " Victoria, by the grace of God, of the United King- Form of &* dom of Great Britain and Ireland Queen, Defender of the Faith, and so forth, to A. B. C. D. &c.(d) greeting. "Know ye, that we reposing special trust and con- J unsdi ction of n i !!-. j i u justices out of ndence in your fidelity, prudence, and care, have ap- sessions. pointed, and by these presents do appoint you and (a) Ante, p. 5. (6) Such are the following English Statutes adopted here by Poyning's Act, 10 Hen. VII. c. 22, viz. 1 Ed. III. st. 2, c. 16 ; 4 Ed. III. c. 2 ; 18 Ed. III. st. 2,c. 2 ; and 34 Ed. III. c. 1, as to the manner of appointment and powers of justices ; and 1 R. II. c. 10 ; and 14 R. II. c. 11, as to the number in each county. (c) Dalt. c. 5, s. 4, 5 ; 3 Burn, 541 ; 1 Bl. Com. 354. (d) The names of the members of the privy council, the judges, and queen's counsel, are first inserted in every commission, and after them the justices of the peace for the county. 10 The Commission. every of you jointly and severally our justices, to keep our peace in our county of and to keep, and cause to be kept, all ordinances and Statutes made for the good of our peace, and for the conservation of the same, and for the quiet rule and government of our people in all and every the articles thereof in our said county, (as well within the liberties as without,) according to the force, form, and effect thereof ; and to chastise and punish all persons offending against the form of those ordinances and Statutes, or any of them, in the county aforesaid, as according to the form of those or- dinances and Statutes shall be fit to be done ; and to cause to come before you, or any of you, all those per- sons who shall threaten any of our people in their person, or with burning their houses, to find sufficient security for the peace, or for their good behaviour to- wards us and our people ; and if they shall refuse to find such security, then to cause them to be safely kept in our prisons until they have found such security. In sessions. " We have also assigned and by these presents do assign you, or every two* or more of you, of whom the aforesaid A. B. C. D. &c. we will shall be one(a), our justices in and throughout the county aforesaid (as well within the liberties as without) to inquire by the oath of good and lawful men of our county aforesaid,, and by (a) The term quorum frequently occurs in Acts of parliament, and seems therefore to require explanation, although the distinction which it denotes no longer exists. It is taken from the above clause in the com- mission " of whom the aforesaid, &c. we will shall be one," (which in the ancient commission was expressed in Latin, thus, " quorum, fyc. unum esse volumust") and applied to the select number of the justices whom it was formerly usual to name in this part of the commission, those of the quorum having been chosen specially for their knowledge of the law ; but learning being now greatly advanced this distinction has fallen into disuse, and in the modern commissions all the justices are usually assigned to be of the quorum. 5 Burn 604 ; 1 Bl. Com. 351 ; Pye's Justice, Preface, p. 8, R. v. Forrest, 3 T. R, 40. The Commission. 11 all other lawful ways and means, by whom the truth of the matter may be better known of all and all man- ner of treasons(a), murders, manslaughters, burnings, unlawful assemblies, felonies, robberies, witchcrafts, en- chantments, sorceries, magic arts, trespasses, forestall- ings, regratings, engrossings, and extortions whatsoever, and of all and singular other misdeeds, and offences, of which the justices of our peace can or ought lawfully to inquire, by whomsoever and howsoever done or com- mitted, or that hereafter shall happen howsoever to be done, or attempted in the county aforesaid ; and also of all those who presume by unlawful assemblies, to be disturbers of our peace and of our people within our said county ; and also of all those who, in the county aforesaid, have either gone or ridden, or that hereafter shall presume to go or ride in companies with armed force against our peace, to the disturbance of our peace ; and also of all those who in like manner have lain in wait, or hereafter shall presume to lie in wait to maim or kill our people ; and also of all inholders, and of all and singular other persons who have offended or at- tempted, or hereafter shall presume to offend or attempt in the abuse of weights or measures, or in the sale of victuals against the form of the ordinances and Sta- tutes, or any of them, in that behalf made for the com- mon good of our kingdom of Ireland, and of our people thereof, in the county aforesaid ; as also of all sheriffs, bailiffs, seneschals, constables, gaolers, and other officers (a) In the usual form of the commission of the peace in England (see 3 Burn, 541) treason is not included amongst the offences into which the justices at their sessions are empowered to inquire ; but this apparent dis- tinction seems removed by a subsequent provision in the Irish commission which excepts treason from those offences which the justices are assigned to hear and determine (post, p. 12) j and in fact the sessions never decide upon offences of such moment, or even upon capital felonies. 2 Hale, 46 j 5 Burn, 606. 12 The Commission. whatsoever, who in the execution of their offices about the premises, or any of them, have unlawfully demeaned themselves, or that hereafter shall presume unlawfully to demean themselves, or have been, or hereafter shall be careless, remiss, or negligent in the county aforesaid ; and of all and singular articles and circumstances, and all other things whatsoever, by whomsoever, and how- soever done or perpetrated in the county aforesaid, or that shall hereafter there happen howsoever to be done or attempted in anywise, more fully concerning the truth of the premises, or any of them ; and to inspect all indictments whatsoever, so before you or any of you taken or to be taken, or made before others late jus- tices of the peace in the county aforesaid, and not as yet determined ; and to make and continue the process thereupon against all and singular persons so indicted, or which hereafter shall happen to be indicted before you, until they be apprehended, render themselves, or be outlawed ; and to hear and determine all and singular the matters aforesaid, (treason excepted,) according to the laws and Statutes of our kingdom of Ireland, as in the like case has been used, and ought to be done ; and to chastise and punish the said persons offending and every of them for their offences by fines, ran- soms, amerciaments, forfeitures, or otherwise as ought and hath been used to be done according to the laws and customs of our kingdom of Ireland, or the form of the ordinances or Statutes aforesaid ; and to discharge our gaols of all prisoners therein detained and imprisoned for felony(a). " Provided always, that if a case of difficulty upon the determination of any of the premises shall happen to (a) The usual form of the commission of the peace in England does not contain any clause giving power to the justices to discharge the gaol. See 3 Burn, 541 ; 5 Burn, 603, The Commission. arise before you or any two or more of you, then do not you or any two or more of you proceed to give judg- ment thereon, except it be in the presence of one of our justices of one or other bench, or one of the barons of our Exchequer, or of one of our counsel learned in the law. *' And we therefore command you and every of you that you diligently attend the keeping of the peace, or- dinances and Statutes, and all and singular other the premises ; and at certain days and places which you or any two or more of you, as aforesaid, shall in that be- half appoint, you make inquiries upon the premises ; and hear and determine all and singular the premises, (except as before excepted,) and perform and fulfil the same in form aforesaid, doing therein that which to justice appertained, according to the laws and customs of our said kingdom of Ireland, saving to us the amer- ciaments and other things to us thereof belonging. " We also command, by virtue of these presents, our sheriff of our county aforesaid, that at certain days and places which you or any two or more of you shall make known to him as aforesaid, he cause to come before you or any two or more of you as aforesaid, such and so many good and lawful men of his bailiwick, (as well with- in liberties as without,) by whom the truth of the mat- ter in the premises may be better known and inquired of. " Lastly, we have assigned you the aforesaid [here Custos Rotu- the name of the person appointed Custos Rotulorum] ' keeper of the rolls of our peace in our said county : and therefore you shall cause to be brought before you and your said companions, at the said days and places, the writs, precepts, processes, and indictments afore- said, that the same may be inspected, and by a due course of law determined, as aforesaid. Witness our Lieutenant General and General Governor of our said kingdom of Ireland, at Dublin, c." Leet and Parish Constables, CHAPTER II. OF THE OFFICE OF CONSTABLE. At common AT common law constables were appointed at the lnw courts leet, and when there was no leet at the sheriff's torn(). This mode of appointment, though entirely disused, has never been abolished. Parish consta- Previous to the passing of the Constabulary Acts, the office of parish constable in Ireland had also fallen into disuse, the reason of which appears to have been, that in the instances in which particular Statutes had named parish constables for the execution of process or for other purposes, their duties had been performed by the grand jury barony constables ; but, as there are some of those duties which the constabulary are not permitted to execute, it might now be occasionally ne- cessary to provide parish constables for such purposes. The office is recognize'd in several Irish Statutes(i), although there does not appear to be any legislative enactment specifically directing the mode of appointing constables for parishes, as distinguished from any other district, except in the city of Dublin. But by the pro- vision of Stat. 23 Geo. II. c. 14, a general power is given to the justices at their sessions to appoint consta- bles, (in default of the ancient mode of appointment at common law, by the court leet or sheriff's torn, which has now fallen into disuse,) for the several districts and divisions within the precincts of such torn or leet res- (a) 4 Instit. 265 j 1 Bac. Ab. Tit. Constable ; Burn, Tit. Leet, Torn, Constable. (6) 10 Hen. VII. c. 9 ; 1 Geo. II. c. 12, s. 3 #5 Geo. III. c. 14, s. 28 ; 49 Geo. III. c. 120, ss, 56 and 84 j 3 Geo. IV. c. 103, s.*31 ; and 6 Will. IV. c. 13, s. 45. High Constables. Constabulary. 15 pcctively ; and the provision of this Statute has not been repealed or superseded in this respect. So also, independently of any legislative enactment upon the subject, justices of peace seem to have had an acknow- ledged power, (which is exercised at the present day in England,) as incident to their office to appoint, at ses- sions, constables where necessary(a). It seems, there- fore, that the appointment of parish constables, when required, may be made by the justices at their sessions. In Dublin, however, Stats. 3 Geo. II. c. 13, ss.4and 5, and 33 Geo. III. c. 56, s. 1%, expressly provide for the appointment of these officers. Another ancient Statute, still unrepealed, 7 Geo. II. High consta- c. 12, had provided for the appointment of high consta- bles * bles by grand juries. The duties of these officers at the present day consist chiefly in the collection of grand jury cess and other matters unconnected with the juris- diction of justices of the peace. The last Statutes re- gulating their service and appointment are 6 & 7 Will. IV. c. 116, and 7 Will. IV. c. 2. The right to appoint each of these classes of officers Constabulary, is saved by Stat. 6 Will. IV. c. 13, by the provisions of which the permanent constabulary force in Ireland is at present regulated. By this Statute the former Acts(fi), in force at the time of its enactment, for the appointment of petty constables, (except the abovementioned Stat. 23 Geo. II. c. 14,) are repealed. Its provisions, as amended by 2 3 Viet. c. 75, are as follows(c) : (a) 1 Burn, 832. 2 Bac. Ab. 167. (6) So much of Stats. 32 Geo. III. c. 16; 54 Geo. III. c. 131 ; and 59 Geo. III. c. 98, as related to the appointment of constables, had been previously repealed by 3 Geo. IV. c. 103, s. 32. (c) The substance only is given of such sections as relate merely to the inspection and payment of the force, in which neither the justices nor con- stables can interfere. The other portions of the Act are given in full. The change of the names of the officers is noticed only when they first occur, and in the subsequent sections the old titles only are given as in the Act itself. 16 Constabulary Act. 5 &6 Will, IV. Act to consolidate the Laws relating to the Constabulary Force in Ireland. I. repeals the following Acts, 54 Geo. III. c. 131, ex- cept s. 20 ; 55 Geo. III. c. 13 ; 55 Geo. III. c. 158, except s. 7 ; 57 Geo. III. c. 22 ; so much of 59 Geo. III. c. 92, as gives power to justices of the peace to 6ne constables ; 3 Geo. IV. c. 103 ; 5 Geo. IV. c. 28 ; and 9 Geo. IV. c. 63. II. III. and IV. provide for the discontinuance of offi- cers appointed under the repealed Acts, and the transfer of the constables, &c., to the new force, upon taking the oath and obtaining the certificate required by this Act. Inspector gene- V. gives power to the Lord Lieutenant or other chief ties dCpU " governors, to appoint by warrant under their hand and seal, one inspector general, who must reside in Dublin, and has the su- perintendence of the whole force ; and to appoint, if necessary, two deputy inspectors general ; and clerks for the inspector's office. Inspectors and deputy inspectors general, on taking be- fore any two magistrates the oaths prescribed for a justice of the peace, become justices for every place throughout Ireland. Rules for go- VI. gives power to the inspector general, with the ap- veming the probation of the Lord Lieu tenant, (except as to the fiscal duties of receivers and paymasters,) to make all rules or regulations whatsoever, for the proper arrangement and good government of the constabulary force. Provincial in- VII. provides in the same manner for the appointment spectors. O f four county inspectors, [reduced to two by Stat. 2 & 3 Viet. c. 75, s. 10, and their name changed to provincial in- spectors, who become in like manner justices for the whole of Ireland, ib. s. 14.] Paymasters, VIII. provides for the appointment of paymasters, store- &c< keepers, and clerks. County inspec- IX. provides for the appointment, in the same manner, of sub inspectors, two for each of the counties of Cork, Tipperary, and Galway, and one for each other county in Ire- land, who become justices for their respective districts on tak- ing the proper oaths, in the same manner as other inspectors. Constabulary Acts. 17 [These officers are now called county inspectors. St. 2 & 3 Viet. c. 75, s. 11.] X. gives power to the Lord Lieutenant to remove any of Removal of these officers, and upon the occurrence of a vacancy in their officers - offices, either by death or otherwise, to appoint other fit persons to fill them. XI. And be it enacted, that it shall be lawful for the Lord Lord Lieute- ,. T . . nant may ap- Lieutenant or other chief governor or governors of Ireland point r_ su b.i n . to appoint from time to time at his will and pleasure, in and for specters] head f . , and other con- each county of a city and county of a town, except the said stableS) not ex . county of the city of Dublin, one chief constable, two head ceeding the constables, and any such number of constables and sub-consta- U^JJJentfoned 6 " bles, not exceeding one hundred, as may be deemed by him or them to be necessary and sufficient for the preservation of the peace therein ; and in and for each barony, half barony, or other division of a barony in each county at large, one chief constable, two head constables, and any number of constables and sub- constables, not exceeding sixteen; and from time to time, as to him or them shall seem fit, to dismiss any such chief or other constable or sub-constable, and upon any vacancy in any of the said offices by death, removal, or otherwise, to appoint some other fit and able person to fill the same ; and all such chief and other constables and sub-constables shall have all such powers, Powers and authorities, privileges, and advantages, and be liable to all such duti es. duties and responsibilities, as any constable duly appointed now has, or hereafter may have, either by the common law or by virtue of any Statute now or hereafter to be in force in Ireland. Proviso. That the Act shall not interfere with the establish- Additional con ments of additional police made in places declared at the time stables in places of the passing of the Act, (July, 1836,) to have been in a dis- jjEtt*?! turbed state. [Title of chief constable changed to that of sub- disturbed state, inspector by 2 & 3 Viet. c. 75, s. 11.] XII. Provided always, and be it enacted, that in any case Power to Lord in which seven or more magistrates of any county at large, at ^"j^ 3 ^ 1 *J any general or special sessions, held after notice given by the ditional number clerk of the peace, being a majority of the magistrates then jJ^JSJJJS^JJ present, shall certify to the Lord Lieutenant, or other chief go- magistrates of vernor or governors of Ireland, that the number of chief or D 18 Constabulary Acts. Power to Lord Lieutenant to appoint addi- tional consta- bles for any part of Ireland declared by proclamation to be in a dis- turbed state. Reserve force. Constabulary removed to de- pot for instruc- tion. other constables, or sub- constables, so appointed for such county is inadequate to the due execution of the law within the same, it shall be lawful for the Lord Lieutenant, or other chief gover- nor or governors of Ireland, to appoint such further number of chief and other constables and sub-constables for such county as may be so certified to be necessary, and to remove such chief and other constables and sub-constables from time to time. XIII. And be it enacted, that it shall and may be lawful to and for the Lord Lieutenant, or other chief governor or gover- nors of Ireland, by the advice of the privy council of Ireland, to declare by proclamation that any county, county of a city, or county of a town in Ireland, or any barony or baronies, half barony or half baronies in any county at large, or any district of less extent than any barony or half barony, to be therein specified, is, or are, in a state of disturbance, and requires, or require, an additional establishment of police ; and thereupon it shall and may be lawful to and for the Lord Lieutenant, or other chief governor or governors of Ireland, to appoint such and so many chief-constables, constables, and sub-constables as he or they shall think proper, not exceeding one such chief constable, two head constables, and fifty such constables or sub- consta- bles for any one barony or half barony, or for any county of a city or county of a town or district of less extent than any ba- rony or half barony, which may have been so declared to be in a state of disturbance. [St. 2 & 3 Viet. c. 75, s. 1, enacts that in addition to the constabulary force appointed under St. 6 & 7 Will. IV. c. 13, it shall and may be lawful for the Lord Lieutenant, or other chief governor or governors, to appoint two chief- constables, (to be styled sub-inspectors,) four head constables, and any number not exceeding '200 constables and sub- constables, who shall con- stitute a reserve force to be kept in a depot in or near the city of Dublin, and employed as occasion may require in aid of and in conjunction with the constabulary. Id. s. 5, gives power to the inspector general, subject to the control of the Lord Lieutenant, to order any portion of the constabulary force to repair for such time as directed to the de- pot, for the purpose of being trained and instructed. Constabulary Acts* 10 Id. s. 6, gives power to the inspector general, subject to the Force in depot control of the Lord Lieutenant, to order the whole or any ma y be onlered J to any part of part of the force in the depot to any place in Ireland for any Ireland. period of time ; and enacts that when removed by such order, they shall be in all respects in the same situation as if origi- nally appointed for the district to which they are removed.] XIV. And be it enacted, that no person shall be appointed Qualifications to be a chief or other constable or sub-constable under this Act ga^^rcon- unless he shall be of a sound constitution, able-bodied, and stables, under the age of forty years, able to read and write, of a good character for honesty, fidelity, and activity ; and that no person shall be appointed to be such chief or other constable or sub- constable who shall be a game-keeper, wood-ranger, tithe proc- tor, viewer of tithes, bailiff, sheriff's bailiff, or parish clerk, or - who shall be a hired servant in the employment of any person whomsoever, or who shall keep any house for the sale of beer, wine, or spiritous liquors by retail ; and if any person who shall be appointed to be a chief or other constable, or sub-constable, under this Act shall at any time after such his appointment be or become a game-keeper, wood-ranger, tithe proctor, viewer of tithes, bailiff, sheriff's bailiff, or parish clerk, or a hired servant, or shall act in any of the said capacities, or shall sell any beer, wine, or spirituous liquors by retail, such person shall be and become disabled from and incapable of acting, and shall forfeit his appointment as constable, and all authority and privilege, and all salary and gratuity payable to him as a chief or other constable or sub-constable under this Act. XV. And be it enacted, that every chief constable, head Constables to constable, constable, and sub-constable to be appointed under attend ma g is- this Act shall, when not engaged on actual duty, attend on the ral and petty justices of the peace at their several general or quarter sessions, sessions and and also at their petty sessions, which shall be held at the res- warrants, pective places where such chief or other constable or sub-con- stable may be stationed, and shall obey and execute all the lawful warrants, orders, and commands of such justices at such sessions in all cases, civil and criminal : Provided always, that But sha11 not no chief or other constable or sub-constable shall be employed ^ c^TtairfcLs under such authority to levy tithes or tithe composition, or to unless forcible resistance. 20 Constabtilary Acts. Constables to ce^^ directed. Endorsement of warrants, &c. stable [now*" sub-inspector.] Persons ap- pointed under tiiis Act to take an oath acting. Torm of oath. levy rents by distress, or to levy fines or penalties under any Act or Acts relating to the revenue in Ireland, nor to enforce any Acts relating to the laws for the preservation of game or fish, except only in cases where forcible resistance shall have been actually made and proved by information taken on oath. XVI. And be it enacted, that, except as aforesaid, every chief constable > head constable, constable, and sub-constable, appointed under this Act, shall within his jurisdiction execute all processes to him directed for levying the amount of any fine or fines which shall be imposed under any Act in force in Ire- land, or for levying the amount of any recognizance forfeited to his Majesty, his heirs and successors, or of any fines imposed on any jurors, witnesses, parties, or persons at any assizes or commission of oyer and terminer, or gaol delivery, or sessions of the peace ; and when any warrant, order, or command of any magistrate shall be delivered or given to any such head constable or sub-constable, he shall, if the time will permit, sllow or deliver the same to the chief-constable under whose immediate command such head constable or sub-constable shall tnen ^ e > and sucn chief- constable shall nominate and appoint by indorsement thereon such one or more of the constables un- der his orders, and such assistant or assistants to him or them as such chief constable shall think proper, to execute such war- rant, order, or command ; and every such constable whose name shall be so indorsed, and every such assistant as afore- said, shall have all and every the -same rights, powers, and au- thorities for and in the execution of every such warrant, order, or command as if the same had been originally directed to him or them expressly by name. XVII. And be it enacted, that no person appointed under Al . . , , tnis -^ ct to " e an ms pector general, deputy inspector general, county inspector, or sub-inspector, receiver, magistrate, pay. master, clerk, chief or other constable or sub-constable, shall be, except as hereinbefore provided, capable of holding the said office, or of acting in any way therein, until he shall take and subscribe the oath here following ; (that is to say,) " I A. B. do swear, that I will well and truly serve our Sovereign Lord the King in the office of [inspector general, de- Constabulary Acts. 21 puty inspector general, county inspector, or sub-inspector, re- ceiver, paymaster, clerk, magistrate, chief constable or head constable, or constable or sub- constable, as the case may be^] without favour or affection, malice or ill-will; that I will see and cause his Majesty's peace to be kept and preserved, and that I will prevent to the best of my power all offences against the same ; and that while I shall continue to hold the said office I will, to the best of my skill and knowledge, discharge all the duties thereof, in the execution of warrants and other- wise, faithfully according to law ; and that I do not now belong, and that I will not, while I shall hold the said office, join, sub- scribe, or belong to any political society whatsoever, or to any secret society whatsoever, unless to the society of freemasons. So help me God." And the said oath shall be administered, either at general or Oath, how to petty sessions, or otherwise, by any two magistrates, and shall be adminis- in all cases be subscribed by the person taking the same ; and the said oath shall be administered by any two magistrates, either in open sessions or otherwise ; and such magistrates shall forthwith give to the person taking the same a certificate thereof under his hand, such certificate to be forwarded to the chief secretary of the Lord Lieutenant, or the under secretary, or to such person as he may appoint. XVIII. And be it enacted, that no inspector general, de- inspector gene- puty inspector general, receiver, or county inspector, or magis- ral . &c - a P- trate, appointed by virtue of this Act, shall, during the conti- fh^Actrnouo nuance of such appointment, be capable of being elected or sit- sil in ting as a member of the House of Commons ; and that no inspector general, deputy inspector general, receiver, county to the consta- . , , . . bulary force to inspector, magistrate, sub-inspector, paymaster or clerk, chief voteatelec- or other constable, or sub-constable, or person belonging to the said constabulary force, or appointed by virtue of this Act, shall during the time that he shall continue in any such office, or within six calendar months after he shall have quitted the same, be capable of giving his vote for the election of a member to serve in Parliament for any county, city, borough, town, or place in Ireland, nor shall, by word, message, writing, or in any other manner, endeavour to persuade any elector to give or. 22 Constabulary Acts. dissuade any elector from giving- his vote for the choice of any person to be a member to serve in Parliament for any such county, city, borough, town, or place ; and if any such inspector general, deputy inspector general, receiver, county inspector, magistrate, sub-inspector, paymaster or clerk, chief or other constable or sub-constable, or person belonging to the said con- Penalty, stabulary force, shall offend therein, he shall forfeit the sum of one hundred pounds, to be recovered by any person who will sue for the same by action of debt, to be commenced within six Proviso calendar months after the commission of the offence : Provided always, that nothing in this enactment contained shall subject any such inspector general, deputy inspector general, receiver, county inspector, magistrate, sub-inspector, paymaster or clerk, chief or other constable or sub-constable, or person belonging to the said constabulary force or appointed under this Act, to any penalty for any act done by him at or concerning any of the said elections in the discharge of his official duty. Penalty not ex- XIX. And be it enacted, that if any chief or other consta- ceedmgomay ^ sub-constable shall neglect or refuse to obey and execute be imposed on * chief and other any warrant hereby directed to be by him executed, or shall be vtoTa^orfof^ S uilt y of an y ne S lect or violation of duty in his office, every duty. such chief or other constable shall forfeit and incur such penalty, not exceeding five pounds, as any two or more justices of the peace, after examination upon oath of one or more credible witness or witnesses^ or upon confession of the party, shall think proper to impose or inflict; and the amount of such penally shall and may be deducted from and out of any salary accruing due to such offender under this Act, upon a certificate thereof to be by the justices before whom he may be convicted trans- mitted to the paymaster of the county : Provided always, that it shall be lawful for the Lord Lieutenant, or other chief gover- nor or governors, to mitigate or remit any such penalty. Constables dis- XX. And be it enacted, that when any chief or other consta- missedtolosei ble or sub-constable shall be dismissed from or shall cease to their powers, . and deliver up no ^ an( ^ exercise his office, all powers and authorities vested in their arms, c. him as a constable shall immediately cease and determine to all intents and purposes whatever ; and if any constable or sub- constable shall not, within on c week after he shall be dismissed Constabulary Acts. 23 from or shall cease to hold and exercise his office, deliver over all and every the arms, ammunition, and accoutrements, horse, saddle, bridle, clothing, and other appointments whatsoever, which may have been supplied to him for the execution of such office, to the paymaster for the county, or to such person and at such time and place as shall be directed by the said pay- master, every person making default herein shall, upon convic- Penalty, tion for such offence before any two or more magistrates upon oath of one or more credible witness or witnesses, or upon his own confession, be subject and liable to imprisonment in the common gaol or house of correction for any such period not ex- ceeding the term of two calendar months, and kept to hard labour as such magistrates may think proper to direct ; and it shall be lawful for such magistrates, and they are hereby autho- rized and required to commit every such offender accordingly, and to issue their warrant to search for and seize, to the use of his Majesty, all and every the arms, ammunition, accoutre- ments, horses^ saddles, bridles, clothing, and other appointments whatsoever which shall not be so delivered over, wherever the same shall be found. XXI. And be it enacted, that no head constable, constable, Constables not or sub-constable to be appointed under this Act shall be at li- to resi S n with " berty to resign his office, or to withdraw himself from the du- ties thereof, unless expressly authorized so to do in writing by the county inspector or sub-inspector under whom he may be placed, or unless he shall give to such inspector one month's notice of his intention so to resign or withdraw ; and if any head constable, constable, or sub-constable shall so resign or withdraw himself without such previous permission or notice, he shall for such offence forfeit and pay a penalty not exceed- penalty, ing ten pounds upon conviction before two justices of the peace ; and it shall and may be lawful for such justices, in case such penalty shall not be paid, to commit such person to the com- mon gaol, or house of correction, for any period not exceeding three calendar months, and kept* to hard labour ; and all pe- * 5^ nalties so to be levied shall be paid to the paymaster or one of the paymasters of the county, to be applied and accounted for as hereinafter directed. 24 Constabulary Acts. [Provincial] XXII. And be it enacted, that all county inspectors, sub-in- spectors, con- spectors, chief and other constables, and sub-constables, appoint- stables, &c. to ed and acting under this Act, being on actual duty, and in proper be exempt from , to H Si dress or undress as such, and all prisoners under their charge, and all carriages and horses exclusively employed in carrying or conveying such persons or their prisoners or baggage, or re- turning therefrom, and not otherwise engaged or employed, shall be exempted from payment of any duties and tolls on pas- sing turnpike roads or bridges, otherwise demandable by virtue Penalty for de- of any Act already made or to be made ; and any toll collector ding toll. w j 1Q shzii demand and receive any duty or toll contrary to this Act, shall forfeit and pay any sum not exceeding ten pounds for every such offence, to be recovered by distress and sale of the goods and chattels of such person so offending, on conviction in a summary way before a justice of the peace, the same to be paid to the person from whom such duty or toll shall have been received, and to be applied as any penalties payable to any chief or other constable are directed by this Act to be applied. Inspectors, XXIII. And be it further enacted, that no inspector general, &c., not to . be liable to deputy inspector, receiver, paymaster, county inspector, sub- serve as church- inspector, chief or other constable, or sub-constable, appointed & c ' and acting under this Act, shall be liable to serve the office of churchwarden, parish overseer, or constable, or to serve as a juror in any case, civil or criminal, or to be chosen or balloted to serve in the militia, or subject to any fine, penalty, or punish- ment whatsoever for declining or refusing to serve in any such capacity. [By 2 & 3 Viet. c. 75, s. 22, they are further ineli- gible to be elected guardians of the poor.] Oaths may be XXIV. And be it further enacted, that it shall and may be administered on lawful to and for the inspector general, or deputy inspector ge- neral, or either of them, or any other person or persons to be nominated for the purpose from time to time by the Lord Lieu- tenant, or other chief governor, to examine on oath into the truth of any charges or complaint preferred against any person to be appointed under this Act, of any neglect or violation of Perjury. duty i* 1 his office, and to report thereon ; and any person who on any such inquiry, or on any other occasion on which an oath may be administered under this Act, shall give false evidence Constabulary Acts. or take a false oath, and be thereof duly convicted, shall be deemed guilty of wilful and corrupt perjury, and shall be liable to such pains and penalties as persons convicted of wilful and corrupt perjury are or may be subject and liable to. [By 2 & 3 Viet. c. 75. s. 24, witnesses on police inquiries are privileged Witnesses. from arrest while going and returning, and if they refuse to attend and be sworn, or give evidence, may be fined not exceed- ing 5, and imprisoned for two months in default of payment.] XXV. And be it further enacted, that if any person not ap- Penalty on un- pointed and acting under this Act, shall have in his or her pos- ^ wful posses- sion of arras, session any arms or ammunition, or any article of clothing, & c . supplied to accoutrements, or appointments, supplied to any person under constabulary, and on assum- this Act, and shall not be able satisfactorily to account for his j n g tne dress, or her possession thereof, or shall put on or assume the dress, name, &c. of ... constables, &c., name, designation, or description of any person or persons, or \Q or two of any class of persons, appointed under this Act, for the pur- months' impri- .... . sonment and pose of thereby obtaining admission into any house or other liard place, or of doing or procuring to be done any other Act which such person or persons so putting on or assuming such dress, name, designation, or description would not by law be entitled to do or procure to be done of his or their own authority, every such person so offending shall, in addition to any other punish- ment to which he or she may be liable for such offence, forfeit and pay for every such offence any sum not exceeding the sum of ten pounds, to be recovered by distress and sale of the goods and chattels of such offender on summary conviction before two justices of the peace, or in default of payment thereof shall be imprisoned for any period not exceeding two calendar months, and kept to hard labour ; such penalty to be paid to one of the county paymasters appointed under this Act, and by him paid over to the receiver, to be applied by him in aid of the police reward fund provided in and by this Act. XXVI. relates to the stamp duty payable by officers under former Acts when appointed to situations under this. XXVII. And be it enacted, that it shall and may be lawful Inspectors, &c. for the inspector general, subject to the direction and control of the said Lord Lieutenant, or other chief governor or governors, ties. from time to time, as may be deemed expedient, to order and E 26 Constabulary Acts. direct that every or any the inspectors, sub- inspectors, pay- masters, chief or other constables, or that the whole or any number of chief or other constables, or of sub-constables, of any county, barony, half barony, or other division of a barony, county of a city, county of a town, or town and liberties, shall go and repair to such place or places in any other county or counties, or in any county of a city or county of a town, or town and liberties, in Ireland, as shall be mentioned in such order, and shall remain there for such length of time, or remove to or remain at any other place or places in the same or any other county, city, or town for such time and times, and shall return to his or their original county, barony, half barony, and other division of a barony, city, or town at such time and times res- pectively, as shall be mentioned or directed in or by such order, or by any other order or orders which may from time to time be made by such inspector general, subject to the like direction and control; and that such inspectors, sub- inspectors, paymas- ters, chief and other constables, and sub-constables, when so removed, shall have the same rights, powers, and authorities, and be subject to the same rules, regulations, and orders, and be in all respects in the same situation in the county or other districts or places to which. -they shall be so removed, as if they had been originally appointed in and for such county or district. Their expenses XXVIII. provides that the expenses consequent on such b* the counT an or ^ er s ^ a ^ ^ e defrayed m tne same manner as if the con- to which they stabulary included in it had been originally appointed for the e removed. coun ty to which they are removed thereby, [But expenses of officers are to be deducted. St. 2 & 3 Viet. c. 75, s. 21.] Inspectors and [2 & 3 Viet. c. 75, s. 15. Whereas considerable inconvenience constables m hag ar j sen f rom t h e powers and authorities of sub-inspectors, chief Certain cases, r may act out of and other constables and sub-constables being limited to the their proper counties or places for which they are respectively appointed, be it therefore enacted, that in the case of any sudden or extraordi- nary disturbance of the public peace, and also wherever such disturbance is immediately apprehended, and also for the fresh pursuit of offenders, and also for the conveyance of prisoners, it shall and may be lawful for the sub-inspectors, (henceforth to be styled county inspectors,) chief constables, (henceforth to be Constabulary Acts. 27 styled sub-inspectors,) head or other constables, appointed in and for any county or place adjacent to the county or place in which such disturbance may arise, or be apprehended, or into which any such offender may escape, or any prisoner so by the warrant of any justice directed to be conveyed, (and whether they shall or shall not be lodged in such common station or barrack as hereinafter mentioned,) to act in such adjacent county or place for the suppression or prevention of such dis- turbance, or the apprehension of such offenders, or the convey- ance of such prisoner, and that they shall therein have the same rights, powers, and authorities, and be subject to the same rules, regulations, and orders, and be in all respects in the same situation as if appointed in and for such last mentioned county or place ; provided always that no such county inspector, sub- Provided they inspector, head or other constable, shall be absent from his f or more than proper county or place, more than five days without such order five days with- as by the said first recited Act, (6 Will. IV. c. 13,) the in- outan order ' spector general is authorized to make for the removal of the constabulary force appointed in and for any county or place to any other county or place ; and provided farther, that in case of any such temporary removal, not exceeding five days as aforesaid, the expenses thereby incurred shall be defrayed by Expenses pay- the county or place to or for which the sub-inspector, head or able by their proper county, other constable, or sub-constable so temporarily absent may belong, or have been appointed, in the same manner as if no such removal had taken place. Id. s. 16. And be it enacted, that, in any case where it shall Constabulary of be found convenient so to do, it shall and may be lawful for the conti ? uous counties may said inspector general, subject to the direction and control of be lodged in the Lord Lieutenant, or other chief governor or governors, to cor " mon bar ' direct that any officers and men belonging to the constabulary force established in any two or more contiguous counties or places, shall be lodged in a common station or barrack, situate in any one of such contiguous counties or places, so as such common station shall not be more than a mile distant from the boundary of any such county or place, and the officers and men so lodged in such common station or barrack, shall, in all places within the distance of a mile from such common station or bar- 28 Stipendiary Magistrates. rack, have all such other rights, powers, and authorities, and be subject to all such other rules, regulations, and orders of magistrates as if appointed for the county or place wherein or adjacent to which such common station may be situate ; and the expense of such common station shall be apportioned in such manner as the said Lord Lieutenant, or other chief gover- nor or governors, shall direct, among the said several adjoining counties or places ; and the said inspector general shall have regard to such apportionment of the said expenses in making out the certificate herein before mentioned, ascertaining the monies chargeable upon each such county or place respectively.] XXIX. regulates the amount of the salaries payable to per- sons appointed to offices under the Act. [Amended by 6 & 7 Will. IV. c. 36, and 2 & 3 Viet. c. 75, s. 12, 13.] XXX. provides that appointments in the constabulary shall not prevent the holders receiving half pay, unless it be so spe- cially provided in the Act under which they receive it. Power to Lord XXXI. And be it enacted, that in any case where it shall a ^ coresident a PP ear to the ^ord Lieutenant or other chief governor or gov- magistrates by ernors of Ireland, by reason of any county, or county of a city, warrant under Qr countv O f a town, or town and liberties, bein^ in a state of hand and seal. disturbance, or owing to th'e absence or non-residence of a ma- gistrate in any county, county of a city, county of a town, or town and liberties, or any district of any county, or for any other sufficient cause, to be expedient, it shall and may be lawful to and for the Lord Lieutenant, or other chief governor or governors of Ireland, by warrant under his or their hand and seal, to ap- point during his or their pleasure one or more persons for any county, or for any county of a city, or county of a town, to be magistrates for said county, county of a city, county of a town, or town and liberties, or for any part or district of any county, or for any district consisting of any parts of any two or more adjoin- ing counties, or for any one or more barony or baronies in any county, in Ireland, or for any district consisting of any county, and of a county of a city, or county of a town, town and liberties, or city and county, or any part or parts thereof respectively, and from time to time to dismiss or remove any such magistrate at his or their will and pleasure ; and every magistrate who Constabulary Acts. 29 shall be so appointed under this Act shall on his appointment forthwith take the oath by law required, and in such manner as such oaths are by law required to be taken by justices of the peace in Ireland, and he shall thereupon to all intents and purposes be and become a justice of the peace in and for the county or counties, or city or town, in and for which he shall be appointed to be such magistrate as aforesaid ; and also for each and every county at large, or county of a city, or county of a town, town and liberties, or city and county adjoining to or locally situate within such his proper county, city, or town, and shall have within such adjoining county, city, or town all the authority necessary for the due execution of the provisions of this Act. XXXII. Provided always, and be it enacted, that the Warrant to Lord Lieutenant, or other chief governor or governors of Ire- contain grounds of appointment, land shall, in every such warrant as aforesaid, state specifically and magistrates' the grounds of the appointment of the magistrate to whom it names to be shall relate, and shall cause the name of every such magistrate so appointed to be published in the next Dublin Gazette. XXXIII. Provided always, and be it enacted, that no per- Magistrates not son appointed to be a magistrate with a salary under this Act, t( V ? ny shall be capable of holding any other office under this Act. XXXIV. provides that every such magistrate shall have Salary of such salary as the Lord Lieutenant may appoint, but not ex- ma lstrates ceeding the rate of 4-00 per annum for the period for which he serves ; and an allowance for forage. XXXV. to XLIII. relate to the duties of the receiver and Payment of the fiscal arrangements as to the expenses of the force one and^tie"^/ half of which is paid out of the consolidated fund, and the receiver, other half by grand jury presentments off each county. As these sections concern only the officers of the treasury and grand jurors they are here omitted. [These sections are amended by 6 & 7 Will. IV. c. 36, and 2 & 3 Viet, c, 75, ss. 19,21.] XL1 V. And be it enacted, that if any question shall arise as Reputation to to the right of any magistrate, or of any inspector, sub-inspector, be e X idence of ' appointments, chief constable, or head constable, or sub-constable, to hold or execute any such office respectively, common reputation shall 30 Constabulary Acts. to all intents and purposes be deemed and held to be sufficient evidence of such right ; and it shall not be necessary to pro- duce any appointment, or any oath, affidavit, or other document or matter whatsoever, in proof of such right. This Act not to XLV. Provided always, and be it enacted, that nothing in constables "pa- ^is Act contained shall extend, or in anywise be deemed or rish or leet construed to extend, to repeal, affect, or take away the election or appointment of high constables by grand juries, for the pur- pose of collecting the sums presented by such grand juries, or of parish constables, or constables of any leet, in Ireland, or of petty constables of baronies or districts, by grand juries or by magistrates at sessions, or to take away or diminish or infringe the powers or authorities of any such constables in any respect whatever ; but no such constable shall be deemed to belong to the said constabulary force, nor as such be entitled to any pay- ment or salary under this Act. Superannuation XLVI. provides for raising a police superannuation fund fund> by deducting 2 per cent, per annum from the salaries of all the officers appointed under the Act, except the receiver and paymasters. When the sum thus raised is inadequate the defi- ciency is to be supplied one half by grand jury presentments, and the other half out of the consolidated fund. Power to Lord XLVII. gives the Lord Lieutenant power, on petition of Lieutenant to officer of the consta b u l a ry force, to direct that he shall be superannuate. y superannuated on a retiring allowance, according to the scale in the next section. XLVIII. specifies the rate at which superannuation allow- ances may be made. [St. 2 & 3 Viet. c. 75, s. 17. Superan- nuations may be forfeited by misconduct.] Fines on con- XLIX. And be it enacted, that all fines imposed on any ^nahLsVy- c *" e ^ or ot ^ er constable under this Act, and all penalties or able to the proportions of penalties and damages awarded to any chief or a^unVto^e" 1 otner consta ble or other person appointed under this Act by any called the "Po- justice or justices of the peace, on any summary conviction, as the P rosecutor of an y information or otherwise, shall be paid to the paymaster of each county, county of a city, or county of a town, in which such fine shall be imposed or such conviction shall be had, and shall be by such paymaster paid to the Constabulary Acts. 31 said receiver to be appointed under this Act in such manner as the said Lords Commissioners of the treasury shall from time to time direct, so as that the same may form a fund to be called the " Police Reward Fund," to be invested in government stock by and in the name of such receiver for the time being, and accumulate for the payment of such rewards, gratuities, boun- ties, pensions, or other allowances as the Lord Lieutenant, or other chief governor or governors of Ireland, may from time to time award or direct to be paid to any person or persons ap- pointed under this Act, or to the widows and families of any such person on his death ; and that it shall and may be lawful to and for the Lord Lieutenant, or other chief governor or governors of Ireland to direct, if he or they shall think fit, that any propor- tion not exceeding ten shillings in the year for every one hun- dred pounds of the salary of every person appointed under this Act, and so in proportion for any salary less than one hundred pounds, shall in addition to the deduction herein- before men- tioned of two pounds per centum per annum towards the for- mation of the said superannuation fund, be deducted yearly from such salaries, and added to the said reward fund, and form part thereof. L. Provided always, and be it enacted, that when any action For protection shall be brought against any constable for any act done in obedience to the warrant of any magistrate, such constable warrants. shall not be responsible for any irregularity in the issuing of such warrant, or for any want of jurisdiction in the magistrate issuing the same, and such constable may plead the general issue and give such warrant in evidence ; and upon producing such warrant, and proving that the signature thereto is the handwriting of the person whose name shall appear subscribed thereto, and that such person is reputed to be and acts as a ma- gistrate for such county or district (as the case may be), and that the act or acts complained of were done in obedience to such warrant, the jury who shall try the said issue shall find a verdict for such constable, and such constable shall recover his costs of suit. LI. And be it enacted, that each paymaster appointed under Each pay- this Act shall keep accounts of all sums received and of all pay- master to kee P Constabulary Acts. accounts of re- ceipts and pay- ments, to be submitted half- yearly to the special road to be trans- mitted to the inspector general. Sub-inspectors [now county inspectors] to transmit to inspector general, and to the secretary of the grand jury, monthly returns of the disposi- tion and num- ber of the con- stabulary force. To be laid be- fore the special road sessions. The certificate of charge to be prepared by the inspector gene- ral upon month- ly returns. ments and disbursements made on account of the constabulary force in each county or district for which he shall act ; and that such accounts shall be made up on the first day of every month, and transmitted to the said receiver; and a copy of each such monthly account shall on the same day be trans- mitted to the secretary of the grand jury for the county, county of a city, or county of a town, to which the same shall relate, and be by him laid before the magistrates at the special road sessions next preceding the next general assizes, who shall in- spect the same, and, if they shall so think fit, examine the said paymaster on oath as to the matter or thing contained in such account, and each such paymaster shall for that purpose attend such special road sessions, if so required, and submit to such examination ; and the chairman of such special road sessions shall transmit each such monthly account to the said inspector general, with such remarks thereon as such special road ses- sions shall think fit to make. [St. 2 & 3 Viet. c. 75, s. 19, accounts to be made up half yearly instead of monthly by paymasters.] LI I. And be it further enacted, that every sub-inspector appointed under this Act shall on the first day of every month transmit to the said inspector general a return, showing the actual disposition and number of the constabulary force of the county for which such sub-inspector shall act during the pre- ceding month, which return shall specify the changes made from time to time therein, as well in number as by name, and shall distinguish by number and name the members of the police force of other counties serving within any such county, county of a city, or county of a town, and shall also on the same day transmit to the secretary of the grand jury of the county, county of a city, or county of a town to which such return shall relate, a copy of the said return, to be laid before the magis- trates at their special road sessions next preceding the next general assizes, for examination. LIII. Provided always, and be it further enacted, that the inspector general to be appointed under this Act shall, in making out his certificate as herein-before provided of the monies chargeable under the provisions of this Act, on each Verbal Orders of Justices. 33 county, county of a city, county of a town, or part of a county, have regard to such monthly returns as aforesaid, and shall not include in his certificate the amount of any charge with respect to which any objection shall have been raised by the special road sessions of any county, county of a city, or county of a town, until, upon inquiry made by such inspector general, he shall be satisfied that such charge is not only reasonable, but has been properly made against the particular county, county of a city, or county of a town, the special road sessions of which shall have raised objection thereto. LIV. Provided further, and be it enacted, that the inspector Certain charges general shall not include in his certificate any charge which n , ot , tc ' . lr ?~ eluded in the shall have accrued subsequently to the date of the last monthly certificate. account which shall have been submitted to the magistrates of the county, county of a city, or county of a town to which such demand shall relate, at their general special road sessions next preceding the date of such certificate. LV. Provided always, and be it enacted, that only so much what to he of the county of Dublin as is not comprised within the police deemed the district of Dublin metropolis, as the same may be defined by any Act passed or to be passed, shall, for the purposes of this Act, be deemed to be the county of Dublin. LVI. contains provisions for the granting of houses or Houses and lands for the use of the constabulary. lands. LVII. directs that an account of the amount and disposi- Account for tion of the force shall be laid annually before parliament. parliament. LVIIT. Act may be amended, &c. The fifteenth section, it will be observed, directs obe- Observations dience to all the lawful warrants, orders, and commands of the justices, and the protection afforded by section 50 extends only to the written warrants of magistrates. Though the constable, therefore, is exonerated from liability for acts done in obedience to the warrant of a justice, and is not responsible though it be irregularly issued, or though the justice exceed his jurisdiction in granting it, yet he is equally liable with the justice for any wrongful Act done in execution of a mere verbal 34 Protection of Constables. command. When a question of the kind arose on the for- mer constabulary Act, 3 Geo. IV. c. 103, s. 9, which directs constables thereunder to attend the magistrates, and execute " all orders, warrants, and commands of such magistrates," but which did not contain the word, '" lawful," it was held that the clause extended only to written orders of the magistrates, and would not justify a constable in apprehending a person under a mere parol order of the justice(o), which he had no power to issue. Giving copy of Sect. 50 is copied verbatim from St. 3 Geo. IV. c. 103, required. s - 10. There is an older Statute unrepealed, 43 Geo. III. c. 143, s. 6, containing some similar provisions for indemnifying persons acting in execution of a warrant notwithstanding any defect in the jurisdiction of the justice who granted it, and directing that no action shall be brought against the constable for any Act done in obedience thereto, without a previous demand and refusal of the warrant : on which Statute it has been decided that if the constable refuse or neglect to comply with the demand made, within the six days allowed to him for that purpose, he may in the interval be sued as any common person, though he may regain the pro- tection of the Statute by furnishing a copy of the war- rant at any time before action brought, even after the expiration of the six days(i). Stats. 3 Geo. .IV. c. 103, s. 10, and 6 Will. IV. c. 13, s. 50, make no mention of any such previous demand of the warrant, but it has been doubted whether a constable appointed under 3 Geo. IV. c. 103, is not within the provision of 43 Geo. III. c. 143, so as to be disentitled to a verdict upon produc- tion of the warrant at his trial, by his non-compliance (a) Moriarty v. Blake, Exch. Ire. East, terra, 9 Geo. IV. ex ms. j 1 Law Rec. O. S. 343. ones v. Vaughan, 5 Ea. 445. Protection of Constables. 35 with the plaintiff's demand of a copy of it, before action brought(). The protection afforded is also confined by the words Protection con- fined to acts of the section, to acts done in obedience to the war- done bon&fide rant(fl) of the magistrate, and it is a question for the ^ n j r b a e n d * nce to jury whether the constable has acted bond fide in obe- dience to the warrant or not(c). It may be also proper to notice, that there is no clause in the Act protecting constables whose conduct has subjected them to a cri- minal prosecution. Beside the provisions in the constabulary Acts for Constables not ..'. ' . ! & 9 named in war- facilitatmg the execution of the officer s duties in rant acting out certain cases, out of the district for which he has been appointed(c?), constables are empowered, by Stat. 5 Geo. IV. c. 18, to execute warrants, although not directed to them by name, in like manner as if such warrants had been addressed to such constables by name, and though they shall not be constables for the place in which such warrants are executed ; pro- vided such place be within the jurisdiction of the jus- tice who has granted or indorsed them(tf). It may, however, be observed that this provision is peculiarly adapted to the office as it exists in England, where constables are appointed for particular divisions of counties, as parishes, towns, tithings, &c., and where, consequently, their authority does not extend beyond the limits of such precincts respectively^) ; but is less applicable to Ireland where constables are generally appointed for the county at large, and act for districts usually co-extensive with the jurisdiction of the jus* tices. (a) Barton v. Crawford, 1 Batty, 221. (6) 6 Will. IV. c. 13, s. 50. (c) Barton v. Crawford, ub. sup. (d) Ante, p. 26. et seq. (e) S. 6, see further post, ch, 3. (f) 1 Burn, Tit. Constable, passim. 36 Dublin Police. Dublin metro- The police district of Dublin metropolis is expressly excepted from the operation of 6 Will. IV. c. 13; its limits are defined by the schedule of Stat. 1 Viet, c. 25(a), and within them constables are appointed under the metropolitan police Acts(6). Metropolitan By the fourth section, however, of Stat. 6 & 7 Will. pohce. jy c 29, the Dublin police have authority to act not only within their own district, but also in the adjoining counties of Dublin, Wicklow, Kildare, and Meath ; and Warrantor by 2 & 3 Viet. c. 78, s. 16, any justice of the peace county justices. ma y i ssue n j s warrant to any superintendent, inspector, or serjeant, being a constable for the Dublin district, for the levy of penalties, or committal of offenders within the metropolitan district, as directed by the Act under which the penalty is imposed, or the offender committed, and there are special provisions for the disposal of the sums levied under such warrants. Special con- Besides these provisions for the appointment of stables. permanent constables, St. 2 & 3 Will. IV. c. 108, gives (a) The boundary line extends from old Merrion burying-ground along the boundary line of the barony of Rathdown to Donnybrook bridge on the Dodder ; along the left bank of the river to the junction of the baronies of Newcastle and Uppercross, near Cypress-grove ; along their boundary line to the third lock on the Grand Canal, near Golden-bridge j in a direct line thence to the bridge of Chapelizod ; along the left bank thence to the ferry at Knockmaroon hill ; thence on the line of road over the hill to the Knock- maroon gate of the Phcenix Park ; thence by the Park wall to Ashtown- lodge ; thence by the direct road over Longford-bridge on the Royal Canal to the Tolka river j along the river to Annesley-bridge j by the sea line to the light-house on the North-wall ; in a direct line to the light-house on the South-wall, and by low water mark again to old Merrion. But by 2 & 3 Viet. c. 78, s. 14, the Lord Lieutenant has power to add to this district any parish within eight miles of Dublin Castle, or four miles of the Liffey or Dublin bay. (6) The Statutes relating to this force are 48 Geo. III. c. 140 ; 5 Geo. IV. c. 102; 6 & 7 Will. IV. c. 29; 1 Viet. c. 25 ; and 2 & 3 Viet, c. 78. Special Constables. 37 power to justices of the peace to appoint special con- stables on extraordinay occasions. The provisions of this Act are as follows: Act to Amend the Laws relating to the Appointment of Special Constables. Whereas, it is expedient to amend the laws in Ireland re- Where tumult . . or riot, &c. has lative to the appointment of special constables, and to make taken plaC6) or other provisions for the better preservation of the public peace may be appre- in that part of the United Kingdom : be it therefore enacted, empowereTtT 5 that in all cases where it shall be made to appear to any two or appoint special more justices of the peace of any county, riding, county of a c city, county of a town, or place in Ireland, upon the oath of any credible witness, that any tumult, affray, riot, or felony has taken place, or may be reasonably apprehended, in any parish, townland, or place situate within the jurisdiction of such jus- tices, and such justices shall be of opinion that the ordinary police or constabulary or other force, or officers of justice, con- stituted and established therein, are not sufficient for the pre- servation of the peace, and for the protection of the inhabitants and the security of the property in any such place as aforesaid, then and in every such case such justices are hereby author- ized to nominate and appoint, by precept in writing under their hands, so many as they shall think fit, of the householders or other persons (not legally exempt from serving the office of constable) residing in such parish, townland, or place as afore- said, or the neighbourhood thereof, to act as special constables for such time and in such manner as to the same justices res- pectively shall seem fit and necessary, for the preservation of the public peace and for* the protection of the inhabitants and the security of property in such parish, townland, or place ; Justices to ad- and the justices of the peace who shall appoint any special con- ^^^^ stables by virtue of this Act, or any one of them, or any other pointed the justice of the peace acting for the same limits, are and is following oatb * hereby authorized to administer to every person so appointed the following oath : (that is to say,) 38 Special Constables. Oath. " I A. B. do swear, that I will well and truly serve our sovereign lord the King in the office of special constable for the parish [or townland or district] of without favour or affection, malice or ill-will, and that I will to the best of my power cause the peace to be kept and preserved, and prevent all offences against the persons and properties of his majesty's sub- jects ; and that while I continue to hold the said office I will to the best of my skill and knowledge discharge all the duties thereof faithfully according to law. So help me GOD." Notice of such Provided always, that]whenever it shall be deemed necessary nltted to nom * nate an( ^ a PPi nt suc h special constables as aforesaid, to Lord Lieu- notice of such nomination and appointment, and of the circum- stances which have rendered such nomination and appointment expedient, shall be forthwith transmitted by the justices making such nomination and appointment to the Lord Lieutenant, or other chief governor or governors of Ireland, and to the lieu- tenant of the county or place. Lord Lieu- ** And ^ e ^ f urtner enacted, that in any case in which tenant may any number of the householders and other persons not legally exempTby law e^ 111 ? 1 ^ rom serving the office of constable, shall have been ap- to act as special pointed by the justices in manner aforesaid to act as special constables for any parish,' townland, or place as aforesaid, it shall be lawful for the Lord Lieutenant, or other chief governor or governors of Ireland, on the representation of any two jus- tices of the peace, to order that the persons exempt by law from serving as special constables in such parish, townland, or place, or the neighbourhood thereof, shall, notwithstanding such exemption, be appointed and sworn in to act as special Time of service constables is if they were not by law exempt ; and such persons limited. shall accordingly be appointed and sworn in manner afore- said, and shall be liable to act for two calendar months only. Lord Lieu- III. And be it enacted, that it shall be lawful for the Lord tenant may Lieutenant, or other chief governor or governors of Ireland, to constables to give direction to the lieutenant of any county or place to norni- be appointed t ^ appoint, and to cause to be sworn, special constables throughout any county without throughout the whole of such county or place, or any portion exemption. Special Constables. 39 thereof, of whatever size or denomination, and to signify, if he or they shall see fit, that no person shall be excused from being so appointed and sworn in by reason of any exemption : pro- vided always, that the persons so appointed and sworn in, whe- Period of ther having cause of exemption or not, shall only be called upon to act for three calendar months. IV. And be it enacted, that the justices of the peace who Justices? to shall have appointed any special constables under this Act, or J^^^tion* any two of them, or the justices acting within the limits where- respecting spe- in such special constables shall have been called out, at the cia j constables, and to remove special sessions of such last mentioned justices, or the major individuals for part of such last mentioned justices at such special session, misconduct. shall have power to make such orders and regulations as may from time to time be necessary and expedient for rendering such special constables more efficient for the preservation of the public peace, and shall also have power to remove any such special constable from his office for any misconduct or neglect of duty therein. V. And be it enacted, that every special constable appointed Special con- under this Act shall, not only within the parish, townland, or stables to have place for which he shall have been appointed, but also through- & c . pertaining out the entire jurisdiction of the justices so appointing him, to the office of constable, have, exercise, and enjoy all such powers, authorities, rights, privileges, advantages, and immunites, and be liable to all such duties and responsibilities, as any constable duly appointed now has within his constablewick by virtue of the common law of this realm, or any Statute or Statutes. VI. And be it enacted, that where any special constables Justices may appointed under this Act shall be serving within any county, order s P ecial and two or more justices of the peace of any adjoining county act in any ad- shall make it appear to the satisfaction of any two or more jus- J oinin & count y- tices of the peace acting for the limits wherein such special constables are serving, that any extraordinary circumstances exist which would render it expedient that such special con- stables should act in such adjoining county, then and in every such case the said last-mentioned justices are hereby authorized (if they shall think fit) to order all or any of the said special constables to act in such adjoining county, in such manner as 40 Special Constables. Penalty on per- son appointed refusing to take the oath, or attend "^ t0 required. Penalty on per- upon and re- fusing to serve, or disobeying orders. " to the said last mentioned justices shall seem meet ; and every such special constable, during- the time that he shall so act in such adjoining county, shall have, exercise, and enjoy all such powers, authorities, rights, privileges, advantages, and immuni- ties, and be liable to all such duties and responsibilities, as if he were acting within the parish, townland, or place for which he was originally appointed. VII. And be it enacted, that if any person, being appointed & spec j a i consta ble as aforesaid, shall refuse to take the oath r t hereinbefore mentioned, when thereunto required by the jus- t ' ces ^ tlie P eace so a PP omtm g him, or by any other two jus- tices of the peace acting within the same limits, he shall be liable to be convicted thereof forthwith before the said justices so requiring him, and to forfeit and pay such sum of money not exceeding five pounds as to the said justices so requiring him shall seem meet ; and if any person, being appointed a special constable as aforesaid, shall neglect or refuse to appear at the time and place for which he shall be summoned for the purpose of taking the said oath, he shall be liable to be con- victed thereof forthwith before the justices so appointing him, or before any other two justices of the peace acting within the same limits, and to forfeit and pay such sum of money, not exceeding five pounds, as to the convicting justices shall seem meet, unless such person shall prove to the satisfaction of the said justices, that he was prevented by sickness or such other unavoidable accident as shall in the judgment of the said jus- tices be a sufficient excuse. VIII. And be it enacted, that if any person, being ap- P ^ 11 * 60 * a s P ec i^ constable as aforesaid, and being called upon to serve as such special constable as aforesaid, shall neglect or re fuse to serve as such special constable, or to obey such lawful orders and directions as may be given to him for the perform- ance of the duties of his office, every person so offending shall, on conviction thereof before any two justices of the peace, forfeit and pay for every such neglect or refusal such sum of money, not exceeding five pounds, as to the said justices shall seem meet, unless such person shall prove to the satisfaction of the said justices that he was prevented by sickness or such ial Constables. 4i other unavoidable accident as shall in the judgment of the said justices be a sufficient excuse. IX. And be it enacted, that the justices who shall have ap- Justices may pointed any special constables under this Act are hereby em- J^ t h r e de " powered, or the justices acting for the limits within which such service of spe- special constables shall have been called out, at a special ses- C!al constables sion to be held for that purpose, or the major part of such last- mentioned justices at such special session, are hereby empowered to suspend or determine the services of any or all of the special constables so called out, as to the said justices respectively shall seem meet ; and notice of such suspension or determina- i n either case tion of the services of any or all of the said special constables notice f be transmitted to shall be forthwith transmitted by such respective justices to chief secretary the chief secretary of the Lord Lieutenant, or other chief gov- of Lord Lieu ' ernor or governors of Ireland, or his under secretary, and also to the lieutenant of the county. X. And be it enacted, that every such special constable Special con- shall, within one week after the expiration of his office, or after stables after expiration of he shall cease to hold and exercise the same pursuant to this service, to Act, deliver over to his successor, (if any such shall have been deliver U P . . staves, wea- appomted,) pr otherwise to such person and at such time and pons , & c . on place as may oe directed by any justice of the peace acting for P ain of penalty. the limits within which such special constable may have been called out, every staff, weapon, and other articles which shall have been provided for such special constable under this Act ; and if any special constable shall omit or refuse so to do, he shall, on conviction thereof before two justices of the peace, forfeit and pay for every such offence such sum of money, not exceeding two pounds, as to the convicting justices shall seem meet. XT. And be it enacted, that if any person shall assault or Penalty on resist any constable appointed by virtue of this Act whilst in assaultin g or ,i .. -.. n* resisting a con- the execution of his office, or shall promote or encourage any stable on duty. other person so to do, every such person shall, on conviction thereof before two justices of the peace, forfeit and pay for such offence any sum not exceeding twenty pounds, or shall be liable to such other punishment, upon conviction on any in- dictment or information for such offence, as any persons are by 42 Special Constables. law liable to for assaulting any constable in the execution of the duties of his office. Justices may XII. And be it enacted, that the justices of the peace acting- ablealfowances ** or the ^ m ^ ts w i tnin which any such special constable shall have and expenses been called out to serve, at a special session to be held for that s eciaf'con- P ur P ose > or tne niajor part of the justices at such special ses- stables, by sion, are hereby empowered to order from time to time such order on county reasona ki e allowances for their trouble, loss of time, and ex- treasurer. penses, to be paid to such special constable who shall have so served or be then serving, as to the said justices or such major part of them shall seem proper ; and the said justices, or such major part of them, may also order the payment of such ex- penses as may have been incurred in providing staves or other necessary articles for such special constables ; and the said justices shall make such order for the payment of such allow- ances and expenses upon the treasurer of the county, county of a city, county of a town, within or within any part of which such special constables may have served, who is hereby required to pay the same out of any public money which shall then be in his hands ; and the said treasurer shall be allowed all such payments in his accounts. Grand juries to XIII. And be it enacted, that it shall and may be lawful present such f or t k e g ran( ] j urv O f t h e county, county of a city, or county of sums as shall /' ' be ordered a town to which such order shall relate, and each such grand under this Act. j urv j s hereby required, to present to be raised off such county, county of a city, or county of a town, or any barony, half- barony, townland, or other division or denomination of land within which such special constables may have served, the amount of all sums so ordered to be paid under the authority of this Act. Justices of XIV. And be it enacted, that the justices of the peace as- CG ma j ecial sem ^ e ^ at an y special session for any of the purposes men- sessions from tioned in this Act, shall have power to adjourn the same from time to time. t j me to time ag t k e y ^jj think proper ; and that every special session which shall have been actually holden for any of the purposes mentioned in this Act, shall be deemed and taken to have been legally holden, until the contrary shall have been proved. Special Constables. 43 XV. Aud be it enacted, that the prosecution of every of- Prosecution of fence punishable upon summary conviction by virtue of this g u ^|ry con- Act, shall be commenced within two calendar months after the viction and commission of the offence ; and that every penalty and forfei- ' S P ^^ ture for any offence against this Act shall be paid to such hos- pital, infirmary, or other charitable institution situate within the limits of the jurisdiction of the convicting justices, as such convicting justices may direct ; and no person shall by reason of the application of any such penalty or forfeiture as aforesaid, be deemed an incompetent witness in proof of any offence against this Act. XVI. And be it enacted, that the justices of the peace by Recovery of whom any person shall be summarily convicted and adjudged P enalties - to pay any sum of money for any offence against this Act, may adjudge that such person shall pay the same either immediately or within such period as the said justices shall think fit ; and in case such sum of money shall not be paid at the time so ap- pointed, the same shall be levied by distress and sale of the goods and chattels of the offender, together with reasonable charges for such distress ; and for want of sufficient distress such offender shall be imprisoned in the common gaol or house of correction, as to the convicting justices shall seem meet, for any term not exceeding one calendar month when the sum to be paid shall not exceed five pounds, and for any term not exceeding two calendar months in any other case, the imprison- ment to cease in each of the cases aforesaid upon payment of the sum due. XVII. And be it enacted, that the justices of the peace Form of con- before whom any person shall be summarily convicted for any vlcuon * offence against this Act, may cause the conviction to be drawn up in the following form of words, or to the like effect : (that is to say,) ^BE it remembered that on the day of to wit. J in the year of our Lord at in the county of A. E. is convicted before us, /. P. and J. /. P., two of his Majesty's justices of the peace for the said county, for that he the said A. E. did [here specify the offence, and the time and place when and Special Constables. Convictions not to be quashed for want of form. Limiting this Act. Act not to abridge the powers of justices. where the same was committed, as the case may be"] ; and we do adjudge the said A. E. shall for the said offence forfeit the sum of and shall pay the same immediately [or, shall pay the same on or before the day of ] to C. D. being [the treasurer, governor, or other officer, as the case may be, administering the funds of the hospital, infirmary, or other charitable institution to which such fine may be given, to be by him applied to the use of- such hos- pital, infirmary, or other institution, as may happen."] Given under our hands the day and year first above men- tioned. J. P. $ J. J. P." XVIII. And be it enacted, that no conviction for any offence against this Act shall be quashed for want of form, or be removed by certiorari or otherwise into any of his Majesty's superior courts of record ; and that no warrant of commitment shall be held void by reason of any defect therein, provided it be therein alleged that it is founded on a conviction, and there be a good and valid conviction to sustain the same ; and that where any distress shall be made for levying any money by virtue of this Act, the distress itself shall not be deemed un- lawful, nor the party making the same be deemed a trespasser, on account of any defect or want of form in the summons, con- viction, warrant of distress, or other proceedings relating there- to ; nor shall the party distraining be deemed a trespasser ab initio on account of any irregularity afterwards committed by him, but the person aggrieved by such irregularity may recover full satisfaction for the special damage (if any) in an action upon the case. XIX. contains the usual provisions for the protection of per- sons acting in execution of the Statute. XX. repeals Stat. 1 Geo. IV. c. 37, as to Ireland. XXI. Nothing in this Act contained shall extend to Eng- land or Scotland. XXII. Provided always, and be it enacted, that nothing in this Act contained shall be construed to abridge any powers for preserving the public peace, whether by appointing con- stables or otherwise, which any justice or justices of the peace had by law, or by virtue of any Statute or Statutes, before the Persons exempt from serving. 45 passing of the said herein- before recited Act of the first year of the reign of King George the Fourth. In the police district of Dublin metropolis, power is special con- given by 5 Geo. IV. c. 102, s. 14, to three divisional stables in justices, of whom one shall be of the Castle division, to appoint special constables in cases of actual tumult, riot, or felony, or upon reasonable apprehension there- of, grounded upon information on oath, and if the ex- igency of the case shall, in their judgment, so require ; such persons to take the oath prescribed by 48 Geo. III. c. 140, and to act for the time limited by such justices ; but without any emolument, fee, or reward whatsoever. In the execution of warrants, the magistrate may au- Special con- thorize any person, (except the party interested,) to act as *f^ /[ ie p s a /" his special constable, but cannot compel him to do so(a). In some instances, also, the appointment of special constables is authorized for the purpose of carrying into effect the provisions of particular Statutes ; as by the Act for raising and training the militia, 49 Geo. III. c. 120, s. 86, and by 1 Geo. IV. c. 1 1, s. 22, and 4 Geo. IV. c. 55, s. 66, relating to the election of members of parliament. So by 6 & 7 Will. IV. c. 117, s. 59, con- stables may be appointed by commissioners for Kings- town harbour. Beside the disqualifications mentioned in the Statutes Exemptions. providing for the appointment of constables, the fol- lowing classes of persons are exempted from serving this office: officers of the excise by Stat. 7 & 8 Geo. IV. Excise and c. 53, s. 11 j and of the customs by Stat. 3 & 4 Will, customs. IV. c. 53, s. 12 ; teachers and preachers in holy orders Preachers, or pretended holy orders, on subscribing and taking the oath prescribed in 6 Geo. I. c. 5 ; and by the same Act dissenters on appointing sufficient deputies; foreign settlers who have been naturalized by 19 & 20 Geo. III. Settlers, (A) Post, Tt. II. ch. 3. 46 Persons exempt from serving. c. 29, s. (); Serjeants, corporals, and drummers in Militia. the militia while serving therein by 49 Geo. III. c. 120, Attorneys, bar- s. 29 ; attorneys and other officers of the superior members^f courts being bound to attend them personally are also parliament. exempted, and for the like reasons it has been taken for granted, that practising barristers, and servants of members of parliament have the same privilege, although there do not appear to have been any resolutions to this purpose(&). On similar grounds it has been de- Aldermen, cided that an alderman in London is exempt, as he is bound to be present in the city for the good govern- ment of it(c) ; and the same reasons appear to apply to the case of an alderman of any other city or borough. Surgeons. Surgeons in London, by the provisions of particular Sta- tutes, are exempted, and by the equity of these Statutes, and the custom of the realm, in England all surgeons have been allowed the like privilege(J) ; but it has not Physicians and been extended to practising physicians : if, however, a gentlemen. , . . , r .. , , practising physician, or gentleman of quality be chosen constable of a town, which has sufficient persons besides to execute this office, and no special custom concerning it, perhaps he may be relieved by the King's Bench (e). Public-house It is said the keeper of a public house ought not to be firm P persons. 1 "" appointed(/) ; and if an infirm or very ignorant person be made constable, he may be discharged and an abler appointed in his stead (g). The exemptions thus enu- merated are considered of importance in England, where it frequently happens that persons of substance and in various active occupations are chosen to serve this office, but are rarely claimed in Ireland where, except in the appointment of special constables, an op- portunity seldom occurs of bringing them forward. (a) See R. v. De Meirre, 5 Bur. 2790. (6) 2 Hawk, c. 10, s. 39. (cVCro. Car. 585. (d) 2 Hawk, c. 10, s. 42, 43 j R. v. Pond, Com. 312. () 2 Hawk, c. 10, s. 41. (/) 6 Mod. 42 j 1 Ld. Hay, 138. (g) Dalt. c. 38. Duties of Justices when imperative. 47 CHAPTER III. OF THE JURISDICTION OF JUSTICES OF THE PEACE OUT OF SESSIONS. THE jurisdiction of justices of the peace out of their Jurisdiction of , , . , , ., . justices. general sessions is exercised in the arrest, bail, commit- ment, or discharge of persons charged with offences, in taking securities for the peace, or in the execution of the summary and other powers committed to them expressly by Statute(a). The extent of the authority thus con- fided to them is confined I. to certain local limits, sub- ject however to be further restricted II. by some cir- cumstances connected with the justices themselves, or III. by some circumstance connected with the subject on which their jurisdiction is exercised. Before considering the circumstances by which the Where inter- jurisdiction of justices is thus ascertained, it may be imperative, ' proper to premise, that where magistrates are called and where . i . / . * .,,... discretionary. upon to take cognizance of a matter within their juris- diction, though their duty is sometimes discretionary, it is in most cases imperative(6), and generally where a Statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall, and the justices are compellable to act under it(c). But the words are imperative only where the clause in the Statute is for the public benefit(d), nor are they to be so construed where from other parts of (a) See the assignment of the commission, ante, p. 10. (6) 3 Burn, 560. (c) R. v. Barlow, 2 Salk. 609 j 5 B. and Al. 69 j De Beauvoir v. Welsh, 1 B. and C. 278 ; R. v. Newton, 1 Str. 413. (d) R. v. Flockwood Indosure Co. 2 Chit. 251 ; R. v. Steward of Ha- vering Atte-bower, 5 B. and Aid. 691 ; 2 D. and R. 176. n. 48 Duties of Justices when imperative. How far dis- cretionary. Not compel- lable to act where there is a reasonable doubt of his jurisdiction. the Act it appears the legislature intended otherwise(a). Even where the duty of a magistrate is discretionary he is not at liberty to act according to his own private opinion or caprice, but must be guided by the rules of law and reason. " The discretion to be exercised by a court or judge is not a wild but a sound discretion, and must be confined within those limits within which an honest man competent to discharge the duties of his office ought to confine himself "(6). It is, however, a principle recognized in numerous cases, that where a magistrate entertains a reasonable doubt of his jurisdiction, he will not be compelled to do an act which may, perhaps, subject him to an ac- tion^). And the Court of King's Bench is, it is said, generally unwilling to interfere when magistrates act to the best of their judgment, and without any improper motive(c?). But magistrates will not be permitted to avoid the responsibility of acting for mere triffling or formal objections; and in a late case the Court of Queen's Bench made the order for a mandamus abso- lute in the first instance against the magistrates at petty sessions who had refused to hear an excise information until they should have the opinion of the law officers of the crown upon an objection made by the defendant's attorney ; the objection being that the jurisdiction of the magistrates was taken away by a notice of appeal to the quarter sessions (which could not be proceeded with) against a dismissal of a former information for the same cause having been served by the relator(e). (a) De Beauvoir v. Welsh, ub.sup. ; and cases cited 5 Burn, 870. (&) Per Lord Kenyon in Wilson v. Rastal, 4 T. R. 737 ; Rook's case, 5 Rep. 100 ; R. v. Williams, 4 Burr. 2539. (c) R. v. Broderip, 7 D. and R. 861 ; R. v. Buckinghamshire Justices, 2 D. and R. 689 ; 5 B. and C. 239, 485. (d) 3 Burn, 560, 573. (e) R. v. Magistrates of Gort, 1 Jeb, and Sy. 388. Local Limits of Jurisdiction. 49 I. With respect to the local extent of a justice's ju- risdiction where the authority of magistrates is con- O f justices. fined to limits having particular privileges, as cities or boroughs, or when justices are appointed for particu- lar purposes by Act of parliament, as inspectors and A c t O f prTia" magistrates under the Constabulary Acts, the local meat. boundaries of their jurisdiction depend upon the cir- cumstances of their appointment, and extend generally to all places within some defined district ; and where the appointment is made by commission from the crown, By commission. the jurisdiction of justices of the peace thereunder is limited generally to the respective counties for which they are in commission. These restrictions most usually require both that the magistrate should be resident at the time of acting, and that the circumstance which occasions the exercise of his authority should have arisen, within the district of his jurisdiction. Either, or both, of these requisites are, however, occasionally dispensed with. With respect to the residence of the magistrate, it Local limits of . ,.-,, /%, i . . i jurisdiction as is laid down by one of the early writers upon this sub- reg ards resi- ject, that a justice when out of his county cannot inter- denceof J. P. meddle to take a recognizance or examination, or otherwise to exercise his authority in any matter that shall happen within the county for which he is in com- mission ; for that being out of the county for which he is in commission he is but a private man(a). A distinc- tion is, however, taken both by Lord Hale and Ser- jeant Hawkins between compulsory and voluntary acts, where such acts are merely ministerial ; and it seems to be now held that mere ministerial acts, voluntarily done, may be performed by justices out of their county. But Recognizances it does not appear to be clearly settled whether the t^ons^olTnTari. taking of recognizances and informations, though vo- ! y g ven out of luntarily entered into or given, be such an act as may () Dalt. c. 6, s. 7. H 50 Residence of Magistrate. be performed out of the county, although the authori- ties, seem to incline in favour of its validity. Lord Hale, in a passage of his treatise in which he first in- stances the taking of recognizances and examinations as amongst those judicial acts which, he says, a justice cannot perform out of his county, adds, "yet qu&re as to the taking of recognizances and examinations, for they are acts of voluntary jurisdiction, and therefore may it seems be done out of the county"(a) ; and in another passage he says more positively that they may(&). The language of Serjeant Hawkins upon this subject is, " it is said that recognizances and examinations voluntarily taken before justices out of their county are good"(c) ; and this opinion seems in some measure supported by a case in which it was decided, that the examinations of a party robbed, as to his knowledge of the felons, (as required by 10 & 11 Car. I. c. 13, s. 9,) might be taken by a justice of the county in which the robbery was committed, though not at the time resident in the county : in this case it was said to be the usual course for justices to take informations against offenders in any place out of the county, to prove offences in the county where they are committed, and that recogni- zances to prosecute taken by justices out of the county, by voluntary assent of the parties, are usual, and bind well enough (d). In proceedings Mr. Paley observes, that it must, however, be con- under penal sidered doubtful whether a magistrate can, out of the Statutes. county, properly receive any information upon oath to found a subsequent proceeding before himself of a penal nature(e) ; and it is clear that a justice, when out (a) 2 Hale, 50, 51. (6) 1 Hale, 581. (c) 2 Haw. c. 8, s. 29. (v. 2, p. 48.) (rf) Helier's case, Cro. Car. 211 } see also 3 Burn, 553, and Pal. 16. (e) Pal. 17. Residence of Magistrate. 51 ofhis county, cannot by his warrant cause a person Judicial or * compulsory from such a county to be brought before him where he acts. is, or imprison a party for not giving a recognizance, or commit for a crime, and that any coercive or judicial act will be altogether void, unless done' within the county(c). But by Stat. 59 Geo. III. c. 92, ss. 1, 2, passed to Justices acting _. for two or more enable justices to act in certain cases out of the limits counties, being of the counties in which they actually are, it is provided ^ s oi g t un " that any justice of the peace acting as such for any two respecting of- or more counties, being adjoining counties, (such jus- [^none 1 1 " tice being at the time resident in one of them,) may act when resident as such in all matters and things whatsoever, concern- ing or in anywise relating to any or either of said coun- ties; and all acts of such justice, and of any constable or other officer in obedience thereto, shall be as valid as if done in the county to which they more particu- larly relate. And all constables of the county to which such Acts relate are required to obey the warrants and orders of such justices, provided such warrants, &c. be directed and given in the first instance to such con- stables. And it shall be lawful for any constable or other person apprehending any offender in any county to convey him to any justice for said county, resident in such adjoining county, and so to act in all things as if said justice were resident within his proper county. And by sect. 4, it is further provided, that any jus- Justices may tice for any county at large, may act as such within any \^ r * " { J h city or town being a county of itself, and situate within, resident within surrounded by, or adjoining to such county at large : Actions. 6 provided such justice shall not have power to act in any matter arising within such city or town, unless he be a justice for such city or town. This provision ex- tends only to separate jurisdictions which are counties (a) Pal. ubi sup. and Dalt. c. 6. s. 7 ; 2 Hale, 50, 51. 5^ Residence of Magistrate. in themselves, and is similar to the English Stat. 8 Geo. III. c. 49, but as doubts were entertained as to justices resident within exclusive jurisdictions which are not counties in themselves, St. 1 & 2 Geo. IV. C; 63 declares, that justices for the county at large, may act as such at any place within a city, town, or other precinct having exclusive jurisdiction, but not being a county in itself, with a similar proviso, that they shall not intermeddle in matters which arise therein(a). Justices may Statute 15, 16 Geo. III. c. 21, commonly called couX under lf the White-boy Act, also contains a special provision, the Whiteboy s. 24, respecting the offences therein specified. It enacts, that if any justice of the county where any of- fence mentioned in this Act is committed, happens to be in another county, he (or any justice of such foreign county) may, upon proper information, issue his war- rant to arrest, and upon examination may commit, bail, or discharge, as the case shall require, the person charged with such offence ; and such justice shall re- turn all examinations and recognizances taken before him, to the next assizeg to be held for the county in which such offence is alleged to have been committed ; and he is also himself required to attend and give evi- dence at the trial, unless prevented by some sufficient reason, to be verified by affidavit and approved by the Court. Local limits of The local limits of a justice's jurisdiction are also to S^esTect to he understood, generally, as confining his authority to the place where offences committed within them. It is consequently rf tied! iS C m " laid down > that tho "gh a Statute expressly direct the Justice residing offence to be inquired of by a justice residing near the (o) It is to be observed, this Statute, 1 & 2 Geo. IV. c. 63, amends and recites only the English Stat. 28 Geo. III. c. 49, s. 4, but it is a declara- tory Act, and there is no clause confining its operation to England. The enactment recited in it is precisely similar to sect. 4 of 59 Geo. III. c. 92. Ir. sup. Place where Offence committed. place where it is committed, (a direction of frequent near lhc P lace - occurrence in Acts of Parliament,) yet that does not of itself give jurisdiction to any other than the justices of the county within which the offence was committed(). But although it be generally true that a justice of the peace has no jurisdiction over offences committed out of his county, yet there are cases where the pre- sence of an offender within his county gives him autho- rity, arising out of the necessity of preserving the peace, to proceed against such offender ; and there are also cases in which, by the special provisions of particular Statutes, the justice has jurisdiction respecting the offences therein specified, though committed out of his county. Thus, it has been long settled, that if a man commit Arrest, &c. in a felony in one county and go into another county, a ^felony com- ' justice of the latter county may, upon information mitted in ano- given, issue a warrant to apprehend him, and take his examination and the information against him ; and may commit him to the gaol of such latter county, and bind over the witnesses to give evidence at the trial, and, in short, may proceed as if the offence had been com- mitted within his jurisdiction. And the prisoner may afterwards be removed from thence, by habeas corpus, to the county where the felony was committed, for his (a) Talbot v. Hubble, 2 Str. 1154 j R. v. Chandler, 14 East, 267, 274. (6) 1 Hale, 580; 3 Burn, 553. The authority given to a justice in this instance, however, does not contravene the general position that his jurisdiction is limited to offences committed within his county ; for, it has been observed, that this is only for necessity of preserving the peace, and that the justice has really no jurisdiction in the case, 2 Hale, 51. On this ground it is said by Lord Hale, that he did not permit the informations or examinations thus taken to be given in evidence at the trial ; though, it is to be observed, that as to the latter point, he puts a qucere, ib., and in a subsequent part of his treatise he says, " that those examinations and in- 54 Place where Offence committed. Felony com- Upon the same principle it has been decided, that mitted on the high seas. a justice of the peace may proceed with respect to a man coming into his county, after having committed a felony on the high seas, and may commit such person for trial at the next session of oyer and terminer and gaol delivery, to be held for the jurisdiction of the ad- miralty ; and bind over the witnesses to appear thereat ; and if the offence be bailable before either one or more justices, the requisite number of justices may take a valid recognizance for the appearance of the person accused at such session, there to answer to such mat- ters as shall, on the king's behalf, be objected against him(a). It seems also, by analogy to the cases decided in England, that a justice may grant his warrant to ap- prehend a person, who, being within his jurisdiction, has committed a felony in Great Britain, and may com- mit him, in order to be transmitted to be tried there where the offence was committed(6). So also, it ap- pears, that a person who has committed a crime in a foreign country, may be arrested here, and conveyed and given up to the magistrates of the country against the laws of which the offence was committed(c). Felony com- mitted in Great Britain. Or abroad. formations, being transmitted into the county where the party is indicted, may be read in evidence against him, for that though the justice has not an original jurisdiction, yet he has a consequential jurisdiction in having the party before him." ib. 285. (a) R. v. Muilman, Park. 241 ; 2 Haw. c. 8, s. 33, (V. 2. p. 54.) note ; 3 Burn. 553 ; Com. Dig. Justices of Peace, B. I. ; Chit. Cr. L. 94 j and see post, p. 57. (6) R. v. Kimberley, 2 Str. 848 ; 2 Haw. c. 8, s. 33, (V. 2, p. 54.) note. The power to apprehend, &c. in this instance seems to rest upon the same ground of necessity as in the instance of the arrest of a felon in one county for a felony committed in another. (c^) By Heath, J. in Mure v. Kaye, 4 Taunt. 43 ; and see R. v, Hutch- inson, 3 Keb. 785, 2 Vent. 314. 2 Str. 848. Place where Offence committed. 55 But in addition to the authority which the justice has in these instances at common law, and which extends to felonies only, there are several Statutes giving ma- gistrates authority to deal with persons charged with offences, though committed out of the district of their ordinary jurisdiction. Thus by Stat. 9 Geo. IV. c. 54, ss. 20 and 27, it is Offences corn- provided that all offences committed on the boundaries ^"^theboun- of two or more counties, or within 500 yards of such daries of coun- boundaries, or begun in one county and completed in \*QM&** another, whether they be felonies or misdemeanors, ended in an - may be dealt with in all respects in any of the said counties, as if they had been wholly committed therein ; and if the offence has been committed on any person, or with respect to any property, in any coach, waggon, cart, or other carriage, on a journey, or in any vessel Or on any on a voyage on any river or canal, it may be dealt with J a rney or voy " in any county through any part of which such carriage or vessel passed on the journey or voyage during which the offence was committed ; or if the side, bank, or any part of such road, river, or canal constitute a boundary between two counties, the offence may be treated as if actually committed in either of such two counties. So also with respect to accessaries in felony where Accessaries. the original felony has been committed in one county, and the act whereby the offender becomes an accessary, either before or after the fact, in another, the offender may be dealt with in either county(a). So where the act of the principal offender or the accessary has been committed on the high seas or out of the kingdom, the offence of either one of the parties being within the ju- risdiction gives authority over the accessary (b). (a) 9 Geo. IV. c. 54, ss. 24 and 25. (6) Ib. It is to be observed there is no provision made for offences be- gun on the high seas or abroad, and completed within the kingdom, or v. v. Place where Offence committed. Stolen goods. When larceny committed in another part of the United Kingdom. Returned con- victs. By Statute 9 Geo. IV. c. 55, s. 49, receivers of stolen goods, knowing them to be unlawfully taken, whether the original taking amounts to a felony or not, may be dealt with in any county or place where the party originally guilty is liable, or in any county or place in which they themselves shall have, or shall have had the stolen property in their possession. With respect to the original thief, it is to be observed, that he is in the contemplation of the law guilty of a dis- tinct substantive offence in every place, into or through which he carries the stolen goods, at whatever dis- tance of time ; and even where two jointly commit a larceny and one of them conveys the property into ano- ther county, without his companion having ever sepa- rated from him, they are both indictable in either county (). It is also provided by 9 Geo. IV. c. 55, s. 75, that if any person shall have stolen or otherwise unlawfully taken any chattel, money, valuable security, or other property, the stealing of which is made punishable by that Act, in one part of the United Kingdom, and shall have the same in his possession in another part of the United Kingdom, or shall knowingly receive the pro- perty so unlawfully taken, in another part of the United Kingdom, he shall be liable to be dealt with as if the original offence had been committed in that part of the United Kingdom where he shall so have or receive the stolen property. By St. 9 Geo. IV. c. 54, s. 16, convicts returned from transportation before the expiration of the term for which they were sentenced, are also liable to be tried either in the county or place where they are found at large after their return, or where the original sen- tence of transportation was passed. (a) R. v. Courtey, 2 Russ. 175, and the numerous cases cited 3 Burn, J. P. 416, and Arch. Cr. L. 20, Place where Offence committed. 57 So by Stat. 10 Geo. IV. c. 34, s. 26, the offence of Bigamy. bigamy is made cognizable in every county where the offender shall be apprehended or be in custody as if actually committed in such county. By Stat. 7 Will. IV. Post Office and 1 Viet. c. 36, s. 37, offences committed against the offences> Post Office Act may be dealt with either in the county or place where they were committed, or where the offender is apprehended or in custody, and if any such offence be committed in respect of any mail, or person conveying letters, &c., or in respect of any thing sent by post, it may also be dealt with in any county or place through any part of which such mail, &c. passed, and if any part of the road or canal by which the subject of the offence was conveyed constitute the boundary of two counties, it is cognizable in either of such counties. So assaults on Assaults on officers of excise committed in Ireland or any of the in- lands thereof are, by 7 & 8 Geo. IV. c. 53, s. 43, made triable in any county in Ireland as if actually committed therein. As to offences committed at sea, which are with- Offences in in the jurisdiction of the Court of Admiralty(a), Stat. ^"^ j u " 7 Geo. IV. c. 38, empowers and requires any one or more justices for any place in the United Kingdom to take informations on oath touching any offence of what nature or kind soever within the admiral's jurisdiction, and, if necessary, issue their warrant for the apprehen- sion or committal of the accused, till he be discharged in due course of law, or bailed, as the case may be. By Stat. 10 Geo. IV. c. 34, s. 10, 11, it is provided Homicides that if any of his Majesty's subjects shall be charged a (a) 1 Burn, 48, &c. ; and see Stats. 1 Viet. c. 85, s. 10 j c. 86, s. 10; c. 87, s. 13; c. 89, s. 14; c. 36, s. 38, which respectively make offences against the person, burglarious offences, robberies and stealing from the person, burning or destroying buildings or ships, and offences against the Post Office, when committed at sea, cognizable by the Court of Admiralty. I 58 Place where Offence committed. Where either the wound or death is in Ireland. Under Acts relating to seamen. Disabled seamen. Apprentices. Common as- saults. Forcing on shore and deserting. in Ireland with any murder and manslaughter, or with heing accessary before the fact to any murder, or af- ter the fact to any murder or manslaughter, com- mitted on land out of the United Kingdom, whether within the King's dominions or without, any justice of the peace for the county or place where the person so charged shall be, may take cognizance of the offence charged, and proceed as if it had been committed with- in the limits of his ordinary jurisdiction. And where any person being feloniously stricken, poisoned, or otherwise hurt upon the sea, or at any place out of Ire- land, dies in consequence thereof in Ireland, or where the injury being inflicted in Ireland he dies abroad, whether the offender be guilty of murder or man- slaughter, or of being an accessary before the fact to murder, or after the fact to murder or manslaughter, he may be dealt with in the county or place in which either the injury was inflicted or the death occurred, as if the offence had been wholly committed in such county or place. By the Act for the relief of disabled seamen, 4, 5 Will. IV. c. 52, s. 15, penalties payable by masters and owners thereunder are made recoverable before any justice of the port or place at which the vessel shall be reported or discharge her cargo. So by the Act regulating the merchant service, 5, 6 Will. IV. c. 19, s. 37, any two justices, at or near the port where any vessel at any time arrives, may hear complaints re- lating to apprentices thereunder. By the same Act, s. 38, common assaults committed on board of British merchant ships are made cognizable by any two jus- tices in any part of his Majesty's dominions ; and by s. 40 the offence of forcing on shore or leaving behind any person belonging to the crew, is punishable by pro- ceedings in any Court having criminal jurisdiction, Place where Offence committed. 59 without reference to its local limits(a); so also by sects. 14 & 15, any justice in any part of the kingdom may ^ e a a g n ' s hear complaints as to seamen's wages() ; and lastly, by p eua i t i es . the same Act, s. 53, all penalties thereunder, for the recovery of which no mode was before specified, are re- coverable, if they do not exceed twenty pounds, by summary proceedings, before a justice in any part of the kingdom residing near the place where the offence is committed or the offender may be. Stat. 3 & 4 Will. IV. c. 53, s. 77, also provides that Offences com- . mitted against all offences committed, or penalties incurred, against the Smuggling this or any Act relating to the revenue of customs, up- r Custot on the high seas, shall, for the purpose of prosecution, be deemed to have been committed or incurred at the place on land into which the person committing or incur- ring them shall be brought, or where he shall be found ; and if such place on land is situated within any city, borough, liberty, division, franchise, or town corporate, as well any justice for such city, &c. as any justice of the county within which it is situate, shall have juris- diction notwithstanding any Act or charter to the con- trary. By s. 88, all such offences committed in any city, &c- shall be deemed to have been committed in the county, and any justice either of such city, &c. or of the county, has liberty to hear and determine the same. And, by s. 89, where two magistrates are necessary, and the attendance of two having jurisdiction in the county where the offence was committed cannot con- veniently be obtained, one such magistrate, with one ma- gistrate of any adjoining county, have the same powers in all respects in any proceeding under this or any other Act relating to the customs, as if both were ma- gistrates for the county in which the offence was com- mitted. (a) See also 10 Geo. IV. c. 34, s. 39. (&) See further, post, Ft. IV. GO Backing Warrants. Distress Warrants. Offences com- mitted in ports, harbours, chan- nels, bays, &c. Foreign Service Act. Whiteboy offences. Backing war- rants. In what cases warrants of distress may be endorsed and executed in other counties. Stat. 54 Geo. III. c. 159, for the regulation of harbours, by s. %2 empowers any justice of the peace acting for any district, next adjoining the place where offences against the Act may be committed, to proceed in all cases as if such offence had been committed lo- cally within the limits of his jurisdiction. So by the Foreign Service Act, 59 Geo. III. c. 69, s. 4, in the case of offences against its provisions committed out of the United Kingdom, any person residing near the port or place where such offence is committed, is empowered to issue his warrant to apprehend the person charged with such offence, and to examine and commit, or bail him, as the case may require. A similar provision in the Whiteboy Act has been already referred to(a). Besides these enactments giving original authority to justices over offences committed out of the district of their jurisdiction, in all cases, whether the offence charged amount to felony or not, where a warrant has been previously issued in any county in Ireland or in Great Britain, Stat. 44 Geo. III. c. 92, now pro- vides for its execution in the county in which the offender may be found. This is effected by a justice of the latter county endorsing the warrant, upon which all fur- ther proceedings may be had as if it had been originally granted by him, without his being rendered responsible for the consequences of any previous irregularity, for which the justice who first issued it continues liable(i). Power is also given to indorse warrants of distress in other counties, by 59 Geo. III. c. 92, s. 7, which pro- vides that where a sufficient distress cannot be found within the jurisdiction of the justice granting a warrant for that purpose, on oath thereof made before a justice of any other county, (which oath is to be by him certified by indorsement on such warrant,) the penalty, or such part as has not been paid, may be levied, by virtue of (a) Ante, p. 52, (6) See post, Ft. II, ch, 3. Separate Jurisdictions. 61 such warrant or indorsement, upon the goods of such person in such other county(a). Though the authority of a justice is, except in the Authority of , ,. , J. P. may not instance mentioned, generally limited to matters occur- exte nd to all ring within his county, it does not necessarily extend to parts of the county. all places within the county, if there be any district therein which possesses a separate jurisdiction^). In- dependently, however, of any of the provisions already refered to(c), the words of the commission, " as well within liberties as without," are held to give the jus- Concurrent tices for the county jurisdiction in such boroughs and jur towns corporate as are not counties of themselves, though they have a magistracy of their own, unless the charter by which such magistracy is constituted contains an express exclusion of the county magis- trates, by a clause of se non intromittant, (so that the justices of the county shall not intermeddle) ; for the exclusion of the county magistrates has always been regarded with jealousy, and it is held that nothing but express words shall have the effect of excluding their jurisdiction from any place within the county (d). Where, therefore, the jurisdiction of the county jus- tices is not taken away by such express words, they possess a concurrent jurisdiction with the magistrates of the borough or town. And when this is the case the jurisdiction in any particular matter attaches to the (a) Before these general provisions it was specially directed by the Acts which relate to the offence of burning land, that if the party remove from the county, or his goods be removed to another jurisdiction, the summonses and warrants should be endorsed and executed in such latter county, 3 Geo. III. c. 29, s. 1, and 5 Geo. III. c. 10, s. 1. (6) Dalt. c. 6, s. 7. (c) Ante, p. 56, et seq. (<0 2 Hale, 47 ; 2 Haw. c. 8, s. 29, (vol. ii. p. 48) ; 3 Burn, 555 ; Blankley v. Winstanley, 3 T.R. 287 ; 11. v. Sainslmry, 4 T. R. 451, 457 ; see also 4 M. & Sel. 429 ; and D. & R. 316. Number of Justices necessary. Exclusive jurisdiction. Jurisdiction limited by cir- cumstances connected with acting justices. Number of justices. Justices must be together in performing a judicial act ; but not when acting ministe- rially. justices who act first therein, and a subsequent inter- ference with their determination on the part of the others is illegal(a). But where the jurisdiction of the county justices is taken away by express and adequate words in the char- ter for that purpose, though formerly it seems to have been doubted whether, in such case, the acts of the county justices were void, or such only as to subject them to punishment for a contempt of the King's pro- hibition^), yet the law seeems to be now settled by more recent and express authorities that, in such case, any act of the county justices within the franchise is wholly void(c). II. Beside the local limits by which the justices' au- thority is confined, it is liable to be further restricted by circumstances connected with the persons by whom it is exercised. With respect to the number of justices required for the discharge of any magisterial dut}^, it is to be ob- served, that wherever any authority is given by Statute to one justice it maybe executed by any greater number(of); but an authority given to two cannot be executed by one alone (e). Where an Act of Parliament gives power to two justices finally to hear and determine an offence, or where it requires any act to be done by two justices, it is in general an established rule, that if the act be of a judicial nature, or is to be the result of their discretion, the two justices must be together at the time of per- forming it, in order that they may confer and concur ; (a) R. v. Sainsbury, ubi sup. ex parte Kite, 2 D. & R. 212. (6) 2 Hale, 47 ; 2 Haw. c. 8, s. 29, (vol. ii. p. 48). (c)Talbot v.Hubble, 2 Str. 1154, recognized in Blankley v. Win- stanly, 3 T. R. 279, and R. v. Sainsbury, 4 T. R. 456 j 2 D. & R. 212. (d) Dalt. c. 6, s. 8 ; Hatton's case, 2 Salk, 477. (e) Dalt. ifr._4 Co. 46 j 3 Burn, 561. Different Justices acting in tlie same Case. (>3 but where the act is merely ministerial they may act separately(a). BvStat.9 Geo. IV. c. 23, s. 2, an Act to facilitate sum- One justice . . may receive mary proceedings before justices of the peace, it is en- original inter- acted, that in all cases where two or more justices are em- . matlon and issue summons powered to hear and determine any complaint, one justice to appear before may receive the original information or complaint, and issue a summons or warrant requiring the parties to ap- pear before two or more justices; and that after the ad- and enforce . adjudication. judication by any such two justices, the subsequent pro- ceedings to enforce obedience thereto may be taken by either of said justices, or by any other justices of the same county or place ; and where the original complaint shall be made to a justice, not one of those before whom it shall be heard, the form of the conviction shall be conformable to the fact. Stat. 9 Geo. IV. c. 55, s. 69, amending the laws relating to larceny and similar of- fences, and 9 Geo. IV. c. 56, s. 49, concerning mali- cious injuries to property, contain, each of them, clauses precisely similar as to offences punishable under them respectively. So also the Petty Sessions Act, 7 & 8 Geo. IV. c. 67, s. Petty sessions. 16, enacts, that it shall be lawful for any justices at petty sessions to hear and determine any case in which they (a) Sittings v.Prinn, 2 Bl.Rep. 1017; and see 3 Burn, 561; 3 T. R.38 and 380 ; 2 East, 244 ; 8 East, 327, note; and Pinney v. Slade, 5 Bingh. 319. It is, however, to be observed, that the Statutes which require their authority to be exercised by two or more justices relate generally to judicial acts. In one case which arose upon the construction of a Statute not ap- plying to Ireland, (viz. 43 Eliz. c. 2, Eng., as to the allowance of a poor rate,) it was held that the act required to be thus executed was a minis- terial and not a judicial act. R. v. The Justices of Dorchester, 1 Str. 393. But it has been observed, that this is the only act required to be performed by two justices which has yet been construed to be ministerial. 1 Bl. Com. 354, in note, and see the judgment of Lord Kenyon, 3 T. R. 381, and 7 T.R. 275. 64 Description of Justices. Jurisdiction before which proceedings should origi- nate. Particular de- scription of justices. Next justice. have jurisdiction, although the summonses may have been issued and the complaint received by any other justice acting singly, or by any other justices at a previous meeting of such petty sessions. And it seems that the justice may, by his summons, require that the party shall appear before himself specially, or before any other justice of the county, or generally before any of the justices of the county(a). Though since the esta- blishment of petty sessions it is usual and proper (except the case be of great urgency or danger) to require that the party shall appear before the justices at the next petty sessions for the district. With regard to the jurisdiction before which con- victions on penal Statutes should originate, the rule laid down is, that if authority be given to two justices to do an act, and from that act there is no appeal, it may commence at the sessions ; but if an appeal be given it cannot begin there(). The majority of Statutes give authority generally without distinction to all justices, which implies an equal power in all, within the limits of their respective commissions or jurisdiction ; but some Statutes point out those of a particular description, as the Acts already referred to(c), requiring a qualification as to estate in certain cases, and the powers given by such Statutes are of course confined to justices possessing the neces- sary qualification. It has been laid down, that where, by Statute, a thing is appointed to be done by or before one person certain, by such express designation of one all others are excluded(c?). So where a Statute requires the act (a) 2 Hale, 112; 1 Hale, 582 ; 2 Hawk. c. 13,s.26. (6) By Holt, C. J. in R. v, Randall, 2 Salk. 470. (c) Ante, p. 4, et seq. (d)Dalt. c. 6; 3 Burn, 562. Justice disqualified by Interest. 65 to be done by the next justice, it is held that it must be the next, and that the authority of all others is thereby excluded, the selection being in this case im- perative ; but where the Statute says justices in or near j 4 p in or neat the place(a\ any justice of the county may take cogni- the place, zance of the matter notwithstanding such description, these latter words being held to be merely directory(). But no magistrate, however duly qualified in all other Disqualifiea- respects, is authorized to act judicially in a case wherein tlon b ? mterest - he is himself a party. This plain principle of justice, that no one can be a judge in his own cause, pervades every branch of the law, and is so fundamental a prin- ciple as not to be overruled by any prescription ; for where a man is a party he cannot be a judge indifferent, and no rule of law or reason is more established than that a judge ought to stand indifferent(c). Lord Coke and Lord Holt both go so far as to question whether even an Act of parliament has the power to ordain that the same person shall be both party and judge(c/). It is, however, certain, that every proceeding which bears this objection on the face of it is absolutely void(e). Nor Where J. P. ought a justice in any respect to execute his office in his s^mr h own case, but wherever he is interested he should cause fender before the offender to be brought before some other justice(/). anotherj ' p - In one case, in which a criminal information was moved for against a justice of the peace, who, upon a com- plaint preferred before him in his magisterial capacity (a) See ante, p. 53. (&) 1 Saund. 263, a, note(6) ; R. v, Jennings, 3 Keb. 383 ; 3 Bac. Ab. Justices of the Peace, E. 5. (c) Co. Litt. 141, a. ; 8 Co. 118 ; Hob. 87 ; Dalt. c. 173 j 3 Burn, 567, 568 ; Pal. 25. (d) 8 Co. 118 ; Hob. 87 ; 2 Salk. 607 j 12 Mod. 687 j 1 Str. 640. () 12 Mod. 687 ; Salk. 398, 607 ; Pal. 25. (/) Dalt, c. 173 j 3 Burn, 567 ; 2 Dick, J. 377, K Justice disqualified by Interest. by his own bailiff, convicted and sentenced to punish- ment a labourer employed on his own farm, for refusal to perform his work according to his contract, the Court of King's Bench took occasion to animadvert very strongly upon such conduct. In this case the ma- gistrate appeared, from all the circumstances, to have acted from an error in judgment, rather than from any bad motive, in consideration of which the Court did not make the rule absolute for granting the information, but they severely reprehended his conduct, declaring " that it was a most abusive interpretation of the law, that a man should presume to erect himself as a crimi- nal judge in deciding upon an offence against himself ;'* and they ordered him to pay all the costs of the appli- j. P. to act iu cation(a). In another case, where a question arose upon everwhen h he"is a P ar i sn account, it was^held that a justice who was a interested. rated inhabitant of the parish could not vote at ses- sions upon the determination of an appeal against the overseer's account, or even upon the propriety of grant- ing a case for the opinion of the King's Bench. " We think it the safer course," said Abbott, C. J., " to hold that magistrates should not interfere in cases where they are interested"(&). Upon this principle also the Act for regulating the (a) R. v.Hoseason, 14 East, 608 ; see instances of criminal informa- tions granted upon such grounds, mentioned in 2 M'Nally's Justice, 587 ; and the case of the Mayor of Hereford, 2 Lord Raym. 766, S. C. Salk. 396, in which case it is said by Lord Holt, that the mayor was punished for sitting in judgment in a cause where he was interested, though he, by the char- ter, was sole judge of the Court ; the rule was even so strongly enforced, that, until a Statute was passed for the purpose of enabling justices to act in all cases under the English Acts relating to the poor, they were frequently prevented from doing so from being liable to pay the poor rate ; see 3 Burn, 568. (b) R. v. Gudderidge, 4 D. & 11. M. C. 35. Exclusion's in particular Cases. 67 arbitration of disputes between masters and workmen, Masters and 5 Geo. IV. c. 96, s. 12, enacts, " that no master, manu- workmen - facturer, or agent, shall act as justice in its execution.'' And the Act relating to the combination of workmen, 6 Geo. IV. c. 129, s. 13, prohibits any master in the particular trade or manufacture, concerning which any offence is charged to have been committed under this Act, from acting as a justice thereunder. The Excise Excke and c us- Act, 7 & 8 Geo. IV. c. 53, s. 68, also excludes any toms> officer of excise, or person employed in the manage- ment or collection of the revenue, from acting as a justice in any matter under any Act relating to the revenue of excise, and any trader subject to the excise laws from acting in any case relating to his trade; and the Customs Act, 3 & 4 Will. IV. c. 53, s. 115, prohibits any justice, being a collector or other- wise connected with the collection of the revenue, from interfering in convictions under the Act. Among these particular exclusions may be also mentioned Stat 1 & 2 Viet. c. 56, s. 23, providing that no justice who is a sti- pendiary magistrate, or assistant barrister, or in holy orders, or a regular minister of any religious denomina- tion, shall be ex ojficio guardian of the poor. But although the general rule be as above stated, Justice being that a justice should not execute his office in his own SSUdloWi case, yet if he be assaulted, or in the execution of his face, may com- /v. . . 1 i / -i i rtiit for want of omce be abused to his race, and no other justice pre- Bure ties. sent with him, he may commit the offender until he shall find sureties for the peace or good behaviour, as the case may require ; but if any other justice be present it is proper to desire his aid(a). There is, however, a distinction between the power Commitment to commit until the party find sureties to keep the for contem P t - (a) R. v. Revel, Str. 420 ; 3 Burn, 564 ; see form in A pp. 68 Punishment for Contempt. peace, and a commitment for a contempt(a), and doubts have been raised, whether a justice sitting in petty sessions(&), or in his private chamber in the execution of his office, can legally commit by way of punishment for contempt. It is said that in practice this power is exercised(c), and an expression is to be found in one of the earlier cases in favour of its legality (d) ; but it is to be observed, that, in other cases, where this question occurred incidentally but did not call for a decision, very eminent judges have declined even intimating an opi- nion upon it, and from a consideration of its importance have expressed a wish that a solemn decision should be had upon the point(e). It appears, therefore, that the exercise of this power has not yet been recog- (a) The justices sitting in the court of general sessions, which is a court of record, (Dalt. c. 185 ; 5 Burn, 581, et seq.) or their chairman, are clearly empowered to commit /or a contempt, perHolroyd, J. in R. v. Clement, 4 B. & A. 232 j and see Bushel's case, Vaugh. 136. It is said, however, that the sessions cannot award an attachment for contempt, and that the ordinary and proper method is by indictment, R.v.Bartlett, 2 Sess. Cas. 176 j 5 Burn, 612. (J) Post, p. 75, 76. (c) 2 Dick, J. 380. Mr. Dickinson refers to the form of commitment given in 4 Ch. C. L. 66. But it is to be observed that this form is a com- mitment of the party " for want of sureties, or until he shall be discharged by due course of law." (d) R. v. Revel, 1 Str. 420 ; in this case, although the court are said to have expressed an opinion, an express decision upon the point was not called for. (e) In Pettit v. Addington, Peake's N. P. C. 63, Lord Kenyon is re- ported to have said, " that as to the question, whether a magistrate, not sitting as chairman of a court, but in his private office, could commit for a contempt? he must own he had a leaning on his mind, but still he would not deliver or intimate any opinion, as he wished it to be seriously consi- dered and determined in court." A similar caution seems to have also influenced the court in withholding their opinion in the more recent cases of Mayhew v. Locke, 7 Taunt. 63, R. v. James, 5 B. & A. 894, and Cropper v. Norton, 8 D. & R. 166. Offences cognizable by Justices. 09 nized by any express decision of the superior courts. It has, however, been decided that such a commitment, if legal> must be in writing(a), and for a time certain(6). And it has been observed, that unless the words be Caution to J. P. spoken under circumstances which render it probable they may prevent the due administration of justice, it will be safer for the magistrate to abstain from sum- mary punishment and proceed by indictment or action. III. The authority of magistrates is further res- III. Restric- trained in some cases by circumstances connected with fromMTsubject the subject upon which it is exercised. aUer of juris- . diction. Their criminal jurisdiction out of sessions to bring offences within before them persons charged with offences, and to take the criminal the necessary proceedings for their commitment, bail, ^^ 1C or discharge, extends not only to cases of treason, felony, and misdemeanors amounting to an actual breach of the peace, but also as appears to be now set- tled, to every case of misdemeanor which is within the cognizance of the sessions of the peace, though it should not amount to an actual breach of the peace(c). But in the case of misdemeanors which have but an indirect or remote tendency to a breach of the peace, (a) Mayhew v. Locke, 7 Taunt. 63. (b) R. v. James, 5 B. & A. 894. But, if otherwise correct, it seems the addition of the words, " until discharged by due course of law," though improper, will not vitiate the commitment. Goff's case, 3 M. & S. 203. (c) It is stated by Mr. Dickinson, that, although formerly considerable doubts had been entertained with respect to the extent of the authority of individual justices to issue warrants against persons charged with mere misdemeanors not directly tending to a breach of the peace, yet that the doctrine, to the extent laid down in the text, was fully recognized by the high law authorities in both houses of parliament in a discussion in which this question was considered. 1 Dick, J. 177, Bail, 4. This doctrine is also thus laid down in 1 Hale, 579 ; and see 2 Haw. c. 13, s. 16 ; and 4 Bl. Com. 290, although a less comprehensive construction had been con- tended for from the expressions to be found, 4 Inst. 177 j 2 Hale, 113 ; and 2 Haw. c. 13, s. 18. 70 Offences cognizable by Justices. as of libel against a private individual, extortion, and other similar offences, although the justice may issue a warrant against the party charged, it is usual to pro- ceed by summons, at least in the first instance, unless an escape be apprehended, or that from other circum- stances an immediate arrest is expedient(a)* To the jurisdiction of the general sessions of the peace in cases of misdemeanor there are some excep- tions^), namely, forgery at common law(c), and usury when prosecuted as an indictable offence under the Statute 5 Geo. II. c. 7(c?) ; but, although the sessions (a) See post, Ft. II. cb.3. (b) In England perjury at common law is also excluded from the juris- diction of the quarter sessions. R. v. Bainton, 2 Strange* 1088 ; 2 Curw. Hawk. 55 ; 5 Burn, 174 ; R. v. Haynes, R. & M., N. P. C. 298. But in Ireland, 31 Geo. III. c. 18, s. 3, enacts and declares, that it shall be law- ful for the justices of the peace at the quarter sessions to hear and determine in all cases of perjury within their jurisdiction. So the offence of perjury under Stat. 28 Eliz. c. 1, s. 3, is cognizable by the sessions ; but prosecu- tions upon this Statute, being more difficult than by indictment at the com- mon law, are seldom resorted to at the present day. 1 Haw. c. 69, s. 14, (vol. i. p. 437,) note ; 2 Russ.1775. (c) R. v. Yarrington, 1 Salk. 406 ; R. v. Gibbs, 1 East, 173; see also 2 Haw. c. 8, s. 38, (vol. ii. p. 55 ;) Com. Dig. Justices of the Peace, B. 1 ; 2 Burn, 926 ; 5 Burn, 606. (d) R, v. Smyth, 2 Lord Raym. 1144 ; S. C. Salk. 680 ; 1 Bl. Rep. 369 ; 2 Haw. c. 8, (vol. ii. p. 47.) This exception has been made on the ground that the sessions have no jurisdiction over new created offences not against the peace, unless the Statute which creates them gives such juris- diction in express terms, i&. 2 Haw. c. 8, s. 61, note ; (vol. ii. p. 47, 56, 67 ;) Corn. Dig. Justices of the Peace, B. 1 ; and the principle, therefore, applies to the cases of other newly created offences similarly circumstanced : it was accordingly decided that an indictment for fastening nets across a river, made an offence by the provision of Statute 2 Hen. VI. c. 15, Eng. was not cognizable by the sessions, R. v. James, 2 Str. 1256. The offence of usury is, however, rarely the subject of indictment, as the party prosecuting prefers in general to proceed by action for the penalties given by the Statute. And as these exceptions are now considered to rest rather upon authority than principle, the Courts have latterly expressed a disinclination to impose a Offences cognizable by Justices. 7 have not power to hear and determine these offences, it is said, that nevertheless a justice may take an infor- mation thereof, and proceed, as in cases of misde- meanor, to bind over the accuser and witnesses, examine the offender, certify his examination, and bail or com- mit him, as the case shall require, in order to abide his trial(a). And such is the practice of the best regulated police offices, nor does it appear that the exercise of this power has ever been questioned. The authority of justices in these respects may therefore be consi- dered as extending to all offences of a, public nature. It is here, however, to be observed, that mere tres- civil injuries passes, unaccompanied by any circumstance constituting J a breach of the peace, are not indictable(^), and are, offences. therefore, not offences within the criminal jurisdiction of justices of the peace. Thus, for instance, it has been held that a mere act of trespass in entering a yard and digging the ground, and erecting a shed thereon, unaccompanied by any actual breach of the peace, is not indictable(c) ; so also an indictment against one for pulling off the thatch of another man's house, who was in the peaceable possession of it, was held not to lie(c/); such acts being considered mere civil injuries, for which the proper remedy is an action of trespass. But if there be a conspiracy^) in the case, or the entry be accompanied by force, they are indictable offences, even further restriction upon the jurisdiction of the sessions. Seethe observations of the Court in R. v. Higgins, 2 East, 18, et seq., in which case Lord Kenyon says, "why these offences have been excepted I know not j but it having been expressly so adjudged, I will not breakthrough the rules of law." And see the judgment of Lord Mansfield in R. v. Rispal, 1 Bl. Rep. 369. (a) Barl. 244 ; 2 Burn, 926, 927. (6) 8 T. R. 357 j 13 Ea. 228 ; 6 Burn, 112. (c) Rex v. Storr, 3 Burr. 1699. (d) Hex v. Atkins, 3 Burr. 1706. 1 Russ. 70. (e) Hex v. Bykerdylce, 1 M. & Rob. 179. 72 Where Title is in Dispute. though the person so entering has a right() ; so an in- dictment will lie for taking goods forcibly, if the taking be a breach of the peace, even though such goods be the party's own property (b) ; and the justices may also have jurisdiction if the offence come within the provisions of the Malicious Trespass Act, 9 Geo. IV. c. 56. Summary juris- With respect to offences which are the subject of the summary jurisdiction of justices of the peace, they are in every instance defined by the express provisions of the Statutes by which they have been created. But, Ousted where & ^ as always been held as a maxim, that where pro- property or title perty or title is in question, the exercise of such surn- is in question. . . . mary jurisdiction is taken from the justice, and that he is restrained from interfering, though the facts be such as he would otherwise have had authority to take cogni- zance of(c). This principle is independent of any legisla- tive provision, being a qualification which the law itself raises in the execution 6f penal Statutes, and is always implied in their construction, though it is in some in- stances also the subject of special enactments(J). Or colour of The rule which has been laid down upon this sub- ject is, that, without entering into the substantial merits of the title set up, it is sufficient to stop the summary interference of a magistrate by conviction, that even a colour of title appears to be in question, and that the act was done bond fide under an as- sertion of that supposed title, however weak the claim may appear to loe(e). It is not, however, intended that this rule should be extended so as to enable the of- () Rex v. Storr, 3 Burr. 1699 ; 26 Geo. III. c. 24, s. 64. (b) 3 Salk. 187; 1 Russ. 70. (c) R. v. Burnaby, 1 Salk. 181, and 3 Salk. 217. S. C. j 2 Lord Raym. 900 ; Rex v. Speed, 1 Lord Raym. 583 j Pal. 28, 55. (d) Ex. gr. 1 Geo. II. c. 12, s. 7, sup. 5, and 9 Geo. IV. c. 56, s. 30. (e) Kinnersley v. Orpe, Doug. 499, in note ; Blunt v. Grimes, ib. j 4 T. R. 681 j and cases collected in Pal. 56, and 1 Burn, 882. Where Title is in Dispute. 73 fender to arrest the summary jurisdiction of the justice Fictitious pre- by a mere fictitious pretence of title. An assertion of n^a vail able. right, therefore, is not to be regarded, where it evi- dently appears that no colour or pretext for it exists; as where the party's own shewing, or other manifest circumstances, prove the claim to be wholly ground- less(a). This rule has been adopted from the principle ob- Recommenda- served in penal actions, but as questions of right can still nouointerfere less properly be examined by justices in a summary if the act were way, than even in a penal action by a court and jury, unde/anlS it is prudent for magistrates where questions of this of authority. kind occur, to abstain from any other inquiry than this, namely, whether the act was done bond fide under a supposition of right or authority existing at the time, or whether a fictitious pretence of such right or autho- rity was afterwards set up for the mere purpose of evading the penalties ; and, if it appear to have been done under such actual supposition, to dismiss the complaint without investigating the legal grounds of the claim at all(). Cases may also occur not arising under penal Sta- Caution to ma- tutes, in which, if the magistrate be satisfied that the vestigation of" real object of a party complaining is, through the me- criminal charge, . . , y . if civil right be dium of a criminal prosecution, to endeavour, as is i n controversy sometimes attempted, to try, or to establish, a civil betv yeen the 11 parties. right, he may, in analogy to the above cases, exercise a sound discretion in declining to interfere, leaving the party to his civil remedy^). This, however, must be taken with the qualification, that no actual breach of (a) Calcraft v. Gibbs, 5 T. R. 69 ; Rex v. Wrottesley, 1 B. and Ad. 648 j Pal. 57. (&) Pal. 58. (c) See the judgment of the court in Rex v. Johnston, Irish Term Rep. 203. 74 Where Title is in Dispute. the peace has been committed by the party against whom the complaint is made ; as the law, which values the preservation of the public peace more than the pri- vate property of an individual, requires legal rights to be asserted by legal means, and will not permit the use of force or violence, as a remedy for private injuries(a). If, therefore, sufficient grounds be laid before a magis- trate to induce him to believe that an actual breach of the peace has been committed, even in the assertion of a right, whether real or imaginary, it will be his duty to receive an information against the party charged with such breach of the peace, without entering into an investigation of either party's civil rights. But the knowledge that a question of right as to property is in controversy between the parties will make the magis- trate more cautious in scrutinizing the statement and representations of the complainant, and in satisfying himself as to the real character of the transaction, and that a breach of the peace has been actually committed. CHAPTER IV. OF PETTY SESSIONS. Of petty ses- HAVING thus considered the rules which regulate the sums. jurisdiction of justices of peace out of sessions, it may be proper here to advert to the constitution of those periodical meetings of magistrates, long and benefi- cially known in England, and more recently in Ireland, (a) 3 Bl. Com. 4 j 1 Russ. 52, (ed. 2) and cases there cited ; Taunton v. Costar, judgment of Lord Kenyon, 7 T. R. 432 j Turner v. Meymott, 1 Bing. 158. Petty Session. 75 by the name of Petty Sessions, the establishment of which is calculated to produce a most beneficial in- fluence upon the administration of justice, in that de- partment of it which forms the subject of this trea- tise^) ; and although the nature and character of these Authority of - i 11 i j 'A. * pe^y sessions. meetings is now in general well understood, it may not ot -[ hat of a be superfluous to premise, that they do not (as might Court, properly possibly be inferred from their name) partake of the constitution or authority of the general or quarter ses- sions^) : nor (although they are sometimes called petty sessions courts) does the term court properly apply to them, in the legal acceptation of the word, or as im- plying any peculiar jurisdiction or privilege not inci- dent to magistrates acting individually(c). The petty sessions are, in fact, mere voluntary associations of ma- gistrates, meeting at such times and places, and acting (a) In confirmation of this opinion, the author refers to the high autho- rity of " The Select Committee appointed to inquire into the State of Ire- land," by both houses of parliament, as expressed in their reports respec- tively. That of the committee of the House of Lords, (July 4, 1825,) concludes thus : " The committee cannot close this report without ex- pressing the pleasure they have received from the concurrent testimony of so many witnesses, who, in speaking of the different measures which have been of late adopted for the improvement of the state of Ireland, have, in a greater or less degree, agreed in attributing to them a highly favourable effect. The establishment of the police and constabulary force the revi- sion of the magistracy, as far as it has gone the meeting of the magis- trates in petty sessions, &c. have all contributed, not only to remove griev- ances, but to improve the situation of the country." That of the committee of the House of Commons also states, that " the improvement in the or- ganization of the police the revision of the magistracy the establishment of petty sessions and the principle upon which assistant barristers have been selected, appear to have been productive of the most beneficial con- sequences." (6) The general or quarter sessions ia a public court, with privileges as other courts of record. 5 Burn. 582 ; Lamb, 397, 8, Bk. 4, cap. 3. (c) Cox v. Coleridge, 2 D. & R. 86. See also 1 Chit. Cr. L. 134 ; Hayes, Cr. L, 428 ; Dick. 6. 76 Proceedings at Petty Sessions^ according to such rules, as local circumstances, the exi- gence of public business, or the discretion of the indivi- duals who compose them may suggest ; but not con- ferring on the meeting, as a body, any greater autho- rity, than each member acting singly and in private would enjoy, except in the discharge of duties con- fined by Statute to petty sessions, or so far as justices acting elsewhere are required to transmit an account of their proceedings to the clerk of the sessions for their district. Therefore, although publicity has been generally and justly considered among the principal advantages of thus administering the magisterial duties, yet the proceedings of the magistrates at petty sessions, when acting in a merely ministerial capacity, in initiating cri- minal proceedings, as in taking informations or exami- nations in cases which are subsequently to be judicially heard and determined before a higher tribunal, are not necessarily public like those of courts of justice: and May be private cases ma y sometimes occur, in which, with a view to when acting . -IT T ministerially, prevent an imprudent or indelicate disclosure of evi- dence > or for otner sufficient reasons, the magistrates daily. assembled at petty sessions may exercise a sound dis- cretion in conducting the examination of prisoners, or other investigations in private(a). This, however, does not extend to instances in which they are exercising a judicial authority, as in cases of summary convictions when their proceedings ought to be public, nor will they be then justified in removing any person, so long as he conducts himself with propriety, and does not interrupt them(6). And in all cases subject to such occasional, and, we may add, rare exceptions, it is of (a) Cox v. Coleridge, ub. sup. ; Rex v. Bonn, 3 B. & Ad. 432 ; Pal. 45, n. (p.) (6) Daubmay v. Cooper, 10 B. & C. 237 j 1 Chitt. Rep. 217 ; Collier v. Hicks, 2 B. & Ad. 663. Proceedings at Petty Sessions. 77 the first importance, as well to the magistrates them- selves as to the people, that the fullest possible publicity should be given to all magisterial proceedings in petty sessions, and every facility of access afforded, not only to the parties immediately interested, but to the public at large. The administration of justice should not only Advantages of be pure, but it should also be unsuspected ; when ma- publicity, gistrates act separately and in private, they are sup- posed to be more accessible to undue influence, and are more liable, if not to partiality or prejudice, at least to suspicion and misrepresentation. It cannot, therefore, be less satisfactory to themselves, than to the commu- nity at large, that they should act under the eye and observation of the public. The former will thus be relieved from the imputation of acting from partial or improper motives ; of listening to secret, and, therefore, often false or frivolous complaints or accusations ; or of making a sacred public trust in any manner subservient to private or unworthy interests or purposes. The people, on the other hand, will thereby have opportuni- ties, which the magistrates will be anxious, by mild and judicious exhortations, to improve, of receiving practi- cal lessons of order and subordination, and of acquiring a knowledge of the law by which their ordinary duties are or ought to be regulated. Obedience and protec- tion will soon be found to be reciprocal, and justice will cease to be considered as a matter of favour, of in- terest, or of accident, rather than of right. A confidence in the law, and in the magistrates who administer it, will thereby be created, and the result will be mutual satisfaction and security between them and the people, which will lay a solid foundation for the public tran- quillity and prosperity. The distinction which applies to the admission of Right to have the public, holds also with respect to the right of the accused to have professional assistance, and in cases of 78 Proceedings at Petty Sessions. summary convictions he is entitled to claim it as a right under the Prisoner's Counsel Act, 6 & 7 Will. IV. c. 114. But subject to the general rule that the accused has a right to the aid of cousel in directing his defence, examining his witnesses, &c., the justices may make what regulations they please, as to the order in which their proceedings shall be conducted. The Sta- tute also confers this right on the accused only, and does not include complainants, nor does it extend to preliminary investigations(a). It has, however, been observed, that even where the admission of counsel is still at the option of the sitting magistrates they will, in cases of difficulty, exercise a sound discretion in hearing persons of professional education and skill, as they will probably facilitate the inquiry by conducting it ac- cording to the rules of evidence, and by their sugges- tions assist the justices in arriving at a right conclu- sion^). The distribution of the county into districts, and the allocation of petty sessions to each, at convenient distances from each other, and with fixed and stated periods and places for meeting, is productive of conve- nience to the magistrates by diminishing the necessity of so constant and laborious an attendance on the ordi- Propriety of nary duties of their office, as they should postpone to PtyTetsfons 1 the stated da y s of meeting all cases not of emergency, all except cases or in which delay may not be productive of public in- ' ncy * jury or inconvenience(c). The intervals between these () Dick. 9. Even before the above Statute it was decided, that in cases of summary convictions the accused had a right to the advice and direc- tion of counsel, but not to his assistance in examining witnesses j see Col- lier v. Hicks, ub. sup. (6) Dick. 11. (c) When such cases of urgency occur, the magistrate is nevertheless required to report the particulars to the petty sessions, by 7 & 8 Geo. IV. c. 67,s. 13, 14, post. Proceedings at Petty Sessions. 79 meetings will also allow time for the passions of parties to cool before they come forward to swear their infor- mations, and thereby tend to prevent false or exagge- rated depositions, made under the influence of recent excitement, or to reconcile such private disputes, as the peace of the country may better be consulted by accom- modating, than by making the subject of public pro- secution. A further advantage of this local arrangement is Complaints be- to do away the inconvenient, and often vexatious prac- fore . dlstant . magistrates, tice of preferring complaints to, and summoning per- sons before magistrates living remote from the parties, and to whom their characters, or the local circum- stances connected with the matter of complaint, and most material, perhaps, to its investigation, are proba- bly unknown. Acting thus collectively, the magistrates, in addi- tion to having the benefit of mutual advice, experience, and assistance, upon such questions as may occasionally arise in the discharge of their ordinary duties, are enabled from time to time to confer upon matters of local interest and moment, and to consult and provide for the peace or the improvement of the country. From the interchange and communication of opinion Uniformity and between the magistrates, result the further advantages P ro ? rie ;y of . proceedings. of certainty and uniformity of practice in the proceed- ings of the same petty sessions ; and this consistency will gradually extend to others, as the same magistrates may, and often do, attend at different petty sessions. Another beneficial consequence of this, and indeed of the system in general, is to prevent all clashing of ju- risdiction, and all attempts to set up the authority of one magistrate, or body of magistrates, against another. As, for instance, by procuring different magistrates to take what are called cross informations, or to supersede 80 Proceedings at Petty Sessions. Responsibility of individual justices at petty sessions. each other's acts or warrants(a), or in other respects by opposing or resorting from one magistrate to another. The greater weight and authority of a bench of magis- trates is in itself likely to discourage, and the magis- trates acting at petty sessions within their respective districts will discountenance, all such opposition or col- lision of jurisdiction, the mischievous consequences of which must be obvious, and which must inevitably tend to destroy all respect for authority, and to disturb the peace which it is emphatically the duty of justices to preserve(). At the same time, however, that the magistrates will feel the discharge of their duties facilitated, and (a) See the observations of Ashhurst, J., in/2. v. Brooke, 3 T. R. 195, in which the legality of the practice of granting a supersedeas is questioned j and it is said, that, at all events, it is to be confined to cases where the offence is clearly bailable. (fe) See the observations of 'Lord Kenyon, C. J., in the case of R. v. Sainsbury, 4 T. R. 456. In this case, in which a question arose as to the right of one set of magistrates to grant an ale license under the provisions of the English Statute, 26 Geo. II. c. 31, s. 4, where such license had been refused by another set of magistrates, who had previously appointed a meeting, pursuant to the Act, for granting ale licenses, it was held, that although both sets of magistrates had a concurrent jurisdiction and might have acted together at the meeting first appointed, yet that the jurisdiction attached in the set of magistrates who had appointed the first meeting, to the exclusion of the separate jurisdiction of the others ; so that the act of the second set of magistrates at the subsequent meeting was not only void, but such a breach of the law as to subject them to an indictment. This particular instance] VIII. And be it further enacted, that it shall and may be to an ^ * r *^ e justices, at every such petty sessions as- justices. sembled, to appoint one fit and proper person to act as their clerk during their pleasure, which clerk shall be authorized to Fees. receive the several fees as by the schedule to this Act annexed ; and that no other or greater fee shall be taken by such clerk, or by any other person, for any summons, order, warrant, in- Petty Sessions Acts. 87 formation, recognizance, conviction, or for any other matter or thing done by the said justices at the petty sessions. IX. Provided always, that it shall and may be lawful to the Appropriation justices of such petty sessions, if they shall so think fit, to keep of fees * or require to be kept an account of all such fees ; and in case such fees shall amount to any greater sum than such justices shall consider to be and shall have been fixed as an adequate re- muneration for such clerk as aforesaid, to appropriate any balance remaining after the payment of such clerk to the purchase of Books and sta- stationary and necessary books for the use of such petty ses- tlonar y* sions as aforesaid. X. And be it further enacted, that a printed table of the A table of fees said fees shall be affixed within every court house or public *y * QU * t e justice room wherein such petty sessions are holden ; and if house. any other or greater fees than those set forth in the schedule are demanded or taken for any act, matter, or thing done at the said petty sessions, any person so offending shall forfeit the sum of five pounds, to be recovered by civil bill by any person who shall sue for the same ; provided nevertheless, that no fee what- Penalty for soever shall be demanded, taken, or received by any clerk to ^ ng olher such petty sessions, or by any clerk to any justice of the peace, or by any other person, for any summons, warrant, information, recognizance, or other magisterial act, done by any justice at No fees except any other time, place, or any other manner than at the petty ^J^ " sessions. XI. And be it further enacted, that a registry or record in A registry of writing shall be kept by each and every clerk of petty sessions ^c^din^s to of all acts or orders and proceedings done at such petty sessions, be kept, whether in civil or criminal cases, in the manner and form set forth in the schedule to this Act annexed ; such registry or record to be signed, on each day upon which such petty ses- sions shall be holden, by all the justices present ; and that no summons, warrant, conviction, committal, information, recog- nizance, or any other magistetial act or order of any kind, be issued or signed at such petty sessions, without the making an entry thereof in the said record or registry. XII. provides that all informations and recognizances sworn Informations, and acknowledged at the said several petty sessions, or transmit- &Ctt be trans " 88 Petty Sessions Acts. milled lo clerk of the crown. Enlry lo be made of all cases where a single justice acts. Lisl of informa- lions, Sec. where a singlejustice acts, to be laid before quarter sessions. Signature of warranl, &c. Justices of petty sessions may determine cases although com- plaint made before other justices. ted thereto, shall, once in every month be transmitted to the clerk of the crown or clerk of the peace of the county, &c., and that the office of every such clerk of the crown or peace shall be kept open from twelve till three each day, certain days excepted. [But see now St. 6 & 7 Will. IV. c. 34, sects. 6 and 11, post, pp.91 and 95.] XIII. And be it further enacted, that in all cases in which it becomes necessary for a single justice to act magisterially, not being in petty sessions, save and except in the issue of summonses, such magistrates do report such case, together with the informations taken or recognizances sworn and ac- knowledged, to the petty sessions then next ensuing, to be holden for the district in which such case had arisen ; and that a particular entry be made in the registry of such petty ses- sions of every such case. [And see further 6 & 7 Will. IV. c. 34, s. 5, post, p. 91.] XIV. And be it further enacted, that a list of all informa- tions and recognizances sworn and acknowledged before jus- tices acting singly be made out by the respective clerks of the crown and of the peace, and shall be laid before the judges of assize and justices in quarter sessions respectively, together with the names of the justices before whom such informations and recognizances were sworn and acknowledged. XV. And be it further enacted, that every warrant, infor- mation, conviction, committal, recognizance, or order of the justices at petty sessions, shall be signed by two justices at the least, and not by any one person as chairman and on the be- half of others ; and that no summons, warrant, or order be signed by any justice or justices of the peace, unless the blanks in the same shall have been first duly filled up. [As to signa- ture by two justices, repealed by 6 & 7 Will. IV. c. 34, s. 7, post 92.] XVI. And be it further enacted, that it shall and may be lawful to and for any justices at petty sessions to hear and pro- ceed and determine upon any case in which such justices have jurisdiction by law, although the summons for the same may have been issued, and the complaint received, by any other justice acting singly, or by any other justices at a previous Petty Sessions Acts. 89 meeting of such petty sessions, in such and the like manner as if the first complaint was made, and the summons issued, by the same justices before whom the subsequent proceedings were had and taken. XVJI. relates to the attendance of constables under 3 Geo. IV. c. 108, now provided for by 6 Will. IV. c. 13, s. 15, ante, p. 19. The Schedule contains forms which will be found in the Ap- pendix ; and the Table of Fees, post, p. 96. STAT. 6 & 7 Will. IV. c. 34. I. recites 7 & 8 Geo. IV. c. 67, s. 1 , " and that there are some counties in Ireland which were not so divided at the Janu- ary sessions holden next after the passing of the said Act, and it is expedient that the same should be so divided, notwithstanding the time for doing so has expired :" be it therefore enacted, &c. Counties, &c. that it shall and may be lawful to and for the justices of the peace, ^ save and except within the county of Cork, of any county, not y e t divided county of a city, or county of a town, which has not been di- into districts for holding petty vided into districts for holding petty sessions under the said ses sions may recited Act, and they are hereby required within their respec- b , e so divided at J J r the October tive jurisdictions at the October sessions to be holden next after Sess i ns after the passing of this Act, or at any subsequent January sessions, ^f passing of r this Act (July, to divide the county, county of a city, or county of a town for 1336) or at which such sessions shall be holden into such districts for the any January purposes of the said recited Act and of this Act as to them shall seem most expedient, fixing within every such district a place or places wherein the petty sessions shall be holden for such district respectively ; and every such division may be al- tered, and such order in writing shall be made, specifying the boundaries thereof, as is directed by the said recited Act, and the several other matters directed to be done in respect of any such division by the said recited Act shall be done and per- formed upon and in respect of every such division made under the authority of this Act, and every such division shall be as valid and effectual to all intents and purposes as if the same had been made at the January sessions next after the passing of the said recited Act, and every petty sessions court held in any such district shall be subject to all the rules and regulations N 90 Petty Sessions Acts. made and provided in and by the said recited Act as to the ap- pointment of a clerk to said court, and the taking of fees there- in, and to all other matters to be done at such court, or by any magistrate or magistrates therein, as if the same were ex- pressly repeated in this Act and re-enacted herein, save so far as the same are varied or altered by this Act. Justices to take II. And be it further enacted, that in every case where any dence iifcrimi- ma gi strate or magistrates shall at any petty sessions court ap- nal cases in pointed under the said recited Act or this Act proceed in a summary way to try any information or complaint of a crimi- nal nature, or upon which any pecuniary or other penalty may be awarded, such magistrate or magistrates, or one of them if there be more than one, shall take or cause to be taken a note or minute in writing of the evidence given on oath for the pro- secution and for the defence, or of so much thereof as shall be material, in a book to be kept in said court by the clerk of the said petty sessions, should the plaintiff or defendant so require it, with the registry or record of the proceedings done at such petty sessions, and such book shall be signed by the justice or justices by whom such information or complaint shall have been heard on the day on which such complaint or information shall have been determined. Clerk of petty HI. And be it further enacted, that the clerk of every petty sessions to keep sessions court shall enter in the book kept by him, containing a record of the proceedings at petty sessions, an account in writing of all fines or penalties, or portions of fines or penal- ties, imposed at said court, and paid to or deposited with him by order of the justices attending thereat or otherwise, and of the appropriation thereof, and such account shall be always open to the inspection of any justice at such petty sessions; and if he shall neglect to do so, or shall make any false entry in such account, he shall forfeit for every such offence a sum of five pounds, to be recovered by any person who will sue for the same by civil bill before the assistant barrister of the county. Clerks of petty IV. And be it further enacted, that once in every three sessions to make mon ths after the passing of this Act, the clerk of every petty returns to the /* J Chief or Under sessions court shall make out and transmit to the Chief Secre- Secretary. tar y to tne L or d Lieutenant of Ireland, or in his absence to the Petty Sessions Acts. 91 Under Secretary for the time being, a return under his hand, in the form in the schedule to this Act annexed, of the proceedings at such petty sessions, and also the appropriation of all fees, fines, penalties, and portions of fines and penalties received by the justices or clerk of such petty sessions, and that every such clerk who shall wilfully make default in transmitting such return, or shall wilfully make an untrue statement therein, shall, on conviction thereof before any two justices of the peace of the said county, forfeit and pay for every such offence any sum not exceeding five pounds, to be levied by distress and sale of the goods and chattels of such person so offending. V. And be it further enacted, that from and after the pass- informations, ino: of this Act every information, examination, and recogni- &c. taken before & , , . . . justices to be zance sworn, taken, or acknowledged by or before any justice transmitted to or justices not sitting in petty sessions, shall with all conve- clerk of petty , sessions, and a nient despatch, and at the latest before the petty sessions then j ist thereof for- next ensuing for the district where the case may have arisen, warded by him , r , ,. . to the Chief Se- be transmitted to the clerk of petty sessions of such district ; cretary every and shall be by him laid before the bench of justices at the three months, next petty sessions after he shall have received such informa- tions, examinations, and recognizances ; and every petty ses- sions clerk shall keep a distinct and separate list of the infor- mations, examinations, and recognizances so transmitted to him, containing the subject matter thereof, the dates of the taking or acknowledging of the same, and the dates of the receipt of the same by him respectively, and shall every three months transmit a copy of such list to the Chief Secretary to the Lord Lieutenant, along with the quarterly return of the proceedings at petty sessions. VI. And be it further enacted, that from and after the pass- i n f ormat i ons ing of this Act every information, examination, and recogni- &c. at petty ses- zance sworn, taken, or acknowledged at any petty sessions in Slons l ? . . Ireland shall be transmitted by the magistrates at such ses- 14 days from sions, or the clerk of such petty sessions, to the clerk of the the committal or bailment of crown of the county, county of a city or county of a town in the accused. which such sessions are holden, if the same shall relate to any matter to be tried or inquired into at the assizes, and if to any matter to be tried or inquired into at the quarter sessions, then 92 Petty Sessions Acts. to the clerk of the peace of such county, city, or town, fourteen days at the latest from the date of the committal for trial, or of the bailment of the party or parties accused by or in such infor- mations, or of the taking of such recognizance, as the case may be, together with all such informations, examinations, and recogni- zances taken by or before a justice or justices not sitting in petty sessions as may then be in the hands of such petty sessions 9 G. IV. c. 54. clerk, any thing in the said recited Act, or in 9 Geo. IV. c. 54, to the contrary thereof notwithstanding ; and the clerk of the petty sessions shall on every such information and recogni- zance endorse the true date of its being so transmitted, and shall, on the day before the day for holding each petty session, enter in the book containing an entry of the proceedings at the petty sessions, an account in writing stating the particu- lars of the informations so transmitted by him since the last sitting of such petty sessions, and to whom transmitted, and shall sign such account ; and if any clerk of petty sessions shall omit or neglect to transmit any such examination, infor- mation, or recognizance to the officer to whom it ought to be transmitted within the time aforesaid, or to enter or sign such account as aforesaid, he shall forfeit for every such omis- sion or neglect a sum of five pounds, to be recovered by civil bill, before the assistant barrister of the county, by any person who will sue for the same. One justice may VII. recites 7 & 8 Geo. IV. c. 67, s. 15, ante, " and that in act at petty ses- consequence of said enactment requiring the attendance of two sions in certain . cases, justices at every petty sessions, frequent adjournments of such petty sessions have taken place from the non-attendance of a sufficient number of justices, although in many cases one jus- rice would be legally competent to transact certain parts of the business to be disposed of at such petty sessions ; for remedy whereof in such cases," be it therefore enacted, that in all cases in which by law any warrant, conviction, committal, or order may be made, or if that Act had not been passed might have been made by, or any information or recognizance taken before one justice of the peace alone, it shall and may be lawful to and for any one justice of the peace attending alone at the time and place fixed for holding any petty sessions to proceed in open Petty Sessions Acts. 93 court, notwithstanding the absence of any other justice or jus- tices, to hear, determine, and dispose of all complaints, infor- mations, matters, and things whatsoever, then ready to be heard, determined, and disposed of at such petty sessions, which one justice of the peace is or may be by law competent to hear, de- termine, or dispose of, or which might have been heard, deter- mined or disposed of by one justice if that Act had not passed, and to sign any warrant, conviction, order, or committal, and to take any information or recognizance upon or relating to every suit, complaint, information, matter, or thing which by law one justice sitting alone is or may be empowered to sign or take, or could have signed or taken, if that Act had not been passed. VIII. And be it further enacted, that every justice of the Justices to bind peace at petty sessions or elsewhere, who shall receive any in- P ar . ties J - formation on oath from any person complaining of his or her assaults in re- having been assaulted, and who shall thereupon sign any sum- attend^etT ^ mons or warrant against any person or persons in order to their sessions and attending at any petty sessions to answer such complaint, shall P rosecute ' be at liberty, if he shall think fit, before issuing such summons or warrant to be served or executed to bind the party or par- ties complainants in such information, by recognizance to our lord the King, in a sum not exceeding twenty shillings, to attend and prosecute their said information at such petty ses- sions ; and it shall and may be lawful for the justices at such Recognizances petty sessions, or any one acting as aforesaid, if he or they shall think fit, to estreat any such recognizance on default of the attend, party or parties thereto in not attending and prosecuting their said complaint and information, and to return the same to the clerk of the peace of the county, county of a city, or county of a town ; and it shall be lawful for the assistant barrister at the next quarter sessions, if he shall think fit, to issue his decree for the levying of the whole of the sums secured by such recog- nizance, or such part thereof as he shall think proper, and to direct the same to be paid to such infirmary, hospital, or dispen- sary as he shall think fit, and such decree shall have the force of any decree of such assistant barrister, and shall be in such form as he shall think proper. 94 Petty Sessions Ads. Justices em attend at petty Justices at petty sessions may fix the infirmary, &c. to which fines at petty sessions are to be paid. IX. And be it enacted, that in any civil or criminal pro- cee( * in g * n which any justice or justices of the peace has or have or shall under any Act to be hereafter passed have jurisdiction to hear and determine any complaint, such justice or justices shall have full power and authority to compel the attendance of any person, resident or being within the county or district for which he or they is or are a justice or justices, as a witness at any petty sessions on the hearing of such complaint, and to ex- amine such person as to the matter of such complaint, or the defence thereto, and to punish such person for disobedience to any summons requiring him to attend, or for refusing to be examined, as fully as any such justice or justices could do if such person had been summoned to give evidence at any gene- ral sessions of the peace in any criminal matter, and had refused to obey such summons or to give evidence. x < r found drunk f j j i i j in the streets - found drunk in any street, square, lane, road, way, or other public thoroughfare, may be apprehended by any justice of the peace, constable, peace-officer, church- warden, or overseer, and forthwith carried before a justice of the peace within whose jurisdiction he is found, to be dealt with according to law. By the Act for the prevention of cruelty to animals(a), Persons beat- any constable, or other peace-officer, or the owner of |^J r operiy S ' F the animal misused may, on view, or on the information driving animals. of another person, giving his name and place of abode, apprehend offenders against the Act, and carry them forthwith before a justice within whose jurisdiction the offence was committed. There are also some local and other Acts by which an arrest without warrant is authorized, which are omitted as being of doubtful or less general application. It will be observed that some of the offences in- where offence eluded in the Statutes above enumerated are felonies, isfelon y in which, therefore, the constable, independently of their provisions, has the same power to arrest as in other cases of felony. On the other hand, in some in- or punishable stances, they relate to offences punishable on summary conviction ; but in these they make a most important alteration in the authority of officers, for in this class of cases an offender is generally not liable to arrest, in the first instance, even under a warrant, but his appear- ance should first be required by summons(). (o) 5 & 6 Will. IV. c. 59, s. 9, extended to Ireland by 1 Viet. c. 66. (ft)Paley.p. 37, post, Part III. Arrest by a Justice of the Peace. X Power of a jus- Having seen in what instances a constable is em- tice of the peace powered to arrest without warrant for felonies or mis- to arrest with- r out warrant. demeanors, it may be stated generally, that wherever an arrest by a constable, of his own authority, and without warrant, is either permitted or enjoined by law, in every such case, cl fortiori t such arrest by a justice of the peace in person is also permitted or enjoined(#). The preceding part of this chapter, in which the power of the constable to arrest without warrant is stated, may, there- fore, be referred to as applying equally to that of the ma- gistrate whose authority to arrest upon view or suspicion, and without information taken, will be found nearly si- milar, being either that which they possess in common with every other subject, or that which is given to them in their common character of conservators of the peace, or under the provisions of particular Statutes. Power of a jus- A justice has also a further power in some cases, by a verbaUom- y word of mouth, and without warrant, to command an mand. arrest to be made. Thus he may not only himself ar- rest in the several instances above stated, but he may also, by word of mouth, authorize any one to arrest another who has committed a felony or an actual breach of the peace in his presence, and the persons thus au- thorized may proceed as if empowered by warrant : but if the felony or breach of the peace be committed in his absence, then he ought to issue his warrant for this purpose(6). As, however, the magistrate is seldom (a) 2 Hawk. c. 13, s. 13 ; Dalt. c. 8, s. 6. The above position is laid down thus generally by Serjeant Hawkins, yet, it is to be observed, that where a power to arrest without warrant is created by Statute, it is, in a few instances, given specially to constables without naming justices of the peace. (6) Dalt. c. 169, s. 1 ; 2 Hale, 86, 87. Lord Hale here adds, " and note that if the justice hath either from himself, or by credible information from others, knowledge of a felony done, and just cause of suspicion of any person, he may himself arrest and commit that person." But this seems an unsafe course as regards his subsequent justification : see Comb. 359 j Summ. 93 j 1 Chit. Cr. L. 78,25. Arrest by Justice of the Peace. H3 called upon to arrest, or even to command an arrest to be made in person, and without warrant, except in cases of riot, or such disturbances as are pregnant with serious danger to the public peace, in which his per- sonal interposition should always be given, it may be sufficient here to refer to the observations in the next section. A magistrate is not authorized to arrest and hold J- P- not au- . ., thonzed to keep in custody a known person amenable to the law until a p arty ; n cus . another person shall have come to prefer a charge l d y tl1 . 1 a against him (a). There may be cases of flagrant cha- brought against racter and emergent circumstances which will warrant him a magistrate in arresting a person upon whom a strong suspicion of a crime attaches, and who is likely to es- cape from justice altogether unless promptly appre- hended; but a magistrate has no right to detain a known person to answer a charge of misdemeanor ver- bally intimated to him without a regular information^). In some instances particular Statutes have given jus- tices power to arrest certain persons although not sub- ject to indictment ; but in the exercise of these powers the special provisions of the Statutes must be strictly (a) In a late case, (Ennet v. Sir T. D. Osborne, Q. B. Trin. T. 1840,) this principle was held to apply to felonies. The plaintiff's son had been ar- rested for a felony and the plaintiff had followed to the house of the defendant, who was a stipendiary magistrate ; the defendant look no information, but de- sired the constable to take the plaintiff to the house where the felony had been committed, and, if the owner identified him, to commit him. The plaintiff brought an action for false imprisonment. The judge at the trial was required, on the part of the defendant, to leave it to the jury to say whether there was such a reasonable suspicion of a felony in the defend- ant's mind as would be a justification, (see ante,) which the learned judge refused to do. A verdict having been found for the plaintiff, a bill of excep- tions was preferred to the judge's charge, which was, on argument, held cor- rect, and the exceptions overruled. (b) Per Crampton, J., in Atkinson v. Carty, 1 Jeb. & Sy. 387 ; see also R. v. Birnie, I M. & Rob. 160 ; 7 C. & P. 485 ; and see 6 D. & R. 624. Q 1 1 4 Arrest of suspected Strangers. pursued, the magistrate not being authorized to commit the party generally, as in other cases, for trial, but only for the time and in the manner directed by the respec- Magistrates fa e Acts which confer this power. Thus by 50 Geo. strangers, 5 and III. c. 102, an Act for preventing the administering and oToTth 6 and ta k m g ^ un ^ aw ^ oaths, and for other purposes, it is commit for enacted, s. 7, that it shall be lawful for any justice of want of surety ; ^ p eace to arres t and bring before him, or cause to be arrested or brought before him, any stranger so- journing or wandering, and to examine such person on oath respecting his or her place of abode, the place from whence he or she came, his or her manner of live- lihood, and his or her object or motive for remaining or coming into the county, city, or town, in which he or she shall be found, and unless he or she shall answer to the satisfaction of such magistrate, or produce suffi- cient security for his or her good behaviour, such ma- gistrate shall commit him., or her to jail or the house of correction, there to remain until he or she shall find such security as aforesaid, or until he or she shall be and shall forth- discharged by such magistrate. Provided always, that report oTihQ * sucn magistrate shall, without delay, after such commit- proceedings tal, transmit to the Lord Lieutenant a true and faithful report of such committal, and the grounds and reasons nant thereof, the amount of bail required, with the examina- tion of the prisoner, and the reasons alleged by him why he or she should not be committed, (and which and receive his such magistrate is required to take down in writing,) in dispo^itton^of 116 OT & e * that such person may be detained or discharged the party. as to the Lord Lieutenant may seem right. Justicesem- By Stat. 59 Geo. III. c. 41, which was passed to ap^encfand establish regulations for preventing contagious diseases remove beggars, in Ireland, it is, s, 9, provided, that, for the purpose con'tagion? Ve ^ preventing the danger of contagion and other evils from the unrestrained intercourse of strolling beggars, vagabonds, and idle poor persons seeking relief, it shall Arrest of Beggars to prevent Contagion. be lawful for any justice of the peace within his jurisdic- tion, (or for any church-warden of any parish, or for any officer of health appointed under this Act in any parish,) and they are hereby respectively empowered and required to apprehend all idle poor persons, men, women, or children, and all persons who may be found begging or seeking relief, or strolling or wandering as vagabonds within any parish or place ; and to direct and cause all such idle persons, beggars, and vagabonds to be re- moved and conveyed out of and from such parish and place, in such manner and to such place as the nature of the case may require; and any such justice of the May commit for peace, upon his own view, or upon the complaint of any J^^ "revious church-warden or officer of health, may commit any to removal j such strolling beggar, or vagabond, or idle poor person to any bridewell or house of correction, or other pub- lic place of confinement, for any time not exceeding twenty-four hours, previous to their removal or depar- ture out of such parish, during which time the church- warden or officer of health for the parish, may cause and cause them their persons and clothes to be washed and cleansed ; to be washed - and the justices at quarter sessions may appoint, by agreement with the owner, any suitable unoccupied building to be a place of confinement for this purpose ; and all beadles, constables, and peace-officers within Constables to their respective districts are required to assist the jus- assist * tices, church-wardens, and officers of health in the ap- prehension, confinement, and treatment of such poor persons. And, by s. 10, resisting or opposing any per- son acting in execution of this Act, subjects the of- fender so opposing, on conviction before two justices, by the oath of one witness or confession of the accused, to a penalty at their discretion, not less than ten shil- Penalty for lings or more than five pounds, or committal for not resistance - more than three months in default of payment. The powers conferred by these last mentioned Sta- 116 Arrest of Vagrants. tutes are to be distinguished from the provisions of the Acts in force for the suppression of vagrancy, and by which it is made an offence triable at the assizes. Thus Stat.6 Anne, c. 11, as amended by Stat. 9Geo, II. c. 6, enacts, that all loose idle vagrants, and such as Vagrants herein will not work nor betake themselves to any honest trade t^ns'orfed^n 6 or livelihood, but wander about demanding victuals, presentment of and coshering from house to house amongst their fos- assizes^ terers, followers, and others ; and also loose persons of infamous lives and characters (a), shall, upon the pre- sentments^) of the grand juries at the assizes, where such persons keep or frequent, and upon the warrants from the justices of assize, be sent to jail, there to re- main without bail until they shall be sent on board his Majesty's fleet, or to some of his Majesty's plantations in America(c), whither such justice or justices of assize Unless security are authorized to send such persons, unless they give behaviour 60 sufficient security to be -of good behaviour. There are also special provisions allowing the presentment to be made at other times in the city and county of Dublin. Every person so presented may traverse the presentment, and until the traverse be tried shall con- tinue in jail without bail, unless he shall give security by recognizance to be of good behaviour, before such judge, justice, or justices, as shall be for that purpose (a) Females are, however, not within this Act ; and it seems there is not any Statute in Ireland authorizing the indictment, or presentment of women being vagrants or of infamous character. R. v. Adams, I Cr. & D.C. C. 140. (6) The form of proceeding by presentment differs from that by indict- ment in this, that a presentment is taken in the first instance by the grand jury, of some offence within their knowledge, and into which it is their duty to inquire, whereas the indictment is preferred to them. 4 Blac. Com. 301 ; 5 Burn, 288 ; 1 Chit. Cr. L. 163 j but in other respects an indictment and presentment are nearly similar. (c) Persons under sentence of transportation may be transported to such parts beyond the seas as the Lord Lieuteant shall think proper. 30 Geo. III. c. 32. Of Breaches of the Peace. 117 appointed by the court where such presentment is made ; and in case such person shall be at large at the time of such presentment, the court shall award pro- cess to issue against him, and if he be taken upon such process, or by warrant from any justice of the county, he shall be committed to jail, there to remain, without bail, till the next assizes, unless he shall give security by recognizance to be of good behaviour, before such justice or justices of the peace as the court, at the time of awarding process, shall nominate. And such person so presented and apprehended, who shall be unable to give such security, or against whom such traverse shall be found, shall be sent on board his Majesty's fleet, or transported to America. There are also some older Statutes on the same subject which, though unrepealed, are at the present day obsolete(a). SECTION II. The powers of the magistrate and constable to in- Power to arrest r ft . . , p -i i different in af- terfere for the prevention or punishment ot breaches f ray an d riot, of the peace, are different in cases of such sudden offences as assaults and affrays, and in the more de- liberate crimes of riot, rout, and unlawful assembly. Previous to considering the authority of the justice and officer to arrest in these cases, it will be necessary, therefore, to inquire briefly in what these several of- fences consist and how they are distinguished^). (6) Such are 25 Hen. VI. c. 7, to restrain the sons of husbandmen from becoming kearnes, evil doers, &c. ; and 10 & 11 Car. I.e. 16, for the suppression of cosherers and idle wanderers; to these may be added 11 & 12 Geo. III. c. 30, providing for the granting to the helpless poor badges and licenses to beg, and that unlicensed beggars should be put in the stocks, or, if old offenders, imprisoned and whipped. See Hay. Cr. L. 305, o, et seq. ; Gab. Cr. L. 912, n. (6) The law upon this subject will be found fully treated in 3 Inst. cc. 118 Of Breaches of the Peace. What an affray. Affray distin- sence of pre- Though assem- ^ e n d t fo u r r an o 1 s no ' the parties may I riot, An affray, in the ordinary signification of the term, ma y b e described as the fighting of two or more per- sons in some public place to the terror of his Majesty's subjects(a) ; or, as it has been defined by high authority, it is a public offence to the terror of the King's sub- jects, so called because it affrights and makes men afraid(^) : and, therefore, although the commission of actual violence or fighting is generally considered an ingredient in this offence, yet it is held that there may, in some cases, be an affray where there is no actual violence or fighting, as where persons arm themselves with dangerous and unusual weapons, in such a man- ner as will naturally cause a terror to the people(c). The offence of affray may be considered in general as distinguished from that of riot, rout, or unlawful as- sembly, by the absence of any premeditated or precon- certed purpose among the parties ; as, for instance, where a number of persons being met together at a fair or market, or on any other lawful or innocent occasion, happen on a sudden quarrel to fall out, this appears to amount to an affray only, on the ground of the de- sign of their meeting being innocent and lawful, and the subsequent breach of the peace happening unex- pectedly without any previous intention(d). But if upon a dispute happening to arise among them, they form themselves into parties with promises of mutual assistance, and then make an affray ; or if, upon a sudden proposal started, they go in a body to do any act of violence, and execute such purpose, there can 72, 73, and 79 ; 1 Hawk. cc. 63 and 65 j (1 Curw. 487, et seq., 513, &c.;) Burn, Tits. Affray, Riot; 4 Blac. Com. c. 11. (a) 1 Rus. 270 ; 4 Blac. Coin. 145. (6) 3 Inst. 158 ; 1 Hawk. c. 63, s. 1 j (1 Curw. 487 ;) 1 Burn, 54. (c)Larob. 126 ; 1 Hawk. c. 63, s. 4 ; (1 Curw. 488 j) 1 Burn, 55 ; 1 Rus. 271. (d) 1 Hawk. c. 65, s. 3 j (1 Curw. 514.) Of Breaches of the Peace. 1 19 be no doubt that they are rioters, and they will not be exonerated from the guilt of the greater offence by their having been assembled at first upon another and an innocent purpose. An affray differs also from a Affray distin- riot in this, that two persons may be guilty of it, JjJJ" e whereas three persons, at least, are necessary to con- stitute a riot in its legal sense(). But both offences have this in common, that they must be public, and, as it is expressed, to the terror of the people ; hence it From assault, follows that there may be an assault which will not amount to an affray, as where it happens in a private place out of the hearing or seeing of any except the parties concerned, because in such case it cannot be said to be to the terror of the people. So also, although an affray may be, in some cases, where there is no ac- tual violence, as in the instance before stated ; yet it is held that no mere quarrelsome or threatening words whatsoever can amount to an affray, bare words not being considered in the judgment of law to carry with them that degree of terror essential to constitute this offence(6). And so shouting "hear, hear," and putting questions to the chairman at a public meeting, is not a breach of the peace(c). The several offences of riot, rout, and unlawful as- sembly have been thus described: I. A riot is said to What is a riot. be a tumultuous disturbance of the peace by three per- sons or more assembling together of their own authority, with an intent mutually to assist one another against any who shall oppose them in the execution of some enterprize of a private nature, and afterwards executing the same in a violent and turbulent manner, to the ter- ror of the people, whether the act intended were of it- (a) Id. s. 1 ; (1 Curw. 513 ;) 4 Blac. Com. 146. (fr) 1 Hawk. c. 63, ss. 1, 2, 4 ; (1 Curw. 487, 8.) (c) Wooding v. Oxley, 9 C. & P. 1. 120 Of Breaches of the Peace. What a rout. What an un- lawful assem- bly(c). Different defi- nition. self lawful or unlawful(a). II. A rout seems to be, ac- cording to the general opinion, a disturbance of the peace by persons assembling together with an intention to do a thing which, if it be executed, will make them rioters, and actually making a motion towards the exe- cution of their purpose. In fact, it generally agrees in all particulars with a riot, except only in this, that it may be a complete offence without the execution of the intended enterprise^). III. An unlawful assembly, according to the common opinion, is a disturbance of the peace by persons barely assembling together with an intention to do a thing, which, if it were executed, would make them rioters, but neither actually execu- ting it, nor making a motion towards its execution(e?). Serjeant Hawkins, after defining this last mentioned offence, as above stated, according to what he calls the common opinion, adds, that this seems to be much too narrow a definition ; for any meeting whatsoever of great numbers of people, with such circumstances of terror as cannot but endanger the public peace, and raise fears and jealousies among the King's subjects, seems properly to be called an unlawful assembly(tf) ; and this more comprehensive description of the of- fence seems to be more generally adopted. Thus in a very late case the learned judge stated it to be the law of the land, that any meeting under such circumstances, as, according to the opinion of rational and firm men, (a) I Hawk. c. 65, s. 1 ; (1 Curw. 513.) This description was adopted by the court in the case of Forbes and others, tried for a riot in Hawkins'- street theatre in 1823, see Rep. p. 346. (b)Id. s. 8 ; (I Curw. 5 16.) (c) See also in the subsequent part of this chapter, the provisions of several Statutes, constituting and declaring certain assemblies, therein par- ticularly described, to be unlawful assemblies. (d)R. v. Bin, 5 C. & P. 154. () 1 Hawk. c. 65, s. 9 j (1 Curw. 516.) Of Breaches of the Peace. 1 2 1 are likely to produce danger to the tranquillity and peace of the neighbourhood is an unlawful assembly(a). It is also to be observed, that the offence of riot has Different defi- been differently described by high authority ; thus an nitionofriot - eminent judge has said, " I take it that it is not necessary to say the parties assembled for such a purpose, but there must be an unlawful assembly ; if a number of men assemble with arms, to the terror of the people, though no act is done, it is a riot(6) ;" and, in accord- ance with this more enlarged description of the offence, it has been stated by a learned judge, that if persons endeavour to effect an object by tumult and disorder, they are guilty of a riot, and that it is not necessary, in order to constitute this offence, that actual violence shall have been committed(c). Such also seems to be the meaning of the word in the Riot Acts(ef). But whether, in order to constitute the offence of Degree of vio- riot, there must, according to some opinions, be an ac- lence or terror * tual execution of the purpose for which the parties assemble, or some act of violence done, or whether, ac- cording to others, an endeavour to effect their purpose be sufficient, it seems clear that in every riot there must (a) By Alderson,B. mReg. v. Vincent, 9 C.&P.;J109; but see uZ.p.94, in note. This definition seems also adopted in Redford v. Birley and others, 3 Stark. N. P. C. 1 06, which latter case, and the case of R. v. Hunt, there- in cited, arose out of the Manchester riots j and the learned judge, Mr. Justice Holroyd, states, that in thus describing this offence, he adopts the language used by Mr. Justice Bayley, in the former case of R. v. Hunt, in his directions to the jury, which are said to have been afterwards con- firmed by the Court of King's Bench j see id. 108, 105 ; and the case of R. v. Hunt, 3 B. & A. 567, 576. (6) By Holt, C. J., in R. v. Soley, 11 Mod. 116, 117. (c)By Mansfield, C. J., in Clifford v. Brandon, 2 Campb. 369. But see contra 1 Hawk. c. 65, s. 4 (1 Curw. 514 ;) ante, p. 120, n. (a) ; and the observations of Holroyd, J., in Redford v. Birley, 3 Stark. N. P. C. 102; R.v. Bin, ubisup. (?) R. v. Wool cock, 5 C. &. P. 516, 122 Of Breaches of the Peace. Immaterial whether the object sought be lawful or unlawful. be some such circumstances either of actual force or violence, or of an apparent tendency thereto, as are naturally apt to strike a terror into the people, as the show of armour, threatening speeches, or turbulent gestures, for every such offence must be laid to be done to the terror of the people. And the degree of terror must be such as would alarm persons of rea- sonable firmness and courage, and not merely sufficient to frighten a foolish or timid person (a). And from hence it follows, that assemblies at wakes or other festival times, or meetings for the exercise of common sports or diversions, as bull-bating, wrestling, and such like, are not in themselves riotous(&). Prize fights are, how- ever, unlawful assemblies, and no consent whatever can make them legal, every one going thereto being guilty of an offence and indictable accordingly(c). It appears, therefore, that these offences do not de- pend upon the legality or illegality of the object for which the offenders have assembled. Thus they may assemble for the purpose of executing, and even exe- cute, an unlawful act without becoming rioters, as if it be to carry away something to which one of them pre- tends a right, and the number assembled is no greater than is necessary to bear it conveniently, and there be no threats or violence. So though the object be legal, as if it be to obtain entry into lands to which one of the parties has a rightful claim, or to remove a nuisance, (a) Reg. v. Vincent, ubi sup. and infra, n. (6). (6) 1 Hawk. c. 65, s. 5 ; (1 Curw. 515 ;) R. v. Hughes, 4 C. & P. 372. But see in 2 Chit. Cr. L. 494, an indictment said to have been drawn by an eminent pleader for the purpose of suppressing an ancient custom of kicking foot- ball on Shrove Tuesday ; and see 1 Roll. R. 109, Sir Anthony Ashley's case j Dalt. c. 136, s. 3 ; 19 Vin. Abr. Riots, (A.) 8 ; 1 Russ. 248, n. (g). So by an old Stat. 2 Anne, c. 6, meetings at St. Patrick's Purgatory were declared unlawful. (c) 2 Burn, 833, post, p. 130. Of Breaches of the Peace. 1 23 or other thing which may be lawfully done in a peace- able manner, yet, if the parties proceed by violence and tumult to effect their purpose, they are, in point of law, as much rioters as if the act intended to be done by them were ever so unlawful, and they may, therefore, be arrested as such ; for the law will not suffer persons to seek redress of their private grievances by force or by such dangerous disturbances of the public peace ; although the intention, with which the parties have acted may be considered as some mitigation of the of- fence (a). It has also been laid down that if any person en- Any person courages, or promotes, or takes part in riots, whether Ifo ifa'rioter.* by words, signs, or gestures, or by wearing the badge and ensign of the rioters, he is himself to be considered a rioter; for in this case all are principals (b). Lastly, it has been stated in the definition of a riot, If the object of that the injury or grievance complained of, or intended pect^pubHc^ 8 to be redressed or revenged, where it relates to some matters it may , , , amount to trea- private quarrel only, properly constitutes this offence. S on. By which it is not meant that when the disturbance arises from some public cause it is not criminal in an equal degree, and may not be repressed by the same means, as in case of riot strictly so called, but that, in such latter case, as where the object of the parties professes to be to redress public grievances, or to reform religion (a) 1 Hawk. 65, s. 7 ; (1 Curw. 515 ;) R. v. Birt, 5 C. &. P. 154 ; 5 Burn, 334, 335 ; and see 12 Mod. 648. (6) By Mansfield, C. J., in Clifford v. Brandon, 2 Campb. 370; and see 1 Hale, 463 ; 1 Hawk. c. 65, s. 3 ; (1 Curw. 514). The offence of riot being but a misdemeanor at common law, (1 Hawk. c. 65, s. 12 ; 1 Curw. 517 ; 4 Bur. 2075,) it follows, therefore, that it can have no ac- cessaries, and that all persons concerned, therein, if guilty at all, are princi- pals; (I Hale, 613; 4 Blac. Cora. 36). And persons present aiding and abetting in the offences created by the Riot Act, are principals in the se- cond degree. R. v. Royce, 4 Burr. 2073, 2081. Arrest by Constable for Breach of the Peace. or such like, the offence assumes the deeper guilt of rebellion or treason. Power of con- Having thus inquired what are the different species stable to inter- * m . . pose. of the offences called breaches of the peace, it remains to be seen what are the powers of constables to inter- pose immediately for their suppression or prevention. By the original authority which a constable possesses, as a conservator of the peace within his county or district, Where a breach he is not only authorised to interpose, without the war- been'co^mitted! rant f a magistrate, where an actual breach of the peace is committed in his presence, whether it be by assault(a), affray, or riot, but he is also bound, at his peril, to use his utmost exertions to suppress it, and to apprehend those who have committed it(6) ; and he may either keep them in custody till the affair is over, or carry them immediately before a justice(c). When the Companions of assault is committed in his presence he may even ar- the offender. . ., ., , . , rest a companion of the' assailant who has taken no active part in the assault, but who has not withdrawn himself, and whose previous conduct was such as (a) In the ordinary acceptation of the term, and as here used, assault appears synonymous with what the law technically terms a battery ; but these offences are, in strictness, distinct. An assault is an attempt or offer with force and violence to do a corporal hurt to another, though without touching the person ; as if one lifts up his cane or his fist in a threatening manner at another, who is near enough at the time to be struck, or strikes at but misses him, it is properly an assault, and so of the doing any other similar act accompanied with such circumstances as denote at the time an intention, coupled with a present ability, of using actual violence against the person of another. Where the injury is actually inflicted it amounts to a battery, (which includes an assault,) and this, however small it may be, as by spitting in a man's face, or in any way touching him in anger without a lawful occasion ; for the law cannot draw the line be- tween different degrees of violence, and therefore totally prohibits the first and lowest stage of it. 1 Hawk. c. 62, s. 1, 2 j (1 Curw. 110 ;) 3 Blac. Com. 120 j 1 East, P. C. 406. (fe) 1 Hawk. c. 63, s. 11 to 17 ; (1 Curw. 482, to 491 ;) 2 Hale, 88 to 90; 1 Hale, 587 j Dalt. c. 116, s. 3; Kits. 41. (c) Selw. N. P. 924, (8th edit.) j 1 Burn, 271. Arrest by Constable for Breach of the Peace. 125 proved that he and the principal offender had conti- nued together with a common purpose(a) ; and it ap- pears that he may take into custody a person who merely stands in his way so as to hinder him from in- terfering to keep the peace(). And it is so far a constable's duty to act for the pre- To prevent a / , -ii. i T , breach of the servation of the peace, that he is authorized to interpose peace b y not merely where a breach of the peace has been ac- affra y ; tually committed, but where it is likely to ensue if he does not interfere, as where persons are armed and pro- vided with weapons ready to fight, or where from other circumstances they appear openly preparing to do so. His authority thus to interpose extends also, not only to cases of riot or affray by numbers of persons assem- bling in parties with such intent, but likewise to pre- vent violence between individuals, as where he sees a person in a fury about to commit an assault upon ano- or assault j ther ; or even in case of threats of violence, as where one person threatens to do any personal harm to ano- or violence ther, he may detain the person so threatening or about threatened > to commit a breach of the peace, and carry him before a justice to be bound in surety of the peace(c). So a constable may take into custody a person in a public- house who is making such disturbance as to create or disturbance alarm and disquiet in the neighbourhood, if he does so in view of the constable(J). A peace officer may even interpose upon the com- May interpose, plaint of another to prevent danger or violence, as, where "f ano^^o" 1 the life or, as it is said, even the personal safety of any prevent vio- one is threatened by another, upon complaint thereof Ience * made forthwith to a constable, he may apprehend the (a) Lewis v. Arnold, 4 C. & P. 354. (6) Levy v. Edwards, 1 C. & P, 40. (c) Dalt. c. 116, s. 3 ; 1 Hawk. c. 63, s. 2 j (1 Curw. 487 ;) Poph. 13 j Moore, 284 ; Kits. 38, 41 ; ante, n. (c) p. 124. (d) Howel v. Jackson, 6 C. & P. 723 ; 1 Burn, 271. 126 Arrest by Constable for Breach of the Peace. party and carry him before a justice to be bound in surety of" the peace(a). Not to arrest But the power of the constable to arrest does not for mere angry ,, ,. , , . , ... words ; extend to cases ot mere disturbance by scolding or angry words, (whether addressed to himself or any other,) without threats of personal hurt, and all that he can do in such case is to command the persons under pain of imprisonment to avoid fighting(). Nor will a mere threat of doing injury to property, as to break the win- dows of a house if a light should be seen at them, be sufficient to justify an arrest(c). So in cases of mere or after the affray or assault, the constable cannot arrest, (as he affray is ended ; . / / i v . -, may in cases of felony,) without warrant, upon the charge of another, after the affray is ended and the peace restored, the offence being a mere misdemean- butmay, under oi*(c?). But where a person entered a shop, and on a t"proST' dis P ute arising between him and the shopman, was renewal or con- requested by the owner jof the shop to go out, but re- fused to do so, and was given in charge to the constable, the arrest was held justifiable to prevent a renewal of the affray (e). So also the arrest was held lawful when a per- (o) 2 Hale, 88 ; 1 East, P. C. 306. This power is confined by Lord Hale and Mr. East to the case of one threatening to kill another ; and it is said by Mr. East that it is grounded on the duty of the officer to prevent a probable felony, and must therefore be governed by the same rules which apply to that case. But it is laid down by another learned writer of high authority, that the constable has a like power even for the prevention of a battery. 1 Hawk, c. 63, s. 2 ; (1 Curw. 487 ;) and see Dalt. c. 116, s. 3 j Hits. 39. (&) 1 Hawk. c. 63, s. 14 j (1 Curw. 499.) (c) R. v. Bright, 4 C. & P. 387. (d) Cooke v. Nethercote, 6 C. & P. 741 ; Fox v. Gaunt, 3 B. & Ad. 798 j 1 East, P. C. 305 ; 2 Hawk. c. 13, s. 8 j 1 Hawk. c. 63, s. 17 j (1 Curw. 491 ;) Dalt. c. 8, s. 5 ; Summ. 92 ; and see the judgment in Clifford v. Brandon, 2 Camp. 371, 367 ; and R, v. Bright, ubisup. j R. v. Tooley, 2 Lord Raym. 1296; 1 Russ, 273, 274, in note, and 506. () Timothy v. Simpson, 1 Cr. M. & R. 757. Arrest by Constable for Breach of the Peace. 127 son assembled with a mob before a shop door, and inter- rupted the owner's business(a). But in general where Better to direct r f n i /> ^i application for the interposition of the officer is not required for the a warrant, preservation of the peace, or where the nature of the offence does not otherwise call for an immediate arrest, the constable should direct the party making the charge to apply to a magistrate for a warrant. But though the officer should not himself, or upon May take the charge of another, arrest for an affray committed out of his view, yet it appears that he may take charge others in his of those who have been arrested by any persons present absence 5 at the affray, and delivered by them into his hands, for the purpose of being carried before a magistrate(). orwhenadan- 3 __ _ gerous wound And, as has been stated(c), the officer may arrest where i s g i ve n. a dangerous wound has been given in the course of the affray. Having thus stated the instances in which a con- Caution to con- stable is authorized to arrest without warrant, for an f^ 16 assault or an affray, committed or threatened, it may be proper to suggest, with respect to the conduct to be observed by him when he thus interposes to prevent or suppress riots or affrays, that it is always expedient Should give no- that he should apprize the parties or give them notice of the intent with which he does so, although in general the same express notification is not necessary as in the instance of private persons interposing, for where the officer acts within his proper district, and is generally acknowledged to bear the office he assumes, or where he is distinguished by his dress or any known ensign of authority, the law will generally presume that the party had due notice of his intention, especially if it be in the day time. It is well, however, that he should at all times apprize the parties by informing them that he is a (a) Ingle v. Bell, 1 M. & W. 516. (6) 1 Hawk. c. 63, s, 17 ; (1 Curw. 491 j) I Russ. 274 ; 1 Burn, 57. (c) Ante, p. 106. 128 Arrest by Constable for Breach of the Peace. constable, or commanding the peace, or using words of the like import, any of which will be sufficient ; and when his ensigns of authority cannot be distinguished, as in the night, such express notification of his business Should keep and office is necessary (a). The officer should be care- hTs'dutyT 1 ^ * k ee P strictly within the line of his duty, in thus interposing between different parties engaged in an affray, and especially to avoid all appearance of par- tizanship, else he will forfeit the protection which the law otherwise affords him (b). He should also use as little violence as possible, as there are many cases in which, though the arrest may be legal, the officer will not be justified in giving the offender a blow ; such, for example, is the instance already mentioned of a person standing in the way to hinder the suppression of a breach of the peace (c). Power of con- In those unpremeditated breaches of the peace pression f ofr!ot P s". w ^ich come within the description of assault or af- fray, a constable is in general obliged to interpose upon the instant, and on his own responsibility ; but the more deliberate and dangerous breaches of the peace by riot or rebellious assemblies, usually afford an opportunity of obtaining the sanction of a Should if pos- magistrate's presence, and the powers given by law for the attendance their suppression are of such a nature, requiring so of a magistrate. mucn caution and discretion in their exercise, that it is always desirable, when practicable, that the officer should act under the direction of a magistrate. Cases, however, may also occur, of sudden and dangerous riots, where the presence of a magistrate cannot be immediately procured, and in which serious conse- (a) 1 Hale, 460,.etseq; Fost. 310, 311; 1 East. P. C. 314, 315; 1 Burn. 272. (ft) 1 Hale, 460 ; 1 East. P. C. 304, 305, and see 4 T. R. 456. (c) Levy v. Edwards, 1 C. & P. 40, sup. p. 125. Suppression of Riots by a Constable. 1 29 quenccs are likely to ensue if the officer neglect to in- terpose forthwith ; and as under such circumstances it is his duty to act even in the absence of a magistrate, he is therefore armed with full authority when obliged thus to act, and is authorized to command the assistance not merely of those persons who may happen to be present at the time, which he may likewise do for the suppression of an ordinary affray, but also to assemble a force, if it be necessary, to suppress the riot and ap- prehend the rioters ; and, when the riot is accompanied with great danger and violence, he will be justified in proceeding to the last extremity if the circumstances of violence and danger be such as to render such proceed- ing unavoidable, either for its suppression, or for his protection, or that of his assistants in the discharge of their duty(a). This severity, however, can be justified Cautio , n neces- J sary where con- only by an absolute necessity, and therefore in the ex- stable inter- ercise of such extraordinary powers the utmost discre- feres * tion is required on the part of the officer, who clearly will not be warranted in coming to extremities upon a slight resistance, or in using a degree of violence in any instance exceeding the necessity of the case. For suppressing prize fights, which, as has been Prize fights. (a) IHale, 495,6; 1 Hawk. c. 65, s. 2, 11 ; (1 Curw. 513, 517;) 5 Blac. Com. 180 ; 1 East, P. C. 304. So also it is the duty, not only of magistrates and peace officers, but even of private persons, to interpose for the suppression of a riot, and they are authorized so to do in the ab- sence of a magistrate or peace officer, and to use such force as may be necessary in order to suppress it. See 1 Hawk. c. 65, s. 2, 1 1 ; (1 Curw. 513, S17,) and c. 28, s. 14, (I Curw. 81 ;) 1 East, P. C. 304. But although it is clear that private persons are thus authorized to act, and, as it is held, may even arm themselves for this purpose, yet such conduct appears too hazardous and violent to be generally adopted or recommended, except where the public safety demands the most vigorous exertions, as where the disturbance is levelled against the higher authorities, or borders on rebellion or treason j 1 Hawk. c. 65, s. 11 ; (1 Curw. 517 ;) 5 Burn. 336. 130 Authority of Justices of the Peace observed, are unlawful assemblies, the following sug- gestion was made by the learned Judge in a recent case : " My advice to magistrates and constables is, in cases where they have information of a fight, to secure the combatants before hand, and take them to a magis- trate, who ought to compel them to enter into securities to keep the peace, till the next assizes or sessions, and if they will not enter into such security, to commit them to prison"(#). Arrest b j p ^ e P owers ^ a justice in cases of mere affray are for an affray, generally the same as those of the constable ; and as there is no doubt that the authority of the magistrate is not less than that of the constable to act for the sup- pression of an affray when committed in his presence, or for its prevention, in the instances before stated(i), affray? V( so a ^ so ^ * s sa ^ generally, that where any breach of the peace is likely to happen by a tumultuous meeting, the justice may command others to prevent it by arresting the parties. And where the breach of the peace is May command . ,., , . , . , . arrest without committed, or likely to be committed in his presence, warrant m some fa Q magistrate may, by word of mouth, and without instances. , -, warrant, command the parties to be arrested ; though if committed out of his view, he must then issue his warrant to authorize the arrest as in other cases(c). But for the prevention or suppression of the more ticeTofthe^ US " ser i us offences, which come within the description of peace in cases riot, or unlawful, riotous, and tumultuous assemblies, the magistrate is armed with very large and peculiar powers ; and, as already observed, the sanction of his presence should always be obtained, when time and circumstances permit, as it not only prevents any disposition to unnecessary violence on the part of (a) Per Bay ley, J., in R. v. Bellingham, 2 C. & P. 234, sup. p. 122. (6) 1 Hawk. c. 63, s. 18 ; (1 Curw. 491,) ante, pp. 124, et seq. (cr) 2 Hale, 86,87, 114, 115; Dalt.c. 169, s. 1. in Cases of Riot. 131 those who act in suppressing the tumult, but is also likely to induce, from the known authority of the magis- trate, a more ready submission on the part of the rioters, to the measures used for this purpose. In all cases of dangerous riot and outrageous violations of the public peace, he is authorized to command the as- Assistance sistance, not only of peace officers and of all persons present at the commission of such offences, but he may also command all persons whatsoever to attend and give their assistance ; and he may take with him whatever number of persons, and armed in whatever manner he may think necessary, though giving fire-arms on such occasions, is generally imprudent(a) ; the number and force of the assistance wfll of course depend upon the dangerous character of the riot, the number of the rioters, the probability of resistance, and such like circumstances. This is termed raising the posse comi- p ss,e comitatus. tatus, or power of the county ; and all persons what- soever above the age of fifteen years, except clergymen, women, or persons disabled by disease or infirmity, are bound, when thus required, under pain of fine or imprisonment, to attend and assist the magistrate. The power of raising the posse comitatus, however, although peculiarly suited to the state of the country in earlier times, and then frequently called into ex- ercise, has now so far fallen into disuse, that it might be difficult to obtain it(6). But the authority of the Military may magistrate remains the same, and he is accordingly ^ d ^ 1 ^ s 1 e n s of empowered to command the attendance of the mill- emergency. (a) R. v. Pinney, 5 C. & P. 272 ; R. v. Kennett, id. 283. The power to raise the posse comitatus is given to the justice, both at common lav/, and by the ancient Statutes mentioned in I Hale, 53, and 1 Hawk, c. 65, s. 18, 20; (I Curw. 519 ;) as also by Stats. 3 Geo. III. c. 19 ; 26 Geo. III. c. 24, s. 74 j and 15 & 16 Geo. III. c. 21, s. 6. 0) See 1 Black. Com. 410, &c. ; Redford v, Birley, 3 Stark, N. P. C. 105. 1 32 Powers of Justices of the Peace tary, who are in this respect under precisely the same obligations as any other citizens, and invested with the same powers for the preservation of the peace(a) ; and this is now usual in cases of emergency, instead of raising the posse comitatus. He may also obtain Additional con- the attendance of additional constabulary, or appoint spec^rcon" special constables, the provisions for which have been stables, already mentioned(). Although, in exercising this discretion, it will be prudent for the magistrate to proceed with such force as may be likely to overcome any resistance, yet he will not be warranted in alarming the country by rais- ing such a force, without such probable ground as would induce a reasonable man to think it necessary(c). On the other hand, if he fail in his duty, mere good feeling, or upright intention, or having acted under the advice of others, will not excuse him ; the ques- tion being, if he did all jthat could he expected from a man of ordinary prudence, firmness, and activity. If he does this, however, it will be sufficient, and it is no part of his duty to head the constables, or marshal them, nor to hire men to assist them, or to keep a body of men as a reserve, or to give orders as to the fire-arms at the gun-smiths' shops, or to ride with the military ; if he orders the military officer it is enough(cf). Arrest by pawl. As in the case of affray, so, a fortiori, in case of riot, (a) Per Tyndal, C. J., 5 C. & P. 262. (&) Ante, pp. 26, 27, & 17, 18 ; and for special constables, 37 et seq. (c) Dalt. c. 171 ; 1 Hawk. c. 65, s. 20, 22 ; (1 Curw. 520;) 1 Burn. 275. (rf) R. v. Pinney, ub. sup. ; per Littledale, J., " the person, whether a magistrate or a peace officer, who has the duty of suppressing a riot, is placed in a very difficult situation, for if by his acts he causes death, he is liable to be indicted for murder or manslaughter, and if he does not act, he is liable to indictment or information for his neglect; he is bound, there- fore, to hit the precise line of his duty, however difficult it may be." in Cases of Riot. the magistrate may, by word of mouth, and without war- rant, command the arrest of those whom he finds riotously assembled, and, by force of such bare parol command, the person thus commanded may pursue and arrest the offenders even out of the presence of the justice(a). So also if there be a riot likely to happen by a tumul- tuous meeting, &c., he may either himself arrest, or command others to arrest, the parties, in order to pre- vent it() ; or, if he has information that persons are riotously assembled at a certain place, and upon going y^ thither does not find them, he may leave his officers arrest the with a command to arrest the parties if they shall come(c). And if the riot be dispersed by the coming of the justice, and the parties threaten to meet again, or if it is thought probable that they may do so, and the magistrate cannot wait, he may, if he see oc- casion for it, grant a general warrant to be executed by any persons, empowering them to arrest the rioters if they re-assemble, though no particular persons be mentioned by name in such warrant as those to be or even issue a arrested and, although in other cases such a gene- general war- ral warrant would be bad. This special power is given in this instance for the necessity of preserv- ing the peace, because it may be impossible for the justice to know what the names of the parties are, and he cannot be expected to be always personally present to watch their re-assembling, but must occa- sionally trust others to do it ; and it has been said, that he may in such case authorize the arrest even by a parol command (d). The existence of this authority 3 ? ut // p .' , * should give his is, however, here instanced, rather to demonstrate the personal atten- dance. (a) 2 Hale, 114; 1 Hawk. c. 65, s. 16; (1 Curw. 518.) (6) 2 Hale, 86, 87, ante, p. 130. (c) 1 Hawk. c. 65, s. 16 ; (1 Curw. 518.) (rf) 2 Hale, 114, 115. 134 Powers of Justices of the Peace anxiety of the law to afford its ministers full powers by all means to prevent or suppress such dangerous dis- turbances of the public peace, than as recommending its exercise, which may be rarely called for or expe- dient; as it is peculiarly the province of the magistrate, and is obviously desirable, that he should personally direct and sanction the proceedings upon such oc- casions, and by interposing his judgment and discretion, add the influence of his presence and official character in proceeding to repress or prevent them(a). Magistrates re- By Statute 3 Geo. III. c. 19, which is entitled " An perse alUnUw- ^ ct ^ or indemnifying all such persons as shall be aiding ful and riotous in the dispersing of riots, and apprehending the rioters," and which recites that " it is the duty of justices of the peace, and of the sheriff, and under sheriff of the county, where any unlawful riot or tumultuous assem- bly shall be, taking with them, if need be, the power of the county, to arrest the offenders so as to bring them to justice," it is enacted, that on notice or knowledge of any unlawful, riotous, and tumultuous assembly, every justice of the peace, sheriff, under- sheriff, mayor, bailiff, and other head officer, within the limits of their respective jurisdictions, taking with them the necessary assistance, (and they are hereby autho- rized and empowered to command all her Majesty's subjects of age and ability to be assisting to them therein,) shall resort to the place where such unlawful, (a) It is not thought necessary in this treatise to state particularly the provisions of the ancient Statutes 34 Edw. III. c. 1 ; 17 Ric. II. c. 8; 13 Hen. IV. c. 7 ; 2 Hen. V. c. 8, which relate to the summary proceedings of justices in cases of riots, and to their authority to record a riot upon view, these provisions being rarely called into operation at the present day. For these Statutes and their construction, see 1 Hawk. c. 65, s. 15, et seq. (1 Curw. 518, et seq.',) and 5 Burn. 336, et scq. ; and for forms of" A Re- cord of a riot by two justices on view," and " Commitment of the rioters upon view," 5 Burn, 359, 360. in Cases of Riot. 1 35 riotous, and tumultuous assembly shall be, and there use their utmost endeavours to disperse the same, and to apprehend and seize the offenders, in order to their being proceeded against according to law ; and if the persons so unlawfully, riotously, and tumultuously as- sembled, or any of them, shall happen to be killed, . . And indemni- maimed, or hurt, in the dispersing, seizing, or appre- fi e d if any of bending, or the endeavouring to disperse, seize and ll ^ n t ter b s hap " apprehend them, then every such justice of the peace, killed or peace officer, &c., and all persons aiding or assisting, ^touring shall be freed, discharged, and indemnified, concerning to disperse or the killing, maiming, or hurting any such person. And S61ze lhera * no prosecution shall be carried on against such justice, No prosecution against magis- peace officer, &c., or person so aiding or assisting as trate, &c., un- aforesaid, on account of any such killing, maiming, k or hurting, unless the same shall be commenced within months. twelve months next following. But although ample powers appear to have been Statute 27 thus given, both at common law and by the provisions of the legislature to justices and peace officers for the suppression of riots, the offence was still but a misdemeanor, punishable by fine and imprisonment(a), which measure of punishment having been found in- adequate to prevent its commission, it has been enacted by 27 Geo. III. c. 15, for the further prevention of Twelve P ersons or more, being tumultuous risings and assemblies, and for the more unlawfully as- adequate and effectual punishment of persons guilty of noT dispersing outrage, riot, and illegal combination, that if any per- after pclama- , i p i tion, guilty of a sons, to the number 01 twelve or more, being unlaw- capital felony. fully, riotously, and tumultuously assembled, to the disturbance of the public peace, and being required or commanded by any justice of the peace, or -by the sheriff of the county, or his under-sheriff, or by the mayor, sheriff, bailiff, or other head officer, or justice () 1 Hawk. c.G5, s. 12; (1 Curw, 517.) 136 lllot Acts. How the pro- clamation shall be made. Proclamation. Magistrates re- quired to exe- cute this Act. of the peace of any city or town corporate, where any such rising or assembly shall be, by proclamation to be made in the king's name, in the form hereinafter di- rected, to disperse themselves and depart to their habi- tations, shall, to the number of twelve or more, notwith- standing such proclamation made, unlawfully, riotously, and tumultously remain or continue together as afore- said, for the space of one hour after such proclamation so made, then such continuing together as aforesaid, to the number of twelve or more, after such proclamation made, shall be felony without benefit of clergy. And the order and form of the proclamation shall be as fol- lows, that is to say, the justice, or other person autho- rized by this Act to make the proclamation, shall, amongst the said rioters, or as near to them as he can safely come, with a loud voice, command, or cause to be commanded, silence to be kept whilst proclamation is making, and after that shall, openly and with a loud voice, make, or cause to be made, proclamation in these words, or like in effect : " Our sovereign Lord the King chargeth and commandeth all persons being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the Act made in the twenty- seventh year of King George the Third, to prevent tumultuous risings and assemblies." And every such magistrate as aforesaid, within the limits of his jurisdic- tion, is hereby authorized, empowered, and required, on notice or knowledge of any such unlawful, riotous, and tumultuous rising or assembly, to resort to the place where the same shall be, and there to make, or cause to be made, proclamation in manner aforesaid(a). (a) 27 Geo. III. c. 15, ss. 1, 2. It will be convenient to have forms of this proclamation printed upon separate pieces of paper or parchment, and lying ready to be used by the magistrate upon emergency. Riot Ads. 137 It is further enacted, sec. 3, that if any person shall Opposing, &c. by threats, messages, or with force, wilfully or knowingly roch prockma- oppose, obstruct, let, or hinder any person who shall tion a ca P ital , . , . . felony. begin to proclaim, or go to proclaim, according to the proclamation hereby directed to be made, whereby such proclamation shall not be made, then every such threatening, opposing, &c., or hurting any such person so beginning or going to make such proclamation, shall be felony without benefit of clergy ; and every such Persons so as- person or persons so being unlawfully, riotously, and ^6^0 rwith- tumultuously assembled, to the number of twelve or in one hour more, as aforesaid, to whom proclamation should or prance of such ought to have been made, if the same had not been so proclamation, hindered, shall likewise, in case they, or any of them, to the number of twelve or more, shall continue toge- ther in manner aforesaid, and not disperse themselves within one hour after such let or hindrance, be adjudg- ed felons, and shall suffer death, as in cases of felony, without benefit of clergy. The fourth section enacts, that if such persons, so Persons so as- unlawfully, riotously, and tumultuously assembled, or ^J.^ l{ twelve or more of them, shall continue together, and in one hour, to not disperse themselves, within one hour after procla- mation made, or after such let or hindrance as aforesaid, justice. then it shall be lawful for every justice of the peace, sheriff, or under-sheriff of the county, where such ris- ing or assembly shall be, and also for every high or petty constable, or other peace officer within such county, and also to and for every mayor, justice of the peace, sheriff, bailiff, or other head officer, high or petty constable, or other peace officer of any city or town corporate, where such rising or assembly shall be, and to and for such other person and persons as shall be required to be assisting unto such justice of the peace, sheriff, or under-sheriff, mayor, bailiff, or other 138 Riot Acts. And if any kill- ed, &c. upon resistance, the justice, &c. in- demnified. Observations upon the Riot Acts. head officer aforesaid, (who are hereby authorized and empowered to command all his majesty's subjects of age and ability to be assisting to them therein,) to seize and apprehend, and they are hereby required to seize and apprehend, such persons, so unlawfully, riotously, and tumultuously continuing together after proclama- tion so made, or after such let or hindrance, and forth- with to carry them before a justice of peace of the county or place where such persons shall be so appre- hended, in order to their being proceeded against ac- cording to law. And if the persons so unlawfully, riotously, and tumultuously assembled, or any of them, shall happen to be killed, maimed, or hurt, in the dispersing, seizing, or apprehending, or endeavouring to disperse, seize, or apprehend them, by reason of their resisting the per- sons so dispersing, seizing, or apprehending, or endea- vouring to disperse, seize, or apprehend them, then every such justice of the peace, sheriff, under-sherifF, mayor, bailiff, head officer, high or petty constable, or other peace officer, and all persons aiding and assisting them, shall be free, discharged and indemnified, con- cerning the killing, maiming, or hurting of any such person or persons so unlawfully, riotously, and tumul- tuously assembled. It will be perceived that the provisions of the Sta- tute first above stated, 3 Geo. III. c. 19, as it regards the powers of justices of the peace, and of those acting in their aid, for the suppression of unlawful, riotous, and tumultuous assemblies, differ in some important respects from, and are more summary than those of the subsequent Statute, 27 Geo. III. c. 15, inasmuch as, by the former Act(), the magistrate is authorized and required to proceed forthwith to disperse such assem- (a) It is also to be observed, that in England there is no Statute cor- responding to 3 Geo. III. c. 19, the Irish Act above stated. Riot Acts. 139 blies, and is thereupon indemnified, whereas the latter Act, (which is analagous in this respect to the English Riot Act, 1 Geo. I. St. 2, c. 5,) whilst it makes the of- fence in the highest degree penal, also requires, before the offence is constituted a felony, that proclamation shall have been previously made as therein directed, and it then provides, if the persons so assembled, to the number of twelve or more, shall continue together and not disperse within one hour after proclamation so made, that the magistrate and his assistants shall be indemnified for the consequences, where it becomes necessary to proceed to extremities, by reason of the resistance of such persons. It is, however, to be ob- Former powers served, that the powers which had been before given ren to the magistrate at common law, or by the previous Statute, are not hereby taken away or altered(a), and therefore, where the parties assembled are within the description of rioters, though the offence remain but a misdemeanor, the magistrate, by virtue of his authority as a conservator of the peace, is armed with like powers for the suppression of the riot and the apprehension of the parties, where actual violence has been commit- ted^), even though such proclamation be not made, if the urgency of the occasion appears such that the time required for this purpose would risk fatal or se- rious consequences ; a power which in its extreme ex- ercise is fit only for occasions of the utmost danger and emergency. But, where actual violence has not been committed, and also in all cases in which the violence committed by the parties does not threaten very immi- (a) The provisions of the Statute 27 Geo. III. c. 15, being wholly in the affirmative, cannot be intended to take away any part of the authority, for the suppression of riots, which was before given to justices, peace officers, or others, either by common law or by any former Statute. See I Hawk, c. 65, s. 11. (1 Curw. 517,) and post, p. 140. (6) 1 Hale, 53, 494, 5, 6 ; 1 Russ. 266, 548. Ante, p. 130, et seq. 140 Powers of Justices of the Peace nent danger, this salutary warning or precaution should be used, before the magistrate proceeds to extremities. Interference be- x ne following observations of a learned judge arepecu- fore the expira- . tionofthe hour harly applicable to this subject: " I take this oppor- after proclama- tunity of mentioning a fatal mistake into which many persons have fallen. It has been imagined, that be- cause the law allows an hour for the dispersion of a mob to whom the Riot Act has been read by the magistrate, the better to support the civil authority, that during that time, the civil power and the magistracy are dis- armed, and the King's subjects, whose duty it is at all times to suppress riots, are to remain quiet and passive. No such meaning was in view of the legislature, nor does the operation of the Act warrant any such effect. The civil magistrates are left in possession of those powers which the law had given them before. If the mob collectively, or any part of it, or any individual, within or before the expiration of the hour, attempts or begins to perpetrate an outrage amounting to a felony, to pull down a house, or by any other act to violate the law, it is the duty of all present, of whatever de- scription they may be, to endeavour to stop the mischief and to apprehend the offender(a)." Although the actual execution of some deliberate Actual execu- p ur p 0se j s generally essential, to constitute the offence tion of rioters . . . purpose un- of riot in its strict sense, yet it may be inferred from necessary. sary, in order to authorize proceedings under it, that a riot should have been actually committed. If the as- sembly be such as would constitute a riot if their pur- pose was carried into execution, it appears sufficient, and it has been so held with respect to the English Riot Act, 1 Geo. I. s. 2, c. 5(6). (a) By Lord Loughborough, 5 C. & P. 261, in note. (b) R. v. Woolcock, 5 C. & P. 516 ', and see Redford v. Birley, 3 Stark. N. P. C. 106 et seq. and 126, in note. in Cases of Riot. 141 Where the proclamation has been read several times Hour how com- the hour is to be computed from the first reading(a), P ut ed. but great care should be taken to read it correctly, and if the magistrate omit part of it, it seems that persons remaining an hour together after such a defective read- ing cannot be capitally convicted(). Stat. 3 & 4 Will. IV. c. 68, s. 21, provides, that it shall be lawful for any one justice acting for any coun- Closing public ty, city, or place, where any riot or tumult shall happen, or for any two or more justices when any riot or tu- mult shall be apprehended, and expected to take place, to order or direct that every person selling spirits or beer by retail, and keeping any house or place for that purpose, situate within their respective jurisdictions, and in or near the place where such riot, &c. shall hap- pen, or be expected to take place, shall close his house or place, for any time and for such length of time as such justice or justices shall order or direct, and every person violating such order shall forfeit the sum of two pounds. The authority of the justice in suppressing these gross violations of the public peace is to be distinguish- ed from that with which he is invested, by the provi- sions of several Statutes for the suppression of certain meetings, which, though unaccompanied by violence or immediate danger, have been, from motives of public policy, declared unlawful. Thus Stat. 33 Geo. III. Convention c. 29, s. 1, (commonly called the convention Act,) enacts Act, 33 Geo. and declares, that all assemblies, committees, or other " 29 * bodies of persons elected, or in any other manner con- (a) R. v. Woolcock ub. sup. (6) R. v. Child, 4 C. & P. 442 ; but it is to be observed, that the words omitted in this case, were "God save the King," which conclude the proclamation in England, but are not found in the form prescribed by the Irish Act. 142 Convention Act. exercising a stituted, or appointed to represent, or assuming, or ex- se^any^um- erc i sm g a right or authority to represent the people of ber or descrip- this realm, or any number or description of the people phTas herein! " ^ ^ e same > r the people of any province, county, city, are unlawful ; town, or other district, within the same, under pretence of petitioning for, or in any other manner procuring, an alteration of matters established by law in Church or State, save and except the knights, citizens and bur- gesses elected to serve in the Parliament thereof, and save and except the houses of convocation duly sum- moned by the King's writ, are unlawful assemblies, dispersed b^ And it shall and may be lawful for any mayor, sheriff, any justice or justice of the peace, or other peace officer, and they peace officer ; J . . r . . . are hereby respectively authorized and required, within their respective jurisdictions, to disperse all such un- and the parties l aw f u l assemblies, and if resisted, to enter into the apprehended, same, and to apprehend all persons offending in that behalf. Persons giving cr publishing notice of the elec- tion of such representatives, or voting or acting at such election, are by s. 2 declared guilty of a misdemeanor. Saving forelec- ^,. 01/1 . i 1-1 tions by bodies sections 3 and 4 contain a proviso, that nothing herein corporate ; shall affect elections to be made by bodies corporate, ac- cording to the charters and usage of such bodies ; nor and right of pe- . . titioning. shall in any manner prevent or impede the right to pe- tition his Majesty, or both houses, or either house of Parliament, for redress of any public or private griev- ance. Unlawful pro- Stat ' 2 & 3 Willt I V c - * 18 > en acts that any body of cessions, 2 & 3 persons who shall meet and parade together, or join in 118.' procession, for the purpose of celebrating or comme- morating any festival, anniversary, or political event, re- lating to, or connected with any religious or other dis- tinctions or differences between any classes of his Ma- jesty's subjects, or of demonstrating any such religious or other distinction or difference ; and who shall bear, Unlawful Processions Act. 143 wear, or have amongst them any fire-arms or other of- fensive weapons, or any banner, emblem, flag, or sym- bol, the display whereof may be calculated, or tend to provoke animosity between his Majesty's subjects of different religious persuasions, or who shall be accom- panied by any music of a like nature or tendency, shall be and be deemed an unlawful assembly, and every per- son thereat shall be and be deemed to be guilty of a misdemeanor. Section 2 enacts, that any justice or j ust j ce to rea ^ justices of the peace shall and may proceed, with such the prociama- , ,111 tion herein. assistance as may be necessary, to the place where any procession or meeting of persons hereby declared to be unlawful shall be held or take place ; and such justice or one of such justices, or some other person by their or his order, shall then and there read or repeat aloud, to the persons so assembled, a command or notice to disperse, in the words or to the effect following, that is to say : " Our sovereign lord the King chargeth and commandeth all persons being here assembled, imme- Proclamation, diately to disperse themselves, and peaceably to depart, upon the pains contained in the Act made in the third year of the reign of King William the Fourth, to re- strain, in certain cases, party processions in Ireland." Persons not dis- Sect. 3 enacts, that the persons so met and assembled persing guilty together shall forthwith disperse and depart, and in nor; case any one or more of the persons so met or assem- bled together, shall not disperse or depart, within the space of one quarter of an hour from the time of such notice or command being given, it shall be lawful for the same justice or justices who shall have read such command or notice, or any other justice or justices of the peace, to cause the person or persons so refusing an( j may be or neglecting to disperse or depart, to be apprehended arrested - by a warrant for that purpose to be signed by him or 144 Training to Arms. them, and the offenders so arrested are liable to sum- mary conviction(a). Offences within Walking in procession with suitable banners, &c. on December 18th, to celebrate the shutting of the gates of Derry, at the funeral of an Orangeman and to celebrate the return of Daniel O'Connell to Parliament, have been respectively held offences within this Act(6). Meetings and g y QQ Q eo . m. C- j g j and % a )j meetnlgs an( l assemblies of * persons, for the assemblies of persons for the purpose of training or i P n U g?raTned to" drillin g themselves, or of being trained or drilled to the arms, or of use of arms, or for the purpose of practising military tary exercises 1 " exerc i se > movements, or evolutions, without any lawful prohibited ; authority from his Majesty, or the Lieutenant, or two justices of the peace of any county, or riding, or of any stewarty, by commission or otherwise, for so doing, are and may be dis- prohibited ; and it shall be lawful for any justice of the persed by any p eace or f or anv constable or peace officer, or for any justice or peace * J r J officer ; other person acting in their aid or assistance, to dis- and the parties P erse anv suc ^ unlawful meeting or assembly, and to arrested and arrest and detain any person present at, or aiding, assist- held to bail. , 4 . ing, or abetting any such assembly or meeting ; and it shall be lawful for the justice of the peace, who shall arrest any such person, or before whom any person so arrested shall be brought, to commit such person for trial for such offence, unless he shall give sufficient bail for his appearance at the .next assizes, or general or quarter sessions of the peace, to answer to any indict- ment which may be preferred against him, for such of- fence. Persons unduly There is one species of unlawful assembly, pregnant armed. w j t ] 1 guc ] 1 imminent danger, that both magistrates and (a) This Act, which was temporary, has been continued by 1 & 2 Viet, c. 34, for five years, from July, 1838, and to the end of the then next session. (V) Cases given Hayes Cr. L. 148, in not. Persons unduly armed. 145 constables are authorized and required to suppress it forthwith, that is where persons assemble or go about in parties unduly armed, and, as it is expressed, to the terror of the people ; the going thus armed, under such circumstances as may naturally excite terror, being in itself, and without any further act done, an offence both by common law, and by several Statutes. Thus, by a Under ancient very ancient Statute, it is expressly forbidden to any persons (except those who are acting in the execution of their office, or those required to act for the purpose of preserving the peace, and such as are called to their assistance) to go or ride armed, by day or night, in fairs, markets or elsewhere, upon pain of imprisonment at the King's pleasure, and of forfeiture of their arms ; and both magistrates and constables, within their re- spective jurisdictions, are authorized to execute this Act(a). It has been always understood, however, that this Statute is intended to prevent the wearing of arms or appearing with them, under such circumstances as may naturally excite terror, and, therefore, does not apply to those who carry ordinary arms for the defence of their persons or property(). So where parties or Armed parties. numbers of persons assemble in arms, under circum- () 2 Edw. III. c. 3 ; 1 Hawk. c. 63, s. 4, (1 Curw. 488.) Constables are expressly named in this Act, " and others the King's ministers/' under which latter description, it is held, are clearly to be included justices of the peace. I Hawk. c. 65, s. 18, (1 Curw. 519.) The omission of the express mention of justices by name is accounted for by this, that although, before the passing of this Act, there were persons appointed under the King's com- mission to keep the peace, yet they were not at that time styled justices of the peace. Ante, p. 1. See further, as to the offence of appearing or going about unduly armed, Statutes 7 Hie. II. c. 13 ; 20 Ric. II. c. 1 ; and 7 Edw. I. s. 1, adopted in Ireland by 1 Hen. VII. c. 22, ante, p. 1, in note ; and see 1 Hawk. c. 63, s. 4, &c. (1 Curw. 488 j) Dalt. c. 1 16, s. 3. (6) 1 Hawk. c. 65, s. 4, 9, (1 Curw. 488, 9 ;) Hits. 42 j see also 47 Geo. III. s. 2, c. 54, and 50 Geo. III. c. 109, s. 2, 3, amended by 1 & 2 Viet. c. 71, with respect to powers to search for, and seize, arms impro- perly had j post, chapter on " Search Warrant." u 146 WMteboy Offences. Caution. Whiteboy of- fences. stances calculated to excite terror in the King's sub- jects, not only magistrates, but also constables and all peace officers, are bound to use their utmost exertions to disperse and apprehend such persons ; and in this case although no act of violence be actually committed by the parties thus assembled, yet, from the danger to be apprehended where they assume such a menacing attitude, any magistrate, or, in his absence, every con- stable and other peace officer, is authorized and re- quired to act for their suppression. In such case, there- fore, if, upon being required to surrender themselves, the parties will not yield to the officer, he is authorized to use such force as may be necessary in order to dis- perse or apprehend them, and will not be held respon- sible for any fatal consequences caused by their resis- tance^). This duty is more particularly incumbent upon him, from the greater danger to be apprehended, where such assemblages, take place in the night. But in this, as in all other instances in which the officer is authorized to proceed to extremities, the exercise of extreme caution and forbearance is called for upon his part, and he will, therefore, not be justified in so acting, unless in the last necessity, and certainly not until after the persons so assembled have refused to surrender themselves, upon having been required so to do. Beside the powers thus given to magistrates and peace officers, on occasions of riot, or of apprehension of danger from parties of persons appearing unduly armed, and which may exist in the absence of any or- ganized system of violence, it has been found necessary to make special provision against a system of outrage which has frequently exhibited itself in Ireland, com- (a) 2 Hale, 85 ; 1 East, P. C. 303. There is some difference of opi- nion, whether such an assemblage amount to the offence of riot or not, see ante, pp. 120, 121, but without reference to this question, the magistrate and officer are required to suppress it, as above stated, Whiteboy Offences. 147 nionly known by the name of Whiteboy offences, and an Act has accordingly been passed, whereby those appearances or demonstrations which indicate that the persons exhibiting them are connected therewith, have been made highly penal, and the largest powers have been committed to magistrates and peace officers when acting for the apprehension of such persons. The Whiteboy Act. offences here contemplated are described by the Act called the Whiteboy Act, 15 & 16 Geo. TIL c. 21, which recites, " that it has frequently happened that several persons calling themselves Whiteboys and others, as well by night as in the day-time, have in a riotous, disorderly, and tumultuous manner assembled together, and have abused and injured the persons, habitations, and properties of his Majesty's subjects, and have taken and carried away their horses and arms, and have compelled them to surrender up, quit, and leave their habitations, farms, and places of abode, and have with threats and violence imposed sundry oaths and solemn declarations contrary to law, and solicited several of his Majesty's subjects, by threats and promi- ses, to join with them in such their mischievous and in- iquitous proceedings, and have also sent threatening and incendiary letters to several persons, to the great terror of his Majesty's peaceable subjects, and have taken upon themselves to obstruct the exportation of corn, grain, meal, malt, and flour, and to destroy or da- mage the same when intended for exportation, and have also destroyed mills, granaries, and store-houses, pro- vided for the keeping of corn ; which if not effectually prevented, must become dangerous to the general peace of this kingdom, and hisMajesty's government therein." The several offences herein specified are therefore here- by made highly penal(a), and it is further enacted, s. 2, (a) So much, however, of the Act as relates to the punishments of of- feeders, has been amended by 1 & 2 Will, IV. c. 44. H'8 Whiteloy Act. Persons armed, 6, " that if any person or persons being armed with any ing adhere?"" fi re - arms > & c or an y offensive weapon whatsoever, or described, may having their faces or bodies disguised in any manner be apprehend- -, , , ed . r whatsoever, or wearing any particular badge, dress, or uniform not usually worn by them on their lawful occa- sions, or assuming any particular name not usually as- sumed by his Majesty's subjects upon their lawful oc- casions, shall rise, assemble, or appear, by day or by night, to the terror of his Majesty's subjects, they shall be adjudged guilty of a high misdemeanor; and both justices of the peace and all peace officers, within their respective jurisdictions, are authorized to apprehend such persons, and for this purpose they are empowered to command the assistance of all his Majesty's subjects, and they and their assistants are hereby indemnified, if in using the necessary means for this purpose, the of- fenders happen to be killed, maimed, or hurt, in the apprehending or dispersing them." Observations With respect to the peculiar powers given to magis- Whjiteboy Act. trates and peace officers by this Act, it is however to be observed, that as it was enacted with a view espe- cially to provide against the commission of the offences mentioned in its recital, it has been generally considered that its provisions are not to be called into operation, unless where some such system of outrage, as is therein described, is found to prevail. If, however, the coun- try be in such a state, an offence will not be exempt from the operation of the Act, though the object pro- posed by it was of a private nature, or though it was committed by a single individual(^). Where offences In conclusion, it is to be observed, that several of- agamst the fences riotously committed have also been made felony ; peace have been J made felony so are offences of a similar class, viz. taking or admin- 1 Pf aD istering unlawful oaths ; and societies using unlawful (fe) R. v. .Taylor, King's Co. Lent Ass. 1832 ; and R. v. Bryan, Carlow Lent Ass. 1833, in not. Hayes' Cr. L. 165, 167. Arrest without Warrant. 149 oaths or secret signs, are by several Statutes declared constable have unlawful, and being connected therewith made crimi- SlJ nal(a) ; in all such cases, of course the officers of the indictable of- law have the same powers of arrest which they possess in other indictable offences of the same degree. Before concluding the subject of arrest without Recapitulation. warrant, it may not be useless to recall the reader's at- tention to the leading distinctions which the law recog- nizes in regulating the exercise of this power by magis- trates and constables. Thus it has been seen, that the powers of the constable are most extensive I. in ironies. the class of offences termed felonies, whether the offender be arrested in the actual commission of the offence ; or on the charge of another ; or on the officer's suspicion ; or to prevent the commission of the of- fence ; or when a felony is likely to be the consequence of his act(&). II. In the case of breaches of the Breaches of the peace, the same power exists for their suppression peace. when committed in view of the officer, or for their pre- vention (c), but not generally after the offence is over, except where it has been raised to the degree of felony, or the power to arrest has been expressly conferred by Statute(d) ; breaches of the peace being in this respect similar to III. Indictable misdemeanors in which, for Indictable mis- the most part, an arrest without warrant cannot be demeanors. made unless under the special provisions of Statutes, of which several have been passed permitting it(e) ; and IV. the power to arrest is most limited in the class of minor offences punishable by summary conviction, and in them extends only to a few cases also provided for maril y (a) See classification of offences, post, ch. on Bail. (6) Ante, pp. 101 to 106. (c) pp. 124 to 129. Cd) pp. 135 to 149. (e) pp. 106 to 111. 150 Arrest under Warrant. Arrest by J. P. by Statute(a). V. Finally, the power of a justice of the peace to arrest without warrant, is generally the same as that of a constable(6), but the former is in several in- stances, invested with peculiar powers in this respect by Statutes passed for purposes of public convenience, or the preservation of the public peace(c). CHAPTER III. OF ARREST BY WARRANT. Arrest under HAVING treated of the instances in which an arrest may be made in criminal cases without the warrant of a magistrate, which summary mode of proceeding the law has provided for cases where there is immediate danger of an escape, or where from the heinousness or sud- den character of the offence, or for the prevention of violence or crime, promptitude is required, it is pro- posed here to consider the proceedings under warrant. When circum- And it is to be observed that, whenever time and cir- stances allow (jumstances will admit, it is desirable, as it regards the warrant should be applied for. purposes of justice, that the application should be made in the first instance to a magistrate, and that his dis- cretion should be thus interposed. It is also more pru- dent, with respect to the parties engaged in the arrest ; for when the arrest is made under warrant, the officer, who duly executes it, is protected from responsibility notwithstanding any defect of jurisdiction in the magis- trate who has granted it, and the magistrate will not be liable, unless he has acted maliciously, and without probable ground of suspicion ; nor can he be sued until after a month's notice of action, during which he may (a) p. Ill, and see post, p. 152. (c) pp. 113 to 117, and 131 to 149. (6) pp. 112, 113. . Arrest under Warrant. 151 tender amends(a). It is to be added, that where an ar- rest cannot be legally made without warrant, and the par- ty has neglected previously to obtain it, the arrest will not be rendered legal by a subsequent issuing of a war- rant^). When application is made to justices for a warrant, J - p - to ascer - , / i .-iii tain " 1S j uns ' the first subject for their consideration is whether they diction. have jurisdiction to issue it. The rules by which this is ascertained, the cases in which they may act out of the ordinary district of their jurisdiction, and the cir- cumstances by which their authority may be restricted when acting within it, have been mentioned in a pre- vious chapter, to which the reader is referred (c). The magistrate should next determine whether, Whether war- . . rant or sum- from the nature of the case, it may be proper to issue mons p r0 p e r. a warrant or a summons in the first instance, and this is a question for his discretion, which will be exercised according to the nature of the charge, and the apparent weight of the evidence by which it is supported. We Division of Ch. will, therefore, consider this subject under the following division I. Of the Summons ; 1. in what cases it is pro- per ; 2. its form and requisites ; and 3. the mode of proceeding under it. II. Of the Warrant ; 1 . in what cases it is proper ; 2. the information and proceedings before granting it; 3. its form and requisites; 4. war- rants after indictment found ; and 5. backing or in- dorsing warrants. I. When the offence charged is between party and I. Where a sum- party, or not of an aggravated character, or the ^ supposed offender is not likely to abscond, a summons fences, is proper, as being more agreeable to the mildness of our law, which desires that the party should not be put (a) 43 Geo. III. c. 143; 2 Hawk. c. 13, s. 11 ; ante, p. 34. (6) 2 Hawk. c. 13, s. 9 ; and see Hutchinson v. Loundes, I Nev. & M. 674. (c) Ante, pp. 49 to 74. 152 Summons when proper* When the charge is not upon oath. Summary con- viction under Statute. Summons pro- per. to more inconvenience than the case may require. Thus, in the case of petty assaults, although the justice is authorized to issue a warrant, a summons is preferable, as it is frequently found that the accusation is frivolous, or without sufficient foundation, or that it has been made rather with a view to obtain redress for the pri- vate injury, than to punish for the public offence against the peace. And in misdemeanors, which have but an indirect or remote tendency to a breach of the peace, although the justice may issue a warrant, it is usual to proceed by summons in the first instance, unless an escape be apprehended, or from other circumstances an immediate arrest is expedient(a). In general, a warrant should not be granted unless upon the oath of the complaining party(&), whereas a summons may be granted without oath, except in those cases in which an oath is required by the special pro* visions of particular Stat-utes(e) ; a summons is, there- fore, proper where the charge is not upon oath(cT). For offences created by penal Statutes, not involving any actual breach of the peace, and which are not the subject of indictment, but determinable in a summary way by conviction before justices of the peace, it seems that the justice has no authority, as necessarily inci- dent to the cognizance of the offence, to issue his war- rant to cause the party to be apprehended. In such cases, a summons is always proper in the first instance ; and even where the defendant neglects or refuses to appear after having been duly summoned, still the magistrate cannot, in ordinary cases and by his general authority, enforce his appearance by any compulsory process ; but in default of his appearance, upon proof of the service of the summons, he may proceed ex (a) 3 Dick. J. 451, Summons ; 6 Burn, 151, ante, p. 70. (6) 1 Hale, 582 j 2 Hale, 110, 111 ; 6 Burn, 152. (c) Pal. 32. (d) 3 Dick, J. Warrant, II. j 2 Barnard, 34, 77, 101. Stimmons when proper. 153 parte(a). That power is, however, given by Statute, in a variety of cases of this description, where, from the nature of the offence, there may be reason to apprehend that the object of the prosecution would otherwise be defeated ; thus, in some instances, the magistrate is authorized to issue a warrant immediately upon the information received ; in others, he is directed, first, to summon the party, and then authorized, upon his default or non appearance, to issue a warrant for his apprehension ; other Statutes direct the magistrate to cause the defendant to be brought before him, which seems to imply an authority to use compulsory pro- cess^). But it is said that even where a Statute autho- (a) Pal. 37 ; Hult. Conv. 44. See also the observations of Parker, C. J., in R. v. Simpson, 1 Sir. 46 j 10 Mod. 381, where it is said, that " the arrest and detainer of the party, if permitted, might, in many such cases, be a greater punishment than the forfeiture to which he is subjected for the offence," as where the penalty is merely a small fine. It is, how- ever, to be observed, that the doctrine laid down by Serjeant Hawkins seems at first view opposed to the above position ; thus, it is said by him, " that where a Statute gives a justice jurisdiction over any offence, or a power to require any person to do a certain thing, it impliedly gives power to such justice to make out a warrant, to bring before him any person accused of such offence, or compellable to do the thing ordained by such Statute." 2 Hawk. c. 13, s. 15. And see 4 Blac. Com. 290 ; 12 Co. 130, 1. But, in construing this position with reference to the context, it may be understood as intended to apply to the power of the justice to arrest in cases of misdemeanors which are the subject of indictment ; and it seems to have been advanced in opposition to the doctrine, which is said to have formerly prevailed, viz. that a single justice, acting out of sessions, could not grant a warrant to arrest a party, before indictment, for a misde- meanor cognizable by the sessions. See 2 Hawk. c. 13, s. 16 ; Dalt. (ed. 1690,) c. 169, p. 442 ; see also 4 Inst. 177 ; 1 Hale, 579 ; 2 Hale, 79, 107, 8, 113. It may, therefore, be questioned whether the learned writer contemplated the extension of this power to cases of summary conviction. (6) Pal. 37. In Bane v. Methuen, 3 D. & R. M. C. 523 ; 2 Bingh. 63 ; it was decided that a magistrate might issue a warrant to apprehend an offender against St. 1 Geo. IV. c. 56, (Rep. Mai. Trespass Act,) es- pecially after a previous summons, to which he had neglected to appear. But it is to be observed that this Act contained a special provision, s. 3, X 154 Form of Summons. Form of sum- mons, f Direction. What to spe- cify. rizes the issuing a warrant upon complaint, yet if it be for the non-payment of money merely, it is, notwith- standing such authority, proper to issue a summons in the first instance to the party charged, to attend, and show cause, before a warrant to apprehend him is granted. I. 2. The summons may be directed either to the party summoned, or, by way of precept to the constable, requiring him to summon or give notice to the party whose attendance is required(a). The form of sum- mons directed to the party himself is to be pre- ferred, as it is made out in duplicate, and a copy left with the party, or at his residence, which affords greater certainty, and gives him a full opportunity of knowing the charge against him ; whereas in the case of a summons directed to the constable, it is usually only read over to the party summoned, a copy being made out and left for him only in cases where the con- stable has been unable to see him personally. In whichever form the summons is framed, it should contain the substance of the charge in order that the party may be apprized of its nature, and enabled to prepare for his defence. It should also state the name and addition of the complainant ; the time and place of appearance ; the style of the magistrate or petty sessions by whom granted ; and (in cases of summary jurisdic- tion) the time when the information was laid. It should also be dated, and bear the signature of the magistrate who issues it(b). It is sometimes the practice to affix a seal, but this, though essential in a warrant, appears un- authorizing constables, &c., to apprehend the offenders without any war- rant, and to carry them before a justice of the peace ; and that by s. 1 the magistrate is authorized, in case of default of payment of the penalty, im- mediately, or within such time as the justice shall appoint at the time of the conviction, to commit the offender to prison for three months. (a) 3 Dick. S. 452 ; Pal. 35. See Forms in Appendix. (6) Pal. 35 j 7 & 8 Geo. IV. c. 67, s. 15 ; ante, 88. Form of Summons. 155 necessary in a summons. It is also correct and proper to state the hour at which the party is required to Time for ap- attend, which is generally the hour at which the busi- P earance * ness of the petty sessions commences, except where from circumstances it may be convenient to appoint a different hour ; and the accused should attend at the precise hour fixed. But this is done for the convenience of the party accused, and is not indispensably neces- sary, and though an hour be fixed, he is bound to wait in attendance during the remaining part of the day, until the magistrate can attend to the complaint(a). The intention of the summons being to afford the per- Reasonable son charged the means of making his defence, it should time to a PP ear< allow a reasonable time for this purpose, especially in those cases where the matter charged is to be the sub- ject of adjudication by the justice in the exercise of a summary power of conviction, in order that the party In summary may have an opportunity of procuring the attendance of his witnesses ; in such latter case, therefore, a sum- mons to appear immediately on receipt thereof, or to appear on the same day, was held not to be a reason- able time(6). In practice it is customary, in cases which are to be adjudicated by summary conviction, to allow one whole day, at the least, between the service of the summons and the hearing ; and where the de- fendant lives at any considerable distance from the place where the petty sessions are held, this period is usually extended ; but what may be considered a rea- sonable period, according to the circumstances, will be more easily understood when we treat of summary pro- ceedings by conviction before justices at petty ses- sions^). When the summons is issued under any Statute which prescribes a particular form, it must be (a) i Burn, 876, 875 ; 3 Dick, J. Summons. (b) R. v. Mallinson, 2 Burr. 681 ; B. v. Johnson, 1 Str. 261 ; Pal. 35. (c) Post, Pt. III. 156 Service of Summons. strictly pursued (a) ; and where the complaint is on oath, it is usual so to state it in the summons(6). Summonses not Statute 7& 8 Geo. IV. c. 67, s. 15, enacts, that no to be signed in , .. . ' blank. summons shall be signed by any magistrate, unless the blanks in same shall have been first duly filled up(c). This Statute thus expressly forbids the signing of sum- monses by magistrates in blank, that is, without having been first duly filled up. The impropriety of leaving summonses in blank, to be filled up by the clerk of Petty Sessions and issued at his discretion, must be evident, as thereby a temptation is afforded to issue them without sufficient ground, and persons may thus be causelessly put to the inconvenience and annoyance of attending at the petty sessions, against whom no charge is, or can be, substantiated, and where, if the complaint had been made to the magistrate, and considered by him, a summons would not have been granted ; and in a recent case, the judges of the Queen's Bench in England have expressed themselves strongly as to the propriety and necessity of the actual interference of the magistrate himself in all the proceedings(d). Service of sum- I. 3. With respect to the service of the summons, there is a distinction between those cases which are to be the subject of adjudication by the magistrate, upon summary conviction under penal Statutes, and those in which the summons is used, not strictly as process, but rather as notice, and to avoid the harsh proceeding of issuing a warrant in the first instance, in obtaining the (a) R. v. Croke ; Cowp. 30 ; Pal. 35. (6) 1 Chit. Cr. L. 32. But this does not seem to be indispensable, for even in the case of a warrant, though it is usual to state that information on oath has been received, it is not absolutely necessary to do so ; and though it be a commitment, yet the warrant is not vitiated by such omission Wyndham's case, 1 Sir. 3 ; Plait's case, 1 Leach, 167 j 2 Hawk. c. 16, s. 17. (c) Ante, p. 88. (d) R. v, Constable, 7 D. & R. 663. Service of Summons. attendance of a party charged with an indictable offence. In the former case it seems, in general, necessary that the service of the summons should be personal, unless where personal service is expressly dispensed with by the particular Statute under which the proceeding is instituted, and the magistrate in- such case will not proceed to convict, in the absence of the party, unless upon previous proof of such service. Personal service is, however, in some in- stances of this kind, rendered unnecessary by the provision of the Statute which authorizes the proceed- ing in the particular case, and service of a copy, at the place of residence of the party, declared to be suffi- cient ; but these special provisions, introduced into particular Acts of Parliament, seem to justify the infe- rence, that in other instances service upon the person is required (a). It appears, however, to be in all cases sufficient to Service of copy serve a copy of the summons ; and, where personal ser- ^^ t t ns vice is not required, the delivery of such copy may be to a person on the premises, apparently residing there as a servant(&). But in proceeding against a party charged with an I Q initiatory indictable offence, the summons is used merely as a process, where J offence is m- notice, and to avoid the harsh proceeding of issuing a dictable. warrant in the first instance, and not strictly as process, and the magistrate in this case is not bound to issue a summons at all, but empowered to grant his warrant in the first instance ; in such case, therefore, although personal service of the summons is always to be recom- mended, if it can be made, yet it is held sufficient if it (a) By Parker, C. J., in R. v. Simpson, 10 Mod. 345 j 1 Burn, 876 ; Pal. 36; Huh. Conv. 43 ; Nares, 12, in note ; Bosc. 134, in note. And see the judgment of Bayley, J., ia R.v. Hall, 3 Dow. & Ry. M. C. 20, 21 ; S. C. 6 D. & R. 84 ; and R. v. Calamins, 8 D. & R. 344. (6) R. v. Chandler, 14 East, 270, Pal. p. 36. 158 Proof of Service of /Summons. Proof of ser- vice : by third party serving it; by constable serving it. appear that the summons was given, or left at the place of residence of the party, with any member of his family or servant above the age of sixteen years, or that he has otherwise had notice of the proceeding, although not personally served ; and the magistrate will then, upon his default, exercise his discretion, whether to issue another summons or a warrant to apprehend and bring the party before him. It has been already stated how far it is necessary that the subsequent proceedings should be taken before the same parties who issued the summons (a). On the day and at the hour appointed for the party summoned to appear, the person who has served the summons should attend to prove the service, if it should become necessary, which is done by deposing that a duplicate or copy, corresponding with the duplicate or original produced, has been delivered to the party, or left at his residence, according to the circumstances and as the case may require. This proof must be made on oath. Such person should, therefore, be careful to preserve the original summons for this purpose. When it is served by a constable, it is the practice in the Dublin police offices, and seems deserving of general adoption, to file and preserve the summons in the office, which should be previously marked by the con- stable, so as to enable him to prove the service. It has been further recommended by a practical writer of much experience, that in order to enable him to make such proof with accuracy in all cases, and especially where he has many summonses to serve, the constable should, at the time of the service, note down in his memorandum book, at what house he has left the sum- mons, and at what hour, and whether it was delivered to the party summoned, or to what other person in the house where he resides(^). And as many cases occur (a) Ante, pp. 63, 64. (6) Const. Ass. 51. Issuing Warrant. 159 in which parties who refuse to appear may be convicted in heavy penalties, it is of importance that constables should be accurate in executing this duty. II. 1. Ifthechargebenotsuchastorenderasummons Warrant when proper, the magistrate must determine if he -will grant P r P er - a warrant, which may be issued, and is proper, in the first instance, in every case of treason, felony, or actual breach of peace, where there is a charge upon oath, and reasonable ground for the charge. So also a war- rant may be granted for the apprehension of any person charged, on oath, with any indictable misdemeanor(a). And although, as has been observed, it is usual to issue a summons, in the first instance(Z>), m cases of misdemeanor which are not of an aggravated character, or which have but a remote or indirect tendency to a breach of the peace, yet, even in those cases, if the escape of the party be apprehended, or from other circumstances, an immediate arrest is considered expe- dient, the magistrate may grant a warrant to arrest in the first instance. II. 2. Before granting the warrant, the magistrate Proceeding be- should examine the accuser or party requiring it upon oath, as well to ascertain that the crime charged has been committed, as to prove the cause and probability of suspecting the party against whom it is sought(c), and if he consider it necessary, he may also examine any other witnesses who are in attendance. But it is (a) Burn, 151 ; 2 Hale, 72, 78 ; and see 1 Hale, 579 ; 2 Hawk, c. 12, and c. 13, ss. 16, 18 ; 1 Dick. J. Bail, IV. For jurisdiction of ses- sions, see ante, pp. 69, 70, and note, ib. And see chapter on " Bail,' infra ; 2 Hawk, c. 8, s. 66, and s. 64 j R. v. Higgins, 2 East, 5 j Butt v. Conant, 1 Br. & Bing. 548. (6) Jnte,69,70, 152. (c) 2 Hale, 110, 111 ; 1 Hale, 582 j 3 Dick. J. 501 j 6 Burn. 152. If a magistrate grant a warrant to arrest without an information upon oath of circumstances affording a reasonable suspicion of the guilt of the party, he will, incase the charge shall not be substantiated, be liable to an action for damages at the suit of the party arrested. Id. ib. Morgan v. Hughes, 2 T. R, 225. 160 Inquiry before granting Warrant. J. P. may pre- viously ascer- tain what wit- nesses can depose to. Not compella- ble to receive informations unless tended in writing. to be recommended that, before committing the infor- mation of the person preferring the accusation, or the depositions of his witnesses to writing, the magistrate should ascertain by inquiry from them, or by permitting them to detail the circumstances of the transaction in their ordinary manner, the facts to which they can de- pose. He may thus be enabled, by his observation on the manner as well as the matter of their narrative, to form an opinion as to the degree of credit to which they are entitled, and the motives by which they are actuated ; And if it plainly appear that they cannot depose to any material fact in support of the charge, he will exercise his discretion in not administering an oath, the frequen- cy of which is objectionable, and to be avoided where it evidently appears that it can have no substantial re- sult. By such previous inquiry also the magistrate is put more fully in possession of the circumstances of the case and made acquainted with local descriptions and collateral circumstances, which may happen to be use- ful auxiliaries to the comprehension of the principal facts. The Queen's Bench will not order a magistrate to receive an information for an indictable offence unless it has been previously tendered to him in writing, and when an application is made to that Court in conse- quence of his refusal to receive it, the written informa- tions should be produced, in order that the court may judge of their sufficiency. It is not enough that the substance should be stated to the magistrate (). In- deed the Court of Queen's Bench will not, without spe- cial grounds, control the discretion of magistrates in refusing to receive informations (b). If upon such inquiry the magistrates think the case proper for an information, the party preferring the com- (o) Ex parte Hughes, I L. R. 3rd ser. 292. By Burton, J. (6) R. v. Carew, 1 Cr. & D. 456. Examining Informant and Witnesses. 1 6 1 plaint, and his witnesses, who can depose to any mate- rial facts, should then be sworn or affirmed. The oath Oath before in- or affirmation should in all cases be administered before the witness proceeds to give his information or depo- sition^). This is required in order that the witness shall be under the solemn obligation of an oath while he is giving his evidence; otherwise he may inadver- tently, or perhaps wilfully, state some particulars erro- neously in the first instance, which, when afterwards put to the test of an oath, a sense of shame may pre- vent him from retracting. The parties should^ also be Form of oath. sworn or affirmed, to tell the whole truth, as it is obvious that a witness may answer every question correctly, which may have been put to him, and very properly swear to the truth of the statement so taken down, as far as it goes, and yet such evidence may not contain the whole truth, and the most important part of the transaction may thus remain unknown(^). In general no one can give evidence as a witness in Examination on any criminal proceeding except on oath(c) ; and a peer of parliament is within this rule(rf). The affirmation of a Quaker, however, or the declaration of a Moravian Affirmation of or Separatist, though formerly inadmissible for or Q uaker > &c * against other persons, is now receivable in evidence in all cases instead of an oath(e) ; and this privilege is by Statute 1 & 2 Viet. c. 77, extended to persons who have been Quakers or Moravians, and who continue to have objections to taking an oath. By Statute 1 & 2 Viet. c. 105, it is further enacted and declared, that in Form of oath. all cases wherein an oath may lawfully be, and shall have been, administered to any person, either as a jury- Co) R. v. Kiddy, 4 Dow. & Ry. 734 ; S. C. 2 M. C. 364. (6) See form of oath in Appendix. (c) Phil. Ev. 8 ; 1 Lea. 110 ; Ch. Cr. L. 615 ; 2 Burn, 103, &c. (d; R. v. Lord Preston, 1 Salk. 278 ; 1 Dick. J. 622 ; 3 Keb. 61. () 3 & 4 Will. IV. c. 49, and 3 & 4 Will. IV. c. 82. Y Swearing Witnesses. man, or a witness, or a deponent, in any proceeding, civil or criminal, in any court of law or equity in the united kingdom, or on appointment to any office or em- ployment, or on any occasion whatever, such person is bound by the oath administered, provided the same shall have been administered in such form, and with such ceremonies, as such person may declare to be binding ; and every such person, in case of wilful false swearing, may be convicted of perjury, in the same manner as if the oath had been administered in the form, and with the ceremonies, most commonly adopted. Competency of Not merely those who profess Christianity, but all religious belief. p ersons w h o believe in a God and a future state of rewards and punishments, may be sworn as witnesses; and they are to be sworn in the form that they consider binding upon their consciences, according to the reli- gious belief professed by them. Thus Jews are sworn on the Pentateuch, Mahometans on the Koran, Gen- toos and other infidels according to the ceremonies of their peculiar religion. But atheists, and such infidels as profess not any religion that can bind their con- science to speak the truth, are excluded from being witnesses(a). How to be as- The proper mode of examining a witness, when it certamed. j g necessarv f or fa e p Ur p OS e of trying his competency in religious principle, is not to question him as to his particular opinions, but to inquire, generally, whether he believes in the existence of a God, the obligation of an oath, and a future state of rewards and punish- ments^). And if the form of oath to be used by him be different from the usual form, the witness may be asked, previous to administering the oath, what mode (a) Omichund v. Barker, I Atk. 21 ; 1 Wils. 84 ; Willes, 538, S. C.; Ev. 10, 1.1 ; Bull. N. P. 292; 1 Atk. 40, 45, 48. (6) R. v. Taylor, Peake's N. P. C. 11. Taking Informations. 163 of swearing he uses, and considers binding on his con- science^). The informant or witness beine sworn, it is then the Intonations to . , . . . be in writing. duty of the magistrate to take and reduce to writing the informations of each of them respectively^). And it will be seen that the knowledge of evidence and discrimination requisite for the due performance of this important duty, demand the special attention and actual superintendence of the magistrate, and that it should not be entrusted by them to the clerk. Upon this subject the magistrate's attention is par- Informations to ticularly requested to the following suggestions, viz. la^gVagVonife that the informations contain a full statement of the witness. actual facts to which the witness can depose, and as nearly as possible in the words and expressions used by the witness ; and, in thus committing to writing the narrative as given by the witness, and as nearly as pos- sible in his natural language, it is generally desirable that even the peculiar phraseology used by him, though perhaps sounding uncouthly, shall be preserved, as being best understood by him, and most closely con- veying his meaning, and as frequently having a peculiar significance and bearing upon the character of the charge. The information should, therefore, be taken To be taken in in the first person, being that which the witness natu- rally uses ; for the use of the third person, as, that "informant or deponent did this;" or, that "informant saw defendant do that ;" &c., not being the manner in which a witness in common parlance expresses himself, is likely to confuse or mislead him, so that he may, perhaps, sometimes conceive such terms to mean some other person than himself(c). Therefore, after the in- (a) The Queen's Case, 2 Br. & Bing. 284 j 1 Phil. Ev. 12 ; 1 & 2 V. c. 105, ante, pp. 161, 162. (by Fearshire's Case, 1 Leach, 202; 2 Hale, 111. In all cases, as well of misdemeanor as of felony, 9 Geo. IV. c. 54, s. 2, 3, (c) Carr. C. L. 13. 164- Taking Informations. Technical terms not to be used. Where several charged. Magistrates may interro- gate. Not to suggest to witness. troductory part, concluding " who being sworn saith as follows," the informations or depositions should proceed thus, "I saw," &c., or, " I went," &c., instead of, "he this informant saw or went," &c. For the like reason, the use of technical terms, such as that the " defendant" did " feloniously," &c. or, that "informant" was "assaulted" or "robbed," and such like, without stating the particular act done, should be avoided, inasmuch as the precise signification of such terms, however familiar to the magistrate and the law- yer, is not generally known to the ordinary class of witnesses, and must be frequently misunderstood by them ; and the suggestion or introduction of such terms, which do not convey the faithful and natural account of the transaction in the ordinary language of the wit- nesses, has, therefore, been strongly reprobated ; and in a case where the deposition was framed in the terms of the Statute under which the party was committed, the Court condemned such practice, and observed, that it should have been taken in the words of the wit- ness(a). Where several persons are charged with the offence, the separate acts done by each should be dis- tinctly set forth, and in what manner each individual took part in it. But though the information is to contain the narra- tive of the actual facts of the transaction as detailed by the witness himself, and in the manner in which he narrates them, yet it is competent to the magistrate to interrogate him as to the facts(6) ; and it is his duty so to do, if it be requisite for the elucidation of the truth. But, in so doing, he should carefully avoid suggesting to him, or introducing into the deposition, any thing (a) Mills v. Collet, 3 Moo. & Payne, 242 ; S. C. 6 Bing. 92 j Cohen v. Morgan, 6 Dow. & Ry. 8 j S. C. 2 M. C. 320. (6) R. v. Jones, Carr. C. L. 13. Taking Informations. 165 which the witness cannot depose to positively, from his actual knowledge or belief; or committing it to writing in any other language than that used by the witness. The magistrate will also readily perceive, Or lead the wit- that in thus interrogating the witness, he should avoid shaping his questions in such a form as may lead the witness, by merely answering " yes" or " no," (techni- cally termed leading questions,) to establish a series of facts in support of the charge, which otherwise he might not have intended. And although the information should contain a full Not to state .... hearsay or sur- narrative of the transaction, the magistrate should take m j se . care to ascertain that the facts deposed to are within the actual knowledge or belief, distinguishing which, and not merely the opinion of the witness, or from hearsay. And here there is frequently considerable difficulty in taking the depositions of uneducated or ignorant persons, in order to confine their testi- mony to what they actually saw or did, or to their belief of certain facts, such witnesses not being easily capable of discriminating between a knowledge of facts and matters of hearsay or conjecture, so that if care be not taken to prevent it, they will detail particulars as if they had been present and witnessed them, which upon inquiry will turn out to have been conjectured by them, or communicated to them by some other person, thus mixing up facts with mere hearsay or surmise. The value of the discrimination, and the knowledge Not to be en- of evidence required in taking correctly the in forma- * ed tion, sufficiently demonstrate the importance of the magistrates' personal attention to this duty, and that it should not be committed by them to their clerk. And, indeed, it must be within the experience of all those who have had the opportunity of observing the result of a different practice where it has obtained, that the clerk, when this duty is committed to him, fre- 166 Taking Informations. quently merely fills the information upon such vague re- collection as he may have of the viva voce testimony given Evil of intrust- by the witness before the magistrate, such written infor- ing this duty to ' . clerk. mation being afterwards tendered to the witness to be sworn by him before the magistrate. The informations thus prepared are also, for the most part, stuffed with technical terms, and instead of detailing a narrative of the facts of the case, consist of some brief general form, which is adopted in ignorance of what is essential to be stated, or to avoid the trouble of writing down a detailed statement of the facts ; and it is to be appre- hended that the witness is thereby frequently induced, when the information so prepared is afterwards tender- ed to him, to depose to matter which he does not distinctly comprehend, and which was not within his intention, while the material facts originally narrated by him are omitted. Precedent of An outline form of information will be found in the mation " Appendix, which may serve as a guide, to be varied according to the nature of the charge. And it is de- sirable, where there are several witnesses, that the depositions shall follow in such order as may best serve to give a connected account of the transaction ; and when the case is in any degree complicated, and the number of witnesses considerable, the magistrate may find it convenient and satisfactory, before taking the informations, to make an epitome of the case, exhibit- ing an outline of the facts to be deposed to by each witness, in order to enable him to arrange the exami- nations, so that they may follow in due order, and form a regular chain of evidence; otherwise it frequently happens, especially where the court has not the assist- ance of counsel in preparing the case and arranging the evidence, that considerable confusion is occasioned at the time of trial. The gratuitous duties of magistrates have become Taking Informations. 1 67 so onerous, from the length and frequency of their sit- Argument for ting in petty sessions, that it may, perhaps, appear J unreasonable to expect that they shall undergo the rules. tedium and fatigue of taking the informations in the manner above required. It is, however, unquestionable that such is their duty, and such the legal requisites of an information taken before them, as expounded in the judgments of the superior courts above referred to. And in order to impress magistrates with a sense of the great value and importance of having all the material facts and circumstances, as narrated by the witness, stated in the information, the following arguments are also offered for their attention: 1st, That the witness may be thereby held to his first narrative, given recently after the transaction, and when its circumstances are fresh in his memory, and not left open to retract or vary it, under the influence of motives which may affect him afterwards ; and that the court, before whom the wit- ness afterwards gives his evidence upon the trial, may thereby have the means of ascertaining, by reference to his information, whether his testimony at the trial cor- responds therewith, which is frequently of the last im- portance in testing his credit(a). And the information must generally be insufficient for this important pur- pose, if it does not contain a full detail of the facts of the case as actually narrated by him. Therefore, if it be expressed in general or technical terms, in language in which no person in common parlance can be supposed to express himself(6) ; or if it appear that it has been written by the clerk in the absence of the witness, though afterwards sworn to by him(c), the court will scarcely feel warranted in resting upon a seeming con- tradiction, where the original evidence of the witness has (a) 2 Russ. C. L. 663. (6) Cohen v. Morgan, 6 Dow. & Ry. 8; 2 M. C. 320,). When the offence is not committed in the presence of the justice, he ought not to issue a warrant without in- (a) Ante, p. 88. (b) Ante, p. 92. (c) See form of oath and jurat in Appendix. (d) Ante, pp. 69, 74. (e). 2 Hawk. c. 13, s. 18. Issuing Warrant. 177 formation on oath() ; and if he commit without oath made before him, he must then make out the cause of Grounds for commitment at his peril (6). It has, therefore, been suggested, that where a magistrate has in himself know- ledge of a particular fact, or cause of suspicion against a particular individual, he is in such case to be consi- dered rather a witness than a magistrate, and ought to make oath of the fact before some other magistrate, who should thereupon act the official part, by granting his warrant to apprehend the offender, or otherwise pro- ceeding as the circumstances of the case may require(c). In all cases, also, when a justice is interested, his interference is improper(d), and application should be made to some other magistrate to issue the warrant. There is a special provision in the Whiteboy Act, Summoning of- 15 & 16 Geo. III. c. 21, s. 28, which, in order to enable justices of the peace to prevent the commission of the outrages and violence there described, enacts that any two or more justices, having reasonable cause to sus- pect any person to be guilty of any unlawful rising, as- sembling, or appearing in arms as is therein described, or of having been in any unlawful assembly to the terror of his majesty's subjects as therein, or of intending so to be, may summon, and they are hereby required to sum- mon before them, the person so suspected to be guilty, and bind him over, by his recognizance, to appear at the next ensuing assizes or general gaol delivery for the county in which he shall reside, to answer such matters as he shall then be charged with, and to be of good behaviour in the mean time : and in case of refusal to appear to enter into security, as aforesaid, such justices (a) 2 Barnard. 34, 77, 101; 2 Hale, 79, 107, 110; 1 Hale, 579, 582; and see 2 Hawk. uli. sup. 4 Inst. 177. See 6 Burn. 151, 152. (6) By Holt, C. J. Comb. 359 ; and see 1 Chit. Cr. L. 78. (c) By Pratt, C. J. in R. v. Wilkes, 2 Wils. 158, and see 1 Chit. Cr. L. 25, 36. (d) Ante, p. 65. Form of Warrant. Form of the warrant. Commence- ment. Conclusion. shall have power, by warrant under their hands and seals, to commit such person to the common gaol of the county, there to remain until such person shall submit to appear and enter into such security as aforesaid, or until discharged by due course of law(). II. 3. The warrant may commence or be styled in the name of the king(o) ; but at the present day it is more usual to style it in that of the justice by whom it is issued, thus, (after stating the county or district in the margin,) " By E. F., Esq., one of his Majesty's justices of the peace in and for said county ;" or, if granted by the justices at petty sessions, its usual commencement is thus, " By the magistrates assembled at a petty ses- sions, held at in and for said county ;" it may be made without either style, and commencing thus, " For- asmuch as," or " Whereas A. B. [naming the accuser, either with or without his residence and degree] (c), hath this day made information, upon oath, before me [or us], &c., these are, therefore, in his majesty's name, to com- mand you, and every of you, to arrest, &c ;" or, without stating the information, thus, " You, and each of you, are hereby authorized and required to arrest and bring before me [or us], &c." And it may conclude either under what is termed the teste of the justice, thus, "Witness the said E. F. [here the justice's name] at on the day of, &c. ;" or, as is more usual, it may be merely subscribed by him, thus, " Given under (a) But for the application of this act, see ante, p. 148. (j) But in this case the teste of the warrant must be under the name of the justice who grants it, concluding thus, " Witness the said E. F. [here the justice's name] at on the day of ." See this form 6 Burn, 166 ; and see 2 Hawk. c. 13, s. 24. It is said by Lord Hale, upon the authority of Dalton, that process, after indictment issued from the sessions of the peace, is always in the king's name, 2 Hale, 113 ; 2 Hawk. c. 27, s. 8. See form, 4 Chit Cr. L. 198. (c) It is not necessary to state in the warrant the addition of residence or degree of the accuser, though it is usual to do so in the information. Form of Warrant. 179 my [or our] hand and seal this day of " [here the justices signature.] If granted at petty sessions, it is to be signed by two of the justices at the least, 7 & 8 Geo. IV. c. 67, s. 15, except in the case provided for by 6 & 7 Will. IV. c. 34, s. 7(a). The warrant ought to bear date of the day and year Date and place. when it is made ; but it is not necessary, in the body of the warrant, to express the place where it is made, though, if it be not stated in the body, it is necessary to set forth the county in the margin(6) ; and such is the usual form. The usual direction of the warrant, which may be Direction of . i n warrant. inserted either at its commencement or at foot thereof, (the county having been previously set forth in the mar- gin,) is, " To the constables of said county," or, " To all chief and other constables of said county, or any of them, and their assistants," or, if the magistrate selects any particular constables for its execution, it should be directed " To [here the names of the constable or con- stables selected,'] and his [or their] assistants, and to all chief and other constables of said county, or any of them." Beside the direction, the names of the consta- indorsement by bles who are to assist in the execution of the warrant S1 should, if there be sufficient time, be endorsed by the sub-inspector, in the manner before mentioned(c). The justice may also direct his warrant to any indif- Of directing P , warrants to pri- ferent person by name, though such person be not a vate persons. constable, and may thus authorize such person to be his officer, for the particular occasion ; but such prac- tice has prudently been disused, since the establishment of the present efficient constabulary force, and is ob- jectionable for many obvious reasons, besides that no private person is compellable to execute it, whereas the (a) Ante, 88, 92. (6) 2 Hawk. c. 13, s. 22, 23 ; 2 Hale, 111 ; Dalt c. 169, s. 3. (c) 6 Wm, IV. c. 13, s. 16, ante, p. 30. 180 Form of Warrant. Not to party. Of directing it to the sheriff. Name of the party to be ar- rested inserted in full. constable of the proper county or district may be in- dicted^), or punished in a summary manner by fine(5), if he disobey it. But in no case is the warrant to be directed to the party interested to execute it, and if the justice should so direct, he would act contrary to his oath of office(c). The justice may also direct his warrant to the sheriff, but this is now very unusual, although formerly, when the constabulary establishment was not so efficient as at present, it was frequently found expedient ; and in such case the sheriff may make a warrant to his bailiff to execute it(o?). Bnt if an act of parliament empower a justice to grant a warrant for a penalty, and do not state to whom it shall be directed, it must be directed to the constable, who is the proper officer of the justice for this purpose, and not to the sheriff, to whom in such case it cannot be directed, unless such power be ex- pressly given by the Adt(e). The name of the party to be apprehended should be stated in full, if known(/) ; but it is not necessary to state the addition of place of residence or degree of the accuser or offender, though, where the warrant is granted after indictment found, both are usually stated as in the indictment. It is also said, that if the name of the party be (a) 1 Hale, 581; 2 Hale, 110; 2 Hawk. c. 13, s. 27; Coleman's case, 2 Roll, Rep. 78 ; R. v. Wyatt, 2 Ld. Raym. 1191 ; S. C. 1 Salk. 381. (6) 6 Will. IV. c. 13, s. 19, ante, p. 22. (c) Ante, p. 7. (d) 1 Hale, 581; 2 Hale, 110, 115; 2 Hawk. c. 13, s. 27; 6 Burn, 152. Capias issued at assizes, upon indictment found, is always directed to the sheriff. See forms, 4 Chit. Cr. L. 198 ; 5 Burn, 304. (e) R. v. Wyatt, 2 Ld. Raym. 1191, 1192 ; S. C. 1 Salk. 381 ; 2 Hawk. c. 10, s. 35 ; 6 Burn, 153. (/) 1 Hale, 577 ; 2 Hale, 114. It appears that an arrest of a party on civil process by the initials only of his Christian name is irregular. Reynolds v. Hankin, 4 B. & Al. 536. Form of Warrant. 181 unknown, the warrant may be issued against him by But if un- _ , .,, , . known, descnp- the best description the nature of the case will admit, t ion is sufficient. as by describing his age, stature, complexion, &c. ; or it may be thus, " The body of a man whose name is un- known, but whose person is well known, and who is employed as a driver of cattle, .and who is commonly ca ll e( j "(#) or, " The body of a man whose name is unknown, but whose person can be identified." But as the execution of a warrant upon description neces- sarily exposes the person executing it to the hazard of mistake, it should not in general be resorted to, until every means have been used in vain to discover the name of the party against whom it is sought, or unless the urgency of the case imperatively calls for an arrest before suchmeans of inquiry can be effectually used. In the case of hue and cry, the law allows this proceeding from the necessity of the case() ; and in a warrant of commit- ment, where the party refuses to tell his name, it is necessary thus to frame the warrant by description. But in a warrant to arrest, either the full name or a But either full sufficient description is necessary ; and a warrant to ciwudescri^' apprehend on application of the pro- secutor, grant a certificate, that the bill of indictment has been found, upon the production of which certifi- cate (b), any justice of the county will grant his warrant Warrant by to apprehend the party (c). In this case, the magistrate ' does not require a fresh information to be made before him by the prosecutor, previous to issuing the warrant ; because the charge has been already investigated by the grand jury, by whom the bill of indictment has been found, and the warrant is therefore grounded solely upon the certificate of such indictment having been Form. found. This warrant is usually issued in the king's name, under the teste of the justice, and directs the con- stable, as in ordinary cases, to arrest and bring the party before the justice .by whom it has been granted, or some other justice of the county. It is usual and proper to describe the party with the same addition as in the indictment, and to state that he stands indicted, according to the offence therein set forth, and that he has not appeared or pleaded to the indictment, "as ap- pears by the certificate under the hand of the clerk of the peace,' 7 or, " of assize," as the case may be. The magistrate before whom the party is afterwards brought upon proof on oath made of his identity, will, if the of- fence be bailable, take sureties or bail, for his appearance (a) Dick. Sess. 184 ; Rayne's Sess. 24. See form of bench warrant, 3 Williams, J. 773, tit. Process, in note, Dick. Sess. 562 ; and see 4 Chit. Cr. L. 198 ; 2 Hawk. c. 27, s. 8 ; 1 Chit. Cr. L. 399, et seq. (b) See form of certificate, 4 Chit. Cr. L. 199 ; 3 Williams, J. 773, tit. Process in note ; 2 Gude's Cr. Pr. 175. (c) Cro. Cir. C. 14 ; 1 Ch. Cr. L. 342; R. v. Stokes, 5 C. & P. 148 ; 1 Gude's Cr. Pr. 85. Of indorsing Warrants. 189 at the next sessions or court where such indictment has been found " to answer the said indictment" (a); or, in case the offence be not bailable, or sufficient bail be not procured by the party, will commit him, as in ordinary cases, or to be kept in custody till the next assizes or quarter sessions, (as the case may be,) or, "for want of sureties, or until he shall be discharged by due course of law" (ft). II. 5. When an offence has been committed and a Indorsing or ~ backing war- warrant issued thereupon in another county, or in Great rants . Britain, and the offender has escaped or come into the county in which the warrant is sought to be executed, any justice of the latter county may, by St. 44 Geo. III. c. 92, amended by St. 45 Geo. III. c. 92, indorse or " back" the warrant. By St. 44 Geo. III. c. 92, s. 1, it is Warrant issued , , in Ireland may enacted, that when any person against whom a warrant be backed in a shall be issued by any justice or justices of peace in Ire- different coun- land, shall escape, go into, reside, or be in any other ' county, city, liberty, town, or place, out of the jurisdic- tion of the justice granting the warrant, it shall and may be lawful for any justice of such latter county, city, &c., and he is hereby required, upon proof being made on oath of the handwriting of the justice or justices grant- ing such warrant, to indorse his name thereon, which indorsement shall be sufficient authority to the person bringing such warrant, and to all others to whom it was and executed, originally directed, to execute the warrant in the coun- ty, &c., where it has been so indorsed, and to carry the offender before the justice who indorsed it, or some other (a) It is said by Ld. Hale, that a person indicted before justices of a higher jurisdiction, as before justices of Oyer and Terminer, cannot be bailed by justices of the peace ; 2 Hale, 133. (b) Forms of such warrants, recognizances, and commitments will be found in the Appendix. 190 Of indorsing Warrants. Where offence justice of the county, &c., where it was indorsed; and, in case the offence be bailable, the justice may take such bail, and deliver the recognizance and other proceedings had before him to the constable or officer, to be by him delivered over to the Clerk of the Crown or Peace, for the place where the offender is required to appear, in Where offence the manner therein directed. And if the offence be not 3le ' bailable, or satisfactory bail be not given, the officer shall carry the offender before a justice of the peace where the offence was committed, there to be dealt with according to law. By sect. 2 it is provided, that the justice indorsing the warrant shall not be liable to any action or proceeding against him, by reason of his so endorsing it, but the parties aggrieved shall have their remedy against the justice who originally issued Imperative on it. Under this Statute, when proof on oath of the hand- J. P. to indorse . . , , , , the warrant. writing of the justice who granted the warrant is made before a justice of any ether county, he is bound to in- dorse it, and has no discretion upon the subject, as in such case he acts merely ministerially ; and on affidavit of his refusal a mandamus will be granted to compel Warrant issued Where any person, against whom a warrant is issued in Great Britain . ^ , -n, . . , i, backed in m Great Britain, shall escape, go into, reside, or be, in Ireland. an y p ar t o f Ireland, it shall and may be lawful for any justice of the county or place in Ireland, whither or where such person shall be, to indorse his name on such (a) R. v. Kynaston, 1 East, 117. (6) It will be observed, that sections 3 and 4, authorizing the indorse- ment in Ireland of warrants issued in Great Britain, and vice versa, do not contain any provision directing proof to be made on oath of the hand- writing of the justice who granted them, similar to that in sect. 1, ante, p. 189; and 45 Geo. III. c. 92, ss. 5, 6, which contained an enactment to this effect, has been repealed by 54 Geo. III. c. 186 ; by which latter Statute it is enacted, that such warrants shall be indorsed, &c. in manner directed Of indorsing Warrants. 191 warrant, which warrant so indorsed (b), shall be a suffi- cient authority to the person bringing such warrant, and to all persons to whom it was originally directed, and to all constables and other peace officers of the county or place where it shall be so indorsed to execute the warrant, in such county or place, by apprehending the person against whom such warrant was granted, 44 Geo. III. c. 92, s. 4. And by Statute 45 Geo. III. c. 92, s. 1, such person so apprehended shall and may be taken before the justice who indorsed the warrant, or before some other justice of the county or place, &c., where the same was indorsed (a), to be dealt with as herein is provided. There is a like enactment, mutatis mutandis, re- Warrant issued specting offenders escaping from Ireland into Great J^^g]^ Britain, 44 Geo. III. c. 92, s. 3, amended by 45 Geo. Great Britain. III. c. 92, s. 1. The further enactments of these Statutes, respecting the proceedings when the party is brought before the justice, will be found in a subsequent chapter (It). by the English Act, 13 Geo. III. c. 31, the provisions of which last men- tioned Act are, on this subject, the same as those of 44 Geo. III. c. 92, s. 4, above stated. (a) By Stat. 44 Geo. III. c. 92, s. 4, it had been enacted, that in such case the person so apprehended should be brought by the most direct way into Great Britain, and before a justice of the county, &c. living near the place, and in the county, where he should arrive and land, to be there dealt with according to law. But in order to give the party apprehended an opportunity to give bail, where the offence is bailable, that enactment has been amended, as above, by 45 Geo. III. c. 92, s. 1. (b) See post, Chapters on Bail and Commitment. 192 Execution of the Warrant. CHAPTER IV. Constables bound to execute the warrant. Duration of warrant. Constables to take directions, if time, from sub-inspector. OF THE EXECUTION OF THE WARRANT OF ARREST. IT is the duty of the officer, to whom the warrant is directed or delivered, to proceed with all convenient speed and secrecy to execute it, and in doing so he is bound strictly to follow its directions (a). If he refuse or neglect to execute it, he may either be prosecuted for such disobedience or neglect by indictment at com- mon law (b), or punished in a summary way, as before stated (c). But although it is the duty of the constable to proceed without delay to execute the warrant, when delivered to him, yet, if circumstances prevent, and it cannot be executed immediately, it remains in force (unless it be made returnable at a particular time, which, as before observed, is objectionable, and very un- usual) during the life of the justice who has granted it, and may be executed whenever an opportunity offers (d). A constable appointed under 6 Will. IV. c. 13, is required, when he receives any warrant, order, or command from any magistrate, to show it, if time will permit, to the sub-inspector under whose immediate command he then is, who shall nominate and appoint by indorsement thereon, such of the constables under his order, and such assistants, as he shall think proper to execute it(e.) The reservation herein contained, (a) Dalt c. 169, s. 8 ; 6 Burn, 160. (6) 1 Hale, 581 ; 2 Hale, 88; 2 Hawk, c. 10, s. 35. Crouther's case, Cro. Eliz. 654. (c) Ante, p. 22. (d) By Lord Kenyon in Dickenson v. Brown, Peake's N. P. C. 234. 0) Ante, p. 20. Execution of the Warrant. 193 seems intended to provide for cases where immediate execution of the warrant is required for the preserva- tion of the peace, or for the arrest of an offender whose escape is apprehended, and where the sub-inspector happens to be at such a distance that the purposes of justice are likely to be defeated by the delay which such communications may occasion. If the warrant be directed to the constables of the Warrant joint county generally, it may be executed by any constable of the county, or if to several by name, by any one of those named, and their assistants (). In the present state of the constabulary force, the assistance of others in the execution of a warrant is rarely demanded ; and Assistant. if the constable take others to assist him, he should be present, or at least so near as to appear to be acting in the arrest, in order to render the acts done by them legal (b) ; unless, as is usual, such assistants be them- selves constables of the county, who are therefore authorized to execute, or to aid in executing, the war- rant, when directed to the constables of the county at large. If the officer does not already know the party named Precaullon * to ascertain in the warrant he should be informed, so as to make person to be himself acquainted with his personal appearance, or arrested< have some one on whom he can rely to point him out, as he is bound at his peril to arrest the proper per- son^). And he must be careful also, in all other respects, strictly to follow the directions of the warrant ; for if he exceed his authority, as by arresting the wrong person, or if it be a search warrant, by taking (a) 1 East, P. C. 320 ; 1 Hale, 459. (b) Blotch v. Archer, Cowp. 65, 66 ; Burdett v. Coleman, 14 East, 190 ; 2 Hale, 86, post, Ch. VI. (c) Com. Dig. Imprisonment, H. 7 ; 1 Hawk, c. 31, s. 64 ; (l Curw. 103.) 2c 194 Execution of the Warrant. Notice to the party. Production of warrant. goods or searching places not specified therein, he will forfeit the protection which the law otherwise affords him, and will be answerable to the party in an action for the injury (a). The constable ought in all cases to acquaint the party with the substance of the warrant or cause of arrest ; and it is also expedient, in order to remove all excuse for resistance, that the warrant should be pro- duced to the party, if he demand to see it(). In no case, however, is the constable required to part with (a) Com. Dig. Imprisonment, H. 7; and see 3 Burr. 1742, 1768; 2 Bos. & Pull. 158, 162; 2 M. & S. 259, 261 ; 2 Hawk. c. 13, s. 31. (6) 1 East, P. C. 319, 315; 1 Russ. 518, 515; 6 Burn, 161, 162, and the observations of Lord Kenyon in Hall v. Roche, 8 T. R. 188. Upon this point, as to the obligation of a known officer to produce his warrant upon demand, a difference of opinion, however, seems to exist. Thus, it is said both by Lord Hale and Serjeant Hawkins, that a known officer, (by which it appears is meant one who is commonly known to be such, 9 Co. 69, b.) acting within his precinct, need not show his warrant to the party, even though he demand to see it ; 2 Hale, 116 ; 2 Hawk.c. 13, s. 28 ; 1 Hawk. c. 51, s. 62. (1 Curw. 103.) And in confirmation of this opinion it has been observed, that in criminal cases a constable is authorized in many instances to arrest without warrant, and in such case the party is bound to submit to the arrest, although, of course, no warrant can be produced. On the other hand, it is said by Mr. East and the learned editor of Lord Bale's treatise, that this position, if understood of the warrant constituting the officer a bai- liff or constable, may be true, but that with respect to the process itself against the party, it must be produced if demanded; 1 Hale, 458, in note; 2 Hale, 116, in note; 1 East, P. C. 319, 315. It is to be observed, however, that the authorities referred to, by the two learned writers last cited, in support of the latter opinion, relate to arrest upon civil process, (see 6 Co. 54, a. 9, Co. 69,) in which case the officer, who cannot arrest without writ, (as the constable may do without warrant in criminal cases,) is bound to show at whose suit, out of what court, and for what cause, the process issues, and when it is returnable, explanations altogether inapplicable to criminal arrests. But even though the officer, in strictness, were not obliged to produce the warrant, it is safe and advisable that he should do so, as above directed, as in case of resistance its legality is a most important question, T. R. ubi. sup. ; and whether it be shewn at the time of the arrest or not, it must sub- sequently be produced in case of an action ; see ante, p. 34, 35. Execution of the Warrant, 195 the possession of it; he is to keep it to produce as his justification, if the arrest should be afterwards ques- tioned (a) ; and if the party arrested should get posses- Possession of ., i P , ,111 the warrant. sion of it, and refuse to return it, the constable has a right to take it from him, and even to coerce his person to regain possession of it, provided he uses no unneces- sary violence in so doing (6). What constitutes an arrest, and when and how it Mode of making may be made, have been noticed in a previous chapter, l e a est * to which the reader is referred (c); and though under special circumstances the arrest may be effected without laying hands on the prisoner, it is better in all cases to touch his person, in order to complete the arrest, taking care at the same time to use no greater force or con- straint than may be necessary for his safe custody, the degree of which will depend upon the particular cir- cumstances of the case, as the character of the party, the nature of the offence charged, the state of the country, and such like. The warrant in general cannot be executed out of Local limits of the county or jurisdiction of the justice who has granted J unsdlctlon ' it, unless it be endorsed by a justice of the county in which it is sought to be executed. But by St. 59 Geo. III. in execution of c. 92, ss. 1, 2, which authorizes a justice, when in &?, the commission of the peace for two adjoining counties, joining coun- to act in all matters relating to either of said counties, while personally resident in one of them (c?), all consta- bles and other officers of the county to which such act relates, are authorized and required to obey the war- rants, orders, and directions of such justice ; and any constable or other person apprehending any person, whom he may lawfully apprehend by virtue of his office (a) 1 East, P. C. 319 ; R. v. Wyatt, 2 Ld. Ray, 1196. (6) R. v. Milton, 3 C. & P. 31. (c) Ante, Ch. I. p. 98, el seq. (d) Ante, p. 51. See al&o p. 35. 196 Execution of the Warrant. or otherwise, may take the person so apprehended to any justice of the peace acting for said county, and pre- sent in such adjoining county ; and such constable, &c. is authorized and required in all such cases so to act, as if the said justice were resident within the county to which he belongs. And it is hereby further enacted, that any person obstructing such constable, &c. in the execution of his office, in such adjoining county, shall be liable to the same penalties, as if such obstruction, &c. had been committed in the county for which such constable was appointed to act. And it shall be lawful for any constable or other person, having in his custody any person whom he might lawfully convey to gaol, or other place of custody, to convey such person into and through any part of the said county so adjoining, in their way to such gaol or place of custody within the bular' Atf a " count y wherein the offence was committed. Similar provisions of the Constabulary Acts (a), for facilitating the arrest and conveyance of prisoners in adjacent coun- ties, and of Stat. 5 Geo. IV. c. 18, s. 5(/>), empower- ing constables, in all cases, to execute a warrant in any place within the jurisdiction of the justice granting or (a) Ante, p. 26, 27. (i) Even before this Statute it was held, that although warrants directed to the constables of a particular district generally, in their character as such, could not be executed by them out of their district, yet, a warrant directed to a constable or any other individual by name might be executed at any place within the jurisdiction of the magistrate who had granted or indorsed it; 2 Hawk. c. 13, s. 30 ; 1 East, P. C. 314 ; Milton v. Green, 5 East, 233 ; R. v. Weir, 1 B. & C. 288 ; S. C. 1 Dow. and Ry. M. C. 319. And it has been decided, that by 5 Geo. IV. c. 18, s. 5, a constable is not bound, though he is authorized, to execute such warrants out of his precinct; Gimbert v. Coyney, 1 Dow. & Ry. M. C. 323 ; 1 Me. L. & Young, 469. But, as before observed, the provisions of this Statute are rarely acted upon in Ire- land, where constables, being appointed for counties at large, their district of duty is generally co-extensive with the jurisdiction of the justice; ante, p. 35. Execution of the Warrant. 197 indorsing it, though out of their own district, have been already noticed. If the warrant be for felony, it may be executed in Arrest within a / i i i i i franchise. any franchise, if there be any such within the county, although in other matters the jurisdiction of the justice should not extend to such franchise (a) ; but in most cases, the authority of the county justices extends to all places within the county (&). So also the warrant may, Pursuit upon under certain circumstances, be executed beyond the fllg l limits of the county in case of the flight of the party. There are, however, distinctions in this case, depending on the degree of the offence, which will be hereafter noticed (c). Except in these instances, the warrant of a justice When warrant of the peace cannot be executed beyond the bounds of dorsed. the county or jurisdiction, for which the justice who has granted it is in the commission of the peace. In other cases, therefore, where the offender is in another county, it is necessary to have the warrant backed or indorsed by a justice of such latter county, under the provisions of the Statutes before mentioned (d) ; and it may thus be executed in any county, though issued in any other county in Ireland, or in Great Britain ; or in any place in Great Britain, though it were issued in Ireland. (a) 2 Hale, 116. (6) See ante, p. 61, et seq. (c) 2 Hale, 115 ; 2 Hawk, c. 19, s. 12; post, Ch. VI. (d) Ante, p. 189, et seq. 198 Breaking open outer Doors. CHAPTER V. OF BREAKING OPEN OUTER DOORS. THE proceeding of the constable in making the arrest, where no obstruction or resistance is opposed, having been stated, it will be proper to consider his duty in case the party to be arrested is in his house, or takes refuge in a house, and the power which is com- mitted to him in such case to break open the outer doors of the house, in order to effect the arrest, if ad- mission be refused. This power is one of equal delicacy and importance, as it concerns the peace and security of private dwellings, and as the legality of the mode of proceeding by the officer frequently becomes a material consideration in cases of homicide. It is therefore essential that he should know precisely the limits of his authority in this respect, and it will be convenient to collect the law upon the subject with regard to crimi- nal cases in general, and inquire in what instances the officer is justified in thus proceeding ; I. when he acts without warrant ; and II. when proceeding under the warrant of a magistrate. Previous notifi- It may be premised, that in all cases whatsoever, in and^refusaiTf ' which doors may be broken open, there should be a admission. previous notification of the business, accompanied with a demand to enter on the one hand, and a refusal on the other, before the officer proceeds to such extre- mity (a) ; but no precise form of words is required to be used in giving notice, it is sufficient if the party be (a) Fost. 320 j 2 Hale, 193 ; 2 Hawk. c. 14, s. 1 ; 1 East, P. C. 324; 1 Russ. 519; so laid down by the several eminent writers here referred to. And see Launock v, Browne, 2 B. & A. 592 and Burdett v. Abbott, 14, Ea. 163. Breaking open outer Doors. 199 acquainted by the officer with his business and autho- rity, and apprized that he comes not as a mere tres- passer, but claiming to act under a proper authority (a). I. The authority of the officer to break open outer Without war- doors where he acts without warrant, may be considered rant ; , m what J cases doors tnay as it applies to the case, 1 st, of actual breach of the be broken open, peace ; and 2ndly, of felony. 1. In some cases of actual breach of the peace, com- For breach of mitted in his presence, the officer is justified in pro- ceeding to this extremity, even where he acts without warrant ; as on his immediate pursuit of affray ers, where the affray has been made within his view, especially if there have have been any extraordinary circumstances of violence attending it; and. a fortiori in such breaches of the peace as amount to riot(). So where an affray takes place in a house within the view or hearing of the constable, whereby it is likely that manslaughter or bloodshed will ensue, the necessity of the case autho- rizes this proceeding upon the part of the officer, during the affray, in order to suppress it, and to prevent fur- ther violence (c). And it is said, that the officer has the like power, if there be disorderly drinking or any un- warrantable disturbance at an unseasonable time of night, especially in ale-houses or the like places of pub- lic resort, which are under the peculiar superintendence of the police (d). But this power the constable should exercise with caution, and it has been observed, that even in the pursuit of affrayers, where the affray is not actually going on in the house, but where the parties (a) Curtis' case, Fost. 137 ; and see ante, p. 127. (6) 1 Hawk. c. 63, s. 16 ; (I Curw. 490 ;) 2 Hawk, c. 14, s. 8 ; and see 1 East, P. C. 322 ; 1 Russ. 273. (c) Id. ibid. 1 Hale, 589 ; 2 Hale, 95 ; and see Handcock v. .Baker, 2 Bos. & Pull. 260. (d) 2 Hale, 95 ; 1 East, P. C. 322. See also 3 & 4 Wm. IV. c. 68, ss. 14, 15, and 6 & 7 Wm. IV. c. 38, s. 4 ; ante, p. 1 10. 200 Breaking open outer Doors. Not for a mere For treason, * wound given, To prevent the commission of a felony. But not upon suspicion. have taken refuge in a house after the affray is ended, the constable will act prudently in not proceeding to this extremity without warrant, unless there have been some extraordinary circumstances of violence in the affray (a). Where therefore the offence is a mere assault, not committed within his view and followed in fresh pur- suit, or other misdemeanor, the officer should procure the warrant of a magistrate authorizing him to arrest the party for such offence, before he proceeds to this extremity (). . Where a felony has been committed, or a dan- gerous wound given, in the presence of the constable, and a fortiori in case of any act of treason committed, he may, without waiting for the warrant of a magistrate, break open outer doors, in fresh pursuit of the offender, after the previous notification, demand, and refusal, above mentioned (c). So also where a felony appears ,., , , ... -, . ,, c ^ f likely to be committed, .as in the case of a violent cry of murder in a house, or where persons have effected their entrance into a house, or wherever, from the circum- stances, there appears sufficient reason to apprehend a felony is about to be committed, the officer will be justified in breaking open the outer door, if refused admission, in order to prevent it (d). But though a felony has been actually committed, ^ efc . fc geems t k at a k are suspicion of guilt against the party will not justify the proceeding to this extremity without warrant ; or at least it will be at the peril of proving that the party so taken on suspicion is guilty (e) ; (a) 1 Russ. 273, in note j and see 1 Hale, 589. (&) See post, p. 202 ; ante, p. 124, 127. (c) 2 Hale, 90; Fost. 320; 1 East, P. C. 322; ante, p. 198. (d) 2 Hale, 94, 95 ; Handcock v. Baiter, 2 Bos. & Pull. 260 ; 1 Chit. Cr. L. 23 ; and see ante, p. 199. (e) 2 Hawk. c. 1 4, s. 7 ; Fost. 321 ; 1 East, P. C. 322 ; 1 Russ. 520. It may here be observed, that a different doctrine seems formerly to have Breaking open outer Doors. 201 and the same rule applies to the case of hue and cry(tf) ; in such case, therefore, it will be prudent to obtain the warrant of a magistrate for the arrest of the party, under which the officer will be justified in thus proceeding, even though it be grounded on a mere suspicion. II. When the constable acts under warrant, he is Under warrant: authorized to break open outer doors, in order to effect ^plcioa of the arrest, if the party is either in his house or takes felony, refuge in a house, in all cases where the warrant has been granted for treason, felony, or suspicion of felony, after the usual notification, demand, and refusal of ad- mittance^) ; and in such cases the warrant is a com- plete justification to the officer, or person to whom it is directed, acting duly under it(c). So outer doors may be broken open, when neces- For breach of sary, and subject to the above precautions, in execution the P eace> of a warrant for a breach of the peace(flf) ; or of a war- rant to compel a man to find sureties for the peace or good behaviour(V). It is certain also that after indictment found, for any Misdemeanors, offence whatsoever, outer doors may be broken open, when necessary, in order to arrest the party, and that no house is a sanctuary to him in such case(/). And so it also appears to be in the execution of the war- rant of a justice of the peace to arrest a party for any prevailed upon this point, viz. that if there were a charge of felony and reasonable ground of suspicion laid before the constable, he might proceed to break open outer doors, though without warrant, 1 Hale, 583, 588-9; 2 Hale, 92. (a) 2 Hale, 103; post, p. 212. 0) 1 Hale, 459, 580, 583; 2 Hale, 116, 117; 2 Hawk. c. 14, s. 7. (c) See 2 Hawk. c. 13, s. 11 ; 4 Black. Com. 291 ; 1 Chit. Cr. L. 54; and St. 5 & 6 Will. IV. c. 13, s. 50 ; ante, pp. 3135. (d) Curtis' case, Fost. 136. 320; 1 East, P. C. 322 ; 2 Hale, 117. (e) 1 Hale, 459 ; 2 Hawk. c. 14, s. 3. (/) 2 Hawk. c. 14, s. 3 ; 1 Chit. Cr. L. 58 ; 12 Co. 131. 202 Breaking open outer Doors. Under warrant : to levy penalty upon convic- tion, in what case. indictable offence, as in such case the interest of the public is concerned in securing and bringing the offender to justice. For although this privilege of protection from arrest is permitted where the rights of an indi- vidual only are concerned, as in the execution of pro- cess in civil suits, in which cases it is considered better that the individual should suffer inconvenience, than that the peace and security of private dwellings should be risked ; yet it appears to be otherwise in the execu- tion of a warrant in criminal cases, and that here the justice due to the community, viz., that crimes shall not remain unpunished, should supersede every pretence of private inconvenience(a). Under the warrant of a justice for levying a penalty upon a judgment or conviction, grounded on any Sta- tute which gives any part of such penalty to the king, the doors of the party's house may be broken open, if necessary, to levy it(). It will be seen(c) also that (a) See the observations of Lord Ellenborough, C. J., and Bayley, J., in the case of Burdett v. Abbott, 14 East, 155, 157, 162, 163. See also Fortesc. 320-1 ; Dalt. c. 169, s. 8 ; Fost. 320-1 j 1 East, P. C. 322. Upon this ground it is also settled, that where an injury to the public has been committed in the shape of an insult to any of the courts of justice, on which process of contempt has issued, the officer charged with the execution of such process may break open outer doors, if necessary, in order to exe- cute it. By Lord Ellenborough, C. J., in Burdett v. Abbott, 14 East, 157. In tbis case the warrant was for the commitment of the plaintiff, for a breach of privilege, committed by the publication of a writing, which the House of Commons had declared to be libellous and scandalous, and which, therefore, was clearly an offence against public justice. But an attachment issued for the non-payment of money merely, as of costs, or for the non-performance of an award, being in the nature of a civil execution, appears not to be such a process or contempt as will justify the officer in proceeding to this extre- mity. See R. v. Stokes, Cowp. 137 ; R. v. Myers, 1 T. R. 266, and for this power in civil cases generally Semayne's case, 5 Rep. 91, and the numerous cases collected in the note in Smith's leading cases, 44, et seq. (b) 2 Hawk. c. 14, s. 5 ; 6 Burn, 163. (c) Post, Ch. on " Search-warrant." The revenue Acts also provide, in How fat- a House protects from Arrest, 203 in the execution of warrants granted to search for in execution of stolen goods, and of search-warrants granted under the provisions of several Statutes in other instances, this power is given to the officer. Outer doors may Upon forcible also be broken open, where forcible entry or detainer er found. * is found by inquisition before justices of the peace, or appears upon their view(). This process is, however, little used at the present day. The power of the officer to break open doors is an exception to the legal maxim, " Every man's house is his castle"(), and ought never to be resorted to unless the arrest cannot be otherwise effected, and the pre- cautions above stated(c) have been previously taken. It is, however, in many cases, absolutely essential to pre- vent the ends of justice from being frustrated ; and it In w at cases has been observed, that the above maxim, though found- protection from ed in the anxiety of the law for the peace and security arrest. of domestic habitations, has been carried as far as the true principles of political justice will warrant, and that, as it encroaches in some degree upon public justice, it will not admit of any extension (d). Accordingly, the privilege from arrest afforded by a house is to be under- stood as existing only subject to the following restric- tions : 1. This privilege, wherever it exists, is confined to Applies only to arrests in the first instance. For if a man, being legally arrested(V) for any cause or offence, escape from the officer, and shelter himself in a house, whether his own or that of a stranger, the officer may, upon fresh suit, several instances, that doors may be broken open by the authority and in the presence of a constable. See 4 Geo. IV. c. 94, s. 109. (a) 2 Hawk. c. 14, s. 6. (6) Seymayne's case, 5 Rep. 91. (c) Ante, p. 198, 199. (d) Post. 319, 320 ; 1 East, P. C. 323. (e) As to what constitutes a legal arrest, see ante, p. 98, 195. 204 How far a House protects from Arrest. To the breach of outward doors ; of a dwelling- house. To arrest of oc- cupier or any of his family. Breaking open the house of a break open the outer door of the house in order to retake him, having first given due notice of his business, and demanded admission, and been refused (a), If it be not, however, upon fresh pursuit, it seems that the officer should have a warrant from a magis- trate^). 2. This protection is confined to outer doors and windows only, such as are intended for the security of the house against persons from without endeavouring to break in. For if the officer find the outer door open, or if it be opened to him from within, and he enter that way, he may then break open an inner door, if he find that necessary, in order to effect the arrest ; and this even where he would not have been warranted in breaking open the outer door(c). So also the rule extends to the dwelling-house only, and a barn or out- house not connected with the dwelling-house may be broken open(ef). 3. This personal privilege of an individual, in respect to his outer door or window, wherever it exists, is con- fined also to cases where the breach of the house is made in order to arrest the occupier or any of his family, whose ordinary residence, or, as it is termed, domicile, is there ; for if a stranger, whose ordinary residence is elsewhere, upon pursuit, take refuge in the house of another, such house is not what the law terms the castle of the stranger, and therefore he cannot claim the benefit of sanctuary in it(e). But although the house of a stranger is not to be suffered to shelter a (a) Fost. 320 ; 2 Hawk. c. 14, s. 9 ; 1 Hale, 459. (6) 1 East, P. C. 324. See post, " Escape." (c) I Hale, 458 ; Fost. 319, 320 j 1 East, P.C. 323. By Burrough, J, in Lloyd v. Sandilands, 8 Taunt. 253. (d) Penton v. Browne, 1 Sid. 181, 186. (c) Fost. 320; 1 East, P. C. 323. Powers of Officer in arresting. 205 party under any circumstances, yet, where it is thus stranger justifi- broken open, upon the supposition of the person sought being there, it is at the peril of proving that the party is actually in the house at the time(a). Lastly, it is to be observed, that in all cases if the officer may in officer, or his assistants, having entered a house in the a11 cases bre * k doors to regain execution of their duty, be locked in, they may justify his liberty. breaking open the doors to regain their liberty(). CHAPTER V. OF ASSISTANCE, FLIGHT, RESISTANCE, ETC. THE powers committed to the officer, in order to effect the arrest, in case of the flight or resistance of the party, call for most serious consideration, and in their (a) 2 Hale, 117. This doctrine, as far as it regards civil process, has been recognized in modern decisions, 5 Taunt. 770 ; 6 Taunt. 248 ; I Marsh, 339, 567 ; 3 Bos. & Pull. 223 ; 1 Chit. Cr. L. 57, 58. With respect to criminal cases, however, Mr. East qualifies the position in the text, by adding " unless, as it seems, where the parties act under a magis- trate's warrant," 1 East, P. C. 324. But, with great deference to the opinion of this very learned and accurate writer, it is submitted that the authorities referred to by him, (viz., 2 Hale, 103, and Fost. 321,) do not appear to sustain this qualification ; the passage thus referred to in Lord Hale's treatise, relates to the proceeding upon hue and cry, in which the same rule is held to apply, in this respect, as when the officer acts without warrant upon suspicion of felony, whether it relate to the house of a stranger or to that of the party ; that from Mr. Justice Foster relates to breaking open the outer door of the house of the party himself, under the sanction of a magistrate's warrant, granted upon suspicion of felony. The distinction above stated in the text, as to the additional caution to be observed by the officer where he breaks open the house of an innocent third person, and not that of the party accused, seems also to be more reasonable. (6) 2 Hawk. c. 14, s. 11 ; 1 East, P. C. 324; 6 Burn. 164. 206 Assistance. exercise the utmost caution and discretion are required, i*?. order that, on the one hand, the purposes of justice shall not he defeated, and, on the other, that life shall not be endangered, unless where the safety of the officer, or the heinousness of the offence, and circum- stances of resistance and violence, render it absolutely Distinction be- necessary. The officer's attention is therefore parti- tween felony and misdemea- cularly directed to the distinction which the law has Distance' and drawn ; first > between the case of arrest for felony or a dangerous wound given, and arrest for a breach of the peace or any other misdemeanor short of felony ; and, secondly, between the case of resistance or rescue, and mere flight or escape unaccompanied with violence ; for the powers delegated by the law to its officers are here, as in other instances, proportioned to the urgency of the occasion, being greater in cases of felony than in those of mere misdemeanor, and different, according to circumstances, in case? of mere flight or escape unac- companied with violence, and in cases of resistance or rescue. It will be convenient here to pursue the ar- rangement adopted in the preceding chapter, and to bring together the law upon this subject with regard to criminal cases in general ; and thus to consider, I. The authority of the constable to command, or to take other persons to his assistance. II. His authority to pursue and apprehend a party beyond the bounds of his own county. HI. The length to which he may go, in order to secure the apprehension of the party, in case of flight or resistance respectively. I. The first duty of the officer is, to take care that the arrest shall be made effectually, and with as little injury to the individual and to the public as may be ; and for this purpose, where resistance is opposed, or may be expected, he is armed with ample powers to Assistants. meet it. Thus, wherever he is authorized to arrest for Assistance. 207 felony or a dangerous wound given, or where he acts for the purpose of suppressing an affray or apprehend- ing the affrayers, he is also authorized to command the assistance of all persons within his reach, which he will do if his own exertions appear insufficient ; and the persons thus required are punishable if they refuse to render it, they being also entitled to the same pro- tection with the officer while engaged in his assistance. This power the officer has, in these instances, whether he proceeds to arrest under the warrant of a magistrate, or by virtue of his original authority without warrant (a). Where the officer acts under warrant, it is his duty, as already mentioned (b), to apply, if possible, to the sub- inspector under whose command he is, to nominate other constables to assist him in executing it. Inde- pendently of this provision, he may, whether the war- rant be for felony or misdemeanor, take persons with him to assist in its execution ; but unless such assistants be also constables of the county, who are themselves authorized to execute, or to aid in executing the war- rant, when directed to such constables generally, he should be present, or at least so near as to appear to be acting in the arrest, in order to render it legal (c). In extreme cases also, if the warrant cannot be Assistance of otherwise executed, he may engage the assistance of the * military(W) ; but a resort to the latter extraordinary force, which is alien to the regular execution of the law, can be justified only by a plain and manifest necessity, and is rendered the less necessary since the establishment of so efficient a body of constabulary (a) 1 Hale, 588 ; 2 Hale, 86 j 1 Hawk. c. 63, s. 13, (1 Curw. 490) j 2 Hawk. c. 12, s. 7 ; 1 East, P. C. 298 ; ante. (b) Ante, pp. 192, 193. (c) Blatch v. Archer, Cowp. 65. (d) Burdett v. Coleman, 14 East, 190. See ante, pp. 129, 132. 20S Pursuit beyond the County. as now exists in this country. If the necessity should arise for calling the military in aid of the civil force, as may happen in cases of great riots or rebellious assemblies, it is always most desirable that they should act under the immediate orders of a justice of the peace. Pursuit into jj j n case of f e i ony affray, or dangerous wound another county in cases of felo- given, if the party fly from the arrest when it is about ' to ^ e mac ^ e j an( ^ pursuit be made immediately, or, as it is termed, fresh pursuit, the constable is authorized to follow the party from place to place, though beyond the bounds of his own county, (and to raise the hue and cry when that proceeding was in use,) and^thus to appre- hend him in any county in which he may be found (a). But where the party has fled before arrest, and is thus apprehended in a different county, he is to be carried before a justice of the county in which he is taken, though if he has been previously arrested in the proper county, and, upon his escape be retaken upon fresh pursuit in a different county, he may be brought back to a justice of the county where he was first arrested ; for in such latter case, where the party has wrongfully escaped after arrest, he is, in contemplation of law, considered in custody by force of the first arrest. The authority thus given to the constable in this respect is also the same, whether he act under warrant or by vir- tue of his original authority, in the instances here men- In assaults and tioned(6). But in the case of a mere assault or other other misde- misdemeanor, where the party has not been arrested and flies, it seems that the officer is not in general authorized to apprehend him in a different county, even though he act under warrant(c), unless it has been (a) Dalt. c. 8, s. 5 j 2 Hale, 94, 115 ; Surnm. 92, 93. (6) 2 Hale, 94, 115; 2 Hawk. c. 19, s. 12. (c) 2 Hale, 115. Pursuit Resistance. 209 issued or indorsed by a magistrate of the county in which it is sought to be executed ; and in such case, therefore, the officer should procure a warrant, if he has not one, from the magistrate of the county in which the offence has been committed, and have it indorsed, pursuant to the provision of the Statute before stated, by a magistrate of the county into which the party has fled(a). It is to be observed, however, that the juris- Pursuit into ad- diction of constables appointed under the Constabulary ja Acts, for the purpose of freshly pursuing offenders, extends beyond the county for which they are ap- pointed; as by Stat. 2 & 3 Viet. c. 75, s. 15, before mentioned, county and sub-inspectors and constables appointed for any county or place adjacent to the county or place into which any offender escapes, are, for the purposes of fresh pursuit, invested with all the same powers, and placed in all respects in the same situation, as if they had been appointed for the county into which the offender escapes(^) ; and it has been Within juris- seen, that in all cases the jurisdiction of the constable, dlctlon of Jt P * in the execution of a warrant, is co-extensive with that of the magistrate who has granted or indorsed it(c). III. The degree of force which the officer is autho- Power of officer rized in using in cases of flight, depends upon the de- m case ' gree of the offence for which the arrest is made. "Where the offender is apprehended without a warrant When arrest is for a felony or a dangerous wound given, in the in- dangerous r stances before stated(e?), and, a fortiori, where in such wound, cases the constable is acting under a warrant, if the party fly to avoid the arrest, when about to be made, or break away after it has been effected, and happen to be wounded or killed by the officer in endeavouring to (a) 44 Geo. III. c. 92. See ante, p. 189, et seq. (b) Ante, pp. 26, 27. (c) 5 Geo. IV. c. 18, s. 6. See ante, p. 196, and p. 35. (d) See ante, pp. 101 106. 2E 210 Flight and Resistance. prevent his escape, when without such force he could not have been taken, the officer will not be respon- in case of affray sible(a). But in cases of affray, assault, or other mis- or other misde- , , ', , ' , , meaner. demeanor, where the party does not resist, but merely flies to avoid the arrest, if the officer kill him in the pursuit, the law will not protect him, even although it appear that the party would otherwise have escaped, and whether the officer act under the warrant of a ma- gistrate or not ; though under certain circumstances the offence may be reduced to manslaughter, if it appear that the death was not intended(A). So even after arrest in such cases, where the party effects his escape without violence, if the officer kill him in pursuit, he will be held guilty of murder or manslaughter ( bail is required to take the recognizance in duplicate, one of such duplicates to be handed to the constable or person so apprehending the offender, who is hereby required to deliver, or cause same to be delivered, to the Clerk of the Crown or Peace, or other proper officer of the court in which such offender is bound to appear ; and such recognizance shall be as effectual as if it had been taken before a justice of the county or place where the offence was committed; and the justice so taking bail shall transmit the other of such duplicates to the Court of Exchequer of that part of the United King- dom in which such bail shall be taken, there to be kept of record(6). If the offence be not bailable, or bail be Where prisoner not given, the prisoner is then to be remanded by the magistrate to the custody of the constable or person who shall have apprehended him, who is thereupon to convey him by the most direct way into that part of the kingdom where the offence was committed, and before a justice of the county living near the place and in the county where he shall arrive and land ; which justice is hereby required to proceed with regard to such prisoner as if he had been apprehended in the said county(e). (a) 44Geo. III. c. 92, s, 1. See ante, p. 189. C&) 45 Geo. III. c. 92, s. 1. (c) 44 Geo. III. c. 92, s. 3, 4 j amended by 45 Geo. III. c. 92, s. 1. Ante, pp. 190, 191 ; and see post, chapter on " Bail." 222 Where Arrest is in a different County, Where arrest is under warrant originally different ty. Transmit war- rant. The foregoing observations relate to the duty of the constable, as prescribed by the Statutes referred to, where the arrest takes place in the execution of a warrant, granted by a justice of the county in which the offence was committed, when such warrant has been indorsed by a justice of another county or of a different part of the kingdom. But it has been seen(a) that in many cases where an offence has been committed in one county and the offender goes into a different county, an original warrant may be granted by a justice of the county in which the offender is, under which he may be apprehended in the latter county, and brought, as if the offence had been committed in such county, according to the direction of the warrant, either before the justice who has granted it or some other justice of that county, who is authorized to proceed with respect to him as a justice of the original county might, and if he be not entitled to be bailed or dis- charged, to commit him to the gaol of the county where the arrest has taken place. But if it be not intended that the further proceedings should be taken there also he must be transmitted to the proper county for trial, either by writ of habeas corpus obtained for that pur- pose, or under the warrant of a judge authorizing his transmittal. Tn such cases, a writ of habeas corpus may be obtained either by the prosecutor or the prisoner for his removal ; but it is usual, as being more conve- nient and less expensive, to procure a transmit warrant from a judge, or to have the original warrant of com- mitment fiated by a judge, (if in Dublin, by a judge of the Queen's Bench, and if in the country, by one of the judges of assize), which is done by the judge indorsing his name thereon. The transmit warrant, or warrant thus indorsed or fiated by a judge, not being limited, as (a) Ante, p, 53, et seq. or different Part of the Kingdom. 223 that of a justice of the peace, to a single county(a), the prisoner is transmitted under its authority from the gaol of the county where he has been committed to the gaol of the next adjoining county ; whence he is forwarded, under charge of the constables of such latter county, to the gaol of the next county ; and so on from county to county, until he arrives at that in which the offence was committed and the trial is to be had ; the constables of the several counties through which the prisoner is thus transmitted, being thereby authorized and required to take charge of the prisoner in his transmittal through their respective counties, and to hand him over to the constables of the next for the like purpose. So when the arrest takes place in a different county, Transmit war- under warrant indorsed, as before stated, by a justice a^ of such latter county, or in a different part of the king- an indorsed dom, in case of the transmittal of the prisoner for com- mitment to the original county if the offence be not bailable or bail be not given, the Statute enacts that he shall be carried by the constable or person who shall have apprehended him, before a justice of the county where the offence was committed(&) ; but in this case also, in order to avoid the expense and inconvenience of a special constable for the transmission of the pri- soner, such indorsed warrant may in like manner be fiated by a judge, and the transmission of the prisoner be thus authorized, from county to county, by the con- stables of each successive county through which he is to pass, to that in which the offence was committed and the warrant originally granted. (a) It is laid down that a warrant of a judge of the Queen's Bench extends all over the kingdom ; and it is therefore tested or dated, " England" or " Ireland," and not of any particular county. 1 Hale, 578 ; 2 Hale, 105 ; 4 Black. Com. 291. And the uniform practice seems to have esta- blished a like extent of jurisdiction or authority in cases of warrants granted or indorsed by a judge of assize. (6) 44 Geo. III. c. 92, s. 1, 3, 4 ; ante, 220, 221 j and see Kits. Const. 56. 224 Conveyance of Prisoners. Conveying pri- By the provision of the Constabulary Act already adj"oiningcoun. mentioned (a) constables of any county are empowered ties * to act in an adjacent county in the conveyance of pri- soners, in the same manner and with the same powers, as if they were constables also for such adjoining county. It is also provided by St. 59 Geo. III. c. 92, s. 3, that it shall be lawful for any sheriff or person deputed by him, or any constable or other peace officer in Ire- land, or any other person or persons lawfully having in custody any offender, whom they may lawfully convey to gaol or any place of safe custody, to convey such prisoner into or through any part of the county so ad- joining, on their way to the gaol or place of safe custody in the county where the offence was committed. Expense of The expenses incurred in the conveyance of prison- P " ers, are now provided for by St. 2 & 3 Viet. c. 75, s. 30, which enacts, that the reasonable and necessary ex- penses actually incurred by any sub-inspector, head constable, constable, or sub-constable, gaoler, or other person, in conveying any prisoner to or from any county gaol or bridewell, or house of correction, or for exami- nation before any magistrate in Ireland, or to and from any assizes or sessions court or other place in Ireland, by order of any justice of the peace or other lawful authority, or from any county gaol or bridewell to a district lunatic asylum in Ireland ; and also all reason- able and necessary expenses incurred in the pursuit of any person charged with the commission of any offence in any county, county of a city, or county of a town in Ireland, shall be defrayed by the paymaster of the county of a city, or county of a town, in which such prisoner or person shall have committed, or be charged with having committed, the offence alleged against him or her, out of any funds in his hands appli- cable to the maintenance of the constabulary force; (a) Ante, pp. 26, 27. Duty of the Constable. 2*25 and shall be allowed him in his account, as if the same had been a disbursement in respect of the said force, and be subject to the like audit and examination, and the whole of the monies so from time to time paid in liquidation of the expenses incurred in any of the be- fore-mentioned cases, shall be stated in the certificate prepared by the Inspector-General, of the monies chargeable on such county, &c., in respect of the said constabulary force, and shall over and above, and in addition to the monies so chargeable on such county, &c., be presented by the grand jury thereof to be levied off the county at large, and paid over, together with such monies, to the proper bank or person appointed to receive the same (a). In contemplation of law the constable is considered Duty of con- to have the charge and custody of the prisoner, and is sone^is taLT therefore responsible for his safe keeping, even after b p fore the ma- he has been brought before the magistrate, until he is 8 either discharged or admitted to bail ; or, if he be com- mitted, until he is actually received by the gaolor under warrant of the magistrate(^). The constable is authorized to keep the warrant for Warrant to be his justification, least the legality of the arrest should ke P l b 7, the be afterwards questioned(c) ; and this seems to be im- plied by the provisions contained in Statutes protecting (a) This provision seems not to include the case of a prisoner arrested in Ireland and conveyed to Great Britain, or vice versd. St. 44 Geo. III. c. 92, supra, enacts, s. 5, that the expense of removing prisoners thereunder to any place in England, Scotland, or Ireland, respectively, shall be repaid to the person defraying the same by the treasurer of the county in England or Ireland, or the sheriff or Stewart depute or substitute in Scotland, in which the crime was committed, the amount being ascertained by an account verified on oath before two Js. P. of such county. See also 6&7 Will. IV. c. 116, s. 108. (6) 2 Hale, 120, 95. (c) 1 East, P. C. 319, R. v. Wyatt, 2 Ld. Raym. 1196. 2G 226 Escape Retaking . constables in the execution of warrants(a). But though the constable should preserve the warrant himself, it is his duty to make a return to the magistrate of what he has done in its execution (b). And if it be a warrant of commitment which is handed over together with the prisoner to the gaoler, it is recommended that the con- stable should take a copy thereof and preserve it, to- gether with the receipt of the gaoler to whose custody the prisoner is committed. CHAPTER VIII. Negligent escape. OF ESCAPE, RESCUE, RETAKING. THE power of the officer to retake the party, and his responsibility in case of escape, depend on the charac- ter of the escape, whether it be negligent or voluntary ; and the degree of the offence with which the party is charged, whether felony or misdemeanor. If the pri- soner effect his escape without the concurrence or con- nivance of the officer, it is termed a negligent escape (c), and the party may be followed in fresh pursuit from place to place, and retaken upon such pursuit wherever he is found, whether in the same or in a different county. This power the officer has also in this instance, whether the original arrest were made with or without warrant, and whatever be the degree of the offence for which the party was originally apprehended (d) ; the distinctions which hold in case of flight before arrest (e), (a) 43 Geo. III. c. 143, s. 6; and 6 Will. IV. c. 13, s. 50 ; ante, p. 34. (&) By Holt, C. J. and Powell, J., in R. v. Wyatt, 2 Ld. Raym. 1196; 6 Burn. 165; 1 Dick. J., 160, Arrest, IV. (c) 2 Burn. 6; 1 Russ. 371. (d) 2 Hawk. c. 19, s. 12 ; 1 Russ. 372 ; 2 Hale, 115, 94. (e) Ante, p. 208, et seq. Escape Retaking. 227 not being applicable to negligent escapes. It has been said also, that in case of an escape of this character the party may be retaken by the officer wherever he is found, though it be not upon fresh pursuit, since the liberty gained by the prisoner is wholly owing to his own wrong, and there seems to be no reason why he should derive any manner of advantage from it(a). In Warrant unne- such case the officer is authorized to make pursuit with- cessar y- out obtaining a fresh warrant for this purpose ; and it would seem, that in criminal cases, a warrant grounded upon the escape of the party (which is termed an escape warrant) is in general unnecessary, as the same circum- stances which empower the magistrate to grant such warrant will, in general, also authorize the constable making fresh pursuit to retake the party without it, or to obtain a warrant to arrest the party for the original offence. Accordingly, there does not appear to be any precedent in the books for such a warrant, where the party has effected his escape without violence from the custody of the officer(). (a) 2 Hawk. c. 19, s. 12; Butt v. Jones, Gow's N. P. C. 99. (b) In Curtis's case, Foster, 135, referred to, 1 Chit. Cr. L. 62, it is to be observed, that the warrant, though called an escape warrant, was not for a mere escape but for a breach of the peace, the original arrest having been under civil process, from which the party had, with the assistance of another, by force and violence rescued himself. But see the form of a warrant granted by a justice of the peace to apprehend a person who had escaped from gaol, 2 Burn. 12 ; 1 Dick. J. 587, Escape, IV. ; 4 Chit. Cr. L. 78; and post, in Appendix. Where the original arrest has been under civil process, it appears that an escape warrant may be granted by the Chief Justice, if it be necessary to authorize the arrest of the party in a different county, or upon other sufficient grounds. See Mathews v. Kingsford, 2 Barnard, 78 ; Russen v. Lucas, 1 Ry. & Moo. N. P. C. 27. So where the escape has been effected from the Marshalsea of the Four Courts, an escape warrant may be granted thereupon by any judge of the court in which the action was entered, or the judgment and execution obtained, or where the party was committed and charged in custody; under 228 Retaking the Prisoner. Voluntary escape ; retaking. Retaking after permitting- the party to go at large. But where the officer has permitted the prisoner to escape, with an intent to save him from his trial or punishment, which is called a voluntary escape(a), it seems to be the better opinion that he can no more justify the retaking him, than if had never had him in his custody before ; because it is said that by his own act he has admitted that he has nothing more to do with him(&). A difference of opinion, however, appears to exist respecting the character of the escape, and the conse- quent power of the officer to retake the party, where the officer has given him permission to go at large, upon his promise to come again, as for the purpose of finding which warrant the party escaping may be retaken in any place within the kingdom, and committed to the gaol of the county where he shall be so retaken, 8 Ann. c. 7, (a) 2 Hawk. c. 19, s. 10 ; 1 Russ. 370. (6) 2 Hawk. c. 19, s. 12 y and see Id. c. 13, s. 9 j 2 Burn. 6, Es- cape, V. ; 1 Russ. 372. In case of a voluntary escape after arrest upon civil process, the sheriff cannot retake the party, and he is subject to an action for false imprisonment if he do so, 1 Saund. 34, a, in note. But in a case, where a prisoner, who had been convicted of a misdemeanor, and committed in execution until payment of a fine which he was sentenced to pay, had effected his escape under a false representation made to the keeper of the prison, before payment of the fine, and was after an interval of several days retaken, it was held that such retaking was justifiable. And the learned judge, Dallas, C. J., is reported to have stated it as his opinion, that in a criminal case, even though the escape be voluntarily and knowingly suffered by the officer, yet it is his bounden duty to retake the party when- ever an opportunity offers, as in such case the public are interested in the apprehension of the party. With respect to this dictum, however, it will be observed, that in the case referred to, although the learned judge is reported to have expressed himself to the effect here stated, an express decision upon the point was not required, as it appears that the escape was not voluntary, since (as was stated by the learned judge) the plaintiff's replication, which alleged that the defendant had voluntarily suffered and permitted the plaintiff to go at large, and upon which issue was joined, was completely falsified by the evidence. Butt v. Jones, Gow's N. P. C. 99, 102. Retaking the Prisoner. 229 sureties, and without any intention to give him further liberty. In such case, it is held by some, that this per- Whether such i permission be mission upon the part of the officer amounts to what a voluntary has been above described as a voluntary escape, and escape. that, therefore, he cannot afterwards arrest the party upon the same charge, or by force of the same warrant ; although if the party return and put himself again under the custody of the officer, it seems that he may lawfully detain him and bring him before the justice, in pursu- ance of the warrant(a). According to others, such " permission amounts to a negligent escape only on the part of the officer, subject, however, to the considera- tion of the circumstances under which it has been granted, as the nature of the offence with which the prisoner is charged, the notoriety of his guilt, the probability of his returning, the intention and motives of the officer, &c. ; and that, therefore, although the officer is punishable for giving such liberty to the pri- soner, and is answerable for his appearance(^), yet, as the public are interested in the offender's being brought to justice, he may in such case be again arrested under the same process(c). But, upon the whole, it seems (a) Dalt. c. 169, s. 9 ; 2 Hawk. c. 13, s. 9 ; 2 Burn. 6. (6) 2 Hale, 95, 120 ; 2 Hawk. c. 19, s. 31. (c) Dalt. c. 159, s. 5; 2 Hawk. c. 19, s. 10; Dictum per Dallas, C. J., ante, p. 228, note (6). See also 1 Chit. Cr. L. 59, and the case of Dickinson v. Browne, Peake's N. P. C. 234. In this latter case the party, who had been arrested in the first instance under warrant, granted for the purpose of compelling him to indemnify the parish against the charge of a bastard child, agreed to enter into a bond with two sureties for this purpose ; but the bond was executed by him and one surety only, and he was after- wards again apprehended by direction of the parish officers, without any fresh warrant, in order to compel him to procure another surety. Lord Kenyon held, that the warrant not having been fully executed in the first instance, the second arrest was justifiable, inasmuch as the warrant con- tinues in force until fully executed and obeyed. Ante, p. 192. In the report of the above case, however, it is not stated whether the party ob- 230 Powers of the Officer in Cases of Caution in giving such permission. Pursuit in ano- ther county. Breaking open outer doors. very questionable how far the officer will be justified in retaking the party after permission given to him to go at large for any purpose, or in any case whatever (a). There seems, also, to be no sufficient reason for granting this permission, unless where the arrest has been made upon the instant, and for an offence which is clearly bailable, as a sudden affray or assault committed in the heat of blood, and where the party cannot immediately be brought before a magistrate. Such permission should also be confined to cases where the arrest is made without warrant ; for where the officer acts under the warrant of a magistrate, it seems proper that he should not exercise any discretion of his own in this respect, as it may be presumed, that if it were a case in which the party might be permitted to go at large, the magistrate would, in the first instance, have issued a summons for his appearance, and not a warrant for his apprehension. A prisoner thus escaping, and retaken in fresh pur- suit, where the officer is authorized to retake him, may be brought before a justice of the county where he was first arrested ; for in that case, in supposition of law, he is always in custody by force of the first arrest(/;). If, in such case, the party take refuge in a house, whe- ther his own or that of a stranger, the officer following in fresh pursuit may break open the outer door of such house, if refused admission, after demand and notifica- tion of his business, in order to retake him ; nor does the nature of the offence for which he was originally tained permission to go at large, or procured his liberty through his own fraud. (a) It is said by Sergeant Hawkins, that " the law seems not to be settled upon this point." 2 Hawk. c. 13, s. 9. See also R. v. Saltier, 2 Chit. Rep. 109. (6) 2 Hale, 94, 115 ; 2 Hawk. c. 16, s. 8 j otherwise in case of flight before arrest, ante, p. 208. Escape, Rescue, or Prisonbrcach. 231 in custody, create any distinction in this respect (a). But where the house of a stranger is thus broken open, it appears to be, as before stated, at the peril of proving that the party is actually therein (b). But with respect to the authority of the officer in Further power proceeding to further extremities, even when he is f " r e m( authorized to retake the party, the law has drawn a plain line of distinction between the case of mere escape effected without violence, and that accompanied with force. In case of mere escape without violence, the powers of the officer are regulated, as in pursuit upon flight before arrest, by the degree of the offence charged (c) ', and, where the original arrest has been ^^ arrest is for felony or a dangerous wound given, if the party happen to be wounded or killed by the officer in an attempt to retake him, where the offender would other- wise have escaped, the officer will not be held respon- sible; but, in this case, it must clearly appear, that the party could not otherwise be taken, as this seventy is justifiable only in the last resort, and to prevent the purposes of justice from being defeated; if therefore the party might have been taken without proceeding to this extremity, it will be at least manslaughter in the officer (d). It may be added, that few cases of mere escape without violence can occur, in which the cer- tainty of the escape will warrant so extreme a proceed- ing; and if the original arrest be for a misdemeanor When for mis- or offence below the degree of felony, the officer will demeanor - not be justified in proceeding to this extremity in case of mere escape without violence, even though the party (a) Fost. 320; 2 Hawk. c. 14, s. 9j 1 East, P. C. 324; 1 Russ. 522 ; ante, pp. 195, 189, et seq. (6) Ante, 204, 205. (c) Ante, p. 209, et seq. (d) 1 Hale, 489; 2 Hale, 91, 118, 119; 1 East, P. C. 298, 300; ante, p. 211. 232 Responsibility of Officer. or prison breach. Further powers cannot be otherwise taken (a). But in case of rescue, of officer in . /> , . i . , case of rescue or * escape accompanied with force, which is techni- cally termed prison breaking (&), the officer is authorized to use the same means to repel the force, and prevent the rescue or escape, as in the case of resistance before stated(c). And where a third person espouses the cause of a prisoner in custody of the officer, and en- courages him to resist, the officer will be justified in apprehending and confining such third person, in order to prevent the rescue (c?). The escape of the prisoner is in all cases an offence in the officer, even though effected without his concur- rence or connivance, for the law presumes some degree of negligence upon his part ; and he is, therefore, even in the case of a negligent escape, punishable by fine, where the party is not freshly pursued and taken again before he has been lost sight of (e). But a voluntary es- cape subjects the officer to a much more serious penalty ; and, in strictness, is held to amount to the same species of offence in him, and to be punishable in the same degree, as that for which the prisoner was in custody, whether treason, felony, or trespass (/). It may be Escapes, how punishable. (a) 2 Hale, 117; Fost. 271; 1 East, P. C. 302; and authorities cited, ante, p. 211. (6) 1 Russ. 367, 378, 383, whether the prisoner be actually in gaol, or only in the custody of the constable. (c) See ante, pp. 210, 21 1. (d) White v. Edmunds, Peake's N. P. C. 89 ; 1 Chit. Cr. L. 61. () Dalt. c. 159, s. 6; 2 Hawk. c. 19, s. 31, 33; 2 Burn. 57; I Russ. 371, et seq. (/) 1 Hale, 590, et seq.; 2 Hawk. c. 19, s. 22, 26; 2 Burn. 9. There appears to be a difference of opinion on this point, when the offence is treason. See 1 Hale, 237, and 2 Hawk, ubi sup. It seems also, that the officer cannot be arraigned for a felony until the original delinquent has actually received judgment, or been attainted ; or if his offence were not a felony at the time of the escape, as in the case of a wound given, and the party not dying till after the escape. Dalt. 159. The officer may, how- When an actual Arrest is not made. 233 added, that aiding prisoners to escape, rescue, prison breaking, or assaulting officers of justice to prevent the arrest or detention of prisoners, are respectively in- dictable offences, either misdemeanors or felonies, both at common law and by the provisions of Statute(a), and punishable accordingly. CHAPTER IX. OF CASES WHEN AN ACTUAL ARREST IS NOT MADE. BESIDES the cases where the party is at large and liable where an ar to arrest, it is necessary to notice the mode of proceed- ing, where an actual arrest either cannot or ought not to be made ; as I. where the party is in previous cus- tody; II. where a supersedeas has been obtained for the purpose of preventing the arrest; and III. where the process of arrest is defective on the face of it. I. Where the party accused is already in custody, Where the either under civil process or upon a previous criminal charge, although he may be charged or detained in such custody by the warrant of a justice of the peace (b), he cannot be removed thence, unless a writ of habeas corpus be obtained for this purpose (c). The magis- trate may, in such a case, adopt whichever of the follow- ing modes of proceeding, the circumstances of the case, ever, in every such case, be punished for the escape as a misdemeanor. 1 Hale, 599 ; 1 Russ. 375. (a) See Hayes' Cr. L. 335, et seq. j and t&. Suppl. 23 ; and post, classi- fication of offences in ch. on Bail. (6) See form of " Warrant of Detainer," post, in Appendix; 4 Chit. Cr. L. 67. (c) R. v. Woodham, 2 Str. 828 ; 1 Chit. Cr. L. 11, 63 ; 1 Burn. 265. 2 H 234 Proceedings when the Accused is and the situation of the party, shall render most prac- ticable or convenient. Proceeding Where the party accused is in custody under civil is i^custod" y P rocess if the prison in which he is confined be so situ- under civil pro- a ted that the magistrate can conveniently go thither, it is the practice to take the information of the accuser Taking exami- an ^ his witnesses, and the examination of the prisoner nations in pri- there. And if upon such examination the charge ap- son. pear to be substantiated, and such that the party accused should be put upon his trial, the magistrate will there- upon hold him to bail, or grant a warrant for his com- mitment, according to the nature of the case. If a warrant of commitment be granted, it is lodged with the keeper of the prison in whose custody the party is, and upon application made to the Court of Queen's Bench, or to a judge thereof in vacation, upon the production of the warrant, a habeas corpus will be granted to bring the party before the Court or judge, as the case may be, by whom he may be committed to custody upon the criminal charge. In this case, the civil process is at the same time handed over to the gaoler to whose custody the prisoner is transferred, and if acquitted upon his trial for the criminal charge, the court will remand him to his former custody (a). If the prisoner be in custody, (tt)The effect of a commitment upon a criminal charge, as to the pro- ceedings in an action depending in court, is different in the Common Pleas and Queen's Bench. The Court of C. P. has no jurisdiction to bring a defendant up out of criminal custody, because it has none to remand him to it ; so that when a debtor is in custody on a criminal charge, he cannot in the Court of C. P. be charged with a civil action Freeman v. Weston, 1 Bingh. 221 ; 2 New Rep. 246 ; but it is otherwise in the Queen's Bench, Id. ibid.; \ Chit. Cr. L. 109, 63. Where a party is in custody under a criminal charge, or under an attachment, and is sought to be detained on civil process, the proper course for the party seeking to detain him is, to make a special application to the court out of which the civil process issues, for liberty to lodge a detainer against the party in custody, 1 All. & Nap. 126, n. in Custody under Civil Process. 235 under the civil process, in the marshalsea of the Four Courts, the court will then remand him to the same custody upon the civil detainers, and will further order that he be committed to said marshalsea upon the cri- minal charge, to be there detained on said charge, until thence discharged by due course of law(a). Where the place of confinement of the party in cus- Bringing the tody under the civil process is in a different county, or j CC p 3e {J otherwise so remote, that the magistrate cannot con- corpus. veniently go thither to take his examination upon the criminal charge, it is the practice to take the informa- tion of the accuser and his witnesses in the first instance ; and if the charge be sufficient, the magistrate thereupon grants a warrant of arrest in the usual form, upon the production of which the court, or a judge in vacation, will, upon proper application, grant a habeas corpus to bring the party before the magistrate, to be examined upon the criminal charge ; and the magistrate then pro- ceeds to investigate it, as in ordinary cases. Thus, where a warrant had been issued by a magistrate of a remote county for forgery, a habeas corpus was granted by one of the judges of the King's Bench in vacation, to bring (a) The following is a copy of the order of the court in the case of R. Radford Rowe, who was brought up in the custody of the marshal, 24th November, 1828, under a writ of habeas corpus. In this case a warrant of commitment had been issued by one of the magistrates of the police distiict of Dublin metropolis to the marshal against the prisoner, on the criminal charge, the prisoner having been previously in custody of the marshal under civil process. Ordej 1 of the court. " The prisoner being brought up by the marshal of the marshalsea of the Four Courts, Dublin, pursuant to the habeas corpus, and the order of the 21st November instant, it is therefore ordered by the court, that the prisoner be, and he is hereby remanded on the civil detainer ; and it is further ordered by the court, upon inspecting the several informations laid before the court, that the defendant be, and he is hereby committed to said marshalsea, for a con- spiracy and subornation of perjury, to be by him detained in said gaol on said charge until thence discharged by due course of law. W. BOURNE." 236 Proceedings when the Accused is the prisoner, who was in custody in the debtor's prison in the metropolis, to be examined before a magistrate of the county in which the offence was alleged to have been committed (a). And in another case, where the prisoner was confined under civil process in one of the prisons of the metropolis, and the charge was also pre- ferred before a magistrate of the metropolis, a habeas corpus was granted to take the party from time to time before the magistrate, for the purpose of proceeding with the charge(i). Warrant of ar- Where the magistrate has not an opportunity of in- rest lodged with yestigating the charge in the presence of the prisoner, as where the place of his confinement is so situated that the magistrate cannot conveniently go thither for that purpose and the prisoner is not brought before him by habeas corpus, ,he may, however, grant a warrant of arrest, grounded upon the information of the accuser and his witnesses,anddirected to the keeper of the prison (e) ; and it may be proper to direct it also to the constables and other peace officers of the county. This warrant is then lodged with the keeper of the prison, and, if the prison be in a different county, it should be previously indorsed or backed by a justice of such latter county(ef) ; and although it cannot operate r a detainer, or authorize the keeper of the prison, in which the party is in cus- tody under civil process, to detain him in his own cus- tody after the termination of the civil imprisonment, yet he may then be taken before a magistrate to be examined (a) See R. v. Rouvillet, in which the habeas corpus was granted in Easter vacation, 46 Geo. III. by Mr. Justice Le Blanc, 1 Williams, J. 179, Arrest, VI. 1 Chit. Cr. L. 62, a, and see Anon. 2 Barnard, 114. (6) Err parte Griffiths, 5 B. & A. 730. (c) The warrant may be directed to any indifferent person, though a constable only is compellable to execute it ; ante, pp. 179, 180. i,(rf) See 44 Geo. III. c. 92 ; ante, p. 189, et seq. and 197. in Custody under a Criminal Charge. 237 upon the criminal charge, under this warrant, which, as before stated, remains in force until fully executed and obeyed(a). For this purpose, the keeper of the prison, in whose custody the party is, upon the termi- nation of the civil imprisonment, should send for a con- stable to take the party before a justice of the county in which the warrant of arrest was granted or indorsed, (as the case may be,) by whom the accuser, witnesses, and prisoner will be then examined, and the subsequent proceedings had, as in ordinary cases(7>). This latter course of proceeding, however, appears objectionable when either of the former modes can be adopted, as serious inconvenience may arise, either to the accused or the prosecutor, from thus postponing the investiga- tion of the criminal charge. When the party is in custody upon a previous cri- Detainer of a minal charge, it is usual for the magistrate, before whom f^^To the subsequent charge is preferred, to take the infor- a former crimi mation and depositions of the accuser and witnesses in the first instance, and, if the charge be sufficient, to grant thereupon a warrant of arrest or detainer (c), which is directed and sent to the gaoler in whose cus- tody the prisoner is ; and if in a different county, it should also be previously indorsed by a justice of the county in which the party is in confinement ( granted, unless the property taken was strictly the subject of larceny at common law, nor if the offence of taking such property came under the description of embezzlement, unless under the special provisions of Statutes, of which several had been passed from time to time, giving power to grant such warrants in parti- cular cases. These are now for the most part repealed, and the inconvenience and many technical niceties con- sequent on the former state of the law, remedied by the Larceny Act, 9 Geo. IV. c. 55, which enacts, sect. 56, " That if any credible witness shall prove upon oath, before a justice of the peace, that there is reasonable cause to suspect that any property whatsoever, on, or with respect to which any such offence as is therein specified, (i. e. any offence punishable, either upon in- dictment, or upon summary conviction by virtue of this Act,) shall have been committed, is in any dwelling- house, out-house, garden, yard, croft, or other place or places, the justice may grant a warrant to search such dwelling-house, out-house, garden, yard, croft, or other place or places, for such property, as in the case of stolen goods." This enactment, which is more compre- hensive than any former statutable provision upon this () 2 Hale, 113, et Id. cap. 18, passim. 244 When and How Search In what cases granted. Division of ch. On what grounds to be granted. Formerly oath required to be positive. subject, authorizes the granting of a search warrant, upon information on oath, and reasonable cause of sus- picion, in almost every case in which the offence of ille- gally taking any property may have been committed, whether by robbery, larceny, or embezzlement, and whether such property had been, according to the tech- nical distinctions of the common law, the subject of larceny or not, provided the taking thereof has been constituted an offence punishable by the Act, and has thus greatly extended the remedy and simplified the law upon this subject(). This Statute enacts, that the warrant to search for the property therein specified, is to be granted, " as in the case of stolen goods." It will be proper, therefore, to consider, I. the form of proceeding in granting search warrants in such case; 1. as to the grounds of the deposition before granting it ; 2. The form and requi- sites of the warrant ; 3. The manner of its execution by the officer; 4. The duty of the magistrate when the party and the goods are brought before him; and, II. to notice the special provisions of the Statutes which authorize the granting of search warrants in other cases. 1. The search warrant should not be granted with- out information upon oath made before the justice, which information should state that the party complain- ing has probable cause to suspect that his property has been stolen, or is concealed in the particular place therein specified ; and for which suspicion he should show his reasons. It seems formerly to have been held necessary that the party applying for the warrant should swear positively that the goods lost had been stolen, or (a) The following Statutes, authorizing the granting of search warrants in particular cases, have been repealed by Statute 9 Geo. IV. c. 53, viz., 1 Geo. II. c. 24, s. 2 ; 7 Geo. III. c. 23, s. 3 ; 15 & 16 Geo. III. c. 26, s. 6; 19 & 20 Geo. III. c. 37, s. 5 ; 23 & 24 Geo. III. c. 45, s. 3; 27 Geo. III. c. 52, s. 3 ; 28 Geo. IIL c. 37, s. 1. Warrants may be granted. 245 that a felony had been actually committed with respect to them(a) ; and it is usual and, in general, advisable to require such an averment, as it is obvious that the war- rant should not be granted upon every slight ground of suspicion(&). But it has been decided that a positive averment to this effect is not indispensable, and that if ^' ^'granted the party make oath that he has reason to suspect that on oath of sus- his property has been stolen, or is concealed in a certain place, the magistrate may lawfully issue his warrant, if reasonable and probable ground for such suspicion be laid before him, to search the place, and to bring the occupier or owner before him. For it has been observed that there may be many cases in which a cautious man might not choose to swear positively that the property lost has been stolen, and yet may have good grounds to suspect it, and also to suspect a particular person of having committed the felony, sufficiently strong to war- rant the magistrate in granting the search warrant ; as in the instance of a horse which has been lost by his owner and is found in the possession of another person, the owner, in such case, might not be willing to take upon himself to swear positively that the horse had been stolen ; for it may have strayed ; but when he finds his horse is concealed in the stable of another person, he may very naturally conclude that it must have been stolen, from the circumstance of the concealment ; and therefore he may conscientiously swear that he suspects it to have been stolen(c). But where the search war- rant is granted, upon such information, it is the duty of the magistrate, as in all other casess which rest upon mere suspicion, well to consider the circumstances sworn to, whether they afford a reasonable ground to justify (a) 2 Hale, 150, 1 13. (6) See 4 Inst. 176. (c) Elsee v. Smith, 1 Dow. & Ry.97 j S.C. 1 Dow. & Ry. M. C. 28, 34, et seq. 246 When and How Search Granting a war- rant on insuf- ficient grounds ; or proving it by false representa- tions. Warrant to be granted for stolen goods, or where an of- fence under 9 Geo. IV. c. 55, has been committed ; the granting of the warrant ; and if he grants it ground- lessly and maliciously, without such probable cause as might induce a candid and impartial man to suspect the party to be guilty, he will be liable to an action at the suit of the individual aggrieved(a). If the warrant be procured by a false representation on the part of the person seeking it, such person will be answerable to the party aggrieved in an action on the case() ; and it will be useful for the magistrate to impress upon the party applying his liability to punishment in this way, if he is guilty of careless or malicious mistatement, so as to mislead(c). The magistrate is not authorized at common law to grant a search warrant, unless in the case of goods sus- pected to be stolen ; nor is he authorized, by the Sta- tute above stated, to grant such a warrant, unless in the case of property, on, or with respect to which some of the offences therein specified(c?) has been committed, i. e. either larceny or an offence of that character, or connected therewith ; a warrant, therefore, cannot be granted, under the general power given thereby, to search for the private property of an individual, or for any property which had not been so illegally obtained. And, accordingly, where a warrant was granted to search for libels, and the private papers of a party suspected of having published a libel, such warrant was held clearly illegal(e); for, as observed by Lord Camden, the difference between seizing stolen goods (rt) Ante, p. 246; 1 Esp. Rep. 144, 146, 147. (6) 1 Dow. & Ry. M. C. 34, 35, 37 ; 2 Hale, 151 ; 3 Esp. Rep. 135 ; 3 Bos. & Pull. 225. (c) Stone's, P. S. 60. ( c< 54 ' present a written notification, signed by him or her, specifying what to spe- therein the place, parish, barony, or townland in which he <% and kow or she shall be then resident, and if in a county of a town or city, the parish, townland, or street in which he, or she, keeps arms, and the place or places where the same are usually kept, and the number and description of such arms, accompanied by an affidavit sworn before some justice of the peace for such county, town, or city, by the person signing such notification, that such notification is true, and that he or she believes that he or she is by law entitled to keep arms, which notification shall be read aloud in open court ; and if the justices then Justices may present, or the majority of them, shall consider the person fo^J-^uch delivering such notification to be by law entitled to keep arms, arms, and to be a fit and proper person to keep arms, they shall thereupon sign and deliver to such person a license autho- rizing such person to keep arms, and specifying therein, if they shall think fit, the number and description of arms which such license is to authorize him or her to keep; and shall Notifications, deliver such notification, specifying at the foot or back thereof &c ' * be n f e1 . 1 " J vered to Clerks the number and description of arms, if the same shall be spe- of the Peace, cified in the license, to the acting Clerk of the Peace, who who shajl re " in T . T i . i , . gister them, shall register the same in books, (or in a book, if in a county of a town or city,) one whereof to be kept for every barony or half-barony in the county, in alphabetical order, with the names and places of abode of every person making such noti- fication, according to their respective baronies, or half-baro- nies, where the place of abode shall be specified to be in a barony or half-barony, for which no fee or reward whatever shall be received by such Clerk of the Peace; which book shall be kept by such Clerk of the Peace at his office, in the county, town, or city, and shall, at all seasonable times, be open to the inspection of any justice of the peace of such county, &c. ; and from which every such justice shall be at liberty from time to time to make such extracts as he shall deem fit ; provided always, that if the majority of the justices 2 L 258 Search under Statutes. ARMS. so assembled at the sessions of the peace, shall refuse to grant 47 Geo. III. such license to any person who is by law entitled to keep arms, the person to whom such license is refused may appeal from the decision of such justices, if in the county of any city Appeal. or town, to the next quarter sessions of any county at large, adjoining to the county of such city or town ; and if in a county at large, then to the following session of the same county. Justices at any II. It shall be lawful for the justices of the peace, upon ^rnnLeTses an a PP^ ca ^ on * n writing, signed by any person, for a license for keeping to keep arms, specifying in like manner his or her residence, arms to persons accompanied by an affidavit sworn by the person signing the who make ap- _ J . J plication and application, that he or she believes he or she by law is entitled affidavit as be- to keep arms, to sign and deliver at any sessions of the peace to be held for the county, town, or city, in which such person resides, a license authorizing such person to keep arms, spe- cifying therein, if they shall think fit, the number and descrip- tion of arms which such license is to authorize him or her to keep; which application, .with the number and description of arms indorsed thereon, if the same shall be specified in the license, shall be delivered by them to the acting Clerk of the Peace, who is required to register the same in like manner as a notification, for which no fee or reward whatsoever shall be received by the Clerk of the Peace. Parties licensed ^- Whenever any person who shall have obtained any shall certify to license to keep arms under this Act, shall, during the conti- PeaceYheir * nuance f sucn license, change his or her place of abode, such change of resi- person shall deliver a certificate of such change, specifying the house to which such person shall have removed, to the Clerk of the Peace for the county, town, or city, in which such person was resident at the time of granting such license ; and such certificate shall be registered in like manner as the notifications and applications required by this Act. Persons who jy. Any person who shall, after the said sessions of the shall have arms not registered peace lor the county, town, or city, where he or she shall re- after time li- s ide, which shall be held next after the passing of this Act, have in his or her custody any arms that shall not have been registered as aforesaid, shall, upon being convicted thereof on Registration of Arms. 259 the testimony of two credible witnesses on oath before any ARMS. magistrate, for the first offence forfeit the sum of 10, to be 47 Geo. III. levied by sale of goods and chattels of such person by the St ' Ct warrant of such magistrate, or, in default of payment, be imprisoned by such magistrate for two months ; and for nesses, penal- the second and every other offence shall forfeit 29, to be ^ ' levied in like manner; or, in default of payment, be im- prisoned for four months ; and all such arms shall be for- and forfeiture of feited to the use of his Majesty, his heirs, and successors. For l e arms * levying penalties, see post, sect. 14, p. 264. By 10 Geo. IV. 10 Geo. IV. c. 47, s. 2, the Lord Lieutenant or other chief governor may $ 4 ?' . J Lord Lieute- remit or mitigate any penalty, forfeiture, or punishment in- nant may remit curred against 47 Geo. III. s. 2, c. 54, or 50 Geo. III. c. 109, or mitigate such , , . T penalties, or any of them, upon such terms and subject to such conditions as they shall think fit. Stat. 1 & 2 Viet. c. 71, s. 2, recites, that \ & 2 Viet. by these Acts it is provided, that all persons having in their pos- c< 71> session any arms not duly registered according to law should be liable to the forfeiture of the same, and to certain fines, &c. ; and that it is expedient that a certain limited time should be Persons pro- fixed within which persons possessing themselves of arms f^fi^Tsed should be at liberty to register the same ; and enacts, that no dealer or per- person or persons shall be liable to the forfeiture of any arms son ? uly r f. gi , s r r . tered not liable found in his or her possession, purchased from any licensed to penalties or dealer or maker of arms, or obtained from a person duly licensed forfeiture UN * after the next to keep arms, or to the fines and imprisonments by the aforesaid sessions after Acts imposed for default of having the same duly registered, the y procure according to the provisions of the aforesaid Acts, until after the holding of the first sessions of the peace, for the county in which the person in whose custody the same may have been found shall reside, next after the day on which the same shall have come into his or her possession ; provided always, that if a no tice be the said owner or purchaser shall, within forty-eight hours given to a J.P. after purchasing or obtaining the same, have lodged with the justice of the peace dwelling nearest to his residence a decla- ration, signed by himself and by the person from whom he shall have purchased or obtained the same, specifying the de- scription and number of the said arms, and the date on which the same came into his possession, 260 Search under Statutes. ARMS. 47 Geo. III. s. 2, c. 54. Inventory of arms kept, to be delivered when required by J. P. 50 Geo. III. c. 109. But not to be required more than once by any J. P. Except by an order of Quar- ter Sessions. 47 Geo. III. s. 2, c. 54. Justices mny withdraw li- cense, and cause name to be erased, and give notice thereof to the party. V. Any person who shall make such notification as afore- said, of his having arms, and shall obtain such license as aforesaid, shall, when required by any justice of the peace within his jurisdiction, (which requisition shall be made in writing, under the hand of such J. P.,) deliver to such justice an exact list or inventory of all the arms in his or her pos- session, verified by his or her affidavit, to be made before any J. P., and so from time to time as often as he or she shall be required. But by Stat. 50 Geo. III. c. 109, s. 4, wherever any person making such notification of his having arms, and obtain- ing a license, shall have been once required under the said Act, (47 Geo. III., s. 2, c. 54,) by any J. P., within whose juris- diction such person shall reside, to deliver to such J. P. an inventory of all the arms in his or her possession, it shall not be lawful for the said justice, or any other justice within whose jurisdiction such person shall dwell, to make any fur- ther or other requisition from time to time, nor shall such person be compellable to deliver such lists from time to time as he shall be required by any justice under the said Act ; pro- vided always that it shall be lawful for the said justices of the peace, or the majority of them, at any sessions of the peace, from time to time, to require such list from any person within their jurisdiction having made such notification, and obtained such license as aforesaid, and such person shall deli- ver such list from time to time accordingly, when, and as often as such person shall be so required by such justices, at any such Session. VI. It shall and may be lawful for the justices of the peace at any sessions to withdraw any license theretofore given, and to cause the name of such person as they, in their discretion, shall, at such sessions, deem an improper person to be en- trusted with arms, to be erased out of the registry of arms ; and cause a notice to be served on such person, or to be posted on his dwelling-house, specified in the said registry to be the residence of such person, or, in case of his or her having previously certified to the Clerk of the Peace of the county that he or she had changed his or her dwelling-house, then on the house to which he shall in such certificate have stated Blacksmiths Forges. 261 that he or she had removed, signed by any one of the justices ARMS. of such session, and by the Clerk of the Peace, under the 47 Geo - TII anthority of such justices, or the majority of them, in such session assembled, that such license is withdrawn. VII. If Persons served any person on whom such notice shall be served, shall not tice> who do " within forty-eight hours after service of such notice upon him not deliver or her, or at his or her dwelling-house as aforesaid, deliver to ,, the next resident magistrate, or some neighbouring magis- magistrate, trate at his place of abode, all such arms as were so regis- tered, or account for the same to the satisfaction of such punishment as magistrate, such person shall be deemed to have in his or her nerein - custody arms that have not been registered, and shall be sub- ject and liable to the forfeiture and punishment hereinbefore enacted against such offence ; except where it shall appear to the magistrates, before whom such offence is prosecuted, that the delay arose from accidental circumstances, and not from wilful neglect. IX. No person or persons whatsoever, after the passing Blacksmiths to of this Act, shall exercise the trade of a blacksmith, who shall enter their , , . names and not have previously registered his name, and the place where forges, and ob- his forge is situated, at some sessions of the peace for the tain licenses at district in which such forge is used, and shall also have ob- tained a license from the justices at such sessions, authorizing Registry and him to use and follow the trade of a blacksmith ; which said licens etobe made, kept, and registry and license is to be made, kept, and granted, in man- granted, as for ner and form, as the registry of arms, and license for using arms * arms hereinbefore mentioned. X. It shall and may be lawful for the justices of the peace, Justices at ses- or the majority of them, at any sessions of the peace, to with- sionsmay with- draw such license from any blacksmith, if it shall be satisfac- f/^ ^\^T torily proved on oath to them, that such blacksmith hath smiths, if they made, or knowingly suffered to be made in his forge, any kefh Rafter pike or pike-head after he shall have so obtained a license, obtaining li- and registered his forge as aforesaid ; and if any blacksmith censes * shall use any forge without such registry thereof, and license as aforesaid, he shall for such offence and offences incur and be liable to the penalties hereinbefore mentioned, that persons 262 Search under Statutes. ARMS. using, or having in their custody unregistered arms are by 47 Geo. III. this Act subject to. s. 2, c. 54. xi. Making^ or assisting in making any pike, dagger, &c. without a license from the Ordnance, felony; (see post, ch. 13;) and by XII. Persons in whose possession pikes, &c., Having pikes, are found on search, (see infra,} are subject to imprisonment * r twe l ve months for the first offence, and a second offence is felony ; unless it be proved that the weapons came into their possession without their knowledge or consent. Search for arms The powers of search given by this Act, 47 Geo. III. s. 2, former Act^I? c - **4, sects. 8 and 12, have been modified by 50 Geo. III. c. 1 09. Geo. III. c. 54, By the former Act, sect. 8, it was enacted, that it shall and may R^suspfcion, be lawful for an J justice of the peace, where he shall have or under war- reasonable grounds of suspicion, or for any person duly autho- tices f tW ^ S ~ rized thereto bv warrant under the hands and seals of any two justices of the peace (which warrant shall not be granted except on the information given to such justice, on the oath of one or more credible witnesses, that to the best of his or their know- ledge or belief, such person is unlawfully in possession of arms) to search for arms in the house or houses, or grounds of any person, not having made such notification, or obtained such license as aforesaid ; and also in the house or houses, or grounds of any person who having made such notification, or obtained such license, shall refuse or neglect, for forty-eight hours, to deliver such list or inventory, or who shall have delivered a false list or inventory, or whose license shall have Entry by force been withdrawn as aforesaid ; and in case admission be refused, if admission or not obtained within a reasonable time after it shall have been first demanded, to enter by force into every such house, and every part thereof, and if any arms shall be found in the pos- session of any such persons respectively, save in the house of a person giving such list or inventory, and if any arms shall be found in the house of such person giving such inventory and not specified therein, to seize, and carrv away the same for the Proviso except- use f h* 8 Majesty. Provided always, that nothing in this Act ing soldiers and contained shall affect any person serving in his Majesty's re- militia, &c. g u l ar O r militia forces, or in any yeomanry corps, or any privy counsellor, or member of parliament, or peace officer, in respect Search Warrant for Arms, Pikes, $c. 263 of any arms that they may have in their custody. And by s. 1 2, ARMS. it was lawful for any J. P. of any county, city, or town in Ireland, 47 Geo - m within his jurisdiction, when he shall have reasonable ground ' . Search for pikes, of suspicion, or for any person duly authorized thereto by & c ^ un d e r for- warrant, under the hands and seals of two justices, (which merAct,47Geo. warrant shall not be granted, except upon the information upon oath of one or more credible witness or witnesses, that such weapons, to the best of his or their knowledge or belief, are in any house or place,) to search for pikes, pike-heads, dag- gers, or dirks in any such house or place ; and if any such shall be found, it shall and may be lawful for such magistrate, or the person so authorized, to seize, and carry away same, to the use of his Majesty. And the person in whose possession such weapons shall be found, shall be subject to the punish- ment herein specified. See s. 12; ante, p. 262. But now by 50 Geo. III. c. 109. s. 2, whenever any two 50 Geo - in- justices of the peace, in any county, county of a city, or town " in Ireland, shall have any reasonable grounds of suspicion, having suspicion that any person or persons within such county, or county of a that arms are i / n - r A* unlawfully in city or town, is or are unlawfully in possession of arms, or that the posse ssion any pikes, pike-heads, daggers, or dirks, are in any house or of any person, place within such county, county of a city or town, such jus- ^* Lof^Lieu- tices of peace shall forthwith transmit to the Lord Lieutenant, tenant, who by or other chief governor or governors of Ireland for the time ^seardhYo be being, or his or their Chief Secretary, a report signed by such made for them, two justices, of such suspicion, with the grounds and reasons of such suspicion ; and upon the receipt of such report of such two justices, it shall and may be lawful for such Lord Lieu- tenant, or other chief governor or governors of Ireland for the time being, or his or their Chief Secretary, by warrant under his or their hand or hands, to authorize and require such jus- tices or any other justice to search, or cause search to be made, within and throughout such county, county of a city or town, or within any parish, barony, or half barony, within such county, county of a city or town, as shall be specified in such warrant, for any arms, pikes, pike-heads, daggers, or dirks, in manner directed by the said recited Act. (Ante, pp. 262, 263.) And it shall not be lawful for any justice of the peace in any county, county of a city, or town in Ireland, to authorize or person to search 264 Search under Statutes. ARMS. to join in authorizing any person to make any search under -l^9 IIL *k e Sa ^ rec i tec * Act, f r an J arms, pikes, pike-heads, daggers, . or dirks, before or until such warrant shall have been granted until warrant is granted by Lord "J "* e Lord Lieutenant, or other chief governor or governors Lieutenant, o f Ireland for the time being, or his or their Chief Secretary, for that purpose, anything in said recited Act to the contrary Two justices notwithstanding. Sect. 3. And so much and such parts of said having received rec i te( j Act, as enacts, that it shall be lawful for any justice of information on oath.maysearch the peace, when he shall have reasonable ground of suspicion, for arms, pikes, to search for arms, pikes, pike-heads, daggers, or dirks, in any house or place in Ireland, shall be and are repealed ; and from and after the passing of this Act, it shall and may be lawful for any two justices of the peace, within their jurisdiction, upon in- formation given to such justices, (on the oath of one or more credible witness or witnesses, that to the best of his or their knowledge and belief, any person is unlawfully in the posses- sion of arms, or that any pikes, pike-heads, daggers, or dirks, are in any house or place, but not otherwise,) to search for arms, pikes, pike-heads,, daggers, or dirks, in the house or premises of any person, or in any house or place mentioned in such information, in manner and under the regulations in the said recited Act contained. Stat. 47 Geo. III. s. 2, c. 54. XIII. Whenever any magis- trate or other person shall seize or carry away any arms or weapons as aforesaid, he shall with all convenient despatch transmit same to one of his Majesty's storehouses, or to the officer commanding the nearest detachment of his Majesty's troops, by him to be transmitted as aforesaid ; and in every case such magistrate or other person shall, immediately after he or they shall have seized or carried away any arms or wea- pons as aforesaid, transmit to the Lord Lieutenant, or other chief governor or governors of Ireland, or to his or their Chief Secretary, a written account of the number and nature of such arms or weapons, and of the place where, and the per- son from whom such arms or weapons were respectively seized. XIV. All pecuniary penalties in this Act specified, shall be raised and levied by sale of the goods of the offender, by war- 47 Geo. III. s. 2, c. 54. How arms seized shall be disposed of. Account to be transmitted to Lord Lieute- nant. Levy and dis- " ^ Importation of Arms or Gunpowder. 265 rant under the hand and seal of any J. P. in and for the county ARMS. in which the offence is committed ; the penalties so levied to be 47 Geo. III. by such parties handed over to the treasurer of the county in which they are levied, to be applied by the grand jury at the next assizes. XV. When search shall be made under this Act, by any Return to be persons authorized by a warrant of a J. P., under the autho- made to the sessions, rity of this Act, the J. P., or J.s' P. authorizing, shall make a true and faithful return of the name and names of all and every person so authorized to make search, and their quality, and descriptions, to the general sessions of the peace held next after such search. (See ante, pp. 263, 264.) r By Stat. 1 Will. IV., c. 44, regulating the importation into 1 Will. IV. Ireland, and the making, removing, selling, and keeping of c ' 44 * arms, gunpowder, and ammunition, it is enacted, sect. I. that it shall not be lawful for any person to import or bring into Ireland any cannon, mortar, ordnance, blunderbus, gun, pistol, No ordnance, or other arms, or any lock, stock, barrel, or other part of any de^'&c^shal'l gun, pistol, or other arms, or any sword, sword blade, bayonet, be imported into pike, pike-head, spear, spear-head, weapon of war or any part Ireland without of any such weapon, or any instrument serving the purposes of Lord Lieute- any such weapon, or any cannon balls, musket balls, or pistol nantt balls, or any gunpowder, brimstone, saltpetre, or other mate- rial or ingredient used in the making of gunpowder, or any military accoutrements, without having first obtained a li- cense for that purpose, pursuant to the directions of this Act, under the hand of the Lord Lieutenant, or other chief go- vernor or governors of Ireland, or his or their Chief Secretary, or in his absence of his Under Secretary, for the time being, which license shall specify the number, and particular kind of arms, ordnance, &c. ; and the quantity of gunpowder, &c., thereby licensed to be imported or brought. II. Provided always, that it shall be lawful for any sub- p ersons may ject of his Majesty, coming into Ireland, to land such arms land arms for as such subject shall have actually carried for personal de- ^(Toi/re is- fence, and as are usually carried for that purpose, and no tering the same, other, upon registering such arms, and the name, and usual place of abode of such person, with the chief officer of the 2.M 266 Search under Statutes. ARMS. l Will. iv. c. 44. Arms, &c., im- ported without license, and im- porting vessels to be forfeited. And may be seized by J. P. &c. Penalty on im- porter and mas- ter of vessel. Offenders may be arrested, and bound before J. P., with sureties. No person in Ireland shall manufacture gunpowder, or keep gunpow- der, cannon, or ordnance, with- out an annual license from Lord Lieute- nant, &c. port where such person shall land, and obtaining from such officer a license for landing the same, which license shall be granted without any fee or reward. III. If any person shall, contrary to the provisions of this Act, import or bring any ordnance, arms, accoutrements, am- munition, or materials, [as specified in sect. 1, sup.,] without such license for the importation thereof, or if any ship, vessel, or boat shall be found in any port, harbour, or creek in Ireland, having on board any such article, for the importation or bringing of which, such license shall not have been obtained, all such articles, and also such ship, vessel, or boat, with all her furniture and apparel, shall be forfeited to his Majesty, and shall and may be seized by any justice of the peace, or peace officer, or by any officer of his Majesty's excise or cus- toms ; and all such articles not licensed to be imported as aforesaid, shall, when so seized, be deposited in such place or places as shall be appointed for the purpose by the Lord Lieutenant, or other chief governor or governors of Ireland, [every importer or bringer thereof, whether owner or not, shall for every such importation forfeit 100; and the master or person commanding the ship or other vessel, in which, &c., 50 ;] and any person so offending may be arrested under the warrant of any justice of the peace, and committed by such justice to the common gaol of the county or place in which such offence shall be committed, there to remain until such offender enter into a recognizance before such or some other justice, with two sufficient sureties, in the sum of 500, con- ditioned to abide such order or judgment as may by law be made or given against such offender, in respect of such offence, or until such offender shall be discharged by due course of law. IV. No person shall make or manufacture any gunpowder in Ireland, nor shall keep any gunpowder, or any cannon or other ordnance, unless such person shall obtain a license for such purposes respectively under the hand of the Lord Lieu- tenant, or Chief, or, in his absence, Under Secretary; and such license shall be in force for one year from the granting thereof, and no longer ; and the place where such gunpowder is to be made or manufactured, and every store or place belonging to Manufacture and Sale of Gunpowder. 267 such manufacturer or other person in which any gunpowder, ABMS. cannon, or other ordnance is to be kept, shall be set forth and 1 Will. IV. described in such license, together with the name of the per- c * son superintending the work at the mills of any such maker or manufacturer of gunpowder; and if such maker or manu- facturer of gunpowder shall have any office or place of deli- very separate from such mills, the name of the person to whom the gunpowder shall be consigned at such office, and the place where such office is situated, shall also be set forth and de- scribed in such license. [Any person making gunpowder in p ena i t y 50, Ireland without such license ; or person not duly authorized and forfeiture to manufacture or to keep or deal in gunpowder keeping & C ^ UI any greater quantity than two pounds weight; or person not licensed to keep these keeping any such cannon or ord- nance, for every such offence forfeits 50 ;] and all gunpowder, and all materials for making the same, and all cannon and other ordnance, found in the possession of or in any house or other place belonging to such offender, shall be forfeited ; and it shall and may be lawful for any justice of the peace to seize, And seizure or by warrant to cause to be seized, any gunpowder, (exceed- ma y be made t)V 3.DV J P ing the quantity of two pounds weight,) or any cannon or ord- O l un j er * his '' nance, in the custody or possession of any person in Ireland, warrant. unless a license for manufacturing or keeping or dealing in or selling the same respectively, duly granted and in force, shall, upon demand, be produced by the person in whose custody or possession such gunpowder, cannon, or ordnance shall be, and shall be so seized. V. No person, not being duly licensed to manufacture gun- ^ persOQ not powder as aforesaid, shall deal in or sell gunpowder by retail licensed as a or otherwise in Ireland, unless he shall have obtained a ^"[clT!. license for that purpose from the Lord Lieutenant or Chief or, powder without in his absence, Under Secretary, and such license shall be in an an ual ll ~ cense for that force for one year from the granting thereof, and no longer ; purpose. and any person who shall deal in or sell gunpowder, by retail or otherwise, without having obtained such license, shall for- feit for every time such person shall sell any gunpowder 50 ; Seizure by J.P., and all gunpowder, and every cask or vessel in which the same or under his shall be contained, found in the possession of such person, 268 Search under Statutes. l Will. IV. c. 44. Licenses may be annulled or suspended by order of Chief Secretary. Affidavit of ser- vice of order before J. P. Selling gun- powdtr during suspension of license, subject to penalty and seizure by or under warrant of J. P., &c. Licensed buy- ers to have li- cense indorsed as herein. shall be forfeited and seized by any justice of the peace, or any person authorized thereto by warrant from any such justice. VI. provides that a license shall not be granted without a certificate obtained at quarter sessions, that the party applying is a proper person to be licensed ; and that the Lord Lieutenant, &c., may refuse the license, if they think fit, notwithstanding the certificate. VII. gives power to the Chief, or, in his absence, the Under Secretary, to recal, annul, or suspend any license granted under this or former Acts, by an order in writing under his hand ; and provides, that the party to whom such order shall relate shall be served with notice of the same by the delivery of a copy thereof to such party in person, or by a copy thereof being left at the shop or warehouse of such party, and the said order being shewn to some person above the age of twelve years of or belonging to such party : and such service shall, by the person making the same, be verified by affidavit of such person in writing before any justice of the peace or magistrate having jurisdiction where the party so served shall reside ; and such justice of the peace is hereby authorized, empowered, and required to administer an oath for the purpose of taking the said affidavit ; and such affidavit, when sworn, shall be transmitted to the Chief Secretary, or, in his absence, to the Under Secretary for the time being, together with the original order, the copy of which shall be so delivered or left ; and any person so licensed and served with such order who shall, at any time whilst such order shall be in force, deal in or sell gunpowder, shall forfeit 500, and all gunpowder in the possession of such person ; and such gunpowder so forfeited shall and may be seized to the use of his Majesty, by or under the warrant of any justice of the peace, or by any officer of his Majesty's revenue of customs or excise. VIII. directs that every maker of, or dealer in gunpowder, selling or disposing of any to a licensed dealer, or his clerk &c., shall indorse on the buyer's license the quantity sold, and the time when, and his own signature; penalty for every ne- glect 20; penalty for selling more than two pounds to any Carriage of Arms and Gunpowder. 269 ARMS. person not producing a proper license, 20 for each offence. IX. Chief, or in his absence, Under Secretary, upon the * Will. IV. production of any license so indorsed, may grant a license for removing and conveying the quantity of gunpowder mentioned in such indorsement. X. imposes a penalty of 20, for selling or delivering more than two pounds weight of gunpowder, within two calendar months to an unlicensed person. XI. It shall not be lawful for any person to remove or cause Arms, gunpow- to be removed from any part of Ireland either by inland car- e ^' c * s * , riage or coastways, any cannon, mortar, ordnance, gun, pistol, without license. or other arms, or any lock, stock, barrel, or other part of any gun^ pistol, or other arms, or any balls or bullets, or any gun- powder exceeding the weight of two pounds, or any brimstone or saltpetre, without a license for removing and conveying the same, granted by the Chief Secretary of the Lord Lieutenant, or other chief governor or governors of Ireland, or, in his ab- sence, by his Under Secretary ; and it shall and may be law- Search for and ful for any justice of the peace or peace officer, or any officer ^""^n""^'. of the revenue of customs or excise, upon information on gaily removed. oath, to search for and seize all such cannon, arms, &c., or other articles hereinbefore mentioned, which shall be in progress of removal or shall be removed without such license, or without producing such license on demand of any justice of the peace or of any officer of excise or customs, and the same shall be forfeited to his Majesty, together with the cart, car, or other vehicle on which the same shall be put for convey- ance, and every horse or other beast employed for drawing or carrying the same, and the ship, boat, or other vessel convey- ing the same ; and every person who caused the same to be removed shall forfeit 100. XII. Provided always, that nothing herein contained shall Proviso as to extend, or be construed to extend, to prevent any person from arms for defence carrying arms for the defence of his person or for sporting. By Stat. 1 & 2 Viet. c. 71, s. 3, any person licensed to kill game 1 & 2 Viet. may carry arms for that purpose, provided the same are duly c< 71 * registered; and any person having in his or her possession any Which if regis- arms regularly registered according to the provisions of the aforesaid Acts, (47 Geo. III. s. 2, c. 54, 50 Geo. III. c. 109, a license. 270 Search under Statutes. AKMS. ante, p. 257, &c., and 1 Will. IV. c. 44,) may carry the same for 1 Will. IV. his own protection, or may remove the same to or from his own residence, to or from that of any licensed dealer or maker ^ arms ^ Or ^ P ur P ose f repairs, without procuring a license for removal from His Excellency the Lord Lieutenant, as directed by the aforesaid Acts. No gunpowder xill. It shall not be lawful for any person, not by law au- to be kept by ... J persons not au- tnorized to keep and carry arms, to keep any quantity of gun- thorized to carry powder whatever, whether such person shall or shall not have any license relating to gunpowder; and any person herein offending shall be dealt with as if he had not any license. Makers of arms XIV. Any maker of and dealer in arms in Dublin or Cork, in Dublin and ,. , , . ,,, , . Cork, may send h cense( l as hereinafter mentioned, may send arms to persons arms without in the said cities respectively, in the day time, either uncovered, movaT ( r fe " or * n P ac ^ages conspicuously marked with the words " arms," without obtaining a license for so removing the same. Dealers shall XV. Every person licensed to deal in gunpowder, shall give notice of within forty-eight hour? after receiving any gunpowder, by receiving gun- , ,7 . powder to ma- virtue of any license for the removal thereof, give notice of gistrate, who the arrival thereof to the next justice of the peace or other ma- same and the gistrate ; and thereupon it shall be lawful for such justice or ma- indorsement on gistrate to enter into the house of such person, and to view and t e icense, &c. examme suc fo gunpowder, and the license for the removal of such gunpowder, and the license of such dealer, with the in- dorsement made thereon by the person who sold such gunpow- der ; and such person shall declare and shew to such justice or magistrate, if required, all the stock of gunpowder in his or her possession ; and if any such person shall not give such notice, or shall not permit such justice or magistrate to view or exa- mine such licenses respectively, or such gunpowder, or shall not declare and shew to such justice or magistrate all his or her stock of gunpowder, every such person for each such offence J. P. to seize shall forfeit 20 ; and if any gunpowder not so declared or any that is con- shown shall be found in the possession of such person, the same shall be forfeited, and shall be seized to the use of his Majesty by or under the order of such justice or magistrate. XVI. Penalty on licensed person allowing his license to be used, to procure gunpowder for any other person 200, and Manufacture of Arms or Gunpowder. 271 license to be void. XVII. Makers and factors shall make ARMS. monthly returns of their stock, &c., to the Chief or Under 1 Will. IV. Secretary, such returns to be verified by an affidavit sworn before a magistrate ; and shall keep books with accounts of all sales, &c., to be inspected, and the stock examined by any fore J. P. person authorized thereto by the Chief or Under Secretary. Penalty for fraud herein 50, license to become void, and offender disabled from dealing in gunpowder. XVIII. Penalty for not making such returns, or not keeping such book, or for refusing to allow inspection, 20. XIX. Provided always, that every person duly licensed to Licensed ma- mar ufacture gunpowder may send, at any time between sunrise s^u^gurmovvd^r and sunset, any quantity thereof to his office or place of deli- in the day time, very mentioned in the license granted to him, or to his Majes- to their ffic( ; s ,7. or the King's ty's stores, and not elsewhere, without obtaining a license for stores with a the carriage or removal of the same ; provided that with every manifest only. quantity of gunpowder so sent the maker or his superintendent shall send a manifest, expressing the quantity sent, and whether in barrels, half barrels, or quarter barrels, and the places from which and to which it is sent, which manifest shall be dated and signed by the maker of such gunpowder, or his superintendent. XX. Penalty on fraud by manifest 500, and forfeiture of the gunpowder. XXI. All gunpowder ex- ceeding five pounds weight, removed from any part of Ireland, Gunpowder to any other part, to be made up in casks with the word " gun- exceeding . , , 51bs. shall be powder marked thereon in large letters, upon pain of for- removed in feiture; and any person may seize and carry to his Majesty's casks &c - or e '.T . j. _ j liable to seizure. stores, any quantity of gunpowder exceeding five pounds weight, and not so made up and marked; penalty 50 on person causing gunpowder to be carried without being so made Penalty. up and marked. XXII. No person shall make, repair, or keep for sale, any Yearly licenses arms, &c., without a license from the Chief or Under Secretary, J^^/ to be granted to any known gunsmith or sword cutler, if it shall pairing arms. seem fit ; and if any person shall make or construct, mend, alter, or repair, or keep for or expose to sale, any cannon or other ordnance, or any gun, musket, pistol, or other arms, or any lock, barrel stock, or other part of any gun, pistol, or Search under Statutes. ARMS. other arms, or any bayonet, sword, sword blade, spear, spear- 1 Will. IV. head, pike, pike-head, or instrument serving for a pike, or Arms ex osed pike-head, or other military weapon, without having obtained to sale, &c., such license, every such article found with such person shall without a he forfeited, and may be seized by any justice of the peace or seized by any magistrate, or officer of customs or excise, or by any person J iT ^h* 5 "' r authorized thereto by the warrant of any justice of the peace rant. or magistrate, and every such offender shall forfeit 100; and such license shall be of force for one year, and no longer, from the time of granting thereof. Account of XXIII. All makers and dealers in arms shall enter in a book verified before' mon thly accounts of all the arms made, repaired, or sold, for J. P. whom, and when, and make monthly returns thereof to the Chief Secretary, verified on oath before a magistrate ; any person, authorized by Chief or Under Secretary, may have access to examine such book. Penalty for false entries, &c., or refusal to allow examination, 20. Justice of peace XXIV. It shall and may be lawful to and for any justice may search for , , arms, &c. or of the peace or magistrate to enter and search, or to grant a grant search warrant to any person or persons, to be by him named, to herein! 1 ' " enter anc * searc ^ anv house, place, ship, boat, or vessel, where or in which such justice or magistrate shall, from informa- tion on oath, have reasonable grounds to suspect any arms, ammunition, or gunpowder to be deposited for any purpose contrary to this Act. XXV. Lord Lieutenant at any time may annul and make void any license under this Act. XXVI. Pecuniary forfei- tures recoverable by information in Courts at Dublin ; and any forfeiture of any article or thing, which, by virtue hereof, shall and may be seized, to be recovered and applied as directed by any law relating to the revenue of excise, and with like re- medy of appeal. XXVII. Lord Lieutenant may remit penal- ties, or order restitution of articles seized. XXVIII. Commis- sioners or assistant Commissioners of Customs in Dublin, or Collector of Customs there, or at any other port, may, under certain circumstances, remit penalties, and order restitution of ships, &c., seized, under conditions, at their discretion. All the foregoing Statutes relating to arms, gunpowder, Forged Bank Notes. 273 &c., from p. 256 to p. 272, were temporary ; but have been ARMS. continued by Acts passed annually for this purpose : the 3 & 4 vict - c - last of these is Stat. 3 & 4 Viet. c. 32, under which they are in force for one year from July, 1840, and till the end of the then session. By Stat. 39 Geo. III. c. 63, for preventing forgery of Bank BANK OF ENQ - of England notes and post bills, s. 6, " upon oath being made & c . before any justice of the peace, by one credible person, that 39 Geo, III c. there is just cause to suspect that any one or more person or 63 s - 6 - persons hath or have been concerned in the false making, On oath that forging, or counterfeiting any note or notes, or bill or bills of to^p^tTi? exchange, or bank post bill or bank post bills of the Governor geries, forging and Company of the Bank of England; or in offering, dis- { J e r 1 e s i ' n &c ' > as posing of, or putting away any false made, forged, or coun- terfeited note, &c., of the said Governor and Company, or purporting to be the note, &c., of the said Governor and Company; or in making or using any frame, mould, or instrument, or* making paper in imitation of the paper * sic, but sem- used, or to be used, in notes or bills of the Governor and ble " for -" Company of the Bank of England; or in making such paper; or in engraving or cutting any plate or plates of metal or wood, or other materials, upon which shall be, or be made or impressed, or which would make or impress, as aforesaid, the form of words printed on or used, or to be printed or used in any notes or bills of the Governor and Company of the Bank of England, or any part of such form ; or in engraving or cutting any stamp or instrument upon which shall be or be made or impressed, or which would make or impress any of the devices, distinctions or flourishes, printed or engraved on the notes and bills of exchange or bank post bills of the Governor and Company of the Bank of England; or upon oath being made before such justice as aforesaid, that there is reason to suspect that any of the hereinbefore mentioned tools or instruments, or that any paper made in imitation of the paper used or to be used by the Governor and Company of the Bank of England as aforesaid, are knowingly concealed or secreted by any person or persons ; then, and in all such cases, it may be lawful for such justice, or any person or persons empowered 2N 274 Search under Statutes. BANK OF ENG- LAND. 39 Geo. III. c. 63, s. 6. J. P. or any person empow- ered by his war- rant, may make search as herein. Sic. Forged notes, instiument, &c. how to be dis- posed of. BANK OF IRE- LAND NOTES, &C. 38 Ge<>. III. c. a. 6. On oath that there is reason to suspect forgeries, forging tools, &c. as herein. by warrant under his hand and seal, to search the person, clothes, furniture, dwelling-house, room, workshop, out-house, yard, garden, or other place, belonging to such suspected per- son or persons, or wherein they shall have resided, worked, lodged, used, lived, or have had access to, for such forged notes or bills, frame, mould, or instrument, paper, plate, or plates; and if any such be found in any place so searched, or be found in the custody or possession of any person or persons not then employed by the Governor and Company of the Bank of England, nor having the same by some lawful authority, then it shall and may be lawful for any person or persons discover- ing the same to seize, and he and they are hereby authorized and required to seize the same, and to carry them forthwith to some justice of the peace of the county, city, or place where the same shall be seized, and shall* cause the same to be so secured, that the same shall be forthcoming, to be produced in evidence against such person or persons as shall or may be prosecuted for any of the offences aforesaid ; and after such time as such forged note or notes, bill or bills, or any such frame, mould or instrument, paper, plate or plates, or any of them, shall have been produced in evidence, as well the same so produced as the others so seized and not made use of in evidence, and every of them, shall forthwith, by order of the court where such offender or offenders shall be tried, or by order of such or some other justice of the peace, in case there be no such trial, be defaced and destroyed, or otherwise dis- posed of as such court or such justice shall direct." By Stat. 38 Geo. III. c. 53, for preventing forgeries on the Bank of Ireland, s. 6, " upon oath being made before any justice of the peace by one credible person, that there is just cause to suspect, that any one or more person or persons hath or have been concerned, in forging or counterfeiting any notes or bills of the Governor and Company of the Bank of Ireland ; or in making or using any frame, mould, or instrument for making paper in imitation of the paper used in notes or bills of the Governor and Company of the Bank of Ireland ; or in making such paper; or in engraving or cutting any plate or plates of metal or wood, or of other materials upon which should be, or be made or impressed, or which would Forged Bank Notes. 275 make or impress, as aforesaid, the form of words printed BANK OF IRB - on or used in any notes or bills of the Governor and Com- ' pany of the Bank of Ireland, or any part of such form; or 53 j c< 5. in engraving or cutting any stamp or instrument, on which shall be, or be made or impressed, or which would make or impress, any of the devices, distinctions, or flourishes, printed or engraved on the notes, and bills of exchange of the Gover- nor and Company of the Bank of Ireland ; or upon oath being made before such justice as aforesaid, that there is reason to suspect that any of the herein before mentioned tools or instruments, or that any paper made in imitation of the paper used by the Governor and Company of the Bank of Ire- land, as aforesaid, are knowingly concealed or secreted by any person or persons ; then and in all such cases, it may be law- j p or any ful for such justice, or any person or persons empowered by person empow- warrant under his hand and seal, to search the dwelling-house, "Arrant ^ room, workshop, out-house, yard, garden, or other place be- make search, longing to such suspected person or persons, for such forged notes or bills, frame, mould or instrument, paper, plate or plates, and if any such be found in any place so searched, or be found in the custody or possession of any person or persons, not then employed by the Governor and Company of the Bank, nor having the same by some lawful authority, then it shall and may be lawful, for any person or persons discovering the same, to seize, and he and they are hereby authorized and re- quired to seize the same, and to carry them forthwith to some justice of the peace, of the county, city, or place where the same shall be seized, and shall cause the same to be so secured that the same shall be forthcoming, to be produced in evidence against such person or persons as shall or may be prosecuted for any of the offences aforesaid ; and after such time as such How forged forged note or notes, or any such frame, mould or instrument, notes instru - paper, plate or plates, or any of them shall have been produced to^d is in evidence, as well the same so produced, as the others so of - seized and not made use of in evidence, and every of them shall forthwith, by order of the court where such offender or offenders shall be tried, or by order of such or some other J. P. in case there be no such trial, be defaced and destroyed or 276 Search under Statutes. BANK OF IRE- LAND. 38 Geo.III. c. 53, &c. ENGLISH BANKRUPT'S PROPERTY. 6 Geo. IV. c. 16. Messenger ap- pointed as herein may seize goods in Ireland. Oath before magistrate. Messenger may obtain search warrant as herein. otherwise disposed of, as such court or such justice shall direct." A similar power of search for counterfeit bank of Ireland tokens, &c. was given by Stats. 44 Geo. III. c. 71, s. 6; 45 Geo. III. c. 42, s. 3; 48 Geo. III. c. 31, s. 2; and 53 Geo. III. c. 106, s. 2; but this circulation of such tokens has been prohibited since 5th January, 1826. By Stat. 6 Geo. IV. c. 16, the English Bankrupt Act, it is provided, s. 27, that it shall be lawful for any person appointed by the commissioners, by their warrant under their hands and seals, to break open houses, and make seizures as herein ; and by s. 28, it shall be lawful for the person so appointed by the commissioners as aforesaid, to break open any house, chamber, shop, warehouse, door, trunk or chest, of such bankrupt in Ireland, where any of the property of such bankrupt shall be reputed to be, and seize the same ; provided such warrant as aforesaid shall have been verified upon oath, by the attorney or solicitor suing out the commission, before the mayor or other chief magistrate of the city, borough, or town corporate, where or near to which the said commission is executed, and verified under the common seal thereof, or the seal of the office of such mayor or other magistrate ; and provided also, that the person thereby appointed shall, before a justice of peace residing in the county where such property shall be reputed to be, depose upon oath that he is the person named in the warrant ; and by s. 29, "in all cases where it shall be made to appear to the satis- faction of any justice of peace in England or Ireland, that there is reason to suspect and believe that property of the bankrupt is concealed in any house, premises, or place not belonging to such bankrupt, such justice of peace is hereby directed and authorized to grant a search warrant to the per- son so deputed by the commissioners as aforesaid, and it shall be lawful for such person to execute the same in like manner, and such person shall be entitled to the same protection as is allowed by law, in execution of a search warrant for property reputed to be stolen and concealed/' A search warrant under this Act ought not to be granted to any person but the mes- senger under the fiat ; Sly v. Stevenson, 2 C. & P. 464. By Stat. 6 Will. IV. c. 14, the Irish Bankrupt Act, s. 40, Bankrupt's Property. Bread and Flour. 277 IBISH BANKRUPT'S any person appointed by the commissioner by warrant under his hand and seal, may break open houses, &c., of any bankrupt, PROPERTY where such bankrupt or any of his property is reputed to be, 6 Will. IV. c. and seize upon the body or property of such bankrupt; and by s. 42, "in all cases where it shall be made to appear, to the satis- faction of any J. P. in England or Ireland, that there is reason to suspect and believe, that property of the bankrupt is con- Bankruyt's pro- cealed in any house, or premises, or other place not belonging J^ * t h n e c r eal ~ to such bankrupt, such J. P. is hereby directeoLand authorized person's houses, to grant a search warrant, to the person so deputed by the may be searched -i i P i, f o r under war- commissioners as aforesaid, and it shall be lawful tor such ran t O f J. P. person to execute the same in like manner, and such person shall be entitled to the same protection, as is allowed by law in execution of a search warrant, for property reputed to be stolen and concealed." By Stat. 1 & 2 Viet. c. 28, regulating the making and sale BBBAD,H,OUB. of bread in Ireland, s. 10, "it shall be lawful for any magis- j & 2 v' t trate or magistrates, justice or justices of the peace within their 28, s. 6. respective jurisdictions, on the sworn information of one or J. P. or con- more credible person or persons, and also, for any peace of- ^,.^4 ' &U ~ ficer of the parish, or parish constable authorized by warrant warrant as under the hand and seal or hands and seals of any such f herein ' m ^ *?' ter and search magistrate, &c., (and which warrant any such magistrate, &c., for materials for is and are hereby empowered to grant,) at seasonable times ^Iterating , , flour or bread. in the day time, to enter into any house, mill, shop, stall, bakehouse, bolting-house, pastry warehouse, out-house, or ground of or belonging to any miller, mealman, flour factor, or baker, or other person who shall grind grain, or dress, or bolt, or sell meal or flour, or make bread for reward or sale in Ire- land, and to search or examine, whether any mixture or ingre- dient, not the genuine produce of the grain, which such meal or flour shall import or ought to be, shall have been mixed up with, or put into any meal or flour in the possession of such miller, mealman, flour factor, or baker, either in the grinding of any grain at the mill, or in the dressing, bolting, or manufacturing thereof, whereby the purity of any meal, or flour, is or shall be in anywise adulterated, or whether any mix- ture or ingredient, other than is allowed by this Act, [see 278 Search under Statutes. been mixed U P witb > or P ut into an y 1 & 2 Viet flour, dough, or bread, in the possession of any such baker, c. 28, s. 10. or other person, whereby any such flour, dough, or bread, is or shall be in anywise adulterated, and also to search for any mix- ture or ingredient, which may be intended to be used in or for And if any an 7 such adulteration or mixture ; and if on any such search it adulterated flour s h a ii appear, that any such meal, flour,dough,or bread, so found, materials for s ^ a ^ ^ ave ^ een so adulterated by the person in whose posses- adulterating sion it shall then be, or any mixture or ingredient shall be they may \x? ' ^ oun ^j which shall seem to have been deposited there, in seized ; order to be used in the adulteration of meal, flour, or bread, then and in every such case it shall be lawful for every such magis- trate, or magistrates, J. or Js. P. or parish constable or parish constables, authorized as aforesaid respectively, within the limits of their respective jurisdictions, to seize and take away any meal, flour, dough, or bread, which shall be found in any such search, and deemed to have been adulterated, and all ingredients andmixtur.es which shall be found, and deemed to have been used or intended to be used, in or for any such adulteration as aforesaid ; and such part thereof as shall be seized by any parish constable, or parish consta- bles, authorized as aforesaid, shall, with all convenient speed, after seizure, be carried to the nearest resident magistrate, or magistrates, J. or Js. P. within the limits of whose jurisdic- and disposed of tion the same shall have been so seized ; and if any magis- at discretion of t ra ^ e) or magistrates, justice, or justices, who shall make any ' such seizure in pursuance of this Act, or to whom any thing so seized under the authority of this Act shall be brought, shall adjudge that any such meal, flour, dough, or bread, so seized shall have been adulterated by any mixture or ingre- dient put therein, other than is allowed by this Act, e e post, Pt. III.] or shall [adjudge that any ingredient or mixture so found as aforesaid, shall have been deposited, or kept when so found for the purpose of adulterating meal, flour, dough, or bread, then, and in any such case, every such magistrate, &c., is and are hereby required, within the limits of their respective jurisdictions, to dispose of the same, as he or they, in his or their discretion, shall from time to time think proper." Cards and Dice Coining. 279 CARDS AND DICE. By Stat. 9 Geo. IV. c. 18, amending the laws relating to cards and dice, makers of cards and dice are required to take 9 Geo out annual licenses, which the Commissioners of Stamps are c. 18. empowered to grant, (in no place in Ireland except Dublin, s. 7,) and by sect. 18, any officer appointed by the said Commission- Officers of ers may enter into any place, where playing cards or dice are, or are suspected to be made or sold, &c., to search and for cards or dice, take an account thereof; and by s. 19, " whenever there shall be J. P. may grant cause to suspect, that any person shall make, or cause to be hieTn^a'ndoffi. made, any playing cards or dice, in any house or place what- cers of stamps soever, in any part of the United Kingdom, without license "J^wherV^ duly obtained, as by this Act required, upon affidavit being cards or dice made of such suspicion by any person, before any justice of raakin g 1S sus - J J * pected to be the peace, for the county or place where such cards or dice can ied on. shall be, or shall be suspected to be making or made, it shall and may be lawful for any officer employed by, and acting under the Commissioners of Stamps, in the day time, and in the presence of a constable, or other lawful officer of the peace, (who is hereby required to be aiding and assisting therein,) by warrant from such J. P. before whom such affidavit shall "be made, to be directed to such officer of stamps as aforesaid, which warrant the said J. P. is hereby authorized and re- quired to grant, to break open the door or any part of such house or place, in which any such cards or dice shall, so as aforesaid, be suspected to be so made or making, and there- upon to enter into such house or place and seize all cards or dice which shall be therein found made, or begun to be made, and all the tools, materials, and utensils for making such cards and dice which shall be there found ;" and all such cards, tools, &c., shall be seized and lodged in any place appointed by the said Commissioners or their proper officer, and forfeited, and disposed of at the discretion of the Commissioners. By Stat. 2 Will. IV. c. 34, consolidating and amending the COINING. laws against offences relating to the coin,s. 14 ; "if any person 2 Will< IV - shall find or discover, in any place whatever, or in the poesss- ^ * r Counterfeit com sion of any person having the same without lawful excuse, and tools for any false or counterfeit coin, resembling or apparently intend- JSedV^aB** 6 ed to resemble or pass for, any of the king's current gold, finder. J 280 Search under Statutes. COINING. 2 Will. IV. c. 34, s. 14. or search war- rent granted by J. P. as herein. Counterfeit coin and tools, seized how to be disposed of. FOREIGN COIN. 43 Geo. III. c. 139. Search warrant for counterfeit foreign copper coin and tools, may be granted silver or copper coin, or any instrument, tool or engine what- soever, adopted and intended for the counterfeiting of any such coin, it shall be lawful for the person so finding or dis- covering, and he is hereby required to seize the same, and to carry the same forthwith before some justice of the peace ; and where it shall be proved on the oath of a credible witness, before any justice of the peace, that there is reasonable cause to suspect, that any person has been concerned in counterfeiting the king's current gold silver or copper coin, or has in his custody or possession any such counterfeit coin, or any instru- ment tool or engine whatsoever, adapted and intended for the counterfeiting of any such coin, it shall be lawful for such justice, by warrant under his hand, to cause any place what- soever, belonging to, or in the occupation, or under the control of such suspected person, to be searched, either in the day or night ; and if any such counterfeit coin, or any such instrument, tool or engine, shall be found in any place so searched, to cause the same to be seized, and carried forthwith before the said justice, or some other J. P., and wherever any such counterfeit coin, or any such instrument, tool or engine, as aforesaid, shall in any case whatever be seized and car- ried before a J. P. he shall cause the same to be secured, for the purpose of being produced in evidence against any per- son who may be prosecuted for any offence against this Act ; and all counterfeit coin, and all instruments, tools and en- gines, adapted and intended for the counterfeiting of coin, after they shall have been produced in evidence, or where they shall have been seized, and shall not be required to be produced in evidence, shall forthwith be delivered up to the officers of his Majesty's mint, or to their solicitor, or to any person authorized by them or him to receive the same." By Stat. 43 Geo. III. c. 139, for preventing the counter- feiting of any kind of coin, not the current money of this realm, but resembling any copper coin, or any coin of metal of less value than the silver coin of any foreign coun- try, s. 7, it shall, and may be lawful to and for any one jus- tice of the peace, on complaint made before him upon the oath of one credible person, that there is just cause to sus- Coining Deserters. 28 1 pect that any person or persons is, or are, or hath or have FOREIGN COIN. been concerned in making or counterfeiting any such false or 43 Geo. III. c. counterfeited foreign coin, by warrant under the hand of such ' s * justice, to cause the dwelling-house, room, workshop, out- herein, house, or other building, yard, garden, or other place belonging to such suspected person or persons, or where any such suspected person or persons shall be suspected to carry on any such making or counterfeiting, to be searched for any such false or counterfeit coin, or for tools or implements for coining such false, &c., or for materials for making or coining the same; and if any such counterfeit coin, or tools, materials &c., shall be found in any place so searched, or if any such tools, &c., be found in the possession of any person whatsoever, not having the same by lawful authority, any person or per- sons whatsoever may seize, and he or they are hereby re- quired to seize any such false coin, tools or materials, and to carry the same forthwith to a justice of peace of the county, &c., where the same shall be seized, who shall cause the same to be secured, and produced in evidence in case of a prosecution ; and whether produced in evidence or not, they shall forthwith, when seized by order of the court where offender is tried, or by order of how to be dis ' some justice of the peace, in case there shall be no trial, be defaced or destroyed, or otherwise disposed of as such court or such justice shall direct. By the annual Mutiny Acts, constables, &c., within their DESERTERS. respective districts, are authorized to arrest persons who may 3 & 4 Viet. c. reasonably be suspected of desertion from her Majesty's 6 * forces ; and, if no constable can be immediately met with, it Arrest of deser- shall be lawful for any officer or soldier in her Majesty's ser- ters * vice, to apprehend or cause such suspected person to be ap- prehended, and to bring or cause him to be brought before any neighbouring justice of peace, to be committed or otherwise dealt with, as herein provided ; see the last annual Mutiny Act, 3 & 4 Viet. c. 6, s. 22 ; but it is enacted, section 26, " that Officer not to every commissioned officer who shall without warrant from h ^ a ge J e s arc h one or more of her Majesty's justices, forcibly enter into or without war- break open the dwelling-house or out-houses of any person rant * whomsoever, under pretence of searching for deserters shall, 282 Search under Statutes. DESERTERS. 3 & 4 Viet. c. 6. 7 & 8 Geo. IV. c. 53, s. 34. Search warrant to be granted by J. P. to officers of excise, and executed as herein. FISHERIES. 17 & 18 Geo. III. c.l 9, s. 1. Improper in- struments for fishing may be seized as herein. upon due proof thereof, forfeit 20." The words " which warrant the said justice or justices, are hereby empowered to grant," were inserted in former Mutiny Acts, see 9 Geo. IV. c. 4, s. 124, but not in those subsequent to 10 Geo. IV. By Stat. 7 & 8 Geo. IV. c. 53, amending and consolidating the laws relating to excise, s. 34 ; "if any officer of excise shall have cause to suspect that any goods or commodities forfeited under or by virtue of this Act, or any other Act or Acts rela- ting to the revenue of excise, are deposited or concealed in any place, then and in every such case, upon oath being made by such officer before one or more justice or justices of the peace, for the county, shire, division, city, town or place where such officer shall suspect such goods or commodities to be deposited or concealed, setting forth the ground of such sus- picion, it shall be lawful to and for the said justice or justices before whom such oath shall be made, if he or they shall judge it reasonable, by special warrant or warrants under his or their hands, to authorize and empower such officer, by day or by night, (but if between the hours of eleven of the clock at night, and five in the morning, then in the presence of a constable or other lawful officer of the peace,) to enter into every such place where any such goods or commodities shall be suspected to be deposited or concealed, and to seize and carry away the same ; and it shall be lawful for any officer to whom any such warrant shall be given or granted, and he is hereby authorized, in case of resistance, to break open any door,- and to force and remove any other impediment or ob- struction to such entry, search, or seizure and removal as aforesaid." By Stat. 17 & 18 Geo. III. c. 19, s. 1, perpetuated by 32 Geo. III. c. 40, s. 4, and 33 Geo. III. c. 50, s. 4, for the better preservation of fish in rivers, lakes, and inland waters, " no person or persons whatsoever not qualified, except as herein mentioned, [see post, Pt. III.] shall have, keep, or use any net, leape, pische, gaff, spear, or lyster, or other engine, boat, or curragh, (angling rods with lines and hooks excepted,) other than the makers or sellers thereof, and the owners of rivers, or of parts of rivers, for the time being ; Excise Game. 283 and it shall be lawful for any owner of any river or fishery, FISHERIES. or of part of a river or fishery, and every person or per- 17 & 18 Geo. sons by any owner or owners of any river or fishery, or of ' c * any part, &c., for that purpose appointed, to seize, detain, and keep to his or their own use and uses all and every such cott, net, &c., and other engine for catching fish, except as before excepted, which he or they shall find used or laid, or in the custody or possession of any person or persons whatsoever not qualified as herein mentioned, fishing in any river or inland fishery, lake, or inland water whatsoever, without the consent of the owner or owners thereof, given under their hand; and Or search war- for any person or persons whatsoever being thereunto autho- tnere f or by rized by warrant under the hand and seal of any justice of J P. as herein, the peace of the same county, county of the city, or town, in the day time, to search the houses, out-houses, or other places of any person hereby prohibited to have, keep, or use the same, as shall be suspected to have or keep in his possession or custody any boat or curragh, net, leape, pische, gaff, spear, or lyster, or other engine, except as before excepted, and the same and every or any of them, to seize, detain, and keep, to his and their own use or uses, or otherwise to cut in pieces and destroy, as things by this law prohibited to be kept by per- sons of their condition." By Stat. 27 Geo. III. c. 35, for the preservation of game, GAM*. sect. 9, " it shall be lawful for any person or persons being 27 Geo. III. thereunto authorized by warrant under the hand and seal of c * &> s * 9 * any of his Majesty's justices of the peace for any county, Search may be .,! . ,, . u made under county of a city, or county of a town, within their respective warranto f j. p jurisdictions, to search the houses, out-houses, or other places, for game in th of any higler, cleever, tavern-keeper, or inn-keeper, carrier, hWU>rs&c stage coachman, or chapman, not qualified to take or kill not qualified, game, who shall be suspected upon good and sufficient ground to have or keep in his custody or possession any hare, phea- sant, partridge, quail, land rail, moor game, heath game, or grouse ; and it shall be lawful for any of his Majesty's justices Seizure of game of the peace, within their respective jurisdictions, to take and by J * P * seize any hare, &c., which he shall find in the possession of any person or persons not qualified to take or kill game, and every such person in whose possession such game be found, 284 Search under Statutes. GAME. 27 Geo. III. c. 36. 9 Geo. IV. c. 55. Deer and veni- son. ILLICIT DIS- TILLATION. 1 & 2 Will. IV, c. 55. Officer know- ing or suspect- ing where pri- vate still, &c., is kept may make oath be- fore J. P. who may thereupon grant search warrant. Obstructing search. if he or she shall not prove to the satisfaction of such justice that he or she came fairly and honestly by the same, and bought or received the same from some person or persons qualified to take or kill game, shall forfeit for every such hare, &c., a sum not exceeding 5." If any person unlawfully course, hunt, &c., any deer in any park, paddock, or inclosed land, or if any deer or part thereof, or engine for taking deer, be improperly in the pos- session of any person, it is an offence against the Larceny Act, and a search warrant for the venison, snare, or engine may be granted under the provision, supra, p. 243 ; see 9 Geo. IV. c. 55, ss. 26 and 27, post, Pt. III. By Stat. 1 & 2 Will. IV. c. 55, for preventing illicit distil- lation, sect. 17, "if any officer of excise shall know or have cause to suspect that any private or concealed still, or any back, vat, cooler or other vessel used in illicit distillation, or any spirits, low wines, or wort, or wash, or other materials pre- paring or prepared for distillation, are set up or kept in any house or place, or that any illegally made malt, or any corn or grain making into malt, is kept or deposited in any house or place, and shall make oath thereof before one or more jus- tice or justices of the peace of the county, city or place where such officer shall suspect the same to be set up and kept or deposited, setting forth the ground of such suspicion, it shall be lawful for the justice or justices before whom such oath shall be made, if he or they shall judge it reasonable, by spe- cial warrant under his or their hands and seals to authorize and empower such officer, by day or by night, to break open the doors or any part of such house or place where he or they shall so know or suspect that such private or concealed still, back, vat, cooler or other vessel, spirits, low wines, wort, wash or materials for distillation, or malt, or corn or grain making into malt, is or are so set up, or kept, or deposited ; and to enter into such house or place and to seize all and every such stills, &c., and all such spirits, &c., which shall be there found and discovered, and either to detain or keep the same in the house or place where found, or to remove the same to the office of excise next to the place where the same shall be found." Penalty on occupier or owner, for obstructing officer or Illicit Distillation Libels. 285 persons acting in his aid, 100. By sect. 1 8, officers of excise ILLICIT Dis- may search for and seize private stills, &c., without a warrant ; and by sect. 19, persons found in any place where illegal dis- * c ^ Will. IV. tillation or malting is in process, shall be arrested and taken Qr earch may before a justice. By sect. 21 , " it shall be lawful for any J. P. be made with- who shall find any still, still-head or worm of a still in posses- out warrant - sion of any person, without a sufficient license being produced J - p - &c - ma y . J r . seize still or for keeping the same, and tor any landlord or proprietor 01 parl thereof, or any land or premises on which the same shall be found, or his materials for steward or bailiff, to seize such still, &c., and to convey and de- tioQ liver the same to the next officer of excise, who shall take such still, &c., into his custody, and secure the same in like manner as if such still, &c., had been seized by him ; and it shall, in like manner, be lawful for any J. P., landlord or proprietor, or steward or bailiff, to seize any low wines, singlings, wort, wash, pot-ale or any corn or grain making into malt, in the possession of any person not entitled by law to have the same in possession, and to spill and destroy all such low wines, &c." By Stat. 60 Geo. III. c. 8, for punishing blasphemous and MBBLS. seditious libels, sect. 1, the judge or court before whom aver- 60 Geo - m - diet is given, or in which a judgment by default is had against ' a person for composing, printing, or publishing a blasphemous seditious and or seditious libel, may order the seizure and detention, in such blasphemous manner as shall be directed in such order, of all copies of the order of the y libel in the possession of such person or any other person, court be seized, named in the order, for his use, evidence upon oath having been given, that a copy or copies is, or are, in the possession of such other person, for such use; " and in every such case it shall be lawful for any justice of the peace, or for any consta- Justices, &c. ble, or other peace officer acting under any such order, or for r d any person or persons acting with, or in aid of any such search. J. P. constable, or other peace officer, to search for any copies of such libel, in any house, building or other place what- soever, belonging to the person against whom any such ver- dict or judgment shall have been had, or to any other person so named, in whose possession any copies belonging to the person against whom, &c., shall be ; and in case admission shall be refused, or not obtained within a reasonable time after 286 Search under Statutes. How copies seized are to be disposed of. MILITARY NE- 3&4Vict. c. 6, s. 66. Penalty for cer tain offences ties. and search war- gr anted ^y C J P. on oath. NEWSPAPER. 6&7 Will. IV. c. 76, s. 22. unstam ed ** newspapers are suspected to be, or to have been printed, sold, &c ' j t sna ii h ave b een rst demanded, to enter by force, by day, * nt an y SUC k k use j kc-> anc * to carrv awa y all copies of the libel there found, and to detain the same in safe custody," until they shall be restored, or disposed of according to any further order ; by s. 2, if the judgment be arrested or reversed they shall be restored to the person from whom they were taken, free of expense, and without payment of any fee ; and if final judgment be entered on the verdict, they shall be dis- posed of as the court shall order. By the annual Mutiny Act, " any person who shall unlaw- fully have, in his or her possession or keeping, or who shall , . ' A . , knowingly detain, buy, exchange or receive, from any soldier or deserter, or other person, on any pretence whatever, or shall solicit or entice any soldier, or shall be employed by any so ^i er knowing him to be such, to sell any arms, ammunition, clothes or military furniture, or any provisions, or any sheets or other articles used in barracks, provided under barrack regulations, or regimental necessaries, or any article of forage provided for any barrack belonging to his Majesty's service, or shall change the colour of any clothes as aforesaid," shall forfeit for every such offence, not exceeding 20, or less than 5, together with treble the value of all or any of the articles, an( * ^ or a secon( ^ on ence mav a ^ so be imprisoned as herein ; " and if any credible person shall prove on oath before a J. P. a reasonable cause to suspect that any person has in his or her possession, or on his or her premises, any property of the de- scription hereinbefore described, on or with respect to which any such offence shall have been committed, the justice may grant a warrant to search for such property, as in the case of stolen goods." By Stat. 6 & 7 Will. IV. c. 76, amending the laws relating to the duties on newspapers and advertisements, s. 22, it is enacted, " that upon information given before any justice of the peace, opon the oath of one or more credible person or persons, (which oath such justice is hereby empowered and required to a( j m i n i s t e r,) that there is reasonable and probable cause to . .... suspect any person of being, or having been at any time within one calendar month last preceding, in any way knowingly Military Necessaries Newspapers. 287 and wilfully engaged or concerned in printing, publishing, NEWSPAPER. vending or otherwise distributing any newspaper not duly 6&7 Will. IV. stamped, as required by law ; or of being unlawfully possessed c< of any newspaper not duly stamped as aforesaid ; or that any printing press, engine, machine, types or other implements or utensils for printing is, or are, or have been by any person knowingly and wilfully used within the time last aforesaid, for the purpose of composing or printing any newspaper not duly stamped as aforesaid ; or that any such newspapers are sold or Search warrant distributed, or kept for sale or distribution, or are unlawfully by j P< as deposited in any place ; then and in every such case it shall be herein ; lawful for such justice and he is hereby required, upon the application of any officer of stamp duties, to grant a warrant under his hand, directed to any constable or other peace offi- cer, or any officer of stamp duties or other person or persons named in such warrant, authorizing and empowering him or them, with such other person or persons as he or they shall call to his or their assistance, to enter and search in the day time any house, room, shop, warehouse, out-house, building or other place belonging to such suspected person, or where such person shall be suspected of being engaged or concerned, or of having been engaged or concerned in the commission of any such illegal act as aforesaid, or where any such printing press, engine, machine, types, implements or utensils, suspected to be or to have been used for any such illegal purpose as afore- said, shall be, or be suspected to be, or where any such news- papers as aforesaid are suspected to be sold or distributed, or kept or deposited as aforesaid ; and if, upon any such search as and seizure aforesaid, any newspaper not duly stamped as aforesaid, or any ma " e * printing press, &c., which shall have been used in printing or publishing any such newspaper as aforesaid, within the time last aforesaid, shall be found, it shall be lawful for the person or persons named in such warrant, and his or their assistants or assistants, to seize and take away the same together with all other presses, engines, machines, types, im- plements, utensils and materials for printing belonging to the same person, or which shall be found in the same house, room, shop, warehouse, out-house, building or place;" and all such Search under Statutes. NEWSPAPERS, presses, &c., shall be forfeited, and proceeded against to con- 6 & 7 Will. IV. demnation in the Exchequer, as in the case of goods seized for breach of customs or excise laws. By sect. 23, " upon the exe- cut ^ on ^ an 7 warrant granted under this Act, authorizing any search to be made in any house, room, &c., if on demand of admittance and notice of any such warrant the door of any such house, &c. shall not be forthwith opened, it shall be lawful for the constable or other peace officer having the execution of such warrant, or for any other person or persons to whom such warrant shall be directed, in the presence of any constable or other peace officer, in the day time, to break open such door and to enter thereat, for the purpose of making such search as aforesaid." Penalty for refusing admission to any person duly authorized, or resisting the search, or seizure or arrest, Constables re- 20. And all constables and other officers shall be and are hereby required to be aiding and assisting in the execution of all warrants issued under this Act. Penalty for neglect or refusal 10. PAWNBRO- By Stat. 26 Geo. III. c. 43, for establishing the business of a pawnbroker, sect. 13, it is provided, " for the better enabling 43 e ' 13 ' all persons to recover their goods and chattels, which shall be On oath of unlawfully pawned or pledged to, or exchanged with any per- goods having son or persons whomsoever, that if the owner or owners of ? 6 obtained 'and any g oods or cnattels unlawfully pawned, or pledged or ex- suspected to changed, shall make out either on his, her, or their oath, or by have been ^he oath of any credible witness, or (being of the people called taken in pawn Quakers) by solemn affirmation before any justice or justices search warrant O f the peace within his or their jurisdiction, that such owner or owners has or have had his, her, or their goods or chattels unlawfully obtained or taken from him, her, or them, and that there is just cause to suspect that any person or persons within the jurisdiction of any such justice or justices hath or have knowingly and unlawfully taken to pawn, or by way of pledge, or in exchange, any goods or chattels of such owner or own- ers, and without the privity of or authority from such owner or owners thereof, and shall make it appear upon oath to the satisfaction of any such justice or justices, probable grounds for such the suspicion of the owner or owners thereof, then, Goods Pawned. 289 and in any such case, it shall be lawful for said justice or justices of the peace within his or their jurisdiction, to issue his or their warrant or warrants for searching, in the daytime, j? 6 ^ 6 ^' *g I the house, warehouse or other place of any such person or persons who shall he charged upon oath or affirmation, as aforesaid, as suspected to have knowingly and unlawfully re- ceived or taken to pawn, or by way of pledge, or in exchange, such goods or chattels without the privity of, or authority from the owner or owners thereof; and if the occupier or an< * door may occupiers of any house, warehouse or other place wherein any admission' be such goods or chattels shall, on oath or affirmation as afore- refused. said, be charged or suspected to be, shall, on request made to him, her, or them, to open the same by any peace officer authorized to search therein, by warrant from a justice or jus- tices of the peace for the jurisdiction in which such house, &c., shall be situate, refuse to open the same, and permit the same to be searched, it shall be lawful for any such peace officer to break open any such house, warehouse or other place, in the day time, and to search therein for the goods or chattels sus- pected to be there, doing no wilful damage." Penalty for opposing or hindering such search 5, and imprisonment in default of payment. " And if upon the search of the house,ware- Goods stolen house or other place of any such suspected person or persons an( * * hus reco " as aforesaid, any of the goods or chattels which shall have restored to been so knowingly and unlawfully pawned, pledged or ex- owner as herein. changed as aforesaid, shall be found, and the property of the owner or owners from whom the same shall have been unlaw- fully obtained or taken, shall be proved and made out to the satisfaction of such justice or justices by the oath of one or more credible witness or witnesses, or by solemn affirmation as aforesaid, or by confession of the person or persons charged with any such offence, any such justice or justices shall there- upon cause the goods and chattels found on any such search, and unlawfully pawned, pledged, or exchanged to be forthwith restored to the owner or owners thereof." See also 9 Geo. IV. c. 55, s. 56, ante, p. 243; but the provision for restoring the property to the owner contained in that Statute, authorizes its 290 Search under Statutes. PUBLIC ES * c. a.'"' I J. P., &c., or constable au- thorized by during pro- hibited hours, restitution only after the thief or receiver shall have been prosecuted to conviction ; see sect. 50. By Stat. 3 & 4 Will. IV. c. 68, regulating the sale of spirits, &c., by retail, sect. 15, "it shall be lawful for any jus- tice of the peace, or for any chief constable, or for any church- J. P., as herein, warden or overseer hereinafter mentioned, or for any constable may enter pub- authorized for the purpose by any such justice within the lie houses ,.._,...,..' , , limits of his jurisdiction, to enter into any house or place kept by any person selling or having a license to sell spirits, wine, or beer by retail at any time between the hours of 11 on Saturday night and 2 in the afternoon of Sunday, [and see post, p. 291,] or between 11 on any other night and 7 in the morning, and to remove from and put out of such house or place any person who shall be so found within such prohibited hours in such house or place, (not being a lodger or inmate of such house or place,) and who shall appear to be, or to have recently been drinking, tippling, or gaming therein; and if any such person shall not, when thereto required by such J. P. chief or other constable, churchwarden or overseer as aforesaid, remove from and quit such house, or shall forcibly resist such justice, &c., it shall be lawful for any constable, churchwarden, or overseer to apprehend and take into cus- tody any such person so offending, and to carry and convey, or cause to be carried and conveyed, every and any such per- son so apprehended, before any J. P. within whose jurisdic- tion such house or place shall be situate, to be dealt with ac- cording to law ; and every such person who shall so neglect or refuse to remove from or quit such house, or shall so forcibly resist such justice, constable, churchwarden or overseer, being Penalty on con- duly convicted of such offence, shall thereupon for every such viction. offence forfeit any sum not exceeding 20s. nor less than 5s. ; and if any offender so convicted, shall not forthwith pay the sum so forfeited, such offender shall be committed to H. of Cor. If a soldier of- for not exceeding one week." By sect. 16, if any offender so tends, justice to conv j cte( } ^ e a so \fa eT on f u fl pa y an d attached to any regiment communicate > L J the same to the within the J. P.'s jurisdiction, he shall communicate such conviction forthwith to the commanding officer of such regi- ment, and the offender shall be detained until delivered over to the commanding officer or his order. Sect. 17, " if any person Persons not quitting, or re- sisting justices, &c., may be ap prehended. Public Houses. 291 selling or licensed to sell spirits, wine or beer by retail, or any PUBLIC person aiding or assisting such retailer, shall prevent or endea- vour to prevent, by threats or violence or otherwise, any such c 68< justice, or chief or other constable, churchwarden or overseer, Penalty on per- in that behalf authorized under this Act, from entering any sons opposing the entry ot house or place, or from searching lor any such person or persons : us tices, &c., as aforesaid, or shall assault or otherwise resist any such jus- tice or chief, &c., as aforesaid, every person so offending shall forfeit a sum not exceeding 10." Sect. 18^ " if any person Penalty for re- selling or licensed to sell spirits, wine or beer shall, for the space f usin or d ? la y often minutes after demand made of entrance, delay or neglect j.p., &c. to admit any justice or chief, &c., as aforesaid, into any house or place of such person for the purpose of making such search as aforesaid, such person so offending shall forfeit a sum not exceeding 2." By Stat. 6 & 7 Will. IV. c. 38, s. 4, no person selling or 6 & 7 Will. IV. licensed to sell beer or cider, spirits or wine, by retail, to be c * 38< Sale , on J _. Sundays further drunk or consumed on the premises, shall keep his house or prohibited as other place of sale, (not being a booth or tent at any lawful herein. or accustomed fair, or at any public races,) open for the sale of spirits, wine or beer, nor shall sell or retail spirits, &c., nor shall suffer any spirits, &c. to be there drunk or consumed at any time between 9 o'clock in the night of Sunday, and 9 in the morning of Monday ; but this is not to prohibit selling to a traveller. And by s. 5, no person selling or licensed to sell Booths, &c., at beer or cider, and spirits or wine, by retail, to be drunk or con- faus a " d [ aces not to be kept sumed on the premises or otherwise, shall have or keep any open, between booth or tent or other place, not being a house duly licensed for Cettai 1 n hours on . . any day, or at the sale of spirits, at any lawful or accustomed fair, or at any a ii O n Sundays public races,open for the sale, or shall sell, &c., spirits, &c., be- or Holidays. tween 6 o'clock in the evening and 9 in the morning, at any time from the 1st of April to the 1st of following October, or between 3 p. M. and 9 in the morning, from 1st of October to 1st of April, nor at any time whatever on any Sunday, Good Friday, Christmas Day or any day appointed for a public fast or thanksgiving ; and this extends to all sales to travellers or others. Sect. 6, "it shall be lawful for any justice of the Justices and peace, or for any chief constable, or for any churchwarden or constables ma y enter into any overseer in 3 & 4 Will. IV. c. 38, or hereinafter mentioned, house, &c., in 292 Search under Statutes. PUBLIC HOUSES. 6&7 Will. IV. c. 38. which spirits or beer is sold, and put out persons tip- pling or gam- bling at pro- hibited hours. Persons not quitting, or re- sisting justices, &c., may be apprehended. If a soldier of- fends, justice to communicate the same to his commanding officer. Retailers shall not permit ille- gal asemblies in or for any constable authorized for the purpose by any such justice, within the limits of his jurisdiction, to enter into any house, booth, tent or other place kept by any person selling or having a license to sell spirits wine or beer by re- tail, at any time or hour during which the sale of spirits, wine or beer is by this Act prohibited therein, and to remove from and put out of such house, booth, tent or other place any person who shall be found within such prohibited hours in such house, booth, &c., (not being a lodger or inmate thereof,) and who shall appear to be or to have recently been drinking, tippling or gaming therein ; and if any such person shall not, when thereto required by such justice of the peace, chief or other constable, churchwarden or overseer as aforesaid, re- move from and quit such house, booth, tent or other place, or shall forcibly resist such justice, constable, churchwarden or overseer, or shall be found drunk therein, it shall be lawful for any constable, churchwarden or overseer to apprehend and take into custody any person so offending, and to carry and convey or cause to be carried and conveyed every and any such person so apprehended before any justice of the peace within whose jurisdiction such house, booth, &c., is situate, to be dealt with according to law; and every such person who shall so neglect or refuse to remove from or quit such house, booth, tent or other place, or shall so forcibly resist such justice, constable, churchwarden or overseer, or be so found drunk in such house, booth, tent or other place, being duly convicted of such offence, shall thereupon for every such offence forfeit any sum not exceeding 20s. nor less than 5s. and if any offender so convicted shall not forthwith pay the sum so forfeited he shall be committed to the common gaol, or any H. of Cor. or bridewell, of the county or place for any time notexceeding one week." Sect. 7, if offender so convicted be a soldier on full pay and attached to any regiment being within the justice's jurisdiction, he shall forthwith communi- cate it to the commanding officer of such regiment, and the offender shall be detained until delivered over to him or his order. Sect. 8, "no person licensed to sell spirits by retail, to be consumed on the premises or otherwise, shall knowingly per- Public Houses- 293 mitany body, union, society or assembly of persons declared PUBLIC to be illegal or prohibited by any law in force at the time of ' the passing of this Act, or any body, union, society or assem- c . 33. bly of persons, who shall require from persons about to be their houses, or admitted or being admitted thereto, or into the said body, &c., han out fla 8 s any oath, test, solemn declaration or affirmation not expressly therefrom, allowed and required by law, or who shall observe on the admission of members, or on any other proceeding any reli- gious or other solemn mystery, rite, or ceremony, or seeming or pretended religious or other solemn, &c., not sanctioned by law, or who shall wear, bear or display on occasions of their meeting or assembling together, any arms, flags, colours, symbols, decorations or emblems whatsoever, to meet or as- semble, or hold a meeting or assembly in the house or other place of sale of such person so licensed ; nor shall, on any oc- casion or pretence whatever, hang out or display, or suffer to be hung out or displayed, on, from, or out of any such house, or other place of sale, any sign, flag, symbol, colour, decora- tion or emblem whatsoever, except the known and usual and accustomed sign of such house or other place of sale usually fixed thereto in the way of business." But nothing herein con- Freemasons or tained to extend to any meeting of persons consisting exclu- Friendly Bro- sively of Freemasons, or members of the society called the s * Friendly Brothers. Sect. 9, " it shall be lawful for any justice of J. P. &c., or the peace, or for any chief constable, or for any constable au- constaljle au- . ' . . thonzed by such thonzed for the purpose by any such justice or chief constable, j.p. to enter any within the limits of his jurisdiction, to enter into any house or P ublic house , , ,,. , . ,. ,, when informa- place, kept by any person selling, or having a license to sell t j on has been spirits, wine or beer by retail, to be consumed on the premises or 8 iven > of an y otherwise, in which such justice or chief constable shall, from &J. C information on oath or otherwise, have reason to believe or sus- pect that any such body, union, society or assembly, is met or held, or on or from which any such sign, flag, symbol, colour, decoration or emblem, shall be hung out or displayed, and to remove from and put out of such house or place, any per- son who shall be found met or assembled therein, with or as members of, or belonging to any such body, &c., and to remove and take away and destroy, if he shall think proper, any arms, banners, flags, colours, symbols, emblems or deco- 294 Search under Statutes. PUBLIC rations, found on or with such persons, or hanging out or dis- played on or from such house or other place, and to require c. 38. ' every such person so found, to state truly to him his name and place of abode, and to require the immediate inspection of, and take possession of any book of proceedings, or other book used at such meeting, or brought thereto, and to detain such book for such time as he may think proper, not exceeding fourteen Persons not days ; and if any such person shall not, when thereto required quitting or re- ^ ^^ j us ^ ce o f the peace, chief or other constable as afore- sisting Justice, \ &c.,may be ap- said, remove from and quit such house, or if any person prehended. whatsoever shall forcibly resist such justice or constable, it shall and may be lawful for any constable to apprehend and take into custody any person so offending, and to carry and convey, or cause to be carried and conveyed, every and any such person so apprehended before any justice of the peace, within whose jurisdiction such house or place shall be situate, Penalty. to be dealt with according to law ; and every such person who shall so neglect or refuse to remove from or quit such house, or shall so forcibly resist such justice, constable, churchwar- den or overseer, or who shall refuse to state his name and place of abode, or shall not truly state the same, being duly convicted of such offence, shall thereupon for every such of- fence forfeit any sum not exceeding 20s., nor less than 5s. ;" and if he shall not forthwith pay the sum, shall be committed to the gaol, bridewell, or H. of Cor. for not exceeding one week. Penalty on per- Sect. 10, "if any person selling or licensed to sell spirits, sons selling beer wine or beer by retail, or any person aiding or assisting such fhe en^fyof ^ retailer, shall prevent or endeavour to prevent by threats or vio- justice. lence, or otherwise, any such justice, or chief or other constable, church war den, or overseer in that behalf, authorized under this Act, or the said Stat. 3 & 4 Will. IV., from entering any house or place, or from making any search therein authorized by this Act, or shall assault or otherwise resist any such justice or chief, &c., as aforesaid, every such person so offending shall forfeit a sum not exceeding 10 ;" provided nothing herein shall exempt any person so offending, or any other person re- sisting said justice, &c., on any occasion in the exercise of any power under this Act, from any other punishment or penalty, Public Houses. 295 by information, indictment or otherwise, to which he or she may be liable by law, or be construed to affect any law pro- g & 7 will. IV. viding punishment for such offence. Sect. 11," if any person c. 38. selling, or licensed to sell spirits, wine, or beer by retail, shall, Penalty for re- on demand made of entrance, delay to admit any justice or 8 chief, &c., as aforesaid, into any house or place of such person, for the purpose of making such search as aforesaid, or for any other purpose for which by this Act or any other law in force in Ireland, such justice, chief, &c., is or may be entitled to admittance into such house or place, such person so offending shall forfeit and lose a sum not exceeding 2, unless proof shall be made to the satisfaction of two Js. P. who may hear the complaint, that there was reasonable cause for giving such delay." See also, ante, p. 291. Sect. 17 empowered justices at petty sessions, under certain restrictions, to grant warrants to enter unlicensed premises where spirits are suspected to be sold, but by 2 & 3 Viet. c. 79, s. 1, "it shall be lawful for any two or 2 &3 Viet. c. more Js. P., whether in or out of petty sessions, upon being satisfied, by the personal examination on oath of a cre- dible witness, that there is reasonable ground for suspecting On oath of sus- that spirits are sold or kept for sale, in any house or place P 1C1 l , within the county, not licensed for the sale thereof, or by some without a person not having a license to sell spirits, in or at such house llcense ^ warrant may be granted or place, to grant a warrant under their hands and seals, a s herein. authorizing one of such Js., of any other J. P., or, within the police district of Dublin metropolis, any superintendent inspector of police, or in any other part of Ireland, any sub- inspector, or chief constable of police, with his assistants, res- pectively to enter such house or place at all times in the day, between sunrise and sunset, to search for spirits, aud if any such shall be found in such house or place without a permit or other legal authority justifying the keeping thereof, to seize and deliver the same to the next excise officer of the district, and In force for such warrant shall continue in force for seven days from the seven days * date thereof, and shall be a sufficient authority to the J. P., superintendent, inspector, sub-inspector, or chief constable therein named and his assistants respectively in his presence, g e j zure O f 8 pj. to enter into such house or place, and seize all spirits there rits. 296 Search under Statutes. PUBLIC HOUSES. 2 & 3 Viet, c. 79. Warrant by J. P. to enter un- licensed premi- ses, without a sign or notice posted thereon. Persons found there may be apprehended. Penalty. Penalty on per- sons delaying to admit jus* tice, &c. illegally being, and to carry away and deliver the same to the next revenue officer, to be dealt with according to law." By sect. 4, " if during the space of five years from the passing of the Act, any officer or constable of police shall make oath in writ- ing, to be by him taken and subscribed before a J. P., within his jurisdiction, (which oath every such justice is hereby em- powered to administer and receive,) that he the said officer or constable has good reason to believe that spirits are retailed or sold without a license, or kept for sale without license in any room, house, or other place within the said district, at or over the outer door of which room, house, or place, no sign or notice is posted or written, importing that the owner or occupier thereof is licensed to sell spirits, it shall be lawful for such justice, by warrant under his hand and seal, to autho- rize and empower, within the police district of Dublin metro- polis any justice or superintendent inspector of police, and in any other part of Ireland any justice or sub -inspector or chief constable of police, to enter into any such room, house, or other place as aforesaid, at or over the outer door of which no such sign or notice shall be posted or written ; and if any person shall be found to be or to have recently been drinking or tippling on such unlicensed premises as aforesaid, at or over the outer door of which no such sign or notice shall be posted or written, and in which spirits shall be then sold or kept for sale, such person shall and may be lawfully appre- hended and forthwith carried and conveyed before the nearest J. P., and upon conviction of his having been found in such unlicensed premises, at or over the outer door of which no such sign or notice shall be so posted or written, and in which spirits were then sold or kept for sale, and to have been so drinking or tippling there, shall forfeit and pay any sum not exceeding 5s., and in default of payment thereof shall be com- mitted to the common gaol, H. of Cor. or bridewell for any time not exceeding twenty-four hours." Sect. 5, "if any person occupy ing such premises, or any person aiding or assisting such occupier, on demand made of entrance by such justice, super- intendent, inspector, sub-inspector, or chief constable res- pectively, and on his stating that he seeks to enter by virtue of a warrant from a J. P., (which warrant he shall produce Public Houses. 297 when required so to do,) shall delay to admit such jus- BOUSES. tice, &c., into such premises, for the purpose of executing 2 & 3 yict such warrant as aforesaid, such person shall forfeit and pay a sum c . 79. not exceeding 2, unless proof shall he made to the satisfaction of two justices who may hear the complaint, that there was rea- sonable cause for giving such delay." Provided if any person Maliciously shall maliciously or without prohahle cause make such oath, or r a en "ering, or enter such premises, or take or apprehend any person who shall arresting. not be or shall not have recently been tippling therein, he shall, in case the party aggrieved shall so elect, pay to such party a sum not less than 1 nor more than 5, in lieu of any damages to which such party may be entitled, recoverable by civil bill before the assistant barrister, &c. " Provided also that for the what sufficient purpose of such conviction as last aforesaid, proof that spirits evidence of >r , , want of license. were so sold or kept for sale in such room, house or place, and that at or over the outer door thereof no such sign or notice was posted or written where such person was so found therein, shall be sufficient evidence that no license then existed for selling spirits there, until the contrary be proved." Sect. 6. Provided nothing herein shall extend to prohibit Persons duly any person duly licensed to sell beer, cider, or perry by retail, to bee^&c.^rnay be drank or consumed in his, her, or their house or premises, carry on busi or any retailer of spirits (not being a retailer, &c., licensed as s ' a grocer to trade in coffee, tea, cocoa nuts, chocolate or pep- &c. per,) or any retailer of foreign wine, or retailer of sweets or made wines, or of mead or metheglin, he or she being duly licensed respectively for such purpose, to carry on his or her trade or business in booths, tents or other places, at the time and place and within the limits of holding any lawful and accustomed fair by virtue of any law or Statute in that behalf, or any public races ; or shall authorize the seizure of spirits in any such booth, &c., within the limits aforesaid, in which such person so licensed shall so carry on his trade, or the taking or apprehending of any person therein at any hour during which the sale of spirits is not prohibited by law. For the proceedings in enforcing penalties under these Recovery of Acts, relating to public houses, seepost, Pt. III. penalties re- latme to public By Stat. 3 & 4 Will. IV. c. 53, for the prevention of smug- houses. 2 Q 298 Search under Statutes. SMUGGLING. 3& 4 Will. IV, c. 53. Custom-house officers may make search as herein. But if party re- quires he shall be brought be- fore J. P., &c., who is to judge if there be suf- ficient grounds for searching him. STAMPS. 56 Geo. III. c. 56. Warrant may be granted by Commissioners of Stamps, and search made with assistance of J. P. or peace officer. gling, sect. 34, officers producing their warrant or deputation, if required, may go on board any vessels within the limits of any port in the kingdom and make search, and they may also search any person or persons either on board, or who shall have landed from any vessel, provided such officer or officers shall have good reason to suppose that such person or persons hath or have any uncustomed or prohibited goods secreted about his, her, or their person or persons; but by sect. 35, before any person shall be searched by any such officer or officers, it shall be lawful for such person to require such officer or officers to take him or her before any justice of the peace, or before the Collector, Comptroller, or other superior officer of the Customs, who shall determine whether there is reasonable ground to suppose that such person has any uncus- tomed or prohibited goods about his or her person, that then such justice, &c., shall direct such person to be searched in such manner as he shall think fit ; but if it shall appear to such justice, &c., that there is not reasonable ground to sup- pose that such person has any uncustomed or prohibited goods about his or her person, that then such justice, &c., shall forthwith discharge such person, who shall not in such case be liable to be searched ; and every such officer or officers as aforesaid is and are hereby authorized and required to take such person, upon demand before any such justice, &c., de- taining him or her in the meantime ; provided that no per- son being a female shall be searched by any other person than a female duly authorized by the Commissioners of his Majesty's Customs. The Commissioners of Stamps are authorized to grant a search warrant by 56 Geo. III. c. 56, s. 21, which enacts, that " it shall and may be lawful to and for any person or persons authorized thereto by the said Commissioners of Stamps, or any one or more of them, under hand and seal, and with the assist- ance of a magistrate or peace officer to enter in the day time into the house or habitation of any distributor of stamps, or person in charge as such, or sub-distributor, or other person or persons acting for or under such distributor, or person in charge as such, or into the house of any person having a Sm uggllng Stamps. 290 license to sell stamps, or having had such license in force at STAMPS. anytime within six calendar months then last past; and if ^ ^Q' I1L on demand and notice of such warrant the door of the house Breakin doorg in which such distributor or other person as aforesaid shall dwell, or any inner door thereof shall not be opened, then with the assistance and in the presence of such magistrate or peace officer to break open the same respectively, and to seize and to take into his or their possession all stamped vellum, parch- ment, or paper, which shall be found in the house, custody, or possession of such distributor or other person as aforesaid ; and all magistrates and peace officers are hereby required, upon the request of any person or persons acting under such warrant, to aid and assist him and them in the execution thereof; and it shall be lawful for all and every such Com- missioner or Commissioners to grant such warrant to any person or persons whenever and as often as he or they shall think fit." By sect. 22, an acknowledgment is directed to be given for the stamps so seized. See also 55 Geo. III. c. 101, s. 12. By sect. 39, " on complaint made before any one justice Houses, &c., of of the peace upon the oath of one credible witness, that there persons sus- . . p pected of is just cause to suspect any one or more person or persons of having forged being or having been concerned in making any false or coun- dies, or forge- terfeit type, die, mark, or stamp, or of unlawfully having any "^"office such type, die, mark or stamp, in his or her possession; or may be sea re h- of unlawfully marking or impressing any vellum, parchment, ed UD J er * r ' or paper, with any such device, mark, or impression, or of unlawfully having in his or her possession any vellum, parch- ment, paper or other matter with any counterfeit device, mark or impression thereon ; or of unlawfully or fraudulently marking or impressing, or causing or procuring to be mark- ed or impressed, or of aiding, abetting, or assisting in marking or impressing, or in causing or procuring to be marked or impressed any stamp, mark, or impression, on any vellum, parchment, paper, or other matter, not delivered to him under the authority of the Commissioners of Stamps ; or of knowingly having in his or her possession any vel- lum, parchment, paper, or other matter, as aforesaid, un- lawfully or fraudulently stamped or marked contrary to any of the purposes or regulations contained in this Act, or 300 Search under Statutes. in any other Act or Acts relating to the stamp duties in Ireland, g T - then and in each and every or any of the said cases it shall and may be lawful to and for such justice by warrant under his hand to cause the dwelling-house, room, workshop, out- house, or other building, yard, garden, or other place belong- ing to such suspected person or persons, or where any such person or persons shall be suspected to carry on any such marking or counterfeiting, or to secrete any such type, die, mark, or stamp, or any such vellum, parchment, paper, or other matter, or any of the machinery necessary or applicable for or to the making any such impression as aforesaid, to be searched for any such type, die, stamp, mark, vellum, parch- ment, paper, machinery, or other matter or thing whatsoever ; Seizure may be and if any of the said several matters and things shall be found in any place so searched, or in the custody or possession of any person or persons whomsoever, not having the same by some lawful authority, it shall and may be lawful to and for the person or persons so finding the same, to seize, and he and they is and are hereby authorized and required to seize the same respectively, and to carry the same forthwith to the justice by whom such warrant shall be granted, or to any other justice and disposed of of the peace of the county, city, district, or place where the as herein. same shall be seized, who shall cause the same to be secured and produced in evidence against any person or persons who shall or may be prosecuted for any of the offences aforesaid, and afterwards all and every the said matters and things so seized, whether so produced in evidence or not, shall by order of the court, or by order of some justice of the peace, in case there shall be no such trial, be defaced or destroyed, or other- wise disposed of, as such court or such justice shall direct." PUBLIC STORES, By Stat. 39 & 40 Geo. III. c. 89, s. 11, it shall be lawful 39 & 40 Geo. for any commissioner of the navy, ordnance, or victualling, .II. c. 89, Eng. W | 1Q ^ Qr ^ purposes herein after mentioned, may act in every missionersTs" respect as if he were a J. P. for the place where he is resident herein on oath or into which his warrant is issued, or for any J. P. for any sus'e^teTto be count y' c * tv > division, town corporate, liberty or place within concealed in this kingdom, upon the oath of one or more credible person any place ; or persons, that there is reason or cause to suspect, that any navy, ordnance, or vitualling stores, or goods belonging to his Public Stores. 301 Majesty, his heirs or successors, are concealed in any dwell- PUBLIC STORES. ing-house, warehouse, workshop, out-house, yard, garden, or other place, or on board any ship, vessel, barge, boat, or other craft, by warrant under his hand and seal, to cause every ma y issue . . n .. , J search warrant, such dwelling-house, &c., or ship, &c., (in whatsoever county, &c., they may be if warrant is issued by a commissioner) to be searched in the day time, by any police officer, constable, head borough, or other peace officer, of the county, division, city, town corporate, liberty, or place in which the premises, ship, vessel, barge, boat, or other craft shall be, or in which the commissioner resides, if the warrant is granted by a commis- sioner ; and in case any stores or goods marked as in this Act, or Offenders to be in Stat 9 & 10 Will. III. c. 41, is mentioned, shall upon such brou g ht before 7 r commissioner search be found to cause the same, and the offender or offen- or j. p. ders to be brought before such commissioner, or justice of the peace, who is hereby required to commit or bind over, or otherwise to deal with such offender or offenders according to law, for such his or their offence ; and that in case upon any such search, or upon any seizure whatsoever of stores or goods marked as aforesaid, any naval, ordnance, or victualling stores, not so marked as aforesaid, shall be found which may reasona- bly be suspected to belong to her Majesty, the party or parties in whose possession or keeping the same shall be found, shall be required to give to the commissioner, or justice of the peace respectively, before whom the said stores or goods shall and may be brought, an account, to the satisfaction of such commissioner or justice, that the same were not embezzled or stolen from any of his Majesty's ships or vessels, yards, store- houses or other places, or that if the same were embezzled or stolen the same had come to the possession of the said party or parties honestly, and without any knowledge or suspicion that the same had been embezzled or stolen, on failure whereof, by a reasonable time to be set by such commissioner or justice jf the peace, the said stores or goods shall thereupon become for- feited, and the parties be guilty of a misdemeanor. The goods Marks used to described in 9 & 10 Will. III. c. 41 , are a cordage of three inches Designate king'* and upwards, wrought with a white thread laid the contrary way, or smaller cordage from three inches downwards with a twine in lieu of the white thread ; or canvass wrought or un- Search under /Statutes. PUBLIC STORES, wrought with a blue streak in the middle ; or any other stores Eng. Stats. with a broad arrow by stamp, brand or otherwise ; and in sec. 1 52Geo III. ^ ^ k 40 Geo. III., canvass marked with a blue streak in c. 12. the middle, or a blue streak in a serpentine form ; or bewper, otherwise buntin, wrought with one or more streaks of raised tape. The foregoing Statutes relating to stores are English Acts, but were extended to Ireland by 52 Geo. III. c. 12. TIMBER. By Stat. 23 & 24 Geo. III. c. 39, for the encouragement 23 & 24 Geo. of planting timber trees, ss. 13 and 14 reciting, that it is usual III. c. 39. with timber stealers to saw and work up as soon as possible the green timber they have illegally possessed themselves of, and that it is not clearly understood, that justices of the peace or those authorized by their warrant have a power by any Act now in force to seize such wooden-ware and wrought up timber as are offered to sale by suspected persons, it is enacted, '* that When suspect- anv j us ti ce of the peace, or person authorized under his hand ed persons have green timber an d sea l f r that purpose, shall have power to seize all fresh wrought in wrought timber, whether wooden-ware, cars, carts, fork or it may be seized s h ve l handles, hoops, ploughs, harrows, or rakes' tails, when by J. P. or per- found in the possession of any person or persons suspected of authorized" having become illegally possessed of the same ; and if such person or persons cannot give a satisfactory account of having procured them honestly, he or they shall be liable to such penalty not exceeding triple the customary value of such wooden-ware, carts, cars, fork or shovel handels, hooks, ploughs, harrows or rakes' tails, so found in their possession, as the said justice shall adjudge, one-half thereof to the use of the poor of the parish, and the other moiety to the infor- mer, or, if there be none, to such sub or petty constable or wood-ranger as shall appear to the justice before whom the offender is convicted to have been most active in carrying the Provided that law into execution." Sect. 14, provides, "that if such per- if the party give son or persons so offering to sale such green wrought timber shalTh av^li- s ^ a ^ &* ve ^ e secur ity of two responsible persons to such jus- berty to sell it. tice or person authorized under him, for his, her, or their appearance before such justice, at a day and hour appointed, in order to exonerate themselves of the charge made against them, relative to such wrought timber, he, she, or they may have liberty to sell the same." Timber Weights and Measures. 303 By Stat. 10 & 11 Car. I. c. 4, s. 8, for the punishment of VAGRANTS. rogues, vagabonds, sturdy beggars, and other lewd and idle * 4 & 1 Car * I< persons, two or more justices of the peace of every county j* p ' . Q certaia were required to assemble, as therein specified, for the better counties may execution of this Act, and some four or five days before their issue sea ; ch warrant for assembling, the said justices, or the most part of them, were vagrants. authorized to issue a general privy search warrant in manner therein directed for the apprehension of vagrants, &c., within their jurisdiction. This Act was repealed by 11 & 12 Geo. III. c. 30; but it has been revived by 13 & 14 Geo. III. c. 46, s. 21, to be in force in four counties, viz., Wexford, Armagh, Wicklow, and King's County; in which counties the Act for providing for the poor, (11 & 12 Geo. III. c. 30,) had not then been carried into execution. By 5 & 6 Will. IV. c. 63, s. 28, " it shall be lawful for WEIGHTS AND T 53. any J. P., at all seasonable times to enter any shop, store, justices and in- warehouse, stall, yard, or place whatsoever within his juris- specters autho- diction, wherein goods shall be exposed or kept for sale, or J," er j er er shall be weighed for conveyance or carriage, and there to exa- shops, &c., and mine all weights, measures, steel-yards, or other weighing ma- ^et\^s and chines, and to compare and try the same with the copies of the measures, imperial standard weights and measures, required or autho- rized to be provided under this Act ; and if upon such exa- mination it shall appear that the said weights or measures are light or otherwise unjust, the same shall be liable to be seized and forfeited ; and the person or persons in whose possession Penalty for the same shall be found, shall, on conviction, forfeit a sum not ha ving such, or exceeding 5 ; and any person who shall have in his or her possession a steel-yard or other weighing machine, which shall on such examination be found incorrect or otherwise unjust, or who shall neglect or refuse to produce for such examination, when thereto required, all weights, measures, steel-yards, or other weighing machines which shall be in his or her posses- sion, or shall otherwise obstruct or hinder such examination, shall be liable to a like penalty." For the other sections of this Act, see post, Pt. III. 304 Taking Informations and Examinations. CHAPTER XL 9 Geo. IV. c. 54. Before any per- son charged with felony, &c., shall be bailed or com- mitted, the jus- tices shall take down the exa- minations, &c., and bind the witnesses to ap- pear. Power to sum- mon witnesses. Recognizance of witnesses. OF THE INFORMATIONS AND EXAMINATION OF THE PRISONER. WHEN the party accused is brought before the magis- trate, it then becomes his duty to take the information of the accuser and his witnesses, and the examination of the accused, and to discharge, bail, or commit the latter, as soon as the nature of the case will admit. Stat. 9 Geo. IV. c. 54, enacts, sect. 2, that two justices of the peace before they shall admit to bail, and one or more justice or justices before he or they shall commit to prison any person arrested for felony or on suspicion of felony, shall take the examination of such person, and the information upon -path of those who shall know the facts and circumstances of the case, and shall put the same, or as much thereof as shall be material, into writing, and the two justices admitting to bail shall cer- tify the bailment in writing; and every such justice shall have authority to summon any person within his juris- diction, whom he shall have reason to consider capable of giving material evidence concerning any such felony or suspicion of felony, and to examine such person on oath touching the same(), and to bind by recognizance all such persons as know or declare anything material touching any such felony or suspicion of felony, to ap- pear at the next court of oyer or terminer or gaol deli- very, or other court at which the trial of such offence (a) The above provision, which authorizes magistrates to summoa witnesses, and the subsequent provision of this section, (infra, p. 305,) which empowers them to commit persons so summoned, who shall refuse to submit to be examined, or to enter into recognizance, are peculiar to the Irish Act ; see 7 Geo. IV. c. 64, s. 2, Eng. Informations and Examinations. 305 is intended to be had, then and there to prosecute and give evidence against the party accused ; and such jus- Examinations tices and justice respectively shall subscribe all such | examinations, informations, bailments, and recogni- zances, and deliver, or cause to be delivered, the same to the proper officer of the court in which the trial is to be, before or at the opening of the court(a) ; and in case any person so summoned shall refuse to submit to such may be corn- examination or to enter into such recognizance, it shall ra be lawful for the justice or justices to commit such person to the public gaol of the county, city, or town, until such person shall submit to such examination, or shall enter into such recognizance, or be discharged by due course of law ; provided that no such examination Examination shall subject the party examined to any prosecution or Jj^ a g a ^~ t penalty, or be given in evidence against such party, save the party, ex- on any indictment for having committed wilful and cor- pe rj ur y. nipt perjury in such examination. It is further enacted, Duty and pow- sect. 3, that every justice of the peace before whom any ^ar'ge oTmis- person shall be taken on a charge of misdemeanor or demeanor. suspicion thereof, shall take the examination of the person charged, and the information upon oath of those who shall know the facts and circumstances of the case, and shall put the same, or as much thereof as shall be material, into writing, before he shall commit to prison or require bail from the person so charged ; and in every case of bailment shall certify the bailment in writing; and shall have authority to bind all persons by recog- nizance to appear to prosecute or give evidence against the party accused, in like manner as in cases of felony ; and shall subscribe all examinations, informations, bail- (a) In fourteen days, at the latest, from the committal, bailment, or taking of such recognizance, if taken at petty sessions ; if taken elsewhere to be transmitted to the next petty sessions and returned with those there taken, 6 & 7 Will. IV. c. 34, ss. 5, 6, ante, p. 91, see post. 2 R 306 Taking Informations and Examinations. ments, and recognizances, and deliver, or cause to be delivered the same to the proper officer of the court in which the trial is to be, before or at the opening of the Courts may fine court, in like manner as in cases of felony. It is fur- glectTic" r tn er enacted, sect. 5, that if any justice shall neglect or offend in anything contrary to the true intent and meaning of any of the provisions of this Act, it shall be lawful for the court to whose officer any such examina- tion, information, evidence, bailment, recognizance, or inquisition ought to have been delivered, and such court is hereby authorized and required, upon examination and proof of the offence, in a summary manner to set such fine upon every such justice as the court shall . . think meet. And it is further enacted, sect. 6, that 1 revisions to apply to all jus- the provisions of this Act relating to justices, shall ap- ply to the justices not only of counties at large, but also of all other juriscKctions. Proceedings At these investigations magistrates may, at their oTprivate" 1 and discretion, either admit or exclude the public ; and J. P. may allow either permit or refuse the parties the privilege of fessTonal Ksist- having professional assistance, whether counsel or attor- ance. neV0 I n practice they usually do allow such assistance if desired, and this indulgence, as well as the admission of the public, is, in most instances, highly proper and convenient(). But it may be sometimes necessary, to prevent the imprudent disclosure of evidence, or for other reasons, to conduct the proceedings in private ; as in the instance of offences committed by numbers in conjunction, when it is expedient to examine each sepa- rately, it may be equally expedient that no one of the confederates shall be informed of what has been dis- closed during the examination of any other, which ob- ject might be frustrated if a stranger had a right to be (a) See fully, ante, pp. 76, 78. Taking Informations and Examinations. 307 present, who might convey information of what passed to the rest(a). When the presence of counsel or attor- Conduct of ney is permitted, he is to act under the control of the ega magistrates, and he has no right to examine or to cross- examine any witness without their permission() ; nor is he entitled to comment on the evidence so as to apply the law to it(c). He is in general allowed to suggest to the prisoner what may be proper for his defence, and if his advice and opinion are desired by the magistrate, it is proper for him to give them ; but he is not entitled to offer any observations upon the case, unless by per- mission of the magistrate. Whether the public be admitted or not, it is how- Publication of ever highly improper that these preliminary proceedings j]^* in should be reported in newspapers. Such publications are obviously most pernicious in prejudicing the public by an ex parte statement before the merits of the case are investigated at the trial, and have been frequently condemned by the Judges, as illegal, in terms of strong disapprobation^). The duty of the justice at this stage of the proceed- Division of Ch, ings will be considered under the following division. I. Of taking the information of the accuser and his witnesses ; II. Of receiving the evidence of accomplices ; III. Detaining the prisoner for further examination ; IV. Procuring the attendance, and enforcing the obe- dience, of witnesses ; V. Taking the examination of the accused; and VI. The evidence of his witnesses. I. When the party accused is brought before the (a) Cox v. Colebridge, 1 Dow. & Ry. M. C. 178, 187 ; S. C. 1 B. & C. 37 ; 2 D. & R. 86. (6) Id. 142. (c) R. v. Borron, 3 B. & A, 432, 438. (d) See Duncan v. Thwaites, 3 B. & C. 583 ; 5 D. & R. 447. R. v. Lee, 5 Esp. 123 ; and whether such reports be correct or not, they are actionable, or they are punishable criminally j id. ibid. 2 Camp. 563 ; R. v. Fleet, 1 B. & Aid. 379 ; 4 B. & Aid. 218. 308 Taking the Depositions Informant and witness to be sworn in the presence of the prisoner. Where original information is New^'urat ne- cessary. magistrate the prosecutor and his witnesses should attend and be sworn or affirmed. The form of oath or affirmation and the profession of faith of the persons to be examined as witnesses have been considered in the preceding chapter(a). But it is further necessary in this stage of the proceedings that the witnesses shall be sworn in the presence of the accused, as their evi- dence is to be given in his presence, and subject to his cross-examination. If, however, as is frequently the case, the original informations, taken at the time the complaint was made, contain a full statement of the case, and the wit- nesses for the prosecution have nothing further to de- pose except to identify the prisoner, it is not usual to require fresh informations to the same facts ; but, in such case, the witnesses are re-sworn in the presence of the prisoner(^) to the 'truth of their former depositions, and also to the additional fact of the identity of the prisoner, which latter statement should then be sub- joined to the original informations. The informations are then read deliberately and distinctly to the wit- nesses in the presence of the prisoner, and the latter invited or permitted to examine the witnesses respecting the matters therein alleged against him ; and the answers made by the witnesses to the questions put by the pri- soner should be accurately written down at the foot of the informations. A fresh jurat is then made to the in- formations ; and this is requisite though nothing addi- tional be elicited from the witnesses by the prisoner's (a) Ante. pp. 161, 162. (ft) Woodcock's case, 1 Leach, 500 j Dingle's case, 2 Leach, 561 ; R. v. Smith, Holt, 614 ; S. C. Russ. & Ry. C. C. 339 ; 2 Stark, N. P. C. 208 ; Attorney General v. Davison, 1 M'Cl. & Young, 169 j Phil. Ev. 569 ; and as to the authority of some older cases on this subject, see ib. 570, n. 1. in Presence of the accused. 309 questions, or though the prisoner decline to examine them, in order that the additional averments of the iden- tity of the prisoner, and that the information has been sworn in his presence and hearing shall be prefixed or subjoined ; and, as above stated, the witnesses must be re-sworn, in the presence of the prisoner, to the truth of their former depositions, and not merely called upon to assert their truth (a). Where fresh or additional informations in support of Taking fresh the charge are to be taken, the attention of the magis- trate is particularly requested to the suggestions which have been already offered, and which are here also ap- plicable, viz., that the oath or affirmation should be administered to the informant and witnesses before the informations are taken(^) ; that the informations contain a. full statement of the actualfacts to which the witnesses depose(c) ; and as nearly as possible in the language used by them(d) ; that they be therefore taken down in the first person(e), divested of technical terms(/), and without the introduction of any matter suggested to the witness, or expressed in any other terms than the wit- ness's natural language (g) ; and that the magistrate be careful to ascertain that the facts deposed to are within the actual knowledge or belief of the witness, and not from hearsay, or surmise(^). The facts proper to be stated in all informations, and the particular facts essential to be stated in particular cases, have also been pointed out(a), and this important subject, so fully treated in a preceding chapter, that it is only necessary here to (a) R. v. Crowther, 1 T. R. 125, which, however, was a case of sum- mary conviction, but see the authorities cited, ante, n. (6), p. 308, and post, 311. (6) Ante, p. 161. (c) Ante, pp. 163167. (d) Ante, pp. 163167. (e) Ante, pp. 163, 164. (/) Ante, p. 164. (g) Ante, pp. 164, 165. (fc) Ante, p. 165. (i) Ante, pp. 169173. 310 Taking the Depositions refer thereto ; concluding with the observation before offered, and which the consideration of this subject will not fail to suggest, respecting the value and im- portance of the magistrate's personal attention to this duty, to the correct execution of which a knowledge of the rules of evidence is requisite, in order that the informations and examination shall be admissible in evi- dence at the trial, and sufficient both in form and sub- stance to serve either of the two important objects for which they are intended, viz., to substantiate the charge against the guilty, or to test and confound the false accuser. Object of taking In this stage of the proceedings the informant and informations m w itnesses are to be sworn or re-sworn, and their evidence presence of the prisoner. given in the presence of the party accused, in order that he may have the advantage of cross-examining them, and of testing their -credit or contradicting their tes- timony ; and in order to enable him to do so efficiently, and with the advantages to be derived from observing the manner in which the evidence is given, the prisoner is usually brought into the room before the examination commences, and permitted to be present during the en- tire time while it is conducted(). This is the usual and regular course of proceeding, and if any part of the Where any part deposition has been taken in the absence of the pri- ^ aS u bee u taken soner, it will not be sufficient merely to read over such in the absence * of prisoner, part in the presence of the prisoner and the wit- -7worn t0 ^ n ess(), but it is necessary also, that the witness shall be re-sworn to the truth of that part of his statement (a) Dingle's case, 2 Leach, 561 ; Woodcock's case, 1 Leach, 502 ; 2 Russ. Cr. L. 660; Phill. Ev. 568, 569, and note; and more fully id. 5th edit. p. 370, &c. ; 2 Stark, Ev. 487, 488. Nothing should be returned as a deposition unless thus taken in the prisoner's presence ; R. v. Arnold, 8 C. &P.621. (&) See R. v. Forbes, Cor, Chambre, J., Holt's N. P. C. 599, note, post, pp. 311, 312. in Presence of the accused. 311 in the prisoner's presence, and an opportunity given to the latter of cross-examining him upon oath ; otherwise such deposition will not afterwards be admissible in evidence(a). The strictness with which this rule is Strictness of adhered to, in admitting or rejecting depositions of witnesses at the trial, is exemplified in the following case. It appeared that the witness, whose deposition was offered in evidence, had been sworn, and part of his deposition taken by the magistrate in the absence of the prisoner, who was brought into the room before it was concluded, and before the last three lines of the deposition were taken down. The prisoner was then informed that the magistrate was taking the deposition of the witness, and he was desired to attend to it. The oath was then again administered to the witness in the presence of the prisoner, and the whole of that part of his deposition, which had been before committed to writing, was read over to the prisoner very distinctly and slowly, in the presence and hearing of the witness ; after which the witness was asked, in the presence and hearing of the prisoner, whether what had been so written was true, and what he meant to say, and the witness answered that it was perfectly correct. The magistrate then proceeded to examine the witness fur- ther, who stated, in the presence and hearing of the prisoner, what was contained in the last three lines of the deposition, which latter part of the deposition was committed to writing in the prisoner's presence, and the deposition signed in his presence both by the witness and the magistrate. Upon the trial the admissibility of this deposition was objected to, on the ground that the entire deposition had not been taken in the presence of (a) Ante, p. 308, n. (fe) ; p. 310, n. (a) ; Phil. Ev. 569 ; See 2 Russ. Cr. L. 660, 661 ; and 2 Burn, 65; Archb. Cr. L. 116. 312 Taking the Depositions Strictness of the rule re- quiring depo- sitions to be taken in pre- sence of the accused. the prisoner, and that therefore the prisoner had not had the advantage of hearing the questions put or the answers given, or of seeing the manner in which the answers were given, except as to the latter part of the deposition. This objection to the admissibility of the deposition in evidence, notwithstanding the caution used by the magistrate, was considered by the learned Chief Baron, who tried the case, so important, that he respited the execution of the sentence, in order that the opinion of the Twelve Judges might be taken upon it. The judges, however, upon consideration, held that the deposition was admissible, inasmuch, as the witness had been re-sworn in the presence of the prisoner, and had re-asserted upon oath, when his deposition was so deliberately read over to him, what he had before stated ; and that the prisoner, therefore, had had an opportunity of cross-examining him (a). It appears, from the report of this case, that the witness, at the time of making the deposition, was suffering from a wound which proved to be mortal, and which had been inflicted by the prisoner, (the murder of the deceased by the prison- er being the subject of the indictment,) and it may, therefore, be presumed that the magistrate had been in- duced from the urgency of the case, and the condition of the witness, thus to depart from the usual and regu- lar course of proceeding, and to commence his exa- mination before the attendance of the prisoner had been procured(i) ; but, in so doing, the magistrate proceeded with a degree of caution which is well deserving of attention, and the consideration given by the learned judge to the objection offered against the admissibility (a) R. v. Smith, 2 Stark, N. P. C. 208 ; Russ. & Ry. C. C. 339 ; Holt's N. P.C. 614. (6) As to examinations received in evidence as dying declarations, see post.ch. 12. in Presence of the accused. 313 of the deposition in evidence, notwithstanding such Strictness of caution, sufficiently demonstrates the importance of ad- hering in this particular to the rule laid down ; and tion to be in that where circumstances may induce the magistrate {he accused. to depart from it, and to take any part of the deposition in the absence of the prisoner, a strict attention to the practice before stated is indispensable. The caution above suggested receives further con- firmation from the following case. The deposition of a witness having been offered in evidence upon the trial, its admissibility was objected to, on the ground that the prisoner had not been present during the entire time whilst the witness had been making the deposition. It was proved, that the prisoner had not been present till a certain part of the deposition (which was distin- guished by a cross) had been made, at which period the prisoner was introduced and heard the remaining part of the examination ; and although it was also proved that, when the examination was concluded, the whole of the deposition was read over to the prisoner, yet the learned judge rejected that part of it which had been made previous to the part marked with a cross and to the introduction of the prisoner, observing, " that the intention of the Statute plainly is, that the prisoner shall be present whilst the witness actually delivers his testimony, so that he may know the precise words he uses, and observe throughout the manner and demeanour with which he gives his testimony"(). It is to be ob- served, that in this case it did not appear that the magistrate had adopted the precaution, used in the former case, of reswearing the witness and inter- rogating him, in the presence of the prisoner, to the truth of that part of the deposition which had been made in the prisoner's absence, or of asking the pri- () 7?. r. Forbes, Holt's N. P. C. 599. 314 Informations. Witnesses, if numerous, ought, in some cases, to be examined sepa- rately. Precedent of information. Entry of deposi- sitions in regis- try. soner if he wished to question the witnesses there- upon. Where several witnesses are to be examined, it is recommended, especially if they appear unwilling to give evidence against the prisoner, or if the magistrate suspect that a conspiracy exists against the prisoner, or where the offence charged is of a serious character, that the witnesses shall give their evidence separately(a) ; and that they shall not be permitted, if it can be avoid- ed, to have any communication with, or opportunity of informing, each other respecting the evidence which they are about to give or have given. By this means a conspiracy against a prisoner from motives of interest or resentment, if such exist, will probably be detected ; and, on the other hand, any plan concerted for the purpose of favouring him, whether proceeding from fear or from pity, may be prevented. For the outline of forms in which depositions may be taken the reader is referred to the Appendix. And, as before observed, it is desirable, where there are several witnesses, that the depositions shall follow in such order as may best serve to give a connected account of the transaction, and supply a regular chain of evidence(^). It is the practice of the Dublin police offices, and may be recommended for general adoption, at least in all important. cases, to copy the informations and other proceedings in a book kept for this purpose, and to authenticate such copies with the signature both of the parties and of the magistrate, in order that, if at any future time a question should arise respecting them, this record may be referred to, and it is stated, that a similar practice prevails at the police office in Bow- (a) Taylor v. Lawson, 3 C. & P. 543 ; Barman v. Ellice, 4 C. & P. 587, note (6); R. v. Wyld, 6 C. & P. 580. (b)Ante, p. 166. Evidence of Accomplices. 315 street, London(). And St. 7 &8Geo. IV. c. 67, s 11, enacts, that an entry of all informations taken at petty sessions shall be made in the registry directed by this Statute to be kept, in the form set forth in the schedule, and that such registry shall be signed by all the justices present(&). II. To prevent the accused from evading justice, Of receiving the from the want of sufficient evidence, it is frequently cora plices. necessary to receive as a witness against him some per- son who has acquired a knowledge of the circumstances by having been an accomplice in the perpetration of his offence. Though such evidence is frequently ad- Received only mitted from the necessity of the case, especially in instances of conspiracies and crimes perpetrated by gangs of confederates, it is yet obviously liable to many objections, and, therefore, unless it appear indispensa- ble in order to prevent the purposes of justice from being frustrated, it should not be resorted to. It must also in all cases be received with caution, inasmuch as a very strong temptation to perjury exists, when by accusing others the party expects to obtain his own pardon(c). When, however, sufficient evidence of a less exceptionable character cannot be obtained, it may become expedient to resort to it ; and in such cases it seems to be permitted to the magistrate to encourage the hope, that he who will fairly and fully disclose the entire truth respecting his own guilt, and that of his confede- rates, shall himself be recommended for pardon(W). It Prudent to con- is, however, in general a prudent precaution upon the s jf ltth e officers part of the magistrate, when time and opportunity per- mit, especially in cases of importance and those which (a) 1 Chit. Cr. L. 80. (6) Ante, p. 87, and Appendix ; see also 6 & 7 Will. IV. c. 39, s. 6. (c) Eudd's case, 1 Leach, 120, et seq. ; S. C. Cowp. 336 ; 2 Stark. Ev. 21 ; 1 Phill. Ev. 36. (d) 1 Leach, 120, 125. 316 Evidence of Accomplices. Duty of jus- tices before receiving the evidence of an accomplice. affect the public tranquillity, before the accomplice is admitted as an approver, to consult the officer of the Crown as to the expediency or propriety of doing so in the particular instance (a). When it becomes expedient thus to admit an accom- plice to give evidence against his associates, under the expectation of pardon, it is the duty of the magistrate to admonish him, that if he does not honestly and fairly disclose the whole truth, or is guilty of any conceal- ment, he will thereby forfeit even the equitable claim which he might otherwise have to mercy, so that the party shall distinctly understand that any promise or hope of pardon is merely conditional, depending upon his making a full and true disclosure of the joint guilt of himself and of his associates ; that therefore he is not assured of pardon, but that it will depend upon his making a full and true'discovery of all he knows respect- (a) It is not a matter of course to admit the accomplice to give evidence on the trial, even after he has been so admitted by the committing magis- trate. When the accomplice is in custody application is made to the Clerk of the Crown (or Peace, as the case may be) for the depositions, which are given to counsel for perusal, and, if he shall be of opinion that the evidence of the accomplice is absolutely necessary for the finding of the bill before the grand jury, a motion to procure his attendance must be made, and the court under all the circumstances may either grant or refuse the order at dis- cretion. It is, however, usually granted on the representation of counsel, that the evidence will otherwise be insufficient ; and if granted, the attorney gets an order from the Clerk of the Crown or Peace, directing the gaoler to take the witness before the grand jury to give evidence on the bill, and, if found, he will afterwards be brought up before the court and jury. Phil.Ev. 28 and ib. n. (2); 2 Stark, Ev. 21, 22; Rayne. Sess. P. 4; 1 C.&P. 87, in n. An in- stance is mentioned by Chief Baron Joy, (on Evid. of Accorap. 101, in n.) in which a man having offered before a magistrate to give evidence as an ac- complice, (in a case where a large reward was offered, for the burning of Wild Goose Lodge,) and the magistrate having written to the Castle, the man, before being received as a witness, was sent for and examined by the counsel for the prosecution, and it was discovered that he knew nothing whatever of the place or circumstances except from public report. Evidence of Accomplices. 317 ing the case, whether he shall or shall not be admitted J- p - has no to mercy ; for the magistrate has no authority to select JJOD Th/accom- whom he pleases to pardon or prosecute, and the pro- P lice but caQ . ,, only recom- secutor himself has even less power, or rather pretence, men d to mercy. to select than the magistrate. The expectation thus held out is, therefore, merely an equitable claim to the mercy of the Crown, from the magistrate's express or implied promise of an indemnity upon the condition of a full and candid disclosure (a). But the magistrate has no power to make an absolute promise of pardon to the offender, nor to control the authority of the court before whom the prisoners are to be tried, so as to ex- empt the accomplices from prosecution (&) ; and the court will examine into the equitable grounds afforded by the conduct of the accomplice to ascertain if it en- title him to a recommendation for mercy. If, however, upon being admitted by the magistrate Accomplice's . , i . . , ^ T / n claim to pardon as a witness against his associates, the accomplice fully con ditional. and truly discloses the joint guilt of himself and of his confederates, and truly answers all questions that are put to him, and, when called upon afterwards, gives evidence accordingly, and appears, under all the cir- cumstances of the case, to have acted fairly and openly, and to have given full and true information, although he cannot claim it as a matter of right, yet he is con- sidered to have an equitable title to a recommendation for mercy, and the usage, lenity, and practice of the court is, to stay the prosecution against him ; or, in some cases, to admit him to bail, in order that he may apply for the king's pardon(c). But, on the contrary, if the (a) See the judgment of Lord Mansfield, C.J., in Rudd's case, 1 Leach, 120, 121 ; and of Aston, J., ibid. 124, 125, 126; S. C. Cowp. 336, et seq. (6) 1 Chit. Cr. L. 768 ; Leach, 125 j Cowp. 340. (c) Riufd'scase, 1 Leach, 118, 119, 121, 122, 125,126; Cowp. 334, et seq. ; 1 Phil. Ev. 38 ; 1 Chit. Cr. L. 768, 9 ; and see 2 Stark. Ev. 21. 318 Evidence of Accomplices. accomplice suppresses the truth and does not make a full and fair disclosure, he forfeits all claim to favour(a). (a) Rudd's case, 1 Leach, 124, 126; 2 Stark. Ev. 23. In R. v. Thur- tell and Hunt, tried at Hereford Special Commission, January, 1824, cor. Park and Holroyd, Js., for the murder of Mr. Ware, although an expecta- tion had been held out by the magistrate to Hunt, upon his offering to dis- close what he knew of the transaction, that an application would be made to have him admitted as a witness upon the trial, he was, notwithstanding, after- wards tried and convicted, it having appeared that he had not made a full and fair disclosure. Hunt had not been formally admitted to give evidence by the magistrate, not having been put upon his oath, but he had been en- couraged to make a disclosure, which led to the discovery of a material fact, under such conditional promise ; but the court held, in accordance with the doctrine above stated, that such promises, if made, could give the prisoner no more than an equitable claim to mercy, depending upon his making a full and fair disclosure of all he knew. Under the circumstances, however, the capital punishment was commuted for transportation. See the report of the trial by Knight and Lacey, 1824, pp. 30 to 39, and Appen. pp. 13, 19, 42 ; see also D'Oy ley's case, 1 Dick. J. 631 ; Burley's case, 2 Stark. Ev. 23 , note (m) ; 1 Phil. Ev. 27, 29. In a case, mentioned by Mr. Christian, tried at York, before Mr. J. Buller, an accomplice, who had been admitted a witness, having denied in his evidence all he had before confessed, upon which the prisoner was acquitted, the judge ordered an indictment to be preferred against the accomplice, and, upon his previous confession, and other circumstances, he was convicted and executed. 4 Bl. Com. 331, in n. So in jR, v. Barley, cor. Garrow, B. 2 Stark. Ev. 23, n. a prisoner who had made a confession, after a representation made to him by a constable in the gaol, that his accomplices had been taken into custody , (which was not the fact,) and who, after having been admitted as a witness against his associates, upon the trial denied all knowledge of the matter, was afterwards tried and convicted upon his own confession, and the conviction was subsequently approved of by all the judges ; 2 Russ. 558, 645. This latter case, how- ever, is cited as an instance of the confession not being inadmissible in evi- dence against the accused, such false representation having been held not to amount to a promise or threat, 1 Ph. Ev. Ill, 5th Edit. ; but a confession made under the idea of being admitted a witness for the Crown is not a voluntary confession, and therefore not admissible in evidence against the party making it; D'Oyley's case, 1 Dick. J. 631 ; Hall's case, 2 Leach, 559, note ; 2 Stark. Ev. 49 j 2 Russ. Cr. L. 645 ; see also 1 Leach, 264, in note. By the old law of approvement, the approver was convicted upon his own confession, if he failed in convicting the party against whom he gave evidence, 1 Leach, 120; Cowp. 336; 2 Hale, 226 to 236. Evidence of Accomplices. 319 It has been stated by an eminent writer, that an ac- Accomplices ,.-, . .-, . ffi charged with complice admitted to give evidence in a case of felony, ot h er felonies. and making a full and complete discovery as to that and all other felonies to which he is examined, shall not afterwards be prosecuted for that or any previous offence of the same degree(a) ; but later cases seem to have decided, that he has no claim to mercy beyond the offences in which he has been concerned with the pri- soners, and concerning which he has previously under- gone an examination. And accordingly it is said, that the judges will not, in general, admit an accomplice as king's evidence, if it appear that such accomplice is charged with any other felony than that on the trial of which he is to be admitted a witness(i). An accomplice in a felony, although it be intended Accomplices __ _ . , _. , . should be com- to call him as a witness, ought not to be discharged or mined. admitted to bail : it is the duty of the magistrates to commit him(c). In order to avoid collusion between the parties suspected, the accomplice is usually com- mitted to a place of confinement separate from the other And kept apart prisoners ; and it is provided by the Prison Act, 7 Geo. IV. c. 74, s. 6, that places of confinement shall be set apart in every gaol and house of correction for such prisoners as are intended to be examined as witnesses on behalf of the Crown. Beside this mode of admitting accomplices to give Express pro- evidence under an implied promise of pardon on con- miseo P ar on r r r m some cases. dition of their making a full and fair disclosure, their evidence is sometimes received under an express pro- Co) 4 Blac. Com. 331 ; and see Leach, 125. (6) See. 4 Blac. Com. 331, ed. by Christian, in note; Phil. Ev. 27, n. ; 1 Burn, 261 ; 1 Dick., J. 22 ; R. v. Lee, R. & Ry. C. C. 361 ; R. v. Brunton, id. 454 ; 2 C. & P. 411 ; Car. C. L. 67 ; 2 Russ. 598. (c) R. v. Beardmore, 7 C. & P. 457, 499 ; Rudd's case, 1 Leach, 122 ; and such is the practice in the London and Dublin police offices; so when the practice of approvement was in use, the approver was declared not bailable, 3 Edw. I. c. 15 ; 2 Hawk, c. 15, s. 40 ; see a form of com- mitment, post, in Appendix; 4 Chit. Cr. L. 51, 52. 320 Detaining for further Examination, mise of pardon, offered upon certain conditions, byspe- Statutes provid- cial proclamation in the Gazette or otherwise (a). So ing pardon for a i so j^ foe provisions of several Statutes relating to cer- accomplices. tain offences, accomplices are entitled to pardon on cer- tain conditions^), under which, however, in general, the accomplice must not only give evidence against, but be the means of convicting his associates; and most of these Statutes, though not all, also provide that the party entitled to pardon must be at large when he makes the disclosure. In these cases, the accomplice fully com- plying with the offered conditions acquires an absolute right to pardon, and the court before which the trial and conviction has been will bail him, to enable him to urge that claim in the proper channel(c). Detaining pri- HI. It is the duty of the justice to take and complete soner for further !/. /> i i 11 examination(e). tne information of the accuser and witnesses, and the examination of the accused, and to discharge, bail, or commit the latter as soon as the nature of the case will admit(ef) ; but the law allows a reasonable time for this purpose, if, from the absence of witnesses, or from other sufficient cause, it be necessary to defer the exa- mination, or advisable to require a further examination, By parol. before the justice makes a final decision(V). If the accused be in the custody of the constable under the warrant, and it is intended to take or resume the exami- nation on the next day, or within some other short period, a mere verbal order to the constable to bring (a) Phill. Ev. 27 ; Cowp. 334. (6) See 4 Anne. c. 11, s. 6; 8 Anne, c. 8, s. 4; 4 Geo. I. c. 9, s. 13; 17 Geo. II. c. 5, s. 3 ; 17 Geo. II. c. 6, s. 3 ; 29 Geo. II. c. 12, s. 8 5 23, 24 Geo. III. c. 50, s. 11 ; see also 9 Geo. IV. c. 55, s. 51 ; and several of the Revenue Acts, which contain similar provisions. (c) Cowp. 334 ; 1 Leach, 118 ; Phil. Ev. 27. (d) 2 Hale, 123 ; Fortesc. 142 ; 2 Burn, 119. (c) The Stat. 9 Geo. IV. c. 54, s. 4, regards bail in cases of felony, and the detention of the party thereby directed is for the purpose of bail, and not in strictness for further examination ; its enactments are stated in the subsequent chapter on " Bail." Commitment for further Examination. 321 the prisoner before the justice at the time appointed will be sufficient(a). The prisoner, in such case, remains in the custody of the officer, who is responsible for his safe keeping, under the original warrant of arrest(6) ; and it is said, that he may thus be verbally remanded to the custody of the officer from time to time, during stated short periods, for further examination. But Generally pro- although this may be done where the examination is ^ritten^ar'ra'n t. to be resumed on the following day or within some short period, it is, however, usual and proper when the party is detained for further examination to another day to make out a written warrant for that purpose(c). The commitment should be bond fide for further exa- TO be bond fide mination and not for a different purpose, as for extort- fo f fu j ther exa ' ruination. ing a confession or such other object ; and in general it should not be unless there be a reasonable probability of obtaining further evidence upon the charge. Nor Not till a charge should a party be detained for examination, unless an has been macie * information or charge has been actually preferred against him ; cases may occur of flagrant character or urgent circumstances which will warrant a justice in arresting a person on whom suspicion rests, but he has no power to detain a known person whom there is no reason to fear will not be made amenable to justice upon a charge of misdemeanor verbally intimated to him, or to detain such a person until a third party shall come to prefer a charge against him(o?) ; whereas, on the other hand, if the magistrate act on an information re- gularly taken, and without any corrupt or improper (a) 1 Hale, 585; 2 Hale, 120, 121, 95; 1 Dick., J., 626, " Exami- nation, 111 j" R. v. Gooding, 2 Burn, "Examination VIII. 24th Edit." ; also cited by Bayly, J., in Davis v. Capper, 10 B. & C. 33. (6) 2 Hale, 95, 120 ; 1 Hale, 585. (c) 2 Burn, 119 ; I Chit. Crim. L. 73. (d) R. v. Birnie, 1 M. & R. N. P. C. 160 ; 5 C. & P. 206 ; Atkinson v. Carty, 1 J. & Sy. 367, ante, p. 113; but see contra, Broughton v. Mullahoe, Moore, 408. 2 T 322 Commitment for further Examination. Time to be stated in war- rant. What is a rea- sonable time. motive, he will generally be protected, though he may have acted under a mistake in point of law(a). The warrant should specify the time at which the party is to be brought up for further examination. But though it is usual and proper to state the day, it may be ascertained in the warrant by a reference to fixed events ; thus, where the warrant directed the detention of the party to the " Ballymena petty ses- sions," it was held, that though this might be in some degree objectionable, especially as it did not specify the next petty sessions, yet that the warrant was not thereby Depending on circumstances. The detention of the prisoner for the purpose of further examination should not in any case be for a longer time than is necessary for the due investigation of the case, which must depend upon its peculiar cir- cumstances, and for which therefore no precise general rule can be stated ; but it is obvious that the duration of the commitment ought to be as short as possible. It seems formerly to have been considered that the law intended three days as a sufficient time for this purpose(c) ; hence it appears to have been the prac- tice to commit from three days to three days(of) ; and in one of the early cases it has been said, that the magistrate cannot justify the detention of a prisoner for so long a period as eighteen days in order to his exami- nation(e) ; but according to recent decisions the better O p m j on see ms to be that there is no such precise limi- tation of time, which must in every instance depend on (a) Cave v. Mountain, 1 Scott's N. R. 132; 1 Man. & Gr. 257, S. C. (6) Gillman v. Connor, 2 Jebb & Sy. 210. (c) Scavage v. Tateham, Cro. Eliz. 829; 1 Hale, 586; 2 Hale, 121 ; 2 Hawk, c. 16, s. 12. It is observable, that Stat. 26 Geo. III. c. 43, s. 12, which authorizes a commitment for further examination in the particular instances therein specified, states three days. (d) 1 Dick., J., 626, " Examination III." (e) Scavage v. Tateham, Cro. Eliz. 629. Commitment for further Examination. 323 the circumstances of the particular case ; for what may be a reasonable time in one case may not be so in an- other^) ; and, accordingly, it is said that in the practice of the best regulated police offices it has frequently occurred that prisoners have been detained more than twenty days, between the period of their being first brought before a magistrate and their commitment for trial, during which interval they have been brought up for examination on several different days(&). It cer- tainly seems more reasonable that the time for the in- vestigation of the case and final decision of the magis- trate should depend on the circumstances of each case, than that it should be restricted to any fixed period as a general rule ; for either the prisoner or the accuser may be unable to bring forward his evidence imme- diately, and the compelling the magistrate to discharge or commit within a limited time might be prejudicial to the purposes of justice(c). But it is clear that the magistrate will not be jus- Commitment tified in detaining the party accused without a suffi- cient cause, or for a period beyond what the due investigation of the case shall require. Upon this subject, the following observations by Mr. Justice Park, in his charge to the grand jury at Monmouth Summer Assizes, 1823, may be referred to.' It ap- peared, in the instance of a prisoner charged with horse stealing, that he had been committed for further (a) By Lord Eldon, C, J., in Arbuehla v. Taylor, 3 Dow. P. C. 160 ; and see R. v. Davit, 1 Burn, (24th Edition,) p,1009,po$f, p. 324, in note(o) ; Davis v. Capper, 10 B. & C. 33, by Bayley, J., ; 1 Burn, 119. The Pri- son Act, 7 Geo. IV. c. 74, authorizes two justices to order any prisoner to be detained in any bridewell for the purpose of examination, for the time mentioned in such order. (b) 2 Burn, 119; 1 Chit. C. L. 73. (c) Arbuckle v. Taylor, 3 Dow. P. C. 160. Stats. 1 &2 Will. IV. c. 55, s. 35, passed to prevent illicit distillation, and 3 & 4 Will. IV. c. 53, s. 51, to prevent smuggling, contain special provisions upon this sub- ject. 324 Commitment for further Examination. Commitment examination on the 27th May ; that he never had been further examined ; and that he had not heen com- mitted for trial till the 30th July following, a period of two calendar months and three days after he had been first examined. In animadverting upon the irre- gularity of this proceeding the learned judge observed, " that a magistrate may commit for further examination there can be no doubt, because it is not always that the witnesses can be brought forward in the first instance, or the matter may not be ripe for trial ; but the further and absolute commitment must be in a reasonable time ; what is a reasonable time is a mixed question of law and fact, which those who are to exercise a judgment upon it must decide at the time, but, generally speak- ing, and without exception almost, two whole months cannot be a reasonable time. A magistrate ought as speedily as possible to make all inquiry. I state it with the greatest confidence, because I can state it on the authority of the Twelve Judges of England ; for a case was submitted to us about two years ago, by his Ma- jesty's command, in which the point incidentally came under consideration, and the judges were of opinion, that a further commitment could only be for a reason- able time"(). In another case in which the commitment (a) 1 Burn, (24th Ed.) p. 1009, in note. Sir George Chetwynd, the learned editor of Burn's Justice, explains this allusion of Mr. J. Park, by the following statement of the circumstances of this case. Samuel Gooding, was convicted at the London sessions in May, 1820, for assisting John Henry Davis to escape from Giltspur-street Compter, where he had been confined on a charge of forgery ; the case was afterwards submitted by H. M., to the Judges, in consequence of a petition presented by the prisoner Gooding, alleging, that Davis never was in legal custody, and therefore, he Gooding could not legally be found guilty in aiding his escape, the fact being, that Davis, at the time of the escape, was under commitment for further examination merely, but no warrant, commitment, or written authority was ever made out by the Lord Mayor, (who was the committing magis- trate,) or by any other justice of the peace. The only question submitted to the Judges was, whether a commitment for further examination was legal, Commitment for further Examination. 325 was for fifteen days, it was held, that under the circum- What a reason- 1 1 / \ A 1 able llltie * stances of the case the time was unreasonable(a). And it was said by one of the learned judges, that in his judgment fifteen days was in general an unreasonable time, unless there were circumstances to accouut for it, and that it is incumbent on the magistrate to shew these circumstances for his justification^). And in a recent case, where the commitment was for eight days, the court were of opinion it was for too long a time, but as the jury to whom the question had been submitted had found it to be a reasonable time they refused to set aside the verdict upon this ground(c). The magistrate is indeed to exercise his discretion as to the term of com- mitment, but his judgment is not conclusive, and, there- fore, if it be questioned, he must set forth the circum- stances which influenced his decision, in order that the court and jury may thereby be enabled to decide whe- ther he has been justified, and whether the time was reasonable or not ; and this is a mixed question of law and fact which is finally to be determined by the judge not being in writing. Their lordships were unanimously of opinion, that such a commitment for a reasonable time, though notin writing, was good, (see ante, p. 320,) but they added, that they considered reasonable time to be a mixed matter of law and fact, and that as the facts of the case were not fully detailed, they could form no opinion in fact whether the time in the particular case was, or was not, a reasonable time ; but they presumed that it must have appeared at the trial that the time was reasonable, as other- wise the prisoner ought to have been acquitted. See also the judgment of Bayley, J., in Davis v. Capper, 10 B. & C. 33. (a) Davis v. Capper, 10 B. & C. 28. (6) 4 C. & P. 138, by Vaughan, B. (c) Cave v. Mountain, 1 Man. & Gr. 257 ; 1 Scott. N. R. 132 ; the offence was maliciously damaging trees above 1 value, (see 7 & 8 Geo. IV. c. 30, s. 19, Eng.,) and the information contained mere hearsay. The prisoner in the case had also been kept upon bread and water in the gaol ; but as the defendant, (the committing magistrate,) though cognizant that such was the rule of the prison, had given no express directions on the sub- ject, it was held to make no difference. 326 Commitment for further Examination. If time unrea- sonable, war- rant is void. Warrant statement of the offence. To what place to be com- mitted. and jury(a). It seems also that when the commitment is for an unreasonable time the warrant of commitment is wholly void(&), and an action for false imprisonment will lie against the magistrate for such commitment, even though he has acted without any improper motive(c). In warrants of commitment for further examination it is not absolutely necessary to state the crime of which the party is accused, and it is said that cases may occur in which it would be imprudent at this stage of the pro- ceedings to let even the officer know the subject matter of accusation(cQ ; but unless such objection exist it is usual and seems proper to state shortly the offence as in the ordinary form of a warrant of commitment^). The prisoner, if not continued in the custody of the constable, as before stated, should, when committed under warrant for further examination, be sent to the nearest public prison(/), which may be either the county (a) 10 B& C. 34 etseq, ; ante, p. 323-4, n. (a), left to the jury in Cavev. Mountain, ubi supra. Where the petty sessions are held weekly, and several days are required in order to procure the attendance of absent wit- nesses, it is sometimes the practice (in England) to remand the prisoner until the next petty sessions j but it is said that in some places the magis- trates decline to commit for a longer period than three days, which generally affords sufficient time to look for the necessary evidence. Stone's Pet. Ses. 205. 0) Davis v. Capper, 10 B. & C. 38. (c) Ib. 37, 38, and see by Lord Eldon, 3 Dow. P. C. 184. (d) Bac. Ab. " Trespass," D. 3 ; 1 Chit. Cr. L. 73 j and see 2 Hawk, c. 13, s. 10; ante, pp. 182, 183. (e) See forms, post, in Appendix. It is sometimes the practice to make out the commitment in the form of a final commitment, and to insert in the margin, or at foot of the committal, the words " for further examination." Under this warrant the prisoner is committed, and upon an order or note sent to the gaoler, desiring that the prisoner shall be brought before the magistrate for further examination, he is brought up for this purpose, and so from time to time. (/) 1 Hale, 123, Cro. Eliz. 829. But it has been said, that if it be un- seasonable to take the examinations presently, or if it may take longer time, Commitment for further Examination. 327 gaol or the bridewell, according to circumstances. The Prisoners not to Prison Act, 7 Geo. IV. c. 74, having provided for the mor e than three division of bridewells into two classes, district bride- days except in district bride- Wells and others, (sects. 91, 92,) sect. 94, enacts, that we li. no prisoner shall be detained in any bridewell, except in such district bridewells as aforesaid, longer than three days from the day of the committal, unless two justices shall think proper, by order in writing, to direct that such prisoner be longer detained for the purposes of examination, and then only for the time mentioned in such order or any renewal thereof. If there be several persons in custody upon the same Prisoners to be charge, it is advisable, as before suggested, in order to prevent concert in their plan of defence, especially if the offence be of a serious character, that the prisoners shall, when thus held over or remanded to custody, be kept separate from each other, and that they shall not be permitted to have any communication oral or written. In conclusion, it may be proper to observe, that Committing when a magistrate commits a party till a certain day for further examination, it is his bounden duty to be in on the day for attendance on that day, to take the further examina- nat i n. the prisoner may be detained in the justice's house, or committed to some near safe place of custody, till the examination can be taken, 2 Hale, 120. On the other hand it is said, in one of the cases upon this subject, that the justice ought not to detain the party in his own house, but should send him to the common gaol of the counly j Scavage v. Tale- ham, Cro. Eliz. 829 ; and although the former position rests upon the high authority of Lord Hale, it seems questionable how the justice can legally order the detention of the party, unless it be either to the custody of the constable, (in which case he is continued in such custody under the authority of the original warrant, if the arrest had been by warrant, or of the constable's original power to arrest, if the arrest have been without war- rant, 2 Hale, 120, ante, p. 225,) or, otherwise, under the warrant of commit- ment, which is to be directed to the gaoler or keeper of the prison, 2 Hawk. c. 16, s. 13 j for it seems that no other persons are authorized or bound to detain the prisoner, or responsible for his safe custody. 328 Summoning Witnesses. Proceedings when the pri- soner is again brought up. Nature of com- mitments for further exami- nation. Procuring the attendance of witnesses. tion, and he should not leave the case to other magis- trates, who cannot be equally well informed in the cir- cumstances of the previous examination (a). When a prisoner has been remanded for further examination, the proceedings, on his being again brought up, should be commenced by reading over all the depositions and examinations before taken, and the additional evidence then gone into with the same formalities(^). Commitments for further examination stand upon grounds and principles different from commitments for trial, the nature and requisites of which will be here- after more fully considered (c), the former being a pro- ceeding not against the party but for his benefit ; so that if, where a party is committed for further exami- nation, bail were to be required before such further examination takes place, he would thereby be put to this inconvenience, that he must give security to stand a trial which he may never have to stand. A commit- ment for further examination, therefore, must not be made use of as a commitment to custody for trial(o?). IV. Besides the witnesses whom the inform ant brings with him, it may appear to the magistrate that other witnesses are material or necessary ; and it is enacted by 9 Geo. IV. c. 54, s. 2, where the party has been arrested for felony or suspicion of felony, that " the jus- tice before whom the examination takes place shall have authority to summon(e) any person within his jurisdic- tion, whom he shall have reason to consider capable of giving material evidence concerning any such felony or suspicion of felony, and to examine such person on oath (a) By Vaughan, B., 4 C. & P. 139. (b) Stone's P. S. 208. (c) See post, Ch. XV. (d) By Lord Eldon, in ArbucUe v. Taylor, 3 Dow. P. C. 183, 184 ; 1 Burn, 120, 121 ; 1 Hale, 582. () See forms of *' summons" and " commitment" in Appendix. Enforcing Attendance of Witnesses. 329 touching the same, and to bind by recognizance all such persons as know or declare anything material touching any such felony or suspicion of felony, to appear and give evidence at the trial; and in case any person so And commit for summoned shall refuse to submit to such examination, Drained? be or to enter into such recognizance, it shall be lawful for the justice or justices to commit such person to the public gaol of the county, city, or town, until he shall submit to such examination, or shall enter into such recognizance, or be discharged by due course of law"(a). This enactment is peculiar to Ireland (6), so far as it English Sta- authorizes the justice to " summon any person, within his jurisdiction, whom he shall have reason to consider capa- ble of giving material evidence concerning any felony or suspicion of felony, and to examine such person on oath touching the same," and so far as it empowers him " in case of refusal of the person so summoned to submit to such examination, or to enter into such recognizance, to commit such person, until he shall submit to such ex- amination, or shall enter into such recognizance, or be discharged by due course of law"(c). This Statute fur- Examination ther enacts, " that no such examination shall subject not to be used against witness the party examined to any prosecution or penalty, or be except for per- given in evidence against such party, save on any in- in- dictment for having committed wilful and corrupt per- jury in such examination." The ordinary mode of procuring the attendance of Summons and a witness is by a summons requiring his attendance, service thereof. which is usually served by delivering to him a copy and shewing the original. But it seems that the magistrate is further empowered to issue a compulsory process for (a) 9 Geo. IV. c. 54, s. 2, ante, pp. 304, 305. (&) See the English Stat. 7 Geo. IV. c. 64, s. 2. (c) Stat. 15, 16 Geo. III. c. 21, commonly called the " Whiteboy Act," contains a like enactment respecting any offence committed against that Act j id. sect. 22. 2u 330 Enforcing Attendance of Witnesses. Summons pre- paratory to is- suing warrant. Warrant if sum- the attendance of any person whom he shall have rea- mons is diso- ... ... .. .,., beyed. son to consider capable ot giving material evidence con- cerning any felony or suspicion of felony with which a party has been charged, and is under examination he- fore him, if such person, having been duly summoned, shall refuse to submit to be examined on oath concern- ing the same. Before resorting to such compulsory process for enforcing the attendance of a witness, the summons should have been personally served upon him ; and when it is preliminary to such process against the witness it will be prudent to set forth in the summons requiring the attendance of the witness, that the party under examination (naming him) has been charged upon oath with having committed a felony, (specifying the of- fence,) or upon suspicion thereof, andthat the justice has reason to consider that the witness so summoned is ca- pable of giving material evidence respecting the same(). Proof on oath should then be made of the personal ser- vice of the summons, and a deposition taken on oath of the party requiring the attendance of the witness, that he has reason to believe that the witness so summoned is capable of giving material evidence concerning the felony charged, and the grounds of his belief. If the ma- gistrate shall then have reason to think that the witness can give material evidence which he withholds, and shall issue a warrant for his attendance, all the foregoing what it should particulars should be set forth therein ; namely, that a party (naming him) has been charged on oath, and is under examination before the justice, for having com- mitted a felony (specifying the offence,) or upon sus- picion thereof, and that it appears upon the oath of the prosecutor, or of the person making the deposition, that there is reason to consider that the person so sum- moned is capable of giving material evidence concern- Warrant, and (a) See forms in Appendix. Enforcing Attendance of Witnesses. 331 ing the same ; and that having been duly summoned to give evidence touching the same he has neglected to appear in pursuance of such summons(a). It seems also that the refusal of a person who is ca- Indictment for i j disobeying pable of giving material evidence against a party charged summons. with an indictable offence, and under examination there- upon before a justice, to attend in pursuance of a sum- mons to give evidence, subjects the person so refusing to be proceeded against for a misdemeanor(&) ; for which he may be summoned to answer, upon the information of the person who has reason to believe he is capable of giving such material evidence, and the deposition upon oath that he had been personally served with the summons as a witness to attend and give evidence. The summons or warrant in this case should also set forth the foregoing particulars ; namely, that there has been a party under charge and examination before the jus- tice for the offence, specified, and that it appeared upon the oath of the person requiring the attendance of the witness that he is capable of giving material evi- (a) Cropper v. Horton, 8 D. & R. 166; S. C. 4 D. & R. M. C. 42 ; see form of warrant in Appendix. As above stated, there is no corresponding enactment in the English Statute, 7 Geo. IV. c. 64, s. 2, and the question as to the authority of the magistrate under that Statute, to issue a warrant to compel the attendance of a witness, does not appear to have been solemnly decided. But in the absence of any such decision, it is stated by the English text writers, that magistrates have exercised this power in cases of felony, and the form of such a warrant is set forth ; Dick. Sess. 117 j 2 Chit. Burn, 26th Edit. pp. 95, 96 j 1 Chit. Cr. L. 76 ; 4 Chit. Cr. L. 36 j 1 Dick., J., 619, "Evidence, IV." (6) Cropper v. Horton,\4 D. & R. M. C. 44, 45, 47, Arguendo ; 2 Burn, 114 ; Archb. C. L. 161 j Rose, C. L. 91 ; 2 Russ. C. L. 640, n.; R. v. Clement, 4 B. & Aid. 231 ; R. v. Burnall, 1 Ad. & El. 598, a witness is indictable for not attending in pursuance of a summons, to give evidence at the Quarter Sessions, or other court of record ; see also 1 Hawk, c. 21, s. 15, and c. 22, ss. 4 and 5, n. ; 1 Curw. Hawk. 64, 65, where it is stated that every contempt of a Statute is indictable, if no other punishment be limited. 332 Enforcing Obedience of Witnesses. Witness refus- ing to enter into recogni- zance, or be examined. dence touching the charge, and that he has been per- sonally served with a summons to attend and give evi- dence, and hath neglected so to do(a). Where a witness has given material evidence before a magistrate upon an examination for felony or misdea- nor, if he shall refuse to enter into recognizance to attend and give evidence at the trial, the magistrate is authorized to commit him until he shall enter into such recognizance(i) ; and by the foregoing Statute, the same power of commitment is given if the witness refuses to submit to the examination. But the question put must be one which the witness may be legally compelled to answer; and such a commitment, for refusing to answer, should state that there was a person charged with the offence, specifying it, and that the witness was apprised of the fact, and of the nature of the charge, and refused to answer(c). But it is the prac- tice, if the magistrate shall have good reason to consider that a person is capable of giving material evidence, and that notwithstanding he withholds it, and refuses to do so, to bind such person by recognizance to appear and give evidence at the trial, and thus to avoid the resort to the extreme penalty of commitment for such refusal. Examination of V. If several persons be arrested upon the same the prisoner. c h arg e, j t j s advisable, especially if the offence be of a Prisoners to be . , , examined sepa- serious nature, in order to prevent the prisoners from rately. concerting a plan of defence, that from the time of the arrest they shall be kept separate from each other, and that they shall not be permitted to have any communi- cation oral or written(d) ; and it is also to be recom- (a) See ante, 151, et seq. ; and for forms, see Appendix. (b) Bennet v. Watson, 3 M. & S. 1 ; 9 Geo.IV. c. 54, ss. 2, 3. (e) Crcpper v. Horton, ubi sup. ; 2 Burn, 115. Such a refusal seems also to be indictable ; ibid. ; and ante, p. 331, n. (6). See forms ia Ap- pendix. (d) Ante, pp. 215,216. Examination of Prisoner. 333 mended, that in such case the examinations of the prison- ers shall be taken separately, so that no one of them shall know what has been said by another, as offences committed by numbers in conjunction are frequently discovered by the variances in their respective state- ments, which advantage is lost if the parties have an opportunity of communicating with, or hearing what has been alleged by, any other in his defence(a). If any case even of reasonable suspicion be made against the accused, he should be asked if he has any thing to say in reference to the charge ; but it is also Caut i on to pr i, usual and proper to apprize him, that any statement soner. made by him may be produced in evidence against him at his trial, and to give him a reasonable caution that he is not bound to state any thing or to make any disclo- sure which may criminate himself. It is then wholly Examination to optional with the prisoner, whether he will say any thing be voluntary, respecting the charge or not, which if he declines to do, he should not be pressed or interrogated upon the sub- ject^). Every thing in the nature of a threat or pro- mise, and even the most distant hope, is strictly forbid- den to be held out ; so strictly, that any declaration made under the influence of either, however slight the inducement may have been, if the statement assume the form of a confession, will defeat the purpose for which it was obtained, and will not be available in evidence(c). This is, however, all that is required of the magis- But J. P. ought (a) 1 Dick., J., 628, Ch. Cr. L. 83. (6) 2 Burn, 115 ; 1 Dick. J. 627 ; 1 Ch. Cr. L. 84, 86. On the con- trary, it is said, the examination should be considered a privilege of the party accused, afforded by the law for the benefit of the prisoner, who if innocent may thereupon clear himself from suspicion and regain bis freedom, rather than as any additional peril. By Parke, C. J., and Powys, J., in R. v. Derby, Fortes. 142-3, and by Lord Eldon, in ArbuMev. Taylor,3 Dow. P. C. 183-4 ; and though the propriety of thus cautioning the prisoner has been questioned by an eminent text writer, Phill. Ev. 428, it is obviously con- venient for the reasons stated, post, p. 335. (c) See post, p. 349. 334 Cautioning Prisoner before not to refuse to trate, and any repugnance to receive such declaration, ston^dis" 68 " wnen voluntarily made, appears to be inconsistent with suade the priso- the intention of the legislature when it gave to magis- ner from making *,,./ \ T i it. trates the power of investigation(). In a case where the magistrate not only cautioned the prisoner, but also dissuaded him from confessing, the learned judge said, " this was wrong, a prisoner ought to be told that his confession will not operate at all in his favour, and that he must not expect any favour because he makes a con- fession, and that if any one has told him it will be better for him to confess, or worse for him if he does not, he must pay no attention to it, and that anything he says to criminate himself will be used as evidence against him on his trial ; after that admonition it ought to be left entirely to himself whether he will make any statement or not ; but he ought not to be dissuaded from making a perfectly voluntary confession, because that is shutting up one of the sources of justice(6)." And in another case, Lord Denman, C. J., thus expresses himself: " the frequent warnings given to prisoners not to say anything that may criminate themselves, renders it necessary for me to set right a prevalent error on this subject ; a pri- soner is not to be entrapped into making a statement, but when the prisoner is willing to make a statement it is the duty of the magistrate to receive it ; but magistrates, before they do so, ought entirely to get rid of any im- pression made on the prisoner's mind, that the confession may be used for his own benefit, and the person ought also to be told that what he says will be taken, and may be used against him on his trial(c). Caution where The examination of the prisoner may be rendered dwemenuo inadmissible in evidence against him, not only where a confess. hope or threat is used by the magistrate, but also where a previous confession has been made by him induced by (a) 1 Dick., J., 626. (6) R. v. Gren, 5 C. & P. 312, (c)#,v. Arnold, 8 C. & P. 621. taking his Examination. 335 improper influence used by some other person whose situation may be reasonably presumed to give him an influence, as the prosecutor, constable, or person who had the accused in custody ; for where a prisoner has once made a confession, he may think that he cannot make his case worse than he has already made it, and that it will not be of any use to deny what he has before said, and under such impression may repeat his confes- sion before the magistrate. In such a case, therefore, it will be necessary that the magistrate shall give the prisoner the most explicit warning not to pay any re- gard to any previous promise or threat, nor rely on any expected favour from what has occurred, and to apprize him that all that he has hitherto said will go for nothing, as he had been induced to say it in consequence of a false representation that he might be benefited thereby, but that whatever he is about to say then will be taken down and used as evidence against him at some future time(a) ; and the magistrate should not state that it will be used eitherybr or against him, because telling him that what he says may be used for him holds out an inducement to confess(6). It may also be prudent for the magistrate, previous j. p. should to taking the examination, to inquire from the constable J n( l 1 " re lf there has been a pre- or person who brings the prisoner in charge, whether vious induce- the prisoner has made any previous statement and ment * under what circumstances, and whether any promise or threat has been used to induce him to do so. It may be also proper to give a general caution to Instructions to constables and persons engaged in the arrest or deten- ^yn whV tion of prisoners, that they should carefully abstain from prisoners. tampering with them for this purpose ; for unless such (a) R. v. Arnold, 8 C. & P. 621 ; 2 Ea. P. C. 658 ; Whites case. 1 Phil. Ev. 430 } 2 Russ. Cr. C. 648 j R. v. Nute, 1 Burn, 24th Edit. 688. (6) R. v. Drew, 8 C. & P. 140. 336 Statement made to Constables. practice be prevented, however careful the magistrate may be that the prisoner shall not be entrapped into a confession, an over zealous constable may defeat the humane provisions of the law, by so practising on the hopes and fears of a prisoner, before he comes into the magistrate's presence, as to cause him, when before the magistrate, to appear to make an uninfluenced and volun- tary confession, although very improper influence has Constables been previously employed to obtain it (a). Constables questioning pn- soner. should abstain not only from tampering with or holding out any inducement to prisoners to confess, which is a gross violation of their duty, but it seems also that, in general, they should not question the prisoner respecting the charge ; for it has been considered by some of the learned judges, that even the magistrate should not take the examination of the prisoner by putting questions to him as to a witness(),'and although the better opinion seems now to be, that an examination solemnly taken by a magistrate is not invalidated, though elicited by questions put by the magistrate(c), yet the usual and safer practice, even in taking examinations by magis- trates, is to permit the prisoner to make his statement in his own manner. It is also to be recollected, that in the examination before the magistrate, the statement of the prisoner is deliberately made after a caution given to him, and that it is carefully and accurately committed to writing in the words used by the prisoner, and after- wards read over by or to him, whereas the evidence of any statement made to any other person depends upon the fallible and uncertain memory of the person to whom it is made. Therefore all confessions thus made to persons having no authority to examine, are subject to (a) By Best, J., in R. v. Sexton, 1 Burn, 24th Edit. 694 ; Chetw. Suppl. 103 ; R. v. Hughes, 1 C. & D. C. C. 15. (6) R. v. Wilson, Holt. N. P. C. 597. (c) 2 Russ. C. L. 649 j 1 Ph. Ev. 427, post, p. 340. Examination of the Prisoner. 337 this objection, that they may be misreported and are liable to misconstruction, whether through ignorance, inattention, or ill-will(a). The constable should apprise the prisoner, if about Dut y of consta- . ble receiving a to make any statement respecting the charge, that what confession. he says will be given in evidence upon the investigation of the charge, and upon the trial. Whatever statement the prisoner then voluntarily makes, the constable should en- deavour to preserve a correct and accurate recollection of, and as nearly as possible of the very words used by the pri- soner ; and for this purpose, if he have an opportunity, he may commit the expressions to writing. It is then his duty to detail fully and correctly to the magistrates what the prisoner has stated, and the circumstances under which he has made the statement, from which the magistrate will judge whether it has been obtained by improper influence, requiring the caution before sug- gested to remove the impression thereby made ; or whether it be such a voluntary statement, that the person to whom it has been made should make informations of it, and be bound to give it in evidence at the trial. The examination of the prisoner before the magis- Examination of trate must be without oath(6), and if taken upon oath, it will not be admissible in evidence(c). This rule is found- ed upon the principle before stated, viz., that every ad- mission of the prisoner must, in order to render it available against him, be purely voluntary ; and it is con- sidered that the administering an oath to the accused seems to impose an obligation upon him to confess, and that the dread of perjury, with the apprehension of addi- tional penalties, consequent upon a deviation from the (a) Fost.243; B. v. Kerr.Q C. & P. 176; R. v. Hughes, 1 Cr. & D. C. C. 15. (6) 1 Hale, 585; 2 Hale, 52, 120, 284; 1 Phil. Ev. 113; 2 Stark. Ev 52. (c) Dick. J., 626 ; 2 Hawk. c. 46, s. 35 ; Bull. N. P. 242. 2x 338 Examination of the Prisoner. truth, may create an influence upon his mind, which the Must not pur- law will not permit(a). So strict is this rule, that where port to be on ,, . , . . oath. the examination of the prisoner before the magistrate purports to have been taken on oath, evidence will not be permitted to be given upon the trial to shew that, in point of fact, the prisoner had not been sworn ; and When sworn by such examinations have been frequently rejected(6). In mistake. , , . - 1 , , , a case, however, where the prisoner had been sworn by mistake, being supposed to be a witness, but his deposi- tion was afterwards destroyed, and he was cautioned by the magistrate, a subsequent statement made by him was received(c). (a) 1 Ch. Cr. L. 86. (6) R. v. Smith and Homage, I Stark. N. P. C. 242 ; R. v. Rivers, 7 C. & P. 177; R. v. Wheely, 8 C. & P. 251 ; R. v. Pikesley, 9 C. & P. 124. (c) JR. v. Webb, 4 C. & P. 564. Stat. 9 Geo. IV. c. 54, s. 2, enacts, that no examination taken before a justice of peace, when a prisoner is brought before him on a charge of felony or suspicion thereof, shall subject the party examined to any prosecution or penalty, or be given in evidence against such party, save on any indictment for having committed wilful and corrupt perjury in such examination. The term " examination," both in this Stat. and in the former Statute upon this subject, (10 Car. I. S. 2, c. 18, now re- pealed,) is used to express the statement of the prisoner, the depositions of the witnesses being termed " informations," and it is so generally in legal par- lance by the writers upon this subject; 1 Hale, 305, 585, 586; 2 Hale, 284, et passim. But it appears from the context, that " examination'' is intended in this part of the above section to express the deposition of the witness, inasmuch as the proviso, that it shall not be given in evidence against the party making it, save on an indictment for perjury, cannot apply to the examination of the accused which is not taken upon oath, and upon which, therefore, an indictment for perjury cannol. be sustained. This provision is not in the English Stat. 7 Geo. IV. c. 64, s. 2 ; and in England it seems not clearly settled whether the statement thus made shall be received as a con- fession or not. Where a prisoner, among other persons, was summoned before a committing magistrate upon an investigation in a matter of felony, (no person being specifically charged with the offence,) and the prisoner was sworn and made a statement, and at the conclusion of the examination was committed for trial, this statement was not received against the prisoner, on the ground of its having been made at the same time as all the other depo- sitions, and on the same day upon which he was committed, R. v. Lewis, Examination of the Prisoner. 339 Though this statement or confession is termed by the Quare, whether , the prisoner Statute the " examination of the prisoner, yet it has should be ques- been said that the prisoner ought not to be examined or questioned by the magistrate as a witness, but that magistrate, he should be asked what he has to say, or whether he desires to say anything, and should then be permitted to make his statement in his own manner. In one case where the prisoner had been thus questioned, though nothing like a threat or promise had been used, the examination was rejected in evidence(#); but more modern authorities seem to have established an opposite doctrine, and an examination would not now be rejected merely because the prisoner was previously questioned by the magistrate (6). It is, however, the k safer and more humane, and, there fore, the usual practice, to per- mit him to make his statement or confession in his own manner, lest, by offering anything in the nature of a suggestion, he may be led to state that which possibly he might not have stated from the dictates of his own 6 C. & P. 162 ; and when one of several persons was examined by the com- mitting magistrate as a witness against the other on a charge of felony, and after being examined by him, was committed to take his trial, it was held that what he said as a witness could not be used against him upon the cri- minal charge, R. v. Davis, 6 C. & P. 177. The principle, however, of these decisions appears questionable, as the prisoner in his capacity of witness might have refused to answer any question having a tendency to expose him to a criminal charge. Accordingly, when a prisoner had been examined upon oath on a charge against another person. Park, B., received the evidence of the examination as a confession, Howarth's case, Greenw. Col. 138, n. And it would seem that generally a statement on oath by a person not being a prisoner at the time, and the statement not being compulsory, might be used in evidence against him on a criminal charge, R. v. Tubby, 5 C. & P. 530, re- ferred to in R. v. Lewis, 6 C. & P. 162. See Phill. Ev. 425. See>lso 2 Stark. Ev. 50 ; R. v. Merceron, 2 Stark. N. P. C. 832, and the observations of Lord Tenterden, C. J., upon that case, in Gilham's case, 1 R. & M. C. C. 203. (a) R. v. Wilson, Durham Sum. Assizes, 1817 ; Holt's N. P. C. 597.> (6) R. v. Ellis, R. & Moo. N. P. C. 432; R. v. Thornton, R. & Moo. C. C. 27 ; Jones's case, Carr. Cr. L. 13 ; R. v. Bartlet, 7 C. & P. 832 ; 2 Russ. Cr. L. 649 ; 2 Stark. Ev. App. 52 ; Phill. Ev. 427. 340 Examination of the Prisoner. mind, and thus to leave him perfectly at liberty as to the matter and manner of his statement(a). statement of The magistrate should take down the statement of bTtakTn?ntht the prisoner at the time, and in the very words, or as words used by nearly as possible in the words used by him, and nothing that he says which has any relation to the sub- ject should be omitted. It is desirable, that even his peculiar mode of expression shall be preserved ; for by any change of language, a very different complexion may be given to the narrative from that which the pri- soner intended. And even though the statement or confession, as worded by the magistrate, be afterwards read over to the prisoner, that does not remove the objection, as he may not discover the difference of its purport at the time; for it has been observed, that uneducated persons, who are usually the subjects of such examinations, liave but few words to convey their meaning, and that they know nearly as little of expres- sions which they are not in the habit of using, as if they belonged to another language(&). The examination should therefore be taken in the first person as used by the party, and not, as is frequently the case, in the (a) The following instances are stated to exemplify the danger of receiv- ing supposed confessions made under influence, or without due caution, 1 Lea, 264, n. Where three men were tried for the murder of Mr. Harrisson, one of them, under a promise of pardon, confessed himself guilty ; the con- fession was therefore not received as evidence against him; but it was dis- covered a few years afterwards that Mr. Hamsson was alive. An in- stance is mentioned in the State Trials, where not only the party himself but his brother were executed on a supposed admission of guilt, although all the parties were innocent. 2 Stark. Ev. 49, n. ; There are also several cases of con- fessions by witches, 2 Howel. 1 049 ; 4 id. 8 1 7 ; 6 id. 647 ; 8 id. 1 1 7. But it has been justly observed, that the rule has been extended to many cases where there could be no reasonable ground for presuming the inducement offered to the prisoner was sufficient to produce the supposed effect. See Phill. Ev. 424, and authorities there referred to. (6) R. v. Sexton, I Burn, 693, 694, 24th Edit, see ante, p. 163, &c. Examination of the Prisoner. third person, as, by the substitution of a different per- son, the examination may probably not be as readily understood by the prisoner when perused by or read over to him(a). The Statute directs that the magistrate shall take Examinations must be taken the examination of the prisoner in writing, and, there- i n writing. fore, although confessions made elsewhere are receiva- ble in evidence, whether committed to writing or not(6), the court will presume that magistrates have done their duty, and will not permit parol evidence to be given of an examination before them(c), unless it be clearly proved, that in fact it was not reduced to writing(J). Correctness in taking the examination and committing it (a) The examination of the prisoner, when produced in evidence, will be all read together, and will be evidence in his favour as well as against him. The Queen's case, 2 B. & B. 294, 298 ; R. v. Clewes, 4 C. & P. 221 ; Phill. Ev. 420; 1 Burn, 814. (6) Archb. Cr. L. p. 105 ; 2 Russ. Cr. L. 644. (c) Jacob's case, 1 Leach, 309 ; Hinman's case, id. 310, in note; Fisher's case, ib. But where the examination is rejected for mere informality, as from not being signed, or not being properly headed, or such like, parol evi- dence is admitted, and the witness may be allowed to use the informal exa- mination to refresh his memory. 1 Ph. Ev. 446 ; see post. (d) Hare's case cited in Lambe's case, 2 Leach, 559. But in R. v. Harris, Mo. Cr. C. 338, where the prisoner was charged before the magistrate with stealing an ewe of the prosecutor, named Bennet, and a sheep of another person named Pennell, it was proved that he made a statement before the magistrate as to both, and that the magistrate took down what the prisoner said about Pennell's sheep, but not what he said about the prosecutor's ewe. Parol evidence of what the prisoner had said as to stealing the ewe was re- ceived; and upon the case reserved for the opinion of the judges, they held that it was properly received. Upon this case Mr. Phillips observes, that it might be on this ground, apparently, that such evidence was not in sub- stitution of anything in writing ; 1 Ph. Ev. 446; and he remarks, that in R. v. Lewis, 6 C. & P. 162, in which R. v. Harris was cited, Gurney, B., re- fused to receive similar evidence, id. note (4). And in R. v. Walter, 7 C. & P. 267, where the magistrate returned that the prisoner said, " I decline to say anything," Lord Abinger, C. B., refused to hear parol evidence of a con- fession made before the magistrate. See also R. v. Rivers, 7 C . & P. 177. Parol evidence might be admitted if the examination be lost or destroyed, 1 Burn's 342 Examination of the Prisoner. importance of to writing equally concerns the public and the party correctness. , ii'.i ' accused, and the evidence of it should not therefore be left to the uncertain memory of a witness, who may, either through inadvertence or design, by selecting only a part of what has been said, or by using different words, give a statement very different from that made by the prisoner(a). And although the volun- tary statement of the party accused, deliberately made and correctly recorded, and therefore not liable to mis- representation, is the highest and most conclusive evi- dence against him(i), on the contrary, the danger of relying upoii evidence of such a statement, if hastily made or taken, is great. It is also to be borne in mind, that this evidence is not, in the ordinary course of things, to be disproved by that sort of negative evidence by which the proof of plain facts may be and often is con- fronted^). Examination to The examination should be committed to writing at the time when made ' Wh ere a prisoner, when in cus- time when tody, made a confession to the officer who had charge HI ft d 6* of him ; before being brought before the magistrate, the officer left the prisoner, and afterwards wrote down from recollection what the prisoner said to him ; what the officer wrote was read over to the prisoner when brought before the magistrate, who told him that the offence imputed to him affected his life, and that a con- fession might do him harm ; the prisoner then said, that J., p. 778, 26th Edit. Confession II. semble. Where the depositions have been regularly drawn up and returned by the magistrate to the proper officer, and it is proved by the latter that they cannot be found after dili- gent search, a copy of the depositions may be read which is proved correct by the magistrate's clerk ; R. v. Shellard, 9 C. & P. 277 ; the copy was read for the purpose of allowing the prisoner's counsel to cross-examine the wit- ness as to what he had said before the magistrate. (a) 1 Leach, 310, in n, ; Post. Disc. 243; Phil. Ev. 419, and n. (3), ib. (Z>) Lambe's case, 2 Leach, 554. (c) Post. 243 ; 4 Black. Com. 357. Examination of the Prisoner. 343 what had been read to him was the truth, and signed the paper the judge refused to receive the writing in evidence, stating that there were two grounds of ob- jection. First, that it had been improperly obtained by the officer, who had tampered with the prisoner to in- duce him to make it. And having censured in strong terms the conduct of the officer(a), he proceeded to observe, with respect to the mode of committing it to writing, " we have not here the confession of the pri- soner ; we have only the officer's recollection of it, put into writing when the prisoner was not present , and in the language of the officer, and not in the words used by the prisoner. If a confession be not taken in writing, we must be content with the recollection of the witness who proves it, because we cannot have any more cer- tain account of it. I will receive nothing as a confes- sion in writing that was not taken down from the mouth of the prisoner in his own words, nothing that he says that has any relation to the subject being omitted, nor anything added, except explanations of provincial ex- pressions or terms of art. The reading this paper to the prisoner, and his acknowledgment that it was cor- rect, does not remove the objection ; as by a change of language a very different complexion might be given to the statement from that which the prisoner intended, and which he might not discover when it was read over to him"(#). It was further stated by counsel in this case, that Dallas, C. J., had, at a former assizes, refused to receive a confession, because it was not in the prison- er's own words(c). (a) Ante, 336, 337 ; see also R. v. Kerr, 8 C. 8s P. 176, and the obser- vations of Doherly, C. J., R. v. Hughes, 1 Cr. & D. C. C. 15. (6) By Best, J., Sexton's case, 1 Burn's J., (24th Edit.) 693; Chetw. Suppl. 103. (c) Burn, ut sup. 694. 344 Examination of the Prisoner. Reading over When the examination of the party accused has Signature of prisoner. Prisoner may retract admis- sion. thus been taken in writing, it should be read over to him in an audible and deliberate manner, or carefully perused by him, so that he may perfectly com- prehend it ; and the magistrate should then ask him if the statement be true, and what he intended to make, and if he admit it to be true, it should be tendered to him for his signature. If he cannot write, he should be asked to affix his mark, as in the case of an informa- tion^). The prisoner, however, may, and frequently does, refuse to sign; and although it is in all cases desirable to have his signature, it is not indispensable. Where, therefore, the statement is thus deliberately read to or perused by the prisoner, and he thereupon ex- pressly acknowledges it to be true, it may be received in evidence as a confession, even though he should re- fuse to sign it(Z>). But -the prisoner may retract what he (a) Ante, p. 1 75, (V) Lambe's case, 2 Leach, 552. In this case the examination was ad- mitted in evidence, though the magistrate also had neglected to sign it. This case was decided upon the construction of the former Statute, 10 Car. I. St. 2, c. 18 ; but see new St. 9 Geo. IV. c. 54, ss. 2, 3, by which latter Stat. the magistrate is required to subscribe the examinations ; ante, p. 305 ; though from the judgment of Grose, J., the late Statute would seem capa- ble of the like construction in this respect. And, in another case, minutes which had been taken by the solicitor for the prosecution, in the form in which examinations were taken in the office and by the direction of the examining magistrate, were permitted to be read in evidence at the trial, though not signed either by the prisoner or the magistrate, (see post,^) such minutes having been deliberately read over to the prisoner, who at first said, " it is all true," though when read to him at a subsequent time, with a view to his signing them, he refused to do so, saying, that a particular passage in the examination was untrue ; it appearing, however, that the only reason alleged by the prisoner for his refusing to sign the examination was, because the part of it before stated was, as he said, untrue. A memorandum of the circumstance had been made on the back of the examination. This case was also under the repealed Statute. Thomas's case, 2 Leach, 637. See also Bradbury's case, Id. 139, in note; Archb. Cr. L. ; 2 Burn, 116. Examination of the Prisoner. 345 has said(0); and it seems that even although he does Or refuse to ac- knowledge or not in express terms retract or deny the correctness of sign it. what has been taken down, if he refuses to sign the examination when read over to him, and makes no ad- mission of its truth or correctness, it will not be received in evidence. Thus where the clerk of the magistrate had taken down the examination from the mouth of the prisoner, and it was afterwards read over to him, and, upon being told that he might sign it or not as he chose, he declined to sign it, the learned judge refused to re- ceive it in evidence, observing, however, that if when read over to him the prisoner had said that it was true, the case might have been different(6). The rule thus j. p. should established with respect to the admissibility of the examination in evidence, and which is calculated to protect the prisoner from being prejudiced by any un- guarded or unintentional admission, demonstrates the propriety and importance of the magistrate's proceeding deliberately, and permitting the prisoner full time to comprehend perfectly what has been taken down, and deliberately to admit, or to vary, or to deny, either in part or entirely, its truth or correctness. But although the prisoner retract what lie has All written do- stated, if it has been committed to writing, it should returned to the be returned with the informations, and the words used courtt by him on the occasion of retracting or refusing to sign the writing should be stated at foot thereof, in order that the court may thence be enabled to decide whether or not it shall be received in evidence as an examina- tion ; and also because, if rejected as such, it seems that it may be permitted to be used by the witness or person (a) Sennet's case, cor. Wilson, J., 2 Leach, 553, in note. So it is said by Lord Hale, " I have often known a prisoner disown his confession upon his examination, and he has sometimes been acquitted against such his con- fession." 2 Hale, 284, 285. (6) R. v. Telicote, 2 Stark, N. P. C. 483. 2 Y 340 Examination of the Prisoner. who has written it down to refresh his memory in giving evidence of what the prisoner has stated(a). If the prisoner cross-examine any of the witnesses against him, the answers should be taken down and returned with the informations^). And if the accused decline to say anything it should be so stated and returned. Forms must be Care should be taken to head or subscribe the ex- correct. ... i i animation as such correctly, to prevent any objection to its admissibility as such when offered in evidence. Thus upon an indictment for burglary, when it appeared that the prisoner had been examined before the magistrates' and his examination reduced to writing by their clerk, and signed by the magistrates, but there was nothing on the face of the paper to shew that it was an exami- nation taken on a charge of any felony, or that the magistrates who signed it were then acting as magis- trates, it was rejected 'in evidence as an examination; though the judge permitted the clerk to be called to prove what the prisoner had said, and to refresh his memory from this paper(c). And in another case in which the statement made by the prisoner was erro- neously entered by the clerk in the information book, headed, " The information and complaint of A. B., &c.," it was rejected, though the magistrate's clerk was at the trial, and could have explained the mis- take^. So when, on the examination before the ma- gistrates, the clerk, in taking down the statements of (a) 2 Russ. C. L. 658 ; Rose. C. L. 47 ; Tarrant's case, 6 C. & P. 182 ; Pressly's case, id. 183. So if a prisoner, during the examination of the wit- nesses against him, make an observation, parol evidence may be given of it, if the magistrate's clerk prove that he took down only the evidence of the . witnesses, and the statement of the prisoner, after the evidence against him was concluded. R. v. Spilsbury, 7 C. & P. 187. (ft) R. v. Potter, 7 C. & P. 650, n. So all documents should be returned. R. v. Simons, 6 C. & P. 540 ; R. v. Fuller, 7 C. & P. 269. (c) R. v. Tarrant, 6 C. & P. 182 ; R. v. Pressly, id. 138. . Bentley,id. 148. Examination of the Prisoner. 347 the prisoners, left a blank where any of them had men- tioned the name of another of them, the judge at the trial would not allow the blanks to be supplied by parol evidence(a). The examination when committed to writing should j^^ 6 by be signed by the magistrate taking it(). If taken at petty sessions, it should be signed by two justices at least, unless there be only one present, when his signa- ture alone is sufficient (c). It is laid down by Lord Hale, that in proving exa- Mode of . . ~ j . c .. f .. proving exami- mmations of prisoners and informations of witnesses, nation at the taken before justices of the peace, oath is to be made in tnal * court by the justice or his clerk, that the examinations or informations were truly taken (d). In practice, how- ever, it is said in a book of authority to be certainly not unusual to permit the examination to be read upon proof of the identity of the instrument and of the hand- writing of the magistrate, if he has signed the exa- mination, which now he is in all cases required to do(tf). It seems that the examinations, if signed by the prisoner, may be proved by proof of his handwrit- ing^) ; for if he signs his name, this implies that he can read, and that he has read the examination and adopted it. But if not signed by him, or if his mark only be affixed to it, it must be proved further that it was duly read to him, either by the magistrate or his clerk, or by an attesting witness(^r). In such case, also, (a) R. v. Moore, 8 C. & P. 605. (b) 9 Geo. IV. c. 54, ss. 2, 3. The signature of the justice to examina- tions or informations, though usual, was not required under the former Stat. 10 Car. I. s. 2, c. 18 ; Lambe's case, 2 Leach, 552. (c) 7 & 8 Geo. IV. c. 67, s. 15 ; 6 & 7 Will. IV. c. 34, s. 7, ante, pp. 88, 92. (d) 2 Hale, P. C. 52, 284. (e) 2 Russ. 659, (n) ; 2 Burn, 118; R. v. Foster, 7 C. & P. 148. (/) R. v. Chappel, 1 Mo. & R. 396. (g) Ph. Ev. 630 ; Rose. Ev. C. L. 61, where see the authorities col- lected. But in Pressly's case, 6 C. & P. 183, where the examination was 348 Proof of Examinations. Form to be used when prisoner does not write. J. P. or clerk should attend. J. P. may be fined for non- attendance at Confessions. it is proper to state at foot of the examination, thus, " having been first truly read to the above named A. B. [the prisoner] by me ;" and if he affixes his mark, add " before he affixed his mark thereto." It is usually read by the magistrate and then signed by him ; but if read by the clerk or any other person, the person so reading it should affix his signature in addition to that of the magistrate(a). But, though other proof be admissible, it is obviously desirable in all cases where the exami- nation is to be used against the prisoner, that the magistrate, or his clerk, should attend and state the mode in which it was taken(). Formerly the justice used always personally to attend with the informations to certify them(c) ; and by the precept for the general gaol delivery, the sheriff is commanded to attend at the assizes in person with his under-sheriff, and to give notice to all justices 'of the peace, mayors, coroners, &c., that they be then and there in their own persons with their rolls, records, indictments, and other remem- brances to do those things which to their office in that behalf appertain. By virtue of this all justices of the peace and others so mentioned, of that county where the judges have their assizes are bound to be present, and if they make default without lawful impediment, the judges may set a fine on them for their neglect(o?). The principles which regulate the admissibility in evidence of confessions made in the course of examina- tion before magistrates, are the same as are applicable to confessions generally(e). To be admissible in evi- not signed by the prisoner, the Judge said it would be the safer course that it should not be read, but that the clerk by whom it was taken might re- fresh his memory from it. (a) Ante, 175. (6) See Rose. Cr. L. 59. (c) 1 Burn, 123, see post. (d) Cro. Circ. C. 3 ; 4 Bl. Com. 270 ; 1 Burn, 298, " Assizes." (e) Phill. Ev. 420 ; 1 Burn, 809, et seq. Arch. Cr. L. 109. Of Confessions. 349 dence the confession must be free and voluntary. If it be obtained through the influence of hope or fear, excited by a person in whose power the prisoner is, or from whom he may expect protection or favour, however slight the inducement may be, it will not be received in evidence (a). And this rule extends to any statement in the nature of a confession, though in terms it charges another person, or purports to be a refusal to confess. Thus, saying 1 to the prisoner that it will be worse what induce- f i- -ni 1 / u c i-- -ru i ment sufficient for him if he do not confess, or better for him it he do, to invalidate a will render the confession inadmissible in evidence(&) ; confession. and so will any expressions, which, though they scarcely amount to a threat or promise, yet might be understood by the prisoner to imply that if he did not confess he should be prosecuted, and if he did confess he might escape ; as when it was said " unless you give me a more satisfactory account, I will take you before a magis- trate"^) ; or when the prosecutor said, " he only wanted his money, if the prisoner gave him that, he might go to the devil if he pleased," after which the prisoner took some money out of his pocket, saying it was all he had left of it(e?) ; or when, after the constable had told the prose- cutor that he must not use any threat or promise, the latter said to the prisoner, " I will be obliged to you if you would tell us what you know about it, if you will (a) This rule is founded on the supposition, that the presumption in fa- vour of the truth of the confession, from its being against the prisoner's inte- rest, is more than counterbalanced where there is reason to suppose he has been deluded by the hope of escape or lenity, or the fear of greater punish- ment. See Phill. Ev. 423 ; Gilbert, Ev. by Lofft. 137 ; WarwickshalV s case, 1 Lea. 263 ; Butcher's case, id. 265 in n. (&) 1 Ea. P. C. 659; 1 Burn, 811. In R. v. Cass, 1 Lea. 293 in n. Gould, J., said, that the slightest hope of mercy held out to a prisoner to induce him to confess will invalidate the confession. (c) R. v. Thompson, 1 Lea. 292. (d) R. v. Jones, R. & R. C. C. 152. 350 Of Confessions. What induce- ment invali- dates a confes- sion. not, we of course can do nothing," thereby implying, (as it was held,) that if he did they could do something for him(a) ; so when the words used were, " I am in great distress about my irons, (stealing an iron bar being the charge,) if you tell me where they are I will be favour- able to you"(&) ; or, " you had better split, and not suffer for all of them"(c) ; or, " you are under suspicion of this, and you had better tell all you know"(o?); or, "you had better tell where you got it" (e) ; or, " it would have been better for you if you had told at first"(/) ; or when a sea captain said to a sailor (the prisoner) " that unfortunate wretch has been found, and if you do not tell me where your partner was, I will commit you to prison as soon as we get to H. You are a damned villain and the gallows is painted in your face"(g) ; or when the magistrate's clerk, before the prisoner had said anything at the examination, tddhim to say nothing to prejudice himself, as he would take down what he (the prisoner) said, and it would be used "for him or against him" at his trial(A) ; or, when the constable said, " it is of no use for you to deny it, for there is the man and boy who will swear they saw you do it"(i) ; or, " you had better not add a lie to the crime of theft"(/) ; or when, after the constable saying, "I have received information that you were delivered of a child," on the prisoner's denying it, the former added, " I will search you for the child, so you had better tell me where it is"(&) ; or when the constable said, " I have enough against (a) R. v. Partridge, 7 C. & P. 551. (6) R. v. Cass, 1 Lea, 328, n. (c) R. v. Thomas, 6 C. & P. 353. (d) R. v. Kingston, 4 C. & P. 387. ( murt have been held out by some person whose authority, or in situation may be reasonably presumed to give them an their presence ; . ,. . influence with the prisoner, as a magistrate, constable, or the prosecutor, or a person having the prisoner in custody though not a constable(a), or the master of a prisoner, or mistress of a female(6). If the inducement be held out by a person not presumed in law, to be in authority over the prisoner for the purpose of thus invali- dating the confession, but yet in the presence of, and apparently sanctioned by a person thus in authority, it seems it will have the same effect as if it had been actu- ally held out by a person in authority(c). But when the threats or promises come from persons interfering officiously without any authority, they will not have this effect(d). Thus when some neighbours, who had nothing to do with the apprehension, prosecution, or examination of the prisoner, officiously interfered, while the constable had the prisoner in custody, taking him (a) R. v. Enoch, 5 C. & P. 539 ; 2 Russ. Cr. L. 645-7. (6) R. v. Taylor, 8 C, & P. 734. In R. v. Upchurch, 1 Moo. Cr. C. 465, the inducement was held out by, and the confession made to the wife of the prisoner's master, who was also the prosecutor ; the prisoner was a girl. In R. v. Simpson, 1 Moo. Cr. C. 410, the inducements were used by several of the prosecutor's relations and friends, and the confession made to one of them. Both confessions were rejected in evidence. (c) R. v. Taylor, ubi sup.; R. v. Pountney, 7 C. & P. 303; Phill. Ev. 429. It may be here observed, that although confessions have been reject- ed after inducements held out by persons not in authority, but when the confessions were made to the persons holding out the improper inducement (see the several cases cited, ante, p. 350, especially R. v. Dunn, 4 C. & P. 543, where it was expressly so held,) a doubt seems latterly to have been, entertained by the judges (in England) on this subject; and it has been stated in a recent case, R. v. Taylor, 8 C. & P. 734, to be their opinion that any confession is receivable, unless there has been some inducement held out by a person in authority. In R. v. Spencer, 7 C. & P. 776, it was treated by the judge as an unsettled question. (d) 1 Burn, 812 ; Phill. Ev. 428 ; Archb. Cr. L. 110. Of Confessions. 355 before the magistrate, and admonished the prisoner to tell the truth, to which no answer or observation was made by the constable, nor did the prisoner answer them, but desired the constable to call upon him in an hour at the prison, which the constable did, and there the prisoner made a full confession, it was received(a). So when the wife of the constable had told the prisoner, some days before the commitment, that it would be better for him to confess, and he did confess before the committing magistrate, the confession was received(6). And although improper inducements to confess have been Effect of sub- previously held out to the prisoner, if an explicit caution t^ 60 ^^ be given by the magistrate in the manner before J. P. should suggested(c), and the propriety of which is thus exem- glve plified, such caution will generally render admissible a subsequent confession, whether made in the course of the examination or not. Thus a confession before the justice has been held to be clearly admissible, when the prisoner, on being taken into custody, had been told by a person who came to assist the constable, that it would be better for him to confess; but when, on his being examined before the committing magistrate on the following day, he was frequently cautioned by the magis- trate to say nothing against himself (d). And when the constable told the prisoner, he might do himself some good by confessing, and the prisoner afterwards asked the magistrate, if it would be any benefit to him to confess, on which the magistrate said he could not say it would, and the prisoner then declined confessing ; but after- wards, on his way to prison, made a confession to ano- ther constable, and again in the prison to another ma- (o) R. v. Row, Russ. & Ry. C. C. 153. 0) R. v. Hardwick, I C. & P. 98, n. (c) See ante, pp. 334, 335. (d) R. v. Lingate, cor. Bayly, J., Phill. Ev. 441. 356 Of Confessions. gistrate, the confessions were received (a). And even when the magistrate, knowing that previous improper in- ducements had been held out, in cautioning the prisoner, did not allude to the confession made in consequence of them, but merely told the prisoner that he need not say anything before him (the magistrate) and that his confession would do him no good, a subsequent confes- sion was received in evidence(i). So it has been held no objection to a confession made before a magistrate, that the prosecutor who was present first desired the prisoner to speak the truth, and suggested that he had better speak out, when the magistrate's clerk immediately checked the prosecutor, desiring the prisoner not to regard him, but to say what he thought proper(c). But to obviate objections to the admissibility in evidence of a confession made to the magistrate, if any inducement has been previously held out to the prisoner by any other person to elicit a confession, it is always right that the magistrate should distinctly caution him in the manner before stated(c?). Discovery made Although, if the confession be improperly obtained, ** W ^ exc l ua< e not on ty evidence of the confession, but of any act done by the prisoner in consequence, towards making a discovery, unless the discovery be actually made ; for the influence which may produce a ground- (a) R. v. .Rosier, East, T. 1821, Phill. Ev. 431. (6) R. v. Howe, 6 C. & P. 404. (c) R. v. Edwards, Phill. Ev. 431. In R. v. Clowes, 4 C. & P. 221, 225, B, who was a magistrate and a clergyman, visited the prisoner, and told him if he would tell all he knew, he (B) would use his endeavours and influence to save him, and if he did not make a disclosure some one else would pro- bably do so ; after this B wrote to the Secretary of State, who returned an answer, refusing mercy to the prisoner, which B communicated to him ; the prisoner afterwards sent for the coroner, who cautioned him not to confess ; a confession subsequently made was held to be admissible. (d) Ante, pp. 335, 355. Confessions Prisoners Witnesses. 357 less confession may also produce groundless conduct(a) ; yet if, in consequence of the information thus obtained from the prisoner, a certain fact has been ascertained, as when stolen property is discovered, the fact that the discovery has been made in conformity with the prison- er's information will be evidence against him(#), as the fact could not be affected by the inducement. In concluding the observations upon this subject, it Collusive con- . _ fessions. may be suggested to the magistrate, that he may have to guard not only against extorted, but, in some cases, also against collusive confessions. A remarkable in- stance of this kind deserves to be mentioned as illus- trative. Two brothers committed a robbery in a dark night to a large amount, and fled. A younger brother, who was innocent, in order to favour their escape, con- trived to draw suspicion on himself, and when examined used many equivocal expressions, amounting to a vir- tual confession. He was thereupon committed to pri- son, and all pursuit of his brothers was discontinued. On his trial he proved an alibi on the clearest evidence, and was consequently acquitted. In the meantime the actual felons had safely arrived in America with their plunder (c). VI . If the prisoner desire to produce evidence in witnesses for his defence, it is usual to permit him to do so, although P nsoner< this is in the discretion of the magistrate ; and accord- ingly Stat. 9 Geo. IV. c. 54, s. 1, enacts, that nothing therein contained shall be construed to require the ma- gistrate to hear evidence on behalf of a person charged with felony or suspicion thereof, unless it shall appear to such magistrate to be meet and conducive to the ends of justice to hear the same. But although the (a) R. v. Jenkins, R. & R. Cr. C. 492 ; Phil. Ev. 433. (ft) See authorities cited, Phil. Ev. 432 ; 2 Stark. Ev. 288 ; Arch. Cr. L. 112 ; 1 Burn, 814 ; R. v. Gould, 9 C. & P. 364. (c) 1 Dick. J., 629, " Examination, III." 358 Witnesses for the Prisoner. J. p.,rthough prisoner is not, in strictness, entitled to produce evi- shouVlfre- dence, it has been justly observed, that it seems diffi- quired, hear cu lt to suppose any case where, if a prisoner say that he has evidence, it would not appear conducive to the ends of justice to hear it(). For although the pro- ceeding before the magistrate is not in the nature of a trial, nor conclusive as to the guilt or innocence of the party accused, and its conduct is subject to such control as the magistrate, in the exercise of a sound discretion, may think proper, (as whether the in- quiry shall be public, or whether the prosecutor or accused shall have professional assistance)(&) ; and although it may be imprudent upon the part of the accused thus to anticipate his defence, yet it may be also that the accused can adduce such evidence as will satisfy the magistrate of the utter improbability or groundless nature of the charge ; or that it is of a cha- racter not to be the subject of indictment, as if it be a mere trespass, the subject of a civil action, or brought forward in order to endeavour, through the medium of for he may dis- a criminal prosecution, to establish a civil right(c), and miss the charge, such that the magistrate may exercise a sound discre- which does not . . * prevent indict- tion by refusing to take or send forward the informa- ment< tions, leaving the party to his remedy by indictment, from which he is not thereby precluded, if he think proper to prefer it. Accordingly, it is stated by the writers upon this subject, to be the practice of magis- trates in England to receive exculpatory evidence at the instance of the prisoner, and to permit his witnesses to be sworn and examined by him, and cross-examined by the prosecutor, and also to have their depositions taken down, and certified and returned in like manner (a) Carr. Cr. L. 9 ; R. v. Fuller, 7 C. & P. 270, n. (6) Ante, pp. 76, 77. (c) Ante, pp. 71, 73. And see the judgment of Bayley, J.,and Best, J., in Cox v. Coleridge, 1 D. R. M. C. 149, 181, 188, et passim. Prisoners Witnesses Dying Declarations. 359 as those for the prosecution(a) ; and such is the prac- tice of several of the police offices in the district of Dublin metropolis. It has been also suggested by an Advantages of experienced Crown lawyer, that in all cases it is highly heann s them * advantageous that the prisoner's witnesses should be examined before the magistrate, and their depositions returned to the court, for two reasons; first, because it would give the prisoner an opportunity of applying to the judge to have the depositions read in case the witness died before the trial ; and, secondly, because it would be a great check upon false witnesses improving their tale between the time of examination and the time of the trial(#). Whenever witnesses are examined for the Depositions to prisoner, their evidence should be returned with the other depositions to the court(c). CHAPTER XII. OF DYING DECLARATIONS. BESIDES the information of the accuser and deposi- Dy i ng Declara- tions of witnesses, taken in pursuance of the Statute tion ' 9 Geo. IV. c. 54, there is another species of evidence which rests upon different grounds, and respecting which a different duty is imposed upon the person receiving it ; and which therefore ought not to be con- founded with that above noticed. This is a statement or declaration by a person, who at the time of making it was under the apprehension of death from a mortal injury, with respect to the circumstances under which he came by such injury, and which is received in evi- (a) 1 Chit. Cr. L. 89; 2 Burn, 121; Stone's Sess. 207; and see Dalt. c. 165, p. 381, cited by Best, J., in Cox v. Coleridge, 1 D. & R. M. C. 188 ; R. v. Fuller, 7 C. & P. 269. (6) R. v. Fuller, ubi sup. note by Messrs. Carrington and Payne. (c) R. v. Fuller, 7 C. & P. 269 ; ante, p. 345. 360 Of dying Declarations. betweenTin dence * n criminal prosecutions only when the death of declaration and the person making it is the subject of the charge(). Such Declarations are not required to be made (like those in informations or depositions) before a magistrate, but when time and the state of the party will permit, it is always desirable, and from the nature of his office it is probable, that a justice of the peace should be called upon in preference to any person of less experience and information to receive them ; and as this is fre- quently a duty of great delicacy and importance, it is pro- posed to introduce a few observations upon it, although not strictly belonging to the office of a magistrate. The general principle upon which this species of evidence is admitted is, that the awful solemnity of the situation under which it is delivered removes every motive to falsehood and impresses the mind with the most powerful considerations to speak the truth (b). Requisites of (a) R. v. Meade, 2 B. & C. 605 ; 2 D. & R. M. C. 176, S. C. ; R. v. Hutchinson, 2 B. & C. 608 ; R. v. Lloyd, 4 C. & P. 233 ; Phil. Ev. 294, et seq. ; 2 Stark. Ev. 458, 463 j 2 Barn, 40; and it is doubtful if a dying declaration would now be evidence in any civil case, see Phill. Ev. 291, 292. In R. v. Baker, 2 M. & Rob. 53, on an indictment for the mur- der of one person by poison mixed in a cak e, the dying declaration of another, his maid servant, who had made the cake, and who, after she knew of her master's death, had eaten some of it, saying she was not afraid of it, and died in consequence, was received ; but the learned judge said he would reserve the point for the opinion of the judges j the prisoner was however acquitted. The declaration of a subscribing witness confessing the forgery of a deed,was admitted as evidence of the forgery, in Wright v. Littler, 3 Burr. 1244 ; see also a case cited in Aveson, v. Kinnaird, 6 East, 195 j but see the observa- tion of Abbot, C. J,, upon these cases, Doe v. Ridgway, 4 B. & A. 54, and of Bayley, J., id. 455. (&) Woodcock's case, 1 Leach, 502; Drummond's case, ib. 337, Phill. Ev. 295; 1 Stark, Ev. 94. It has accordingly been held that a declaration in articulo mortis, made by a child only four years old, is not admissible in evidence, on the trial for the murder of such child, because a child of such tender years could not have had the idea of a future state, which is necessary to make such a declaration admissible, R. v. Pike and Wife, 3 Car. & P. Of dying Declarations. 361 In order, therefore, to render the declaration of the dying Apprehension person admissible in evidence, it is not sufficient merely ^ carefuli 10Uld that he should appear to others to be in danger of death, ascertained. but it should be collected either from his own declara- tion or other circumstances that he was himself at the time aware of his situation so as to be fully impressed with the hopelessness of his recovery(a). The first object, therefore, of the magistrate or other person about to receive a declaration of this kind should be to ascertain if this be the case; and the state of mind of Expressions of . , . 1111 . 'ii-i the deceased. the dying person should be, as far as is possible and consistent with the caution and delicacy which may be due to his situation, collected from himself. It may Circumstances. however, be inferred from the nature and circumstances of the case, even though the declarant do not ex- press any apprehension of danger (&); and in general, even when he does, his whole conduct, and not merely what he says respecting his condition, will be considered for the purpose of determining whether his declaration shall be received in evidence(c); for persons often use expressions to the effect that they will not recover, who have no real conviction that their death is approaching(c?). So representations made to the de- 598 ; bat the dying declaration of a child under ten years old, was held receiv- able by all the judges in R. v. Perkins, 2 Moo. Cr. C. R. 135, when the child was stated to be very intelligent, and had said he knew he would go to hell if he told a falsehood, and to heaven if he told the truth. (a) Woodcock's case, 1 Leach, 503 j R. v. Campbell, 1 Cr. & D. C. C. 150 ; and see cases in note, ib. Whether the deceased made the declaration under the apprehension of death, is a question for the judge, and not for the jury to determine, previous to its admission in evidence, John's case, 1 Leach, 504, n. ; 1 East, P. C. 360 j 1 Phill. Ev. 304. (6) Woodcock's case, ubi sup., and see Thomas Johns case, ibid. in note j 1 East, P. C. 354, 358 ; R. v. Banner, 6 C. & P. 386; 1 Phill. Ev. 297 2 Stark. Ev. 460. (c) 1 Phil. Ev. 298 ; R. v. Spilsbury, 7 C. & P. 187. (d) By Coleridge, J., in R. v. Spilsbury, ubi sup. 3A 362 Of dying Declarations. Length of time before dealh. Representations ceased are frequently of importance in ascertaining his of others. , , , probable opinion as to his own danger(a). In deci- ding upon the admissibility in evidence of such declara- rations, the circumstance that the deceased was in a situation which rendered almost immediate death inevi- table, will also be considered ; for it has been observed, that a man may receive an injury, from which he may think he shall ultimately never recover, but still that would not be sufficient to dispense with the obligation of an oath ; and although there are no precise limits laid down with respect to the time which may elapse between the declaration and the moment of death, nor any rule founded on that circumstance only, the length of time may obviously be a most material consideration in judging of the declarant's real expectation of impend- ing death(6). But not only for" the purpose of ascertaining the party's sense of his danger, but also the degree of his observation and recollection, the evidence as to which may afterwards materially affect his declaration, (a) Phil. Ev. 300, 301. Thus where the declaration of the deceased, that the prisoner had induced her to take poison, was made to the apothecary within an hoar before her death, the apothecary having told her, that she mast know what she had done, and that she could not live twenty-four hours un- less proper relief was afforded, the declaration was held inadmissible ; because the deceased was given to understand, that if she told what was the matter with her, she might have relief and recover ; Welbourn's case, 1 East, P. C, 358. So in another case, where the deceased had asked his surgeon if the wound was necessarily mortal, and was told by him in answer, that persons had recovered under like circumstances, but that the case was one of extreme danger, the declaration was rejected on the ground, that the language of the surgeon was calculated to keep up in the mind of the deceased some expec- tation of recovery, Christie's case, 2 Russ. C. L. 685. (&) 1 Phil. Ev. 298, 299; R. v. Crotchet, 4 C. & P. 544 ; Woodcock's case, 1 Leach, 502. In R. v. Van Butchell, 3 C. & P. 631, a declaration was rejected which was made seven days before the declarant's death. In Motley's case, 1 Moo. Cr. C. declarations were received, made eleven days before death. Cautious" ob- servation ne- cessary. Of dying Declarations. 363 the most minute and scrupulous attention will be ne- cessary. The very sense of danger, while it induces an obligation to speak the truth, may agitate and weaken the understanding, and the confusion and sur- prise connected with the object of the declaration, and the decay of nature necessarily resulting from a mortal injury, tend to impair the distinctness of the memory and perception, and may lead to a statement, which, how- ever sincere, may be fatally erroneous (a). It is also to be remembered, that the preventives to falsehood af- forded by the presence of the party charged, and the opportunity of cross-examination, and by the fear of a prosecution for perjury, are wanted ; and it cannot be concealed, that even in this awful situation, feelings of animosity and resentment are sometimes found to con- tinue^). The magistrate or other person to whom such a dying declaration may be made, and by whom an admonition to speak the truth in the awful situation under which the party offers such declaration is usually given, should therefore observe the greatest circum- spection and attention to note every circumstance ac- companying it by which the true meaning and the weight due to such declaration may be ascertained, and the statement of which in evidence, upon a subsequent trial, may have an important influence upon the ver- dict of the jury. And the Court will in general require to hear all that the deceased has said relative to his situation, in order to ascertain whether he had that impression upon his mind, which will make his declara- tion admissible(c). (a) Pothier by Evans, 293 ; Phil. Ev. 305. (6) In R. v. Crockett, 4 C. & P. 544, the declaration was " that damned man has poisoned me." And it maj be observed, that dying declarations, if received, may have the greatest weight with juries j see the remark of Cole- ridge, J., in R. v. Spilsbury, 7 C. & P. 190. (c) R. v. Van Butchell, 3 C. & P. 631 ; Phill. Ev. 299, 305, 306. 364 Of dying Declarations. To be taken without oath. May be in the absence of the party accused. Advisable though not indispensable to take down the declaration in writing. The situation of the dying man is considered by the law as creating an obligation equal to that which is imposed by an oath ; such declaration is, therefore, pro- perly taken without oath, even when made before a magistrate ; nor, in fact, has the magistrate thus acting extra-judicially, any authority to administer such an oath(a). The declaration, however, is not inadmissible, because it was made under the additional, although useless, obligation of an oath thus extra-judicially ad- ministered^). In taking the depositions of witness, under the Sta- tute, the presence of the party accused is essential to their validity as evidence, but in the case of a dying declaration, the presence of the accused is unnecessary, and the necessity of cross-examination is dispensed with from the supposed absence of any motive for falsehood, in the party making the declaration (c). It is no ob- jection in point of law to a declaration, that it was made in answer to questions(W), though solicitations natu- rally weaken the effect of the evidence. Lastly, the attestation of the magistrate to such a declaration is not requisite, and it is admisible, although not committed to writing(e). But as such declarations, when depending upon fallible memory and verbally reported, are liable, as other statements, to be misunder- stood, or misreported, whether from inattention or in- firmity of memory, it is usual, and should never be omitted when circumstances and the situation of the (a) Woodcock's case, 1 Leach, 503 ; 4 Bl.Com. 137; and see the obser- vation in note, 2 Stark. N. P. C. 2 11, and Stat. 5& 6 Will. IV. o.62,s. 13. (6) 1 Leach, 500, 502 ; 2 Stark, Ev. 458, 459 ; Phil. ET. 302. (c) 1 Phil. Ev. 235, (5th Edit.) 2 Stark. Ev. 461 ; 1 Stark. Ev. 101. (d) R. v. Fagent, 7 C. & P. 238 ; R. v. Woodcock, ubi sup. ; R. v. Reason, 1 Str. 499. (e) Tinchler's case, 1 East, P. C. 354 ; John's case, id. 357 ; Wei- bourne's case, id. 358 ; Motley's case, 1 Ry. & Moo. C. C. R. 97. Of dying Declarations. 365 party will permit, to reduce the declaration to writing for greater precision ; and this should be done at the time it is made, and in the very words, or as nearly as possible in the words, used by the declarant, and it should be read over to him, in order to ascertain that it is correct ; and it is also desirable if it can be signed by the declarant in the presence of the magistrate, or other person to whom it may have been made. But if the declaration be so committed to writing, the written document must be given in evidence, and neither a copy or parol testimony respecting its contents can be admitted(a). (a) R. v. Gay, 7 C. & P. 230 ; Vin. Ab. Evidence 38, (A. B.) ; 2 Barn, 41 ; see also R, v. Reason and Tranter, 1 Str. 499 ; Phil. Ev. 303. Bat when the written examination was not ready to be produced at the trial, a previous and subsequent declaration made by the deceased, and not reduced to writing, were admitted, R. v. Reason and Tranter, Phil. Ev. 303. The duty of taking inquests in case of sudden deaths, is properly within the Inquisitions province of the coroner. A practice has, however, obtained in Ireland, for two $ u P er wsum magistrates in the absence of the coroner, to take inquisitions in cases of sudden deaths in view of the body, which seems to have originated in the dif- ficulty frequently experienced in procuring the attendance of the proper officer. The practice is, however, unauthorized by law, and the inquisition so taken cannot be used as an indictment, if such a course were considered expedient, nor is the evidence admissible in the same manner as the depositions before a coroner ; see 16th Report of the Commissioners of Inquiry into the Courts of Justice, &c., in Ireland, p. 32 j Hayes, Cr. L. 406 ; unless they might be ad- mitted as informations, if taken in the presence of the accused and subject to his cross-examination, and containing the other essentials of depositions before men- tioned, p. 308, etseq. It is, however, essential to the validity of an inquisition taken before the coroner, that it should be in view of the body, Anon. Noy. 87 ; the Welshmen's case, Pop. 209 ; Lat. 166 j R. v. Farrand, 3 B. & Al. 260 ; 2 Hale, 58, 66 ; 2 Hawk, c. 9, s. 23 j and, therefore, if the body cannot be found, or has lain so long, that no information could be gained from the view, or if there be danger of infection from digging it up, the coroner cannot hold an inquest without a special commission. But, in such cases, the inquisition may also be taken by justices on the testimony of witnesses, 2 Roll. Abr. 96; R. v. Parker, 2 Lev. 141 j 2 Hawk, c. 9, s. 23 ; Kale's Sum. 170. The reason given for this power of the justices is, that^the king may not lose his forfeiture from the inability of the coroner to hold the inquest, Pop. 366 Discharging the Prisoner. CHAPTER XIII. OF DISCHARGING THE PRISONER. of discharging IF upon the examination of the whole matter it mani- the prisoner. f es tly appear, either that no crime was committed, or that the suspicion entertained of the prisoner is wholly groundless, the magistrate may then lawfully, and it becomes his duty to discharge him(a). It appears, ubi sup. ; and see R. v. Killinghall, 1 Burr. 17, where the lord of a manor procured an inqnest to be taken by the Grand Jury, lest he should lose his deodand, which was, however, quashed. Snch'an inquisition ought not, however, to be in view of the body, for none can legally hold an inquest super visum cor- poris, but the coroner, R. v. Bunny, 1 Salk, 190 ; and it is indictable to bury the body of one who has died a violent death without sending for the coroner, R.v.Clerk, Salk, 377 j 2 Hawk,c. 9, s, 23, note ; 1 Russ. 416 ; and it may be disinterred to allow the coroner to hold the inqnest if it has not Iain too long buried, which will depend upon circumstances. In R. v. Clerk, ubi sup., the body had been buried for seven months, and it was held too late to disinter it ; and in R. v. Sonny, Carth. 72, it was agreed that the disinterment after a year was improper ; fourteen days is mentioned as a reasonable time within which the disinterment may be made; 2 Hale, 58 ; 1 Hawk. c. 9, s. 23. It is provided, by St. 7 Will. IV. c. 2, s. 6, that it shall be lawful for any two magistrates, who, in the absence of the coroner of any county, may have held any inquest relative to the death of any person, and before whom any physician, surgeon, apothecary, chemist, or other person practising medicine or surgery, shall, in obedience to a summons from such magistrates, attend and be examined as a witness at such inquest, to grant such witness an order signed by such magistrates upon the treasurer of the county wherein such inquest shall be held, for such sum not exceeding 3, as to such magistrates shall seem fit; the amount of such payment to be presented by the Grand Jury as if the order had been made by the coroner, (under St. 6 & 7 Will. IV. c. 1 16, s. 99, Q. V.) provided such magistrates shall certify, as the coroner is directed, the amount and particulars of all such sums to the presentment sessions, and such payment shall have been approved thereat. For the proceedings before coroners on inquests, super visum corporis, see Hayes, Cr. L. 406, et seq. Jerv. Cor. 211, &c. (a) 4 Black. C. 296 ; 2 Hawk. c. 15, s. 1 ; 1 Hale, 583 ; 1 Dick., J., 627, "Examination, III." and see the cases cited infra, in note. Discharging the Prisoner. 367 indeed, formerly to have been held, and upon high au- thority, that if there were an express charge of felony, on oath, against the prisoner, the magistrate had no dis- cretion to discharge, but must have bailed or committed him(a). But this position has been controverted by all recent authorities, and cannot be considered as the law at the present day. For it has been well observed, that according to this doctrine, the liberty and character of every man in the country would be placed at the mercy, not of the magistrate, (for he is assumed to have no dis- cretion,) but at the mercy of any corrupt and infamous individual, who might think proper to make a positive oath that a felony had been committed by the person whom he accused a doctrine too monstrous to be stated as law (>); and a learned judge in one case, observing upon it, is reported to have said, " I differ from those authorities which say, that the magistrate has no dis- cretion, and that he is not to judge of the proba- bility of the case, and of the credit of the witnesses who are brought before him to sustain a charge of felony; I think the magistrate has a right to exercise his own dis- cretion in such cases, and that he is bound to do it, and he ought not, as it seems to me, to commit the party, unless he thinks there is a primd facie case made out by witnesses, whom he may think entitled to a reasonable degree of credit(c) ;" and, in the same case, another of the learned judges observes, " that this opinion is war- rantedjby the authority of Hawkins, who lays it down, that the magistrate has a right, and ought to discharge the prisoner if it manifestly appear that no crime was (a) 2 Hale, 121 ; Dalt. c. 164, pp. 407, 408. (6) Cox v. Coleridge, 1 D. & R. M. C. 159, 160. (c) By Bayley, J., in Cox v. Coleridge, 1 D. & R. M. C. 181, 149j S. C. 1 B. & C. 50, 43. 368 Discharging the Prisoner. committed, or that the cause for which alone the party was suspected was totally groundless(a)." It is to be recollected, however, that this examina- ^ n * S nOt a J U( ** c * a * i n( l u i r y m which the guilt or inno- cence of the party accused is to be finally decided upon, and, therefore, that the same degree of evidence is not to be required as would be necessary for the conviction of the party upon trial(). It is the duty of the magis- trate in this stage of the proceedings to ascertain, first, whether the crime alleged has been committed, and whether committed in the manner and with the circum- stances alleged ; and secondly, if the crime have been so committed, whether there be a reasonable ground to believe that the party accused may have committed it, such as demands a further inquiry, and for which the party should be sent to stand his trial upon the charge preferred. And as on the one hand the magistrate would act contrary to the principles of reason and jus- tice and in violation of his duty, and the regard he owes to the liberty of the subject, if he were to commit the party to prison against the clear conviction of his own understanding, and the obvious and inevitable conclu- sion of common sense ; yet on the other hand, he is bound not to discharge the prisoner unless he is per- fectly satisfied that there is no sufficient ground for judicial inquiry(c). In the discharge of this part of his duty the magis- trate may encounter cases of considerable nicety and difficulty, as where there is conflicting or suspicious (a) By Best, J., id. 188, 191 ; and see id. 159, 160; 2 Hawk. c. 15, s. 1 ; see also ante, p. 358. (6) As to hearing evidence for the prisoner, ante, pp. 357-359 ; Cox v. Coleridge, 1 D. & R. M. C. 190, 191. (c) 1 Dick., J., 627, Examination, III. ;" 2 Barn, 121 ; 9 Geo. IV. c. 54, s. 1. Discharging the Prisoner. 369 testimony, or where the informant appears pertinaciously to persevere in his accusation from an obstinate adhe- rance to a charge once made, and it seems impossible to lay down precise and invariable rules for his guidance under such circumstances ; he must act on his own res- ponsibility, but if he act with purity of intention, and according to the best of his judgment in the important trust thus reposed in him, keeping in view that this in- quiry is only preliminary and with the object above stated, he can have nothing to apprehend(a). If the evidence does not establish a satisfactory Remanding. primd facie case against the accused, but the magis- trate has sufficient reason to believe that additional evi- dence can be adduced at a future day, he may remand for further examination as before stated. And it is to be Discharge does bornein mind, that, although the magistrate mayfeel him- SUJ^I^ 6 ID " self bound to discharge the party accused from the in- sufficiency of the evidence before him, yet the prose- cutor is not thereby precluded from preferring a bill of indictment, if he shall afterwards procure additional evidence, or shall think it expedient so to do. The following provision is applicable in this place. Seamen, &c. of By Statute 44 Geo. III. c. 13, which was passed to pre- *J?C vent the collusive escape of petty officers, seamen, and charged on others, under colour of civil or criminal process, it is enacted, that when any petty officer or seaman belong- ing to his Majesty's navy, or any person who shall have voluntarily entered into, or been impressed to serve in, his Majesty's navy, shall be arrested by virtue of any warrant for any alleged criminal offence, and shall be thereby taken from or out of his Majesty's sea service, or from or out of any vessel appointed for receiving volunteers and impressed seamen to serve in his Majes- ty's navy, or out of the custody of any officer in his (a) 1 Dick., J., 627, " Examination, III." SB 370 Delivering up Seamen, %c. Majesty's sea service, with whom any such person shall have voluntarily agreed to enter into, or by whom he shall have been impressed to serve in, his Majesty's navy, or who shall have the custody or charge of him, the sheriff, gaoler, or other officer, who shall have arrested or in whose custody any such petty officer, &c., shall happen to be by virtue of any such warrant, charge, or accusation, or by virtue of the judgment or sentence of any court, shall not discharge any such petty officer, seaman, or other person as aforesaid, out of his custody, either for want of prosecution for, or upon acquittal of, the charge or accusation, upon which he shall be in custody, or by consent of the person on whose behalf he shall have been arrested, or upon giving bail, or upon any undertaking either to appear to or to answer such charge, or, in case of conviction, after the expiration of any period for which he may have been sentenced to be imprisoned, but shall detain him in custody; and shall thereupon as soon as he would be entitled to be dis- charged out of custody, with all convenient speed, safely but transmitted convey and deliver him either unto the commander-in- to a naval sta- cn j e f o f SO me of his Majesty's ships, or unto some corn- tion as herein. missioned officer of the navy, being authorized and em- powered to raise seamen for his Majesty's service, or unto some principal officer employed in regulating the service of raising men for his Majesty's fleet, which- ever shall be at or nearest to the place where he shall then happen to be, who shall thereupon give to such sheriff, gaolor, or other officer, a certificate directed to the treasurer of the navy, specifying the receipt of every such petty officer, seaman, &c., and the places from and to which he shall have been conveyed ; on presenting which the officer conveying him shall be entitled to receive two shillings per mile, and no more for convey- Certificate on each such seaman. Section 2 further directs, that transternng such prisoner, upon the transfer of any such petty officer, seaman, or in the Royal Navy. 37 1 other person as aforesaid, from the custody of any one sheriff, gaoler, or other officer, into the custody of any other, the sheriff, gaoler, or officer who has arrested, or in whose custody such petty officer, &c., shall be, shall certify in writing to the sheriff, &c., into whose custody he shall be so removed, upon the back of the writ or other proceeding for his removal, that such person so removed is a petty officer, seaman, or other person as aforesaid, as the case may be, and liable to be detained for his Majesty's service ; and so toties quoties as often as he shall be removed from one custody to another. By Action for ne- sections 3 and 4, any sheriff, gaoler, or other officer ne- 8 ec glecting to convey seamen or others as herein directed, and wilfully or negligently detaining them in custody for any time over and above the times herein specified is liable to an action of trespass. And if he shall not Penalty of safely convey and deliver any such to such commander- ing Sll ch pettT in-chief, or officer, (as specified in sect. I, supra,) but officer or sea ~ shall wilfully or negligently suffer him to escape and cape. go at large, such sheriff, gaoler, or other officer, shall for every such offence forfeit 100, recoverable in any court of record in Dublin, if the offence have been com- mitted in Ireland, or at Westminister or in the Exche- quer at Edinburgh, if committed in England or Scot- land respectively. CHAPTER XIV. OF BAIL. THE subject of this chapter (Bail) will be considered Division of under the following division : I. In what cases bail is cha P ter * to be taken by justices of the peace. II. Of bail in cases of felony. III. In cases of misdemeanor. IV. The 372 Of Ball. time when bail may be taken ; and of granting process of Liberate. V. Bail after indictment found. VI. Notice of bail. VII. The number, amount, and sufficiency of bail. VIII. The form of the recognizance, and when to be taken from sureties alone. IX. Of bail in cases of backed warrants, and when the justice acts out of his ordinary jurisdiction. X. Of requiring excessive, or taking insufficient bail, refusing it when it ought to be granted, or granting it when it ought to be denied. XI. What is to be done when bail is taken, and of the power of bail. XII. Description and classification of offences, arranged under the leading division of felonies and misdemeanors, together with the punishment an- nexed to each offence. Bail, by J. P. I. The law of bail as it regards justices of the peace, a! *54. Ge ' IV ' is now regulated by Stat. 9 Geo. IV. c. 54, by which the duty of the magistrate is clearly defined, and he is re- lieved from the consideration of the complicated enact- ments of various ancient Statutes, which had become, in many of their provisions, obsolete, being inapplicable to the altered condition of society, and the improved state of our criminal code(a). Powers of supe- It is to be premised, that this Statute does not apply to or affect the superior courts, and that the Court of Queen's Bench, or any judge thereof in vacation, in the plenitude of the power which they possess at common law, and according to their discretion, which is, however, controlled in its exercise by certain salutary rules, may (a) The provisions of 3 Edw. I.e. 15; 23 Hen. VI. c. 9 ; 3 Hen. VII. c. 5, which relate to the subject of bail, and the entire of Stat. 10 Car. I. S. 2, c. 18, are repealed by 9 Geo. IV. c. 53. It is to be observed, that by the common law every constable might have bailed persons suspected of felony, but this authority is transferred from them by several Statutes; Lamb. 15. By the Metropolitan Police Act, 6 & 7 Will. IV. c. 29, s. 7, night constables, in Dublin, are empowered to take bail from persons arrested for petty misdemeanors without a warrant. Of Bail. 373 admit persons to bail in all cases whatsoever, and for crimes in which inferior judisdictions would not ven- ture to interfere ; and the only exception to their discre- tionary authority is where the commitment is for a con- tempt or in execution(a). But although the judges are not bound by the rules prescribed by the above Statute, yet in their uniform practice, they pay a due regard to them, and, in the case of commitment by inferior magis- trates, seldom admit a person to bail, unless some very particular circumstances of ignorance, or mistake, or corruption, or irregularity in the commitment, be made manifestly to appear(6). It is also to be premised that the power of justices persons not of peace to bail is given only for offences before bailable b y Ji - trial, and where a prisoner is brought before them for (a) 2 Hale, 129 ; 2 Hawk, c, 15, s. 47 ; 4 Black. Com. 299 ; 1 Burn, 319; R. v. Marks, 3 East, 163 ; Plait's case, 1 Leach, 168 ; Ritdd's case, Cowp. 333. So the Courts of Common Pleas or Exchequer during term, and the Court of Chancery, either in term or vacation, may award a habeas corpus by the common law, for any person committed for any offence under the degree of treason or felony; and by the habeas corpus Act, 21, 22 Geo. III. c. 11, s.2, 9, 15, the Lord Chancellor, or any Judge of either Bench, or Baron of the Exchequer, in the vacation, may award a habeas corpus for any person committed for any crime except for felony or treason, and may admit him to bail, unless it shall appear that he has been committed for an offence not bailable by law ; 2 Hawk. c. 15, s. 81. (6) Bac. Ab. "Bail, D" ; 1 Dick., J., 180, "Bail, V." ; 1 Chit. Cr. L. 98, 129 ; 1 Burn, 319 ; and as to the practice of this court in looking to the informations in order to supply the defect in the commitment, see ante, p. 174. It is said that under any of the above circumstances the court will interfere especially, as well in rejecting as accepting bail, 1 Dick., J., 181, "Bail, V." ; R. v. Hooper and others, 1 Chit. Rep. 491. It may be observed, that in England a certiorari is issued, generally, to return the informations, but in Ireland the practice is to make an order directing their return, see R. v. Brown, 1 H, & B. 13 ; R. v. Rowe, and R. v. Stewart Batty, 138 ; so the practice here is to issue an order, and not a mandamus to receive informa- tions, Anon. I C. & D. C. C. 195; R. v. Carew, id. 456; Ex part* Hughes, 1 L. R. 3rd Set. 292. 374 Of Bail. examination on a charge for which he is to be held over, so that he may be forthcoming to take his trial ; and that no power is given to magistrates to bail any person on process in civil actions, or who is in commitment for contempts to superior courts, or for punishment after conviction (a). Jurisdiction of It has been seen, that the jurisdiction of justices is in general confined to matters arising within their county (6); but when an offender is arrested in another county under a backed warrant(c), and also in several other instances, magistrates may take bail. So though they can, in general, act only while resident within their proper county, yet it has been seen that, in some cases, they may exercise their authority when out of the county for which they act(d). And also it is said, that recogni- zances voluntarily taken before them in another county are valid(e). 0) 2 Hawk, c. 15, s. 64 ; 4 Black. Com. 298. So it is said that persons charged with treason that toucheth the king, are not bailable by justices of the peace, 2 Hawk.c. 15, s. 45; 2 Hale, 134 ; 6 Burn, 104 ; Hayes, Cr. L. 496. The power to bail in treason was taken away by the English Stat. 3 Edw. I. c. 15, (see 1 Ch. Cr. L. j 1 Burn, 315,) adopted here by 10 Hen. VII. c.22 ; and it is to be observed, that, although the Irish Act, 9 Geo. IV. c. 53, repeals so much of the Statute passed in the third year of King Ed w. I. " as provides what prisoners shall not be replevisable, and what shall be so/' these words are not contained in the analogous English Act, 7 & 8 Geo. IV. c. 27, so that the above Stat., 3 Edw. I.e. 15, which deprives justices of the power to bail in treason, though cited as in force in England, (see 6 Burn, 104 ; 1 Burn, 317,) appears now not to be in force in Ireland. It is pro- vided by the Irish habeas corpus Act, 21 & 22 Geo. III. c. 11, s. 16, that it shall be lawful for the chief governor and Privy Council, to suspend this Act by proclamation under the great seal, during such time only as there shall be an actual invasion or rebellion in this Kingdom or Great Britain. And that no justice shall bail any person charged with being concerned in such invasion or rebellion without an order from the Lord Lieutenant and Council, signed by six of the said Council. (6) Ante, p. 49. (c) Ante, 52, 60, see post. (d) Ante, pp. 49, 52. () Ante, 49. Bailfor Felony. 375 II. Stat.9Geo.IV. c. 54, enacts, s.l, that where any Bail for felony, . ' , . . Stat.9Geo.1V. person shall be taken on a charge of felony or suspicion c . 54. of felony, before one or more justice or justices of the Where offender , . . . is charged with peace, and the charge shall be supported by positive felony, orsus- and credible evidence of the fact, or by such evidence picion thereof, 1-1 11 when bail may as it not explained or contradicted shall, in the opinion be taken and of the justice or justices, raise a strong presumption of when not * theguilt of the person charged, such person shall be com- mitted to prison by such justice or justices in the manner hereinafter mentioned ; but if there shall be only one justice present, and the whole evidence given before him shall be such as neither to raise a strong presumption of guilt, nor to warrant the dismissal of the charge, such justice shall order the person charged to be detained in custody, and such person shall be taken before two jus- tices at the least ; and where any person so taken, or Before two any person in the first instance taken before two justices us of the peace, shall be charged with felony, or on suspi- cion of felony, and the evidence given in support of the charge shall, in the opinion of such justices(a), not be such as to raise a strong presumption of the guilt of the person charged, and to require the committal of such person, or such evidence shall be adduced on behalf of the person charged as shall, in the opinion of such jus- tices, weaken the presumption of guilt, but there shall, notwithstanding, appear to such justices, in either of such cases, to be sufficient ground for judicial inquiry into the guilt of the person charged, such person shall be admitted to bail by such two justices(a) in the man- ner hereinafter mentioned ; provided always, that no- As to l)earin g . evidence if ac- thing herein contained shall be construed to require cused. any such justice or justices to hear evidence on behalf of any person so charged as aforesaid, unless it shall (a) Where the act to be done is to be the result of discretion, the jus- tices should be together at the time of performing it, ante, 62, 187. 376 Bail for Felony. appear to such justice or justices to be meet and con- ducive to the ends of justice to hear the same(a). Sect. 2 prescribes the duty of the justices in taking examina- tions, &c., before they admit to bail, and s. 3 prescribes those duties in cases of misdemeanor. These enactments have been stated in a previous chapter(i). The directions in the first section of the Statute are so plain and distinct that observation appears almost un- A single J. P. necessary(c). It is clear, that a single justice cannot felony! * now ta ^ e ^ a ^ on a c ^ ar g e of felony, or suspicion of felony. Cases will occasionally occur in which, from conflicting or suspicious testimony, the magistrate may feel some difficulty in deciding upon the presumption of guilt, and whether or not it be such a strong pre- sumption as is intended by the Statute to exclude the (a) As to hearing evidences on behalf of the prisoner, see ante, p. 357-9. (6) Ante, ch. xi. p. 304, et seq. (c) But there is a class of cases not included in the provisions of this Statute, and for which provision have been made in England, viz. : when a person charged with felony has either confessed, or the justices shall think that the circumstances are such as to raise a strong presumption of his guilt, but yet that he may be safely admitted to bail without endangering his appearance. Stat. 5 & 6 Will. IV. c. 33, s. 3, Eng., recites that in many cases, the taking bail for the appearance of persons charged with felony, may be safety admitted without endangering the appearance of such persons to take their trial in due course of law, and it is therefore expedient in such cases to extend the provisions of 7 Geo. IV. c. 64, s. 1, Eng. (which latter Act is analogous to 9 Geo. IV. c. 54, s. 1, Ire. above stated,) and enacts, " that it shall be lawful for any two justices of the peace if they shall think fit, (of whom one or olher shall have signed the warrant of commitment) to admit any person or persons charged with felony, or against whom any warrant of commitment for felony is signed, to bail in manner directed by, and ac- cording to the provisions of the said recited Act, in such sum or sums of money, and with such surety or sureties as they shall think fit, and notwith- standing such person or person shall have confessed the matter laid to his or their charge, or nothwithstanding such justices shall not think that such charge is groundless, or shall think that the circumstances are such as to raise a presumption of guilt. Ball for Felony. 377 party from bail, and for such cases it seems impossible, Discretion of as before observed, to lay clown any precise rule ; a dis- cretion is, therefore, necessarily left to the magistrates, which must be a sound and reasonable discretion, and if they act to the best of their judgment and with purity of intention, they have nothing to apprehend(a). It has been suggested, that in cases of serious doubt Safer to commit or nicety, where considerable difficulty is felt by the magistrates in deciding upon the weight of the evidence, it may be safer to reject than to admit bail, because, if rejected, a remedy is open to the party, who, if he has been improperly committed, may obtain relief by writ of habeas corpus, or by motion, that the committing magis- trates shall return the informations^), and he will thereupon, in all proper cases, be bailed or discharged by the Court or Judge before whom he shall be brought(c). On the other hand, however, where the magistrates have been able to satisfy themselves from the evidence, that the prisoner's case is within the view of the Statute and bailable, they will not permit them- selves to be deterred by any captious objection from exercising their discretion in bailing the party, and in so relieving him from the expense and vexation of such further proceedings. The foregoing observations are intended to apply to Of bailing per- the case of persons, who, having been previously at ^"t^m^ large, are brought up in the ordinary course, and, in the trates; caution first instance, for examination before the magistrates, upon a charge of felony or of suspicion thereof, and in which the duty of the magistrates is defined by the above provision of the Statute; but particular caution should be observed by any magistrates or petty session of magistrates in admitting to bail or interfering with (a) Ante, p. 369 ; and p. 48. (ft) Ante, p. 174 ; and 373, and n. (c) 1 Dick., J., 180, "Bail, V" ; Pelersd. Bail, 514. 3 c 37B Bail for Felony. persons committed by another magistrate or session of magistrates, who, from the informations made before them, must be best acquainted with the grounds and degrees of suspicion attaching to the party committed. It has been already observed that among the advan- tages of the establishment of petty sessions, and the division of counties into districts appropriated to ma- gistrates attached thereto, one highly beneficial con- sequence is, that it tends to prevent all clashing of jurisdiction? and all attempts to set up the authority of one magistrate or body of magistrates against another, by taking away from parties the opportunity of applying to different magistrates to supersede each other's acts, or in other respects opposing, or resorting from, one magistrate to another (a) from which must inevitably result consequences injurious to the authority of their office, by placing in a state of opposition or hostility the acts of persons having equal authority, and the de- corum of whose proceedings is matter of great public moment ; especially as it will be borne in mind that the party has always open to him the remedy above stated by application to the superior courts(6). Where commit- Where a party has been committed for want of suf- mentwasfor ficient bail, he may be admitted to bail if he after- dent security, wards procures sufficient security ; but if the application is made to other magistrates than those by whom the examination was taken, they should be particularly careful to ascertain the character of the offence, and that it is clearly bailable, as they are responsible if they admit to bail when the offence is not bailable(c), and in order also that the amount of bail may be thereby (a) Ante, pp. 79, 80. (&) Ante, p. 377, and see n. (a) ante, p. 80. (c) 2 Hale, 135, R. v. Clarke, 2 Str. 1216; R. v. Brooke, 2 T. R. 190; 1 Dick.,J., 180, "Bail, V." Bail for Misdemeanors. 379 measured ; and it will be prudent for this purpose to ascertain the amount of bail which had been before re- quired from the prisoner, if it had been named by the magistrates who had originally examined upon the charge, and who, therefore, may be supposed to have been well informed as to the nature and circumstances of the case, and the requisite security for the appear- ance of the prisoner ; and to ascertain also whether they had ordered tjiat notice of bail should be given by the prisoner, and if so to require that such order shall be complied with, and such notice given. III. In all cases of misdemeanor the party is entitled Of bail in mis. to be bailed upon providing sufficient security(a), (unless the offence be specially excluded from it by Act of par- liament) (6), and one justice may admit him to bail(c) ; May be by one but, as before stated, where a single justice acts magis- J * p * terially, not being in petty sessions, he is to report the case to the petty sessions(W), and all recognizances taken at petty sessions should be signed by two justices at the least, unless in the case provided for by 6 & 7 Will. IV. c. 34, s.70). The offence of affray being a misdemeanor, the Where a dan- party charged with it is entitled to be bailed, as in other cases of misdemeanor, but the magistrate ought to be (a) See post, as to the sufficiency of bail. (6) 2 Hale, 127. Mr. Chitty, 1 Burn, 317, excepts breach of prison, which he conceives to be excluded from bail, by 3 Edw. I. c. 15 ; but the provisions of this ancient Statute relating to bail, though not noticed by St. 7 Geo. IV. c. 69, Eng., are repealed by 9 Geo. IV. c. 53, Ire., see ante, p. 374, n. (a). However, where the prisoner has so clearly manifested his dis- position not to submit himself to the law, the magistrate may be justified in requiring security to a larger amount than in ordinary cases of misdemeanor ; and in some cases the offence of breaking prison is felony, and the magis.- trate will of course deal with it as with other cases of felony. (c) Dalt. 12 ; 2 Hawk. c. 15, sect. 54 ; 1 Burn, 318. (d) Ante, 88. (e) Ante, 92. 380 Of Bail Time of taking. In case of as- persons are killed. GC Time of taking bail, and of granting pro- cess of Liberate to a private'pri very cautious how he takes bail if a wound has been given from which death may probably ensue(a) : and in such case it is usual to detain the party in custody until the person wounded shall have been pronounced out of danger. But in case of assaults on excise officers it is Prided by Stat. 7 & 8 Geo. IV. c. 53, . 40, that if any person, armed with any offensive weapon, shall with force or violence resist or assault any officer of excise, or person employed in the revenue of excise, or any per- son acting in their aid, in endeavouring to make any search or seizure, or to arrest any person liable to be arrested under any Act relating to the revenue of ex- cise or customs, such officer may oppose force to force ; and if any person assaulting or resisting shall in so doing be wounded, maimed, or killed, it shall be lawful for the magistrate or magistrates before whom such officer or person is brought on account of such wound- ing, &c., and he is hereby directed and required to admit to bail such officer or person, any law, &c., to the contrary notwithstanding. IV. If the party be prepared with sufficient bail, the magistrates will take the recognizances immediately, e ^ . . and discharge him. If he has not his bail ready, it is stated that, in practice, magistrates sometimes, when they have reason to think that the party can procure bail, and especially where the offence charged is not f a g rav e character, send him to some private prison for a short time, to afford him an opportunity of pro- curing it; but, in strictness, the magistrate has no authority thus to detain a party in custody out of the common jail, and, in so doing, he acts upon his own responsibility, and should, therefore, be very cautious (a) 1 Hawk, c. 23, s. 15 j 1 Curw. 491 ; 2 Hawk. c. 15, s. 54 ; Bac. Ab. " Bail B." Petersd. Bail, 513, note (9). Time when Bail may be taken. 381 in exercising it(a). The magistrate may also, if he or requiring no- tice of bail. thinks proper, as when the case is serious, or he has rea- son to believe that the party will not procure solvent bail, make an order that a reasonable notice, usually twenty- four or forty-eight hours, according to circumstances, shall be given to the prosecutor, that he may have an opportunity of inquiring into their solvency(6). In all J^f fter com " such cases, where the offence is bailable and the party not having been ready with sufficient bail at the time has been committed for such default, he maybe released from imprisonment, on finding sufficient bail ; but, as be- fore stated, if the application be made to magistrates, other than those who had committed, they should take care to ascertain the character of the offence, and that if be bailable, as they are responsible ; and it may be pru- dent also to ascertain the amount originally required, and whether notice had been ordered to be given be- fore taking it(c). After the recognizances have been en- Liberate, tered into, the magistrates before whom they have been acknowledged, may thereupon issue a warrant, called a liberate, to the gaoler to discharge the prisoner(c?). V. Justices of the peace have power also to bail per- B . Bail after indict- sons indicted at the sessions, when the offence is bail- merit found. able. It is clear that two justices may bail in such case ; and it seems also that a single justice has the like power in cases of misdemeanor, where the offence would be otherwise bailable by a single justice(e) ; but where a justice acts, not being in petty sessions, he should proceed as required by the Petty Sessions Act, (a) 1 Burn, 321 j 1 Chit. C. L. 345 ; Cro. Circ. C. 15. (6) Burn, ubi sup. ; post, p. 383, 384, for notice of bail. (c) Ante, p. 378. (). The recognizance need not be signed by any of the Signature of parties bound in the condition(c) ; it is sufficient if it P^ 8 not re " be acknowledged by them as above directed. If the accused be an infant under twenty-one years of age, or ^68 covets, in gaol, or a married woman, the recognizance is taken only from the sureties(c?). The ancient form of making "body for body'* the Recognizance penalty of the recognizance was rarely used, even in bo'd^ oLo- the time of Lord Hale, and is now obsolete ; but where lete - used, the bail were not liable, in case of forfeiture, to suffer a punishment similar to that which the principal, if found guilty, would have incurred; they were only subjected to be fined for the default(e). A special form of recognizance is directed by the Mali- Special form in cious!njuriesAct,9Geo.IV.c. 56,s.26. Topreventand caseofmali- r cious injury to punish the malicious waste or destruction ofhousesbyoc- houses, cupiers, to the injury of the owner, lessor, or landlord, proceeding in such waste or demolition after notice, obtained and served as therein directed, is made a mis- demeanor; and the magistrate is authorized to issue his warrant to arrest and bring before him all persons (o) R. v. Reynolds, Curran and others, County Dublin Commission, September, 1832. MS. 0) R. v. Ridpath, 10 Mod. 152 ; 1 Burn, 322. (c) Dick. Sess. 113 ; 1 Burn, 322. (d) 2 Hale, 126 ; 1 Burn, 322. () 2 Hale 124 j 2 Hawk. c. 15, s. 83. 390 Recognizance of Bail. Condition in charges of libel, Offender ar- rested under warrant en- dorsed in a different coun- ty ; present, aiding, and assisting in such injury, and to com- mit any such offender until he shall give sufficient secu- rity by recognizance, conditioned not to commit or pro- ceed in committing such wilful waste and destruction ; and in case it shall have been in part committed, then also conditioned to rebuild and repair such dwelling- house, or other building so as to leave the same in as good tenantable order and condition as it was in pre- vious to the commission of such waste and destruction. St. 60 Geo. III. and 1 Geo. IV. c. 9, s. 16, enacts, that it shall be lawful for judges of the superior courts or the quarter sessions, or any justice of the peace, before whom any person charged with having printed or published any blasphemous, seditious, or malicious libel, shall be brought for the purpose of giving bail upon such charge, to make it a part of the condition of the recognizance to be entered into by such person, and his or her bail, that such person shall be of good behaviour during the continuance of such recognizance. The same Statutes which prescribe the duty of the magistrate in returning and certifying the informations, examinations, and recognizances to prosecute, apply equally to his conduct in returning the recognizance of bail, where bail has been taken, and the magistrate is liable to the same penalty for neglect. In order to avoid repetition, therefore, the reader is referred to a subsequent chapter, which states the duty of the magis- trate in these respects(a). IX. Where a party against whom a warrant has been issued in one county is arrested in another county, under a warrant indorsed by a justice of the latter county, he is to be carried before the justice who indorsed the war- rant, or some other justice of the county in which it has been so indorsed under the provision of Stat. 44, (a) Post, Ch. XV. Bail under Backed Warrants. 39 1 Geo. HI. c. 92, s. 1, already stated(a), and this Statute further provides, that in case the offence for which such offender shall be apprehended, shall be bailable in law, and such offender shall be willing and ready to give bail for his or their appearance at the next assizes or general gaol delivery, or next general quarter sessions of the peace to be held in and for the county, city, liberty, town, or place, where the offence was committed, such justice or justices by whom such warrant was indorsed, or such other justice before whom any such offender or offenders shall be brought, shall and may proceed may be bailed with such offender or offenders, and take bail for his there * or their appearance at the next assizes, or general gaol delivery, or at the next general quarter sessions of the peace, to he held in and for the county, city, &c., where such offence was committed, in the same manner as the justices of the peace of the proper county, city, &c. should or might have done in such proper county &c. and the justice or justices so taking bail as aforesaid, Recognizance shall deliver the recognizance, together with the exami- &c., to be trans- muted as here- nation or confession of such offender or offenders, in. and all other proceedings relating thereto, had before such justice, to the constable or other officer or officers, or person or persons so apprehending such offender or offenders as aforesaid, who are hereby required to receive the same, and to deliver over such recognizance, examination, or other proceedings, to the Clerk of the Crown, or Clerk of the Peace of the county, city, &c. where such offender or offenders is or are required to appear by virtue of such recognizance ; and such recog- nizance, examination, and confession respectively, shall be as good and effectual in law to all intents and pur- poses, and of the same force and validity, as if the same had been entered into, taken or acknowledged, before a (a) Ante, p. 189. et seq. 392 Bail under Backed Warrants. justice or justices of the peace in and for the proper county, city, liberty, town, or place, where the offence was committed, and the same proceedings shall be had Penalty on thereon. Any constable, or other person to whom constable &c., . J neglecting to such recognizance or other proceeding shall be delivered deliver recogm- ag a f oresa i ( j j refusing or neglecting to deliver over the same to the Clerk of the Crown or Peace of the county, city, &c., where such offender is required to appear by virtue of such recognizance, is liable to a penalty of 5 if offence not (Irish). And in case the offence for which such offender satisfactory bail or offenders shall be apprehended and taken in manner not g iven,ofTen- a f oresa id, shall not be bailable in law, or such offender or der to be trans- mitted to the offenders shall not give bail for his or their appearance proper county. ftt ^ next ass i zeSj Or g enera l gaol delivery, or next general quarter sessions of the peace to be held in and for the county, city, liberty^town, or place where the offence was committed, to the satisfaction of the justice before whom such offender or offenders shall be brought, then and in such case the constable, officer, or other person so apprehending such offender or offenders, shall carry and convey such offender or offenders before one of his Majesty's justices of the peace of the proper county, city, liberty, town, or place, where such offence was committed, there to be dealt with according to law. Offenders from a And w ^ tn respect to offenders from a different part different part of of the United Kingdom arrested under indorsed war- trie U. K. may T i i i IP i/\ be bailed by J. rants in Ireland in the manner before mentioned(a), P. before j t j s provided by Stat. 45 Geo. III. c. 92, s. 1, that such whom they J are brought, in person or persons shall and may be taken before the rler asT T~ J U( * e or j ust i ce wno indorsed the warrant, or before p. of their pro- some other justice or justices of the county, city, liberty, per town, or place, where the same was indorsed, and in case the offence be bailable in law, and such offender or offenders be willing and ready to give bail for his, (a) Ante, pp. 190, 191. Bail under Backed Warrants. 393 her, or their appearance, according to the exigence of the said warrant, such judge, or justice, or justices, by whom such warrant was indorsed, or before whom any such offender or offenders shall be brought, shall and may proceed with such offender or offenders and take bail for him, her, or them, according to the exigence of the said warrant, in the same manner as the judge or justice who originally issued the same, should or might have done ; and such judge or justice or justices, Recognizance so taking bail as aforesaid, shall take the recognizance t b e tak enm duplicate. or bail bond of the said offender or offenders, and of his, her, or their bail, in duplicate, and shall deliver one One to be of such duplicates to the constable, or other officer or transmitted to officers, or person or persons so apprehending such \^ adhere!!], " offender or offenders as aforesaid, who are hereby re- quired to receive the same, and to deliver or cause to be delivered such recognizance or bail bond to the Clerk of the Crown, or Clerk of the Peace, or other pro- per officer for receiving the same, belonging to the court in which, by such recognizance or bail bond, such offender or offenders shall be bound to appear; and such recognizance or bail bond shall be as good and effectual in law, to all intents and purposes, and of the same force and validity, as if the same had been en- tered into, taken, or acknowledged before a judge, or justice or justices of the peace of the county, stewartry, city, town, liberty, or place, where the offence was com- mitted; and the said judge, or justice, or justices so and the other taking bail as aforesaid, shall transmit the other of such trawhted to duplicates to the Court of Exchequer of such part of the Exche( l uer of that part of the United Kingdom in which such bail shall be taken, U. K. where there to be kept of record ; and it shall be lawful for the ^ ail is court in which any person so bound to appear shall Andifrecog- forfeit his or her said recognizance or bail bond, to nizance be for - transmit a certi6cate, testifying the forfeiture thereof, under the seal of the court, or under the hand and seal certificate 3 E 394 Bail under Backed Warrants. thereof to such Court of Exch. But if offence not bailable or satisfactory, bail not given, offender to be transmitted to proper part of U.K. of one of the Judges or justices of the same, to the Court of Exchequer, in that part of the United King- dom in which such recognizance or bail bond shall have been taken. And such Court of Exchequer may pro- ceed upon such certificate to levy the sum so forfeited, in the same manner in which they may proceed upon any recognizance or bail bond, taken and forfeited within the same part of the United Kingdom, and estreated in due course into the said court. But it is provided, that if such offence be not bailable in law, or such offender or offenders shall not give bail for his, her, or their appearance, according to the exigence of such warrant, the justice or justices before whom such offender shall be brought, shall remand him to the custody of the constable or other person who shall have apprehended him, and such constable or other person shall proceed to convey him into that part of the United Kingdom wherein the offence was committed, as directed by Stat. 44 Geo. III. c. 92 ; sect. 4, of which directs, that offenders escaping from Great Britain into Ireland, and here arrested on indorsed warrants, shall be conveyed by the most direct way into England or Scotland respectively, and before one of the justices of peace of the county or stewarty in England or Scot- land respectively, living near the place and in the county where he, she, or they shall arrive and land ; which justice is required to proceed with regard to such persons as if they had been legally apprehended in the said county or stewarty in England or Scotland respec- tively ; and sect. 3 contains a provision precisely similar with respect to offenders escaping from Ireland into Great Britain, and there apprehended under indorsed warrants (a). (a) 44 Geo. III. c. 92, s. 4, amended by 45 Geo. III. c. 92, s. 1. Ante, pp.189, 191. Bail under Backed Warrants. 395 Stat. 45 Geo. III. c. 92, s. 2, then recites, that it J n .. c "f n k ot . . bailable, the may happen, by reason of the difference in the law in justice granting the different parts of the United Kingdom, that the the warrant 1 shall write "not justice before whom an offender shall be brought, under bailable" there- a warrant so indorsed, may not know whether the offence mentioned in such warrant be or be not bail- able ; for the better information therefore of such jus- tice in that particular, it is hereby further enacted, that in case any person suing out such warrant shall shew, by affidavit or otherwise, to the satisfaction of the jus- tice granting such warrant, that it may be necessary to indorsement execute it in a part of the United Kingdom different thereon if to be & executed in a from that in which it is issued ; and it shall appear also different part of to the justice granting such warrant, that it is granted for the kin S dom - an offence for which it would not be lawful for any Judge, justice or justices, before whom such offender might be brought, by reason of the indorsement of such warrant to admit such offender to bail, such justice granting such warrant, shall, upon the face thereof, write the words " not bailable ;" and in all cases in Otherwise the which such words shall not have been so written, it shall * m ^ be and may be lawful for the justice or justices before whom any offender may be brought under such warrant so indorsed, to admit such offender to bail(a). On this Statute it has been held, that a warrant of a Scotch Judge to apprehend persons and bring them before the nearest justice of the peace for examination there- after to be dealt with according to law, issued upon petition of the king's advocate, which stated an injury to a ship committed with a felonious intent within Stat. 43 Geo. III. c. 113, (a Statute which does not extend to Ireland,) is bailable, the warrant not stating a crime, and it not appearing that any crime was charged on oath. And the learned Judges, in giving judgment, ex- (a) 45 Geo. III. c. 92, s. 2. 396 Bail for Offences out of the County. pressed an opinion, that Stat. 45 Geo. III. c. 92, s. 2, is imperative on the Judge or justice before whom an offender is brought in one part of the United Kingdom, upon a warrant granted by a Judge or justice in another part, to admit the party to bail, unless the words " not bailable" are written upon the warrant by the Judge or justice granting it(). Bailing in other Although the original jurisdiction ofa justice of the cases for offen- . , n , A , . , out of the peace is in general confined to his proper county, he ces county. j s empowered (independently of the above Statute) in Felonies. several particular instances to deal with offences com- mitted elsewhere, as in the case of felonies committed in another county, or in a different part of the king- dom^), or on the high seas, when the offender is found Misdemeanors, within his county(c). And their authority over offences committed at sea has-been extended to other offences by 7 Geo. IV. c. 38. So where offences are committed out of their county, against the Whiteboy Act, justices are empowered to bail the offender, and to return the recognizances to the next assizes to be held for the county where the offence is alleged to have been com- mitted. In various other instances the magistrate may deal with the offence as if committed in his proper county ; as when offences are committed on the boun- daries of counties, or on a journey, or in harbours, bays, &c.,or in case of accessories; or certain offences under the Larceny Act ; or when the offenders are returned convicts ; or when the offence is bigamy ; or against the Post Office Act ; in cases of assaults on excise officers ; homicides abroad ; offences under the Acts relating to seamen, or the Smuggling or Customs Acts, Acts relating to foreign service, &c. ; some offences against the (a) Ex parte Gibbons and others, 2 Hud. & Br. 425. (6) Ante, 53, etseq. (c) Ante, p. 54. Refusing or requiring excessive Bail. 397 Coining Act ; embezzlements by public officers ; the statutory provisions relating to which have been al- ready noticed(fl). X. To refuse bail, where the party ought to be Refusing bail. bailed, and has offered sufficient security, is punishable not only by action at the suit of the party wrongfully im- prisoned, but also by indictment as a misdemeanor(6). But the magistrate is not bound to demand bail; the prisoner must tender it, if he would avoid commitment(c). To require excessive bail, or such bail as would in R equ i r i n g- ex . effect amount to a denial of it, is expressly prohibited cessivebail. by the tenth article of the declaration of rights, 1 Will. III. s. 2, c. 2(d). And although the amount is in (a) Ante, p. 55, et seq. To those there enumerated may be added the provisions of St. 2 Will. IV. c. 34, consolidating the laws relating to the coin, s. 15, which enacts, that when two or more persons acting in different counties or jurisdictions, shall commit any offence against this Act, all or any of the said offenders may be dealt with, indicted, tried, punished, and their offences laid and charged to have been committed in any one of the said counties or jurisdictions, in the same manner as if the offence had been actually and wholly committed within such one county or jurisdiction ; and 2 Will. IV.c. 4, relating to embezzlement by persons in the public service, s. 5, which directs that every offender against the Act may be dealt with, tried, indicted, and punished, either in the county or place in which he shall be apprehended, or in which he shall have committed the offence. So offences against 37 Geo. III. c. 50, (seducing soldiers or seamen from their duty,) may be presented and tried before any court of oyer and terminer, or gaol delivery, for any county in this kingdom as if the offence had been therein committed. So offences against 29 Geo. II. c. 5, (subjects in French service landing &c.,) might be tried and the venue laid in any county. The offence of landing convicts, sentenced to tr. to America, in Europe is also, by St. 17 Geo. II. c. 4, triable in any county. (ft) Male's Sum. 97 ; 2 Hawk. c. 15, s. 13 ; R. v. Tracy, 6 Mod. 179 ; Osborne v. Cough, 3 B. & P. 551 ; see also 3 Edw. I. St. 2, c. 15. (c) 2 Hale, 123 ; 2 Hawk. c. 15, s. 14. (d) There is no parliamentary declaration in Ireland corresponding with 1 Will. III. S. 2, c. 2, Eng. supra; but this enactment being merely decla- ratory of the common law, recognizes this principle, which is founded in justice. 398 Granting Bail improperly Insufficient Bail. What to be considered ex- cessive bail. Granting bail improperly. Taking insuffi- cient bail. general necessarily left in the discretion of the magis- trate, yet he must be just and reasonable, and not capricious or arbitrary in exercising this discretion(a), as requiring excessive bail not only subjects him to an action at the suit of the party aggrieved, but is a misde- meanor and punishable by indictment(6). But it should seem that any bail which the party is able to procure, cannot be considered excessive, the intent of the Statute being only that a security shall not .be demanded so large as would in effect amount to a denial of bail, and in its consequences lead to inevitable imprisonment(c). Taking bail where the offence is not bailable, is punishable by the judges of assize or gaol delivery by fine(d), or by indictment as a negligent escape at com- mon law(e). And if it appears that the magistrate in acting thus illegally, has also acted from corrupt motives, the Court of King's Bench will grant an information against him(/). It is said that when the magistrates admit any per- son to bail for felony with insufficient securities (g) who (a) Ante, p. 48. (b) 1 Burn, 322, and authorities there cited. (c)lDick., J., 179, n. Bail," V. (d) 3 Edw. I. c. 15 j 27 Edw. I. c. 3, and see 9 Geo. IV. c. 54, s. 5. 0) Kale's Sum. 97 ; 2 Hawk. c. 15, s. 7, and c. 19, s. 5, 10; Bac. Ab. "Bail." ( /") R. v. Brooke, 2 T. R. 190 ; R. v. Clarke, 2 Str. 1216. In the latter case, the report of which is very brief, it is not stated that the magis- trate had so acted from corrupt motives ; but in the former case it seems to have been considered, that the magistrate ought not to be made answerable in so criminal a proceeding as an information, unless it appeared that he had acted corruptly; see the judgment of Ashhurst, J., and of Grose, J., 2 T. R. 195, 196; and see R. v. Palmer, 2 Burr. 1162 ; R. v. Jackson, 1 T. R. 653. But in order to establish the charge of corruption, it is not necessary to shew that the magistrate has acted from an interested motive ; if he has acted from passion or from opposition, it is equally as corrupt as if he had acted from pecuniary considerations ; by Ashhurst, J., in R. v. Brooke, 2 T. R. 195. (g) As to the sufficiency of the bail, see ante, pp. 384, 386. After Bail has been taken. 399 shall not afterwards appear according to the condition of the recognizance, they are punishable by fine, at the discretion of the judges of assize(#). But it seems that if the party so bailed do appear according to the con- dition of the recognizance, those who admitted him to bail will be excused, as the end of the law is answered by his appearance(i), provided that the magistrate has so acted from no improper motive. XI. Upon the recognizance of bail having been taken, What to be if the defendant have appeared voluntarily, or if he be in h been taken> custody of the constable, the justices discharge him, as of course; and if he be in prison they will, upon appli- cation, issue their warrant, called a liberate, to the gaoler to discharge him(c). In the case of petty officers, sea- men, and others belonging to the royal navy being bailed, they are not to be discharged but conveyed by the officer in whose custody they may be to the nearest station, in the manner already noticed in the case of their being discharged without bail(tif). The party bailed is considered in law as in custody le P ower of of his sureties, who are regarded as his keepers, and they may therefore seize him at any time, and in any place, if they fear his escape, and take him before the justice or court by whom he may be committed ; and thus the bail may be discharged from their recogni- zance ; but the party is at liberty to find new sureties(e.) Classification of offences. (a) Kale's, Sum. 97. (6) 2 Hawk, c. 15, s. 6. (c) 1 Burn, 322, for form of liberate see Appendix. (C - consent, with intent that the person carrying her away, or any other, shall marry or defile her. Pun. for principals and acces- sories before the fact, D. ; accessories after the fact, tr. for life, or 7 yrs. or imp. with or without H. L. for not more than 3 yrs. See also MISD., tit. ABDUCTION. There is no anal. Eng. Stat., but see 9 Geo. IV..c. 31, ss. 19, 20, Eng. ABORTION, To administer poison or other noxious thing, or use any in- Procuring, strument or other means to procure the miscarriage of any 7 Wm. IV. and J 1 Viet. c. 85, woman, run. tr. for lite, or not less than 15 yrs. or imp. not ss. 6, 8. more than 3 yrs. (H. L. and sol. con.) ACCESSORIES. Accessories are either before or after the fact. Access, before Com. L. Stat. j_ ne f ac t are persons absent at the time of a fel. committed, who 54 s 23 " ^ y e ^ P rocure > counsel, command, or abet another to commit a fel. Access, after the fact, are persons who knowing a fel. to have been committed by another, receive, relieve, comfort, or assist the felon, whether such felon be a principal or access. before the fact. Access, before the fact are most generally pun. as principals, as for offences against the Larceny Act, 9 Geo. IV. 9 Geo. IV. c. 55, s. 54; the Malicious Injuries Act, 9 Geo. c 56*' s 33 IV * C * 56 ' S> 33 ; the Act relatin g to offences against the coin, 2 Wm!' IV.' c. 2 Wm. IV. c. 34, s. 18 >, the Post-office Act, 7 Wm. IV. and T^Wn/IV and 1 V * Ct * ' 36> S * 35 ; the Act amendin the offence s against 1 Viet. the Person Act, 7 Wm. IV. and 1 Viet. c. 85, s. 7 ; the Bur- c. 36, s.35 ; gj arv Act (amending the Larceny Act,) 7 Wm. IV. and 1 Viet, c*. 86^ s. 6 ; c - 86, s. 6 ; the Robbery Act, (also amending the Larceny c. 87,' s. 9 ; Act,) 7 Wm. IV. and I Viet. c. 87, s. 9 ; the Piracy Act, 7 c. Q9, s. 1 1'- Wm. IV. and 1 Viet. c. 88, s. 4 ; the Malicious Burning (amend- ing the Mai. Injuries) Act, 7 Wm. IV. and 1 Viet. c. 89, s. 11 ; Felonies. 403 and the Act relating to navy pay, 11 Geo. IV. and 1 Wm. IV. ACCESSOBIES. c. 20, s. 88. Accessories after the fact, except receivers of J 1 ^- ^ * od stolen goods, in these several cases, are pun. by imp. for not 20, s. 88. more than 2 yrs. Accessories under the offences against the Person Act, 10 Geo. IV. c. 34, for whom no pun. is other- 10 Geo. IV. c. wise specified ; if before the fact, are pun. by tr. for not more than 14 or less than 7 yrs. or imp., with or without H. L. for not more than 3 yrs. ; and if after the fact, by imp. with or without H. L., for not more than 2 yrs. For pun. of access. in other cases, see the offence required. Accusing, or threatening to accuse, in order to extort ACCUSING. money, see THREATS, post. Acknowledging any [fine recovery,] deed enrolled, sta- ACKNOWLEDG- tute, recognizance, bail, or judgment,or procuring the same to be done, in the name of another person not privy or consenting c so^s \ & 2! thereto, except acknowledgment of a judgment by an attorney of record for the person against whom it was given. Pun. tr. for 7 Wm.IV. and life, or not less than 7 yrs., or imp. not more than 4, or less g 2 than 2 yrs. (H. L. and sol. con.) Anal. Eng. Stat. was 21 Jac. I. c. 26 ; but see now 1 1 Geo. IV. and 1 Wm. IV. c. 66, s. 11. Endeavouring to seduce any person serving in his Majesty's ALLEGIANCE, forces by sea or land from his duty and allegiance ; or inciting: Seducing from, J f A . J 5 37 Geo. III. c. such to any act ot mutiny ; or committing any traiterous or 40 b 57 mutinous practice. Pun. tr. for life, or not less than 15 yrs., or Geo. III. c. 7, imp. not more than 3 yrs. (H. L. and sol. con.) but see MTSD., j an?*) " ' S * tit. MUTINY. Anal. Eng. Stat, 37 Geo. III. c. 70. Making or assisting in making any pike, pike-head, dirk, ARMS, dagger, spear, or instrument serving therefor, without license, ma king, pun. tr. for 7 yrs. See ante, pp. 262, 273. f 7 Geo - IIL s - Unlawfully having any pike, &c., knowingly in possession or H ' avin \ custody, second and subsequent offences. Pun. tr. for 7 yrs. session, s. 12. See ante, 262, 273, and see MISD. tit. ARMS. Resisting or escaping from arrest, see ESCAPE, PRISON ARKEST. BREACH, RESCUE. Wounding others to prevent, see MAIM. Of clergyman, see MISD. tit. CLERGY. Arson is the wilful and malicious burning the house of ARSON. another ; 1 Hale, 566. It is fel. at common law, but the burning Com. law. of houses and various other kinds of property, is now provided for by Stat. See BURNING, post. 404 Felonies. ATTEMPTS. BANKS, LOCKS, &C. 9 Geo. IV. c. 56, s. 12. Injuring in canals or rivers, &c. Removing piles, drawing up gates, &c. id. s. 13, BANKRUPT, Frauds by, 6&7 Wm.1V. c. 14, s. 130. BESTIALITY. 10 Geo. IV. c. 34, s. 26. Assault, with intent to rob, see ROBBERY. If amounting to an attempt to maim or murder, see MAIM, MURDER. For other assaults, see MISD. tit. ASSAULTS. Attempts to commit felonies, are frequently also felonies, for which see the offences attempted. For other attempts to commit offences, see MISD. tit. ATTEMPT. Banks of Ireland, England, and private Bankers, see FOR- GERIES, EMBEZZLEMENT. Maliciously to break or cut down any sea-bank or sea-wall, or the bank or wall of any river, canal, or marsh, whereby any lands shall be overflowed or damaged, or in danger of being so, or maliciously to throw down, level, undermine, or otherwise destroy any locks, sluices, weir, tunnel, towing path, flood- gate, aqueduct, reservoir, cut, dam, drain, watercourse, or other work, on any navigable river or canal. Pun. tr. for life, or not less than 7 yrs. or imp. not more than 4 yrs. (H. L. and sol. con.) see s. 34, and 1 Viet. c. 90, s. 5 ; and for males, 1, 2, or 3 whp. at disc. The anal. Engl. Stat. 7 & 8 Geo. IV. c. 30, s. 12, omits the words in Italic. Maliciously to cut off, draw up, or remove piles, chalk, or other materials, fixed for securing any sea-bank or wall, or the bank or wall of a river, canal, or marsh, or maliciously to open or draw up any flood-gate, or do any other injury or mischief to any navigable river or canal, with intent, and so as to ob- struct the navigation thereof. Pun. tr. for 7 yrs., or imp. not more than 2 yrs. (H. L. and sol. con.) s. 34, and 1 Viet. c. 90, s. 5; and for males, 1, 2, or 3 whp. at disc. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 30, s. 12. Bankrupt against whom commission is issued, not duly sur- rendering and submitting to examination, or not discovering all his estate, and the particulars thereof, and books, papers, and writings, relating thereto, (except disposed of in the way of trade, or laidout for the ordinary expenses of his family,) or not delivering them up, (except necessary wearing apparel,) or re- moving, concealing, or embezzling any part thereof, to the va- lue of 10, or more, or any books or papers relating thereto, with intent to defraud his creditors. Pun. tr. for life, or not less than 7 yrs., or imp. with or without H. L. for not more than 7 yrs. Anal. Eng. Stat. 6 Geo. IV. c. 16, s. 12. Bestiality is pun. D. Felonies. If any person being married, shall marry any other person BIGAMY. during the life of the former husband or wife, whether the se- ^eo^IV. c - cond marriage take place in Ireland or elsewhere, it is fel. ; but this is not to extend to a second marriage out of Ireland, by other than a British subject, or where first husband or wife has been absent and not known to be alive for 7 yrs. last past, or divorced, or the marriage declared void. Pun. tr. for 7 yrs. or imp. with or without H. L. for not more than 2 yrs. Anal. Eng. Stat. 9 Geo. IV. c. 31, s. 22, includes " those who coun- sel, aid, and abet, the offender/' Maliciously to pull down, or in anywise destroy any public BRIDGE. bridge, or do any injury with intent, and so as thereby to ren- 9 Geo - IV. c. der such bridge, or any part thereof, dangerous or impassable. Pun. tr. for life or not less than 7 yrs., or imp. not more than 4 yrs, (H. L. and sol. con.) see s. 34, and 1 Viet. c. 90, s. 5 ; and for males, 1, 2, or 3 whp. at disc. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 30, s. 13 ; and see MINE. BUGGERY. Buggery committed either with mankind or with any ani- 10 Geo. IV. c. mal, pun. D. Anal. Eng. Stat. 9 Geo. IV. c. 31, s. 15. 34 ' St 18< ~ - TT BURGLARY. Burglary? see HOUSES. BURNING. Maliciously to set fire to any dwelling-house, any person be- Houses, ing therein. Pun. D. See ARSON, ante. 7Wm.IV.and 1 Maliciously to set fire to any church, or chapel, or dissenting Vlct> c * 89 * s< 2 > chapel, or to any house, stable, coach-house, out-house, ware- ^g^^g "3 house, office, shop, mill, malt-house, hop-oast, barn, or gra- nary, or to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether the same be in the possession of the offender, or of any other person, with intent thereby to injure or defraud any person. Pun. tr. for life, or not less than 15 yrs., or imp. not more than 3 yrs. (H. L. and sol. con.) See s. 12. Maliciously to set fire to any mine of coal or cannel coal. Coal mines, Pun. tr. for life, or not less than 15 yrs., or imp. not more * than 3 yrs. (H. L. and sol. con.) s. 12. Maliciously to set fire to any stack of corn, grain, pulse, Stacks of corn, tares, straw, haulm, stubble, furze, heath, fern, hay, turf, peat, JQ! coals, charcoal, or wood, or any steer of wood. Pun. tr. for life, or not less than 15 yrs., or imp. not more than 3 yrs. (H. L. and sol. con.) s. 12. 406 Felonies. BURNING. Maliciously to set fire to any crop of corn, grain, or pulse, whether standing or cut down, or to any part of a wood, cop- 56 s. 18. * P* ce > or Potation of trees, wheresoever growing. Pun. tr. for 7 yrs., or imp. not more than 2 yrs. (H. L. and sol. con.) see sec. 34, and 1 Viet. c. 90, s. 5 ; and for males, 1, 2, or 3 whp. at disc. Anal. Eng. Siat. 7 & 8 Geo. IV. c. 30, s. 17, in- cludes also, heath, gorse, furze, and fern. Riotous burn- Riotously to set fire to corn or provision stores, see PRO- o^buifdTnV VISIONS. Riotously to set fire to, or attempt to set fire to, any engines, or building, or to any fire or other engine of a colliery or mine, churches. or ^ o an y building used for religious worship, see RIOTS. Other burnings. For burning ships, &c., see SHIPS. Burning the person, see MAIM. And see MANUFACTURES. CARNAL Carnally to know and abuse a girl under the age of 10 yrs. KNOWLEDGE p un ft P roo f of penetration, sufficient for carnal knowledge, lo e Gw n iV? c'. See RAPE> lf the S irl be between 10 and 12 > see MlSD - AnaL 34, s. 20. ' ' Eng. Stat. 9 Geo. IV. c. 31, s. 17. CATTLE, Maliciously to kill, maim, or wound, any cattle, pun. D. In g^Ge^iv c the anal * Eng * Stat> 7 & 8 Geo * IV c * 30 ' s * 16> pun * was not 56, s. 17. capital, and 1 Viet. c. 90, s. 2, recites and repeals it without noticing the Ir. Stat., and enacts, that any person hereafter con- victed of the offence therein mentioned, shall be pun. tr. not more than 15, or less than 10 yrs., or imp. for 3 yrs. Stealing, 9 Geo. jf an y person shall steal any horse, mare, gelding, colt, or filly, IV.c.55, s.25. . * _ ,. , , ' or any bull, cow, ox, steer, bullock, heifer, or calr, or any ram, ewe, sheep, or lamb, or wilfully kill any of such cattle, with in- 7 Wm. IV. and tent to steal the carcass or skin, or any part thereof. Pun. tr. s l] ' not more than 15, or less than 10 yrs., or imp. not more than 3 yrs. (H. L. and sol. con.) see 2 & 3 Wm. IV. c. 62, and 7 Wm. IV. and 1 Viet. c. 90, s. 1. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 25, omits the words in italic. CERTIFICATE If any clerk, officer, or deputy, falsely utter, or if any other of former con- than such clerk, &c., sign as such clerk, &c., or utter with false utterin ' falSCly si g nature a certificate of indictment or conviction for a previous 9 Geo.' IV. c. felony, or of sentence or order for transportation, it is fel. and 54, s. 21. p un tr> f or 7 y rs> or j m p^ not more t jj an 2 vrs> . anc j f or > 8 Geo ' IV ' 2 Wm IV c j ' * 34,s.9. s. 11. The same provision as to certificates of previous con Felonies. 407 victions under the Coining Act, pun. tr. not more than 14, or CERTIFICATE. less than 7 yrs. or imp. not more than 2 yrs. (H.L. and sol. con.) see s. 19, and 1 Viet. c. 90, s. 5. Maliciously, either by force or fraud, to lead or take away, CHILD, or decoy, or entice, or detain a child under 10 yrs. old, with in- te * g ' tent to deprive the parent, or parents, or other person having 34j s> 2 *s. lawful care or charge of such child, of the possession of such child ; or with intent to steal any article whatever on its per- son ; or, with such intent, to receive or harbour any such child, knowing it to have been so taken or decoyed ; or to counsel, aid, or abet any person so offending. Pun. tr. for 7 yrs. or imp. not more than 2 yrs. with or without H. L. and for males, 1, 2, or 3 whp. at disc. Not to extend to a person claiming to be father of an illegitimate child, or to have a right to the pos- session. Anal. Eng. Stat. 9 Geo. IV. c. 31, s. 21. For other Other offences, offences see ABORTION and MISD. tit. CONCEALING. To break and enter any church, meeting-house^ chapel or CHURCHES other place of divine worship, and steal therein or therefrom, any chattel, or having stolen such, to break out of the same. Pun. 55 s JQ . tr. for life, or not less than 7 yrs. or imp. not more than 3 yrs. g & 7 Wm. 1 V. (H. L. and sol. con.) see 1 Viet. c. 90, sec. 5. Anal. Eng. Stat. c. 4, amending 7 &8 Geo. IV. c. 29, s. 10, omits the words in Italics. See J,*?.*" 1 *- also BURNING, RIOTS. If any clerk or servant shall steal any chattel, money, or CLERKS OR valuable security belonging to, or in possession or power of, his SERVANTS, master, or employer. Pun. tr. not more than 14, or less than Q ^^ ^ 7 yrs., or imp. not more than 3 yrs. (H. L. and sol. con.) s. 4, 55, s. 39. and 1 Viet. c. 90 ; for males 1, 2, or 3 whp. at disc. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 46, omits the words in Italics. See also, EMBEZZLEMENT. To make or counterfeit any coin resembling or apparently COIN. intended to resemble, or pass for the gold or silver current coin. Counterfeiting Pun. tr. for life, or not less than 7 yrs. ; or imp. not more than ^ 2' WilT 4 yrs. (H. L. and sol. con.) see s. 19, and 1 Viet. c. 90, s. 5. IV.c. 34, s. 3. To gild, or silver, or otherwise colour, or case over, counter- Colouring, feit coin, or any pieces of metal, with intent to make them pass filin g altering, for the current gold, or silver coin ; or to gild, colour, or case m "*J5 over current silver coin, with intent to make it pass for the cur- id. s. 4. 408 Felonies. COIN. rent gold coin ; or current copper coin, with intent to make it 2 Will. IV. pass for the current gold or silver coin ; or to file or alter such coin with like intent. Pun. same as for counterfeiting. Impairing gold To impair, diminish, or lighten the current gold or silver M/s V 6 f C0in> C0 * n> W ^ * ntent to ma ^ e it so impaired pass as genuine. Pun. tr. for not more than 14, or less than 7 yrs. ; or imp. not ex- ceeding 3 yrs. (H. L. and sol. con.) see s. 19, and 1 Viet. c. 90. Buying or sell- To buy, sell, receive, pay, or put off, or offer to buy, &c.. or g s'ilver'coin an ^ counter ^ e i t c i n > resembling or intended to resemble the id. s. 5. current gold or silver coin, at a lower rate than its denomina- Irnporting, &c. tion imports ; or to import knowingly, any counterfeit coin, re- sembling, or intended to resemble the current gold or silver coin. Pun. same as for counterfeiting. Uttering coun- If after a conviction for uttering, (see MISD. tit. COIN,) the terfeit gold or part ghall be conv i cte d of any such offence, it is fel. and silver, second J J . offence, id. s. 7. pun. same as for counterfeiting ; and if after previous conviction Having in pos- f or having 3 or more piecejs of gold, &c., in possession, (see post, silver, second MISD. tit. COIN,) the party shall be again convicted of any such offence, id. s. 8. offence, it is also fel. and subject to the same pun. Making, mend- To make, mend, or begin to make, &c., or to buy, sell, or ing, or avmg nav e in possession, knowingly, and without lawful authority, the coining tools, proof whereof lies on the accused, any tool, instrument, or en- id, s. 10. gine, adapted for coining, making, stamping, or marking on the edges, coin resembling the current gold or silver coin, or for cutting round blanks of metal, in order to the counterfeiting such. Pun. same as for counterfeiting. Conveying tools Knowingly to convey out of the mint, without lawful au- Mint^i/Tll ^orityj the proof whereof lies on the accused, any tool, &c., used in coining, or any useful part thereof, or any coin, bullion, metal, or mixture of metals. Pun. same as for counterfeiting Similar offences To make or counterfeit coin, resembling, or intended to re- with respect to semble the current copper coin ; or knowingly and without id. s. 12. m ' lawful authority or excuse, (the proof whereof lies on the ac- cused,) to make, mend, buy, sell, or have in possession, any instrument, tool or engine, for counterfeiting such ; or to buy, sell, receive, pay, or put off, or offer to buy, &c., any such counterfeit copper coin, at a lower rate than its denomination imports. Pun. tr. for riot more than 7 yrs., or imp. not more Felonies. 409 than 2 yrs. (H. L. and sol. con.) For other offences as to cop- per coin, see Misc. tit. COIN. For foreign copper coin, see MISD. tit. COIN. Offences relating to gold and silver foreign coin are pun. under the Eng. Stat. 37 Geo. III. c. 126, the provisions of which are saved in force by 2 Will. IV. c. 34. But no Irish Stat. contains cor- responding enactments, and the old Stats. 14 Eliz. c. 3, Eng. and 28 Eliz. c. 6, Ir., which made offences respecting coun- terfeit foreign coin pun. as treason, have been ^repealed by 2 Will. IV. c. 34; see Gab. Cr. L. 235, et seq. Compelling persons to enter into unlawful combinations, or publishing notices tending to excite such; see RIOT. See also MISD. tits. ASSAULT, CONSPIRACY. Corruptly to take any money or reward, directly or in- directly, for helping any person to any property stolen or em- bezzled, whether the original offence be a fel. or misd., unless the party taking the money cause the original offender to be brought to trial. Pun. tr. for life, or not less than 7 yrs., or imp. not more than 4 yrs., and if male, 1, 2, or 3 whp. at disc. (H. L. and sol. con.) see s. 4, and 1 Viet. c. 90. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 58. See also MISD. tit. COMPOUNDING. Conspiracy to murder ; see MURDER. Compelling persons to enter into conspiracy ; see RIOTS. For other conspiracies, see MISD. tit. CONSPIRACY. Attempting to drown ; see MURDER. Drowning mine ; see MINE. Riotously disturbing the Court at elections, or acting so as forcibly to interrupt the poll, or defacing, secreting, &c., r poll book or writ, &c. Pun. tr. for 7 yrs., or imp. not more than 7 yrs. ; if prosecuted under this Act, to be within a year. The same as to elections for counties of cities and towns ; pun. tr. for 7 yrs. Holding unauthorized elections; see PR^EMUNIRE and Convention Act, post, MISD. tit. UNLAWFUL ASSEMBLIES; see also FORGERY, and MISD. tit. ELECTIONS. Clerk or servant, or any person employed as such, receiving or taking into his possession by virtue of his employment any chattel, money, or valuable security for, or in the name or on account of, his master or employer, and fraudulently embezzling 3 G Foreign coin. COMBINA- TIONS. COMPOUND- ING. Larcenies, &c. 9 Geo. IV. o. 55, s. 51. CONSPIRACY. DROWNING. ELECTIONS. Disturbing, 35 Geo. III. c. 29, ss.J2and78. 4 Geo. IV. c. c. 55, s. 70. Other offences. EMBEZZLE- MENT by clerks or ser- vants, 9 Geo. IV. c. 55, s. 40. 410 Felonies EMBEZZLE- the same or any part thereof, shall be deemed to have felo- niously stolen it, although it was never in possession of such master or employer, otherwise than by the possession of such clerk, &c. Pun. tr. for not more than 14 or less than 7 yrs., or imp. not more than 3 yrs. (H. L. and sol. con.) see s. 4, and 1 Viet. c. 90, and for males 1, 2, or 3 whp. at disc. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 47, omits the words in Italics. See also MISD. tit. EMBEZZLEMENT. By public offi- Any person employed in the public service of his Majesty, ce l!" , and entrusted by virtue of such employment with' the receipt, 2 Will. IV. c. J J 4 >St i. custody, or management of any chattel, money, or valuable security, embezzling the same or any part thereof, or applying it to any other purpose than the public service. Pun. tr. not more than 14 or less than 7 yrs., or imp. with or without H. L. for not more than 3 yrs. By Bank of Ire- Embezzlement by any officer or servant of the Bank of servants* 8 and Ireland > of an y security, money, or effects belonging to it, or 21 & 22 Geo. lodged in it, is a capital 'fel. This Stat. is saved in force by III. c. 16, s. 16. 9 Geo iv. c.53, s. 3. For other embezzlements, see BANKRUPTS, KING'S STORES, POST OFFICE. ENLISTMENT. To prevent the seducing of English subjects into the French In foreign ser- serv j cej British subjects being officers, soldiers, or mariners in 29 Geo II c ^ e Drench service, and being, or attempting to land, in Ire- 5, s. 1. land, or any assisting them are pun. D. But this Stat. is obso- lete; and see MISD. tit. FOREIGN SERVICE. SCAPE Escape is, where one who is arrested gains his liberty before Com. law. ne i s delivered by due course of law, and is either by third persons or the prisoner himself. Where the liberation of the party is effected either by himself or others, without force, it is properly termed an escape ; where it is effected by the party himself, with force, it is called prison-breaking, see ^PRI- SON-BREAKING ; and where it is effected by others, with force, it is usually called a rescue, see RESCUE. 1 Russ. C. L. 367. Escapes suffer- Escapes suffered by third persons, are negligent or volun- ed by others. tary ; they are voluntary, if they occur by consent or conni- vance of the person (even a private person) having custody of the prisoner, with an intent to save him (whether actually Felonies. 41 i committed to gaol or only under a mere crresi) from his trial ESCAPE. or execution, and in such case amount to the same kind of offence, and are pun. in the same degree as the original offence for which the prisoner was in custody. 1 Russ. 370 to 377. Archb. 519, ante, p. 232, n. (/). For negligent escapes, see MISD. tit. ESCAPE. *. By the Act authorizing the Lord Lieutenant to order con- Under rule of victs under rule of tr. to be kept to H. L. in penitentiaries, to J^'j"^" 1 ^ 11 " escape land? r tenement ; or holding such possession ; or SIGN. resisting process for giving quiet possession. Pun. tr. for 7 yrs., 26 Geo. III. c. go persons presented or indicted and proclaimed for such offences, Gs'^and see 25 not surrendering themselves ; and those who conceal, aid, abet, Geo. II. c. 12. or succour such offenders, are pun. the same. Forcible possession entry, or detainer may also be, and generally is, indicted as a misd. at common law, or under Stats. 5 Ric. II. c. 8; 10 Car. I. St. 3, c. 13 ; see MISD tit. FORCIBLE POSSESSION. Felonies. 4 1 3 Forgery at common law was a misd. only, but has now been FORGERY AND PERSONATION. made fel. by Statutes so multiplied as almost to have become general, so that the instances in which it is not fel. (see MISD. tit. FORGERY,) may now be regarded as exceptions ; 2 Ea. P. C. 853 ; 2 Russ. 317. So fraudulently personating another was only a misd. at com. law, indictable as a cheat, but is now in many instances made fel. ; Ea. P. C. 1010 ; Gab. Cr. L.386. Thus to forge or counterfeit, or cause or procure to be F r g' n g deeds, forged, &c., or willingingly act or assist in forging, &c., any g Geo. li. c 4 deed, will, bond, writing obligatory, (note or receipt to value of and 17 Geo. II. 5, but see infra,) or to utter or publish any such, with intent J d b * ^4 /^ l "' to defraud. 111. c.22, s. 5. Falsely to make, alter, forge, or counterfeit, or procure Bills, notes, or cause to be made, &c., or assist in making, &c., any promis- ^^^g"^,^"' sory note, or any bill of exchange or acceptance thereof, or any III. c.63, s. 1. assignment or indorsement of a note or bill ; or any receipt or acquittance, or discharge for rent, or other consideration ; or any note, bill, or other security for the payment of money, or draft, warrant, or order for payment of money, or order for de- livery of goods, or for procuring or giving credit ; or to alter, or procure to be altered, or willingly assist therein, the number, sum, or any part of such ; or knowingly to utter any such so forged or altered. Pun. tr. for life, or not less than 7 yrs., or 7 Will. IV. and imp. not more than 4 or less than 2 yrs. (H. L. and sol. con.) Stat. 11 Geo. IV. and 1 Will. IV. c. 66, is the Eng. Act. To forge or cause to be forged, or knowingly assist in forg- Foreign bills or ing foreign bills of exchange or promissory notes, or uttering not es, 43 Geo. such with intent to defraud; pun. tr. not more than 14 yrs. but see MISD. tit. FORGERY. To forge or alter any bank note, bank bill, &c., warrant or Forgeries and bond under seal of the bank of Ireland, or indorsement thereon, personation on or to dispose of, or to demand payment for any such when f^j k ^fc 2 k > forged, knowingly, and to defraud the bank. So forging de- Geo.'lll.c. 16, bentures, or words or numbers thereof; or letters of attorney gg 1 ^ m for transferring shares, or receiving dividends or interest, or 53, s. 2. forging names of proprietors; or personating proprietors; or ^ Geo. III. c. forging dividend, warrants, &c., for payment of annuities, or demanding payment therefor ; or making false transfers ; or fal- 414 Felonies. FORGERY AND PERSONATION. Having instru- &c.,38Geo.III. c. 63, ss. 3, 4. Purchasing 13, s. 2. Transfer of G IV 53, s. 22. Forgery and personation connected with annuities. Exchequer bills. Suitors' money T?T & 2 ^2 Ge 22 Forgeries, &c. on Bank of England. sifving books, &c. Pun. tr. for life, or not less than 7 yrs., or . - , , _ , TT T imp. not more than 4, or less than 2 yrs. (H. L. and sol. con.) See 7 Will. IV. and 1 Viet. c. 84. To make or use, or cause to be made or used, any frame, mou ^> or i nstrum ent, for making paper with device peculiar to Bank of Ireland paper ; or assist therein, or knowingly to have guch j n possession without lawful excuse ; or to make or cause, &c., or assist therein, or knowingly to possess, such paper with- out lawful excuse ; or to cause such device to appear in the sub- stance of any paper whatsoever, or to assist therein ; or to make or use, or cause to be made, &c., or knowingly to possess without lawful excuse, any plate, stamp, or instrument, for im- pressing devices or words used in Bank of Ireland notes, without permission of the bank. Pun. tr. for life. To purchase or receive knowingly any forged note or bill, or blank note r bill > f Bank of Ireland > or knowingly to have same in possession without lawful excuse. Pun. tr. for 14 yrs. To forge, or counterfeit, or cause it to be done, or assist therein, or to alter any certificate or duplicate required by the Act, prescribing the mode of transferring stock in Banks of Eng- land or Ireland, or to utter such altered or counterfeit certifi- cate, with intent to defraud. The Acts authorizing government to raise money by way of annuities, usually contain clauses making it felony to forge, &c., J * &c.j any register, certificate, affidavit, &c., therein respectively mentioned. So with respect to annuities granted by Commis- sioners for the Reduction of the National Debt, see 10 Geo. IV. c. 27, and 2 & 3 Will. IV. c. 59, s. 19. For forgeries connected with Exchequer bills, see 48 Geo. III. c. 1 , s. 9. So falsely to personate others in order to receive the annuities created by 48 Geo. III. c. 142, s. 27 and 49 Geo. III. c. 64, s. 3, is fel. By the Act for securing suitors' money, fraudulently to ^ or e or P rocure > or assist in, forging the name or handwriting of the Accountant General of the Chancery, or Exchequer, or Cashier of Bank of Ireland, to any writing to receive suitors' money, or certificate thereunder, or knowingly to utter any such. For forgeries and offences similar to the above, against the O f I re land, connected with the Bank of England, which Felonies. 415 are fels., see 39 Geo. III. c. 63, ss. 2, 3, 4 ; 41 Geo. III. c. 39, FORGERY AND ss. 1, 5 ; 1 Geo. IV. c. 92, ss. 1, 2. Forging name, &c., of authorized officers of excise, 7 & 8 Excise or cus- Geo. IV., c. 53, s. 56, or of authorized officers of Customs, toms * 3 & 4 Will. IV. c. 51, s. 27, to obtain money on their account, or forging their drafts, &c., or uttering such forgeries. Forgery &c. on Lord High Treasurer, or Commissioners of Corns, of Trea- Woods and Forests, to obtain money on their account, or coun- surv or Woods terfeiting their drafts, see ; 10 Geo. IV. c. 50, s. 124. So forging the name, &c., of authorized officers of Ordnance Ordnance, to obtain money in Bank on Ordnance account, or uttering 'such forgeries, &c., 46 Geo. III. c. 54, ss. 9, 10. Counterfeiting &c., the dies, types, or stamps of the Stamp Forgery of Office, or imitating their stamps, or uttering, or knowingly stam P s Be- having in possession with intent to utter, forged stamps, &c., or assisting therein, 56 Geo. Ill, c. 56, s. 37, and the same offences with respect to the paper peculiar to the Stamp Office or ma- chinery for making such, id. s. 52. So forging stamps and Cards and dice, devices relating to cards or dice, or uttering or selling them with counterfeit stamps, 9 Geo. IV. c. 18, s. 35. So forging Gold and silver the marks or stamps for gold or silver plate, or marking, or P late * stamping, or transposing the same, or selling such, or having knowingly in possession such counterfeit marks or stamps, 47 Geo. III. s. 2, c. 15, s. 16. To make or cause to be made, or assist in making, or know- Permits, ingly to have in possession, without lawful excuse, any mould, or other instrument, for marking paper, with the words "Excise Office," or such, or intended to pass for such, as is used for per- mits ; or any such paper or instrument for engraving it ; 2 Will* IV. c. 16, s. 3. Pun. tr. 7 yrs., or imp. not less than 2 yrs. Forging or counterfeiting any memorial or certificate of Certificate of Registry of Deeds, 6 Anne, c. 2, s. 17, and 8 Anne, c. 10, s. 4 ; re g is try of or forging certificate of registry search, 8 Geo. I. c. 15, s. 4; or forging memorials or certificates of registry under the Act for registering in Irejand, deeds executed in Great Britain, 3 Geo. IV. c. 116,s.7. To forge or counterfeit the signature of any Judge, Chair- Elections man, Barrister, or Clerk of the Peace, to any order, certificate, c. or writing, purporting to be such, within the Reform Act, or 416 Felonies. FORGERY AND the signature of any person to any oath, &c., thereunder, or PERSONATION. i i> i i T r n i publishing such as true. Pun. tr. for 7 yrs., or imp. with or without H. L. not more than 3 yrs. Forgery and Personating any person entitled to army pay, pension, or connected with allowance, or forging name or handwriting of any such person, or pay, pensions, uttering any such forgery, 47 Geo. III. s. 2, c. 25, ss. 7, 8. Pun. 47 GeY'lII tr ' not more than 14 y rs> So b ? 7 Geo ' IV< c< 16 s ' 38 > P er - Sess. 2, c. 25, sonating army pensioners, or forging or assisting therein or ut- ss> ' ' tering any false or altered document to obtain army pensions, i6 Ge s '38 v ' c ' &c -> P un - tr - for life > or y rs - at disc - So b y 2 wm - IV - c - 33 > 2 Will. IV. c. s. 49, personating others, or forging or altering documents, or ' s * ' swearing falsely to obtain probate for the purpose of obtaining army prize money, &c. Pun. tr. for life, or not less than 7 yrs. at disc. So by 2 Will. IV. c. 106, s. 3, forging, or assisting therein, or uttering false documents to obtain army pay. Navy pay, 1 1 Forging any order, certificate, will, assignment, or authority Geo. IV. and I o f an y kind, to receive or enable others to receive improperly, Will. IV. c. 20, . . ss. 83, 87 ; and an y P a y> prize money, pension, or allowance, &c., due for service see59Geo. III. j n the navy, or causing such to be forged, or assisting therein, c. 56, s. 18. or utter i n g sucn , H Geo. IV. and 1 Will. IV. c. 20, s. 83 ; or personating another for the purpose of obtaining any navy pay, prize money, pension, or allowance, &c. s. 84 ; or falsely swear- ing to obtain probate of deceased officer, seaman, &c., and ob- taining pay thereon, s. 85 ; or subscribing false petition to the treasurer of the navy, to obtain a certificate, and knowingly re- ceiving or demanding pay thereon, s. 86 ; or forging, or using false, extracts from registries, affidavits, certificates, or vouchers to obtain navy pay or pension, &c. s. 87. See also, 59 Geo. III. c. 56, s. 18. So signing or uttering a false petition to ob- tain probate of seamen's wills, or letters of administration; 2 Will. IV. c. 40, s. 33. 2 & 3 Viet. c. Forgery, &c., of documents under the recent Aet'regulating pensions in army, navy, &c., is fel., pun. tr. or otherwise, at disc, of crt. For some other offences of the same nature, see MISD. tit. PAY. Bail, personal- Personating bail before a Judge on Circuit or Commissioner ing, 7 Will. III. f or taking special bail. Pun. tr. for life, or not less than 7 yrs., or imp. not more than 4, or less than 2 yrs. (H. L. and sol. con.) Felonies. 4 1 7 See 11 Geo. IV. and 1 Will. IV. c. 66, s. 11. Eng. and see FORGERY AND ACKNOWLEDGING. PERSONATION. For forgeries on the Post-Office, see POST-OFFICE. Forg- Other offences, ing certificates connected with Quarantine ; see QUARANTINE. Of previous felony; see CERTIFICATE ; and see MISD. tit. RECORDS. The pun. of all the foregoing offences formerly pun. capi- Pun. for forgery . IT vf . i *v r, and personation, tally is now tr. for life, or not less than 7 yrs., or imp. not more than 4, or less than 2 yrs. (H. L. and sol. con.) 7 Will. IV. and 1 Viet. c. 84. To steal, or destroy, or damage with intent to steal, any plant, GARDEN, ETC. root, fruit, or vegetable production growing in any garden, Stealing, or 11 11,1 i damaging, with orchard, nursery ground, hot-house, green-house, or conserva- j n t en t to steal tory, first offence pun. on summary conviction, and a subsequent in 9 Geo - !V". offence fel. and pun. as simple larceny. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 42. Maliciously to destroy, or damage with intent to destroy Malicious in any plant, root, &c., in any garden, &c., (as above) first offence, {""^ pun. summarily ; second offence fel. and pun. tr. for 7 yrs., or imp. not more than 2 yrs. (H. L. and sol. con.) s. 34, and 1 Viet. c. 90, and for males, 1, 2, or 3 whp. at disc. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 30, s. 21. Injuries committed upon the works, &c., of harbours, in HARBOURS, several instances have been made fel., pun. tr., as in the instance of Donaghadee harbour, by 1 Geo. IV. c. 113, s. 27; Dun- In J uri "S- leary harbour, by 56 Geo. III. c. 62, s. 24 ; Dunmore har- bour, by 58 Geo. III. c. 72, s. 26 ; Howth harbour, 50 Geo. III. c. 72, s. 24 ; and in several other instances by local Acts. Helping to stolen goods, see FELONY, compounding. HELPING. Highway robbery, see ROBBERY. HIGHWAY Homicide, see MANSLAUGHTER, MURDER. HOBBERY. . HOMICIDE. Breaking and entering the mansion-house or another in the night, with intent to commit some felony within the same, whe- Burglary, ther such felonious intent be executed or not, is burglary at Com. law. com. law ; 2 Ea. P. C. 484 ; 2 Russ. 2 ; or entering the dwell- 9 Geo - IV - ing-house of another, with intent to commit fel., or being in such dwelling-house and committing any fel., and in either case breaking out of the said dwelling-house in the night time ; pro- 3n 418 Felonies. HOUSES* vided that no building, although within the same curtilage with What a dwell- the dwelling-house, and occupied therewith, shall be deemed part Icf 13 US< of such dwelling-house, unless there be a communication be- tween such building and dwelling-house, either immediately or by means of a covered and inclosed passage leading from one to What is night? the other. And so far as is essential to the offence, night com- 7 3r?\r^** niences at 9 o'clock in the evening of each day and concludes at c. 86, s. 4. 6 the following morning. Pun. tr. for life, or not less than 10 yrs., Id. s. 3-7. or imp. not more than 3 yrs., (H. L. and sol. con.) The break- ing may be either actual, for which even raising a window or opening the fastening of a door is sufficient ; or it may be con- structive, as where the offender, with intent to commit a fel. obtains admission by an artifice or trick, for the purpose of effecting it. See authorities, Archb. 291, 292. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, ss. 11, 13. Burglary with Burglariously to break and enter any dwelling-house, and wounding, id. assau }t, with intent to murder, any person therein, or to stab, cut, wound, beat, or strike such person. Pun. D. Stealing in a To steal any property in any dwelling-house, and by any house and put- menace or threat to put any one being therein in bodily fear, ting inmates in r J * fear ; id. s. 5, Pun. tr. for not more than 15 yrs., or less than 10 yrs., or imp. not exceeding 3 yrs., (H. L. and sol. con.) Breaking and To break and enter any dwelling-house and steal therein entering, any chattel, money, or valuable security, of any value ; or to 9 Geo. TV. s t ea ] j n ail y dwelling-house any chattel, money, or valuable se- c. 55, s. i*i . . and? Will. IV. curity, to the value in the whole or 5, or more. Jrun. tr. lor and 1 Viet. no t mO re than 15 yrs., or less than 10 yrs., or imp. not more than 3 yrs., (H. L. and sol. con.) As to what is to be deemed a dwelling-house, see supra. The pun. under 9 Geo. IV. c. 55, and anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 12, was amelio- rated by 2 & 3 Will. IV. c. 62, and 4 Will. IV. c. 44, which have been altered as above by 1 Viet. c. 90. Stealing in out- To break and enter any building and steal therein any house, &c., chattel, money, or valuable security, such building being within 9 Geo. IVp fa Q cur til a g e of a dwelling-house, and occupied therewith, but not being part thereof, as above defined. Pun. tr. for life, or not less than 7 yrs., or imp. not more than 4 yrs., (H. L. and sol. con.) see s. 4, and 1 Viet. c. 90 ; and for males, 1, 2, or 3 whp. at Felonies^ 419 disc. Stat. 1 Viet. c. 90, s. 2, recites the anal. Eng. Stat. 7 & 8 HOUSES. Geo. IV. c. 29, s. 14, (without noticing the Ir. Stat.) and enacts, that any person hereafter convicted of the offence therein mentioned, shall be pun. tr. for not more than 15 or less than 10 yrs. or imp. not more than 3, (H. L. and sol. con.) To break and enter any shop, warehouse, or counting- Robbery in house, and steal therein any chattel, money, or valuable secu- s P* &c *' rity. Pun. same as last mentioned offence ; and a similar alt era- 55 J' 15 tion is made by the same Act, reciting the anal. Eng. Stat. 7 &8 Geo. IV. c. 29, s. 15, without noticing the Ir. For other offences, relating to houses, see BURNING, Fix- Other offences. TUBES, RIOTS. By the Act for preventing illicit distillation, to assault with ""CIT DIS- . TILLATION. fire-arms, sticks, stones, &c., or any offensive weapons, or with Resisting ex- force or violence to obstruct, any officer of excise, or person cise officer, &c., acting in his aid, in making any search or seizure thereunder, 1 & 2 Will. IV. or in arresting offenders ; or to rescue any such seizure or per- * ' s * son arrested, or to attempt it ; or to be found, to the number of 2 or more, armed with fire arms, sticks, stones, or other offen- sive weapons, or wearing any mask or disguise, carrying or being in possession of any malt or spirits illegally made or distilled, or the duty whereon is not fully paid, or any still, &c., or wort, wash, &c., or grain making into malt, or vessel which has con- tained illegal spirits, or assembling for such purpose, or assist- ing therein. Pun. tr. for 7 yrs. or imp. with H. L. not more than 3 yrs. or less than 6 months. No anal. Eng. Stat. Infamous crime is the abominable crime of buggery, with INFAMOUS man or beast, or an assault with intent to, or endeavour or at- tempt to, commit the same, or any solicitation, persuasion, pro- mise, or threat, to induce the commission or permission thereof. c . 55 s . 9] Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 9. Accusing of infamous crime, see THREATS ; and see BES- TIALITY, BUGGERY, and MISD. tit. ASSAULT. Inland Navigation, see BANKS, LOCKS, and BRIDGES. INLAND NAVI- Offences respecting various works of a limited and local na- ture, are, by the provisions of several Statutes, also fel. Kidnapping, see CHILD STEALING, ABDUCTION ; MISD. tits. KIDNAPPING. ABDUCTION, SHIPS. 420 Felonies. KING S STOKES. Selling or buy- ing, &c., new stores, 39 & 40 Geo. III. c. 89, s. I, extended to Ireland, by 52 Geo. III. c. 12. Defacing the King's mark, id. s. 4. Stores how marked. LARCENY, Com. law. Any person not being a contractor duly employed, know- ingly selling, or procuring to be sold, or receiving or having in possession, stores of war, naval, ordnance, or victualling stores, or any goods marked with the mark usually marked upon his Majesty's stores, (ante, p. 301, and infra,) such being in a raw or unconverted state, or new, or not more than one-third worn, shall be deemed receivers of stolen goods, knowing them to be stolen, and be pun. tr. for 14 yrs., or fine and imp., with whip- ping ; see s. 7. But if the stores are under 20s. value, offence is pun. on summary conviction; ss. 18, &c., and 52 Geo. III. c. 12, To obliterate or deface, wholly or in part, any mark de- noting his Majesty's property, in any warlike or naval, ordnance, or victualling stores, for the purpose of concealing his Majes- ty's property therein, or to procure, or direct it to be done. Pun. tr. for 14 yrs., or fine ar.d imp. and whipping ; s. 7. By s. 6, offenders transported for offences hereunder, and returning from tr., are pun. capitally. These provisions are extended by 55 Geo. III. c. 127, to all public stores under care of persons in the King's service, marked with a broad arrow and letters, B. O., or crown and broad arrow, or royal arms, or the letters G. R., and to the above offences in respect of such stores ; see ante, p. 301. Larceny is the wrongful taking and carrying away of the personal goods of any one with a felonious intent to convert them to the use of the offender, without the owner's consent ; 2 Ea. P. C. 553 ; 4 Bl. Com. 229. The taking may be either actual, when the goods are taken out of the owner's possession against his will ; or constructive, when the owner delivers the goods, but either does not thereby divest himself of the legal possession, or the possession of the goods has been obtained from him by fraud, with a previous intent to steal them ; see Archb. 173. The finding of goods and converting them to the finder's use, if he knows the owner, or has the means of discovering him, may also, under certain circumstances, amount to lar- ceny, ib. There are several articles, the stealing of which is not larceny at com. law, as things affixed to the realty, such as uncut corn; things not the subject of property, as a corpse, Felonies. 421 or not valuable in themselves, as bills or securities for money ; LAKCENY. animals ferte natures, as deer, partridge, &c., or of a base na- ture, as dogs, monkeys, &c. The doctrine of constructive tak- ing has also given rise to many minute distinctions, and there is frequently much nicety in determining what will amount to larceny at common law. Archb. 162, &c., 173, &c. But offences of this class, which yet do not amount to larceny, are now gene- Under Stats, rally punishable under the provisions of Statutes, for which see the following tits. Pels. CATTLE, CHURCHES, CLERKS and SERVANTS, COMPOUNDING, EMBEZZLEMENT, FIXTURES, GAR- DENS, HOUSES, MANUFACTURES, MERCHANDIZE, MINES, PIRACY, POST-OFFICE, RECEIVERS, ROBBERY, SECURITIES, SHIPS, TENANTS, THREATS, TREES ; Misd. CHEATING, DEAD BODIES, DEEDS, EMBEZZLEMENT, POST-OFFICE, RECEIVERS* RECORDS ; and see post, for offences, pun. summarily. Lar- simple or com- ceny is either compound, that is, accompanied by aggravating ^ u circumstances, as of taking from the house or person, (see HOUSES, ROBBERY,) or simple, that is, unaccompanied by such aggravating circumstances ; which latter is pun. tr. for 7 yrs. or imp. not more than 2 yrs. (H. L. and sol. con.) 9 Geo. IV. 9 Geo. IV. c. c. 55, s. 3, and 1 Viet. c. 90, and for males, 1, 2, or 3 whp. 55 s - 3 ' at disc. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 3. Maliciously to send, or deliver, or cause to be taken or MAIMING. received by any person, any explosive substance, or other dan- By explosive gerous or noxious thing, or to throw on, or otherwise apply to u ?i a i D T^' &c .' any person, any corrosive fluid, or other destructive matter, with 1 Viet. c. 85, intent to burn, maim, disfigure, or disable, or do other grievous s * 5 * bodily harm, and whereby any person shall be burned, maimed, &c., or receive other grievous bodily harm. Pun. tr. for life, or not less than 15 yrs., or imp. not more than 3 yrs. (H. L. and sol. con.) s. 8. Maliciously to shoot at, or attempt, by drawing a trigger or Attempt to in any other manner, to discharge any kind of loaded arms at Jv^ any person, with intent to maim, disfigure, disable, or do grievous c. 85, s. 4. bodily harm, or to prevent any lawful apprehension or detainer of any person. Pun. tr. for life, or not less than 15 yrs., or imp. not more than 3 yrs. (H. L. and sol. con.) s. 8. And see MISD. tit. MANTRAP. Malicious injuries, PELS, see ARSON, BANKS AND LOCKS, 422 Felonies. MALICIOUS IN- JJ RIDGE) BURNING, CATTLE, GARDEN, HARBOURS, MANU- FACTURES, MINES, PROVISIONS, SHIPS, RIOTS, TREES. Misds. FlSH AND MlLLPONDS, HOUSES, RECORDS, RAILWAYS, TURN- PIKES, WHITEBOY, and post, offences pun. summarily. MANSLAUGH- Manslaughter or felonious homicide, is the killing of a man or felon' ' ^7 another, where the malice aforethought, express or implied, homicide. necessary to constitute the crime of murder is wanting; 4 Black. Com. law. Com 191 . 2 Ea. P. C. 218 ; 1 Russ. 485. The killing may be either involuntary, but in the commission of some unlawful act not amounting to felony (if amounting to fel. it is murder) ; or voluntary, on a sudden heat ; but theintoxication of the accused is not sufficient to reduce the crime from murder to manslaughter ; R. v. Carroll, 7 C. & P. 145. The shades of distinction, how- ever, between the offence of murder and that of felonious homi- cide, are in many instances very slight ; see Archb. 389, etseq. Homicides, jus- Homicidesmay be also justifiable or excusable. Justifiable homi- rexCU * c ide * s : 1- The execution- of a criminal in conformity with his sentence. 2. Where an officer of justice, or one acting in his aid, in the legal exercise of a particular duty, kills any person re- sisting or preventing him ; see ante, pp. 209, 231. 3. When the homicide is committed in preventing a forcible or atrocious crime, as if one attempting to rob or murder another, be killed in the attempt. Excusable homicide is : 1. By misadventure, when a man doing a lawful act by accident kills another. 2. In self-defence, when a man in a sudden rencounter, merely in self-defence, or in defence of his wife, child, parent, or servant, 10 Geo. IV. c. and not from any vindictive feeling kills another; see Archb. 34, s. 13. 386: and, with respect to cases coming clearly within the above classes, it is provided that for killing by misadventure or in self- defence, or in any other manner without felony, no punishment shall be incurred. 10 Geo. IV. c. Manslaughter is fel. pun. with tr. for life, or not less than 1 7 yrs., or imp. not more than 4 yrs. (H. L. and sol. con.) see 1 Viet. c. 90, and fine at disc, of court. Anal. Eng. Stat. 9 Geo. IV. c. 31, s. 9, does not include sol. con. in the pun. MANUFAC- Certain manufactures are especially protected by legislative provisions, and some offences regarding them are more severely juring^goods'or P un * t * lan s i m ^ ar offences respecting other property. Thus mall- machines, ciously to cut, break, or destroy, or damage with intent to de- Felonies. 423 strov or render useless, any goods or articles of silk, woollen(a), MANUFAC- ., , . , .., TURES. mohair, or cotton, or any one or more ot them mixed witn each other, or with another material; or any frame-work knitted 56> s> 3. piece, stocking hose, or lace, in any stage or process of manu- facture ; or to commit the like injury on any warp, or shute of silk, woollen, linen, mohair, or cotton, or any of them mixed with each other, or other materials, or any loom, frame, ma- chine, engine, rack, tackle, tool, or implement prepared for, or employed in manufacturing, or otherwise preparing any such goods or articles; or by force to enter into any building or place, with intent to commit any of such offences. Pun., tr. for life, or not less than 7 yrs., or imp. not more than 4 yrs. (H. L. and sol. con.) see s. 34, and 1 Viet. c. 90, and if male, 1, 2, or 3 whp. at disc. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 30, s. 3, omits the words in in Italics. Maliciously to cut, break, or destroy, or damage with intent Destroying to destroy, or to render useless, any threshing machine, or any * es m a g machine or engine, or any tool or implement prepared for or chinery,uJ. s.4. employed in any manufacture, except the manufactures speci- fied in sec. 3, supra. Pun. tr. for 7 yrs., or imp. not more than 2 yrs., (H. L. and sol. con.) see s. 34, and 1 Viet. c. 90, and if male, 1, 2, or 3 whp. at disc. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 30, s. 4. See also BURNING, RIOTS. To steal to the value of 5s. any linen, hempen, or cotton Stealing goods yarn, or any goods or article of silk, woollen, linen, or cotton, in P rocess of y J e ' manufacture, or any one or more of these mixed with each other or with 9 Geo. IV. c. other materials, whilst laid, placed, or exposed during any stage, 55 s< 16> process, or progress of manufacture in any building, field, or place. Pun. tr. for life, or not less than 7 yrs., or imp. not more than 4 yrs., (H. L. and sol. con.) see sect. 4, and 1 Viet. c. 90, s. 5, and for males, 1, 2, or 3 whp. at disc. Anal. Eng. Stat. 7&8 Geo. IV. c. 29, s. 16, fixed the amount at 10s. in place of 5*. and omits the words in Italics. St. 1 Viet. c. 90, s. 2, recites it (without noticing the Ir. Stat.) and enacts, that any person here- after convicted of the offence therein mentioned, shall be pun., (a) The word " linen" is here omitted, although it occurs in the subse- quent part of this section ; it seems to be an error of the press ; it is in the anal. Eng. Stat. 424 Felonies. MANUFAC- tr. for not more than 15 or less than 10 yrs. or imp. not exceed- TUKES. . , TT TII x ing J yrs. (H. L. and sol. con.) MARRIAGE, A degraded clergyman, or layman pretending to be a clergy- by degraded man of the Church of Ireland, celebrating marriage between l^Geo?!*. c " two Protestants or reputed Protestants, or between such and 3, s. 1. a Papist, a capital fel. Other parts of this Stat. are rep., see 3 & 4 Will. IV. c. 102 ; 10 Geo. IV. c. 34, s. 1. See also AB- DUCTION, BIGAMY. MERCHANDIZE. To steal any goods or merchandize in any vessel, barge, or Stealing, 9 Geo. boa^ of any description whatever, in any port of entry or dis- IV . c. oo,s. 17. .... , , charge, or upon any navigable river or canal, or in any creek or bason, belonging to, or communicating with any such port, river, or canal, or from any dock, wharf, or quay adjacent to any such port, river, canal, creek or bason. Pun., tr. for life, or not less than 7 yrs., or imp. not more than 4 yrs. (H. L. and sol. con.) see sect. 4, and 1 Viet. c. 90, and for males, 1, 2, or 3 whp. at disc. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 1 7, omits the words in italics ; Stat. 7 Will. IV., and 1 Viet. c. 90, s. 2, recites it (without noticing the Ir. Act,) and enacts, that any person hereafter convicted of the offence therein mentioned, shall be pun. tr. for not more than 15, or less than 10 yrs., or imp. not exceeding 3 yrs., (H. L. and sol. con.) MINE. To steal, or sever with intent to steal, the ore of any metal, Stealing from, or any lapis calaminaris, manganese, mundick, or any wad, &c '' 9 Ge g* IV ' black cawke, or black lead, or any coal, or cannel coal, from any mine, bed, or vein thereof. Pun. as simple larceny. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 37. Drowning, Maliciously to cause water to be conveyed into any mine, or 9 Geo. IV. c. atl y subterraneous passage communicating therewith, with intent thereby to destroy or damage such mine, or to hinder or delay or maliciously the working thereof; or with like intent, to pull down, fill up, or obstruct any airway, waterway, drain, pit, level, or shaft, of or belonging thereto. Pun. tr. for 7 yrs. or imp. not more than 2 yrs. (H. L. and sol. con.) see s. 34, and 1 Viet. c. 90, and for males 1, 2, or 3 whp. at disc. Nothing herein to extend damage under ground by persons duly working an adjoining mine. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 30, s. 6. Machinery, &c. Maliciously to pull down or destroy, or damage with intent Felonies. 425 to destroy or render useless, any steam or other engine, shaft MINE. passage, drain, or level, for sinking, draining, or working any ! n mines - mine, or any staith, building, or erection used in conduct- ing the business of any mine, or any bridge, waggon-way, or trunk for conveying minerals from any mine. Pun. same as last offence. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 30, s. 7, omits the words in Italics. See also BURNING and RIOTS. Murder is, when a person of sound memory and discretion MURDER, unlawfully kills any reasonable creature, in being, under the Com * law> King's peace, (i. e. not an alien enemy in actual war,) with ma- lice aforethought, either express or implied, so as the party die of the wound within a year and a day after it was given, 3 inst. 47; 1 Russ. 421. The distinctions, however, upon the subject of malice (constituting the difference between murder and man- slaughter) are very minute, see Archb. 389, et seq. ; and the law presumes the malice to exist in every homicide, and the offence consequently to amount to murder, until the contrary appear, Fost. 255. For justifiable or excusable homicide, see MANSLAUGHTER. In principal and access, before the fact, lOGeo. IV. c. 34, s. 4. murder is pun. D. ; access, after the fact, tr. for life, or imp. not more than 4 yrs. with or without H. L. Anal. Eng. Stat. 9 Geo. IV. c. 31, s. 3. As to the manner of pronouncing sentence, see 6 & 7 Will. IV. c. 30, s. 1 ; 4 & 5 Will. IV. c. 26, s. 7. To conspire, confederate and agree to murder. Pun. D. Conspiring to ^ .. f j j j murder, lOGeo. lo solicit, encourage, persuade, or endeavour to persuade, jy c 34 s% 8 or to propose to, any person to murder any other person. Pun. Soliciting to D. These two latter provisions are peculiar to the Irish Act. murder, id. s. 9. To administer to, or to cause to be taken by any person, any Poisoning, or poison or other destructive thing, or to stab, cut, or wound any woundin g wiln J intent to mur- person, or by any means whatever to cause to any person any der, 7 Will. bodily injury dangerous to life, with intent in any of the cases IV and 1 v ' ct> aforesaid to commit murder. Pun. D. To attempt to administer to any person poison or other Attempt to destructive thing, or to shoot at, or attempt by drawing a murder, 7 Will. and I Viet. c. trigger or in any other manner to discharge any kind ot loaded 35, s. 3. arms at, or to attempt to drown, suffocate, or strangle, any per- son, with intent in any such case to commit murder, though no 3 i 426 Felonies. MURDER. MUTINY. OATHS. Administering, or taking unlaw- ful, 27 Geo. III. c. 15, s. 6, 12. Administering oaths, as here- in, 50 Geo. III. c. 102, ss. 1,2, 3. Taking such. Aiding or abetting. PEACE. bodily injury is effected. Pun. tr. for life or not less than 15 yrs. or imp. not more than 3 yrs. (H. L. and sol. con.) See also SMUGGLING ; and for rescuing a convict of murder or his body, see RESCUE. Mutiny, see ALLEGIANCE, ENLISTMENT; misd. tit. MUTINY. To administer or cause to be administered, or by threats, persuasion, or other undue means to cause any person to take any unlawful oath, on a book or otherwise; or to take such oath, not being compelled by inevitable necessity. Prosecution must be within a year after the offence. Pun. tr. for 7 yrs. It is not necessary that the oath should be to do an unlawful thing, if administered unlawfully it is sufficient, R. v. Adams, Hayes, Cr. L. 150. To administer or tender, or cause to be administered, &c., or be present assisting therein, or by threats, promises, persua- sion, or other undue means, procure to be taken, upon a book or otherwise, any oath or engagement binding to belong to any society or committee formed for seditious purposes, or to disturb the public peace or injure thejpersons or property of any person whatever, or to compel any person to do or to omit or refuse to do any act whatever, under whatever name or pre- tence such society is formed ; or binding to obey the orders of any unlawful committee or leader not under the authority of his Majesty, or to assemble at their command or at that of any person not having lawful authority, or not to inform or give evidence against any associate or other person, or not to reveal the taking of an illegal oath or other illegal act, or not to dis- cover illegal engagements, or the import thereof. Pun. tr. for life. Or taking any such oath. Pun. tr. for 7 yrs. Compulsion by inevitable necessity to excuse offenders ; but not unless they give full information on oath of the circumstances within ten days, or, if prevented by force or sickness, within seven days after such force or sickness ceases. All aiding or abetting in the offence, or causing the oath to be administered, though not present, are to be deemed principals. See Eng. Stats, on this subject, Archb. 503, et seq. For offences against the public peace, see OATHS, RIOT, and MISD. tits. UNLAWFUL ASSEMBLIES, WHITEBOY. Felonies. 427 Offences against the person, see fels. ABDUCTION, ABOR- PERSON. TION, BESTIALITY, BIGAMY, BUGGERY, CARNAL KNOWLEDGE, CHILD STEALING, HOUSES, MANSLAUGHTER, MURDER, PI- RACY, RAPE , ROBBERY, SHIPS, SMUGGLING ; misds. ABDUCTION, ASSAULT, CARNAL KNOWLEDGE, CHIMNEY SWEEPERS, CLER- GYMEN, CONCEALING, MAN-TRAP, SHIPS, SMUGGLING. Petit treason is now deemed murder, and pun. as such ; see PETIT TREA- MURDER. 1Q Ge S N iv Robbery on the high seas is piracy at com. law ; see Archb. c 34> s * 3 ' 252, et seq. cognizable in the Court of Admiralty. Offences PIBACV. prosecuted in the Admiralty are pun. as if committed on land ; Com. law. 9 Geo. IV. c. 54, s. 22. Piracy accompanied by assault with With violence, J . ,. . 1 Viet. c. 88, intent to murder, or stabbing, cutting, wounding, or in any way s 2 . endangering the life of any person on board the vessel, in re- spect of which the crime is committed, pun. D. This Stat. (1 Viet. c. 88) recites the Eng. Stats. 28 Hen. VIII. c. 15; 11 & 12 Will. III. c. 7; 4 Geo. I. c. 11, s. 7; 8 Geo. I. c. 24; and 18 Geo. II. c. 30, and enacts, that any person hereafter convicted of any of the offences mentioned in them, pun. with D. shall be pun. tr. for life, or not less than 15 yrs. or imp. not more than 3 yrs. (H. L. and sol. con.); but it does not notice the Irish Act relating to piracy, 11, 12, & 13 Jac. I. c. 2, which directed that all treasons, felonies, &e., on the seas, should be tried in such place as directed by the King's commission to the Admiral, in like form and condition as if such offences had been com- mitted on land. See also SLAVE, post. Poison, administering with intent to murder, see MURDER; POISON. to procure abortion, see ABORTION. Any person employed under the post office who shall steal, [POST OFFICE. or, for any purpose, embezzle, secrete, or destroy a post letter, Persons em- is pun. tr. for 7 yrs., or imp. not more than 3 yrs. (H. L. and ^ffi 3 ^^]? 081 sol. con.) s. 42, and 1 Viet. c. 90, s. 5; or if such letter con- &c., 7 Will. IV. tained any chattel, money, or valuable security, tr. for life, or ^ 1 ^j ct * c * not less than 7 yrs. or imp. not more than 4 yrs. (H. L. and 2 & 3 Viet. c. sol. con.) ss. 41 and 42, and 1 Viet. c. 90, s. 5. 52, s. 12. To steal from or out of a post letter any chattel, money, Any person or valuable security. Pun. tr. for life or not less than 7 yrs. or [^"f^ 7. 428 Felonies. POST OFFICE. Stealing letter bags, or stop- ping mail, id. s. 28. In P. O. packets, id. s. 29. Receivers, id. s. 30. Forgeries, id. s. 33. Id. s. 33. PR.33MUNIRE. imp. not more than 4 yrs. (H. L.and sol. con.) see ss. 41 and 42, and 1 Viet. c. 90. To steal a post letter bag, or a post letter from a bag, or from a post office > or from an officer of the post office, or from a mail, or to stop a mail with intent to rob or search the same. Pun. same as last* To steal, or unlawfully take away, a post letter bag sent by a post office packet, or a letter out of any such bag, or unlaw- fully to open any such bag. Pun. tr. for not more than 14 yrs. or less than 7, or imp. not more than 3 yrs. (H. L. and sol. con.) see sect. 41 and 42, and 1 Viet. c. 90. Any person who shall receive any post letter or post letter bag, chattel, money, or valuable security, the stealing, taking, embezzling, or secreting whereof is fel. under the Post Office Acts, knowing it to have been feloniously stolen, &c., and to have been, or intended to have been sent by the post, is guilty of fel. ; and may be indicted as access, after the fact, or for a substantive fel. and in the latter case whether principal be or be not amenable. Pun. tr. for life, or not less than 7 yrs. or imp. not more than 3 yrs. (H. L. and sol. con.) see ss. 41 and 42, and 1 Viet. c. 90. Forging, or procuring to be forged, the name or handwriting of the Receiver- General, or any person under him, to any writing, to receive money in bank on post office account ; or forging, altering, or uttering their draft, order, &c. Pun., same as last. So forging franks was pun. tr. for 7 yrs. but franks are now disused ; see 2 & 3 Viet. c. 52, s. 3. For other offences against the post office, see MISD. tit. POST OFFICE. Several offences against the independent sovereignty of the Crown of England were so called, as by Stat. 27 Edw. III. c. 1, impeaching judgments in the King's courts; Stat. 16 Hie. II. c. 5, suing out foreign process ; 40 Geo. III. c. 29, s. 3, hold- ing or taking part in elections for places not entitled to return members; 2 Eliz. c. 4, s. 5, refusing to consecrate bishops on receipt of royal patent, without suing out a bull, &c. ; and some other Statutes. Offenders are liable to some very severe penal- ties, and might formerly have been killed as the king's enemies, Felonies. 429 but see now Stat. 5 Eliz. c. 1. Eng. Justices may, it seems, take informations, &c., in a case of praemunire, as in other offences; 2 Hawk. c. 8, s. 34; Kale's Sum. 168. But prose- cutions for praemunire have long been almost unheard of ; see 5 Burn. 288. Principals are in the first or second degree. A principal in PRINCIPAL. the first degree is the actual perpetrator of the crime ; in the second degree is a person present, aiding and abetting. Both classes are, in most cases, pun. alike ; and where it is otherwise see the particular offence. Where a party effects his own escape by force, the offence PRISON is usually called prison breaking ; and the forcibly freeing another from imprisonment is properly called rescue. 1 Russ. 367, 378, 383 ; Archb. 523, &c. Prison breaking was fel. at com. law, for whatever cause the party was originally impri- soned, and whether he were actually within the public gaol, or only in the stocks, or in the custody of the person who had lawfully arrested him. But by the Stat. 1 Edw. II. St. 2, this law was mitigated where the party was confined upon a charge inferior to felony, and his breaking prison made pun. only as a high misd. by fine and imp. ; though where he is originally committed for fel. the breaking prison is still fel. as at common law. Some Stats, also made it a capital fel. in those who have been convicted and committed to gaol, under sentence for any of the offences therein respectively specified, to break gaol ; as in the instance of felons and vagabonds sentenced to tr. under Stats, previous to 8 Geo. I. c. 9, s. 1 ; of convicts for forgery or perjury sentenced to imp. or tr. under 3 Geo. II. c. 4, s. 2 ; and of persons confined under the Act for employing at H. L. persons sentenced to tr. 32 Geo. III. c. 27, s. 4. But, by the Act amending the Whiteboy Act, every person who shall by Pun. for pri- force or violence break open any gaol, prison, or bridewell, with son breach > an intention to enlarge himself or any other prisoner therein c . 44^ s . 4. confined for any offence, though not capital, is pun. tr. for life, or 7 or 14 yrs., or imp. with or without H. L., not exceeding 3 yrs., and for males 1,2, or 3 whp. at disc., and may be tried before the person enlarged. This Stat., which is peculiar to Ireland, does not seem to alter the degree of the offence ; see 430 Felonies. PRISON BREACH. Gab. Cr. L. 308. See also RESCUE and MISD. tit. PRISON BREAKING. PROVISIONS. Persons riotously assembled, pulling down, setting fire to, Preventing ex- or destroying any storehouse, mill, granary, corn stack, or other stroyincr&c?," P^ce, where corn, meal, malt, flour, or potatoes, are usually 23 & 24 Geo. kept for export or sale ; or beginning so to do ; or unlawfully saved^in f'orc ' ente " n g or breaking into such, or attempting so to do ; or by 9 Geo. IV. taking, carrying away, throwing abroad, or spoiling such provi- c. 55, s. 31. gions stored therein ; or attempting by force so to do ; or un- lawfully entering any ship, vessel, or boat, in which such provi- sions are laden, and wilfully taking, destroying, or damaging any of the articles so laden therein, or injuring or taking away such ship, &c., or its rigging, rudder, or any part thereof, or ob- structing the lading thereof, or preventing, or endeavouring to prevent, her sailing ; or by force stopping, seizing, detaining, taking, or driving away, any horse, car, or boat, so laden, on the way to or from any mill, store, market, sea-port, &c., to pre- vent its going as intended, or killing or maiming the horse, cutting sacks, or scattering the corn, or compelling its distri- bution, or sale ; or destroying any out-work to any mill ; or riotously aiding in any of the said offences. Pun. D. ; and see 1 1 Geo. III. RIOTS, post. The above Statute relates to offences committed c. 7, s. 2, also i persons riotously assembled. By a former Statute, mali- saved in force J [ by 9 Geo. IV. ciously to destroy store-houses or other places where corn is c. 56, s. 31, kept for export or sending coastways, or to take therefrom, or though partly ... . repealed by throw abroad, or spoil the corn, or unlawfully to enter any ship 10 Geo. IV. & c . to carry away, throw out, or spoil any grain therein, is fel., pun. tr. for 5 yrs. QUARANTINE. Officer whose duty it is to execute any orders concerning 6 Geo. IV. quarantine, deserting from his duty or knowingly permitting c * ' s ' * any person, vessel, or goods, to depart or be conveyed out of quarantine unless by permission, or giving false certificate of having performed quarantine. So forging or altering any certi- ficate touching quarantine, or procuring it to be done, or pub- lishing such forged or altered, with intent to obtain effect of a true certificate. RAPE. Rape is the carnally knowing a woman by force and against Com. law. her will ; 2 Inst. 180; Hawk. c. 41, s. 1 ; and to prove carnal Felonies. 431 knowledge, the proof of emission is unnecessary, but the of- RAPE. fence is complete upon proof of penetration, 10 Geo. IV. c. 1 eo. *-\ 34, s. 21. Pun. D. Anal. Eng. 9 Geo. IV. c. 31, s. 16. Any person who shall receive any chattel, money, valuable RECEIVERS security, or other property whatsoever, the taking whereof is of stolen goods. . . 9 Geo. IV. c. fel. at common law, or by this Act, knowing the same to have been 34^ s< 47. feloniously stolen or taken, is guilty of fel. and may be indicted as accessory after the fact, or for a substantive felony ; and in the latter case, whether the principal felon shall or shall not be amenable to justice. Pun. tr. not more than 14, or less than 7 yrs., or imp. not more than 3 yrs. (H. L. and sol. con.) see s. 4, and 1 Viet. c. 90, and for males, 1, 2, or 3 whp. at disc. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 54. See also MISD. tit, RECEIVER - 3 and see POST-OFFICE. Rescue is the forcibly freeing another from arrest or im- RESCUE. prisonment ; and whether it be felony or not, depends upon Com - law * the nature of the offence for which the party rescued was in custody. If the original offence be fel. the rescue is also fel. 1 Russ. 383, 384 ; though not pun. as a fel. at com. law, till the conviction of the original offender, 2 Hawk. c. 21, s. 8, Archb. 530; and pun. only with imp. for 1 yr. See Gabb. Cr. L. 311. But now if any shall rescue, or aid or assist therein, from i & 2 Geo. IV. the lawful custody of any constable or other person whatever, c. 88, s. 1. any person charged with, or suspected of, or committed for felony or suspicion thereof, then if the offender shall be con- victed of felony not capital, and liable to be imp. not more than 1 yr., he may be sentenced to tr. for 7 yrs. or imp. with H. L. from 1 to 3 yrs. See also 1 & 2 Will. IV. c. 44, s. 4 ; ante, PRISON BREAKING. To rescue any person committed by a justice of the peace on a mittimus for treason, felony, or any Prisoners com- of the offences mentioned in this Act (passed to amend the mi t*ed for Whiteboy Act,) and pun. with tr. from any one legally autho- ^Q^ i & 2 rized for that purpose, before the person so committed shall be Will.IV.c.44. lodged in gaol, is pun. tr. for life, or for 7 or 14 yrs., or imp. s * ' with or without H. L. not exceeding 3 yrs., and if male, 1, 2, or 3 whp. at disc. ; and all persons who shall assist, abet, or succour, or shall knowingly excite, encourage, or promote, or shall solicit, ask, or require, or shall endeavour to compel or in- Id. s. 6. duce any person to the commission of such offence, shall be 432 Felonies. RESCUE. Murderers or their bodies, 31 Geo.IlI.c. 17, s. 10. 7 Will. IV. and 1 Vict.c. 91. 31 Geo. III. c. 17, s. 11. Rescuing spirits, &c. 6 Geo. IV. c. 80, s. 143. BIOT. 27 Geo. III.c. 15, s. 1 ; perp. by 40 Geo. III. c. 96. Hindering pro- clamation, id. s. 3. Demolishing buildings, id. s. 5. pun. with tr. for 7 yrs., or imp. and whp. as above. 1 & 2 Geo. IV. c. 88, s. 1, extends to the U. K. but Stat. 1 & 2 Will. IV. c. 44, is limited to Ireland, and there is no anal. Eng. Stat. See Archb. 528. Rescuing, or attempting to rescue, or setting at liberty out of prison, any person committed for, or found guilty of, murder : or any convict of murder going to, or during execution. Pun. tr. for life, or not less than 15 yrs., or imp. not more than 3 yrs. (H. L. and sol. con.) And forcibly rescuing, or attempting to rescue the body of such offender from custody or the place where same shall be deposited in pursuance of this Act ; pun. tr. for 7 yrs. ; but the regulations with respect to bodies of murderers, are not now in force ; see 4 & 5 Will. IV. c. 26, s. 2; and 6 & 7 Will. IV. c. 30, s. 2. Anal. Eng. Stat. 25 Geo. II. c. 37, ss. 9, 10. See also ESCAPE, PRISON BREAKING, and post, MISD. tit. PRISON BREAKING. Rescuing any offender, or goods or chattels, seized under the Act relating to the duties on British spirits, or preventing such arrest or seizure, or assaulting officers or others executing the Act, or informers or witnesses, or aiding therein. Pun. tr. for 7 yrs. See also SMUGGLING, ILLICIT DISTILLATION. What amounts to riot, see ante, p. 118. Twelve or more riotously remaining together one hour af- ter proclamation made, ante, 135, pun. D. Stat. 1 Viet. c. 91, recites the corresponding English Stat. 1 Geo. I. c. 5, and se- veral Irish Stats., but not 27 Geo. III. c. 15 ; and enacts, that any person hereinafter convicted of the offences therein men- tioned, shall be pun, tr. for life, or not less than 15 yrs., or imp. not more than 3 yrs. (H. L. and sol. con.) With threats, messages, or force, to hinder or oppose any person beginning or going to proclaim, whereby the proclama- tion shall not be made ; or to continue together tumultuous!^ assembled to the number of twelve or more for one hour after such hindrance, knowing of it. Pun. same as last offence, and the Eng. Stat. describing the offence similarly recited and altered. Persons riotously assembled, demolishing or pulling down, or beginning to demolish, &c., any church, chapel, or building used for religious worship ; or if any person shall wilfully burn or set Felonies. 433 fire to, or maliciously fasten up such, or by threats or force obstruct BIOT. the celebration of service therein, or to maim or hurt clergymen officiating, or about to officiate. Pun. D. ; but see BURNING. To dig, erect, or provide, or cause to be dug, &c., any grave, Intimidation, gallows, or instrument of punishment, in order to induce any one to enter or assist in any unlawful combination or agreement, or in order to deter or prevent any person from giving evidence, or collecting lawful tax ; or to use force, or threaten pain or punish- ment, or destroy or threaten property, in order to force any person to join any unlawful combination or conspiracy, or prevent collecting taxes or giving evidence, or for their having declined such combination or given such evidence ; or to aid or assist in such offences. Pun. D. So to print, write, post, or publish, or Circulating knowingly circulate or deliver, or cause to be printed, &c., any ^tg notice, letter, or message, exciting, or tending to excite, any riot, 9, tumultuous meeting, or unlawful combination ; but this offence is only a misd. by 1 & 2 Will. IV. c. 44, see MISD. tit. WHITE- BOY ; and so with respect to the offence of forcibly seizing arms in the next sect. ; and it has been held that this Stat. (27 Geo. III. c. 15,) so far as it regards the latter offence, (the forcible seizure of arms,) has been virtually repealed by the above mentioned Stat. 1 & 2 Will. IV. c. 44, s. 1 ; Hayes, Cr. L. 145, in note. Knowingly and voluntarily to supply horses, arms, or ammuni- Supplying 6 . f horses, arms, tion, to any person for the execution of any of the offences & c . id. s . 10. in this Act. Pun. D. No person is liable to prosecution Prosecution under this Stat. 27 Geo. III. c. 15, unless prosecuted within a in ayr.id.s. 12. year, see s. 12. See further MISD. tit. WHITEBOY. Several offences riotously committed, are also made fel. as by the Act to protect the freedom of the export and sale of corn and other provisions, and to punish other riotous offences, 23 & 24 Geo. III. c. 20, s. 1, see PROVISIONS. And by the same Riotously de- Stat. persons riotously assembled, forcibly demolishing, pulling r0 s yi 23 &* 24" down, setting fire to, or breaking into, or beginning to pull Geo. III. c. 20, down, or attempting to set fire to, or break into any building s 'j!' se ^ ' whatsoever; persons riotously assembled by day or night, de- 31. stroying, or beginning to destroy, any machine, or any part Demolishing thereof, or any tool or utensil, used or intended for the purpose ^V^-Toeo ' of manufacture, or forcibly cutting, breaking, or destroying any III. c. 20, s. 8, 3 K 434 Felonies. RIOT. goods manufactured or unmanufactured, or maliciously setting saved in force fi re t o ^ or m an y wa y destroying any fire engine, or other engine c. 56, s. 31. ' f r draining any colliery or mine, or raising coals or minerals. Pun. D. ; but see Stat. 1 & 2 Will. IV. c. 44. MISD. tit. WHITE- BOY. For riots at elections, see ELECTIONS. ROBBERY. Robbery is the felonious and violent taking from the person Com. law. of another, goods or money to any value, putting him in fear, 7 'vvi7| 0l lV 1Dg> 1 Hawk. c. 34 ; 4 Black. Com. 241 , and see s. 5, infra. To rob and 1 Viet. c. any person, and at the same time, or immediately before or ' s * ' after to stab, cut, or wound such person. Pun. D. by armed per- Armed with any offensive weapon or instrument, or in corn- sons or nu>- p an y ^h one or more others, to rob, or assault with intent to bers, id. s. 3. * rob, any person ; or to rob and at the time or immediately before or after to beat, strike, or use any personal violence to any per- son. Pun. tr. for life, or not less than 15 yrs., or imp., not more than 3 yrs., (H. L. and sol. con.) see s. 10. Extortion by To accuse, or 'threaten to accuse, any person of the abomi- accusmg of un- na bi e crime of buggery, with man or beast, or of assault with natural crime. . ...... s 4^ intent or attempt to commit the same, or or using any solicita- tion, persuasion, promise or threat to induce any person to permit or commit the same, and thereby extorting any property from the person so intimidated. Pun. same as last. See THREATS. Stealing from To rob any person, or steal any property from the person of the person ; id. ano ther. Pun. tr. for not more than 15, or less than 10 yrs., or imp. not exceeding 3 yrs., (H. L. and sol. con.) see s. 10. Stealing need not be by force ; Archb. 249. Assault with ^ assau ^ an y person with intent to rob. Pun. (unless where intent to rob; greater is provided) imp. not more than 3 yrs. (H. L. and sol. id ' 8> 6 ' con.) see s. 10. Demanding With menaces, or by force, to demand any property from with force or an y person with intent to steal it. Pun. imp. not more than menace ; id. s. g ^ ^ ^ ^ ^ ^^ ^ ^ w p rope rty" in this Act denotes every thing included under " chattel, money, or va- luable security;" see SECURITY, post ; id. s. 12. See other similar offences referred to under tit. LARCENY. SACRILEGE. g Sacrilege i see CHURCHES. SECURITY If an y P erson steal an 3 r tal ty> or der, Exchequer acquittance, or other security whatsoever, entitling, or evidencing the title Felonies. 435 of any person or body corporate to any share or interest in SECURITIES. any public stock or fund, whether of the United Kingdom, or Stealing^ Geo. Great Britain, or England, or Scotland, or Ireland, or any an( [ S a m e'defi- ? foreign state, or in any fund of any body corporate lawfully nition in2Will. acting as a company or society, or to any deposit in a savings' bank, or steal any debenture, deed, bond, bill, note, warrant, order, or other security whatsoever for money or for payment of money, of U. K , &c. or foreign state, or any warrant or or- der for the delivery or transfer of any goods or valuable thing, he shall be deemed guilty of fel. of the same nature and de- gree, and pun. in same manner as if he had stolen any chattel of like value ; and the documents above enumerated, are de- noted by the words " valuable security." Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 5, instead of words in Italic, has " of this Kingdom, or of G. B. or of Ir." The definition of valuable security used in Stat. 2 Will. IV. c. 4, see ante, EMBEZZLEMENT, 2Will.1V. c. 4 ; is the same ; and that adopted in the Post-Office Act, 7 Will. ^^tV' IV. and 1 Viet. c. 36, s. 47, is nearly the same, but it also c. 87, s. 12. mentions ' the whole, or any part" of the respective securities enumerated. In the Burglary and Robbery Acts, in which valua- ble securities are not specifically mentioned in the clauses relating to each offence, they are included in the word " Property/' Any person claiming salvage, or under other pretence, de- SHIPS. taining vessel or goods, after salvage is satisfied and owner Salvage Act, entitled to restitution, is guilty of a fel. iflV^sTw Maliciously damaging, otherwise than by fire, any ship or jj ainacr j n vessel, whether complete or unfinished, with intent to destroy ships, 9 (jeo. or render it useless. Pun. tr. for 7 yrs., or imp. not more -c-ob, s. 1C than 2 yrs., and if male, 1, 2, or 3 whp. at disc., (H. L. and sol. con.) see s. 34, and 1 Viet. c. 90. Anal. Eng. Stat. 7 & 8 Geo. IV. c.30, s. 10. Maliciously to set fire to, cast away, or in anywise destroy Destroying with any ship or vessel, with intent to murder any person, or whereby Ir^f | y e j the life of any one shall be endangered. Pun. D. 1 Viet. c. 89, To exhibit any false light or signal, with intent to bring any s - 4t ship or vessel into danger, or maliciously to do anything tend- w ' eckm g > l ing to the immediate loss or destruction of a vessel in distress. Pun. D. 436 Felonies. SHIPS. Maliciously to set fire to, or in anywise destroy any ship or Burning or de- vessel, whether complete or unfinished : or maliciously to set stroymg, to in- . . jure owners, nre to > cast away, or in anywise destroy any ship or vessel, with &c., id. s. 6. intent to prejudice the owner, or part owner thereof, or of any goods on board, or the underwriter of insurance on the ship, freight, or goods onboard. Pun. tr. for life, or not less than 15 yrs., or imp. not more than 3 yrs. (H. L. and sol. con.) s. 12. wrecked g er-' P ~ Forcibly to prevent or impede any person endeavouring to sons, id. s. 7. save his life from any ship or vessel in distress, or wrecked, or stranded, or cast ashore, whether on board or having left it. Pun. tr. for life, or not less than 15 yrs., or imp. not more than 3 yrs., (H. L. and sol. con.) s. 12. Injuring vessels Maliciously to destroy any part of any vessel in distress, in distress; id. , St s. wrecked, stranded, or cast on snore, or any goods, merchandize, or articles of any kind belonging thereto. Pun. tr. not more than 15, or less than 10 yrs., or imp. not more than 3 yrs. (H. L. and sol. con.) s. 12. Plundering To plunder or steal aiiy part of any ship or vessel in dis- 7 Win" IV 'and ^ ress ' wrecked, stranded, or cast on shore, or any goods, mer- 1 Viet. c. 87, chandize, or articles of any kind belonging thereto. Pun. tr. s * 8 * not more than 15, or less than 10 yrs., or imp. not more than 3 yrs., (H. L. and sol. con.) see s. 10. SHOOTING AT. Shooting at, with intent to murder, see MURDER ; to maim, see MAIM ; and see SMUGGLING and ILLICIT DISTIL- LATION. SLAVE TRADE. g v tne Act for the abolition of the slave trade, carrying 5 Geo. IV. c. avvaV) or assisting therein, (except as by this Act is permitted,) 113, s. 9. />i ft*' any person as a slave, or for the purpose of being imported, bought, sold, or used as a slave ; or knowingly shipping, re- ceiving, or detaining, or assisting therein, on board ship, any 7 Will. IV. and P erson f r suc ^ purpose, is declared to be piracy. Pun. tr. for 1 Viet. c. 91. life, or not less than 15 yrs., or imp. not more than 3 yrs. (H. 5 Geo. IV. c. L- and sol. con.) So persons dealing in, or exposing, or im- 113,s.lO. porting slaves, shipping slaves in order to exportation or im- portation, or fitting out slave ships, or embarking capital in the trade, or guaranteeing slave adventurers, or shipping goods, &c., to be employed in the slave trade, or serving on board slave ships, knowing them to be such, as captain, master, mate, sur- Felonies. 437 geon, or supercargo, or insuring slave adventurers, or forging instruments relating to the slave laws, or knowingly uttering such, and their procurers, counsellors, and abettors, are guilty of fel., and pun. tr., not more than 14 yrs., or imp. with H. L. not more than 5, or less than 3 years. If any three or more persons, armed with fire-arms, or other SMUGGLING. offensive weapons, shall be assembled in order to aid and assist b y three or ,.,,,,,. . . more armed in the illegal landing, running, or carrying away of any pro- p ersonS) hibited goods, or goods on which the duty has not been paid or 3 & 4 Will. IV. secured, or in rescuing or taking away any such goods, after seizure, from the officer authorized to seize same, or from any person assisting him, or from the place where same shall have been lodged by them j or in rescuing any person who shall have been apprehended for any offence, made felony by any Act re- lating to the customs, or in preventing the apprehension of any such person; such offenders, and all aiding or assisting, are guilty of fel. and pun. tr. for life, or not less than 15 yrs., or 7 Will. IV. and imp. not more than 3 yrs,, (H. L. and sol. con.) * Vict> c ' 91. Maliciously to shoot at any vessel or boat belonging to His Shooting at offi- Majesty's navy, or in the service of the revenue, within 100 ^ 3 f ^f^j' leagues of the coast ; or maliciously to shoot at, maim, or dan- IV.c. 53,s.59. gerously wound any officer of the army, navy, or marines, duly employed for the prevention of smuggling, and on full pay, or any officer of customs or excise, or person acting in his aid or duly employed for the prevention of smuggling, in the execution of their duty ; or to aid and assist therein. Pun. tr. for life, or 7 Will. IV. and not less than 15 yrs., or imp. not more than 3 yrs., (H. L. and l Vlct - c - 91 - sol. con.) Being in company with more than four other persons found Being in com- with any goods liable to forfeiture under this, or any other Act ^ro^o^s- 6 relating to the revenue of customs or excise, or in company with guised, and with one other person within five miles of the seacoast, or any na- ^^^r^Jv vigable river leading therefrom, and carrying offensive weapons, c. 53, s. 60. or disguised in any way. Pun. tr. for 7 yrs. And see MISD. tit. ASSAULT. Sodomy, see BUGGERY. J SODOMY. Stealing, see LARCENY, and tits, there referred to. ^ vt r^^ STEALING. Stolen goods, receiving, see RECEIVERS. Helping to, see COMPOUNDING. 438 Felonies. TENANTS AND LODGERS. Stealing, &c., 9 Geo. IV. c. 55, s. 38. THEFT. THREATS. Accusation to extort money, 9 Geo. IV. c. 55, s. 8. Any person who shall steal away any chattel or fixture, let to be used by him or her, in or with any house or lodging, whe- ther the contract was made by him or her, or by her husband, or any other person, or on behalf of either of them, is guilty of fel., and pun. as for simple larceny. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 75. For tenants demolishing houses, see MTSD. tit. HOUSES. Theft ; see LARCENY, and titles there referred to. To send, or deliver knowingly, any letter or writing de- manding with menaces and without reasonable cause any chat- tel, money, or valuable security ; or to accuse or threaten to accuse, or to send or deliver or directly or indirectly cause to be received, any letter or writing, accusing or threatening to ac- cuse any person of any crime punishable with D., tr., or pillory ; or with assault with intent, or any attempt to commit, a rape, or with any infamous crime as herein defined (see p. 419,) with intent to extort any money, chattel, or valuable security. Pun. tr. for life, or not less than 7: yrs., or imp. not more than 4 yrs. ; and if male, 1, 2, or 3 whp. at disc. (H. L. and sol. con.) s. 4, and 1 Viet. c. 90. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 8, omits the words in Italics. With menaces, or by force, to demand any property of any person, with intent to steal it; or to extort, by accusing of unnatural crime, see ROBBERY ; and see MISD. tit. THREATS. If a convict sentenced, or ordered to tr., or agreeing to transport himself conditionally, either for life or yrs., be at large within any part of the U. K., without lawful excuse, before the 9 Geo. IV. c. expiration of term of tr., it is fel. St. 5 Geo. IV. c.84, regulating 54, s. 16. t | ie tr Q O ff enc iers from Gt. Br., contains a similar enactment as to offenders tr. thereunder, and at large in any part of H. M. dominions. In both these Stats, the pun. is D. ; but Stat. 4 & 5 Will. IV. c. 67, s. 3, reciting the Eng. Stat. 5 Geo. IV. c. 84, (but not noticing the Ir. 9 Geo. IV. c. 54,) enacts that any per- son convicted of any offence therein specified, or of aiding and abetting, counselling, or procuring the commission thereof, shall be pun. tr. for life, and, previously thereto, imp., with or without H. L. not exceeding 4 yrs. Before the above general enact- ment, special provisions on the same subject were contained in TBANSPORTA- TION. Returning from, Felonies. 439 some Stats. ; see 6 Geo. I. c. 2, s. 24; 12 Geo. I. c. 8, s.6; 3 Geo. TRANSPORTA- II. c. 4, s. 2 ; 11 Geo. III. c. 7, s. 2. So it is provided by the Annual Mutiny Acts, that persons sentenced by courts-martial, or ordered by his Majesty to tr. under them, and returning, or being at large within the term of tr., shall be guilty of fel. St. 8 Geo. I. c. 9, s. 1, also enacted that felons and vagabonds sen- tenced to tr. under Stats, then in force, and escaping &c., should be guilty of a capital fel. ; and by sect. 3, to receive, harbour, Harbouring fe- or conceal robbers or felons ordered for tr., who may break lo " s so at lar e gaol, escape, or be at large without lawful excuse, before ex- piration of their term, is also fel. So masters of vessels under- Landing felons taking to transport convicts ordered to American plantations, in Epe, 17 and fraudulently landing them in Europe, was a capital fel. s ^ See also ESCAPE, CERTIFICATE. Treason is the highest offence known to the law. By Stat. TREASON. 5 Edw. III. c. 2, the following are declared treason : com- Se e the Statutes passing the death of the King, Queen consort, or eldest son and 3 j^ it ' 5 an heir ; violating the Queen consort, or King's eldest daughter 4 Bl. Com. 94, unmarried, or wife of eldest son ; levying war against the King; ^ c< ' ' ' E *' P * being adherent to, or aiding or comforting the King's enemies; c. 52, s. 2. counterfeiting the great or privy seal ; slaying the Chancellor or Judges in execution of their offices. Several other Acts are also by Stat. made treason, as rebelling or conspiring against the Lord Lieutenant, or urging the Irish to make war on the Eng- lish, by 10 Hen. VII. c. 13 ; wishing or practising harm to the King, or his heirs, or pronouncing him a heretic, usurper, or de- taining his fortresses, 28 Hen. VIII. c. 7; by writing, or other exterior act, doing anything to the peril of the King's person, or disturbing succession to crown of Ireland, 33 Hen. VIII. c. 1 maintaining or defending the authority of any foreign prince or prelate, 2 Eliz. c. 1, s. 12; disappointing the succession as directed by the Act of Settlement, 2 Ann, c. 5, s. 1 -, and some others, most of which are now obsolete ; see Gab. 882. All treason is fel. In treason there are no accessories, even access, after the fact, being considered principals, Post. 341 ; Archb. 7; except perhaps receivers of those who counterfeit the King's seal ; see Gab. 884. Pun. for treason is to be drawn to the place of execution on a hurdle, hanged till dead, the head then severed 440 Felonies. TREASON. 54 Geo. III. c 36 Geo HI 31. TREES, s 19* Stealing, or damaging with intent to steal, 9 Geo. IV. c. 55, s. 31. from the body, and the body divided into four quarters, to be disposed of at the King's pleasure ; but the King may, by war- rant> a ^ ter ^ S sentence< For women, the pun. is hanging. Maliciously, between sunset, and sunrise, to cut, break, bark, root up, or otherwise destroy or damage the whole or any P art ' ^ an y tree> sa P^ n g? or shrub, or any underwood ; or be- tween sunrise, and sunset, if the damage done exceed 5. Pun. tr. for 7 yrs., or imp. not more than 2 yrs. (H. L. and sol. con.) see s. 34, and 1 Viet. 90 ; and for males, 1,2, or 3 whp. at disc. Stat. 7 & 8 Geo. IV. c. 30, s. 19, Eng. is similar, but the distinction adopted is not as to the time of the of- fence, but the place where the trees are growing. See also BURNING, ante. To steal, or cut, break, root up, or otherwise destroy or damage, with intent to steal, the whole, or any part, of any T i i j i tree > sa P" n g> or shrub, or any underwood growing in any park, pleasure-ground, garden, orchard, or avenue, or any ground ad- joining, or belonging to a dwelling-house, if the value of the arti- cle or articles, or amount of injury exceed 1; or wherever the trees, &c., are growing, if the value or amount of injury exceed 5. Pun. as simple larceny. To steal, or cut, break, &c., with intent to steal, the whole or anv p artj o f an y t ree, sapling, shrub, or underwood, wherever growing, the stealing or injury amounting to one shilling, first and second offences pun. summarily; third offence, fel. and pun. as simple larceny. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 39. Valuable security ; see SECURITY, ante. Wounding, with intent to murder, see MURDER, ante. With j ntent to maim, &c., or to prevent lawful apprehension or detainer, see MAIM ; and as aggravating other offences, see the particular offence. Stealing from, or preventing escape from wrecks, or lead- ing ships into danger; see SHIPS. MISDEMEANORS. ABPUCTION, FRAUDULENTLY to allure, take, or convey away, or cause to of an heiress, be taken, &c., any unmarried girl under the age of 18, having 10 Geo. IV. c. an i nterest i n rea l or personal estate, or entitled to the succes- 34, s. 23. If after surama ry conv. Id. s. VALUABLE SB- CUKITV. WOUNDING. WRECKING. Misdemeanors. 441 sion, of such interest out of the possession, and against the will ABDUCTION. of her parent, or of any person having the lawful charge of her, and to contract matrimony with or defile her. Pun. imp., not exceeding 3 yrs., and offender to be incapable of taking any interest in such property, which upon conviction shall be vested from the marriage, in trustees for the separate use of the girl. No anal. Eng, Stat., but see 9 Geo. IV. c. 31, ss. 19, 20, Eng. To take, or cause to be taken, any unmarried girl, under W. s - 24 the age of 16 yrs., out of the possession and against the will of her parent, or of any person having lawful charge of her. Pun. fine or imp., or both at disc. Anal. Eng. Stat. 9 Geo. IV. c. 31, s. 20. See PEL, tit. ABDUCTION. Forcible abduction, or stealing away a man, woman, or Kidnapping, child, from their own country, and sending them into another, is a misd. at com. law, Raym. 474 ; 2 Show. 221 ; Skin. 47 ; and see SHIPS, post. All persons who in fel. would be accessories before the ABETTORS, fact, (see ante, fel., tit. ACCESSORIES p. 402,) in offences ACCESSOR1ES - under fel., are principals, and are to be indicted as such ; 1 Hale, 347, 450, 616 ; Archb. 7, 9. Some Stats, also specially provide, that all persons who shall aid, abet, counsel, or pro- cure the commission of any misd. under them respectively, shall be indictable, and pun. as principals ; as the Larceny Act, 9 Geo. IV. c. 55, s. 54; the Malicious Injuries Act, 9 Geo. IV. c. 56, s. 33; the Post-Office Act, 7 Will. IV., and 1 Viet, c. 36, s. 35. But some Stats., as 1 & 2 Will. IV. c. 44, s. 15, and 16 Geo. III. c. 21, (see W T HITEBOY, post,*) contain distinct clauses, allotting a pun. to persons who assist in, encourage, or excite the commission of offences which are misds. under them ; for which see the respective offences. So in offences under fel., there are no accessories after the fact ; 1 Hale, 613 ; Archb. 9. Quaker or Moravian, making affirmation in lieu of oath, and AFFIRMATION. affirming anything which if sworn in the usual form, would 3 & 4 Will. IV. amont to perjury, is pun. as for perjury. The pun. is the same when the affirmation is by a Separatist, or if the person affirming 2 & 3 Will. IV, i seel 3 L be not really a member of the sect called Separatists, So per- ' 82 ' 442 Misdemeanors . AFFIRMATION. 1 & 2 Viet. c. 77. AFFRAY. ANATOMY. 2&3 Will. IV, c. 75, s. 18. ARMS. 47Geo. IK. S. 2, c. 54, s. 12, continued by 3&4Vict.c.32, ARREST. ASSAULT AND BATTERY. Assault, com. law. Battery. sons who have been Quakers or Moravians affirming what if sworn to would be perjury, are pun. as for perjury. See PERJURY. Affray; this offence has been described, ante p. 118; it is a misd. at common law. By the Act for regulating the schools of anatomy, which es- tablishes certain regulations with respect to post mortem ex- aminations, and the removal of bodies for such purposes, it is provided that any person offending against the provisions of the Act, shall be guilty of a misd., and pun. by imp. not more than 3 months, or fine, not more than 50, at disc, of Crt. See also DEAD BODIES. Having pikes, pike-heads, daggers, or dirks, unlawfully (see ante, p. 262,) in possession, custody, or keeping, 1st offence pun. imp., 12 cal. months ; 2nd offence, fel., ante, p. 403. Training to arms, taking arms, &c., see UNLAWFUL ASSEM- BLIES, WHITEBOY, post, and see RIOT, ante, p. 433. Arrest of clergyman officiating or going to officiate, &c. see CLERGYMEN, infra. An assault is an attempt to commit a forcible crime against the person of another, such as an attempt to commit a battery, or any offence of a higher degree attended with force. Striking at another with a cane, stick or fist, although the party striking misses his aim ; drawing a sword or bayonet, or throwing a stone or bottle, &c., with intent to wound or strike ; present- ing a gun at a man who is within the distance to which the gun will carry ; pointing a pitchfork at him when within reach of it ; or any other act indicating an intention to use violence against the person of another is an assault. But if the person who strikes at another is at such a distance that he cannot by possibility touch him, it is no assault ; see Archb. Cr. L. 147, et seq. Nor is even an angry feeling essential to the offence in some cases, and therefore taking indecent liberties with a female against her will, though no resistance be offered, or wantonly stripping a female naked under pretence of curing her, are indictable offences ; Russ. & Ry. C. C. 130 ; Ry. & Mo. C. C. 19; Gab. C. L. 82. A battery, in the legal acceptation of the word, includes beating or wounding. To beat, also, in the legal acceptation Misdemeanors. 443 of the term, means not merely to strike forcibly with the hand, ASSAULT AND or a stick, or the like, but includes every touching (however trifling) of another's person, in an angry, revengeful, rude, or insolent, manner ; as, for instance, thrusting or pushing him in anger, holding him by the arm, spitting in his face, jostling him out of the way, pushing another man against him, throwing a squib at him, striking a horse upon which he is riding, whereby he is thrown, or the like. Therefore, if a man strikes at another with a cane or fist, or throw a stone at him, or the like, if he misses him it is an assault; if he hit him it is a battery, Archb. ubi sup. These offences unless where they amount to fel. (see FEL. tits. MAIM, MURDER, ROBBERY ; see also ILLICIT DISTILLATION, SMUGGLING) are misd. pun. fine and imp. But as to bailing for them see ante, p. 579. The following assaults are also made more severely pun. by Statute, viz. : Assault committed in consequence of any unlawful combi- In consequence nation respecting any trade, manufacture, &c., on any person of combination, concerned therein, and with intent to do grievous bodily harm. 34 St 28. Pun., tr. for 7 yrs., or imp. with or without H. L., not more than 3 yrs., and if male to be 1, 2, or 3, privately whipped at disc, of court. No anal. Eng. Stat. Unlawfully and maliciously to assault, beat, or wound any Violent as- person, so as thereby to endanger the life of such person, or to saults, id. 29. inflict upon such person grievous bodily harm. Pun., tr. for 7 yrs., or imp. with or without H. L. not more than 3 yrs., and for males 1, 2, or 3, whp. at disc. ; see also MAIM, ante. Assault on any magistrate, officer, or person lawfully On officers, &c. authorized, on account of the exercise of his duty concerning savin g wrecks, any vessel in distress, or any vessel or goods wrecked, stranded, cast on shore, or lying under water. Pun., tr. for 7 yrs., or imp. with or without H. L., for such term as the court shall award. Anal. Eng. Stat. 9 Geo. IV. c. 31, s. 24. And the following assaults are punishable with H. L. in Assaults to addition to imp., viz., any assault with intent to commit fel. 3 commit felony, assault upon any peace or revenue officer in the execution of ^ ffi ^ rs > &c -> his duty, or any person acting in his aid ; assault with intent to resist or prevent the apprehension or detainer of the party himself or of any person for any offence for which he may 444 Misdemeanors . For money at play, 11 Anne, c. 5, s. 7. Assault and false imp., com. law. ASSEMBLIES. ASSOCIATION. 10 Geo. IV. c. 1, ATTEMPT, BANK OF IRE- LAND. Flash Notes. 37 Geo. III. c. 24, s. 2. be lawfully apprehended or detained ; pun. in all such cases, imp. with or without H. L., not exceeding 2 yrs. , and offenders may also be fined, and required to find sureties for keeping the peace at disc, of court. Anal. Eng. Stat. 9 Geo. IV. c. 31, s. 5, includes assaults to raise wages. By an old Statute, for assaulting or challenging any person to fight, on account of money won at any of the games men- tioned in this Stat., the offender shall on conviction forfeit to the King all his personal estate, and suffer imp. for 2 yrs. The corresponding Eng. enactment, 9 Anne, c. 14, s. 8, is rep. by 9 Geo. IV. c. 31, Eng. See also EXCISE, FISHERIES, SMUGGLING. For minor assaults pun. on summary conviction, see post. A false imp. is also amisd. at common law ; and every con- finement of the person is an imp. whether in a common prison or a private house, or the stocks, or even a forcible detainer in the public streets ; 2 Inst. 589 ; Com Dig. Imp. ; Cro. Car. 210 ; see Archb. 443. Assemblies, see UNLAWFUL ASSEMBLY, PROCESSION. The Catholic Association is suppressed, and further meet- ings thereof declared unlawful assemblies, and persons present thereat guilty of misd. Every attempt to commit a fel. or misd., whether it be an offence by Statute, or at common law, is a misd., R. v. Higgins, 2 Ea. 8 ; Atkinson's case, R. & R. C. C. 107, n. ; R. v. Martin, 9 C. & P. 217. Sometimes attempts to commit offences are also made more highly pun., and some, as attempts to murder, maim, &c., are made fels. by Statute; for which see the offence attempted. To prevent unwary persons from being imposed on by imitation of the notes or bills of the Bank of Ireland, no person shall, without authority, engrave, upon any plate or material whatsoever, any promissory note or bill of ex- change, containing the words " Bank of Ireland," or "Bank Post Bill," or any words expressing the sum or amount of such note, or bill, in white letters or figures, on a black or dark ground; or any notice or advertisement with flourishes or de- vices in the margin, or any number thereon, in white letters or figures on a black or dark ground ; or shall use any such Misdemeanors. 445 plate so engraved, or any other instrument for the making BANK OF IUE- or printing any such note, bill, or advertisement, or shall knowingly have in his custody any such plate, or instrument, or knowingly utter or publish such note, &c. Pun. fine not exceeding 50, or imp. not exceeding 6 months. Any person employed by Bank knowingly making out or Delivery, false ,,..,..,,' f. dividend, war- delivenng dividend warrant, or warrant for payment of rant> money, (under this Act, making dividends on Government 37 Geo. III. c. Stock payable at the Bank,) for a false amount, or causing or ' s * procuring it to be done, or acting or assisting therein. Pun. tr. for 7 years. See also ante, pp. 413, 414, tit. FORGERY. Barratry consists in frequently stirring up suits among BARRATRY. the King's subjects, either at law or otherwise, and is a misd. at common law, pun., with fine and imp. 4 Bl. Com. 134. 1 Hawk. c. 81. Battery, see ASSAULT, supra. Keeping a bawdy-house is a misd. Pun. fine and imp. BAWDY-HOUSE. or both, and, by 7 Geo. IV. c. 9, H. L. Blasphemy against God or Jesus Christ, profane scoffing BLASPHEMY. at holy Scriptures, or impostures in religion, or pretending to extraordinary commissions from God, are misd. at common law. 1 Hawk. c. 5. ; see Gab. Cr. L. 72. When a person concerned in the administration of justice BBI f a ^ v RY * takes any undue reward to influence his behaviour in his office, it is a misd. at common law, both in those who take the bribe, and those who offer it, whether it be taken or not; pun. with fine and imp. 4 Bl. Com. c, 13, p. 139; 1 Hawk, c. 67 ; 3 Inst. 145. And though the offence of bribery is by some confined to judicial officers, this definition seems too narrow. Archb. 346. Officiating ministers in any parish may grant permission, BUBIAI,. in writing, to a clergyman of any other persuasion to perform 5 oVo? 1V c'. 25, burial service in the parish churchyard ; obstruction of the s - 5> burial service by any person after such permission is a misd. With threats, &c., obstructing a clergyman, in the actual dis- At com. law. charge of his duty reading the burial service is also indictable as a misd. at common law ; see R. v. Cheere, 7 D. & R. 461. To bury the body of one who has died a violent death without sending for the coroner, or before he has sat upon 446 Misdemeanors. BURIAL. Burying with- out an inquest, com. law. CARNAL KNOWLEDGE, Of girl between 10 and 12. 10 Geo. IV. c. 34,s.20. CHALLENGING, ETC. Com. law. CHAMPERTY. Cora. law. and see Stats. 28 Ed. I., St. 3, c.l l.and 33 Ed. I. St. 3. CHEATING. Com. law. Selling un- wholesome provisions. Com. law. it, is a misd., 72. v. Clark, 1 Salk. 377; 1 Russ. 416; 2 Ch. Cr. L. 256. And see CONCEALING, DEAD BODIES, post. Carnally to know and abuse any girl under 12 and more than 10 years of age. Pun., imp. with or without H. L., at disc, of court. Proof of emission unnecessary, if penetra- tion; see ante, RAPE. Anal. Eng. Stat. 9 Geo. IV. c. 31, s. 17. If the girl be under 10, see FEL., tit. CARNAL KNOW- LEDGE. Challenging to duel, or provoking another to send a chal- lenge, or even an endeavour to provoke another to commit the offence of sending a challenge to fight, is held to be a misd. ; see JR. v. Phillips, 6 East, 464, 471 ; 1 Russ. 276 ; 5 Ea. 581 ; Archb. 570. This offence is, however, more usually the subject of information in the Queen's Bench. Champerty is bargaining with a plaintiff to divide the thing in dispute, whereupon the champertor is to carry on his suit. The similar offence of maintenance is officially interfering in a suit that no way belongs, to one, by maintaining or assist- ing either party to prosecute or defend. 4 Bl. Com. 135 ; 1 Hawk. cc. 83, 84; and see Stats, collected, Gab. 142, et seq. Both are misds., but prosecutions have become in a great measure obsolete ; see 1 Burn. 571, n. (a). Cheating, or the fraudulent obtaining the property of another, by any deceitful and illegal practice or token (short of felony) which affects or may affect the public, is a misd. at common law, pun. by fine or imp. ; see 2 Russ. 285, 297 ; 2 Ea. P. C. 818, 838; 1 Hawk. c. 71 ; 1 Burn. 641, et seq. ; and for indictment for using false weights, &c., Archb. 281. But a cheat or fraud effected by an unfair dealing and impo- sition on an individual, in a private transaction between the parties, is only the subject of a civil remedy, unless when it comes within the description of obtaining money, &c., by false pretences, see infra ; or of personation, see ante, pp. 413, 416, and PERSONATION, post. The sale of unwholesome provisions (as when a baker sells bread in which pernicious and noxious materials, or alum in a shape which renders it noxious, is mixed) is a misd., as it affects the public, R. v . Treeve, 2 Ea. P. C. 821 ; JR. v. Misdemeanors. 447 Dlxon, 3 M. & S. ; and on a similar principle, mala praxis CHEATING. in a physician, whether from experiment, curiosity, or neglect. ^ Dr. Goenvelfs case, 1 Lord Raym. 213 ; and see 4 C. & P. 398, 423. For malversations of public officers, see OFFICERS, Other cheats. post ; for cheating at play, see GAMING. To avoid the failure of justice by the subtle distinction False pre- between larceny and fraud, if any person shall, by any false ^ ces ' 55 s eo< pretence, obtain from another any chattel, money, or valuable 46. security, with intent to cheat or defraud any person of the same, it is pun., tr. for 7 yrs., or fine or imp. or both, at disc, of Crt. (H. L. and sol. con. ;) see s. 4, and 1 Viet. c. 90. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 53. By the annual Mutiny Acts, persons delivering themselves See last Act up, and making a fraudulent confession of desertion, or re- cruits designedly making any false representation of any par- ticular in the oaths or certificates in the sch. of the Act before the attesting J. P., and obtaining enlisting money or bounty, are pun. as for obtaining money under false pretences. Any person requiring or compelling any apprentice or CHIMNEY SWEEPERS. other person to ascend a chimney-flue, for the purpose of ex- tinguishing a fire therein, is guilty of a misd., but after July c . 35, s. 8. 1st, 1842, will be pun. summarily ; see 3 & 4 Viet. c. 85, s. 2, post. Disturbing the public worship of any congregation assem- CHURCH. bled according to law, seems a misd. at com. law; see Gab. Disturbing. C. L. 294, etseq.; and by Stat. 6 Geo. I. c. 5, maliciously Com - law - 6 Geo. I. c. 5. and contemptuously to enter any church, chapel, or congrega- tion of Protestant Dissenters permitted thereby, and disturb the same, or misuse any teacher, is pun. fine 20 on convic- tion at next Quarter Sessions. Anal. Eng. St. 1 Will. III. c. 18, For more heinous offences, see EELS. tits. BURNING, RIOT. To arrest a clergyman on civil process, while performing CLERGYMEN. divine service, or if he be to the knowledge of the offender Arre ? tin S> &c -> going to or returning from the performance thereof. Pun., 34, s . 27. fine and imp., or both. Anal. Eng. Stat. 9 Geo. IV. c. 31, s. 23. Taking cattle or goods, under colour of civil bill decree, CIVIL BILL - between sunset and sunrise, is a misd. 31 1 J^ 448 Misdemeanors. COIN. Uttering, &c., gold and silver, 2 Will. IV. c. 34,s.7. Having in pos- session, id. s.8, Copper coin, uttering or having in pos- session, id. s. 12. Counterfeiting foreign copper, 43 Geo, III. c. 139,8.3. COMBINATION. COMPOUNDING OFFENCES, Com. law. Advertising, To tender, utter, or put off, knowingly, any counterfeit coin, resembling, or intended to resemble the current gold or silver coin, first offence. Pun. imp. not exceeding a yr. (H. L. and sol. con.) s. 19, and 1 Viet. 90. And if the person so uttering, &c. shall have in his possession at the time one or more pieces of such counterfeit coin, or shall on the day of such uttering, or within ten days next ensuing, again utter, &c. any such counterfeit coin ; pun. imp. not more than 2 yrs. (H. L. and sol. con.;) see s. 19, and 1 Viet. 90. To have in possession, knowingly, three or more pieces of counterfeit coin, intended to pass for current gold or silver coin, with in- tent to utter the same. Pun., imp, (H. L. and sol. con.) see s. 19, and 1 Viet. 90, for not more than 3 yrs. A se- cond offence in the above cases is fel. ; see COIN, ante, p. 408. To tender, utter, or put off any counterfeit coin, resem- bling or intended to resemble the current copper coin, know- ingly ; or to have in possession three or more pieces of such counterfeit copper coin knowingly, and with intent to utter same. Pun., imp., not more than I yr. (H. L. and sol. con.) see s. 19, and 1 Viet. 90. To counterfeit foreign coin of copper, or of any metal of less value than silver, not ordered by proclamation to be cur- rent here; 1st offence, pun., imp. not exceeding 1 yr. ; and 2nd, pun., tr. for 7 yrs.; see COIN, ante, p. 409. Combination, see CONSPIRACY, UNLAWFUL ASSEMBLY. Compounding (i. e. taking a reward for forbearing to prosecute) a fel. or misd., or even an information on a penal Stat. is a misd. at common law; see Gab. 240; 2 Burn. 831 ; 3 Burn. 463, 1057. One species of this offence, called Theft bote, is when the party robbed not only knows the felon, but also takes his goods again or other amends, on an agreement not to prosecute, 1 Hawk. 59, s. 5 ; and see MISPRISION,/>OS. But compounding offences against, the Larceny Act is now a fel. ante, p. 409, and advertising a reward for property stolen or lost, stating that no questions will be asked, &c., incurs a penalty of 50, recoverable by action by any suing. 9 Geo. IV. c. 55, s. 52, Ir. ; 7 & 8 Geo. IV. c. 27, s. 59, Eng. Misdemeanors. 449 A woman delivered of child, who, by secret burying or CONCEALING otherwise, disposes of the dead body thereof, endeavouring to Birth of child, conceal the birth, is pun. imp. with or without H. L., not ex- 34 s { 7 ceeding 2 yrs. If tried, and acquitted of the murder of the child, the mother may be found guilty of concealing the birth. Ib. Anal. Eng. Stat. 9 Geo. IV. c. 31, s. 14. Conspiracies, in some instances, are fels. (see ante, CONSPIRACIES. MURDER, RIOT, TREASON,) and in a great number of cases Com. law. are misd., and pun. as such, 4 Bl. Com. 136; 1 Hawk. c. 72. Of the latter class are conspiracies : 1 st. To charge another with a crime pun. by law, either from vindictive mo- tives or to extort money. 2nd. Wrongfully to injure any third person or body of men in any other manner, unless the injury be a mere civil trespass, as sporting on his ground, selling an unsound horse, or the like. 3rd. To commit any offence pun. by law. 4th. To do any act with intent to per- vert the course of justice. 5th. To effect a legal purpose with a corrupt intent, or by improper means. Archb. 634, 635 ; Gab. Cr. L. 243 et seq. To which may be added con- spiracies to raise wages, &c., as to which, however, see the Acts relating to Combination, post, and ASSAULTS, ante. And see TITHES, post. Convention Act, offences against; see UNLAWFUL ASSEM- CONVENTION. BLIES, post. Where embezzlement, waste, spoil, or destruction of goods M - CDST ? MS ' warehoused occurs, through wilful misconduct of an officer of officers, 3 & 4 customs or excise, such officer is pun. for a misd. Vf\]]. T v - c - 57 False swearing, on inquiries relating to the customs, is cf i j i A - Perjury, id. c. perjury; and so of false declarations. 51 s 29 5& 6 See also SMUGGLING, ante, page 437, and post. Will. IV. c. 62, Taking up and removing a dead body is a misd., pun. with s< 5 * fine and imp. ; Archb. 626. Taking a dead body to dispose of it for gain is an indictable offence ; see R. v. Gillies, R. & R. C. C. R., 366, n. So is selling the body of a capital con- vict, where dissection was no part of the sentence ; see R. v. Cundick, D. & R. N. P. C. 13; R. & R. C. C. 366, n. ; see 2 & 3 Will. IV. c. 75, s. 16. See also ANATOMY and BURIAL, ante. 3 M 450 Misdemeanors. DECLARATION. 5& 6 Will. IV. c. 62, s. 5. Id. s. 18. Id. s. 20. DEEDS. Stealing wills, 9 Geo. IV. c. 55, s. 22. Writings rela- ting to real es- tme, id. s. 23. DESERTION. See last Mutiny Act, 3 Vict.c.6. DUELLING. DISORDERLY HOUSE. Com. law. ELECTIONS. When declarations are substituted for oaths in public offi- ces, under 5 & 6 Will. IV. c. 62, making or subscribing any such in matters relating to the revenues of customs or excise, stamps and taxes,or Post Office, and wilfully making therein any false statements as to any material particular, is a misd., s. 5. So of declarations in confirmation of written instruments, or allegations, or proof of debts, or of the execution of deeds or other matters, under the same Stat., s. 18. And so in any case where a declaration is substituted for an oath thereunder, or under the power given thereby, s. 20. See also AFFIRMA- TION and ELECTIONS. To steal, or, for any fraudulent purpose, to destroy or con- ceal, either during the life or after the death of the testator, any will, codicil, or testamentary instrument, whether relating to real or personal estate or both. Pun., tr. 7 yrs., or fine, or imp., or both, at disc, of Court, (H. L. and sol. con.) see sect. 4, and 1 Viet. 90. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 22. To steal any paper or parchment written or printed, or partly written and partly printed, being evidence of title, or of any part of the title to any real estate. Pun. same as last mentioned offence. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s.22. By the annual Mutiny Acts, to persuade or procure any soldier to desert is made pun. by fine and imp., and seems to be but a misd. ; but see 37 Geo. III. c. 40, ante, MUTINY, p. 426. Fraudulent confession of desertion; see CHEATING. Duelling, see CHALLENGES. Shooting at a man in, &c., see MURDER, MAIM. All disorderly inns or ale houses, play houses improperly conducted, stages and booths for rope dancers, mountebanks, and the like, are public nuisances ; and so is an inn refusing to entertain a traveller without sufficient cause. Keeping a dis- orderly house is a misd. at common law. Pun., fine and imp. and by 7 Geo. IV. c. 9, H. L. 1 Hawk. c. 65, s. 56 ; Gab. Cr. L. 291, &c.; 1 Russ. 298. See also BAWDY-AOUSE, GAMING. Voting at an election by virtue of a freehold, of which Misdemeanors. 45 1 the voter is not in possession at the time of polling. Pun., imp. ELECTIONS. for 6 months. Fictitious free- . . . , .. , ., , . . holder, 35 Geo. A person not being a registered freeholder taking the name m Ct 29 s . of, and pretending to be a registered freeholder. Pun., imp. 53. for 6 months, (and, formerly, pillory.) Personating V J ' . registered free- raise oaths and affirmations at elections are pun. as perjury. holder,iW.s.54, And so are false oaths or affirmations by sheriffs or returning Perjury, id. s. officers, or deputies. All the above offences respectively, must 72 ' ** s ' 74> be prosecuted within a year. f JCStw" Persons concerned in transmitting writs, neglecting or Transmitting delaying to deliver them, or taking a fee, or violating their pre- writs, 53 Geo. scribed duties. Pun., fine and imp. Returning officer acting corruptly or partially. Pun., imp. Corrupt officers, not more than 3 yrs., and incapacity from holding any situation and ] C Q eo j v under the Crown. c. 1 1, s. 25. Polling twice at the same election, or personating, or Polling twice, attempting to personate another for the purpose of polling. Pun. P ersonatin g others, id. s. 36. on conviction in any Court of Record in Dublin, imp. not more than 2 yrs. Similar offences, viz., misconduct of officers, voters polling ffences > n countiesofcities twice, personating voters, or voting from a freehold not in or towns, 4 possession, in elections for a county of a city or town, are simi- Geo. IV. c. 55. larly pun. under 4 Geo. IV. c. 55, s. 75, 82, 84. Clerk of the Peace destroying, or permitting to be destroyed, Misconduct of or altering registry book, .or permitting it, or neglecting to ^Q^ IH^c' attend at election. Pun., imp. for 3 yrs., or other pun. at disc. 80, s. 6. of court, and incapacity from holding office. By the Reform Act to swear, or affirm falsely in any oath False t eclar *' c J J J UonS) & c<) 2 & or affirmation thereby directed. Pun. as perjury. And by 1 3 Will. IV. c. & 2 Viet. c. 48, s. 7, false declaration of qualification of candi- 88 ' s ; 42 > l & date or member, is a misd. s . 7. Bribery at elections of members of parliament, is indictable Bribery, at common law, and although it is now subject to heavy penalties recoverable by penal action, &c., (see 35 Geo. III. c. 29, Ir. ; 3 Geo. II. c. 24, and the other Stats, above referred to,) it still remains a misd., and is pun. on indictment or information, in B. R. ; R. v Pitt, 3 Burr. 1335-39; Gab. Cr. L. 164, 165. For offences which are fel. see ante, p. 409. 452 Misdemeanors. EMBEZZLE. Banker, merchant, broker, attorney, or other agent, con- verting to his own use any money, or security for payment of Bankers, , . . agents, &c.,9 mone y> entrusted to him, with direction in writing to apply (jeo. IV. c. 55, it, or the proceeds, or any part thereof, for a specific pur- pose. Pun. tr. not more than 14 or less than 7 yrs., or fine, or Id. ibid. imp., or both (H. L. and sol. con.,) see sect. 4, and 1 Viet. c. 90. Like pun. if any chattel, or security, or power of attorney for sale, or transfer of shares, or interest in any public stock or fund, or fund of any body or company be entrusted to any banker, merchant, &c. for safe custody or any special purpose, without authority to sell, negotiate, transfer, or pledge the same, and he shall, in violation of faith, sell, &c.,or in any manner con- vert to his own use the same, or the proceeds, or any part thereof. /i/. s. 43. Provided, however, that the above enactments shall not affect trustees or mortgagees ; nor restrain bankers, &c., or other agents from receiving money due on such securities, nor from disposing of securities or effects on which they have a lien. Anal. Eng. Agent pledging Stat. 7 & 8 Geo. IV. c. 29; ss. 49, 50. If any agent or factor goods, &c. id. shall, in violation of faith, deposit as a security, or shall pledge for his own use, goods or merchandize entrusted to him for the purpose of sale, or any bill of lading, or bought and sold note, or warrant or order for delivery of goods. Pun. same as last offence. But it is provided that this last enactment shall not extend to cases where the pledge does not exceed the sum due to such agent, &c., by his principal at the time of such pledge, or which such agent, fyc., may bond fide suppose to be due to him, together with the amount of any bills of exchange drawn by the principal and accepted by such agent, &c., and of any other engagement made by such agent, fyc., on account of his princi- pal, and to the payment of which such agent, fyc., is legally liable. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 29, s. 51, omits the words in Italics. And see ante, p. 409, tit. EMBEZZLEMENT. EMBRACERY. Embracery, see JURIES. ENGROSSING. Engrossing, see FORESTALLING. For what is an ESCAPE, see ante, p. 410. Voluntary escapes Com j are fel. or misd., according to the degree of the offence for which the party was originally in custody. Ante, p. 4M. A negligent escape is, where the party arrested or imprisoned Misdemeanors. 453 escapes against the will of him who arrests or imprisons him, ESCAPE. and is not freshly pursued and taken again before he has been lost sight of. Pun., fine or imp., or both at disc. The original imp. must be for some criminal matter, otherwise the escape is not pun. criminally ; see 1 Russ. Cr. L. 375, 377 ; 2 Hawk. c. 19, s. 31, and c. 20, s. 6 ; Archb. 519, et seq. Aiding in the escape of persons convict for tr., sentenced Aiding, &c. to H. L. in H. of Cor. or Penitentiary, under St. 51 Geo. III. c. 63. Pun. by s. 5, same portion of H. L. as principal offender. See PEL. tits. ESCAPE and RESCUE, PRISON BREAKING. Violent assault on, and resistance to, excise officers, may if EXCISE. the court think fit, be pun., imp. with H. L. not more than 3 Assaults on ,. . i < i o officers, &c., 7 yrs., in addition to, or in lieu of other pun. oee also ASSAULT, & 8 Geo> lv< and PEL. tits. ILLICIT DISTILLATION, SMUGGLING. c. 53, s. 43. Commissioner, or assistant commissioner, collector, &c. Misconduct of omitting to keep the requisite accounts, and knowingly furnish- offic ers, 7 & 8 ing false accounts, Pun., fine and imp. at disc., and incapacity s< 44^ from holding office under the Crown. For wilful misconduct of officers, see also CUSTOMS. Extortion is applied to the unlawful taking of money or EXTORTION. thing of value by any officer by colour of his office, and is Cora. law. a misd. at common law. And it is extortion whether a greater fee is exacted than is legally due, or a fee where none is due, or before it is due, see 1 Hawk. c. 68, ss. I, 5; 3 Inst. 149; 1 Russ. 144, 147 ; Archb. 547 ; and see Statutes on the subject, Hayes, 349, d. etseq. ; and for extortion by officers of bankrupt, see 7 Will. IV. and 1 Viet. c. 48, s. 11. See also OFFICERS, post. False imprisonment, see ASSAULT. FALSE False pretences, see CHEATING. IMPRISONMENT. -Tf- i ,. A ^ PRETENCES. Fighting, see AFFRAY, CHALLENGE. ,-,... FIGHTING. Maliciously to break down or otherwise destroy the dam _ . * FISH AND of any fish pond, or of any water which is private property, or MILL PONDS. in which there is any private right of fishing, with intent to take In J ur y. 9 Geo - or destroy any fish therein; or to put lime or other noxious 1VtCf56 ' 8< 1( material therein with like intent ; or maliciously to break down and destroy the dam of any mill pond. Pun., tr. for 7 yrs., or imp. not more than 2 yrs. (H. L. and sol. con.,) see s. 34, and 454 Misdemeanors. FISHERIES. 1 Viet. c. 90, and for males 1, 2, or 3 whp. at disc. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 30, s. 15. ^lOoWi Obstructing or assaulting officers of fisheries, or persons 1 & 2 Will IV. ac ting under the commissioners in discharge of their duty, is a c. 30, s. 106. misd. The powers of commissioners of fisheries are now vested FORCIBLE in Commissioners of Public Works. ENTRY, Forcible entry, or detainer of lands and tenements is a St. 5 Ric.' II. m isd. ft t common law, and under some ancient Statutes, and as c. 7, and see such, pun. with fine and imp., Archb. 565, &c. It may, however, 15 Ric. IL c. , . ,. , , f i , n 2 and 8 Hen. e mc "cted as a felony, see ante, p. 412. VI. c. 9, s. 1, Forcing ashore, see SHIPS, post. s "s 3 c ^3 * Enlisting, or taking a commission, or engaging to do so, or procuring others to do so, or to go or embark with intent to FOREIGN SEK" * ' VICE. enlist, to serve any foreign power in army or navy, without 59 Geo. IV. c. license first obtained. Pun., fine and imp., or either at disc. 69, s. 3. Geo. II. c. 12, and the anal. Eng. Stats., by which the fore- going offences were made 'capital fels., but does not notice 8 Geo. I. c. 9, s. 11, by which also enlisting in foreign service is made a capital fel. Equipping Unlicensed persons fitting out armed vessels to aid foreign foreT n service P owers > or commit hostilities against any with whom we are 59 Geo. III. c. not at war, or knowingly assisting therein, or issuing commissions ' s * * to any vessel to be so employed. Pun., fine and imp. at disc. Id. s. 8. go unlicensed persons adding to the warlike equipment of Id. s. 12. foreign vessels, &c. But this is not to extend to persons en- tering into military service in Asia, with the usual license. FORESTALLING. Forestalling, engrossing and regrating are both at common i^?' IjJ*'* law, and under some old Statutes, offences against trade, by /5-Lcl. 111. s. 4, . , '"' i c. 3 ; 33 Hen. using means to enhance the price ot commodities in the market, VIII. c. 2 ; 8 b u t are n0 w rarely, if ever, prosecuted, see Burn. 921. Ed. IV. c. 2. -r, . . . . . . . rorgery has now, in most instances in which it can be com- FOIIGERY. mitted, been made fel. by Stat. ; see FORGERY, ante, p. 413 ; but when not provided for by Stat. it remains a misd. at com- mon law, and has been defined to be the fraudulent making or alteration of a writing to the prejudice of another's right ; 4 Bl. Com. 245 ; or the false making of any written instrument for the purpose of fraud or deceit ; the word " making," including Misdemeanors. 455 every alteration of, or addition to, a true instrument, 2 Ea. P. FORGERY. C. 852, 860; 2 Russ. 317, 350. The forging or counterfeit- ing, or publishing as true, knowing to be counterfeit, any writing, with a fraudulent intent, whereby another may be pre- judiced, is a misd. at common law, pun. fine and imp. ; Archb. 372. A few offences of this class are by Stat. only misd., as : Forging the seals of brown linen. Pun., imp. with or with- Seals of brown x T linen > 5&6 out H. L. not more than 1 yr. "Will. IV.c.27 So though forging foreign bills is fel., (see p. 4 13), engraving s. 19, con- &c., without authority, or having in possession without lawful ex- *S^ 52 cuse plates for printing foreign bills, or notes, or printing, or 5 yrs. from keeping such, is only a misd. Pun., first offence, imp. not exceding ^' 6 months, or fine, or public or private whipping, or any of them at disc. ; second offence, tr. 14 yrs. (This is fel. in England by 1 Will. IV. c. 66, s. 19.) So also offences, which with respect Printing, fo- to the Bank of Ireland are fel., are with respect to private JJo^Ji^* banks misds. only. Thus to make, or cause to be made, unless 139, s. 2. authorized in writing, or knowingly to assist in making any frame, &c., for the making of paper with the name of any person or company carrying on the busines of bankers; or to make or Bankers' pa per, vend such paper, or cause it to be done ; or, without such &c *> 43 Geo * authority, by any means to cause the name or firm of such per- son or company to appear in the substance of such paper; or to aid or assist therein. Pun., first offence, imp. not exceeding 2 yrs., or less than 6 months ; second offence, tr. for 7 yrs. So Id. s. 2. to engrave, &c., without such authority, upon any plate, any bill of exchange, or note, purporting to be the bill or note of any such person or company, or to use such plate, or any other device for making or printing such bill or note, or knowingly to have in possession, or publish, or dispose of, any such bill or note, is pun. in like manner. And to engrave, &c., or by Id. s. 3. any other means to trace on any plate, any subscription sub- joined to any bill or note of any such person or company, pay- able to bearer on demand, or to have in possession any such plate knowingly. Pun., for the first offence, imp. not more than 3 yrs., or less than 12 months, and for the second offence, tr. for 7 yrs. These several offences are fel. by the Eng. Stat., 1 Will. IV. c. 66, ss. 17, 18. 456 Misdemeanors. FORGERY-. Counterfeiting instruments used in the assay of gold, or Assay marks, having, selling, or exporting any manufacture of metal with III. c. 23, s.' counterfeit assay stamps. Pun., tr. for 7 yrs., or fine and imp. 28. Forgery of certificate under the Factories Regulation Act. Under Factory Pun., imp. not exceeding 2 months. Will. IV. c. To f r g e > alter, &c., certificate, order, or receipt, directed 103, s. 28. under the Act relative to public works in Ireland. Pun., tr. for Public works, life, or not less than 7 yrs., or imp. not more than 4 or less Sale of stores Forging certificate, under Stat. 2 Will. IV. c. 40, from com- &c. 2 Will. IV. missioners for executing office of Admiral, or any superinten- c. 40, s. 32. fant^ of the purchase or sale of naval or victualling stores, or knowingly uttering such. Pun., as perjury. Permits, Forging permits, or part thereof, or assisting therein, or 2 Will. IV. counterfeiting stamps, or devices used therefor, or utteringforged permit, or using such, or receiving it. Pun., tr. for 7 yrs., or imp. at disc. GAMING. Gaming houses are nuisances, and keeping a gaming house is Com. law. a m i s d. at common law. Pun. fine and imp., and by Stat., 7 Geo. 6 Anne, c. 17, Jy c> ^ R ^ ^ 6 Anne, c. 17, all lotteries and gaming tables, except in Dublin Castle are declared public nuisances. Winning more than 10 in twenty-four hours, or at one sitting, I 1 Anne, c. 5, or winning by ill practice or fraud at any game, is pun. by forfei- s 5 ' ture of five times the amount won, and in the latter case, is pun. as perjury. Anal. Eng. Stat. 9 Anne. c. 14, s. 5. The penalty to be recovered by action, see Gab. 451, et seq. II Anne, c. 6, Lotteries are deemed public nuisances, and lottery keepers " are liable to penalty of 100, recoverable by information, action, lotteries or &c., or they may be prosecuted as cheats, and by 13 Geo. II. games, 13 Geo. c g ? s< g } games determined by cards or dice, denominated ace of hearts, pharoah, basset, hazard, or passage, are games within the meaning of 6 Anne, c. 17, and 1 1 Anne, c. 6. GAME. To use dog, gun or other engine, or set them, to take or Killing at night, destroy any hare, rabbit, pheasant, partridge, quail, land rail, 27 3 9 eo ' c moor game, heath game or grouse, snipe or woodcock, in the night, unless the person be qualified to kill game, and upon his own ground, or duly authorized to do so; indictable at sessions. Misdemeanors. 457 pun., 10 fine, and imp. and whipping at disc., and by 7 GAME. Geo. IV. c. 9, H. L. Every person possessed, in any manner or right whatever, of HOUSES. any dwelling house, or other building, held under any lease or , agreement, or for any term, or at will, (for whatever purpose 9 Geo. IV. c. possession thereof, or of any part thereof, may have been 56 8< 24 * obtained), fraudulently and maliciously, and not for the purpose of any intended improvement, pulling down or demolishing the same, or beginning so to do, or committing any other unlawful waste or destruction thereof; or pulling down, or severing from the freehold, any fixture or utensil within, or appurtenant thereto, or occupied therewith, and which in the due course of occupancy ought not to be so pulled down or severed ; or assisting in such offence ; or knowingly purchasing or contract- ting for any of the materials of which s uch house, &c., is built, or any part thereof, or any such fixture or utensil, is guilty of a misd. ; and by s. 25, when suspicion is entertained of Continuing such injuries heing about to be committed, a person interested, herein id.s.25. or his agent, may make an oath or affirmation in writing before a J. P., stating the circumstances, who may thereupon give a notice in writing to the parties not to proceed without a license, and after due service or posting, as the case may be, of such notice, any person without such license committing such injuries, or beginning, or proceeding therewith, or wil- fully assisting therein, is guilty of a misd. For peculiar form of recognizance, see post. Anal. Eng. Stat., 7 & 8 Geo. IV. c. 30, has no similar enactments. Compelling to quit houses, see WHITEBOY. See also Dis- Other offences. ORDERLY-HOUSE, BAWDY-HOUSE, GAMING-HOUSE ; and ante, fel. tit. HOUSES, FIXTURES. Indecencies, seepost, OBSCENITY. INDECENCIES. Persons whose estates have been vested in the provisional INSOLVENT. assignee, wilfully omitting in their schedules, any effects or pro- 107 g lc g g perty whatsoever, or retaining or excepting from their schedules as wearing apparel, tools, necessaries, &c., more than 15, with intent to defraud their creditors, and all aiding or assisting, are guilty of a misds. Pun., imp. with H. L. not more than 3 yrs. 3N 458 Misdemeanors. JURY'. Com. law. KING S STORES. Offences relating to 9 & 10 Will. III. c. 41, Eng. s. 1,2; 9 Geo. I. c.8, Eng., s. 3 ; 17 Geo. II. c. 40, Eng. s. 10 ; 39 & 40 Geo. III.c.B9,Eng., adopted here by 52 Geo. III. c. 12. LIBEL. Com. law. Attempting 'to influence a jury corruptly to one side by promises, persuasions, entreaties, money, entertainments, or the like is called Embracery, and is a misd. at common law, 1 Hawk. P. C. c. 85, s. 1 ; 1 Russ. 184; and see Stat. 3 & 4 Will. IV. c. 91, s. 48. Any persons (except authorized contractors) making stores, of war, or naval stores with the marks used upon the King's stores, or persons in whose possession such stores are found, and who conceal such, are subject to penalties by 9 & 10 Will. III. c. 41, Eng. ; these provisions are extended by 9 Geo. I. c. 8, Eng., to the stores therein mentioned; by 17 Geo. II. c. 40, Eng., Judges of assizes, or justices at quarter sessions may try such offences, and fine not exceeding 200, one moiety to the King, and the other to the informer, and may mitigate the penalties, and commit offender for non-payment, or order offender to be pun. by whp. and imp., see 39 & 40 Geo. III. c. 89, Eng., s. 2 Bridge's case, 8 Ea. 53; and by the last mentioned Act, s. 5, a second offence is pun. tr. 14yrs., or, by s. 7, whp., fine, and imp. at disc. So offenders in whose possession stores are found, seeante, p. 301. These provisions are extended by Stat. 55 Geo. III. c. 127, to offences in respect of the stores therein described, see FEL. tit. KING'S STORES. And see FORGERY, PERJURY. Libel is a malicious defamation of any person made public by printing, writing, signs, or pictures, in order to provoke him to wrath, or exhibit him to public hatred, contempt, or ridicule. Thus it is libellous to impute to a man, 1. any crime punishable by law ; 2. an infectious disease, or any- thing that will have the effect of excluding him from society ; 3. or to write what renders him ridiculous or contemptible; 4. or what may injure him in his trade or profession ; 5. vilifying the character of a deceased person, may be libellous if it is intended to injure his family ; 6. so may writings defaming foreigners, especially if they have a tendency to interrupt peace between the two countries ; or reflecting on a body of men, if they tend to stir up hatred or excite individuals to a breach of the peace. All concerned in composing, writing, or publishing a libel are guilty of a misd., provided there be a publication. Archb. 577, et seq. ; Gab. Cr. L. 655, &c,; 1 Russ. 234. Misdemeanors. 459 Libels may also be blasphemous or seditious as reflecting LIBELS. on religion, or the administration of justice and the constitu- Seditious and tion or government of the country, and are the subjects of j i^^iv*' indictment as such; see Stat. 60 Geo. III. and 1 Geo. IV. c. 8, and 1 Will. IV. part of which however, (making a second offence, pun. with c< ' ' s * banishment,) is repealed. So vilifying or abusing magistrates, Abusing magis- &c. in execution of their office, is a misd. See also BLASPHEMY, r OBSCENITY, SEDITION, SLANDER. The publication of ex parte proceedings before magistrates, Publishing exa- which is calculated to prejudice the mind of the jury, may n also be prosecuted as a misd., ante, p. 307 ; Gab. 677 ; An offence of the same nature as libel is hanging a man in Hanging in effigy, which is also indictable, see 4 Bl. Com. 151 , note by Chr. effi gy- It is more usual to proceed for libel by information in Queen's Bench, than by indictment, see 3 Burn, 733 ; Archb. 493. Maintenance, see CHAMPERTY. MAINTENANCE. Malicious injuries ; see titles referred to ante, p. 422. MALICIOUS IN- To set, or cause to be set, any spring-gun, man-trap, or other engine, calculated to destroy life, or to inflict grievous * ^^f AP ' bodily harm, with intent that the same may, or whereby the Setting, 7 & 8 same may, so injure trespassers or others, coming in contact Geo. IV. c. 18, therewith is a misd. ; and knowingly permitting one set by any S " ' other person to continue, shall be deemed setting the same. ss * 2 ' 4 * But this does not extend to traps set for vermin, or to any engine set, from sunset to sunrise, in a house for the protection thereof. Misprision of felony is the concealment of a felony, or pro- MISPBISIOK curing the concealment of afel., which a man knows but never Of felony. Com. la.w assented to, and is a misd., pun. with fine and imp. 4 Bl. Com. 121 ; 1 Hale, 616; 1 Hawk. c. 59. If he assented to the felony he becomes either a principal or an accessory ; see ante, pp. 402, 429. The concealment of treason was at common 3 & 4 P. & M. law treason, but is now, as the concealment of felony, only a mis- c * llf s ' 7 * prision. There are also positive misprisions and contempts P silive mispri- i.i 1-1 *_ii_ sions and con- which are a high species of misd., being such as affect the King tempts. Com. or his Government, or courts of justice ; 4 Bl. Com. 1217. Such law - are contempts against the King's palace, or superior courts of jus- tice, as striking a judge, or fighting in the court, or reflecting 460 Misdemeanors. MISPRISION. Contempts. MUTINY. See 3 & 4 Viet. c.6. NEWSPAPERS. 6&7 Will. IV. c. 76, s.6. NUISANCE. Com. law. To highways. See6&7VVill. IV.c. 116,s. 28, &c., and va- rious local and road Acts. on their honour or justice; or contemptuous words of an infe- rior magistrate when in execution of his duty ; or any endeavour to stifle the truth and interrupt the due administration of justice, as by persuading, or endeavouring to persuade a witness from giving evidence, &c. ; or contempts against the King's prero- gative, as by refusing to assist him for the good of the public, preferring the interest of a foreign State, or disobeying the King's lawful commands or prohibitions ; or against his Govern- ment, as endeavouring to frighten him into a change of measures, or in general doing anything that may lessen him in the esteem of his subjects, or raise jealousies between him and the people ; or contempts against his title, whether by directly denying it, or refusing to take the oath prescribed for its support ; 1 Hawk, cc. 21, 22, 23, 24; Gab. 710, &c. Inciting to mutiny is, by the annual Mutiny Acts, a misd. and pun. with fine and imp ; see ante, DESERTION. To sign or make declaration (as to newspapers) at the Stamp- Office, in which shall be wilfully omitted the name, addition, or place of abode of any proprietor, printer, &c., or in which any requisite matter or thing shall be stated untruly, is a misd. For abuse of privilege of newspapers by writing therein, or stealing, in the Post-Office; see POST-OFFICE. Common nuisance is an offence against the public, either by doing a thing which tends to the annoyance of all the King's subjects, or by neglecting to do a thing which the common good requires. If the annoyance be only to a private individual, and not to the public, it can only be the subject of an action, and is not indictable, 1 Hawk. c. 75, ss. 1 and 2. The following are examples of nuisances: 1. Annoyances in highways, bridges, and public rivers, &c., which are indictable at common law if by actual obstruction, the party obstructing being liable to indictment, or if by want of repair, the parties liable to repair ; or any- thing which will render the way less commodious to the King's people, as erecting a privy or placing putrid carrion near it, digging a ditch across it, or diverting the current of a river so as to render it unable to bear vessels of the same burden, or suffer- ing a ditch to be so foul, or boughs so to hang over, as to incom- mode the passage. For removing annoyances on roads, see also 6 & 7 Will. IV. c. 116, s. 28, & c . 2. Offensive and dangerous Misdemeanors. 461 trades and manufactures, as a manufactory for hartshorn, or NUISANCE. acid spirits of sulphur or oil of vitriol ; but if a man set up a Offensive noxious trade where it has been long established, it is not indicta- ble, unless the annoyance is greatly increased, and if it was origi- nally remote from houses, and houses are afterwards built there, it will not be a nuisance, merely for annoying the new comers. Using a shop in a public market as a slaughter-house is a nuisance at common law, and is penal under 17 Geo. II. c. 5, s. 4. In case of annoyance from steam engines, see Stat. 1 & 2 Geo. IV. c. 41. 3. Acts which create disturbance or danger to the neighbour- Acts productive hood, as making great noises in the night with a speaking trum- of dlsturh ance pet, or exposing in a public thoroughfare a person infected with a contagious disease. 4. Keeping ferocious animals without Dangerous ani- proper control, as a fierce bull in a field through which there is mals ' a footway, or a ferocious dog unmuzzled. 5. Disorderly, bawdy, Disorderly and gaming-houses, lotteries, for which see those titles. See fully houses. 1 Hawk. cc. 75, 76 ; 3 Burn, 1096, et seq. ; Gabb. Cr. L., 744, &c. ; Archb. 596. Encroachments on commons may be Encroachments presented as nuisances and abated ; see 31 Geo. III. c. 38, on commons, ss. 2, 3. So persons continuing chimneys or lights, which may be mistaken for lighthouses, after notice to abate them, are guilty of a common nuisance; see 6 & 7 Will. IV. c. 79, s. 61. Publishing obscene writings, or obscene and indecent pic- OBSCENITY. tures, or exhibiting them ; or scandalous indecencies exhibited Com - Javv - in the face of the people, as indecent exposure of the person, aremisd.; see Gab. Cr. L. 646, 744; 3 Burn. 718, et seq. Buying, selling, or bargaining for the sale of, offices, (speci- OFFICES, &c. fied by 49 Geo. III. c. 126, or 5 & 6 Ed. VI. c. 16, Eng.) or Sell '"g P ublj c assisting therein, or receiving, or paying money or rewards for ifi*l\ 126 ss soliciting of such, or negotiating thereabout, or assisting I to 4 ; see therein, are misd. So keeping any office for soliciting or ne- jy * * 4 2 ^ e gociating in any manner about the sale, nomination, or trans- 49 Geo j v fer, of any offices, commissions, places, or employments what- 126, s. 5. ever, in any public department, or knowingly assisting therein, is a misd. Selling a commission in his Majesty's forces for Id. s. 8. more than the regular price is also a misd. For offices ex- Id. s. 9, &c. cepted from the above Stat. see ib. s. 7, &c., and 53 Geo. III. cc. 54 and 129. The sale of offices is also prohibited by 462 Misdemeanors. OFFICERS. Stats. 12 Ric. II. c. 2, and 12 Geo. I. c. 4, and some older Statutes. Refusing to Refusing to execute a public office, as that of constable, om. law. j gee A r chb. 579,) or overseer and corrupt or oppressive proceed- Misconduct of ings by a public officer, are misds. at common law. Every ti*e Cer8 Com US j" malfeasance > or culpable nonfeasance of an officer of justice relative to his office, is a misd., and pun. by fine or imp. or both. Archb. 495; Gabb. 779, and ib. 204; 3 Burn. 1137, et seq. ; and see ante, BRIBERY, EXTORTION. But proceedings against superior officers are more generally by information in the Queen's Bench. 50 Geo. III. c. Public officers furnishing false statements of money or balances entrusted to their care, are guilty of a misd. ; and by the same Act, embezzling public money, but see ante, p. 410. Clerk of Crown. Clerk of the Crown neglecting his duty prescribed by 13 & 14 Geo. III. c. 18, s. 14, pun. fine, not exceeding 100, and dismissal; see also ELECTION. And for neglect or County Trea- misconduct of County Treasurer, pun. fine, 20, and inca- pacity ; see Stat. 13 & 14 Geo. III. c. 18, s. 2. PAY OF ARMY, Any person falsely representing himself to be within the NAVY, ETC. requisite degrees of relationship, in order to receive pay or taming y p r i ze -money, &c., due to petty officers, seamen, or marines or sentation, receiving such without being such relation, or licensed as re- 56 Ge< 3 IH * ( l u ^ re ^' or rece i ym g or offering himself to receive such after license revoked ; or inserting false dates in orders for pay, Jrf, s. 12. & c ^ payable by Commissioners of Royal Hospital at Green- Id, s. 17. wich; or person really entitled to prize-money, or bounty, or pension by obtaining it by false certificates, is guilty of misd. So obtain - ^Geo^iv^c*' * n or en deavouring to obtain any pension, &c., fromcommis- 16, s. 25 ; sioners of Chelsea Hospital by false or altered certificates, or pay, 11 Geo, a misd. Petty officers, or seamen, or marines obtaining pay by IV and 2 Q Wi11 ' an J false certificate, or attempting it, or taking falsely oath 89, 90. or affirmation required by Stat. 11 Geo. IV. and 1 Will. IV. are pun. for perjury. For other offences, see ante, p. 416. PERJURY AND Perjury, at common law, is a wilful false oath, by one who SUBORNATION. . . . a ,, . , . . ,. . , being lawfully required to depose to the truth in any judicial proceeding, before a competent jurisdiction, swears absolutely in a manner material to the point in question, whether he be Misdemeanors. 463 believed or not. 1 Hawk. c. 69, s. 1 ; 3 Inst. 164; Archb.537. JUBY AND SUBORNATION. And subornation of perjury, at common law, is the procuring a man to take a false oath amounting to perjury, who actually taketh such, i Hawk. c. 69, ss. 3, 9; 2 Russ. 518; Archb. 545. Perjury and subornation are misds. at common law, and St. 3 Geo. II. pun. by fine and imp. ; and by 7 Geo. IV. c. 9, H. L. at disc. ; ' ' {^ & 13 and by 3 Geo. II. c. 4, in addition thereto, with tr. not ex- Geo. III. c. 36. ceeding 7 yrs., or imp. with H. L. not exceeding 7 yrs. Anal. Eng. Stat. 2 Geo. II. c. 25, s. 2. By Stat. 1 & 2 Viet. 1 & 2 Viet. c. 195, persons taking oaths in the form in which they declare binding, are as liable to be pun. for perjury as if the oath were administered in the ordinary form ; and see ante, AFFIRMA- TION, DECLARATION. Unlawfully and corruptly to procure any witness, by any Under St. 28 means whatever, to commit perjury in any matter or cause in Eliz< c> * any court, before any judge, or other officer, &c., or who is sworn in perpetuam rei memoriam. Pun. fine of 40, and if offender is not worth 40, imp. for half a yr. So wilfully and corruptly to commit perjury from whatever motive, in depositions in any court, &c., as above, pun., fine 20 and imp. for 6 months. The pun. of pillory, which continued to be used for perjury, is now abolished by 1 Viet. c. 23, but it is pun. imp. with H. L. or tr., see 3 Geo. II. c. 4, supra. There are also various Statutes which make false swearing Perjury under or affirming in the matters to which they relate pun. as per- P artlcular Sta " jury ; as false swearing before commissioners of Irish law or Equity Courts, 55 Geo. III. c. 157, ss. 8, 9; before arbi- trators and in matters relating to the practice of the courts, see 3 & 4 Viet. c. 105, ss. 65, 78 ; before the officers autho- rized by Stat. 1 & 2 Geo. IV. c. 53, s. 53, to take affidavits in the several courts; in affidavits in law courts, 4 Will. III. c. 4, s. 3; before officers of the Court of Chancery, &c., 6 Geo. IV. c. 30, s. 19; 4 & 5 Will. IV. c. 78, ss. 10, 29: under the Civil Bill Acts, 6 & 7 Will. IV. c. 75, s. 60; and see 36 Geo. III. c. 25, s. 16. In matters relating to auditing pub- lic accounts, 52 Geo. III. c. 52, s. 44 : bankrupts, 6 Will. IV. c. 14, s. 117: coroners, 3 Geo. IV. c. 115, s. 5 : consta- bulary^ Will. IV. c. 13, s. 24 : Church temporalities, 4 Geo. IV. c. 99, s. 56; 2 & 3 Will. IV. c. 41, s. 18 ; 3 & 4 Will. 464 Misdemeanors. PERJURY AND SUBORNATION. Under parti- cular Statutes. PERMIT. 2 Will. IV. c. 16, s. 15. PERSONATION Com. law. IV. c. 37, s. 123, and c. 100, s. 39 ; 1 & 2 Viet. c. 109, s. 53: induction and qualification of clergymen, 25 Geo. III. c. 38, s. 1 : customs and excise, 3 & 4 Will. IV. c. 51, s. 29, and 4 & 5 Will. IV. c. 89, s. 2 ; 7 & 8 Geo. IV. c. 53, s. 31 : elec- tions, 4 Geo. IV. c. 55, s. 85; 2 & 3 Will. IV. c. 88, s. 42 ; 35 Geo. III. c. 29, ss. 72, 75 ; 45 Geo. III. c. 59, s. 14 ; 4 Geo. IV. c. 36, s. 3: grand juries, county treasurers, and roads, 13 & 14 Geo. III. c. 18, s. 15 ; 36 Geo. III. c. 55, s. 91 ; 45 Geo. III. c. 43, s. 39; 58 Geo. III. c. 67, s. 29; 3& 4 Will. IV. c. 78, s. 82; 6 & 7 Will. IV. c. 116, s. 172, and 1 & 2 Viet. c. 37, s. 2: insolvents, 3 & 4 Viet. c. 107, s. 89 : linen, 5 & 6 Will. IV. c. 27, s. 31 : the annual Mutiny Acts: newspapers, 6 & 7 Will. IV. c. 76, s. 6 : pay and prize-money in army and navy, 47 Geo. III. S. 2, c. 25, s. 9; 48 Geo. III. c.120, s. 48; 51 Geo. III. c. 78, s. 29; 11 Geo. IV. and 1 Will. IV. c. 20, s. 90; 2 & 3 Will. IV. c. 53, s. 45, and c. 106, s. 4; and see ante: poor law, 1 & 2 Viet. c. 56, s. 13: population accounts, 3 & 4 Viet. c. 100, s. 9 : public funds, 10 Geo. IV. c. 24, s. 44 : public revenue, 55 Geo. III. c. 19, s. 94, and c. 104, s. 13; 59 Geo. III. c. 107, s. 46, and 10 Geo. IV. c. 50, s. 83: public works and institutions, 54 Geo. III. c. 159, s. 25; 1 Geo. IV. c. 81, s. 15; 1 & 2 Will. IV. c. 33, s. 93: quarantine, 6 Geo- IV. c. 78, s. 29 : registry of deeds, 6 Anne, c. 2, s. 17 ; 8 Anne, c. 10, s. 4, and 8 Geo. I. c. 15, s. 4; 3 Geo. IV. c. 116, s. 7 : slavery abolition, 3 & 4 Will. IV. c. 73, ss. 40, 42 : stores, naval, &c. 2 Will. IV. c. 40, s. 32 : valuation of land, 6 & 7 Will. IV. c. 84, s. 28 : and several temporary and local Acts. Officer of excise delivering, or suffering to be delivered, any paper prepared for permits, in blank, or a permit to any person not entitled, or any false permit ; or making any untrue entry in the counterpart; or knowingly receiving goods brought in with fraudulent permit, or granting any permit for removal of goods received under such ; or giving false credit to enable any person to obtain a fraudulent permit ; or suffering the same to be done directly or indirectly. Pun. fine and imp. at disc., and incapacity from holding any office in the revenue. See also FORGERY, and fel. p. 415. Offences against the person, see titles referred to p. 427. Personation has in many cases been made fel. by Stat, see Misdemeanors. 465 ante, p. 413, but under some Acts it is pun. only as amisd. PERSONATION. (see PAY, ante.) In all cases not provided for by Stat. it re- mains a misd. at common law, and is pun. as a cheat. Gab. 384; 2Ea. P. C. 1010. By the Act for the Relief of the Poor, s. 13, to refuse to POOR LAW - attend in obedience to a summons of a Commissioner or assist- * %$ ^1% an j ant or to give evidence, or wilfully to alter, suppress, conceal, 10, concealing or destroy, or refuse to produce to any authorized to require books disobey- r - 1 ing summons or them, any books, or writings, or copies thereof, required for O rder of Cora- the purposes of the Act, is a misd. ; and by s. 102, a 3rd, or missioners. subsequent offence, of wilfully neglecting, or disobeying any order of the Commissioners or assistants, purporting to be sealed or stamped with their seal of office, is amisd. Pun. fine, not less than 20, and imp. with or without H. L. at disc. To prevent the abuse of the privilege of sending news- POST OFFICE. papers free by the post, any person enclosing any letter, 7 Will. IV. and paper, or thing, in a newspaper, or under the cover thereof, Abuse of new's- or printing, or causing to be printed, any words or communi- paper privilege, cation either upon the newspaper after it was published, or upon the cover, or any writing or marks other than the name and address of the person to whom it is sent; or sending or ten- dering to be sent, by post, a newspaper in respect of which any of the above offences is committed ; or causing any of the above offences to be committed is liable to pay treble postage, or (except when there are only marks and not writing) , may be prosecuted for a misd. at option of Postmaster-General. Any person employed by or under the Post-Office, who Persons em- shall, contrary to his duty, open, or procure, or suffer to be j^ e e ^ d ^ f " opened, a post letter, or shall wilfully detain or delay, or pro- or delaying cure, or suffer to be, &c., a post letter, (except they be re- Ietters > rf - 8 - 25 - turned letters, or opened in obedience to the warrant of the Secretary of State), is guilty of a misd., and pun. fine and imp. at disc. (H. L. and sol. con.) See s. 42, and 1 Viet. c. 90. Every person who shall fraudulently retain, or wilfully Any person secrete, or keep, or detain, or shall neglect or refuse, when keeping mis-de- required by officer of Post-Office, to deliver up any post letter letters id.s.3l which ought to have been delivered to another person, or a post letter bag or post letter which may have been found, 3o 460 Misdemeanors. POST OFFICE, whether by the offender or any other person, is pun. as for the last mentioned offence. Embezzling or Any person employed by Post-Office who shall steal, or for delaying print- an y p ur p 0se embezzle, secrete, destroy, or wilfully detain or ed votes or J ' J newspapers, id. delay printed votes or proceedings m parliament, or any printed s> 32 - paper whatever sent by post without covers, or in open covers at the sides is subject to the same pun. Aiding or soli- Aiding and abetting in any misd. under the Post- Office citing offences. Acts makes offender liable to be indicted as a principal. So- ld, ss. 35, 36. liciting, or endeavouring to procure, any person to commit a fel. or misd. against Post-Office Acts is a misd., and pun. imp. not more than 2 yrs. (H. L. and sol. con). See s. 42, and 1 Viet. c. 90. PRAYER BOOK. Clergymen refusing to use the Book of Common Prayer, Ridiculing, &c. or Ilsm g an y other, or speaking in derogation of it, or any per- ss. 2, 3, 8 ;' son ridiculing it, or causing other prayers to be used, or inter- see 17 & 18 rupting the minister, is pun. by forfeiture, fine, and imp. as 1.18. ' ' herein, if indicted at the next assizes or sessions. Anal. Eng. Stat. 1 Eliz. c. 2. PRISON Prison breaking, what it is, and when a misd. see ante, BREAKING. ^ ^9. To break open any prison, gaol, or bridewell, with 1 & 2 Will. IV. . -i i .LI i i 4 4 s 4 intent to rescue and enlarge the person so breaking it, or any other prisoner therein confined, on account of any offence, though the same be not capital. Pun. tr. for life, or 7 or 14 yrs., or imp. not more than 3 yrs., with or without H. L.; and if male, 1, 2, or 3 whp. at disc.; see the observations, ante, p. 429. No anal. Eng. Stat. PROCESSIONS. Persons joining in procession for the purpose of cele- 2 & 3 Will. IV, brating any festival, anniversary, or political event, connected c. J 18, s. 1. wifa re iigj ous or other distinctions between any classes of her Majesty's subjects, or of demonstrating any such distinction, or having amongst them any fire-arms, offensive weapons, or any banner, &c., the display whereof is calculated to provoke animosity between her Majesty's subjects of different religious denominations, or being accompanied by music of a like tendency; see ante, pp. 142, 143. RAILWAYS. Any engine driver, guard, or other servant of a Railway Misconduct of Company, found drunk while employed upon the railway, or Misdemeanors. 467 RAILWAYS. committing any offence against the by-laws of the Company, or maliciously or negligently doing or omiting any act, whereby the life or limb of any person on the railway, or the works, 97, ss. 13, 14. might be injured or endangered, or the passage of engines, &c. obstructed, is pun. on conviction atQr. Sessions, imp. with or without H. L. not exceeding 2 yrs ; see also post, for summary conviction for such offences. Wilfully to do or cause to be done anything in such man- Wilful obstruc- ner as to obstruct any engine, or carriage, or endanger the ll >DS ' ld ' c ' 5 ' safety of persons conveyed, or to aid or assist therein, is a misd. pun. imp. with or without H. L. not exceeding 2 yrs. When the original taking of any chattel, money, security, DECEIVERS or other property, amounts only to a misd. under 9 Geo. IV. c. Geo?l Vc. *' 55, receivers are guilty of a misd. ; and pun. tr. for 7 yrs., or 55, s. 48. imp. not more than 2 yrs. and if male, 1, 2, or 3 whp. at disc. (H. L. and sol. con.) s. 4, and 1 Viet. 90 ; see ante, p. 431. To steal, or for any fraudulent purpose to take from its RECOKDS ' ETC - place of deposit for the time being, or from any person having ^aVn^.'oHn-" the lawful custody thereof, or unlawfully arid maliciously to juring, 9 Geo. obliterate, injure, or destroy any record, writ, return, panel, process, interrogatory, deposition, affidavit, rule, order, or warrant of attorney, or any original document whatever, or any part thereof, belonging to a court of record, or relating to any matter civil or criminal begun, depending, or termi- nated therein ; or any bill, answer, interrogatory, deposition, affidavit, order, decree, or original document whatever, of or belonging to a Court of equity, or matter begun, &c., therein ; or any part thereof ; or any original document or part thereof, in any way relating to, or concerning the business of any per- son employed under his Majesty, and deposited in any office connected with a court of justice, or in the Castle of Dublin, or any of his Majesty's public offices in Ireland. Pun. tr. for 7 yrs., or fine or imp., or both at disc., (H. L. and sol. con.) see sect. 4 and 1 Viet. 90. Anal. Eng. Stat. 7 & 8 Geo. IV. c.29, s. 21. Regrating, see FORESTALLING. REGRATING. Rescue, see ante, p. 431, is a misd. where the party res- RESCUE. cued was in custody for a misd. only ; and so also it seems When a misd. at com. law. 468 Misdemeanors. RESCUE. Pun. under Whiteboy Act, 1 & 2 Will. IV. c. 44, s. 5. Id. s. 6. RESCUING cattle, and in- juring pounds, 6 Geo. IV. c. 43, s. 2. Rescuing dis- tress, 4 Geo. I. c. 5, s. 1. RIOT. Com. law. Pilgrimages. ROMISH ECCLE- SIASTICS. 10 Geo. IV. c. 7, ss . 29, 30. Id. s. 31. Id. s. 33 and 34. to be if, though in custody for fel., he be not convicted thereof; 1 Russ. 385 ; 1 Hale, 598 ; Archb. 530. The rescue of any person committed by a J.P. for treason, fel. oranymisd. pun. with tr. by the Whiteboy Act, from a constable or any person legally authorized for that purpose, before the person so committed shall be lodged in goal, is pun. tr. for life, or 7 or 14 yrs., or imp. with or without H. L. not more than 3 yrs., and if male, 1, 2, or 3 whp. at disc. And persons as- sisting, &c. therein are pun. as persons assisting in other trans- portable offences under the Act. See RESCUE, p. 431, and post, WHITEBOY ; see also ESCAPE, PRISON BREAKING. To rescue cattle seized for the purpose of being im- pounded, or break down or injure any pound legally consti- tuted, whether cattle be therein or not, or commit pound- breach or rescue whereby cattle of any description shall be enlarged from such pound; pun. fine and imp. at disc. Res- cue of distress for rent, or any part thereof; pun. fine at disc, and imp. till paid ; in default of payment in a month, imp. with H. L. not less than 3 or exceeding 6 months. Riot, unless coming within the provisions of some Statute constituting it fel. is at common law only a misd. ; see ante, pp. 135, 432 ; and by 7 Geo. IV. c. 9, H. L. may be added to the pun. of imp. By St. 2 Anne, c. 6, meetings at such places as St. Patrick's Purgatory, to which superstitious pilgrimages are made in Ireland, are declared to be riots. Jesuits and members of religious orders of the Church of Rome, bound by monastic vows, coming into the kingdom are guilty of a misd., and on conviction the offender shall be banished from the kingdom for life ; but natural born subjects, being Jesuits, may return and be registered within 6 months. So Secretary of State may grant licenses to come or revoke such ; and Jesuits, &c., remaining in the kingdom 20 days after expiration or revocation of license, are liable to the same pun. Jesuits, &c., within the kingdom admitting any person to become a regular brother or member of such reli- gious order, or administering any religious oath, vow, &c., to observe the ordinances of any order, or assisting therein, are guilty of a misd. and the person so admitted is guilty of a Misdemeanors. 469 misd., and liable to be banished for life. By ss. 35, 36, any of- ROMISH EC- fender so sentenced to be banished, and not departing within ct ' ESIASTICS - 30 days, may be ordered by Privy Council to be conveyed out of the kingdom ; and if at large after the end of 3 calendar months may, on conviction, be tr. for life to such place as shall be appointed by his Majesty. But by sect. 37, these pro- Id. s. 37. visions do not extend to females bound by religious vows. Enticing children from charter schools, (under 23 Geo. II. SCHOOLS. c. 11,) or attempting to carry off, or harbouring them, is pun. 23 Geo< ir * imp. 6 months, with H. L. So master of any such school car- enticing or ' nally knowing female child above 12 under his care, or privy abusing chil- thereto, or mistress being privy thereto; pun., on conviction at Assizes, to be thrice whipped ; but whipping females is abolished by Stat. 1 Geo. IV. c. 57, s. 2. Attacks, whether by speaking or writing, the object of SEDITION. which is wantonly to calumniate the system of law and govern- Com ment, or indecorously assail the King or Constitution of the country, are indictable as misd. What will amount to sedi- tion, and what is to be adjudged a legitimate discussion and criticism on the measures of the King and Government, is, however, a question of great nicety. See Gabb. 647, &c. ; Archb. 490, &c. For seditious meetings, &c. see OATHS, UN- LAWFUL ASSEMBLIES. Master of merchant vessel, whilst abroad, forcing any SHIPS, ETC. man on shore, or wilfully leaving him behind in the colonies ^^^ 9 or elsewhere, or refusing to bring home with him all such of 10 Geo. IV. the men whom he carried out as are in a condition to return c< 24) s ' 39< when he is ready to proceed homeward, is pun., imp. at disc. ; and may be prosecuted in King's Bench, and the offence al- leged to have been committed in county of city of Dublin. Anal. Eng. Stat. 9 Geo. IV. c. 31, s. 30. Master of merchant ship belonging to subject of the TJ. K. 5 & 6 Will. IV. forcing on shore, or leaving behind, or otherwise wilfully and c> 19 ' s * 4 * wrongfully leaving behind on shore or at sea, in or out of the British dominions, any person belonging to his crew, before the return of the ship to the United Kingdom, or completion of Indictable in the voyage for which such person engaged, whether one of the an y P Iace< original crew or not, is pun. fine and imp. at disc.; and offender 470 Misdemeanors. SLANDER. Com. law. Scan, Mag. Evesdropping. Scolding. SLAVE TRADE, 5 Geo.IV c. 113, s. 11. SMUGGLING. Making signals &c., 3 & 4 Will.lV.c.53, s. 53. Resisting offi- cers, 3 & 4 Will.IV,c.53, s. 61. SOLICITING. Com. law. may be proceeded against in any court of criminal jurisdiction. And see FOREIGN SERVICE, SMUGGLING, and fel., tit. SHIPS. Mere words spoken of an individual are not generally in- dictable, without they tend to a breach of the peace, as if they convey a challenge ; but to speak slanderous and contemp- tuous words of a magistrate in execution of his office is a misd. Archb. 554 ; Gab. 654. An offence of the same kind is propagating false and slanderous tales of the great men of the realm, which is called scandalum magnatum, as to which see'Stats. 3 Edw. I. c. 34 ; 2 Hie. II. S. 1, c. 5; 12 Hie. II. c. 11. Spreading of false news with a mischievous intent, and eves-dropping, with the purpose of propagating slander, are also misd. at common law. A woman may also be indicted for being a common scold. Gab. 319, 4 Bl. Com. Serving on board slave ships, knowing them to be such, in the capacity of captain, master, mate, surgeon, or super- cargo, is made fel., ante, p. 436, but serving on board as petty officer, seaman, or marine, is misd. only pun. imp. not exceeding 2 yrs. To make or assist in making any signal on board, or from any vessel or boat, or on or from any part of the coast, or within six miles thereof, after sunset and before sunrise, be- tween the 21st September and 1st April, or after 8 in the evening and before 6 in the morning at any other time of the year, for the purpose of giving notice to any person on board any smuggling vessel or boat, whether same be within distance to notice such signal or not. Pun. fine of 100, or imp. with H. L. not more than 1 yr. To assault, resist, oppose, molest, or obstruct, any officer of the army, navy, or marines, duly employed for the preven- tion of smuggling, and on full pay, or any officer of customs or excise, or person acting in his aid, or duly employed for the prevention of smuggling, in the execution of his duty. Pun., tr. for 7 yrs., or imp. with H. L. for not more than 3 yrs. See also, SMUGGLING, ante, p. 437. Soliciting or inciting another to commit a felony, is a misd. pun. by fine and imp., and this, even although the offence has not been committed, or any act done in consequence of such Misdemeanors. 471 solicitation. R. v. Higgms, 2 East, 5 ; 1 Russ. 45. But if SOLICITING. the fel. be committed in consequence of such solicitation, see ACCESSORY, ante, p. 402; 2 Ea. 18, 19. And it would seem* that soliciting another to commit any indictable offence, though not amounting to fel., would be a misd. ; see 2 Ea. 19 ; 3 Chit. Cr. L. 993 ; It. v. Phillips, 6 Ea. 464. Solicitations to com- mit offences are also sometimes pun. under the provisions of Statute; see MURDER, WHITEBOY, and the offence required. Spring-guns ; see MAN-TRAPS. SPRING GUNS. Every contempt of a Statute, if no other pun. is limited, STATUTE. is indictable; 1 Hawk. c. 22, s. 5. When a Stat. creates a Disobeying, new offence, and at the same time prescribes a particular mode of enforcing it, as by action for a penalty, &c., disobedience to it is not indictable ; but when the act prohibited or com- manded was an offence at common law, or when it is created by a distinct prohibitory clause in the Act, the remedies are cu- mulative, and the offender may be either indicted or sued for the penalty. 2 Hawk. 25 ; Gab. 52 ; 5 Burn. 875, 876. Stealing; see generally LARCENY, ante, p. 421, but in some cases it is only a misd. ; see DEAD BODIES, DEEDS, EM- BEZZLEMENT, POST-OFFICE, RECEIVERS, RECORDS. Subornation, see PERJURY. SUBORNATION. To enter into unlawful confederacy to defraud clergymen TITHES. or lay impropriator of tithes or dues to which he is entitled, Combination to , prevent collec- or obstruct the collection, or by force, threats, &c., prevent tion, &c., the viewing or valuing thereof, or (having entered into such 27 Geo * 1It - combination,) so to defraud, obstruct collecting, or prevent viewing, &c., is a misd., but prosecution must be within a year. Maliciously to throw down, level, or otherwise destroy, TURNPIKE- wholly or in part, any turnpike-gate, or any wall, chain, rail, j n - a JJnJ B ' post, bar, or other fence, belonging to any turnpike-gate, or 9 Go. IV. any house, building, or weighing engine for collecting or c> 56 > s - 15> ascertaining the amount of toll payable, is a misd. pun. fine and imp. Anal. Eng. Stat. 7 & 8 Geo. IV. c. 30, s. 14. What amounts to an unlawful assembly has been consi- UNLAWFUL dered, ante, p. 120, and persons taking part therein are ASS] .,. . , Com. law. guilty of a misd. Certain assemblies, although not accompanied by such circumstances of terror as would make them unlawful assem- 472 Misdemeanors. UNLAWFUL ASEMBLIES. Convention Act, 33 Geo. Ill- c. 29, ss. 1,2. Societies with secret oaths, &c.,4Geo.IV. c. 87, ss. 1, 2. Societies with secret signs, or for purchasing arms, &c. 2&3 Vict.c. 74. blies at common law, have been made so by Stat. Thus by the Act commonly called the Convention Act, assemblies of per- sons appointed to represent, or assuming authority to re- present, any of the people of this realm, under pretence of petitioning for or procuring an alteration in Church or State, except members of parliament duly summoned, (ante, p. 141,) and persons giving or publishing notice of elections of such, or voting thereat, are guilty of a misd. So of any Society, the members whereof shall be required to take any such oath as is an unlawful oath, within 50 Geo. III. c. 102, (ante, OATHS, UNLAWFUL,) or any oath or test not authorized by law, (except declaration approved by two justices, and confirmed at Ses- sions, as herein provided), or who shall have secret commit- tees, officers, or delegates, or of which the names of the members, committees, officers, and delegates, shall not be en- tered in an open book kept for that purpose ; and all members of such, and persons who shall correspond with or contribute thereto, or aid or support 'such, shall be guilty of an unlawful combination and confederacy, and pun., if convicted upon in- dictment, with tr. for 7 yrs., or imp. with H. L. not exceeding 2 yrs. See anal. English Stats. 39 Geo. III. c. 79, s. 2, et seq. ; and 59 Geo. III. c. 19, s. 25, et seq. ; 1 Russ. C. L. 257,261. All societies so constituted that the members may commu- nicate, or be known by each other, by any secret sign or pass- word ; or formed or acting wholly or partially for the purchase or distribution of arms among the members or others, or which shall collect funds for such purpose, or purchase or procure, or cause to be purchased, &c., any arms for distribution, are unlawful combinations ; and every person becoming a mem- ber, or assisting in any meeting or proceeding thereof, or who (if already a member) shall act as one, or directly or indirectly keeping up any correspondence or intercourse with such society or any officer or member thereof as such, or using any secret signs or pass words, for any purpose connected with such a Society, or knowingly possessing any copy, written or printed, of any such password or secret mode of communica- tion, or of any oath, test, or declaration, used, or purporting to be used, by any such Society, or of any Society unlawful under Misdemeanors. 473 4 Geo. IV. c. 87, and not satisfactorily accounting for the UNLAWFUL same ; or knowingly permitting any such society to meet in his house is pun. as for an offence under 4 Geo. IV. c. 87. But this is not to extend to partners licensed to deal in arms, or to societies acting with approbation of the Lord Lieutenant, as herein; or, by s. 2, to meetings of Freemasons or Friendly Brothers registered as herein directed. By s. 5, the Act is to continue for 5 yrs. from 1st Sept. 1839. Assemblies for training to the use of arms, or for prac- Training to tising military evolutions, held without authority from his in ^ nd t Geo Majesty, or the Lord Lieutenant, or two justices of the peace IV. c. 1, s. 1. of the county, are hereby prohibited ; and persons who shall be present thereat for the purpose of training others to the use of arms or the practice of military evolutions, shall be liable to tr. for 7 yrs., or imp. not exceeding 2 yrs. ; and those present at such meeting for the purpose of being so trained, &c., shall be liable to fine and imp. not exceeding 2 yrs. See ante, p. 1 44. See also ASSOCIATION, (Catholic), PROCESSIONS, WHITEBDY. Whiteboy Offences ; (see ante, p. 148), viz : WHITEBOY Anv person or persons, armed with fire-arms, or anv offen- ?Jv! ces ' T J T 5 & J r . 16, Geo. Ill, c. sive weapon whatever, or having the face or person disguised 21, s. 2. in any manner, or wearing any badge or uniform not usually worn by them, or assuming any name or denomination not usually assumed by persons on their lawful occasions, who rise, assemble, or appear, by day or night, to the terror of his Majes- ty's subjects, are guilty of a misd., and pun. by fine and imp., and whipping, and finding security at disc, of court. BV force or menace, unlawfully to impose, or tender any Tendering A , J , 4 . ~ . oaths, id. s. 21. oath or solemn engagement in any manner. Fun. fine, imp., and whipping at disc. See also ante, FELONIES, tit. OATHS, Unlawful. Every person, who by drums, fire, or any signal whatever, Persons soli- shall knowingly excite, encourage, or promote such unlawful raghjg'^&c^d. meetings, is guilty of a misd. s. 23. Any person, or persons, assembling: as above, or in any other Forcin g b y r , ' . ' J threats, &c., to manner unlawfully compelling, or by force or threats attempt- q u i t houses or ing to compel, any of his Majesty's subjects to quit their dwell- service, injuring ing-house, habitation, farm, possession, place of abode, service, P r P erj ' 3p 474 Misdemeanors. WHITEBOT. or lawful employment ; or maliciously assaulting any dwelling- c ^4 y^ 1V * house, P^ ace of abode, or habitation of any other person; or breaking into their house, barn, or out-house, or causing any door to be opened by threats, or maliciously injuring the land or property, real or personal, of any other person ; or taking or carrying away any horse, gelding, mare, or mule, or any gun, sword, or other weapon, or any money, goods, or chattels what- soever, without owner's consent; or by threats causing such to be delivered ; or in any way maliciously digging up, levelling, or otherwise injuring the lands or crops growing or severed, or walls or fences, or cattle, or goods of any other person are guilty of a misd., and pun. tr. for life, or 7, or 14 yrs., or imp. with or without H. L., not more than 3 yrs., and if male, 1, 2, or 3 whp. at disc. Threatening no- To print, write, post, publish, circulate, send, or deliver, or tices, letters, &c. cause or procure to be printed, &c., any notice, letter or message, exciting, or tending to excite, any riot, tumultuous or unlawful meeting or assembly or combination, or threatening any vio- lence, injury, or damage upon any condition or event, or other- wise, to the person or property of any person whatever, or demanding any money, arms, or other thing whatever, or requiring any person to do or not to do any act, or to quit any employment, or to set or give up any land. Pun. tr. for 7 yrs., or imp. with or without H. L., not more than 3 yrs., and if male, 1, 2, or 3 whps. at disc. Abetting, or en- To assist, abet, or succour any person in committing any couragmg offence punishable with tr. hereunder, or knowingly to excite, others, id. s. 6. encourage, or promote, or to solicit, ask, or require, or endea- vour to compel or induce any person to join in committing such an offence. Pun. same as for the last mentioned offence. CHAPTER XV. COMMITMENT FOR SAFE CUSTODY. Commitment. HAVING seen in what cases the prisoner may be dis- charged, or bailed, and the duty of the justice therein, it remains to consider the proceedings where the prisoner Commitment for safe Custody. 4-75 is to be committed, having been charged upon sufficient grounds with an offence which is not bailable, or with an offence which is bailable, but for which he does not offer satisfactory bail(a). The commitment in this case Commitment v J for safe custody is called a commitment for safe custody ; and it is to be distinguishable distinguished from a commitment for further examina- from other com- mitments. tion(), or for punishment, as for a contempt(c), or of a witness refusing to submit to examination or to enter into recognizance to give evidence(c/), for which the reader is referred to previous chapters where they have been respectively treated of. It is to be further distinguished from a commitment in execution, and from commitments which are specially authorized by Statutes for the purpose of enforcing the performance of parti- cular duties, which will be hereafter noticed(tf). Having already stated the proceedings previous to commitment, in taking the informations of the accuser and his witnesses and the examination of the accused(/), and for what offences and by whom such commitment may be made(g), we shall here consider the commit- ment for safe custody under the following arrangement ; I. The warrant of commitment ; viz., 1, its general re- Division of quisites, date, and signature ; 2, direction ; 3, descrip- cha P ter - tion of the prisoner; 4, statement of the charge on oath; 5, statement of the offence; and 6, the conclusion. II. To what prison the party is to be committed, and directions of the Prison Act on the subject. III. Commitments in particular cases. IV. Duty of officers after the com- mitment; and of certifying and giving copy of the commit- ment. V. Discharge of the prisoner after commitment. I. Every such commitment must be by warrant(^); Must be by but a magistrate may, by parol, if the occasion require warranu (a) 1 Hale, 583 ; 2 Hawk, 614, s. 1. (6) Ante, pp. 320, &c. (c) Ante, pp. 67, 68 (d) Ante, p. 332. (e) Post, Parts III. and IV. (/) Ante, 304, &c. (g) Ante, 69, &c. (ft) 1 Hale, 583 ; 2 Hale, 122; 2 Hawk. c. 16, s. 13. 476 Form of Warrant of Warrant to be Date. Place. Statement of j. P's. autho- it, order the party to be detained for a reasonable time until he can make out a formal commitment(a), or, in cases of felony, where the proceeding is before a single magistrate, and he conceives the prisoner entitled to be bailed, until he shall be taken before two magistrates, in pursuance of the Statute(6). 1. The warrant, which is commonly called a mitti- mus > must be in writing under the hand and seal of the magistrate or magistrates, and should set forth the day and year of making it(c). The place of making the warrant should also be mentioned, but for this purpose it is sufficient if the county be stated in the margin, and it is not necessary to set forth the place with greater particularity(d). It is proper to set forth the office or authority of the magistrate making the commitment, at the commencement of the warrant(e) ; but the warrant is not void from its omission, for the authority of the magistrate may be supplied by averment, and the seal and subscription of the justice is a sufficient warrant to the gaoler(/), but it is always better formally to state such authority. In whose name. The warrant may be either in the king's name, in which case it is tested, that is, sealed and subscribed by the magistrate; or it may be in the name of the magistrate(g), and this latter is now the usual form. (a) Still v. Walls, 7 East, 533, 536 ; Hutchinson v. Lowndes, 4 B. & Ad. 118. (6) 9 Geo. IV. c. 54, s. 1, Ante, p. 375 ; 1 Burn. 784. (c) 1 Hale, 583 j 2 Hale, 122 ; 2 Hawk. c. 16, s. 13 ; Dalt. c. 196 j and it is said, a mistake in the date might be fatal, 1 Burn, 787, but the authorities there referred to (13 Ves. 361, and 6 Mad. Rep. 206), were committals of bankrupts. (d) 2 Hale, 111. () 2 Hawk. c. 16, s. 13 ; see form in Appendix, post. (/) 2 Hale, 122; R. v.GoodaM.Kenyon's, Rep. 122, S.C.; Sayer,129; Elderton's case, 2 Lord Raym. 980. (g) 2 Hawk, c. 16, s. 14. See forms of warrants of commitment in Ap- pendix. Commitment for safe Custody. 477 If the committal be made at Petty Sessions, it should Signature. be signed by two justices at the least(), unless there J . f at Petl y Ses " be only one justice attending thereat, in which case his signature will be now sufficient(^) ; and if the com- mittal be made by a justice acting out of Petty Sessions, I f elsewhere. a report thereof should be made to the next Petty Sessions of the district, as directed by the Petty Ses- sions Act(c). It has been already stated that in the performance of acts of judgment by two or more justices, they should be together in acting, but the mere placing AS to Js. P. their names and seals to the warrant after having con- being toget er * curred in their judgment, may be done separately (d). 2. The warrant should be directed to the gaoler or 2. Direction of keeper of the proper prison, and not generally to carry the party to prison; and the particular prison should also be specified by its proper description (e). In Lon- don and the metropolis it is said that it is usually directed to the gaoler only(/) ; but in other counties and places the warrant is usually directed both to a con- stable and to the keeper of the proper gaol, commanding (a) 7 & 8 Geo. IV. c. 67, s. 15. (6) 6 & 7 Will. IV. c. 34, s. 7, ante, p. 92. (c) 7 & 8 Geo. IV. c. 67, s. 13, ante, p. 88. (d) Ante, 62, 187 ; see Batty v. Gresley, S Ea. 327, and note ; 1 Burn, 784. (e) 2 Hawk. c. 16, s. 13; R. v. Smith, 2 Str. 934; R. v. Fell, 1 Lord Raym. 424. Where the proper description of the prison was " the Richmond Bridewell in the county of the city of Dublin," and a warrant of commitment was directed to the keeper " of the Penitentiary at Harold's Cross in the county of Dublin ;" it was held bad, and the prisoner was discharged ; for there is no prison legally called the Penitentiary at Harold's Cross, and, if there were, a warrant to the keeper of it could be no autho- rity to the keeper of another prison, Richmond Bridewell, to detain the prisoner ; R. v. Rev. T. D. Gregg, Q. B. East. T. 1841, MS. The com- mittal was for the prisoner's refusal to enter into a recognizance to keep the peace. (/) 1 Burn. 784. 478 Form of Warrant of Name or de- scription of prisoner. Oath. Statement in the committal not evidence for J. P. the former to convey the prisoner unto the custody of the latter, and the latter to receive and keep him. 3. The commitment should state the name of the party committed by his Christian and surname, if known(a). His addition may also be stated, though this does not appear to be essential(^). But if his name be unknown and he refuses to disclose it, it seems that, in such case, it will be sufficient to describe him by his age, stature, complexion, colour of hair, and the like circumstances, adding, that he refuses to tell his name(c). So if the name be not fully set out, as if the Christian name be omitted, some reason should be assigned for the omis- sion, and some distinguishing particulars of the party stated in the warrant ; at least it is so in a warrant to arrest(d). 4. Where the charge is on oath, as in ordinary cases it ought to be, it is pVoper to state that the party has been so charged upon oath ; but this statement in the warrant, though the safer course, is not indispensa- ble^) ; and there are cases in which a commitment may be made by the magistrate upon view of the offence, in which, therefore, an oath is not required(/). And although the magistrate will be liable to an action for false imprisonment for improperly committing a person without a sufficient charge, in those cases in which a previous information on oath is necessary, yet this state- ment in the commitment will not be admitted in evidence to prove that there was such a charge(^), (a) 1 Hale, 577 ; Ante, p. 180. (6) 4 Chit. Cr. L. 57 ; 1 Chit. Cr. L. 1 15. (c) 1 Chit. Cr. L. 110; 1 Burn. 785 ; ante, p. 181. (d) R. v. Hood, 1 R. & M. C. C. 281 , ante, p. 181. (e) 2 Hawk. c. 16, s. 17 ; 1 Hale, 579. As to the charge see Rourke v. Pepper, Sm. & Bat. 355 ; ante, p. 177. (/) Plait's case, 1 Leach, 167 j lYilkes' case, 2 Wils. 155, 158; Wyndham's case, 1 Str. 3. (g) Rourke v. Pepper, ubi sup. Commitment for safe Custody. 479 5. The commitment ought to set forth with con- Statement of venient certainty the particular species of offence with l which the prisoner is charged, as well in order that the party may know for what he suffers, and how he may apply to regain his liberty ; as that, if an application be made by the party to be bailed or discharged, the court may be enabled to judge from the commitment whether the offence be bailable or not(a). It is also required, in order that the sheriff, or gaoler, or other person keep- * ing the gaol and prisoners for felony, may thereby be enabled to certify the names of prisoners committed to him, and for what cause, to the justices of gaol de- livery, as directed by the Statute 3 Hen. VII. c. 3(6). But the same precision is not required in a commit- Different from . . _ commitment in ment for safe custody before trial, nor is it construed execution, with the same strictness as a commitment in execu- tion^) ; neither is it necessary that the offence shall be stated with the same particularity as in an indict- ment^). Accordingly the offence charged may be How offence expressed briefly thus, viz. tor leiony, " for the death J ta t " d4 of C. D.," or " for burglary in breaking the house of C. D."(V). Nor is it necessary to set forth the infor- mation, evidence, or grounds of the charge in the com- mitment(y). So a commitment for publishing a libel need not set forth the libel(^). It has been held also, that a commitment for high treason, or for suspicion thereof generally(^), or for treasonable practices with- (a) 2 Hawk. c. 16, s. 16 ; 1 Hale, 584; 2 Hale, 122 ; 2 Inst. 52, 591 ; Wilkes' case, 2 Wils. 158; GroenvelCs case, 1 Lord Raym. 213. (6) 2 Hale, 122. (c) R. v. Gourley, 7 B. & C. 669. (d) 2 Inst. 591 ; R. v. Remnant, 5. T. R. 170 ; S. C. 2 Leach, 584. () 2 Hale, 122. (/) Wilkes' case, 2 Wils. 158. (g) Id. ibid. (h) 2 Hawk. c. 16, s. 16, 17, and authorities there cited ; Wyndhamt 480 Form of Warrant of H OVV ftence out stating any overt act or other particular is good(r/). stated. But where the facts warrant a commitment for felony, the warrant should not be for suspicion of felony, in- asmuch as, under such a commitment, the prisoner will primd facie be entitled to be bailed if brought up under the Habeas Corpus Act(6). And a commitment of a party to answer generally to such things as shall be objected against him is utterly against law(c). Offences creat- When the offence is created by Statute the terms ed by Statute. of the g tatute should be pursued in describing it ; for by using other words than those which the legislature has used, it may happen that the offence will not be sufficiently defined. Thus a prisoner who had been committed, for that " with force and arms he made an assault on the prosecutor with intent feloniously to steal, take, and carry away from the person," &c., was ad- mitted to bail by the .King's Bench, because the de- scription did not charge him with an offence within the Statute 7 Geo. II. c. 2 !(risoner shall be detained "until the next gaol delivery of the said county," or " the next general Quarter Sessions of the Peace, to be held at in and for the said county"(&). But the first mentioned conclusion ( if the comm i ttni g magistrate shall so direct, by order under his hand, be detained in such bridewell until the first week in the calendar month next after such committal, but not longer, so that all the prisoners committed in any one calendar month may be sent un- In crowded der one escort. There is also a provision in sect. 92, directing, that, in the event of a crowded state of the maybedetained county gaol, on the report of the local inspector thereof, in district bride- . ,..,., we ll. it shall be lawful for the keeper of any district bridewell to detain therein any prisoner committed for trial at the assizes for the county 'until within a reasonable time prior to the assizes. This Act also abolishes all prisons attached to local jurisdictions, (except where application has been made to the LordLieuteuant under s. 97, and any prison continu- ed after satisfactory proof of its sufficiency), and enacts, s. In local juris- gg t j iat a ]j p ersons w h o might legally be confined in such dictions where * the prison is prisons, shall in future be committed to the common gaol ^uaisfo'bHo of the count y or county of a city or town, in which such county gaol. place is situate. And, by s. 100, when the gaol of any When prisoners coun ty a t large is situate within any county of a city or in city or town J J . may be com- town, and there is not any separate gaol for such city mined to county Qr tQwn where M& Acfc can fee carried into effec ^ the Lord Lieutenant may direct all prisoners within such county of a city or town to be committed to the gaol of such county at large(). Prisoners for ( a ) By Stat. 1 Geo. IV. c. 14, the Js. P. acting within and for any capital offences town, liberty, soke, or place, not being a county, but having an exclusive in jurisdictions, j ur i s( ii c tion for the trial of felonies or misdemeanors committed within the Prisoner should be committed. 487 It is important that the party shall be committed to Prisoner not . removable from the proper prison in the first instance, to prevent the fi rst custody vexation which might be occasioned by his removal from un j ess b y * habeas corpus. gaol to gaol. It is provided by the Habeas Corpus Act, 21 & 22 Geo. III. c. 11, s. 8, that no person committed to any prison or in custody of any officer, for any crimi- nal or supposed criminal matter, shall be removed from such first custody, unless it be by habeas corpus, or some other legal writ, or where such prisoner is de- livered to a constable or other inferior officer, to be by him carried to some common gaol, or sent by order of a judge or justice of the peace to any common work- house or House of Correction, or where the prisoner is removed from one prison or place to another within the same county, in order to his trial or discharge, or in case of sudden fire, or infection, or other necessity; and any person who shall make, sign, or countersign any warrant for such removal, contrary to this Act, and the officer executing the same shall forfeit 100 for the first offence, and 200 for the second, and shall be in- capable to hold or execute his said office(a). same, shall have full power at their discretion to commit any person duly not counties, charged before any of them, with any capital offence committed within such ma y be com - limits, to the gaol of the county within which such town, &c., is situate, rnitte to l e / county gaol for there to be tried at the next session of Oyer and Terminer, or General G aol De- trial at the livery, to be held in and for such county, in the same manner as if the offence assizes, was committed in any part of, and the commitment was by a J. P. of, such county j and by s. 2, the Js. P. so committing are required to bind over all necessary parties and witnesses by recognizance to prosecute and give evi- dence against such offenders, at the next sessions of Oyer and Terminer and General Gaol Delivery, and to transmit such recognizances and the depositions relative to the charge to the Clerk of the Crown for such county. Though this Statute is indexed in the volume of the Statutes as applying to England only, it seems to extend to Ireland also ; it is given in Hayes, Cr. L. p. 484. (a) Stat. 7 Geo. IV. c. 74, provides for the temporary removal of pri- R emova l soners during repairs of gaols, &c. Sect. 46 enacts, that whenever an order during repairs shall be made for the repairs of any gaol, bridewell, or other prison, in con- 488 Commitment for Offences Felony out of the county. m It has been a i ready observed, that although the arising out of jurisdiction of justices of peace is in general limited to offences committed within their county or district, yet, in several instances, they are empowered to deal with offenders found within their county or district, though the offence has not been committed within it. Thus where a person who has committed a felony in one county, goes into another county, he may be arrested under a warrant originally granted by a justice of such latter county, and in such case the party is to be com- mitted to the gaol of the latter county, from whence he may be afterwards transmitted by habeas corpus or by a transmit warrant in themanner before specified, for trial to the former county(a). But it is the more usual course, where practicable, to send the prisoner and witnesses to a magistrate of the county or place where the offence was committed(&). So if a person has committed a felony in one county, and upon a warrant issued against him by a justice of that county, has fled into another before he is taken, and is arrested upon fresh pursuit in such latter county he ought to be sequence of sudden injury thereto, (as is authorized by this Act, ss. 14, 46), or for using the materials thereof in building a new gaol, &c., and such order shall direct the removal or the prisoners therein, or any of them, for the purpose of making such repairs, it shall be lawful for the sheriff of the county, citv, or town, to remove such prisoners to any other prison belong- ing to such county, &c., or to such other place as with the consent of the said sheriff shall be specified in such order, and to confine them during the time such new gaol, &c., shall be building, or old gaol repairing; and when any such gaol, &c., so under repairs shall be made fit for the safe keep- ing of such prisoners, and the same shall be certified by the commissioners thereof, if any, or by any two of them, or by any three justices of the peace of such county, then it shall be lawful for the said sheriff to remove thither all such prisoners as shall be then in his custody, and may lawfully be imprisoned therein, and any such removal shall not be deemed to be an escape. (a) Ante, pp. 53, 222. (6) Stone's P. S., 10. occurring out oj?r Commitment. 491 brought before a Justice of the couavey ing prisoners to Expenses of to be by him committed to the gao* 75, s. 30, before Joners^'gaol. though if he had been arrested in are obliged to which the offence was committed, and esc*q the vouch- ther county and be there re-taken, he may btsts under either before a Justice of the county where he w^y the taken, or before the Justice of the county where III. offence was committed, and by whose warrant he wak first taken, and be by him committed to the gaol of "'risoner to be such latter county (a). So fora felony committed on the Felone />ecified. ie sea the party charged may be committed for trial at the re- nextsession of Oyer and Tenniner or General Gaol deli- very, to be held for the jurisdiction of the Admiralty(6), and the jurisdiction of Justices of the Peace is extended Otuer offences by Statute to all offences of what nature or kind soever, committed upon the sea(c). So it appears, for a felony Felony com- committed in Great Britain, or for a crime in a foreign ^ritahi ! o r Great country, the party charged may be apprehended and crime in foreign committed in order to be transmitted to the country where the offence was committed(d). Special provi- sions are also to be found in particular Statutes already noticed(e), by which jurisdiction is given respecting other offences the offences, whether felony or misdemeanor, therein g r t ^g d for by respectively mentioned, though committed out of the county. These Acts in general provide either that the offences so specified may be dealt with as if actually committed within the county, or that they may be tried in the county in which the magistrate is authorized to inquire respecting them ; and in such cases therefore it appears that the commitment must (a) 1 Hale, 580 ; 2 Hale, 94, 115 ; 2 Hawk.c. 16, s. 8 ; 1 Burn, 781. Ante, 208. (&) Ante, p. 54. See a form of commitment for high treason committed beyond sea in one of the colonies, Plait's case, 1 Leach, 157. (c) 7 Geo. IV. c. 38, ante, 57. (d) Ante, p. 54. (e) Ante, 55, et seq. 3R 490 Commitments in particular Cases. be to the gaol of the county in which such jurisdiction is given. The original, (independent of the statutable), jurisdiction of Justices is limited to felonies, though for some purposes extended to affrays and cases where a dangerous wound has been given, and their statutable jurisdiction is limited to offences coming within the de- More usual to scription given in the respective Statutes, but the more Tbacked waT- usua ^ proceeding at the present day, inasmuch as it ap- rant. plies to all indictable offences whether felonies or mis- demeanors, committed either in a different county or a different part of the kingdom, isto obtain a warrant from a magistrate of the county or place in which the offence has been committed, and to have such warrant indorsed by a magistrate of the county where the offender is found. The provisions of the several Statutes which autho-. rize this course of proceeding, have been already fully stated in a preceding chapter, to which, therefore, the reader is referred (a). Commitment of The Acts for punishing mutiny and desertion and deserters. f or fa Q regulation of the army and marine forces, usual- ly contain enactments respecting the commitment of deserters ; but inasmuch as these Acts are annual, and their enactments may vary from year to year, the ma- gistrate is referred to the Acts for the current year for directions on this subject(^). Duty ofconsta- IV. In contemplation of law the constable has the ofthe prisoner. char g e of tlie prisoner until he is actually received by the gaoler under the warrant of the magistrate(c) and until such time he is therefore, responsible for his safe cus- tody ; and as regards the conduct of the constable in conveying prisoners after commitment, the observa- tions in a former chapter will be found generally ap- (a) 44 Geo. III. c. 92 ; 45 Geo. III. c. 92, ante, 392, 394, &c. (6) 3 & 4 Vic. c. 6, s. 22, and c. 8, s. 29. (c) 2 Hale, 120, 95; ante, p. 225. Duty of Officer after Commitment. 491 plicable(a). The expense of conveying prisoners to Expenses of gaol is provided for by 2 & 3 Viet. c. 75, s. 30, before soners^'gaoi. noticed; and it seems, the grand jury are obliged to present for the expenses thus incurred, when the vouch- ers are laid before them(6). In cases of arrests under indorsed warrants, when it is necessary to convey the prisoners to England or Scotland, Stat. 44 Geo. III. C- 92, contains provisions on the same subject, which have also been noticed(c). The prisoner should be Prisoner to be . ._ . . . . . . ^ conveyed to the taken to the gaol specified in the mittimus(a). gao i spe cified. The gaoler upon sight of the warrant of commitment Gaoler to re- . , i j p i_ f ceive the pri- is bound to receive the prisoner, and if he refuse to re- soner ceive him, or take anything for receiving him, he is punishable therefor by the Justices of Gaol Delivery (e). But if a man is committed for a felony, and the gaoler Whattobedone will not receive him, the constable must, it is said, bring him back to the town where he was taken, and he shall be charged with the keeping of him till the next gaol delivery ; or, as it seems, the person who arrested him may in such case keep the prisoner in his own house(/),* but in other cases no one, it seems, can justify detaining Keeping pri- a prisoner in custody out of the common gaol, unless soner . els e w herc r J than in the there be some particular reason, as such dangerous ill- gaol. (a) Ante, ch. vii., p. 215; see pp. 215, 2222.6. The conduct to be observed in conveying prisoners who have been committed for trial at Quarter Sessions, and are being conveyed from the county gaol, to the bridewell of the town where the Quarter Sessions are held j and in convey- ing prisoners convicted at Quarter Sessions, and being brought therefrom to the county gaol, is regulated by the general order of the Inspector -General of Prisons. (6) Stat. 2 & 3 Viet. c. 75, s. 43 ; ante, 224. In re Grand Jury of Co. of Dublin, 1 Cr. & D., 102. (c) 44 Geo. III. c. 92, ss. 5 and 6 ; ante, p. 225, n. (a). (d) See ante, pp. 484, 487 ; and see Swinstead v. Lyddel, 1 Salk., 408- (c) 4 Edw. III. c. 40 ; Dalt. c. 170, p. 410; and see Brandling v. Kent, 1 T. R. p. 60. (f) Dalt. ubi sup.^ 1 Burn, 789. 492 Duty of Constable and Mittimus hand* eel over to the gaoler. Receipt. Duty of gaoler to receive pri- soner. Without any fee. ness, that it would hazard the prisoner's life to send him to prison, or danger of a rescue from rebels or the like(a). The constable is not to retain the warrant of com- mitment^); it is to be handed over with the prisoner to the gaoler, as it is the gaoler's authority for keeping him. But the constable should get a receipt for the prisoner from the gaoler and preserve it, and it is also advisable for him to take and preserve a copy of the war- rant. It is the gaoler's duty as above stated to receive the prisoner, and to give the constable, if he demand it, a receipt. Stat. 1 & 2 Geo. IV. c. 77, directs that all fees or gratuities whatever payable by any prisoner in Ire- land on the entrance, commitment, continuance in cus- tody, or discharge of any prisoner in any prison in Ire- land, shall absolutely cease and determine, and no fee or gratuity whatever be paid or payable by any prisoner; and sec. 7 imposes a penalty of 5, for each offence, on any Clerk of the Crown or Peace, or their deputies, or any Sheriff, Under Sheriff, Gaoler, or Under Gaoler, Turnkey, Crier, or any person acting under them, for de- manding or taking, directly or indirectly, any such fee or reward ; and by sect. 9, exactions and extortions by gaol- ers, bailiffs and others having the charge of prisons are made punishable summarily on application to the Court or judges. It is not within the scope of this treatise further to consider the duties of the officers of the prison, with respect to the safe custody, classification, or employ- ment of prisoners, or other matters of prison discipline, which are not properly connected with the office of the magistrate. These are now chiefly regulated by the (a) 2 Hawk,, c, 16, s. 9, ante, p. 217. (6) But as to the warrant of arrest, see ante, p. 225 ; and search-war- rants, ante, p, 252. Gaoler after Commitment. 493 Prison Acts, 7 Geo. IV. c. 74, and 2 & 3 Viet. c. 44, and the rules adopted in conformity with their provisions(a). The Habeas Corpus Act, 21 & 22 Geo. III. c. 11, Giving copy of . . , f^, commitment. s. 4, enacts, that if any officer, or his under officer, un- der keeper or deputy, in whose custody the prisoner is committed and detained, upon demand made by the pri- soner or any other person in his behalf, shall refuse to deliver, or within six months (hours) (b) after demand(c) shall not deliver to the person so demanding it a true copy of the warrant or warrants of commitment, and detainer of such prisoner, he shall forfeit to the prisoner or Penalty for re- party aggrieved for the first offence 100, and for fusin s- the second offence 200, and shall also be deprived of his office(d). A constable is an officer within the mean- Wno to g i ve i t . ing of this section, and obliged to give a copy of the commitment(e). (a) It is also provided by Stat. 3 Hen. VII. c. 3, that every sheriff, bai- liff of franchise, and other person having the power of keeping of gaol or of prisoners for felony, shall certify the names of every such prisoner in their keeping, or committed to them for such cause at the next General Gaol De- livery in every county or franchise, there to be calendared before the Justices of Gaol delivery, whereby they may proceed to make deliverance of such prisoners according to law ; penalty for neglect herein, 100s. (b) " Month" is the word in the body, and " hours" in the margin of the Statute, as printed in the folio editionof the Irish Statutes at large, V. 12, p. 140 j but " hours" is the word in the body of the English Habeas Corpus Act, 31 Car. II. c. 2, s. 5, of which the Irish Act seems intended to be a transcript. (c) It has been held that if the gaoler be not in the prison, service of a demand of a copy of the commitment may be made upon the deputy, and it will be sufficient ; and if the gaoler have no deputy, then, in his absence, on the turnkey, or it may be left at the gaol ; for it is the duty of the governor or gaoler to leave some one in his place, but if the gaoler himself be in the prison, service of such demand on the turnkey will not be sufficient ; Hunt- ley v. Luscombe, 2 Bos. & P. 530. (d) The prisoner suing for these penalties is entitled to his costs; Ward v. Snell, 1 H. Black. 10. () Hudson*. Ashe, Str. 167. 401 Discharge after Commitment. What commit- ment entitles prisoner to a copy. Discharge of prisoner be- fore trial, when committed for want of bail. By habeas cor- pus or motion in Queen's Bench. With respect to the question what will be a sufficient commitment to entitle the prisoner to a copy it has been held, that when a prisoner is sent from Ireland on a Secretary of State's warrant, and committed to prison until he can be brought before a judge, and the warrant is left with the gaoler, the prisoner is entitled to a copy(a). But when a person, having been unable to find bail before the magistrate, had been permitted at his own request to continue in custody of the officer for a short time, he was held not entitled (b). V. When the prisoner has been committed for want of bail, he may, as before stated, procure his discharge, if at any time before trial he shall procure sufficient bail(c). If the prisoner be illegally committed, or be advised that he is entitled to be bailed or discharged, where he has been fully committed, his proper course is to obtain a writ of habeas corptls to be brought up before the Court of Queen's Bench ; or if he be too poor to bear this expense, he may apply by motion to the Court that he may be bailed in the country, and for a certiorari to the magistrates to return the informations^) ; and if the party has been improperly committed, the Court will not make it a part of the rule for granting the ha- beas corpus, that he shall not bring an action against the magistrate(e). (a) Sedley v. Arbourin, 3 Esp. 174. (6) Hudson v. Ashe, Sir. 167. (c) See ante, pp. 378, 381. As to discharging a prisoner committed for a suspicion of a crime, which afterwards appears clearly not to have been committed, see 2 Hawk. c. 16, s. 22. (d) R. v. Booker, 2 Dowl. P. C. 446 ; R. v. Jones, 1 B. & Aid. 209. This practice adopted in Ireland, Batty, 138. (e) Ex pane Hill, 3 C. & P. 225. Of Recognisances. 405 CHAPTER XVI. OF TAKING THE RECOGNIZANCES. WHEN the magistrate has decided upon bailing or com- Recognizance . . , 1111111 n to prosecute and mittmg the accused, he should take the recognizance ol g i ve evidence. the prosecutor to prosecute and give evidence, and of the material witnesses to appear and give evidence against the party accused, at the next Court of Over and Terminer, or Gaol Delivery, or General Quarter Sessions to be held for the county, &c., or other court at which the trial of the offence is intended to be had(a). By their recognizance the parties therein bound ac- Form of rec S" * nizance. knowledge themselves respectively to owe to the Queen a named sum. A condition is added which varies accord- ing to the object of the recognizance. The condition Condition. in a recognizance of bail has been stated(^). The con- dition in a recognizance to prosecute or give evidence, states that the sum named shall be forfeited by the parties respectively, if they shall fail to appear and pro- secute or give evidence at the appointed place of trial. It may be either indorsed on, or under-written, or con- tained within the body of the recognizance(c). Stat. 57 Geo. III. c. 56, s. 2, enacts, that every Recognizances recognizance taken in Ireland by or before the Court of Barnes 'and re- King's Bench or a Judge thereof, or a Justice of Oyer sidences as and Terminer, *or by or before any Justice or Justices of the Peace at their Sessions of the Peace or otherwise, (a) 9 Geo. IV. c. 54, ss. 2, 3 ; ante, 304, &c. ; 2 Hale, 282. As to the Court to which they may be returned, post, p. 509 ; and see Forms, post, in Appendix. (6) Ante, p. 387. (c) 5 Burn. 324; Dick. sess. 115. 49G Of Recognizances. Oath of resi- dence and suf- ciency, If residence in a county at large. If residence in a city or town. To bea nnexed or by any magistrate or other person lawfully authorized to take the same, shall contain the name and addition of the person or persons respectively, thereby ac- knowledging himself, herself, or themselves respec- tively to be bound, and the name of the townland, parish, or barony, or half barony, or town and city and street therein, (if in a county of town or city), in which the usual or actual place or places of residence of such person or persons is or are respectively situated ; and all and every persons or person who shall come before the Court of King's Bench or a judge, or before any Justice or Justices of the Peace at their sessions of the peace or otherwise, or before any magistrate or other person lawfully authorized to admit to bail, in order to give bail, or be bound for the appearance of any person or per- sons charged with any crime or crimes, (which person so charged shall by law be entitled to bail), or for keeping the peace, shall respectively make oath in one of the forms here following, or in some other form of words to the like import and effect; i. e. if such person shall reside in a county at large, in this form, to wit : " I, A. B., do swear that I am a householder, and have a house wherein I usually reside at in the parish of , barony [or half barony] of , and county of , and that I support and maintain myself by , and that I am worth the sum of [here insert double the sum in which he or she is to be bound,] over and above all my just debts. So help me God." And if such person shall reside in a county of a city or town, the words " reside at" and from thence to " county of" shall be omitted ; and instead thereof these words shall be inserted, viz., "residing in [naming the street, square, lane, or place,] in the parish of , and county of the city or town of And every such oath shall be annexed to or written on Of Recognizances. 497 recogni- zance. the same piece of paper or parchment with the recogni- to zance, and shall be signed by the person making the same, and attested by the proper jurat of the court, judge, justice, or other person taking the same, and shall be sufficient in lieu of all or every oath or oaths required by any law in force to be taken by such surety. But s. 3 provides, that nothing herein shall extend to Principals to be . sworn only to require the person or persons charged with any crime residence. and for whose appearance any recognizance shall be about to be entered into, or any person or persons who shall become personally bound to keep the peace, or any person or persons who shall or may hereafter be- come bound for the prosecution of any person or per- sons charged with any criminal offence, to take such part of the said oath as relates to such person or persons being a householder, or to his, her, or their being worth the sum or sums of money for which he, she, or they, is or are respectively about to be bound, over and above all their just debts ; but every such last mentioned per- son shall, in like manner and form respectively, make oath as to the place, parish, barony or half barony, and county, and the town or city and street therein, (if in a county of a town or city), in which he, she or they usually or actually reside. Sect. 4 enacts, that every magistrate who shall neglect Penalty on or refuse to return any recognizance taken before him "eglecting'to alone, or before him and any other person authorized to comply with the , ,. . ,. provisions of take it, or to insert the names and additions 01 the per- this Act. sons entering into the same as above directed, or to administer the oaths respectively hereinbefore directed, shall, for every such neglect or refusal, (in addition to such fine as the Judges of Assize may think fit to im- pose), forfeit 50, recoverable as herein. It will be observed that the distinction between the Difference oath required by this Statute from persons bound in a ^cognizance 3s 498 Taking Recognisances. of bail and re- cognizance to prosecute. Affirmation in lieu of oath. Manner of taking the re- cognizance. Form to be re- peated. recognizance of bail, and that of persons bound to pro- secute, is, that the latter are required to swear only to the place of their residence, naming the parish and barony or half barony if in a county, and the street, &c., and parish if in a county of a city or town, while the former must swear also to their being householders and worth double the sum in which they are bound. If the parties be Quakers, Moravians(a), or Separatists^/), or if having belonged to the sects of Quakers or Moravians they continue to have scruples as to taking an oath, an affir- mation or declaration from them in the form above pre- scribed will be sufficient. The usual mode of taking a recognizance is for the magistrate, or clerk in his presence, to address the parties by their names, stating to them the penalty and condition. The form in which this may be done in a recognizance of bail has been stated(c). In a recog- nizance to prosecute it may be as follows : " You A. B. , acknowledge to owe to our Sovereign Lady the Queen the sum of 40, to be made and levied of your goods and chattels, lands and tenements, to the Queen's use in case you shall make default in the condition of this re- cognizance ; which is that you shall appear at the next Assizes [or the next Quarter Sessions of the Peace, as the case may be,] to be holden at , in and for the county of [or in and for the district of in the county of ], and then and there, [if the party bound be the prosecutor,] prefer a bill of indictment and give such evidence as you know [or, if a witness only, omitting the words " prefer a bill of indictment"], against the prisoner C. D., for the offence with which he is now charged, and not depart without leave of the court. Are you content to be bound ?" If there be several (a) 3 & 4 Will. IV. c. 49 ; 1 & 2 Viet. c. 77. (b) 3 & 4 Will. IV. c. 82 ; see ante, p. 161. (c) Ante, p. 388. Taking Recognizances. 499 witnesses bound, instead of repeating the form sepa- J^^ eral be ratcly to each it may be put as follows : " You, A. B. 9 C. D., and E. F., severally acknowledge to owe to our Sovereign Lady the Queen, the sum of 10 each, to be made and levied upon your respective goods, &c., [as be- fore], in case either of you should make default in the condition of this recognizance ; which is, that you and each of you shall respectively appear at the next Assizes [or Quarter Sessions, &c., as before], to be holden at in and for this county, and then and there give such evidence as you respectively know, upon an indict- ment to be then and there preferred against the prisoner G. H., for the offence now charged against him, and not depart without leave of the court. Are you seve- rally content to be bound ?" The parties should then Acknowiedg- ,, T rr,, , , , , ment sufficient. each separately answer " 1 am. 1 his acknowledgment is sufficient, and it is not necessary that they shall sign it(. The recognizance is a matter of record as soon as When a record. it is taken and acknowledged, although it be not made up till afterwards. But magistrates usually have forms upon paper printed in blank, which are filled up ac- cording to the exigency of the case, and from which, Usual practice. when so filled up, the acknowledgment of the party is taken ; or it is not uncommon merely to mark at the foot of the information, thus : " A. B. in 20, [or the sum named], to appear," &c., or to make a like entry in the magistrate's book ; and from this short note the record afterwards may be made up, if requisite(&). The recognizance, note, or entry must be subscribed signature of justice. (a) 5 Burn. 324 ; Dick. sess. 115. O) 1 Burn. 122 ; 5 Burn, 324; Dick. sess. 115. But it seems, tha t although the acknowledgment by the party is matter of record, yet the recognizance is not a record until enrolled, and that then it is to be en- grossed on parchment ; 1 Inst. 260 ; Glynn v. Thorpe, 1 B. & Aid. 153 ' 2 Burn. 122. 500 Taking Recognizances. Taken in Petty Sessions. Entry in re- gistry. Whereby a single magis- trate. Fee. by the magistrate or magistrates(a) ; and it may be thus : " acknowledged before me, [or us], J. P., &c.," or it will be sufficient if merely subscribed with their names. A seal is not required(&). If taken in Petty Sessions the recognizance should be signed by two magistrates at the least(c), unless there be only one justice attending thereat, in which case his signature will be sufficient(d). An entry of all recognizances, &c., taken at Petty Sessions is to be made in the registry, to be 4 signed by all the magistrates present, and kept by the clerk(e), in the form set forth in the schedule thereto annexedf/). If the recognizance be taken by a justice acting out of Petty Sessions, he should report the case, together with the informations taken or recognizances sworn and acknowledged, to the next Petty Sessions of the district; and a particular entry of such cases is to be made in the registry of such Petty Sessions. A list also of all such informations and recognizances sworn and acknowledged before justices acting singly is to be made out by the respective Clerks of the Crown and Peace, and laid be- fore the Judges of Assize and Justices in Quarter Ses- sions respectively, together with the names of the magistrates before whom they were taken(g). Fees for recognizances are payable only at Petty Sessions ; their amount is specified by the Petty Sessions Act(A). And it is also thereby enacted, that it shall not be law- ful for any Clerk of Petty Sessions to demand or receive (a) 9 Geo. IV. c. 54, ss. 2, 3, 5 ; ante, p. 304. (fc) 2 Hale, 126; 5 Burn. 325. (c) 7 & 8 Geo, IV. c. 67, s. 15; ante, p. 88. (d) 6 & 7 W. IV. c. 34, s. 7; ante, p. 92. (e) 7 & 8 Geo. IV. c. 67, s. 11 j ante, p. 87. (/) See Sch.;;os, in Appendix. (g) 7 & 8 Geo. IV. c. 67, ss. 13, 14 ; ante, p. 88. 0) 7 & 8 Geo. IV. c. 67, ss. 8, 10, and Sch.j ante, pp. 87, 96. Tatting Recognizances. 501 from any person any fee for engrossing or preparing any recognizance, unless he shall be required by such person or some person on his behalf, to prepare the same(). The magistrate is authorized by the Statute before Witness re- , i-i-i 11 i fusing to enter recited, to bind by recognizance all such persons as into r ecogn i_ know or declare any thing material touching the charge zance . ma y be before him, -whether the offence be felony or misde- meanor, to appear to prosecute and give evidence at the trial(). In cases of felony, the Statute further empowers the magistrate to commit such person if he shall refuse to enter into such recognizance, until he shall enter into such recognizance or be discharged by due course of lavv(c) ; and in cases of misdemeanor, he has authority to bind all persons by recognizance to appear to prosecute and give evidence against the party accused, in like manner as in cases of felony(d). And in the construction of the repealed Statute(e), it had been decided that by the authority which was there given to the magistrate, (limited by that Statute to cases of felony, and by the present Statute extended to cases of misdemeanor), to bind by recognizance those who had given material evidence before him to appear and give evidence at the trial, the magistrate was em- powered, by necessary consequence and as a means of enforcing the authority so given, to commit such per- son upon his refusal to enter into such recognizance(/). (a) 6 & 7 W. IV. c. 34, s. 12 ; ante, 96. (fc) 9 Geo. IV. c. 54, ss. 2, 3 ; ante, pp. 304, 305. (c) Id. s. 2 ; ante, p. 305 ; 1 Hale, 385 ; 2 Hale, 281. (d) Id. s. 3 ; ante, p. 305. (e) 1 & 2 Ph. and Mary, c. 13, s. 5 ; 2 & 3 Ph. and Mary, c. 10, Eng. ; 10 Car. I. St. 2, c. 18, ss. 1, 4, Ir. (/) 1 Hale, 586 ; 2 Hale, 52, 282; Bennet v. Watson, 3 &. & S. 1 ; 2 Hawk. c. 8, s. 58, and c. 16, s. 2. See form of commitment post, in Appendix. 502 Taking Recognizances. In general sure- ties cannot be required. Feme covert. Infancy. In general, the recognizance of the party himself, at the peril of commitment, is all that can be required ; and it seems that the magistrate will not be justified in committing a witness who is willing to enter into his own recognizance for his appearance, merely because such witness is unable to find a surety to join him in such recognizance(a). But a married woman must find security for her appearance, as she is incapable of entering into a recognizance, and therefore she is not required to join in it(6) ; one surety, which is generally her husband, appears to be usual and sufficient in such cases. It has been also said that a person under age should find surety for his appearance(c) ; yet it seems that if an infant enter into a recognizance it will bind him, and that the court will not discharge it on the ground of infancy(oT). And in a case where a magis- trate had committed a b'oy of tender years, (11 years of age), because he could not find sureties for his appear- ance, as a witness to give evidence against a person committed upon a charge of felony, the learned judge strongly reprobated his conduct. In this case the boy had been committed to the assizes, and had remained in gaol for three months; and the learned judge ob- served, that although magistrates might, perhaps, be justified under some circumstances in requiring sureties, (a) 2 Burn. 122 ; 1 Dick. J., 625, Examination, II. But see form of commitment for want of sureties, where the party has no settled place of abode, or property, 4 Chit. C. L, 49, 50. (6) Bennet v. Watson, 3 M. & S. 1 ; Petersd. Bail, 510 ; 1 Dick. J., 625, Examination, II. ; 5 Bac. Ab. Obligation, D,; Styles, 369; 2 Hawk, c. 15, s. 84, n. (c) 2 Burn. 121, Examination, XI. ; 1 Dick. J., 625, Examination, II. ; Petersd. Sail, 510; 1 Chit. Cr. L. 91. (d) Ex parte Williams, 13 Price, 670 ; S. C., M'Cl, & Y. 493 ; 5 Burn. 323, Recognizance, II. IV.; Bac. Ab. Infancy, I., Obligation, D. Subsequent Proceedings. 503 yet, in this case, he considered such a proceeding most unjustifiable(tt). Stat. 9 Geo. IV. c. 51, s. 34, contains an enactment Estreat of re- against the indiscriminate estreating of recognizances to cogniz prosecute. And by Stat. 1 & 2 Will. IV. c. 44, s. 9, and 1 &2 Viet. c. 99, ss. 1, 2, a summary power is given to Courts of Oyer and Terminer, Gaol Delivery and Quarter Sessions, respectively, having jurisdiction in criminal cases, to order the officer of the court to issue his warrant for the levy of the amount, for which such recognizances shall be estreated. But as these enact- ments concern only the courts, before whom the parties are so bound to appear, it is sufficient here merely to refer to them. CHAPTER XVII. KEEPING, RETURNING, ETC., INFORMATIONS, EXAMINA- TIONS, AND RECOGNIZANCES. IN this chapter will be considered ; I. How the infor- mations, examinations, and recognizances are to be kept, and the right of the parties to copies. II. Of returning and certifying them. III. Of the proper court for trial. I. The informations, examinations, &c., ought to be How to be kept. attached together in the order in which they are taken, and, with the recognizances, preserved by the magis- trates, or in their office, until they shall be transmitted in the regular course to the proper officer of the court before which the prisoner is to be tried. (a) By Graham, B. Bodmin Sum. Ass. 1821 ; 1 Burn. (24 Edit.), 1013, Examination. 504 Right to Copies of Depositions. Right of party Formerly not even the party accused had a right to inspect them. , l , . . . . to demand a copy or the depositions against him(a) ; but now, by Stat. 6 & 7 Will. IV. c. 114, s. 3, all per- Parties com- sons wno g^^j ^ e ^^ to k a ^ or comm itted to prison for rmtted or held . ' to bail, have a any offence against the law, shall be entitled to require right to copies. and hav6j Qn demand, (from the person who shall have the lawful custody thereof, and who is hereby required to deliver the same), copies of the examinations of the witnesses respectively, upon whose depositions they have been so held to bail, or committed to prison, on payment of a reasonable sum for the same, not exceeding three halfpence for each folio of 90 words; provided that if such demand shall not be made before the day appoint- ed for the commencement of the assize or sessions, at which the trial of the person, on whose behalf such demand shall be made, is to take place, such person shall not be entitled to nave any copy of such examina- tion of witnesses, unless the judge or other person to preside at such trial, shall be of opinion that such copy may be made and delivered without delay or incon- venience to such trial; but it shall, nevertheless, be competent for such judge or other person so to preside at such trial, if he shall think fit, to postpone such trial, on account of such copy of the examination of witnesses not having been previously had by the party charged. And, by sect. 4, all persons under trial, shall be entitled, at the time of the trial, to inspect without fee or reward all depositions (or copies thereof), which have been taken against them, and returned into the court, before which such trial shall be had. J. P. will be In an action by the party accused for a malicious ducTthera m prosecution and false imprisonment, as the original of an action for t h e information upon which the party was committed, false imprison- ment. () 2 Burn. 121 ; 1 Phil. Ev. 7th edit. 427, 428 j R. v. Holland, 4 T. R.,691. Returning the Informations, $c. 505 ought to be produced at the trial, the court will grant a rule at his instance, calling upon the committing magistrate to cause it so to be produced(a). II. The informations, examinations, and recogni- Subscribing in- ill formations, &c. ; zances, are to be subscribed as above stated, by the justice or justices taking them(&); and if taken in Petty Sessions by two justices at least(c), unless there be but one justice attending thereat, in which case his signa- ture alone will be sufficient, where otherwise the signa- ture of a single justice would have been sufficient(W). Care should also be taken that they be properly entitled sh 1 uld be f !'* rectly entitled. or headed (e). It is proper that each deposition should be sepa- informations, rately signed by the magistrate. An examination was ^ c ' n rejected under the following circumstances. The direct rately. examination of a witness against the prisoner had been regularly taken and signed by the magistrate; on a subsequent day this witness had been cross-examined on behalf of the prisoner, and his evidence taken down in writing, but the cross-examination was not signed at the foot by the magistrate ; it was tendered in evidence, pinned up with the examinations of two other witnesses, (which had been taken at the same time with the cross- examination), the last sheet of the whole having been signed by the magistrate ; but, as it could not be made appear that the cross-examination had been pinned up, together with the other examinations at the time the magistrate had signed the last sheet, both the examina- tion and cross-examination of the first witness were or, at least, the rejected(/). But when the deposition of the prosecutor signature (a) R. v. Smith, 1 Str. 126 ; 2 Phil. Ev., 806. (6) 9 Geo. IV. c. 54, ss. 2, 3 ; ante, 305, 347, 348. (c) 7 & 8 Geo. IV. c. 67, s. 15 ; ante, p. 88. (<0 6 & 7 Will. IV. c. 67, s. 7 ; ante, p. 92. (e) Ante, p. 346. (/) R. v. France, 2 Moo. & Rob. N. P. C., 207. 3T 506 Returning the Informations, must apply to all the deposi- tions. Informations, &c., taken at Petty Sessions, to be transmit- ted in 14 days from the com- mittal or bail- ment of the accused or taking of the recognizance. True date of transmittal to be indorsed. was on the same sheet of paper with those of other witnesses, but was not signed separately, there being only one signature at the end of all in this general form, " sworn before me," &c., it was received in evidence, the magistrate's clerk having proved that it was regu- larly taken in the prisoner's presence(a). But in this latter case also, the learned judge observed, that there might be a doubt whether each deposition should not be signed ; and to prevent questions upon this subject it is proper that each deposition should be separately signed. Stat. 6, 7 Will. IV. c. 34, s. 6, enacts, that every information, examination, and recognizance, sworn, taken, or acknowledged at any Petty Sessions, shall be transmitted by the magistrates at such sessions, or the Clerk of such Petty Sessions, to the Clerk of the Crown of the county, county of a city, or county of town, in which such sessions are holden, if the same shall relate to any matter to be tried or inquired into, at the assizes, and if to any matter to be tried or in- quired into at the Quarter Sessions, then to the Clerk of the Peace of such county, city, or town, fourteen days at the latest, from the date of the committal for trial, or of the bailment, of the party or parties accused by or in such informations, or of the taking of such re- cognizance, as the case may be, together with all such informations, examinations, and recognizances, taken by or before a justice or justices not sitting in Petty Ses- sions, as may then be in the hands of such Petty Ses- sions clerk ; anything in 7 & 8 Geo. IV. c. 34, or 9 Geo. IV. c. 54, to the contrary notwithstanding. And the clerk of the Petty Sessions shall, on every such in- formation and recognizance, indorse the true date of its being so transmitted, and shall on the day before the day for holding each Petty Session, enter in the () R. v. Osborne, 8 C. & P. 113. Examinations and Recognizances. 507 book containing an entry of the proceedings at the Petty Sessions, an account in writing, stating the par- ticulars of the informations so transmitted by him since the last sitting of such Petty Sessions, and to whom transmitted, and shall sign such account ; and any neglect or omission herein subjects the clerk of Petty Sessions to a penalty of 5. By Sect. 5, every when taken out information, examination, and recognizance, sworn, ofPett ySes- , , c . . sions.tobe taken, or acknowledged by or betore any justice or transmitted justices not sitting in Petty Sessions, shall with all con- j hereto ** venient dispatch, and at the latest before the Petty next Petty Sessions then next ensuing for the district where the Sesslons ' case may have arisen, be transmitted to the clerk of Petty Sessions of such district ; and shall be by him laid before the bench of justices at the next Petty Sessions after he shall have received such informations, examinations, and recognizances. And every Petty and a list there- Sessions clerk shall keep a distinct and separate list of "eturne^uftbe the informations, examinations, and recognizances, so ChiefSecretary. transmitted to him, containing the particulars herein directed, and transmit a copy thereof to the Chief Secretary once every three months(a). All the depositions made at all the examinations, Alltheinforma- which have taken place respecting the offence which l ! ons examina - istobe the subject of the trial, ought to be returned, as should be' it is of the last importance, that the judge should have relurned - every deposition that has been made, that he may see whether or not the witnesses have at different times varied their statements, and if they have, to what ex- tent they have done so(6) ; and particularly since the Statute allowing the prisoner to obtain a copy of the depositions, as the object of giving him this privilege was to enable him to know what he may have to answer (a) See fully, ante, pp. 91, 92. (6) R. v. Lemons, 6 C. & P. 540, by Alderson, B. 508 Returning the Informations, $c. Answers if the witnesses were cross-examined. Whether wit- nesses bound over or not. Informality. on his trial(a). And for this purpose it is important, as before stated, that the depositions shall contain the entire of the evidence, material to the charge as given by the witnesses before the magistrate(6). So, if the prisoner cross-examine the witnesses before the magistrate, the answers of the witnesses to the cross- examination ought to be taken down and returned with the depositions (c). This is well exemplified by the case before referred to, in which, although it was proved that the direct examination of the witness against the prisoner had been regularly taken and re- turned by the magistrate, yet as the witness had been cross-examined on behalf of the prisoner on a subse- quent day, and his deposition in cross-examination hav- ing been irregularly signed had been rejected on account of this irregularity, the judge rejected also the direct examination of that witness(r/). And all the depositions of all the witnesses should be returned, whether the wit- nesses who made them are bound over to give evidence at the trial or not, and whether they are examined on the part of the prosecution or of the prisoner(e). And not only the depositions of the prosecutor and witnesses, but also any statement or confession taken down as made by the prisoner should be returned^). And if there has been any informality in taking any of the examinations, it is proper that the circumstances should be stated, in order that the court may decide upon their validity (g). (a) R. v. Grady, 7 C. & P. 650, by Lord Denman, C. J. ; R. v. Coveney, id. 667. (b) Ante, pp. 163, 309, 340. (c) R. v. Potter, 7 C. & P. 650, n. j ante, p. 346. (d) R. v. France, 2 M. & R., N. P. C. 207 ; ante, p. 505. () R. v. Fuller, 7 C. & P. 269, by Vaughan, B. (/) R. v. Fallows, 5 C. & P. 508 j ante, 345. (> Ante, p. 345. To what Court they should be returned. 509 The fees payable upon engrossing and preparing Fees- informations, to be demanded only in cases of misde- meanor, and upon recognizances, are specified in the Petty Sessions Act, which also enacts, that no fee what- ever shall be demanded or taken, unless the act be done in Petty Sessions(a) ; and further, that it shall not be lawful for the clerk to demand or receive for engrossing or preparing any number of informations relating to the same transaction any greater fee than %s. 6d. ; and that he shall not demand or receive from any person any fee for engrossing or preparing any recognizance, unless he shall be required by such person, or some person on his behalf, to prepare the same(). III. In deciding upon the court, to which the party of lhe P r P er . . ._ - . . . . . ,, . court for trial. accused shall be sent for trial, and the informations, &c., returned, the magistrate will have regard to the class and magnitude of the offence, and the time at which the trial may be had(c). If the offence be equally proper for trial at the The first com- assizes or Quarter Sessions, it appears to be as well ^ the duty of the magistrate as the right of the party accused, that it shall be returned for the earliest trial(e/). And this rule seems to apply equally to cases where the Whether in party is admitted to bail, and to cases where he is aii. y ' committed to custody, inasmuch as it is for the public advantage, that no guilty person shall remain untried and unpunished for a longer period than necessity re- (a) 7 & 8 Geo. IV. c. 67, ss. 8, 10, and sch.; ante, 87, 96. (6) 6 & 7 Will. IV. c. 34, s. 12 ; ante, p. 95. (c) In some cases the magistrate has a further discretion, as to whether the case is a proper subject for a summary conviction, as in the instance of assaults, misconduct or obstruction on railways, party processions, &c.; see the Stats, in the Appendix. (rf) See the observations of Lord Cottenham, C., Lord Denman, C. J., Lord Abinger, C. B., and Lord Brougham, in debates in the House of Lords 25th and 26th April, 1839, reported in the Mirror of Parliament for 1839, pp. 2059, 2095. 510 To what Court the Proceedings quires, and on the other hand, it is the right of the accused, that he should not, if innocent, be detained in prison or remain under charge of a crime longer than is indispensably necessary for the due administration Gaol delivery, of justice. Indeed this principle has been carried by some of the learned judges in England to this extent, that where prisoners have been committed for trial at the Quarter Sessions, and the assizes have intervened, the judge has ordered them to be discharged at the assizes, on the ground that it was the right of the prisoners to be tried by the first competent tribunal, and the duty of the magistrate so to have returned them for trial, and that the judge is bound by his commission to deliver the gaol(a). How regulated So far, therefore, as it regards returning cases for of th^o^ence trial to tne first com P etent tribunal, the foregoing direc- tion is plain and distinct. But as to the class of offences which are proper to be reserved for trial at the higher trbunal, it is not easy to state any precise rule ; with respect to which, therefore, the magistrate is neces- sarily invested with a certain discretion, to be exer- cised soundly, and confined within those limits, within which an honest man, desirous to have the purposes of justices effectuated, ought to confine himself(). offences within By the commission of the peace, the justices in (a) 1 Burn, 297, and n. (6), Assizes ; at Stafford Lent Assizes, 1810, by Wood, B.; at Lewes Lent Assizes, 1839, by Lord Abinger, C. B., ante, p. 509, n. ( (d) Circular, dated 3rd June, 1840. 3u 514 Of the Court to which the which had been heretofore punishable with transpor- tation for life, or even capitally, has been reduced so as to subject them to a punishment under transpor- tation for life. Offences of a The circular above mentioned further recommends, surrecTionary" tnat all offences of a political or insurrectionary cha- character. racter, whether felonies or misdemeanors, shall be re- Discretion in turned for trial to the Assizes ; and of the other cases, J^ seJ which might be returned either to the Assizes or Quar- ter Sessions, it contains also a general exception of those which involve any serious difficulties in the prosecu- tion or proof, with respect to which the magistrate is left a certain discretion, a discretion which appears es- sential to his office, and in the exercise of which he will be governed by his knowledge of the peculiar character of the case, collected from the course of the investigation, in its initiatory stage before himself, as, in many cases, although the scale of punishment is reduced, the difficulty of proof remains. It must oc- casionally occur, that cases not falling within the class of those to which the higher grade of punishment is allotted may, notwithstanding, from their character or circumstances, be the subject of serious difficulty in Circumstances their prosecution, from the complicated nature of the which make proof, or of the law connected with it, and in which, for fo?sessTo P ns Pe effectuating the purposes of justice, that aid may be required, which is to be had only at the Assizes, or in the superior courts. Upon this subject it has been observed by the author of a very useful work recently published upon the Office of Justices of the Peace in Ireland, that although in Ireland there is a bar- rister to assist the justices on the bench, yet the non-attendance of barristers at sessions, makes it both inconvenient to prosecutors and unfair to the accused, and therefore, unsatisfactory to the character of the ad- Proceedings should be returned. 515 ministration of public justice, to try prisoners where they cannot exercise the right allowed them by law, of making full defence by counsel, unless at an expense beyond the means of any but the higher classes of society ; and although the attorneys practising at ses- sions form as intelligent and experienced a class as any in the country, yet, the multiplicity and nature of their avocations necessarily disable them from per- forming this duty in a very satisfactory manner(). This observation has reference to the mischief that may result from an acquittal or conviction occasioned by want of skill, or of due preparation, in cases which demand both ; it is also to be remembered, in respect to cases of legal difficulty, that, however competent the Assistant Barrister may be for the decisions of ordi- nary questions, yet, he has not in any case the advan- tage of a legal colleague with whom to confer, nor the power of reserving a question of difficulty for the de- cision of a higher tribunal, it having been decided, that the Court of Queen's Bench will not take cogni- zance of a special case reserved on an indictment at sessions(6). If the magistrates think the case proper for the May be re- sessions, it is usual to send it for trial to the next ses- sions for the district. But it may be returned to the sessions of any other district in the county, if in the judgment of the magistrates it be expedient, e. g. if the sessions for such other district be held earlier, or if it be more convenient to the parties, both prosecutor and defendant, and their witnesses; as the distribution of counties into districts relates to the civil bill jurisdic- tion, and does not affect the criminal jurisdiction of the (a) Smythe, 31. (b) R. v. Ink. of Salop, 13 East, 95; Dick. Sess. 836. 516 Of the Court to which the Proceedings under backed warrants how to be returned. Felonies com- mitted out of the county. Other offences. On the high seas. Quarter Sessions(a). But the magistrates will not in general change the district at the request, or merely for the convenience, of one of the parties. Where a party is arrested for an offence committed in a different county, under warrant issued in such latter county, and backed in the county in which he is arrested, we have seen, that in case of bail the exami- nations and recognizances, &c., are to be transmitted to the county where the trial is to be had ; or that the party, if not bailed, shall be carried before a justice of the county where the offence was committed, to be there dealt with according to law(6). So where the arrest takes place for an offence committed in a different part of the kingdom, under a warrant issued in that part of the kingdom, and backed in the county in which the arrest takes place(c). The last mentioned enactments respect arrests under backed warrants. But we have seen that ma- gistrates have also original jurisdiction in cases of fe- lony committed in a different county, or a different part of the kingdom, or of a crime committed in a foreign country, where the offender is arrested and brought before him in his county (d)\ and in various other in- stances before enumerated(e), the magistrate is autho- rized to deal with the offence as if committed in his proper county. For offences committed upon the high seas, the examinations and recognizances, &c., are to be returned in the usual manner to the Crown Office for trial at the next Sessions of Oyer and Terminer and Gaol Delivery, (a) 36 Geo. III. c. 25, s. 1 ; 6 & 7 Will. IV. c. 75, s. 53. (i) 44, Geo. III. c. 92, ante, 391. (c) 45 Geo. III. c. 92, ante, 392. (d) Ante, 53, 51, 396. (e) Ante, p. 5261, 397, n. (). Proceedings should be returned. 517 to be held for the jurisdiction of the Admiralty of Ire- land^). The Statute 15 & 16 Geo. III. c. 21, (the White- Whiteboy Act. boy Act,) s. 29, also contains an enactment upon this subject, respecting offences against that Act(). Under When tobe re- St. 60 Geo. III. and 1 Geo. IV. c. 14, proceedings relat- exclusive juris- ing to offences in jurisdictions, not being counties, may \ c n t - ns co t n ^ " be returned to the adjoining county(c) ; and Statute 6 at large. Geo. IV c. 51, which allows offences committed in coun- ties of cities and towns corporate to be tried in the ad- joining county, contains a provision in sect. 9, as to returning the informations and recognizances in such cases(d). The penalty on the magistrate for not duly return- (a) R. v. Muilman, Park, 248, 253 ; ante, 54, 57, 396. Offences in the jurisdiction of the Admiralty are generally tried at the assizes for the county where the informations, &c., are taken, before commissioners specially appointed under the Great Seal, among whom the Judge of Assize is included; see Stats. 11, 12, 13, Jac. 1, c. 2, and 23 & 24 Geo. HI. c. 14. In the case of R. v. Patrick M' Cahy and others, which was tried before an Admiralty commission at Dundalk, (Spring Assizes, 1841), the informations, &c. were returned to the Crown Office, in the manner above mentioned. The condition of the recognizance taken in this case was " To appear on the first day of the next Assizes to be held at Dundalk, in and for said county, or at any Court of Admiralty or Session of Oyer and Terminer and Gaol Delivery to be held for the jurisdiction of the Admi- ralty of Ireland, or when and where required to appear by the Attorney General or otherwise upon the part of the Crown." (&) Ante, pp. 52, 396. (c) 60 Geo. III. and 1 Geo. IV. c. 14. Ante, p. 486, n. (a). (c?) By this Stat. (6 Geo. IV. c. 51, s. 3) it is lawful for any pro- Trial of of- secutor to prefer a bill of indictment for any offence committed within a fences in coun- county of a city or town or town corporate to the jury of the county next tiesof cities, &c. adjoining. Sects. 4 and 6 empower Courts of Oyer and Terminer and j county, judges of B. R. to proceed as therein directed preparatory to the trial of such offenders in the adjoining county. By s. 7, every recognizance which shall be entered into for the prosecution of any person or persons for any offence or offences committed or alleged to be committed within any county of a city, county of a town, or town corporate, or within any 518 Returning Informations) fyc. ing the informations, &c., and the mode of proving them at the trial, have been already noticed (a). liberty or franchise, and every recognizance for the appearance as well of witnesses to give evidence upon any bill'of indictment to be preferred, as for the appearance of any person or persons to answer for the same, shall be forfeited, (but as to estreating, see s. 8), if the prosecutor shall, ten days previous to the holding of the next Court of Oyer and Terminer or Gaol Delivery in the next adjoining county, give notice to the person bound in such recognizance, to give evidence upon such bill of indictment or to answer as aforesaid, of the intention to prefer such indictment in the next adjoining or other county, and the party bound shall not appear, prosecute, or give, or be ready to give evidence, at such court. By s. 8, in case the person or persons who shall enter into such recognizance or recognizances cannot be found, and such notice be left at his, her, or their last place of abode ten days previous to the holding such sessions as aforesaid, the same shall be as good and effectual as if the same were left with the person or persons entering into such recognizance. By s. 9, all and every person and persons.' before whom any such recognizance or recognizances shall be entered into, by whom any examination or deposition Returning in- shall be taken touching any such offence or offences as aforesaid shall and formations, &c. they are hereby required to return the same to the next Court of Oyer and in such cases. Terminer and General Gaol Delivery for such next adjoining county, upon such prosecutor or prosecutors leaving, at the dwelling-house or other place of abode of the person or persons before whom such recognizance shall be entered into, or by whom such examination or deposition shall be taken, ten days before the holding of any Sessions of Oyer and Terminer or General Gaol Delivery, for such next adjoining county, notice in writing of his, her, or their intention to prosecute such indictment at such last mentioned Sessions of Oyer and Terminer and General Gaol Delivery for any offence or offences committed within any county of a city or county of a town or town corpo- rate 5 and after the delivery as aforesaid of any of the said notices, it shall not be lawful for any person or persons to prefer any bill of indictment for any offence mentioned in the said recognizances or any of them, at any Session of Oyer and Terminer for such county of a city, &c. S. 13 provides, that the Act shall not enable any person so to prefer an indict- ment or remove the proceedings to the adjoining county, except the person preferring such indictment, or applying for such removal, (see sects. 4 and 6), shall enter into a recognizance before the Court, where such bill shall be Recognizance for costs. preferred, or the court or magistrate to whom such application shall be (a) Ante, p. 306, and p. 347. Surety of the Peace, or Good Behaviour. 519 CHAPTER XVIII. OF SURETY OF THE PEACE AND GOOD BEHAVIOUR. TAKING sureties for the peace, and good behaviour, Dutyprescnbed is one of the duties prescribed to Justices of the Peace y by the commission(a). Surety of the peace is defined Suretyofthe to be the acknowledging a recognizance or bond to the peace. King, taken by a competent judge of record for keep- of goodbeha- ing the peace. Surety for the good behaviour is simi- Vlour * lar to surety of the peace, but is somewhat more ex- tensive, and includes surety of the peace, a person that is bound to his good behaviour being thereby also bound to keep the peace(^). The proceedings in taking the recognizances are in both cases the same, the only difference between them being the circumstances which will be a sufficient ground for requiring them, or for which they may be forfeited respectively(c). Surety In Chancery, of the peace may be had by process of the peace issuing ^t 6 Quarter ' out of Chancery or the Queen's Bench ; or by exhibiting Sessions. articles of the peace in the Court of Queen's Bench, or at Quarter Sessions ; but the proceedings in these cases do not come within the object of this treatise (d). Surety of the peace may also be taken by Justices of By Justices of the Peace, either of their own authority in the first in- the Peace * made, as the case may be, in the sum of 40, conditioned to pay the extra costs attending the prosecuting such offence in such next adjoining county, provided the Court before whom the trial shall be had, shall be of opinion that such person ought to pay the same. (a) Ante, p. 10. (6) Dalt. c. 1 16, 122. (c) Post, pp. 520, 522. (d) For this subject the reader may refer to Bac. Abr. tits. " Surety of the Peace," E. & F. j 5 Burn. pp. 896, et seq. j 1 Hawk. c. 60, s. 8 j Dick, Sess. 553, et seq. 520 Surety oflhe Peace. Surety of the peace for what cause. Causes for be required by by a third party stance, or acting ministerially under the direction of a superior court. It is proposed, therefore, here to con- sider,!. The cases in which surety may be granted, 1, to keep the peace; or, 2, to be of good behaviour; and 3, between what parties. II. The preparatory proceedings. III. The proceedings when taking the recognizance ; 1, what defence may be allowed ; 2, the recognizance, and manner of taking, and of certifying and returning it. IV. Of commitment in default of sureties, and of the discharge or protection of the party from arrest. V. Of the writ of supplicavit or mandamus to the justice. j. The causes for which surety of the peace may be -, T required have been thus enumerated ; any Justice of the Peace may, at his discretion, bind all those to the peace who in his presence make any affray, or threaten to kill or beat any person, or contend together with hot words, or go about with unusual weapons, or attendants, to the terror of the people ; such as are known to be com- mon barrators, quarrellers, and breakers of the peace ; all who are brought before him by a constable for a breach of the peace in presence of the constable(a), and all such as, having before been bound to keep the peace, shall have forfeited their recognizances(6). And whenever a person has just cause to fear that another will burn his house, or do him a corporal hurt, as by killing or beating him, or that he will induce others to do him some mischief, he may demand surety of the peace against such person; and every Justice of the Peace is bound to grant it upon the complainant's giving him satisfaction upon oath that he is actually under such fear, and that he has just cause to be so, by reason of the other having threatened to beat him, or lain in wait for that purpose, and that he does not (a) See the cases in which an arrest may be thus made, ante, p. 124, et seq. (6) 1 Hawk. c. 60, s. 1. Surety of the Peace. 52 1 require it out of malice, or for vexation. It seems also that being threatened with imprisonment is a sufficient cause to demand surety of the peace(a). Demanding surety of the peace in this way is called " swearing the peace" against another^). The fear of injury must be of an injury to the per- injury to son in whose behalf surety of the peace is required, or whom - in consequence of a threat to hurt his wife or child(c). Fear that an injury will be done to his servants, or cattle, or goods, is not a sufficient ground for granting surety of the peace(c?) ; for as to his goods no surety of the peace ought to be granted, as the recognizance is only that the party bound should keep the peace towards the king and all his liege people ; and in the case of his servant, the servant's own oath before the justice is necessary (e). Surety of the peace, also, ought not to be granted Mustbefora . present or but where there is a fear of some present or future future injury. danger, and not merely for a battery, trespass, or breach of the peace that is past, without fear of present or future danger ; but in such cases the party wronged may punish the offender by indictment, and the justice, if he sees cause, may bind him over to answer the in- dictmentC/ 1 ), or may punish him summarily if th case (a) 1 Hawk. c. 60, s. 6, 7. (&) 4 Bl. Com. c. 18, p, 252. (c)Dalt.c. 116. (d) Lamb, 83 ; Dalt. c. 116 ; but it seems in such case, a special writ out of Chancery, directed to the sheriff, is obtainable by the party com- plaining ; Fitzherbert, quoted by Dalt. ubi sup. (e) 5 Burn. 897. (/) Dalt. c. 1 1 ; 5 Burn, 898. When a person has been convicted of an assault accompanied with circumstances of aggravation, such as violence towards other parties, &c., justices sometimes, in addition to the punish- ment awarded for the assault as proved before them, require the defendant to find sureties for his future good behaviour, without having taken any 3x 522 Surety for good Behaviour. When it should fo e fit for summary adjudication. And if a man requires be refused. , . . the surety because he is at variance, or in suit with his neighbour, it shall not be granted; and if the justice think, that surety is demanded merely of malice and for vexation only, without any just cause or fear, it seems he may safely deny it(a). The discretion of the justice in refusing or granting surety of the peace; will be influ- enced by the length of time which the party has suffered Application to elapse before applying for it, unless the cause of time. delay be satisfactorily explained ; and it has been said that surety of the peace ought to be applied for soon after the cause of the fear on account of which it is sought, for the suffering of much time to pass before it is craved shows that the party craving it has not been under any great fear(&). Surety for good 2. Conservators of the peace at common law had not, behaviour. . ' , - it would seem, any power of binding to good behaviour further than as it had a relation to the peace, and not as it is contradistinguished from it. This power as exercised by justices at the present day appears to depend solely on the words of their commission and Stat. 34 Edw. III. c. 1, which enumerates, among the duties of justices, that they shall have power " to take of all those that be not of good fame, where they shall be found, sufficient surety and mainprize of their good behaviour towards the king and his people"(c). separate or distinct information, or complaint, as to such order to find sure- ties, which thus, in fact, becomes a superadded punishment for the case of assault; such a mode of proceeding is, it would seem, clearly illegal, Stone's P. S. 230. Surety may thus be required after conviction in the supe- rior courts, under Stat. 2 & 3 Viet. c. 77, s. 6. (a)Dalt.c. 116. (6) Dennis v. Lane, 6 Mod. 132 ; Bar. Abr. surety of the peace, D. (c) 5 Burn. 906, 907. It has been observed, that this Statute seems to have had in view chiefly the disorders to which the country was liable, at the time when it was passed, from great numbers of disbanded soldiers. And Surety for good Behaviour. 523 and although it has been doubted whether the au- For what cause, thority thus given was intended to extend beyond sub- jects connected with the peace(a) it seems now settled, that a man may be bound to his good behaviour for many causes of scandal which give him a bad fame, as being contrary to good manners only ; as for haunting bawdy houses(6) with women of bad fame ; and for keeping bad women in his own house ; or for speaking words of contempt of an inferior magistrate, as a justice of the peace, or mayor of a town, &c., though he be not then in the actual execution of his office, or of an inferior officer of justice, as a constable or such like, being in the actual execution of his office(c). And In a great de- as no precise rules are laid down for the direction f of the magistrate in this respect, it seems he has a discretionary power to take such surety of all those whom he shall have just cause to suspect to be dangerous, quarrelsome, or scandalous, or keeping suspicious company ; or who are generally suspected of being robbers, &c. ; all common drunkards, and all other persons whose misbehaviour may reasonably be intended to bring them within the meaning of the Statute, as accordingly in the cases which first arose upon it, it was understood that it should be intended of " all things that concern the peace, but not in mis- doing of other things which touch not the peace." See 5 Burn. 907, where the opinion of various writers on this subject are collected and com- pared. But it is observed by Serjeant Hawkins, that this seems too narrow a construction, since the above mentioned expression of evil fame, in com- mon understanding, as properly includes persons of scandalous behaviour in other respects, as those who by their quarrelsome behaviour give just suspicion of their readiness to break the peace. (a) See note (c) in last page, and note (6) p. 524. (6) But being merely found in a bawdy house is not sufficient cause, Eliz. Claxtons case, 12 Mod. 566. (c) 1 Hawk. c. 60, s. 2, that is, it would seem, if they have a tendency to deter him from the execution of his duty, see post, p. 526. 5 24 Surety for good Behaviour. persons of evil fame, who, being described by an ex- pression of great latitude, seem in a great measure to be left to the judgment of the magistrate(a). It has Caution to Jus- been, however, justly observed, that in the exercise of Peace. this discretion, the magistrate cannot be too cautious ; and it has been suggested that it may not be safe to rely upon all the instances given of the exercise of this authority, as it is doubtful how far the cases upon which so large a construction of the Statute has been contended for will support the conclusion drawn from them(&). For what it Beside the cases already enumerated, in which may be re- _ _ . . . . . . ... _ quired. surety of the peace may be required, and which will be also sufficient grounds for binding to good behaviour(c), () 1 Hawk. c. 60, s. 4 ; 2 Ventr. 24. (6) See 5 Burn. 912, etseq. .The grounds stated for this opinion are, that all the earlier decisions confined the interpretation of the Statute to offences against the peace, the first decision introducing a larger con- struction being in 13 Hen. VII. when it was adjudged that a man might be arrested for his good behaviour for frequenting a suspected bawdy house ; that the subsequent authorities, in favour of the larger construc- tion, have grown out of this decision ; that it is doubtful if this case, which was an action for false imprisonment, will bear the weight which authors have laid on it, as whether a justice of peace could take cognizance of the frequenting of a bawdy house was no part of the dispute, the ar- rest being without a warrant, by a constable, ex ojficio, as a conservator of the peace, and the question being, not whether a constable could require surety for the good behaviour as distinguished from surety of the peace, but whether in such a case he could arrest at all or not ; that many of the in- stances were established on decisions in the King's Bench, and that it by no means follows, that what Judges of the King's Bench can do, Justices of the Peace can do ; that decisions on this subject are contradictory, (see the sixth reason), and that at any rate it may not be safe to rely on them, as two cases may never occur alike in all circumstances. See Burn. ubi sup. (c) See Dalt. 122, and the instances enumerated, ibid. c. 124 ; 5 Burn. 911, andante, p. 520, &c. Surety for good Behaviour. 525 and the instances given by Serjt. Hawkins, already men- For what il i , v m i * i i i - ma y b e requir- tioned(a), surety of good behaviour may be required in e j. the following instances : for accusing justices of igno- rance^) ; exciting discontents in the minds of the peo- ple^) ; from a woman offering money to procure medi- cines to destroy a child of which she is pregnant(d) ; for obstructing another in his necessary way to a court of jus- tice^) ; suborning witnesses(/) ; being guilty of forcible entry or detainer^) ; from such as are common quarrel- lers, or lie in wait to rob, and put passengers in fear, or are suspected to be robbers ; from such as are like to commit homicide or other grievance to the king's sub- jects in their bodies, and such as practise poisoning(^) ; from such as outrageously misbehave themselves in the presence of a justice ; from nightwalkers, eavesdroppers, suspected persons who live idly and yet fare well, having nothing whereon to live, unless upon examina- tion they shall give a good account of their living(z); from common gamesters, especially if they have not whereon to live ; from such as raise hue and cry without any cause ; from the putative father of a bastard child, (a) Ante,pj>. 523, 4, and see the dictum of Holt, C. J., in R. v. Rogers, 1 Lord Rayra. 778 ; and 6 Mod. 125. (6) 1 Ventr. 16. (c) 2 Ventr. 24. (d) Cro. Eliz. 449 ; but procuring abortion is a felony by Stat, 10 Geo. IV. c. 34, ante, p. 402. (e) Lill. Reg. 649, cited 1 Hawk. c. 61, s. 4, in note. (/) Marsh, p. 11, pi. 30. ( care must be taken that > if in the averment f the facts this circumstance is only once stated, it be averred so as to govern all the facts stated ; for though if stated before the averment of either it will, in general, govern them, or if placed after may refer to them, yet if it be averred in the description of one it may not govern the other fact, and then the conviction will be bad for want of a material averment(c). Thus, where a conviction stated that the defendant, " without the consent of the owner, broke and entered his park, and then and there coursed," &c., and it was objected that it was not charged that the defendant coursed without the owner's consent, but only that he broke the park without it, the court (a) R. v. Silcot, 3 Mod. 281; see also R. v. Fuller, 1 Lord Raym. 509. (b) R. v. Somerton, 7 B. & C. 463, Hult, 38. (c) Hult, 39 ; and see the observation of Lord Tenterden, in R. v. Dames, 10 B. & C. 89. Description of the Offence. 569 held the absque consensu went to the whole (a) ; but when the statement in an indictment was, that the de- fendants " on, &c., did by night unlawfully enter divers closes in the occupation of E. C., and were then and there in the said closes armed with guns for the pur- pose of taking game there," it was held bad, as neither branch of the sentence stated all that was necessary to constitute the offence within the Statute ; the first stat- ing the entry into the closes by night, but not that the defendants were armed or entered for the purpose of taking game ; the second stating, that they were in the close armed for the purpose of destroying game, but not that they were there by night(). Words and matters of form are generally to be as Matters of form, strictly observed in informations and convictions as in indictments(c). There is, however, no rule that other words shall be employed in the conviction than such as are in ordinary use(d), and several technical phrases in Technical use in indictments are dispensed with in convictions ; words * thus, the act need not be charged to be against the peace of the King(e) ; neither is the omission of the word " unlawfully"(/), or " knowingly"(g) any objection, unless used in the Act as part of the description of the offence (A). There is no necessity for stating any public Statute ; stating a Sta- the justices are bound ex officio to notice it. But a tute * private Statute should be set out in its parts relating to (a) R. v. Drake, 2 Show, 489. (6) R. v. Davies, 10 B. & C. 89, by Lord Tenterden. (c) Per Cur., in ex parte Paine, 5 B. & C. 251 ; 7 D. & R. 678. (d) 1 Burn, 872. (e) R. v. Chandler, 1 Lord Raytn. 581, 583 ; see post. (f)R. v. Chipp, Str. 711. O) R. v. Marsh, 4 D. & R. 260; 2 B. & C. 717; 3 D. & R. M. C. 182. (A) 1 Burn, 872, see ante, p. 564. 4D 570 Of the Information. Personal chat- When parti- the oflfence(a). But if the information undertakes to set out the Statute by its title or preamble, and does so incorrectly, it will, it seems, vitiate the conviction(i). When, however, an Act was described as having been passed in the 25th year of the King's reign, when in fact the parliament in which the Act was passed was continued by prorogation from the 24th to the 25th of the reign, it was held not a misdescription(c). Personal chattels should be described specifically by the names usually appropriated to them(d). Thus a conviction for hawking goods without a license must specify the goods that were sold(e). But when the de- scription of the goods is in no degree material to the of- fence they need not be specified, at least in an order(/). Where the Statute specifies the thing particularly it ou S ht to be so described in the information; thus where the Act made it penal for any unqualified per- son to keep or use any greyhound, setting dog, hay, lurcher, tunnel, or any other engine to kill and destroy game, it was insufficient to state, that the defendant used a dog to kill and destroy game(g) ; a certain dog called a greyhound, or called a lurcher(A), or a certain (a) 1 Burn, 872 ; so against the form of the Statute, is a sufficient conclusion, see post. (ft) Hult, 42 ; see 2 Hawk. c. 25, s. 104. It was so held with respect to an indictment, in R. v. Eiers, 1 Ad. & El. 329 ; but see Chance v. Adams, Ld. Raym. 77. (c) R. v. Windsor, 2 Chit. 513. (d) 1 Burn, 873. (e) R. v. Selway, 2 Chit. Rep. 522 ; and see Chance v. Adams, 1 Lord Raym. 77 ; R. v. Gibbs, 1 Str. 497. (/) R. v. Rabbits, 6 D. & R. 341 ; 3 D. & R. M. C. 269, which was an order and adjudication, under 11 Geo. II. c. 19, s, 4, Eng. for fraudulently removing goods not exceeding 50, to avoid a distress, and they were stated generally as goods and chattels not exceeding 50. (g) Reason v. Lisle, Com. 576, under Stat. 5 Anne, c. 14, s. 4, Eng. (ft) R. v. Hartley, Cald. 175 ; R. v. Earnshaw, 15 Ea. 456. Description of the Offence. 571 engine called a gun(a), to destroy game, have, however, been held sufficient, without stating directly that the dog was a greyhound or the engine a gun. When the offence consists in words or writing a general statement is not sufficient, but the words or writing should be set out(#) ; thus in a conviction for profane swearing a Words and statement, that the defendant did profanely swear 50 * oaths, and profanely swear 160 curses is bad, for not setting out the oaths and curses that the court might judge whether they were profane oaths or not(c) ; but it is sufficient if it be for swearing 150 oaths in these words, viz., specifying the words once without repeat- ing each 150 times(d). So where the Act made all Agreements, agreements, in writing or not, by any journeymen manu- facturers, for controlling any person carrying on any manufacture in the conduct thereof, illegal and penal ; a conviction was quashed which alleged generally, that the defendant entered into an agreement for the pur- pose of controlling A. B., &c., without setting out the agreement(e) ; and it may be proper to state even more than the agreement, as, if it were an agreement to meet in a club for certain objects, and if there was a rule of the club that the journeymen should meet there for the purpose of controlling their masters in the trade, (a) R. v. Pearce, 6 T. R. 177. (&) Per Lord Ellenborough, R. v. Nield, 6 Ea. 424. (c) R. v. Sparling, Str. 497 ; R. v. Popplewell, Str. 686 ; R. v. Chaveney, 2 Lord Raym. 1368. 60 R. v. Roberts, 1 Str. 603 ; Pal. 102. So an indictment charging the defendant with abusing and hindering in the execution of his office a jus- tice, " with divers threatening, scandalous, and contemptuous words," was held bad for want of setting out the words, R. v* How, Str. 689. (e) R. v. Nield, 6 Ea. 417 ; under Stat. 39 & 40 Geo. III. Eng., which gave a summary form in which the offence was required to be stated. So in an in- dictment for sending a threatening letter, the letter must be set out, that the court may see if it be one of the kind prohibited ; R. v. Lloyd, Ea. P. C. 1 123 ; or if the indictment be for not executing a warrant, the warrant should be set out; R. v. Burrough, 1 Ventr. 305. 572 Of the Information. the conviction ought to go on and incorporate that rule with the object of the meeting, to bring the agreement How to be set w ithin the Statute(a). In stating words or agreements it is not proper to introduce the statements with the phrase " to the effect following," or " in substance as follows," because these do not imply, that what is set out was the specific language used(6), though to the tenor following is sufficient(c) ; but " in these words," or " in the words and figures following," or " as fol- lows," are the usual forms. Sums and Where anything depends upon sums or quantities quantities. " * . . they must be specmed(a). 1 hus a conviction on a 1 urn- pike Act, for refusing to account and pay over the money to the collector, was quashed for not specifying a particular sum, or the time when the money was charged to be received,. so as to enable the defendant to defend himself upon a second charge(e). So a con- viction for taking and destroying " divers fish," without stating a number, was held bad(/). And this is more especially necessary when the penalty is proportioned to the damage committed ; thus when the Act provided, that persons convicted of cutting trees, &c., should for- feitsuch recompense as the justice shall think fit, a con- viction for cutting down " divers trees" was held bad, as the number was the standard to ascertain the recom- (a) By Lord Ellenborough, in R. v. Neild, uU sup. (6) See 3 Burn, 434, and Wright v. Clements, 3 B. & A. 503. (c) R. v. Bean, Lord Raym. 414. 00 Pal. 113. (e) R. v. Catherell, Str. 900. So an information under 18 Hen. VI. c. 7, s. 17, stating, that the defendant sold so many pipes of wine, and none of them did contain, as they ought, 126 gallons, and that though they were so defective, he had not defalked in price, &c. was held bad, as it did not set down how much in each pipe was wanting, so that a rateable defalcation might be made ; R. v. Van Hanbeck, 2 Leon. 38. (/) R. v.Marshall, 2 Keb. 794, under 5 Geo. III. c. 11, Eng. Description of the Offence. 573 pense(a). It has been held sufficient, however, to state quantities after a viz., as a certain quantity, to wit 15 bushels(6) ; and although it may be necessary to specify the number, quantity, and value of chattels, &c., it does not appear necessary to prove the precise num- ber and quantity stated(c). 4. From the examples already given it will be seen, When descrip- , ! . ill... .. . tion in the that although the description in the conviction must words of the be at least as particular as that used by the Act, in Statute is suffi- general it suffices to state the offence in the words of the Statute (d) ; and in all cases when the quality of the offence is not of a complicated nature, but con- sists of a simple fact it is sufficient so to do(e). And a slight variation from the precise words is not fatal, if those used be such as to bring the case within the plain meaning of the Act(/) ; thus a conviction for attend- ing a meeting for the purpose of carrying on a com- bination for the purpose of obtaining an advance of wages, was supported, though the words of the Sta- tute were, " a combination to obtain," &c.(#) It is, how- when the de- ever, necessary in several instances to go beyond the words scri P tion should rici iii rr> be more full of the statute, particularly when the offence is included than the sta- under a general description in the Statute(7j). Thus (a) R. v. Burnaby, Lord Raym. 900 ; 1 Salk. 181 ; under Stat. 43 Eliz. c. 7, Eng. ; see now Stat. 9 Geo. IV. c. 56, App. O) R. v. Arnold, 5 T. R. 353. (c) 1 Burn, 873 ; see post. (d) Per Holt, C. J., in R. v. Speed, 1 Lord Raymond, 583 ; and see Davis v. Nest, 6 C. & P. 167. () Pal. 108 ; by Buller, J., in R. v. James, Cald. 458. (/) Per Bayley, J., in R. v. Ridgway, 5 B. & A. 527 ; 1 D. & R. 123. (g) R. v. Ridgway, ubi sup. But a different doctrine was held by Lord Ellenborough, in R. v. Nield, 6 Ea. 417, where he said, that " for the pur- pose of controlling" was not synonymous with the words of the Act, " for controlling ;" but, for the authority of this doctrine, see the observations of Abbot, C. J., in the principal case referred to. (A) By Buller, J., in R. v. James, ubi sup. ; or when the words point not to matter of fact but to intention ; by Burton, J., in R. v. Drumgoole, 1 J. & S. 190. Mr. Paley lays down a general *yle on this subject, which tute. 574 Of the Information. Not enough to state the legal result of facts but the facts must appear. When expla- natory words necessary. when the Act uses terms denoting only the legal re- sult of certain facts, the facts themselves must be spe- cified in describing the offence, that the Court may judge whether they amount in law to the offence(a). The con- victions for profane swearing() and illegal agreements(c), in which the oaths or agreements must be set out, illus- trate this rule. So a conviction under an Act for punish- ing certain robberies not amounting to felony, charging that the defendant " did on, &c., rob a certain orchard of J. W., &c. the same robbery not being felony by the laws of this realm, contrary to the form, &c.," was held bad, for it ought to have appeared of what and how the orchard was robbed, that the court might judge whether it were a robbery within the meaning of the Act(c?). So when circumstances explanatory of the words of the Statute a^re necessary, in order to bring the case within the Statute, these must be distinctly averred(e). Thus when the Act made it penal for any person to be found carrying any brandy, subject to for- feiture under that, or any Act relating to the customs ; a conviction for being " found carrying seven gallons of foreign brandy in two casks, called half ankers, then and there subject and liable to forfeiture, the said of- seems sufficiently correct, viz. ; that when the Act, in describing the offence, makes use of general terms which embrace a variety of circumstances, it is not enough to follow, in the conviction, the words of the Act, but it is ne- cessary to state what particular act prohibited has been committed, Pal. 106. (a) Pal. 101. (6) For what is a profane oath is matter of law, and ought not to be left to the judgment of the witness, per Cur. in R. v. Sparling, Str. 497, ante, p. 571. (c) R. v. Nield, 6 Ea, 417, ante, p. 571. (d) R. v. Chapman, cited by Denison, J., in R. v. Jarvis, 1 Burr, 154 ; 1 Ea. 647, n.. andsee the conviction set out, Pal. 102, n. (c.) under 48 Eliz. c. 7, Eng., rep. (e) Hult, 33, see as to agreements, ante, p. 571. Description of the Offence. fence being by him the said A. committed against the Act framed for the prevention of smuggling," was held bad for not stating the circumstances under which the brandy was liable to forfeiture (a). So when the Act made it penal to insure any lottery ticket, or "under any pretence, device, form, denomination, or description whatever, to promise or agree to pay any sum, or deliver any goods, or to do or forbear anything for the benefit of any person, on any event or contingency, relative or applicable to the drawing of any such ticket;" a convic- tion was quashed charging, that the defendant, "did un- der a certain pretence, or device, promise and agree to pay a sum of money on the event or contingency relative and applicable to the drawing of a certain ticket," &c. ; but not stating the pretence, or any other particulars^). Sometimes a circumstance plainly implied, though not Circumstances * J *u 4 * f ' implied by the expressly contained in the Act, forms a necessary in- statute, gredient in the offence, and must be stated ; as the dis- sent of the owner in the instance already mentioned, of taking fish in private fisheries(c). So a conviction un- der the Pilot Act, s. 70, inflicting a penalty on a pilot in certain cases continuing to act " after a pilot duly licensed, &c., shall have offered to take charge of such ship," must state the offer to have been made to the de- fendant, or in his presence(d). (a) Ex parte Smith, 2 D. & R. M. C. 126; 3 D. & R. 464; under Stat. 45 Geo. III. c. 121, s. 7. So a conviction against the defendant as a rogue and a vagabond, under the rep. Eng. St. 17 Geo. II. c. 5, s. 2, " for plavingata certain unlawful game with bowls," was quashed, as playing at bowls is not necessarily unlawful, and the circumstances making it so should have been stated, R. v. Clark, Cowp. 35. (b)R. v. James, Cald. 458 ; Pal. 107 ; under Stat. 22 Geo. III. c. 47, s. 13. (c) R. v. Corden, 4 Burr. 2279 ; R. v. Daman, 2 B. & Al. 378 ; Pal. 108 ; ante, pp. 549, 562. (d) R. v. Chaney, 6 Dowl. 281, 290 ; under 6 Geo. IV. c. 125. So convictions under St. 5 Anne, c. 14, for keeping a gun, or engine for de- 576 Of the Information. Of stating ex- 5. The rule laid down with respect to stating excep- or pro " tions or provisoes is, that all circumstances of exception and modification, whether applying to the offence or to the person, which are either originally introduced or in- corporated by reference with the enacting clause, must be distinctly enumerated and negatived, but that such matters of excuse as are given by other distinct clauses or provisoes need not be specifically set out or nega- Exception in tived(a). A few examples will be useful to explain this same clause. ^^ Statute gg GeQf jjj Q 6Q> g< ^ made u penal for any person " to place or pack for sale in or on any card except the pattern card, any metal buttons having any word," &c., indicating the quality, &c. ; a conviction for " unlawfully placing on certain cards divers metal buttons," &c. ; was bad as it did not negative that the When incorpo- cards were pattern cards(). Statute 1 Jac. I. c. 22, ference! ' s * 5} Eng., enacted that no person should carry on the trade of a tanner except under certain qualifications therein mentioned, and by sec. 7 that no person should buy rough hides but such persons as by virtue of that Act might lawfully use the trade of a tanner; it was held, that an information under sec. 7 must negative specifically that the defendant was within any of the exceptions in sec. 5, and a conviction merely stating that the defendant was not a person who by virtue of that Act might use the trade of a tanner, was quash- ed(c). So when by Statute 22 & 23 Car. II. c. 25, all stroking game were bad ; for though the words of the Act prohibited keeping any engine to destroy game, the construction confined the offence of keep- ing to such things as could be kept for no other purpose, and a gun might be kept for a lawful purpose, R. v. Gardner, Andr. 55 ; 2 Str. 1098 ; and see Avery v. Honle, Cowp. 825 ; Wingfald v. Stafford, 1 Wils. 315; see Pal. 100. (a) Pal. 118 j but see 2 Hawk, c. 25fs. 113. (6) R. v. Jukes, 8 T. R. 542 ; for decisions as to indictments, see cases re- ferred to, Arch. 49. (c) R. v. Pratten, 6 T. R. 559. Description of the Offence. 577 persons not having lands, &c., were declared to be per- sons by the laws of this realm not allowed to keep dogs, &c., and Statute 5 Anne, c. 14, s. 4, inflicted a penalty on any person not qualified by the laws of the realm, who should do certain acts, a conviction under the latter, containing only a general assertion, that the defendant was not qualified by the laws, &c., was held bad for not negativing the qualifications in the former Act(a). It is not, however, necessary to negative a mere constructive what negative qualification. Thus, in a conviction under St. 5 Anne, sufficient c. 14, above mentioned, it was held unnecessary to nega- tive the defendant's being lord of a manor, as that is only an inferred qualification and not expressed either in this Act or Statute 22 & 23 Car. IL(ft). It is also sufficient if the exception is so far negatived as to show that the defendant does not come within it, and it is not neces- sary to negative every term of the exception. Thus, when an Act gave a power to seize any vessel having on board casks of a certain description, unless the said casks were really necessary for the use of the vessel or were part of its cargo and included in its regular official documents, a conviction stating that a vessel had such casks, the same " not being really necessary for the use of the vessel nor included in its regular official documents," was held sufficient without expressly ne- gativing their being part of the cargo, for if they were part of the cargo they must have been included in the regular official documents(c). So it is unnecessary tone- Exceptions in gative exceptions or qualifications occurring in a clause ano * her clauM or Statute not incorporated or referred to; thus, in a con- Co) R. v. Marriott, 1 Str. 66 ; R. v. Hill, 2 Lord Raym. 1415 ; R. v. Earnshaw, 15 Ea. 456 ; R. v. Jarvis, 1 Burr. 148 ; the same principle is illus- trated by R. v. Clark, Cowp. 35, ante, p. 575, n. (a). (b) R. v. Pickles, cited in R. v. Jarvis, 1 Burr. 150, Pal. 125. (e) R. v. Pain, 5 B. & C. 251 ; 3 D. & R. M. C. 516. 4 E 578 Of the Information. Unnecessary to viction for keeping an alehouse without a license, under a visoes. Statute which contained a proviso, exempting persons who had been convicted under a former Act, it was held unnecessary to aver that the defendant had not been proceeded against thereunder, as that was only matter of defence(a). So when Stat. 22 Car. II. c. 1, prohibited meetings at a conventicle under a penalty, and by Stat. 1 & 2 Will. III. c. 18, persons and meetings complying with certain regulations were relieved from these penalties, in a conviction under the former Act, it was admitted that the exception in the latter need not be negatived (b). So when 10 Geo. II. c. 28, made per- sons acting plays without a patent or license from the Chamberlain subject to a penalty ; but by 28 Geo. II. c. 30, justices at sessions were allowed to grant licenses for acting within their .jurisdiction ; a conviction for acting without a patent or license from the Chamberlain was held good, and that it was for the defendant to pro- duce a license from the justices by way of defence (c). So a conviction on 9 Geo. II. c. 23, s. 1, for retailing gin without a license was held to be good, without an averment that it was not sold to be used in medicine, which was exempted from the penalty by a distinct Exceptions and proviso in sec. 12(o?). When an Act imposing penal- provisoes mcor- t j es con tains exceptions in the enacting clause and also porated by general words provisoes, and a subsequent Statute increases the penalty, of reference. j^ j ns t e ad of enumerating the exceptions describes them by general words of reference, " except as in the said recited Act is excepted," it is not necessary to nega- tive the provisoes of the former in a conviction under (a) R. v. Ford, I Str. 555; so in a conviction for forcible entry, under 15 Rich. II. c. 2, and 8 Hen. VI. c. 9, it need not be stated, that the de- fendant has not been three years in possession, (as excepted by sect. 7 of 8 Hen. VI.), R. v. Layton, 2 Salk. 352; see Cro. Jac. 199. (6) R. v. Hall, 1 T. R. 320. (c) R. v. Neville, 1 B. & Ad. 489. (d) R. v. Bryan, Str. 1101. Description of the Offence. 579 the latter Statute, for if it only increases the penalty it leaves the offence as it was before(a). The want of a full and accurate description of the Insufficient de- /r . . i scnption is not offence in the information is not remedied by the evi- cured. dence : for the defendant can be convicted only of the charge in the information, and the evidence is only to prove that, and not supply it (b). Neither will the con- fession of the accused help an insufficient description, for if the facts alleged in the information do not amount to a legal charge, his acknowledgment of them cannot make him subject to punishment(c). Nor is the omis- sion of a necessary averment cured by Stat. 3 Geo. IV. c. 23, s. 3, providing that convictions shall not be set aside for any defect of form(rf), or by a similar provi- sion in the particular Statute(e), as it is matter of substance. So also an insufficient charge is not helped by any general terms as lc unlawfully, fraudulently, con- trary to the form of the Statute," "duly," &c.(/), for (a) R. v. Ahern, 2 H. & Br. 362 ; Stat. 23 & 24 Geo. III. Ir. c. 17, s. 1, forbids the conveyance of letters, except in certain specified cases, by others than the Postmaster-General, his deputy, agent, or servant, and by a separate clause, s. 13, provides, that any person might convey letters to and from any place distant more than four miles from the Gen. Post Office, to and from the next and most convenient post town ; s. 32 imposes 5 penalty ; Stat. 53 Geo. III. c. 58, s. 2, enacts, that no person other than the Postmaster-Gene- ral, &c. or others acting under 23 & 24 Geo. III. shall convey any letters, other than as in the said recited Act is excepted, penalty 10. This was held not to incorporate the proviso in s. 13. 0) R. v. Baines, 2 Salk. 680; 2 Lord Raym. 1268; R. v. Wheat- man, Doug. 232; R. v. Daman, 1 Ch. Rep. 155; Pal. 91 ; R. v. James, Cald. 458. (c) R. v. Corden, 2 Burr. 2279; Pal. 110; R. v. Little, 1 Burr. 613. (d)R. v. Walsh, 3 Nev. & M. 632; 1 Ad. & Ell. 481. (e) R. v. Jukes, 8 T. R. 536 ; R. v. North, 6 D. & R. 143. (/) R. v. Juftes, ubi sup. ; R. v. Jarvis, 1 Burr. 148; and see Dyer, 363; Colborn v. Stockdale, 1 Str. 495, 496; Ex parte Atdridae, 4 D. &R. 86 ; R. \. Silcot, 3 Mod. 280 ; 2 Hawk. c. 25, s. 1 10, Curw. 611. 580 Information. Summons. these are legal inferences which must be supported by proper allegations. Conclusion. y^ j t j s not necessary to conclude against the peace of our Lord the King, the reason of this averment being necessary in indictments failing in the case of convic- tions (). As these proceedings are invariably by virtue of some particular Statute, it is proper to conclude against the form of the Statute ; but it is not necessary to allege more, and the title of the Act need not be set out(#). If, however, the conviction undertakes to set out the title of the Act it should be done correctly(c). When one Statute is connected with another, as when one creates the offence and the other defines the penalty, the information should conclude against the form of the 8tatutes(d). CHAPTER II. OF COMPELLING THE APPEARANCE OF PARTIES AND WITNESSES. THE magistrate having been apprized of the nature of the charge from the statement of the complainant, may dismiss it if it appears clearly that the case is not within his jurisdiction, or not preferred in proper time, or that the facts stated are insufficient to sustain the charge. If, on the contrary, it be such a case as to justify his interference, and there be no reasonable doubt of his jurisdiction, he is bound to proceed with it, and compellable so to do if he re- fuses^). The next step is to ensure the party accused having notice of the accusation and an opportunity (a) Pal. 71 ; Hult, 41 (ft) R. v. Harpur, ID. & R. M. C. 67 ; Hult, 42. (c) Ante, p. 570. (d) 1 Burn, 873. () 1 Burn, 874 j Pal. 33, 35; R. v, Eenn, T. R. 195, we ante, p. 4 8. Of the Summons. 581 of answering it. For this purpose the magistrate issues a summons containing the substance of the charge; and Issuing sum- this he must do whether the Statute under which he mons ' ne ,f s ' sary m all sum- acts prescribe this step or not ; for a summons is indis- mary proceed- pensably necessary in all proceedings of a summary nature before Justices(a), (excepting convictions on view(6)), and the neglect to issue it has been treated by J> P puni(ih . the Court of King's Bench as a misdemeanor for which able for pro- that court has granted an information against the ma- out summons. gistrate(c). The right to have this notice is a privilege which requires no special provision to entitle the de- fendant toil; and no custom can abridge or take it away(c/). For the general form and requisites of a j< orm and ser . summons, and the manner in which it should be served, vice of - the reader is referred to a former chapter(e). But it is to be observed, that more particularity is re- quired when the summons is used as a preliminary step in summary proceedings, than when it is is- sued as a curtesy instead of a warrant against a party charged with an indictable offence; and in the Justice of former case the magistrate is punishable if he proceeds Peace must not in the defendant's absence upon a summons defective in Active sum- 6 any material particular, as for want of fixing a day and motls - place certain for the appearance of the defendant, or for not containing a sufficient statement of the substance (a) R. v. Venables, 2 Lord Raym. 1407 ; R.v. Simpson, 10 Mod. 379; 1 Str. 46 ; R. v. Dyer, \ Salk. 181 ; 6 Mod. 41 ; R. v. Senn, 6 T. R. 198 ; R. v. Justices of Stafford, 5 Nev. & M. 94 ; Painter v. Liverpool Gas Com- pany, 3 Ad. & El. 433. (6) If only some of the facts constituting the offence can be ascertained by view, a summons is necessary; R. v. Wilson, 5 N. & M. 164. (c) R. v. Allington, 2 Str. 678; R. v. Harwood, 2 Str. 1088; R. v. Constable, 7 D. & R. 663, 3 M. C. 488 ; R. v. Commins, 8 D. & R. 344 ; R. v. Venables, ubi sup. (d) R. v. Univ. of Cambridge, 8 Mod. 163 ; but the subsequent acts of the party, as his appeal ance, &c. may waive the objection to the want of a summons, see fully, post, p. 583. (e) Ante, po, 153, et seq. and pp. 63, 64. 58*2 Of the Summons. of the charge, or allowing sufficient time for the at- Summons must tendance of the parties(a). Some Statutes specify a allow a proper . . time . time which must elapse between the summons and the hearing(6), and in every case a reasonable time must be allowed to the defendant to prepare for his defence. Thus a conviction in default of appearance, when the summons was to appear immediately upon the receipt of it, was held bad(c), and for the same reason a sum- mons is objectionable if it be to appear on the same day (d). What a rea- One whole day at least should therefore be allowed be- sotiable time. , i n ,1 j , i r r tween the service oi the summons and the hearing ; but it is advisable, unless in cases where there is some spe- cial reason to the contrary, to allow an interval of several days to elapse between the service of the summons and its return, in order to allow the parties time for prepa- ration and to procure the attendance of witnesses, whose convenience should be consulted to a reasonable extent ; and in determining what will be a reasonable time, the Justice will be guided by the circumstances of each case, as by the distance at which the parties reside, the impor- tance of the case, &c. As applications to justices are frequently made under sudden excitement, the allowance of a sufficient time is also frequently productive of be- neficial results in moderating the feelings of the parties, and allowing them time for mature deliberation(e). Date and day Precision is necessary in stating the day for appear- for appearance. j n g an( j fa e j ate o f fa e SU mmons. Thus it must not be to appear on an impossible day, as when it was to ap- pear on Tuesday the 17th of April, and the 17th of April fell on a Friday ; for as there could be no such day (a) R. v. Simpson, 2 Str. 46 ; Pal. 35, 36, ante, n. (c) p. 581. (6) Ex. gr. 6 Geo. IV. c. 129, s. 7, 8. (c) R. v. Mallinson, 2 Burr. 679. () Ante, pp. Ill, &c. e. g. under the Larceny Act, the Malicious Tres- 4 F 8G Proceeding in Defendant's Absence. Proceedings ex parte. Even when the Statute mentions the defendant's presence. Compelling appearance of prosecutor. When compulsory means are not used to enforce the appearance of the defendant, and he does not obey the summons, the magistrate may, on proof of his having been duly served, proceed ex parte in his absence ; and this is the only course in those cases where an arrest is not authorized by the Statute relating to the offence(a). tl was not without much doubt and hesitation that the Court of King's Bench recognized the power of Justices of Peace to proceed in the defendant's absence. It seems, however, not to have been questioned since the determination of the case of the Queen v. Simpson, and to be now settled by undisputed practice, that a party who refuses to appear after regular notice may be con- victed in his absence(a). And even where a Statute seems to contemplate only a proceeding against a party present at the adjudication, yet if he obstinately refuses to attend, and has had an opportunity of appearing after summons, he may be dealt with accordingly. In one case an apprentice had been discharged from indentures by an order of two justices ; the master had been bound over to appear, but made default ; it was argued that the justices had no power to make an order in his ab- sence, the Statute expressly directing the discharge to be ' on the master's appearance,' but the court confirmed the order for the discharge, observing that the Act must have a reasonable construction, so as not to permit the master to take advantage of his own obstinacy (6). The justices have not, in general, any means of en- forcing the appearance of the complainant to prosecute his complaint analogous to the recognizance used in pass Act, or persons offering goods for sale or pawn under suspicious cir- cumstances, found drunk in the streets, or cruelly beating or misusing animals. (a) Pal. 3.8, 39 ; R. v. Simpson, 10 Mod. 248, 341, 379 ; 1 Str. 44 ; it was decided in Trinity Term, 13 Ann. A. D. 1714. (fc) Ditton's case, 2 Salk. 490. Compelling Attendance of Witnesses. 587 indictable offences. In some particular instances, how- ever, means are provided for effecting this, as in the case of assaults, when the complaint is to be heard at Petty Sessions as before noticed(a). Formerly magistrates had no power, except under Compelling at- J tendance of the provisions of particular Acts, to enforce the at- witnesses. tendance of witnesses for the purposes of a summary trial (7?) , nor have they at the present day, when the complaint is entertained (which is of comparatively rare occurrence), elsewhere than at Petty Sessions. Nume- Under particu- . , IT i l ar Statutes. rous Statutes, however, provide means for compelling the attendance of witnesses in proceedings arising under them respectively(c) ; and in all proceedings, whether civil or criminal, which take place at Petty Sessions, in which any justice or justices have jurisdiction to hear and determine any complaint, the justice or justices have power to compel the attendance of any person resident or being within their county or district as a witness at any Petty Sessions on the hearing of the complaint, and to examine such person as to the matter of such complaint or the defence thereto, and to punish such person for disobedience to any summons requiring him to attend, or for refusing to be examined as fully as any such justice or justices could do if such person had been summoned to give evidence at any General Sessions of the Peace, in any criminal matter, and had refused to obey such summons or to give evidence(6/). (a) Ante, p. 93. (6) And so to the present day in England, Pal. 42 ; but see Dalt., J., 165; 2 Burn, 100. (c) Usually by making it penal, and giving the justice power to con- vict the witness for non-attendance after the summons, or by giving a power of commitment, see Stats, in App. (d) Stat. 6 & 7 Will. IV. c. 34, s. 9, ante, p. 94. The power of com- pelling the appearance of witnesses in proceedings in indictable offences, rests on different grounds, see ante, p. 328, et seq. 588 Compelling Attendance of Witnesses. Summons to a A summons for the attendance of a witness, in form, shortly recites the nature of the complaint before the magistrate, and requires the attendance of the party to whom it is directed at a certain place and time therein named. It should be dated and signed jy the justice issuing it(a). The summons may also be made in the form of a precept to the constable directing him to Power of summon the witness(6). The Court of Quarter Ses- sions to enforce sions(c), in case of refusal of a witness to obey their obedience of summons, have no power, it seems, to issue an attach- fine" 68 ment, and there was some doubt if they had the power of fining ; but Stat. 1 & 2 Will. IV. c. 44, s. 8, reciting that doubts have arisen whether the courts of Oyer and Terminer or Gaol Delivery, or the Courts of Quarter (a) Pal. 42, and ib. note (e) see form in Appendix, post. The forms in use in England usually conclude under the hand and seal of the justice ; see Pal. App. 150 ; and see a precept to a constable to summon a witness pre- vious to examination in an indictable offence, 2 Burn, 124. (6) Ante, p. 154 ; see such a form, Pal. App. 350. (c) It is to be observed, that the most usual and effectual method of enforcing the attendance of witnesses in criminal proceedings, at Quarter Sessions, is by binding them to appear, when the informations are taken by the magistrate, see ante, p. 495, &c. When the witness has not been so bound, the proper course (see Dick. Sess. 11 8) is to obtain a subpoena from the Crown Office, which is more convenient than a subpoena obtained from the Clerk of the Peace, not only because it may be served, and is imperative in any part of the kingdom, while the subpoena from the Clerk of the Peace is limited to the county, (see Dick. Sess. 118, Cro. C. C. 9, 21 ; 2 Burn, 100) ; but also, because, if the witness disobeys it, the Court of Queen's Bench will punish him summarily by attachment, (R.v.Ring, 8 T. R.585), which they will not do, unless the subpoena is issued from the Crown OrKce. (R. v. Brownell, 1 Ad. & El. 598). It is clear, however, neither of these is contemplated by the above section of the Petty Sessions Act ; the first (by recognizance) being altogether inapplicable, and the enforcement of the latter by attachment not being within its terms, which mention a punish- ment inflicted by " such justice or justices." The mode of summons in- tended must therefore be the only remaining process from the Quarter Sessions, a subpoena from the Clerk of the Peace, disobedience to which is punishable by fine, as above mentioned, or indictment, see post, p. 689, n. (> Compelling Attendance of Witnesses. 589 Sessions, and other courts having jurisdiction in criminal cases in Ireland, have power to fine persons who refuse or decline to obey the summonses of such court to at- tend as witnesses, declares and enacts, that it shall be lawful for every court in Ireland, having by law jurisdic- tion over criminal offences, upon proof being made of the service either personally or at the residence of the person or persons required to attend, of any summons to appear and give evidence in snch court touching any offence, to impose upon the person so served, in case of his or her disobeying such summons, such fine or fines as the court shall in its discretion think proper, and to direct that the same shall be levied and raised in manner hereinafter mentioned. Sec. 9 directs the judge, Levy of the assistant barrister, or recorder presiding at any Court fine ' of Assize, &c., or other court as aforesaid, immediately on any witness being fined, forthwith to order the Clerk of the Crown or Peace, or other officer of the court, to issue his warrant to the sheriff, commanding him forth- with to levy the amount of such fine on the body and goods of the person or persons against whom such war- rant shall issue, as is usual in the case of forfeited re- cognizances, and contains further directions as to the manner in which such fines shall be levied and appro- priated. These latter provisions (as to the levy and application of the fine) are, however, inapplicable since the enactment of Stat. 2 & 3 Viet. c. 99(a). If the summons be preparatory to compulsory pro- (a) See this Stat. fully, post, c. 5. Disobedience to a subpoena to Quarter Sessions, is also punishable by indictment, see ante, p. 331, n. (&) ; and this is said to be (in England, to which Stat. 1 & 2 Will. IV. c. 44, does not extend) the only effectual method when an attachment is not obtainable, 2 Burn, 101 ; Arch. J. P. 342 ; but see R. v. Brownell, 1 Ad. & El. 598 ; R. v. Clement, 4 B. & Al. 218. As to indictment for not obeying a magis- trate's summons to a witness on a charge for an indictable offence, see ante, p. 331 ; and for the general question, whether disobedience to a summons to Petty Sessions would be indictable? see the authorities, 16. n. (6). 590 Compelling Obedience of Witnesses* Service of sum- cess authorized by a Statute in any particular case, it must in general be personally served on the witness(a). The foregoing Statute, 1 & 2 Will. IV. c. 44, however, allows the infliction of a fine under it, after service either personal or at the witness's residence ; and the provi- sions of particular Statutes also sometimes dispense with the necessity of personal service ; but it is obviously de- sirable that the witness should be personally served Proof of service, wherever it is practicable. The magistrate, before pro- ceeding to punish the witness for disobeying the sum- mons, must require satisfactory proof of its having been duly served, and such proof is almost invariably ex- pressly required by Statutes authorizing any further proceeding(&). The mode of levying fines inflicted at Petty Sessions is regulated by Stat. 2 & 3 Viet. c. 99, which will be found in a subsequent chapter(c). If the witness appears, but refuses to be examined or give evidence, the Court of Quarter Sessions may commit him for the contempt, or may inflict a fine(o?), and the enactment above recited confers the same power on justices at Petty Sessions in summary proceedings. (a) Pal. 251, 36, 138, see the authorities cited, ante, 157, n. (a). (6) It would seem, that if a witness is in the Petty Sessions Court, ser- vice of the summons upon him there on the day of the hearing, would be sufficient ; see, as to a subpoena, 2 Burn, 100. It has been considered, that a person present in a superior Court is bound, when called as a witness, to give evidence in a criminal case, although he had not been summoned ; and an indictment for a nuisance in stopping a way, was considered a criminal case, for this purpose, although it was urged that it was in the nature of a civil proceeding, R. v. Sadler, 4 C. & P. 218. A subpoena can have no effect, if the witness is in prison or on board ship under the command of an officer, and in such case the only course to obtain his attendance as a wit- ness, is suing out a habeas corpus ad testificandum ; Dick. Sess. 1 19 ; Phil. Ev. 783. (c) Post, Ch. V. (d) Dick. Sess. 77,78, 117; R. v. Lord Preston, Salk, 278 j 2 Hawk, c. 16,s. 2 ; Griesley's case, 8 Co. 38 j see also, R. v. Clement, 4 B. & AI. 233. Fines how levied. Witnesses re- fusing to give evidence. Witnesses, Sfc The Hearing. 591 Particular Statutes which authorize compelling the ap- pearance of witnesses, also usually provide means for punishing their refusal to answer, which may be em- ployed in the particular cases, whether at Petty Ses- sions or not. In all cases, however, the question put must be one which the witness is legally compellable to answer. For summary proceedings for offences against the Search warrant. Larceny Act, the magistrate may also issue a search warrant ; and in some other cases which are the subject of summary adjudication, search may be made in the manner prescribed by particular Statutes(a). The pro- ceedings in such cases have been already considered (/>). CHAPTER III. THE HEARING. THE summons having been duly served, and the day The hearing. appointed by it having arrived, the case is ready for being heard in the place at which the defendant is called on to attend. Whether the hearing shall be before one Before one or or more justices must depend entirely on the provision of the Statute which gives cognizance of the offence. If the Statute allow one justice to convict, the convic- tion may be by two or more(c) ; but where the Statute requires the conviction to be by two, a conviction by one would be void, and the magistrate making it would be liable to an action if the party's goods were distrained upon or himself committed(d). It has been already seen (a) See these collected ante, p. 256, et seq. (ft) Ante, pp. 243, et seq. (c) Dalt. c. 6 ; 3 Burn, 561, ante, p. 62. (ns * of emergency, should be heard and determined at Petty Sessions(d). It is enacted by 7 & 8 Geo. IV. c. 53, Meetings to s - 67, ^ at tne Justices of the Peace, or any two or more determine ex- of them, in the several counties and places throughout SMUO n-.icoc * the United Kingdom, shall meet once in every three calendar months in their respective jurisdictions, or oftener if there shall be need or occasion so to do, to receive, hear, adjudge, and determine all matters and things brought before them relating to the revenue of excise and all informations exhibited within such juris- diction for penalties incurred or the condemnation of goods seized as forfeited under the Acts relating to ex- cise. Proceedings in excise cases are not, however, under this Statute confined to the meetings held in pur- Co) Ante, pp. 88, 92. (/;) Ante, 63, 64. (c) By the Court in Daubenay and Cooper, 10 B. & C. 237 ; ante, p. 76, as 1o Petty Sessions. (d) Ante, p. 78. cise cases. The Hearing. 593 suance of it, and it does not exclude other magistrates from the exercise of their ordinary jurisdiction(a). Formerly no person could claim professional assist- Professional ance as a right in summary proceedings before justices, ai ice ' although any third person might attend as a friend to either party, and quietly make suggestions or give ad- vice, but not take a part in the proceedings without the permission of the magistrate (6). But it is now provided to defendants ; by the Prisoner's Counsel Act, that in all cases of sum- mary conviction, persons accused shall be admitted to make their full answer and defence, and to have all witnesses examined and cross-examined by counsel or attorney(c). As this Statute extends to defendants to plaintiffs. only, the allowing professional assistance to informers and prosecutors is still optional with the justices. In general, however, the magistrate will exercise a sound discretion in allowing this privilege, and it has been observed, that it is seldom refused unless when the misconduct of the parties themselves has afforded just grounds for so doing(rf). When the defendant is present, the charge, if re- Reading infor- duced to writing in the form of an information, is read mation or to him ; or if no information has been drawn up, the complaint is read to him from the summons or warrant respectively. He is then asked what he has to say to the charge made against him(e). He then either prays further time, or confesses the charge, or makes defence. If he deny the charge and require further time to Adjournment. prepare his defence or produce his witnesses, it is (a) R. v. Pickering, 1 J. & Sy. 583; Perrin, J., dubitante ; see also, sect. 65 of the Statute. (fc) Collier v. Hicks, 2 B. & Ad. 663 ; 1 Burn, 879. (c) Stat. 6 & 7 Will. IV. c. 1 14, s. 2 ; see the remarks, ante, p. 78. (d) Stone, P. Sess. 68, ante, p. 78. (e) Pal. 40 ; 1 Burn, 877 ; and see 2 T. R. 23. 594 The Hearing. Appearance cures defect in summons. If merely to object. Appearing by attorney. If defendant confess. reasonable and the law requires that it should be al- lowed him; and the hearing may be adjourned either at the instance of the defendant, or for any other cause, to a subsequent day, care being taken not to exceed the time, if any be limited by the Statute, for making the conviction(a). If the defendant appears and pleads to the charge he thereby cures any defect in the summons, or even the want of a summons altogether(i), unless when a particular form of summons is pointed out by the Sta- tute^) ; but if he appears merely to object to the sum- mons, it may be prudent, as already observed, in some cases to issue another(d). It is not generally necessary, unless the necessity be expressed in or logically to be inferred from the words of the Act, that the defen- dant should appear in person ; for he may appear by his counsel or attorney ; but if he does, it should be so ex- pressed in the conviction, for otherwise the record will not be a true representation of the facts (e). If the defendant confess the charge, the magistrate then, after taking a formal note of such confession, that a conviction in form may be drawn up and returned to the sessions, passes judgment, and imposes the penalty or punishment assigned by the Statute creating the (a) Pal. 46, see ante, pp. 547-9. By Bayley, J., R. v. Turner, 5 M. & S. 212. (6) R. v. Johnston, Str. 261 ; R. v. Stone, 1 Ea. 649 ; JR. v. Barrett, 1 Salk. 383 ; R. v. Aiken, 3 Burr. 1785. (c) R. v. Crooke, Cowp. 2630 ; Hult. 45. (d) Ante, 583, and note (/). It is said, 1 Burn, 888, that if the defen- dant appears he cannot afterwards take advantage of any irregularity in the summons, except it be that it did not allow sufficient time ; but this pro- position seems hardly borne out by tiie cases on the subject. See ante, p. 583, note (/). See also Pal. 40, 138. () Dick. Sess. 783 ; 6& 7 Will. IV. c. 114,. ante, p. 593 ; R. v. Simpson, 1 Str. 46 ; but see Daubenay v. Cooper, 10 B. & C. j R, v. Com- mins, 8 D. & R. 344. If the Defendant confesses. 595 oftence(). Though the Statute only empowers the jus- tice to convict on the oath of one or more witnesses, this implies a power to convict upon the confession of the party(7>) ; and what is still stronger, a confession made to others and not to the justice, if proved by such persons to his satisfaction, in the presence of the defen- dant, will be sufficient evidence to convict(c). And as Effect of con- the confession renders the production of evidence unne- cessary, so, if evidence be taken, the confession cures any objection to the manner of taking it ; such, for in- stance, as that the depositions were not made in the presence of the defendant, or that improper evidence was taken, or the like(c/). The general rule, that if the defendant confesses the Confession par- offence it is needless to go into proof of it, is, however, i ns uffi c i ent to be understood of a confession to the full extent of a charge, good and sufficient information, and if either the confes- sion does not come up to the charge, or the charge itself be insufficient, the confession will not supply the want of evidence in the one case, or of a sufficient charge in the other ; for he can only be convicted of the facts charged, and the confession of what does not amount in law to an offence cannot render the party confessing liable to punishment(e). If, however, a de- c ntes f lon r v ; when there was fendant having the means of resisting the prosecution a good defence. on grounds which are properly matter of defence, never- theless confess the charge, he cannot afterwards object to the conviction, or bring an action against the justice, on the ground that all the circumstances, if examined (a) 1 Burn, 880 ; Pal. 41. (6) R. v. Gage, \ Str. 546 ; Pal. & Burn, ubi sup. ,- Hull. 46. (c) R. v. Gage, ubi sup. per Cur. I Burn, 889. (d) R. v. Hall, 1 T. R. 320. (e) R. v. Little, 1 Burr. 613 ; R. v. Garden, 4 Burr. 2279, 2282 ; R. v. Clarke, Cowp. 25 j R. v. Brown, 8 T. R. 26 j 1 Burn, 888 ; HuJt. 47 j Pal. 140, 142 j ante, p. 579. 596 The Hearing. particular fact. If defendant denies the charge. Witnesses to be examined on oath. into, would not have warranted the conviction. Thus, where a person charged with being a returned vagrant confessed the charge, it was held that he could not afterwards object to the conviction, on the ground that he had not returned in a state of pauperism, as he ought Confession^ of a to have advanced that in his defence at the time(a). If the confession is only of a particular fact, and not of the whole charge, it supersedes the necessity of proof only as to the fact confessed, and it will be necessary to substantiate the remainder of the charge by evidence, as in other cases(). If the defendant denies the charge, the next step is to substantiate the information. For this purpose the complainant or informer must procure his witnesses to prove the facts alleged, and after that the defendant may produce his witnesses for the defence. The examination of the witnesses must, in all cases, be on oath(c) ; and it seems no legal conviction can be founded on any testimony not so taken ; but where the witnesses are or have been Quakers or Moravians, or are Separa- tists, an affirmation may be used instead of an oath(rf). (a) Mann v. Davers, 3 B. & A. 103. 0) R. v. Little, 1 Burr. 613 ; 1 Burn, 888 ; see post. (c) Most Statutes direct the examination to be on oath, and frequently contain a clause requiring the magistrate to administer it ; some Acts men- tion only the " examination of witnesses, without noticing the oath, in which case an examination on oath is, it seems, intended ; such general expres- sions, in legal construction, referring to the only kind of testimony known to the law, viz., that upon oath, " for," says Dalton, " in all cases wheresoever any man is authorized to examine witnesses, such examination shall be taken and construed as the law wills, i. e. upon oath." And see ante, p. 161 ; Dalt. c. 6,s.6; Pal. 42 j Hult. 52. St. 5 & 6 Will. IV. c. 62, abolishing the taking of oaths in certain cases, provides, s. 7, that nothing therein shall extend or apply to any oath, solemn affirmation, or affidavit, which now is or hereafter may be made or taken, or be required to be made or taken, in any proceeding for or by way of summary convic- tion before any Justice or Justices of the Peace. (rf) See the Stats, ante, p. 161. The Witnesses. 597 The oath or affirmation must be administered before Tobeadminis- the witnesses are examined, and administering it after- examination, wards is irregular(rt). The manner of administering an oath has been already considered(&). The witnesses must be such as would be capable of Witnesses must . . , . . -,., T ,, , . be competent. being examined in a court ot justice, credible being equivalent to " competent ;" and the magistrate is not at liberty to allow every person to be examined to whom he could himself give credit(c). Therefore under the when informer rule of law that no judgment ought to be obtained on 1S entitled to part of penalty. the evidence of a person interested in the result, it is now clearly settled that the informer himself cannot be a witness whenever he is entitled to the whole or any share of the penalty on conviction(e?), unless where the Statute may render him competent by express provi- sion, or impliedly, as it does where it gives the penalty or any part of it to the person on whose oath the party is convicted(e); and where a husband is thus excluded on account of interest his wife is incompetent also(/). But to render the informer incompetent his interest informer's wife. must be certain and direct. Thus, when the justices have power either to inflict a fine or a corporal punish- ment, it is only in case of the fine being inflicted that when interest the informer can expect to derive the benefit on which ls uncertain - his incompetency depends ; and, therefore, as this in- terest is uncertain, depending on the judgment of the court, the objection only goes to the credit and not (a) R. v. Kiddy, 4 D. & R. 734 ; ante, p. 161 ; Pal. 44, (6) Ante, pp. 161, 163. (c) Pal. 46 ; 1 Burn. 881 ; Hull. 49. (d) 7?.v. Tilly, 1 Str.315; R. v. Stone, 2 Lord Raym. 1545; Hult. 49; and numerous authorities referred to, Pal. 46, n. (8) ; Phill. Ev. 66. (e) Pal. 47. Perhaps, too, a person, though interested, may be a wit- ness in a case where a Statute can receive no execution unless he is ex- amined, even though the Statute omit to make him competent ; C. B. Gilbert lays this down, and gives the reason that " the Statute must not be rendered ineffectual by the impossibility of proof;" Gilb. Ev. 114 ; Pal. 48. (/) Phil. Ev. 80 ; Garnish v. Pugh, 8 D. &. R. 65. 598 The Hearing. Examination to be in presence of the defendant if he appears. Reswearing witness. By whom wit- nesses are to be examined. to the competency of the informer as a witness(). In some cases, the claim of the prosecutor is made con- ditional, depending on his not being examined as a wit- ness, 9 Geo. IV. c. 55, s. 59, and c. 56, s. 39. As to the mode of examination, though none is pointed out by the Statute relating to the offence, yet, as justice requires that the accused should be confronted with the witnesses against him, and have an opportunity of cross-examination, it is required by law, in this sum- mary mode of trial, that the evidence should be taken in the presence of the defendant when he appears(&). Un- less, therefore, the defendant forfeits this advantage by his wilful absence, he ought to be called upon to plead before any evidence is given(o), and the witness must be sworn and examined in his presence(d) ; or if the evidence has been taken down in his absence and is read over to him afterwards, the witness must at the same time (unless the defendant, upon hearing the evi- dence, should confess the fact)(e), be resworn in his presence, and not merely called on to assert the truth of his former testimony(/) ; for the intent of the rule is, that the witnesses should be subjected to the cross- examination of the defendant upon their oaths(^). In the absence of professional assistance on the part of the complainant, the examination of the witnesses is conducted by one of the magistrates or by their clerk, (o) Dick. Sess. 784, 785 ; R. v. Cole, 1 Esp. R. 169. (6) Pal. 49. (c) 1 T. R. 320 ; ante, p. 593. (d) R. v. Vipont, 2 Burr. 1163. (e) R. v. Hall, 1 T. R. 320. (/) R. v. Crowther, 1 T. R. 125. (g) 2 Burr. 1163 ; R, v. Kiddy, 4 D. & R. 734. In R. v. Commins, 8 D. & R. 346, it was said that there seems to be a general but erroneous practice among justices of taking evidence in cases like the present (it was a conviction on the game laws) in the absence of the accused, (whose attorney was present) ; and that it is highly irregular and improper. By Bayly, J., Abbot, C. J., concurring. The defendant knew of a summons having been issued, but had not been personally served. Of the Evidence. or the complainant may be allowed to examine his own \vitnesses(a). If the complainant has the assistance of counsel or attorney it may be also in some cases ex- pedient, previous to the production of the witnesses, to hear a statement of his case and of the law applicable Hearing a state- ment of the case. thereto, but this is entirely at the discretion of the ma- gistrates^) ; or the complainant himself, in the absence of professional assistance, may address the magistrates if the case be complicated or new, or for other reasons it is considered expedient(c). The evidence adduced on the part of the prosecu- What the evi- tion must establish every fact and circumstance neces- e g t ^i^j, ust sary to constitute the offence, and must support all the material allegations in the information(ef). The evidence must establish that the offence was committed within the jurisdiction of the convicting justices(^). And the place where place of its commission ought to be proved by a direct ^ c d e iscom " statement ; for when the evidence is afterwards set out in the conviction (which is necessary unless where a con- cise statutable form dispenses with it), no presumption from the manner of describing the fact or from the ad- judication of the magistrate can supply the omission of a direct averment of its being within the requisite juris- t\on(f). In analogy to the rule in indictments it seems, however, unnecessary to prove the place exactly as laid when to be . in the information, (when there has been one), un- fr less the place be an ingredient in the offence, or be tion - matter of local description and not stated as venue merely, or part of a written instrument, or the penalty (a) Stone, P. S. 84, 85. (ft) Ante, p. 78. (c) Stone, P. S. ubi sup. (rf) 1 Burn, 881 ; Hult. 55. (e) R. v. Highmore, 2 Lord Raym. 1220; R, v. Jefferies, 1 T. R. 241 ; R. v. Hazel, 13 Ea. 142. (/) R. v. Chandler, 14, Ea. 274 ; R. v. Johnson, 1 Str. 261 ; Burr. 383, S. C. ; 7Z. v. Edwards, 1 Ea. 279; ante, p. 559 ; Pal. 164, 166; Hult. 57. 000 The Hearing. Time of the commission of the offence be given to the poor of the parish ; and in other cases it seems sufficient if the place laid and the place proved be both within the jurisdiction of the magistrate, which, as above stated, is indispensable(a). It is necessary also to fix the offence to a certain date ; one reason for which is, that the proceedings may must be proved. , , , . , . , . , . appear to have taken place within the time which is usually prescribed in the Statute(i) ; and it will be a fatal objection when the information and evidence are afterwards set out in the conviction, if this be not shown either by positive proof of the day, or by express refe- rence in the evidence to a date previously mentioned. Thus when a conviction stated the information to have been exhibited on the 29th May, 1805, charging that the defendant "within 3 months last past, viz.; on 22nd May now last past, did wet corn," &c., (stating the offence), and the evidence was that the witness " on the 22nd May, (without mentioning the year), found malt then in operation," &c., (stating the facts of the offence), this was held a fatal objection ; and the court said " the justices should either have stated the 22nd of May, 1805, if they so understood the witness; or if they had any doubt, should have inquired of him more particularly the date of the fact, we cannot supply the omission ; as it stands, the offence does not appear to have been committed within three months, which is necessary to give the justices cognizance"(c). The time proved must be prior to the complaint ; and in convic- tions in which the evidence is set out it is absolutely necessary that it should contain proof of an offence Must be prior to the com- plaint. (a) As to indictments, 2 Hawk. c. 25, s. 84 ; and see fully Archb. Cr. PI. ; so laid down as to informations also, 1 Burn, 866-7. (6) Pal. 167 ; see ante, p. 547. (c) R. v. Woodcock, 7 Ea. 146 ; see Cathcart v. Hardy, 2 M. & S. 534 ; Pal. 167 ; 1 Burn, 891, 892 ; Hull. 55. Of the Evidence. G01 committed on a day or time prior to the information, and this must be shown positively and not by implica- tion or inference(0). It has been seen, that in an infor- W nat precision mation it is sufficient to charge the offence to have been l committed between such a day and such a day(&), and there is an authority that it would be sufficient to prove the time in the same loose manner(c) ; but it has been observed, that such uncertainty in the evidence does not seem defensible on the same grounds as in the informa- tion ; and that, as the admissibility of this loose mode of proof contrary to analogy and principle rests upon one, or, at most, upon two instances, a prudent ma- gistrate might hesitate to convict without testimony of a more precise date(W). It is not, however, neces- Variance, sary to prove the date as laid in the information, where there has been one, unless when it is part of a descrip- tion, (as the date of a written instrument), or an essential ingredient in the offence ; and a variance in this point will in general be immaterial, provided the date as proved be also within the period prescribed by the Statute and previous to exhibiting the information(e). Every fact and circumstance necessary to constitute Facts and cir- the offence, or where persons filling a particular charac- ^ffencT^ ter only can be concerned necessary to constitute such and distinctive character, and which is of a positive nature, must be ofthe P arties ' (a) R. v. Fuller, 1 Lord Raym. 510; Pal. 166. It is, however, suf- ficient to refer to a date already mentioned and ascertained ; as when the conviction was dated the 4th of June, and the information, exhibited 29th May, charged the offence " within three months now last past, viz., on the 12th May now last past," it was held sufficient in the evidence that the fact was sworn to have happened on the " said 12th of May," the witnesses being described as deposing " in the premises." R. v. Crisp. 7 Ea. 392. (/>) Ante, p. 558. (c) R. v. Simpson, 10 Mod. 248. (d) Pal. 169 and 168, n. (a) ; Hull. 56. (e) Such is the rule in indictments, see Archb. pp. 35, 83, adopted in convictions, Huh. 56 j 1 Burn, 866. 4 H The Hearing . ments, qualifi tions and ex ceptioos. the rule. established in proof by the prosecutor ; for if any one of these be not proved, or cannot fairly be presumed from other facts or circumstances which have been proved, Negative state- the defendant cannot be convicted(a). With regard to offences which are only made penal by the want of cer- tain qualifications in the offender, or by the absence of some exculpatory circumstance, there was formerly a difficulty in determining the degree of negative proof which ought to be required by the magistrate ; but it seems now to be clearly settled, that the evidence au- thorizing a conviction, need not notice the negative alle- gations in the charge, and that any qualifications and exceptions, though annexed to the offence itself and therefore necessary to be noticed in the information(6), must be substantiated in evidence by the defendant if Foundation of he relies upon them(c). Such negative evidence is now held unnecessary, not only in accordance with the prin- ciple above mentioned, requiring the affirmative to be proved, but in conformity with another general rule of evidence, that the burden of proof lies on the person who has to support his case by proof of af act which is (a) See Pal. 50, 169 ; 1 Burn, 881 ; Hult. 55, 57, 58. In determin- ing, however, whether a material allegation in the description of the offence is to be considered as affirmative or negative, it is necessary to look to the substance and not merely the form of expression used iu stating it ; for in many cases a party, by making a slight alteration in the mode of expression, might make a statement affirmative or negative at his pleasure, and the general rule of law, by which the onus probandi is cast on the party asserting the affirmative, means the party who substantially asserts it. Phill. Ev. 827, and see the observations of Lord Abinger, C. B., in Sowar d v. Legatt, 7 C. & P. 13. (6) Ante, p. 576. (c) This point was agitated in the following cases, R. v. Harriot, 1 Str. 66 ; R. v. Jarvis, 1 Burr. 148, cited in R. v. Stone, 1 Ea. 643 ; 11. v. Crowtlier, 1 T. R. 125; R. v. Stone, 1 Ea. 639; and was settled in R. v. Turner, 5 M. & S. 206; R. v. Hanson, reported Pal. 2nd Edit. 193 ; see these cases compared and commented upon, Pal. pp. 170 to 177; 1 Burn, 891 ; and see Apothecaries' Comp. v. Bartley, 1 C. & P. 538. Of the Evidence. 603 more peculiarly within his own knowledge, or of which he is supposed to be cognizant(a). If such negative evidence were necessary it would scarcely be possible in many cases to convict in consequence of the number of distinct heads of qualification which are enumerated in particular Statutes, and all of which should be proved not to exist; while on the other hand all the qualifica- tions specified are peculiarly within the knowledge of the qualified person, and he can substantiate his de- fence by proof of any one of them(&). It is, however, Proper to re- a prudent and not unreasonable course for the magis- |}JJ evidence trate, in all cases of this description, to require some general evidence of want of qualification, arising from the condition or probable or apparent circumstances of the party, and tending to afford a reasonable pre- sumption that he does not come within the exceptions of the Statute(c). The defendant's own representations, or admissions, afford a legitimate and strong ground for this conclusion(d). The rule seems also subject to this when the ne- qualification, viz., if the negative averment, forming part ga ^ a 1 r s 1 not of the description of the offence, does not relate per- within the de- sonally to the defendant, or is not peculiarly within ^ * nt his knowledge, but is peculiarly within the knowledge of the prosecutor, or as much within his knowledge as within that of the defendant, the prosecutor must prove it(e). Thus in offences consisting of acts done to pri- vate property without the owner's consent, the want of consent must be proved on the part of the prosecution (/). (a) Phill. Ev. 829, 830 ; Pal. 177 ; R. v. Turner, 5 M. & S. 206. (6) Id. ibid. (c) Pal. 53 ; and the observations of Abbott, C. J., in R. v. Hanson, cited ibid. (d) Id. ibid., R. v. Clark, 8 T. R. 220. (e) Hult. 59; and see the judgment of Bayly, J. and Holroyd, J., in R. v. Turner, 5 M. & S. 211, 213; such is the rule in indictments, see Archb. 102, 103 ; but see Pal. 177. (/) R. v. Rogers, 2 Camp. 654, where in an indictment for coursing 604 The Hearing. When the charge is a culpable omission. Evidence of party's filling a certain cha- racter. It is, however, another general rule of evidence that where the law presumes the affirmative of any fact, it must be disproved by the party denying it in pleading, nothwithstanding it may involve the proof of a nega- tive (a) ; and therefore when the offence charged is a culpable omission or neglect of duty, the prosecutor must prove the charge although it involve a negative ; for it is one of the first principles of justice not to pre- sume a man guilty until it is proved(). Some Statutes, however, contain a clause expressly dispensing with such proof(c). Where the offence is confined to persons of a par- ticular description there must be competent evidence of their answering that description ; and where the character so described consists of several facts and cir- cumstances they should be stated, and the witness should not be allowed to swear, generally to the party's charac- ter, as that he is a hawker(of). And it is necessary that it deer without the owner's consent, it was held, that the want of consent should be proved by the owner himself; but it is now established that, though it must be proved for the prosecution, it may be by presumptive evidence or by the agent of the owner ; Archb. ubi sup. R. v. Allen, R. v. Argent, R. v. Chamberlain, 1 Mood. C. C. 154; R. v. Hazy, 2 C. & P. 458. (a) Gilb. Ev. 145 ; Phill. Ev. 829 ; Williams v. The East India Comp. 3Ea. 192. (6) Phill. Ev. 827 ; Rose. Cr. Ev. 71 ; Williams v. The East India Comp., ubi sup., and the authorities cited in the judgment, ib. ; R. v. Hawkins, 10 Ea. 211. (c) Ex. gr. 55 Geo. III. c. 100, s. 34. App. p. Ixix. (d) Pal. 184 ; Hult. 57, 58 ; R. v. Little, 1 Burr, 609. In R. v. Tucke, reported Lord Raym. 1386, 8 Mod. 366, in a conviction for profane swearing, the information stated that the defendant being a gentleman and above 16 years of age, did swear, &c. ; the evidence proved the swear- ing, but contained no proof that the defendant was a gentleman, or above 16, except that it stated, that the said defendant swore, and this was held sufficiently to bring him within the description, as it referred to the in- formation where he was so described ; but upon this case being cited in Of the Evidence. 605 should be proved that the defendant filled the character At the lime ot . . i & i the offence. required at the time of committing the offence ; but it will be sufficient in the evidence as appearing in the conviction, if the court can collect from the plain import of the language used, that he filled the character at the time (a). With respect to the precision necessary in proving Proof of sums; . , . . quantity and sums and quantities when the magistrate is directed to va lue. award certain damages by way of compensation to the party injured, there must be proof of some precise num- ber or quantity by which the damage may be measured (6); and the same proof is necessary when the sums or quan- tities constitute a material ingredient in the offence(c). Proof of numbers or value is also indispensable in some instances to give the justices jurisdiction, as in some cases under the Larceny Act, where the value of the thing taken is the criterion whether the offence amount to felony or be punishable summarise?). The evidence must go to establish the identical ^ entit y of the offence. offence which forms the subject of the information. It is not sufficient that there appears to be another offence of the same kind and subject to the same penalty(e). In some cases it is necessary to adduce evidence Evidence to with a view to authorize the adjudication of the forfei- ture ; as when it is given by the Statute to the person penalty is pay- who shall perform some particular act. Thus, where R. v. Crisp, 7 Ea. 396, its authority was questioned by Lord Ellenbo- rough ; and Lawrence, J. said there must be some mistake in the report of it, for it is clear that the defendant's age ought to have been proved, ib. 397. (a) R. v. Crisp, 7 Ea. 393 ; Hult. 58. (&) Pal. 177 ; R. v. Burnaby, 2 Lord Raym. 900. (c) Pal. ubi sup. ; R. v. Catherall, 2 Str. 900. (d) See 9 Geo.IV. c. 54, ss. 31 and 32. (e) See R. v. Smith, Q T. R. 588 ; R. v. Harpur, 1 D. & R. 214 ; Pal. 178 i 1 Burn. 892. 606 The Hearing. a Statute directed gunpowder seized under certain cir- cumstances to be forfeited to the person making the seizure, and the conviction adjudged it "to the afore- said J. G., the person who seized the same," it was quashed for not showing previously that there had been in fact a seizure, and that J. G. was the person who made it (a). fTprltcmioT . If the offence char g ed be not sufficiently proved, is closed, Js. as if there be no evidence of some material ingredient Sjowilu in itj or there be but one witness produced where two are required by the Statute(^) ; or if the justices con- sider the witnesses unworthy of credence; or if from other good reasons they consider the evidence adduced against the defendant insufficient to convict him they should acquit him ; or if it shall appear conducive to the ends of justice so to do, they may adjourn the hearing OHiearthede. fco a future day(c)> Rut ^ Qn the other han ^ they consider that a sufficient case has been established against the defendant, he should be called on for his defence. Evidence on AS soon as the examination of each witness for the which defen- dant may rely, prosecution is concluded, the defendant has a right, and indeed should be invited to cross-examine them ; and, besides protesting against and commenting upon the validity or effect of the evidence produced against him, the accused is entitled to produce evidence for the defence and the magistrate is bound to hear it(d). In criminal proceedings in the superior courts if the pri- (a) R. v. Smith, 5 M. & S. 133 ; the averment was neither in the in- formation or evidence; Pal. 211. (6) R. v. Dove, 3 B. & Al. 596. (c) Hult. 60. And the Court of Queen's Bench will not, in general, question their judgment in acquitting the defendant, even though there were prima facie evidence to warrant a conviction, as no other court can judge of the credit due to witnesses which it did not hear examined j R. v. Reason, 6 T. R. 375 j Pal. 187, 188 ; see further, post. (d) 1 Burn, 882 ; Stone's P. S. 85 ; Pal. 54. Of the Defence. 607 soner is not assisted by an advocate, it is the duty of Examining the , . , , 1.1 witnesses. the court to ask any questions which they think may tend to his benefit(a) j and the same rule is commonly observed in summary proceedings. The defence may consist in disproving the truth of When defence the charge, or of some essential part of it, and it then J^f*^ de " only remains for the magistrate to convict or acquit the charge. party according to his judgment of the weight of the evidence. If, however, any reasonable doubt exist in the mind of the magistrate, when the subject of decision is a criminal charge, the party charged is entitled to the benefit of the doubt ; such cases, it is to be re- when a doubt, collected, differ very materially from those where mere civil rights are concerned, and when the mere prepon- derance of evidence may be sufficient to decide the question(i). The defendant may also depend upon some circum- When defen- stance of justification, qualification, or exemption(c). It ^aiifi has been already seen that although exceptions con- exceptions. tained in the enacting clause must be negatived in an information, it is, in general, unnecessary for the pro- secutor to disprove them by evidence. In such cases, therefore, it is necessary for the defendant to prove himself entitled to the exemption, the benefit of which he claims, and it will not be sufficient to rest his de- fence on the absence of evidence to the contrary on the part of the complainant^). And in all cases where exceptions come in by way of proviso in a separate clause or Act, and are not incorporated by reference in the clause creating the offence, as it is unnecessary to notice them in an information, so the complainant need not produce any evidence in reference to them ; but it (a) 1 Chit. Cr. L. 407, 621. (6) 2 Stark. Ev. 414; 1 Burn, 883. (c) Pal. 54 ; Stone, 77. (d) See ante, pp. 602, 603. The Hearing. is a known and acknowledged rule, that the defendant in such cases must bring himself by proof within the proviso by which he seeks to protect himself(a). Former convic- A former conviction for the same charge is also a good defence. Some Acts of Parliament have a clause to this effect ; but it has been justly observed, that this is superfluous, as there can be no mode of proceeding known to the laws of England by which a delinquent Certificate of can be twice punished for one offence(6). The offences acquittal. against t h e Person Act, 10 Geo. IV. c. 34, s. 37, makes a certificate by the justice of a former acquittal also a sufficient defence. When a ques- The defendant may also plead, that the act com- tion of right or plained of was done under an asserted authority, or title is involved. . . . . pursuant to a claim 01 right or property ; m which case, it has been already seen, that the summary jurisdiction of magistrates is ousted, whether the claim be well founded or not. The nature of this defence and the course proper to be adopted by the justices when it is used have been before considered(c). The prosecutor may be allowed in such cases to adduce evidence to (a) By Dennison, J., in R. v. Jarvis, 1 Ea, 647, n. ; Lord Kenyon, 1 Ea. 650 ; R. v. Bryan, 2 Str. 1101 ; R. v. Neville, 1 B. & Ad. 489 j Pal. 54. (6) Pal. 189 ; ex gr. 9 Geo. IV. c. 55, s. 67, and c, 56, s. 47. Questions of (c) Ante, pp. 72, 73. This line of defence is one obviously likely to right under the be frequently adopted in prosecutions for malicious trespasses under 9 Ge * IV * C * 56 ' In ne ca$e under lhe f rmer Act ' * Ge * IV< C ' 66 ' where the justice had proceeded to convict the party for a petty trespass committed in asserting a right of way over a road which had been lately stopped up, it was urged as one of the grounds for applying for a criminal information, that the justice had full notice that the act was done merely for the purpose of asserting a right by the alleged trespasser ; Pal. 59, n. (1) ; see also R. v. Harpur, 1 D . & R. 222, 1 M. C. 67. Sect. 30 of 9 Geo. IV. c. 56, provides, that nothing therein shall extend to any case where the party trespassing acted under a fair and reasonable supposition that he had a right to do the act complained of. In the construction of this clause it has been held, that if a person crossing a field acted bond fide under Of the Defence. G09 show that the claim is made maid fide or devoid of any reasonable foundation or possibility of being established, in which case the justice may refuse to entertain the objection, and proceed to convict the defendant, unless he can establish some other defence(a) ; for this ques- tion (whether the claim be bond fide or a mere pretence) is, as already noticed, the proper subject for his con- sideration (b). the belief that he was following a public pathway, he was not guilty of an offence under the former Malicious Trespass Act, 1 Geo. IV. c. 56, (which contained a provision in sect. 6 similar to s. 30, of 9 Geo. IV. c. 56,) as in that case the trespass could not be said to be malicious ; this Act con- tained no clause similar to 9 Geo. IV. c. 56, s. 32, (see Appendix, p. cvii) ; but the description of the offence in both Acts is, " if any person shall wilfully and maliciously, $fc. In the same case it was held, that proof of ome certain damage was necessary, and that merely crossing a grass field where a pathway did not lead, was not sufficient. Butler v. Turly, 2 C. & P. 585. When a pedlar was going up to a house, in the way of his business, and a dog (a Scotch terrier) ran out at him, which he struck with a stick and knocked its eye out, it was held, that if he struck the dog for his own preservation, and fairly to protect himself, it would not be an offence within 7 & 8 Geo. IV, c. 30, s. 24, Eng., corresponding to 9 Geo. IV. c. 56, s. 30, Ir. Hanway v. Boultbee, 4 C. & P. 353. The questions in both these cases arose at the trials of actions for false impri- sonment, by arresting under the sects, corresponding to 9 Geo. IV. c. 56, s. 35, ante, p. 107. When A. planted some shrubs which were cut by B., who alleged (but which was not proved), that they were likely to injure an adjoining wall, and the title to the land on which they grew had once been in dispute between the parties, it was held, that the act might be punished as a malicious trespass. The charge had not been investigated, as B. had paid with a view to compromise it, and the facts were brought before the court by affidavits, in an application for a criminal information against A., who was a magistrate ; but the court said the pretences set up by B. were merely futile. R. v. Whately, 4 Man. & R. 432. O) Hunt v. Andrews, 3 B. & A. 341, which was a penal action. It is said, that upon a suggestion of title the Court of King's Bench, at any time while the conviction remains below, and has not been removed by cer- tiorari, will grant a prohibition after conviction to stay the justices from proceeding upon it. Per Holt, C. J., R. v. Burnaby. 2 Lord Raym. 901. (6) Ante, p. 72. In Coster v. Wilson, 3 M. & W. 411, it was held, 4 i Plaintiff reply- ing. Taking down evidence in writing. In all cases. The Hearing. If the defendant has called witnesses it is the prac- tice in England, adopted, it would seem, in conformity with the proceedings in superior courts, to allow the complainant, or his professional adviser, to observe upon their testimony by way of reply(a). The plaintiff may also cross-examine the defendant's witnesses, and if they have deposed to any new fact as matter of defence, which it was unnecessary for the complainant to notice, he may rebut their evidence by calling additional witnesses(6). It is directed by the Petty Sessions Act that the justices at Petty Sessions, or some one of them, in the trial of any information or complaint of a criminal nature, or upon which any penalty may be awarded, shall, if either party so require it, take, or cause to be taken, a note or minute in writing of the evidence given on oath for the prosecution and for the defence, or of so much thereof as shall be material, in a book kept by the clerk, and which shall be signed by the justice or justices hearing the complaint, on the day when it shall have been determined (c). Though this provision applies only to Petty Sessions and when one party requires it, the justice should, for his own protection, in every case that justices had jurisdiction under 11 Geo. II. c. 19, s. 4, Eng., (as to the fraudulent removal of goods by a tenant), although it appeared that the property in the premises was disputed, but not by the defendant, and that the defendant had paid rent to one of the claimants ; and the court said it was matter for the justices to determine whether the removal was bondjide or fraudulent. When an Act (for the recovery of Church Rates before Js. P.), provided that the Js. should abstain from giving judgment if the validity of the rate or liability to pay was disputed, and the defendant said he would bring an action against any person who levied the rate, as he had no right to pay, because he had no claim to or seat in the chapel, this was held sufficient notice to stop the jurisdiction of the Js., R. v. Churchwardens of Milnrow, 5 M. & S. 248. (a) Stone, P. S. pp. 86, 91. In criminal cases in the superior courts the counsel for the Crown are, in strictness, entitled to the reply, whether evidence be called for the defence or not, Phill. Ev. 844. (6) Archb. Com. 100 ; Stone, P. S. 86; see Ph. Ev. 843. (c) 6 & 7 Will. IV. c. 34, s. 2, ante, p. 90. Evidence Proceeding ex parte. 6 1 1 take down with great care the examination, or the mate- rial part of the examination, of the witnesses formally in writing, in the natural language and peculiar ex- pressions used by them. Mere memoranda or such minutes as may satisfy the justice at the moment are not sufficient, for he is bound, except where a summary form is given by the Statute, to set out the evidence on the record of the conviction as nearly as possible in the words used by the witnesses ; and if he neglect so to do, a mandamus lies to compel him() ; and even where Whether con- ,. _. , viction or ac- complaint has been dismissed, if the proceedings be re- qu ittai. moved by certiorari, the magistrate must set out the evidence fully(6) ; and this he will find it difficult if not imposible to do, should he have omitted to take regular and formal minutes(c). If the defendant has neither appeared voluntarily Proceedings in J default of ap- on being summoned, nor his appearance been enforced pearance. by compulsory process where such is allowed, the jus- tices must proceed ex parte to decide the case in his absence(d). When this course is adopted, the first pro- ceeding is to prove the regular service of the summons. In several cases, when particular Statutes have directed Proof of ser- the method of proceeding in default of the defendant's appearance, it is with the restriction that proof be made of the service of the notice, and such proof seems in all cases necessary to the regularity of the proceedings when the judgment is without the appearance of the defendant(e). After due proof of the service of the (a) In re Rix, 4 D. & R. 352 ; 2 M. C. 249 ; R. v. Marsh, 4 D. & R. 260 ; 2 M. C. 182. 0) R. v. Me. Nicholas, R. v. Murray, 3 L. R. N. S. 190. (c) 1 Burn, 882 ; Pal. 44 ; and see R. v. Warneford, 5 D. & R. 489; 2 M. C. 511. (d) Ante, p. 585 ; Pal. 38 ; Hult, 48. (e) Pal. 39; 1 Burn, 877; as to defendant's not appearing in conse- quence of a defective summons or other previous irregularity, see ante, pp, 583 and n. (/). 612 The Hearing. Regular proof summons, (which, as before observed(a), should in enera ^ ke personal, unless otherwise permitted by the Statute), or other notice required by the Act, the pro- secutor should be put to a regular proof of the charge, as in other cases ; for the non-attendance of the other party does not authorize a judgment without a due examination of the facts upon oath, with the same for- mality as if he were present and made defence(^). Js. P. to judge When the case and evidence have been heard on of the credit ,-.,. -PI due to the wit- both sides, it remains for the magistrate to convict the party, or to dismiss the complaint, according to his judgment upon the circumstances. The degree of credit due to the witnesses on either side is entirely for his consideration, justices in summary proceedings being, in this respect, in place of a jury; and no other court can judge of the credit due to the witnesses, as What evidence they did not hear them examined(c). But the judgment sufficient. of the justice as to the weight of the evidence, is not so far conclusive as to allow him arbitrarily to convict upon evidence which could not lead any reasonable man to the same conclusion as to the facts, or which would not be sufficient to be left to a jury if the pro- ceedings were in a superior court(d); and as already () Ante, pp. 156, 157. The important Stats. 9 Geo. IV. c. 55, s. 58, and c. 56, s, 37, dispense with the necessity of personal service ; but in proceedings for assaults under 10 Geo. IV. c. 34, proof of personal ser- vice is expressly required by the Act, see sect. 42. (6) Pal. 39, citing 10 Mod. 381 ; 1 Burn, 877; Hult, 48. (c) R. v. Reason, 6 T. R. 375 ; R. v. Smith, 8 T. R. 590 ; Pal. 59. Rule as to (<0 In -R- v - Davies, 6 T. R. 177, Lord Kenyon said, "It is suf- what evidence ficient in convictions, if there were such evidence before the magistrate as is sufficient. WO uld in an action be sufficient to be left to the jury," and this seems to be the correct criterion, see Pal. 178, 180. In R. v. Smith, 8 T. R, 588, the court said they would not interfere if there were any evidence (however slight), to establish the point, (which was a material one in the conviction), and the magistrate had drawn his conclusion from that evi- dence. In R. v. Glossop, 4 B. & A. 616, Abbott, C. J., said the objec- Of the Judgment. 6 1 3 observed, if there be any reasonable doubt the defen- dant is entitled to the benefit of it. The practice which sometimes obtains of magis- Js -. p< taki "g ."'"''. an indemnity. trates taking an indemnity against the consequences of their decision from the party in whose favour it is made, is to be condemned; a learned judge has observed that it ought not to be done, and that it is a bad practice, as it has the effect of enabling them more safely to decide in favour of a party who is able to give an indemnity than of one who cannot do so(). In some cases, the Statute is peremptory as to the Penalty fixed , . , . . , ,. . or discretion- penalty or punishment, giving the justice no discretion ary . to lessen or vary it ; and in such cases, of course, he can only pursue the directions of the Statute ; but in some cases the penalty or punishment is left in some measure to his discretion, which should then be guided by the circumstances of the case, and the condition in life of the defendant and the circumstances of aggra- vation or extenuation under which the offence is proved tion against the sufficiency of the evidence could not prevail, " unless the evidence stated on the face of the conviction be such as that no reasonable person could draw the conclusion" that the defendant was guilty. In R. v. Hale, Cowp. 728, a part of a conviction as to which there was no evidence was quashed, and the rest adjudged good. But in Ex parte Ramsley, 3 D. & R. 572, where the conviction was quashed, Abbott, C J., said, "there is abundant ground for suspicion, but we cannot say that it is a clear and satisfactory ground to convict;" and Bayly, J., "There must be some clear and satisfactory evidence" that the party committed the offence. See also R. v. Chandler, 14 Ea. 267, Anon. 1 B. & Ad. 382 ; R. v. Taylor, 2 Chit. Rep. 578 ; and that a reasonable intendment will be allowed, R. v. Crisp, 7 Ea. 395. In R. v. Reason, ubi sup., the court said, that as the justices " had acquitted the defendant the court would not substitute themselves in the place of the justices acting as jury- men, and convict him ;" and the reason given, (that they could not judge of the credit due to witnesses whom they did not hear examined), seems to establish that the court will not interfere in any case of an acquittal, when the justices disbelieve the witnesses, see 1 Burn, 901 ; Hult. 60. (a) Selwood v. Mount, 9 C. & P. 76, by Alderson, B. 614 The Hearing. When as a compensation to the party grieved. Sentence of imprisonment. Penalty paya- ble to a body corporate. Mitigation of penalties. to have been committed (a). So where a Statute autho- rizes magistrates to award damages not exceeding a cer- tain sum to the party aggrieved, they should be careful to ascertain the real amount of damage and award a sum in proportion, and will not be justified in awarding the full sum without inquiry as to the damage sustained(^). Where a Statute appoints imprisonment, but limits no time how long, the offender must remain imprisoned at the discretion of the court(c). Imprisonment fora second offence may commence from the expiration of the imprisonment under a prior conviction(c?). By Stat. 9 Geo. IV. c. 54, s. 35, whenever any for- feiture or penalty is payable to the party aggrieved, it is payable to a body corporate in every case when such body is the party aggrieved. The circumstance of the sum adjudged being appropriated as a compensa- tion for the injury to the party does not prevent its being considered as a penalty(e). Where the amount is fixed absolutely by the Statute the magistrate has not, as necessarily incident to his jurisdiction, any power to lessen it, as he can impose no other than the precise () 1 Burn, 883. (6) R. v. Harpur, 1 D. & R. 222 ; Pal. 205. Tn this case the Sta- tute directed, that the offender should forfeit and pay to the person aggrieved such a sum of money as should appear to the justice to be a reasonable satisfaction and compensation for the damage committed, not exceeding in any case 5 ; the justice convicted a party in 5 penalty, and there was no statement that the property injured was of that value; the learned judge observed, "The magistrates think they have power to award the full sum at all events, but it is not so ; they are to ascertain what the amount of the damage in such case is, and award reasonable compensation or satisfaction to the party injured according to the amount of the injury proved ; they cannot go beyond the 5, but are not to award 5 unless damage is proved to that amount." (c) Dalt. c. 170, p. 410; 1 Burn, 795. (d) WiUte'i case, 4 Burr. 2577 ; 1 Burn, 793 ; 1 Lea. 536. ( an( * ne cannot delegate this power to another(W). An exact sum must also be specified, (a) Morgan v. Brown, 6 N. & M. 57, in which case two persons were convicted jointly of an assault under 9 Geo, IV.c. 31, Eng., corresponding to 10 Geo. IV. c. 34, IT., and a joint fine having been imposed upon them the conviction was held bad in substance, and the justices liable to an action for false imprisonment ; 2 Hawk. c. 10, s. 16 ; Pal. 201. (&) Pal. 2 14. The Eng. Stat. 18 Geo. III. c. 19, contained general pro- visions on this subject, but did not extend to Ireland j under it, it is to be observed, costs may be awarded either to the prosecutor or defendant. (c) For the fees payable for proceedings before magistrates, see ante, pp. 87, 96. In England there is no Statute regulating the amount of fees payable, and they vary in different parts of the country. It is also the usual practice there, in proceedings before magistrates, to allow the expenses of poor witnesses, provided they do not exceed the rate allowed in superior courts ; see Stone, Pet. Sess. 115, 118. (d) R. v. St. Mary Nottingham, 13 Ea. 57, n. Costs Giving Judgment. 619 and it will not be sufficient to award costs in general Sum to be pre- terms, as a " reasonable sum" for costs or expenses(a). tained.^ The punishment awarded or fine imposed, and the Pronouncing amount of costs ought to be distinctly stated to the de- judgment. fendant, and also the term of imprisonment awarded in default of payment, or that a distress warrant will issue against his goods, according as either course of enforcing the decision is adopted. Under certain circumstances also it may be proper for the bench to allow a reasona- ble time for the payment of the penalty and costs, espe- cially when the defendant shows an evident disposition to comply with the terms of the decision(6). The Timeof affixing magistrate is not, however, obliged to fix the penalty or e pen punishment at the instant of conviction, but may take time either for the purpose of informing himself of the legal penalty, or of considering the amount proper to be imposed. Therefore though the forfeiture must neces- sarily appear as a part of the judgment in the convic- tion when formally drawn up(c), yet if it be ascertained and imposed at any time before it is so drawn up and appears on the record as returned to the Queen's Bench, that court will not hear any objection on the ground that it was not in fact imposed when the offender was convicted(d). It must, however, be ascertained and adjudged before execution can be enforced, as the amount must be specified in the warrant, whether of distress or committal(e). Whatever be the decision of the magistrates, if the Entry in re- complaint be heard at Petty Sessions, an entry thereof should be made by the clerk in the Petty Sessions re- (a) R. v. Hall, Cowp. 60 ; R. v. Symonds, 1 Ea. 189; R. v. Payne, 4 D &R. 72; see post, p. 631. (6) Stone, P. S. 92. (c) Post, p. 631. (d) R. v. Ellwell, 2 Lord Rayru. 1514 ; R. v. Layton, 1 Salk. 352 ; Pal. 60, 207 ; 1 Burn, 883 ; Hult. 77. (c)Hult. 77;scepof, Ch. V. 620 Of the Conviction. as directed b y the Pe "y Sessions Act ; and if the complaint is heard by a single magistrate elsewhere he is required by the same Statute to report the case to the Petty Sessions, and a particular entry thereof is to be If fine be paid, made in the registry(a). So if the fine be paid to the magistrate or clerk, an entry thereof should be made in the registry of proceedings^), and it is to be accounted for and included in the returns directed by the Petty Sessions Acts(c). CHAPTER IV. OF THE CONVICTION. Of drawing up THE drawing up of a formal conviction is a task of great nicety and difficulty, and there is, perhaps, no subject re- lating to the office of a magistrate which requires more consideration and care(c?). To facilitate the discharge of this duty several Statutes contain summary forms applicable to convictions under them respectively ; and Stat. 3 Geo. III. c. 23, enacts, that in all cases wherein a conviction shall have taken place, and no particular form for the record thereof hath been directed, the justice or justices or other persons duly authorized to proceed summarily therein, and before whom the offender or offenders shall have been convicted, shall and may cause the record of such conviction to be drawn up in the manner and form therein prescribed, or in any words to the same effect, mutatis mtitandis. The form prescribed is as follows : (a) 7 & 8 Geo. IV. c. 67, ss. 11, 13 ; ante, pp. 87, 88. (6) Ante, p. 90 ; 2 & 3 Viet c. 99, s. 1, post. (c) 6 & 7 Will. c. 34, s. 4 ; ante, pp. 90, 91 ; see further, post, Ch. V. (d) Dick. Sess. 774; Stone's P. Sess. p. 101. Of the Conviction. 621 County, [or as~\ fie u remembered> that Qn the d General form the case may I /. .> T i of conviction. y I of in the year of our Lord * ^ ( I at in the county of A. B. J of in the county of labourer, [or, as the case may be], personally came before me, [or, be- fore us, &c.] C. D., one [or, more, as the case may be"], of his Majesty's Justices of the Peace for the said and in- formed me [or, us] that E. F. of in the county of on the day of at in the said did [here set forth the fact for which the in- formation is laid,] contrary to the form of the Statute in such case made and provided ; whereupon the said E. F. after being duly summoned to answer the said charge, appeared before me [or, us, &c.] on the day of at in the said and having heard the charge contained in the said information, declared he was not guilty of the said offence, [or, as the case may be, did not appear before me, (or, us, &c.) pursuant to the said summons, or, did neglect and re- fuse to make any defence against the said charge] ; whereupon I, [or, we, &c., or, nevertheless T, or, we, &c.] the said justice [or, justices] did proceed to examine into the truth of the charge contained in the said information, and on the day of aforesaid, at the parish of aforesaid, one credible witness, to wit, A. W. of in the county of upon his oath deposeth and saith, [if E. F. be present, say, in the presence of the said E. F.], that within months [or, as the case may be,"] next before the said information was made before me, [or, us, &c.j, the said justice, by the said A. B. to wit, on the day of in the year the said E. F. at in the said county of [here state the evidence, and as nearly as possible in the words used by the witness, and if more than one witness be examined, state the evidence given by each, or, if the defendant confess, instead of stating- the evidence say, and the said E. F. acknowledged and voluntarily confessed the same to be true] ; therefore it manifestly appearing to me, [or, us], that the said E. F. is guilty of the offence charged upon him in the said information, I, [or, we, &c.] do hereby 622 Of the Conviction. Division of chapter. convict him of the offence aforesaid, and to declare and ad- judge that he the said E. F. hath forfeited the sum of of lawful money of Great Britain for the offence aforesaid, to be distributed [or, paid, as the case may & This is the invariable practice, and is more particularly necessary when any part of the penalty is given to the informer, that it may appear that he was not examined, when he is, as is generally the case, incompetent^). If the Statute require two witnesses, a conviction purport- ing to be on oath of one only is bad (/). It is proper also to add the place of the witness's residence^). The de- Oath or affir- positions should be alleged to have been taken upon oath matlon - or affirmation as the case may be(^). They should also be (a) Ante, p. 594, &c. (6) Seethe form, post, in Appendix, 3 Geo.IV. c. 23. (c) 1 Burn, 888 ; Archb. Comm. 106 j ante, p. 596. (d) Ante, pp. 596, et seq. (c) Pal. 142, 1 Burr. 889 j so in the general form under Stat. 3 Geo. IV. c. 23 ; see ante, p. 621. (/) R. v. Dove, 3 B. & Al. 596. (g) So in the general form, Stat. 3 Geo. IV. c. 23. (h) Ex pane Aldridge, 2 B. & C. 600 j 4 D. & R. 83 ; and see R. v. Crowther,l T. R. 126; Pal. 143, 163; 1 Burn, 889; Hull, 52. The statement usual in early precedents, that the magistiate was authorized to administer an oath, is now unnecessary, E. v. Picton, 2 Ea. 195. In JR. v. Selway, 2 Ch. Rep. 522, it was held to be unnecessary to state how the wit- 4L The Conviction. stated to have been taken in the defendant's presence, Defendant's if he has been present(a). This is required by the form prescribed by 3 Geo. IV. c. 23-, but previous to the passing of that Statute, it had become a rule in the construction of convictions, that when the whole pro- ceedings have taken place in one day, it will be pre- sumed that the evidence was given in the defendant's presence, provided there be nothing stated to contradict that supposition^). Since the Statute, however, directs the statement to be made in all cases when the defen- dant is present, it is safer now not to depend upon this presumption(c). When the information and depositions are on a day prior to the defendant's appearance, and he denies the charge, it must appear not only that the witness was again present to confront the defendant, but that he was resworn in his presence(e/). Evidence to be Previous to the passing of Stat. 3 Geo. IV. c. 23, it ''* a ' ia( * keen long established as an undoubted rule, that the evidence must be set out at length in the conviction, nesses were sworn, and that it is sufficient to state that they deposed on oath, without adding on the Holy Evangelists, &c. (a) In R. v. Glossop, 4 B. & Al. 616, a conviction which stated the ap- pearance of the defendant and his plea of not guilty, and then proceeded "nevertheless, upon the same day, and year last aforesaid, at the said police office, Union Hall, in the said parish of, &c., divers credible witnesses, to wit, one J. T., one I. B., and one W. A., came before us the said justices, upon their several oaths, on the holy Gospel of God, to them severally and respectively, now here and in the presence of the said J. T., I. B., and W. A. respectively, duly administered, depose, swear, and in the presence of the said J. G., (the defendant), upon their oaths aforesaid, severally affirm, and say," &c., was held sufficiently to show, that the witnesses were severally sworn in the presence of the magistrates and defendant. (b) See the cases collected and compared, Pal. 143, to 150. (c) Pal. 1.50, where it is said to be questionable if the presumption would now be made. See ante p. 598. (d) R. v. Crouther, 1 T. R. 126; Pal. 150; R. v. yipont, 2 Burr. J165. General Form of Conviction. so that the court may judge of it, and that merely stating the result of it would not suffice(a). This has Distinction be- been recognized as one of the known distinctions be- andconvlctions. tween orders and convictions, in the former of which, it is unnecessary to set out the evidence(^). The rule is now confirmed in the general form given by Stat. 3 Geo. IV. c. 23, the direction of which is to " state the evidence as nearly as possible in the words used by the witness, and if more than one witness be examined to state the evidence given by each." This direction Both for pro- includes both the evidence in support of the informa- secui{on and defence. tion and for the defence, both of which must be set out(c). The justices are not, however, bound to set out all the irrelevant matter which may happen to be given in evidence before them ; the direction is to be understood to mean such evidence as is relevant to the charge contained in the information(rf). Neither are the () R. v. Green, 10 Mod. 212 ; R. v. Baker, I Str. 316 j R. v. Theed, 2 Str. 919 ; R. v. Killett, 4 Burr. 2063 ; R. v. Reed, Doug. 469 ; R. v. Vipont, 2 Burr. 1163, 1165 ; R. v. Selway, 2 Ch. Rep. 522. One class of cases (convictions on the now repealed English Game Act, 5 Anne, c. 14) are apparently inconsistent with this rule, but it has been justly observed, that the grounds upon which this exception was allowed, instead of contra- dicting, afford the strongest confirmation of the general rule, Pal. 158 j see the cases collected and commented upon, ib. p. 154, et seq. In R. v. Clark, before the passing of the Statute when the magistrate set out all the evidence for and against the defendant, in a game conviction, the judges highly com- mended his conduct in so doing, and recommended it as a precedent to be followed, 8 T. R. 222 j and since the passing of Stat. 3 Geo. IV. c. 23, it has been held necessary to set out the evidence at length, even in a convic- tion under Stat. 5 Ann. c. 14 ; R. v. Warneford, 5 D. & R. 489 ; 2 M. C. 511. So in the return to a certiorari, the evidence on which an order of dismissal in a revenue information has been made should be set out, R. v. M' Nicholas, 3 L. R. N. S. 190 ; R. v. Murray, ibid. (6) R. v. Lloyd, 2 Str. 999, see post. (c) In re Rix, 4 D. & R, 352 ; 2 M. C. 249 ; R. v. Marsh, cited in the judgment, and 4 D. & R. 264, n. (rf) By Abbott, C. J., In re Rix, ubi sup. 628 The Conviction. As nearly as words of the e witness, Mandamus to dcnce* ^ Misrepresent- ing evidence, What evidence When convic- tion is on view, magistrates bound to set out every word ; all that is re- q uu 'ed of them, is to set out the evidence as nearly as possible in the words used by the witness, that is the substance and effect(a) ; but this must be done, and in a case where the witness was made to speak in the words of the Act of Parliament, the court observed, that f( no illiterate witness, nor indeed any witness would say, f did use a certain engine called a gun, and a certain dog called a pointer, to kill and destroy game.' The conviction must set out the language used by the witness, that it may be seen whether a right conclusion is drawn from it ; the court will not assume that the justice has done his duty, unless he tells us so by his own acts"(&). If the justices omit to state the evidence fully in the conv * ct i n > tne y ma y ^ e compelled by a mandamus to do so(c) ; and if the magistrate endeavour to shelter himself from detection, by merely stating the offence in the terms of the Act of Parliament, as if it were the legal effect of the evidence, when the evidence itself would not warrant fag conclusion, he subjects himself to a criminal infor- mation, on a proper case laid before the court(d). The evidence which ought to be adduced to warrant a conviction, and which, therefore, ought to be set out in the record, has been already considered (e). When the conviction is on view, and all the facts necessary to con- g^ute the offence are capable of being ascertained on view, the evidence is of course not set out, nor need (a) By Abbott, C. J., in R. v. Warn/or d, 5 D. & B. 480, 2 M. C. 511. (&) Id. ibid. (c) In re Rix, and R. v, Warnford, ubi sup. ; R. v. Marsh, 4 D. & B. 264, n. ; R. v. Allen, cited 5 D. & B. 490. (d) R. v. Pearce, 9 Ea. 359, by L. Blanc, J. ; see also R. v. Lovet, 7 T. E. 159. (e) Ante, p. 599, et seq. General form of Conviction. 629 the particular facts presented to the justice's view be stated(a), The information and the evidence ought to be kept information . , and evidence to perfectly distinct, and it will be an objection it they be be kept distinct, so confounded, as not to let it appear distinctly, what is information and what is evidence(). If the proceedings have been adjourned (c), the fact Adjournment, of the adjournment should be stated in the convic- tion^). 5. After setting out the evidence for the proseeu- Judgment. tion and the defence, the next step is, to state the judg- ment, which consists of two parts, the conviction and the award of punishment(e). A formal style of adjudication, does not seem absolutely necessary in convictions, as in judgments at common law, and expressions tantamount to merely stating that the defendant was convicted have been held sufficient(/). It is proper, however, in what form, since Stat. 3 Geo. IV. c. 23, has prescribed a particu- lar form of adjudication, to adhere to it strictly (y) as far as is practicable. When two or more offences have When several been charged in the information, if the defendant is found guilty of all, the conviction may state him to have been guilty of the " offences" charged in the informa- tion ; but if he be found guilty of one only, it should ap- pear by the judgment, of which of them he has been (a) R. v. Wilson, 1 Ad. & EL 627; 3 Nev. & M. 953, in which case a mandamus to the Justice to set out the evidence was refused ; and see the same case when the conviction was afterwards quashed, 5 N. & M. 164. (6) R. v. Green, Cald. 391 ; Pal. 169. (c) Ante, pp. 593, 606. (rf) Pal. 189 ; 1 Burn, 893. (e) Pal. 190, and see the form in Stat. 3 Geo. IV. c. 23. (f)R. v. Speed, Carth. 502, per Cur. ; R. v. Thompson, 2 T. R. 18 ; R. v. Jefferies, 4 T. R. 768 ; R. v. Chandler, 1 Lord Raym. 583. 0) See forms in Appendix ; Pal. 191 ; Hult. 60. 630 The Conviction. found guilty, and in such a case, judgment that the de- fendant is convicted of the said offence^ is bad for duplicity, as it does not appear of which offence he is convicted (a). But the objection is removed if the infor- mation specifies for what particular offence the penalty is claimed, so as to leave no uncertainty as to what the pe- nalty is to be referred to(&) ; or if there be only some ad- ditional matter charged, which is not punishable sum- Form, marily(c). In these cases the conviction should state, that the said E. F. is guilty of the offence firstly above charged upon him in the said information, for that he the said E. F. on the at, &c.(d) Adjudication of With respect to awarding the punishment, (what- ever doubt may have existed formerly), it is now settled, that an express adjudication of the penalty, is in all cases necessary in the conviction, whether the punish- ment be absolutely fixed, by the Statute, or discretion- ary with the justices, and whether it be a corporeal must strictly punishment only, or a pecuniary penalty (6?) ; and it must be strictly in accordance with the authority given by the Statute, for any excess invalidates the conviction(/) ; (a) R. v. Solomons, IT. R. 251 ; Newman v. Bendyshe, 2 Per. & Davis, 340; 10 Ad. & Ell. 11. Where several acts are charged, although each act separately would render the defendant liable, yet, if supposing them done at the same time, they together constitute but one offence, and are so charged, (as is the case in an information for using a dog and gun, to destroy game, see R. v. Lovett, 7 T. R. 152), it is the same as if only one act were mentioned, and an adjudication " that the defendant is guilty of the said offence" is of course good; Hult. 61. (6) R. v. Chandler, 14 Ea. 267; Pal. 203. (c) R. v. Drake, 2 Sho. 489 ; Pal. 204. (d) 1 Burn, 894. (e) R. v. Hawks, Str. 858; R. v. Vipont, 2 Burr, 1166; R. v. Harris, 7 T. R. 238 ; see R. v. Payne, 4 D. & R. 72 ; R. v. Ellwell, 2 Lord Raym. 1514; 2 Str. 794; R. v. Ashton, cited 2 Burr. 1166; see Pal. 191, et seq. Hult. 62. . (/) Groome v. Forrester, 5 M. & S. 314 ; ante, p. 615 ; PaL 195. General Form of Conviction. 631 and a judgment for too little, is as bad as a judgment for too much(fl); and where there is more than one Statute applicable to the offence, it will be bad if it blends the penalties under both(&). The penalty, whether pecuniary or corporeal, must Certainty ne- not only be strictly such as is warranted by the Sta- jng^he penalty, tute(c), but must be set out with certainty and precision in the conviction. Thus, a conviction adjudging that the parties be imprisoned till they pay a fine to the King is bad(d). So where the Act directed that the defendant after his imprisonment might be employed in his Majesty's service either by sea or land, it was not sufficient in the judgment to direct that he be sent and employed in his Majesty's service, without specifiying whether by sea or land(e). And where several offenders Penalty to be are included in the conviction the adjudication must ^ej y gainst" specify the proportion to be paid by each, and an award each offender. of a joint penalty against more than one invalidates the Award of costs. whole conviction(/). So the sum added to the penalty for costs must be specifically stated, and an award of the penalty " together with the charges previous to and attending the conviction," or " together with the reason- able charges of the conviction," will be bad for un- certainty^); and an award of such costs as another shall adjudge is bad, because the power of awarding costs cajinot be delegated(/j). Every thing which is (a) R. v. Solomons, 1 T. R. 252. (6) Ante, p. 616. (c) Ante, p. 615. (d) R. v. Drake, Show, 489. (e) R. v. Patchett, 5 Ea. 341 ; see 17 Geo. II. c. 5, Eng., now rep. (/) Morgan v. Browne, 6 Nev. & M. 57 ; ante, p. 617- (g) R. v. Hall, Cowp. 60; R. v. Symonds, 1 Ea. 189; R. v. Payne, 4 D. & R. 72 ; and see the observations of Lord Ellenborough in Groome v. Forrester, 5 M. & S. 314, as to the indefinite nature of the adjudica- tion of imprisonment till the defendant should deliver up " all and every the books," &c., without specifying them. (/i) R. v. St. Mary, Nottingham, 13 Ea. 57, note ; ante, p. 618. G32 The Conviction. Whatever is made by the Statute a constituent part of the punish- nient, and not left to the discretion of the magistrate, punishment must necessarily form a part of the judgment expressed must be stated. . in the conviction. 1 hus, where a Statute authorized the justice to punish the offender by commitment, " there to remain and be corrected and held to hard labour, for, &c., or otherwise by abating some part of his wages,"&c. ; it was held, that if the magistrate selected the punishment by commitment, the correction (by which the court un- derstood whipping) was a necessary part of the judg- When punish- ment(a). When, however, a Statute inflicts a penalty, gent in default an ^ directs an alternative punishment, (as that the de- of satisfying fend ant be committed or set in the pillory in default of payment, or if a sufficient distress,) it is sufficient if the justice adjudges the penalty and its distribution without Better to state, noticing the contingent punishment(7>). But it is said, that if there be a discretion as to the duration of the imprisonment, the term awarded ought to appear in the conviction ; and, if not necessary, it is at all events obviously advisable that it should be awarded by the justices con- Stating the victing the defendant(c). When the Statute makes a appropriation P of the penalty, complete and determinate disposal without leaving any thing to the discretion of the justice, the conviction need not contain any express award as to the appropria- When unneces- tion of the penalty, and it it sufficient to adjudge it in sarv - the form prescribed by Stat. 3 Geo. IV. c. 23, " to be distributed" (or "paid/' as the case may be), according to the form of the Statute in such case made and pro- vided(d) ; for in these cases the Statute applies the (a) R. v. Hoseason, 14 Ea. 606 ; under Stat. 20 Geo. II. c. 11, Eng., See Stat. 25 Geo. II. c. 8, s. 2, Ir. in Appendix. (6) R. v. Chandler, Carth. 501 ; 5 Mod. 446 ; pillory is, however, abolished by 7 Will. IV. and 1 Viet. c. 23 ; R. v. Helps, 3 M. & S. 331 ; and see R. v. Neville, 2 B. & Ad. 299. (c) See Hult. Con. 71. (d) R. v. Barrett, 1 Salk. 383 ; Pal. 209 ; 1 Burn, 895 ; Hult. 67. General Form of Conviction. 633 penalty with such certainty that the judgment can be unequivocally carried into effect by reference to the Act alone. But where the appropriation is left to the discretion of the magistrate, and he is to determine either the parties to whom the penalty or part of it is to when neces- be paid, or the proportions in which it is to be divided, sary * it will, notwithstanding Stat. 3 Geo. IV. c. 23, be in- sufficient to adjudicate the penalty in the above concise form, but the parties to whom and the proportions in which it is payable must be specified(a), so as to leave no part of the judgment or execution liable to uncer- tainty. This general form also applies only to cases where no form is given by the Statute(). An award to the what precision poor of a township when the Statute speaks of a parish, lsnecessal 7- is irregular (c), as there may be many townships in the same parish ; when, however, the evidence spoke of the parish of Lambeth, and the adjudication was to the poor of St. Mary, Lambeth, it was held to be no va- riance, as it did not appear that there were two distinct (a) Griffith v. Harries, 2 M. & W. 335 ; R. v. Dimpsey, 2 T. R. 96; and see R. v. Symonds, 1 Ea. 189; R. v. Seale, 8 Ea. 568, 573; Pal. 210 ; 1 Burn, 895 ; R. v. Priest, 6 T. R. 538 ; Hult, 67, 68. (6) Griffith v. Harries, 2 M. & W. 335, 342. Stat. 1 & 2 Will. IV. Eng,, c. 32, directs s. 37, penalties thereunder to be paid to the over- seers of the poor or to some other parish officer as the convicting justices shall direct ; Stat. 5 & 6 Will. IV. c. 20, s. 21, recites this and enacts, that one moiety of such penalties shall be paid to the informer, and the other moiety only go to such overseer or officer, to be applied as before. It was held in this case that a conviction adjudging the whole penalty to be given to " W. J. one of the overseers of the, &c., to be by him ap- plied according to the direction of the Statute in such case made and pro- vided," was bad, and would not protect the magistrate in an action ; as under the latter Statute it was a necessary part of the judgment that the justice should award one -half to the informer and one-half to the overseer. See ib. 343. (c) R. v. Priest, 6 T. R. 538 ; see also R. v. Wyat, 2 Lord Raym. 1478. 4 M 634 Of the Conviction. What a suffi- parishes so called(a). Where the penalty is awarded tiou! descnp " to a corporation^), it seems it will be sufficient to de- scribe them in their official capacity without naming them. Thus, an adjudication of part of the penalty " to the overseers of the poor of the parish of," &c., is enough without naming the persons who were over- seers^). Statement when Where the penalty has been mitigated(cT) it ought penalty has \ . . been mitigated, to be so stated in the conviction, for otherwise it cannot appear to the court upon appeal how or in what degree the magistrate has exercised his power in this respect ; the conviction ought, therefore, first to adjudicate the whole penalty inflicted by the Statute, and then in a separate clause state to what sum the justice has re- duced it(e). Judgment bad As thejudgment is one entire thing if it be bad as to part the whole conviction is thereby vacated, although the several facts of the judgment may be in their nature distinct(y). Conclusion 6. The conviction concludes with an attestation under hand and un der the hand and seal of the convicting justice or justices, which is the only proper method of au then- Signature, ticating it as the record of his proceeding(g). It should be signed by one or more justices, as required by the particular Act under which it is made ; but if made at Petty Sessions, it should in all cases be signed by two () R. v. Glossop, 4 B. & Al. 616; see Hult, 57. (6) Ante, p. 614 ; 9 Geo. IV. c. 54, s. 34. (c) Hult, 69, referring to R. v. Priest, 6 T. K. 539, in which case it seems to have been taken for granted that such a form of award would be no objection. (d) See ante, pp. 614, 615. (e) Dick. Sess. 801, ante, p. 615 ; see form in Appendix. (/) JR. v. Catherall, 2 Str. 900; R. Patcliett, 5 Ea. 341; and see R. v. Dimpsey, 2 T. K. 97 ; but see R. v. Hale, Cowp. 728 ; Pal. 208 j 1 Burn, 899. ( wai> J rant not to such fines or penalties, or any proceeding shall have been issue. taken by due course of law to quash or annul such de- cision, rule, or order, or other proceeding, it shall be () 2 & 3 Viet. c. 75, s. 11, ante, p. 17, and 16. sub. calc. sect. 11. 652 Levy of Fines and Penalties. Js. P. may issue warrants as allowed by the Statute impos- ing the penalty. Sub-inspectors to report quarterly. Warrants to levy may be issued from time to time till the levy made. On removal of sub-inspector, or justice, his successor shall execute war- rants, &c. lawful for such officers or persons, and they are hereby respectively required, to suspend the issuing of such warrants until such appeal or other proceeding shall be finally decided ; provided always, that in any case in which any Justice or Justices of the Peace is or are now by law authorized to issue his or their warrant for the levy of any penalty, or the committal of any person, immediately, or on conviction had before him or them, or within any period less than the said period of four- teen days, every such justice or justices may issue such warrant accordingly to such sub- (now county) inspector or justice, or any chief constable (now sub-inspector), if it shall seem expedient to him or them so to do, but subject, as to the distribution of and accounting for all sums levied thereunder, to all the provisions of this Act. Sect. 6. Every such sub-inspector of police respec- tively, (and such justice in Dublin), shall and are hereby required on 1st January, 1st April, 1st July, and 1st October in each and every year, to return to the re- spective officers or persons issuing the same what they shall have respectively done in execution of such war- rants ; and the said officers and persons are hereby re- spectively authorized and required to issue from time to time to such sub-inspector (or to such justice) such warrants as aforesaid, or renewals thereof until the full amount of the sums thereby directed to be levied shall be fully paid, or otherwise discharged by due course of law. Sec. 7 enacts, that in case any sub-inspector (or justice) to whom such warrant or warrants shall be di- rected, shall be removed by death or otherwise from his office, it shall be lawful for the person who shall be appointed in his stead, and he is hereby required to execute all such warrant or warrants then remaining unexecuted by the person so deceased or removed, and to do all such other matters and things as are herein- Levy of Fines and Penalties. 633 before directed with respect thereto as if such warrant or warrants had been originally directed to such per- son. By 2 & 3 Viet. c. 75, s. 26, it shall be lawful for any County inspec- county inspector to whom any list and warrant shall be ^"."arrantslo transmitted pursuant to the provisions of 1 & 2 Viet. c. sub-inspectors. 99, to issue a sub-warrant to any sub-inspector under his command, thereby requiring such sub-inspector to levy the amount of any fine or penalty, &c., which such county inspector shall be authorized to levy by the list and warrant transmitted to him as by the said Act is directed ; and every such sub-inspector shall possess all such powers for levying the amount thereof and committing parties for nonpayment as are given to the officers styled sub-inspectors under the said Act ; and all sub-inspectors by whom respectively any money shall be received or levied by virtue of any such sub- warrant, shall forthwith pay all monies so received and W i 10 sna n ex- levied into the hands of the county inspector from whom ecute them and such sub-warrant shall have been received, and shall herein, from time to time and at such times and in such manner as such county inspector shall direct, report to him what has been done under or in relation to any sub- warrant so delivered to him, and shall furnish to such county inspector full true and particular accounts of all monies received and disbursed by him under such sub- warrant or in relation thereto, and shall verify such accounts on oath to be administered to him by such in- spector, and also by such vouchers and in such manner and according to such regulations as the Chief Remem- brancer of the Exchequer shall from time to time di- rect. 1 & 2 Viet. c. 99, s. 8, contains provisions as to ap- Provisions as pealing for reduction or remission of fines, &c., but pro- AcUnappliVa^ vides that nothing therein shall entitle any person to bie to J. P. such right to appeal in any case of summary conviction 654 Levy of Fines and Penalties. where no appeal is given by the law under which the fine or penalty is inflicted, or to any case where the fine or penalty is imposed or levied by the authority of any court of Petty Sessions. In case the Sect. 9. In all cases when the person or persons ooTofdie jurii' a g amst whom any warrant or warrants shall issue under diction, war- thj s Act shall reside or have fled or removed from out issued to the f tne jurisdiction of the sub-inspectors of police, (or of county inspec- sucn j us tice), to whom such warrant or warrants shall tor where he re- _ __. i i n i i /. i /> sides, or any be issued and directed, it shall be lawful for such sub- goods of his inspector, (or such justice), and he is hereby required to issue his warrant under his hand and seal to the sub- (now county) inspector of police for the county in which such person or persons shall then reside or be, (or to any such justices, if in Dublin metropolis), in which any goods or chattels or other property of such person or persons shall be found) requiring such sub- (county) in- spector of police or justice forthwith to execute same; Return to be and the said last-mentioned sub- (county) inspector or made to the j us tice is hereby required, within 3 months after the county inspec- J J tor, receiving receipt of such warrant, to return to the sub- (county) is ms P ector or justice from whom he shall have received accountable. the same what he shall have done in the execution of such warrant, and in case a levy shall have been made to pay over all moneys received in pursuance of the war- rant to the sub-inspector or justice from whom he shall have received the same, who shall be accountable for the same as if directly levied by himself. Sub-inspector Sect. 10. The said respective chief constables (now novnTofwar- su ^-inspectors) of police (or the said justice) shall, and rants in the they are hereby required respectively forthwith to lodge land or branch ^e amount of every such warrant received by him in the thereof. Bank of Ireland, or in some branch bank thereof, to the credit of the Paymaster of Civil Services in Ireland, in How party en- an account to be entitled in the matter of this Act ; and titled shall tne sa j ( j p a y mas ter shall, from time to time, draw on Levy of Fines and Penalties. 655 the said Bank of Ireland for such part or parts of the obtain P a y- . . ! ment. said sums so lodged as are appropriated to any special purpose by any Act or Acts now in force or under this Act in favour of the party, public institution, or fund entitled thereto, taking a receipt for the same in writing, which shall not be subject to any stamp duty ; and the said Paymaster shall keep an account of all sums paid under this Act. 11. The respective officers for the Accounts for . r i i i Chief Remem- time being of the respective courts aforesaid, and the brancer to be other persons bound to keep such accounts of fines and transmuted by 1 . the officers or penalties as aforesaid, and the said respective clnei con- persons keeping stables (now sub-inspectors), or the said justice who account of fines. shall have been empowered to levy any sums of money, and the said Paymaster of Civil Services shall, on the first Monday in the months of January, April, July, and November in each year, make out and transmit to the Chief Remembrancer of the Exchequer, in such form and verified as he shall direct, an account of all fines, &c., directed to be levied in their respective courts or by them respectively, and of all sums of money levied, paid, or applied, or then remaining in said bank to the credit of the account aforesaid ; which accounts, by sect. Chief Remem- 12, the Chief Remembrancer shall, once a-year at least, au( jj t accounts. audit and certify ; and sect. 13 empowers the Chief Re- Power to Chief membrancer to issue warrants for the levy of fines or t^"^ " any balance remaining unpaid to county inspectors ; and rants, &c. by sect. 14, he may fine inspectors, &c., for neglect. Stat. 2 & 3 Viet. c. 75, s. 27, recites, that the above Provision as to provisions touching the rendering of accounts to the app^o country Chief Remembrancer by chief constables, and touching inspectors. payments to be by them made to the credit of the Pay- master of Civil Services were intended to apply to sub- inspectors, enacts, that they shall be held to apply to the officers to be henceforth styled county inspectors ; and sect. 28 empowers the Chief Remembrancer, onap- Process against plication of the county inspector, to issue process against defaulters - C56 Levy of Fines and Penalties. officers, and persons making default in rendering ac- countsj transmitting lists, or paying or remitting money to such county inspector. Distribution of Stat. 1 & 2 Viet. c. 99, s. 15, empowers the Lord Lieutenant in council, so long as the hereditary reve- nues of the Crown shall not be payable to her Majesty, to direct that money paid to the Bank of Ireland under this Act, and not appropriated by any Act to any spe- cial purpose, shall be distributed among local charities supported wholly or in part by Grand Jury presentment, and to the Loan Fund Board established under 6 & 7 Will. IV. c. 55, and in reduction of presentments for the support of the constabulary. Sub-inspector Sect. 19 enacts, that any chief constable (now sub- awrtion without ms P ec tor) empowered to levy any sum of money under a license. this Act, may and is hereby authorized to sell by auc- tion any distress and distresses levied by him or by his authority under the provisions of this Act, without pro- Costs approved curing any license to act as an auctioneer, and may deduct by two Js. P. ou t of the amount of such sale all reasonable costs and sions. charges actually incurred by him in effecting the same, to be approved by two magistrates at Petty Sessions. Sect. 4 appli- It will be observed that the proviso in sec. 4 is appli- cases of sum- ca ^ e to most cases ^ summal T conviction before magis- mary convic- trates, the Statutes generally empowering them to issue their warrants either "immediately" or " on conviction," To what the or w i tnm a less period than fourteen days(a). The Statute extends. Act also mentions penalties and fines, and does not ex- tend to various cases (e. g. in the nature of civil reme- dies), in which justices are empowered to enforce their decision by distress or commitment. () See the Stats, in Apppendix. When a warrant is not issuable for a certain time, if the day on which it is issued is not too early, it will not be bad because dated too soon, and the days should generally be counted, one inclusive and the other exclusive, Newman v. Hardwick, 3 N. & P. 368 ; ante, p. 548, 549. Of Distress under a Justice's Warrant* 657 II. As the power of issuing a distress warrant arises Distress under only by virtue of an express statutable provision, the ^J^ 811 exercise of it must be in strict accordance with the di- rections of the Statute(a). Sometimes the justice is di- rected to issue the distress warrant immediately upon nonpayment of the penalty, in other cases only upon failure of payment after a certain number of days. In the latter case, if the Statute authorize its enforce- When demand ment on refusal or nonpayment no demand is necessary to enable the magistrate to issue the warrant after the expiration of the time limited for payment, as it is the duty of the defendant to see that payment is made(6). When, however, a demand is necessary before a dis- if after de- tress can be made, a reasonable time, varying according n to the circumstances of the case, ought to be allowed to elapse before the warrant is put in execution (c). It is proper in all cases, before the issuing of a distress- Previous sum- ... ,. . , mons in all warrant by a justice, that the party distrained upon cases% should have been summoned. When the distress issues for the purpose of enforcing a conviction, it is obvious, from what has been already stated, that a previous sum- mons is indispensable ; but there is a class of cases dis- tinguishable from summary convictions, in which justices are empowered, on neglect or refusal to pay by persons liable to the payment of money leviable under particular Acts, to issue a distress warrant(d). In the construc- tion of such powers, it has been held, that even sup- posing the Act authorized the justices to grant a warrant without a previous summons, they would act rightly in first issuing a summons ; and that it it is a general rule Even when not (a) Ante, pp. 544, 646; Hull. 112. (6) Wootton v. Harvey, 6 Ea. 75 j Pal. 219 ; Hull. 111. (c) Gibbs v. Stead, 8 B. & C. 528 ; Huh. 110, 111. (d) See 5 & 6 Will. IV. c. 116, ss. 152, 159 ; App. p. Ixxi, Ixxvi ; 40 Geo. III. c. 71, s. 8 j 7 Geo. IV. c. 42, s. 4 ; the cases referred to in the text arose under Acts inapplicable to Ireland. 4p 0,58 Of Distress under a Justice's Warrant. required by the that when a magistrate grants a warrant in the nature Act unless it be _ . I.IT/. clearly dispens- an execution, he is bound, first to summon and hear ed with. t h e p ar ties, unless the Statute under which he acts clearly renders the discharge of that function ministerial only, or in some other manner dispenses with the summons and hearing(#). Thus, when a distress warrant against overseers of the poor (in England) for not paying over the balance in hand, did not distinctly set out the sum- mons, the hearing before the magistrate and the re- fusal to pay it was held bad, and the justices and officers Distress for executing it liable to an action(6). As to such warrants whfclfoTeTs^ it; has been also held > that if a P art y enter and make bad. one distress under four several warrants, one of which is for a bad rate, he may, in replevin(c), justify under the good, and abandon the bad warrants ; and if the causes of taking were distinct, and the avowries sepa- rate, will be entitled to restitution of all the goods ; and that in such case the distress is not void(d), though the party injured might, probably, in some cases, maintain an action for an excessive distress(e). It seems, however, that if one warrant only be made for levying two rates, one of which is bad, the warrant will be bad for the whole(/). (a) R* v. Hughes, 3 Add. & Ell. 425 ; Painter v. Liverpool Gas Company, 3 Add. & Ell. 433 ; R. v. Benn, 6 T. R. 198; R. v. Js. of Stafford, 1 Hari & W. 328 ; 1 Burn, 1163-64. (&) Harris v. Stewart, 7 C. & P. 779. (c) The distress was for poor rates, which from the wording of the English Stat. 43 Eliz. c. 2, may be replevied ; see Hult. 116. (d) Governor, $c., of Poor of City of Bristol v. Wait, 1 Add. & Ell. 264 ; 3 Nev. & M. 359. () Id. by the Court, 1 Ad. & El. 282. (/) Milward v. Coffin, 2 Bl. 1331. See, however, Hutchins v. Cham- bers, 1 Burr. 580, where it was held, that if an appeal be given from the rate, the parties who think themselves aggrieved thereby should appeal, and that a defect in the rate unappealed from will not avoid the warrant, ib. 587. The Distress Warrant. 659 The distress warrant should be in writing, generally Form of the warrant in under the hand and seal of the magistrate. If the otatute writing under so requires it, it must be so ; but if it is not so directed hand and sealt by the Act it does not appear necessary that it should be under seal, and where the Statute authorized the justices to issue warrants under their hands for levying forfeitures, it was held that warrants under their hands alone were sufficient(a). If made at Petty Sessions the if at Petty Ses- warrant should be signed by two justices at least; unless there be only one present, in which case the signature of two is unnecessary, unless required by the particular Statute(6). If it be issued by a single magistrate out of Petty Sessions, he should report the case to the next Petty Sessions. Some Statutes specify to whom the warrant of To whom di. distress is to be directed. In other cases a constable r< is the proper person to execute it(c). When the sum to be levied is a penalty, and the magistrate does not adopt the course prescribed by Stat. 1 & 2 Viet. c. 99, s. 2, above mentioned, the 4th section of that Act allows him to direct the warrant to any county or sub-inspec- tor of the constabulary(d). () Padfield v. Cabell, Willes' Rep. 412; Hull. 112; 1 Burn, 1165. (6) Stat. 7 & 8 Geo. IV. c. 67, s. 15, and 6 & 7 Will. IV. c. 34, s. 7 ; ante, 88, 92- (c) Pal. 221, 222, and n. (n) ; 1 Burn, 1165; R. v. Wyat, 2 Lord Raym. 1189 ; 6 Will. IV. c. 13, ss. 15, 16; ante, pp. 19, 20. (d) Before the passing of this Statute the Constabulary Act, 6 Will. IV. c. 13, s. 15, ante, p. 20, had expressly prohibited the employment of the constabulary in enforcing the laws for the preservation of game or fish, ex- cept where information has been given on oath of forcible resistance having been actually made. As to the power of justices at common law to direct their warrants to any indifferent person, see Dalt. c. 117, p. 332; 1 Hawk, c. 13,s.ll; 1 Hale, 158; 2 Hale, 110 ; R. v.Wyat, 1 Lord Raym. 1189 ; Fort. 129, S. C. ; ShergoU. v. Holloway, Str. 1002 ; Lord Lovelace's case, Carth. 78 ; and see the justice's oath, ante, p. 7 ; as to warrants to arrest, ante, p. 179. It is, however, generally laid down by English text writers, 660 Distress Warrant Execution. Body of the warrant. Direclion to pay- Time and place for return. Reciting defec- tive order or conviction. Statutable forms. Execution of the warrant, analagous to M./. Cattle,tools,&c. not exempt fjom. The body of the warrant then shortly recites the conviction, and commands the officer to levy the sum specified. In England it is usual (a) also to add to whom the money is to be paid ; and in some cases this addition may be proper in Ireland also ; but as money levied for penalties in general is directed by Stat. 1 & 2 Vict.c.99(),to be lodged in the Bank of Ireland or some branch thereof, the direction as to the payment of the money by the constable, as used in the English forms, is inaplicable in such cases(c). In general, the warrant should appoint a time for returning it, and also a place where it should be returned ; but this is not indispensa- ble(cT). A warrant of distress founded upon and recit- ing a defective order or conviction is bad, and if goods are taken under it the justices are liable to an action(e). The form of the warrant is sometimes prescribed by the Statute allowing it to be issued(/), and when this is the case it ought to be strictly followed. II. 3. Execution against the defendant's goods un- der a justice's warrant, though called a distress, is in reality analogous to a common law execution^) ; and accordingly it has been held, that beasts of the plough, under circumstances in which they would not be availa- ble for a distress of rent, may be taken under a justice's warrant for a poor rate under an English Statute^), that warrants issued under particular Acts of Parliament should be directed to a constable, unless otherwise allowed by the Act ; see Pal. & Burn, ubi sup. ; Hult. 1 12 ; Arch. J. P. p. 282 ; 1 Ch. Cr. L, p. 38, a. (a) See Pal. 219 ; 1 Burn, 1164. (6) Sect. 10, ante, p. 654 ; and see sect. 4, ante, p. 652. (c) See form in Appendix. The warrants in use in the Dublin Police Offices do not contain this direction. ( iii J. P. may com- * m o ne y is adjudged to be paid, upon the return ofany mit the offender; such warrant of distress, that no sufficient goods and chattels of the offender or defendant can be found whereon to levy the sum adjudged to be paid, and all costs and charges, within the jurisdiction of such justice, &c., or in case it shall appear to such justice, &c., either by the confession of the party or parties, or otherwise, on return of that he, she, or they have not sufficient goods and chat- confestion or tels within the jurisdiction of such justice, &c., sufficient proofofnosuffi- whereon to levy such sum of money, costs, and charges, ess ' such justice, &c. 3 at his or their discretion, and without issuing any warrant of distress, may proceed in such and the like manner as if a warrant of distress had been issued and a nulla bona returned thereon ; and it shall be lawful for such justice, &c., to issue forth his or their warrant for committing such offender or defendant to the common gaol, for any term not exceeding 3 calendar months, unless the sum adjudged to be paid and all costs and charges of the proceedings shall be sooner paid : provided always, that the amount of such costs and expenses shall be specified in such warrant of com- mitment. Js.P. may com- Sect. 4 recites, that cases may occur where the re- in what Cases allowed. G(>9 covery of such penalty or forfeiture by distress, may ap- pear to be attended with consequences ruinous or espe- rant of distress cially injurious tooffenders and their families ; and enacts, " that the justice or justices, magistrate or magistrates, shall be empowered, and they are hereby authorized, in all cases and upon all such occasions as to them shall seem fit, and where such consequences are likely to arise, to cause to be withheld the issue of any warrant or war- rants of distress, and to commit the offender or of- fenders aforesaid immediately after conviction, and in default of payment of the penalty or forfeiture with costs and charges, to the common gaol or house of cor- rection, for such time and in such manner as are in such Acts respectively mentioned and directed : provided Consen * of . party in writing. always, that it be by the desire or with the consent in writing of the party or parties upon whose property the penalty or forfeiture is to be levied. Except in the cases provided for in this Statute the la cases un magistrate cannot legally commit where the commit- ment is merely a subsidiary means of enforcing the fine till return to in default of a sufficient distress, till he has ascertained rant> the want of sufficient goods to answer the penalty ; which should regularly be certified by the officer's return to the warrant of distress(). The operation of the Sta- Statute applies tute is confined to cases of penalties and forfeitures only, and does not extend to civil proceedings before magis- (a) By Parker, C. J., in R. v. Hawkins, Fort. 272 ; Hill v. Batman, 1 Str. 710 ; Pal. 229 ; 1 Burn, 792. When the Act authorizes the jus- tice to levy the penalty by distress and sale, and in default of a sufficient distress to commit the offender for any time not exceeding a certain period ; if the proceedings be removed by certiorari and affirmed, the court above will not issue a ca. sa, on a return that the defendant has not goods to satisfy the penalty, as they have no authority to exercise the discretion given by the Act to the justices ; the proper course is to send back the record ; see R. v. Neville, 2 B. & Ad. 299. 670 Commitment) to what prison. trates as for the recovery of wages or the like(a). Upon the return to the warrant of distress or other sufficient proof of the want of effects to distrain upon, (as the Statutes applicable to the case allow), the justice ought to make a record with an adjudication of the fact of the want of a distress, and not merely of the return, and issue the warrant of commitment thereupon(Z>). To what prison. III. 2. Stat. 7 Geo. IV. c. 74, s. 116, enacts, that whenever any person shall be lawfully convicted before any court, or judge, or Justice of the Peace, of any offence, and shall be punishable by imprisonment, it shall and may be lawful for such court, judge, or jus- tice, to sentence such offender to be confined in any House of Correction within and belonging to the county, county of city, or county of a town, where such offender shall be convicted, and such offender shall and may be committed to and detained in such House of Correction accordingly ; any law, usage, or custom to t ^ ie contrary notwithstanding; and in all cases where any one House of Correction shall have been or shall be built, repaired, or enlarged at the joint expense of any two or more counties, counties of cities, &c., it shall and may be lawful for the court or justice before whom any offender shall be convicted in either or any of the said counties, &c., of any offence, and shall be punish- able by imprisonment, to sentence such offender to be confined in such House of Correction, although such House of Correction may not be locally situated within the county, &c., within which such offender shall be convicted. III. 3. Commitments in execution are construed more House of Cor- counties. Form of war rant. (a) Wiles v Cooper, 5 N. & M. 279 ; 1 Burn, 1169. (6) Pal. 230; R. v. Chandler, 1 Lord Raym. 545 ; R. v. Wyatt, 2 Lord Raym. 1196. Warrant of Commitment. 071 strictly than commitments for safe custody(V?) ; the rules Strictly con- J , p strued. as to the requisite certainty in commitments for safe custody are, therefore, more strongly applicable to commitments in execution (&). The warrant must be directed to some gaoler in par- Direction. ticular, and is bad if it only directs in general terms that Specifying par- the defendant be carried to prison(c) ; and the prison ticular prisoru should be designated by its appropriate legal title(c?). The warrant of commitment must be in writing Warrant to be under the hand and seal of the justice by whom it is sea j . The detention of the offender under a bare Detention by parol command cannot be justified any further than is paro1 ' necessary for making out the warrant(/). But though it ought to be made out as soon as possible, it need not be so immediately, and the detention of the party for the time required to make it out is justifiable^). So also a detention under sec. 1 of Stat. 5 Geo. IV. c. 18, sup., and of similar clauses in particular Acts, until the return of the warrant of distress may be by parol(Vi). (a) R. v. Gourley, 7 B. & C. 669 ; Wilkins v. Wright, 2 Cr. & M. 203 ; 1 Burn, 794. 0) Ante, p. 476, et seq. ; 1 Burn, 793. (c) R. v. Smith, 2 Str. 934 ; Pal. 232. (rf) /?. v. Gregg, ante, p. 477, n. (e), and 537, n. (#). (e) 2 Hawk. c. 16, s. 13; Pal. 231; Hult. 119; 1 Burn, 793; ante, p. 476. (/) Hutchinson \. Lowndes, 4 B. & Ad. 118; 1 Nev. & M. 674. In this case Patterson, J., observed, that although Stat. 5 Geo. IV. c. 18, s. 2, under which the commitment was made, (vide sup.^), does not say in express terms that the warrant should be in writing, it does so in effect, for the amount of costs and expenses is to be specified in the commitment ; and Park, J., observed, that if a justice might imprison without a com- mitment in writing it might as well be said that a sheriff may seize the goods of a defendant before the^/i. fa. is made out ; 76. p. 1 22 ; Pal. 231 ; Hult. 120; 1 Burn, 193. 0) Id. ib. (h) So held with respect to a similar clause in Stat. 13 Geo. III. c. 80, Eng., in Still v. Walls, 7 Ea. 534 ; Hult. 120; Pal. 231. 672 Warrant of Commitment. Must show The authority of the justice should appear upon authority of . _ , / \ j r. - A j. P. ' the face of the commitment(a) ; and where a commit- ment stated that the defendants had been "brought before me and convicted," and the name of the justice was signed over the place for the seal, but his authority as a justice did not appear on the warrant at all, the prisoners were discharged, and the court said, the not showing before whom they were committed was a gross Cause of com- defect(). In stating the cause of commitment much more precision is necessary in commitments in execu- Why precision tion than in commitments for safe custody(c). The is necessary. - . cause must be set forth with certainty, that the party may know for what he suffers, and how he may regain his liberty(o?) ; and the effect of not duly stating it, is to deprive him for the time of the benefit of a writ of Must state in habeas corpus(e). The warrant must state that the vTcTionthaTthe offender was convicted.of the offence, and a statement defendant was that he was brought before the magistrate and charged with the offence is insufficient^). The offence must also be set forth with certainty, and stated positively, Not in altema- and must not be in the alternative^). It must be clearly shown that the offence for which the offender has been convicted is an offence within the Statute. (a) R. v. York, 5 Burr. 2684, by Lord Mansfield, C. J. ; 2 Hawk, c. 16, s. 13; Pal. 232; Hult. 120; Eldertons case, 2 Lord Raym. 980, (referred to e contra Pal. 232), was a commitment for safe custody, see ante, p. 476. (6) R. v. York, 5 Burr. 2686. (c) Ante, p. 479. (d) Dr. Groenvelt's case, 1 Lord Raym. 213. (c) By Taunton, J., in Hutchinson v. Lowndes, 4 B. & Ad. 122; 1 Burn, 794. (/) R. v. Rhodes, 4 T. R. 220, 12 Ea. 78, n. (a) ; R. v. Cooper, 6 T. R. 509 j and this averment is required by the clause in Stat. 9 Geo. IV. c. 55 and 56, and various other Acts which obviate other defects in com- mitments under them, see post. (#) R. v. Everett, Cald. 26 ; R. v. Pain ; R. v. North ; R. v. Sad- ier, cited ante, p. 567, which were cases of commitments ; Pal. 234. Warrant of Commitment. 673 Thus where, after reciting a complaint by one M. P., Must show an and that M. P. did suspect that the offender did cut and t he Statute. spoil and take away a certain post, it was averred, that the defendant having appeared, &c., was convicted of " wilfully and maliciously carrying away the same," and adjudged to pay a penalty, and committed in default of payment, the commitment was held bad ; and the court observed that it was perfectly consistent with it that any body else might have cut and spoiled the post and the defendant carried it away, which would be no offence within the Act(a). And though What precision i n* -i -i.il requisite. the offence need not be stated with the same precision as in a conviction, enough must be stated to show an offence within the Statute, so as to give the justice authority to imprison(^). Thus, when the commitment charged the defendant with " fishing with a rod and line in a pond or pool of water commonly known by the name of the reservoir, in the parish of A., the right of fishing in the said pond or pool being the private pro- perty of W. C.;" when it was necessary to bring the offence within the Statute that the fishing should be in some enclosed ground, it was held bad, and the magis- trate liable to an action although there had been a pre- vious regular conviction(c), When an order contained Defective com- the necessary averments to give, the justice jurisdiction, mitment refer- , , IT, i . . . ring to a valid viz. that there had been a complaint in writing and an order, examination on oath, and the commitment made in pur- suance of it did not state these particulars, but referred to the order ; it was held that it thereby incorporated the order, and was sufficient to protect the magistrate (a) 1 Geo. IV. c. 56, (rep. Mai. Trespass Act), R. v. Harpur, 1 D. & R. 222 } 1 M. C. 67 ; see also R. v. Brown, 8 T. R. 26; ante, p. 562, n. (a). 0) By Best, C. J., in Wicks v. CluUerbuck, 2 Bing. 483. (c) Wicks v. Clutterbuck, nbi sup. 4R 674 Warrant of Commitment. from an action ; but the defendant having been brought up on a habeas corpus had been discharged out of cus- tody for these omissions in the warrant(a). Stating want of When imprisonment is only inflicted by the Statute as an alternative punishment for want of a sufficient dis- tress, the warrant ought to notice that as the fact(6). Term and con- The term for which the defendant may be imprisoned charge** ' anc ^ tne con ditions upon which his discharge depends must be set out accurately and with certainty on the face of the commitment, and must be strictly conformable to the directions of the Statute under which he is corn- Must accord mitted(c). Thus, the sum, whether penalty or costs, with Statute. on p avment O f wn i c h the offender is to be discharged Sum to be paid must k e distinctly stated, and for want of certainty in must be dis- ... J stinctly stated, this particular the following commitments have been held bad : a commitment to prison " there to remain till he had paid a fine, to the king," without assess- ing the fine( J) ; a commitment of a toll-gate keeper till he "do account and pay what shall be due to the proprietors of the toll"(V); a commitment for nine months or until the sum of 15 6t together with the charges previous to and attending the conviction shall be paid"(/), or for three months unless the offender before that time paid the sum of 6, " together with the expenses of the warrant, viz., the sum of shil- Condition must fings'Y^). So also the condition upon which the defen- not exceed what () Coster v. Wilson, 3 M. & W. 41 1. 0) R. T. Chandler, 1 Lord Raym. 545 ; R. v. Whitelock, 1 Str. 263 ; Pal. 238. It would seem, however, to be no longer necessary to state how the want of distress appears, see 5 Geo. IV. c. 18, s. 1, ante, p. 667, un- less the Act authorizing the commitment points out how it must appear ; 1 Burn, 795 ; see ante, 669. (c) Pal. 239 ; Hult, 121 ; 1 Burn, 795 ; ante, pp. 615, 646. ( if made at Petty Sessions, should be signed by two justices at least, unless there be only one magistrate present, in which case his signature will be sufficient, unless the particular Statute require the sig- nature of two justices(c). Ifmade elsewhere than at Petty Report to Petty Sessions the case should be reported to the next Petty Sessions of the district, and entered in the registry(t/). Direction of The direction, which maybe either at the commence- ment or conclusion of the commitment, is generally to A. B. constable, and to all other constables of the county, and to the gaoler(e). If it be for default of payment of a penalty, the proviso in sect. 4 of 1 & 2 Viet. c. 99, mentions only warrants directed to a county or sub-in- spector of constabulary^/). Bad in part bad If the commitment be bad in part it is bad in toto ; and a commitment for two sums, one of which was not due, was held bad altogether, though as to one of the When to be sumsitwas correct^). There are some cases in which stricUy as con- Statutes authorize commitments which are, in effect, viction. convictions, and operate as such ; in these cases the warrant is subject to the same rules by which a convic- (a) Robson v. Spearman, 3 B. & A. 493 ; Hult, 122 j and see note (d), p. 675. (6) Pal, 242 j see ante, p. 632. (c) 7 & 8 Geo. IV. c. 67, s. 15 ; ante, p. 88 ; 6 & 7 Will. IV. c. 34, s. 7 j ante, p. 92. (d) 7 & 8 Geo. IV. c. 67, s. 13 j ante, p. 88. (e) See Pal. 243. The forms in use at the Head Police Office in Dublin are directed to the gaoler only. See forms in Appendix. (/) Ante, p. 652 ; see however 6 Will. IV. c. 13, s. 15, ante, p. 20, as to warrants under the Game Acts, &c.'j as to the power to direct to any indifferent person, see the authorities, ante, p. 659, n. (d). (g) Ex parte Addis, 2 D. & R. 167 j 1 B. & C. 90; Pal. 242 j 1 Burn, 797. Warrant of Commitment. 677 lion is tried(#), and every particular necessary to show the jurisdiction of the justices must be set out(&) ; and when the certiorari is taken away the court will (unless the Crown remove the conviction) consider the com- mitment a true recital of it, and the defendant will be discharged though the commitment only be defec- tive^). But in other cases the court will not criticize a commitment with the same strictness as a conviction, if there be reasonable grounds for presuming that Statements in the conviction on which the commitment is founded is u nil G cess dry in free from objection(c?) ; nor is it necessary to state the a commitment, conviction in a precise or technical form, but only to show that the party has been convicted of some spe- cific offence, and by a person having authority for that Evidence, purpose, without setting out the evidence or facts in detail, or mentioning names of witnesses(e) ; nor need Title of Stat. it point out the title of the Statute under which the offender is convicted(/) ; and where a Statute gave a Summary form, short form of conviction, it was held a commitment need not be more special when it referred to and recited the conviction(g) ; nor need it expressly state how the Distribution of penalty is distributable, or to whom it is payable(A), P enalt y- (a^ By Vaughan, B., in Wilkins v. W right, 2 Cr. & M. 203, in re- ference to a warrant of commitment for refusing and neglecting to pay a sura awarded by an order of maintenance of a bastard, under 49 Geo. III. c. 68, Eng.j Johnson v. Reid, 6 M. & W. 124. (6) See Johnson v. Reid, ubi sup. ; see the cases of commitments cited, ante, p. 562, n.(a), and ch. 1, passim,} convictions and orders, ante, p. 640, &c. (c) R. v. Chancy, 6 Dowl. 281. (d) R. v. Rogers, 1 D. & R. 156 ; 1 M. C. 59 j 5 B. & A. 773 ; R. v. Helps, 3 M. & S. 331 ; see 2 Bing. 483. (e) R. v. Walter, 10 Mod. 5 j Massey v. Johnson, 12 Ea. 67, 82 ; and if a wrong name be mentioned as that of the witness, it may be disregarded as surplusage, id. ibid.; R. v. Hawkins, Fort. 272 ; Pal. 236 j Hull, 122. (/) R. v. Harpur, 1 D. & R. 222 ; 1 M. C. 67, by Abbot, C. J. (g) R. v. Wall, Al. & Nap. 178; Appendix, p. xxviii. (h) R. v. Rogers, 1 D. & R. 156 ; R. v. Helps, 3 M. & S. 331. 678 Warrant of Commitment. though it should or at least it is better it should appear from some part of the commitment who is entitled to it(). Variance be- When there is a material variance between the con- tween convic- . . . tion and com- viction and the recital of it in the warrant of commit- mitment. ment, (as when the defendant is committed for an offence under a different Statute from that on which he was convicted, although it may relate to the same subject matter), the commitment will be bad and the magis- trate liable to an action (6). Clauses aiding Defects in the warrant of commitment are frequently 1 " aidecl b ? a P rovision introduced into the Statute autho- rizing the conviction. Some Statutes(c) provide that no warrant of commitment thereunder shall be held void by reason of any defect therein, provided it be alleged that the party has been convicted and there be a valid conviction to sustain the same. The effect of this clause is, that both instruments must be looked at by all parties concerned in the validity of the warrant. When there is any defect in it both are to be read together and to be held explanatory of each other, and if thus reading them, the conviction justifies the com- mitment, it is sufficient (d). (a) See R. v. Helps, ubi sup. ; 1 Burn, 797. (6) Rogers v. Jones, 3 B. & C. 409, 5 D. & R. 268 ; and see Wickes v. Clutterbuck, 2 Bing. 483, 495, 2 M. & C. 429 ; Pal. 238 ; Hult, 122 ; 1 Burn, 784. Though the warrant of commitment be manifestly defective on the face, yet if it shows there has been a conviction, the court will not dis- charge the defendant on a habeas corpus for the defect in the warrant until the conviction is returned, and if the latter be right the defects in the com- mitment will be cured, provided it shows the same offence as is stated in the conviction, jf?. v. Taylor, 7 D. & R. 622; R. v. Hawkins, Fort.272 ; Pal. 236 ; 1 Burn, 797 ; but see Coster v. Wdson, 3 M. & W. 411, ante, p. 674 ; R. v. Chancy, 6 Dowl. 281, ante, 677 ; so of commitments for safe custody if the informations are sufficient, see ante, pp. 174, 481. (c) Ex gr. 9 Geo. IV. c. 55, s. 71, c. 56, s. 51 ; 10 Geo. IV. c. 34, s. 45, App, pp. xciii, cviii, iii. (d) Daniel v. Phillips, 1 Cr. M. & R. 662, by the court, p. 675. In Warrant of Commitment. 679 5. In some cases, though rarely so, the justices may Amendment of amend the warrant of commitment(a). Thus one of the smuggling Acts,3&4 Will. I V.c. 53, s. 90, empowered the justices to amend any conviction or warrant of committal thereunder, either before or after conviction; in the con- struction of which clause it has been held, that where, four days after the commitment, the warrant (which was defective in point of law) was withdrawn from the gaoler's possession and another substituted, (it did not appear by whom), the second being of the same date and signed and sealed by the same justices as the first, the alteration being, that in the recital of the conviction certain cordage was said to be adapted to " slinging" casks, instead of " slinging or sinking," and the name of the place where the party was said to have been de- tained for the offence was altered the court could not presume, either from the facts returned or from the war- rants, that the second was substituted for the first as an amendment of it, and the defendant being brought up on habeas corpus was discharged (b). It should have been clearly shown that the intention of the justices was to commit regularly for the same offence for which they had before committed irregularly, whereas it did not appear that they had not inquired into an entirely new state of facts(c). this case the commitment was held sufficient, although in reciting the con- viction the offence was misdescribed, not being stated to be wilful or malicious, but only unlawful, (see ante, pp. 564, 579), and although it directed the offender to be imprisoned for a month or until he be delivered by due course of law, when the Act only authorized commitment for not exceed- ing two months, or until payment of the penalty, (see ante, p. 675) ; but there was a good and valid conviction on which the commitment was founded and to which it referred. (a) 1 Burn, 797. (6) In re Elmy and Sawyer, 1 Ad. & El. 843 ; 3 Nev. & M, 733. (c) Lord Denman, C. J., in Elmy and Sawyer, ubi sup. 680 Execution of Commitment. Execution of the warrant if the party be present. If in prison. If absent. Not to be exe- cuted on a Sun- day. If offender re- move out of jurisdiction of J. P. or con- stable. Indorsing com- mitments. 6. If the party be present when the commitment is made out he may be at once given over to the charge of the constable to be conveyed to prison, and he may be detained by a parol order of the magistrate for the time necessary to make out the formal warrant of com- mitment^). If the party be in execution under civil process it would seem he might be there charged crimi- nally by the justice's warrant, but he cannot be removed unless by habeas corpus(b). If the party be absent the warrant is delivered to the constable, sub-inspector, &c., or person to whom it is directed to be executed. The duty of constables in executing warrants ; the manner in which (c), the time(d), and the limits within which(e) they may be executed ; and the duty and jurisdiction of the constable in conveying prisoners to gaol( /), have been considered in a previous chapter, to which, as many of the remarks there made, are applicable here, the reader is referred. A person cannot, however, be arrested under a warrant of commitment for non-payment of a penalty on a Sunday(g). The warrant, as already seen, may be executed any where within the jurisdiction of the justice issuing it, though out of the constable's jurisdiction(A). If the offender remove out of the jurisdiction of the justice issuing the warrant, it seems it may be backed as di- (a) Ante, pp. 475-6. (6) R. v. Woodhouse, 2 Str. 828; Pal. 244, and n. (u), ib. ; see ante, p. 233. (c) Ante, p. 192, &c. (d) Ante, pp. 185, 192. (e) Ante, p. 195, &c. (/) Ante, pp. 215, 224 ; and see ante, 229, n. (c), as to retaking, and p. 224, as to expenses. (g) R. v. Myers, I T. R. 205 ; 7 Will. III. c. 17, s. 7, Ir. But it would seem if the commitment was for punishment after a conviction for an assault, or other offence involving a breach of the peace, it might be exe- cuted on a Sunday. (/) Ante, pp. 35, 196, and n, (6), ib. Execution of Commitment Discharge. G81 rected by 44 Geo. III. c. 92, s. 1, before stated(a), for though that Statute was intended primarily to apply to arrests in the first instance for indictable offences, war- rants of commitment come equally within the words of, and the mischief intended to be remedied by, the first section(6). Some few Statutes also contain special pro- visions with respect to persons, liable to commitment under them respectively, removing out of the jurisdic- tion of the convicting justice. The constable is responsible for the prisoner till he Delivery to the is delivered to the gaoler(c), who is to receive him with- g aoler - out any fee(d). The constable delivers the warrant with the prisoner to the gaoler, and gets a receipt from him which he should keep(e). III. 7. Commitments after conviction being commit- Discharge of ments in execution do not admit of bail(/) ; and although Bail not * re , the next sessions to which the right of appeal is given ceivable. may not be till after the term of imprisonment is expired, yet after commitment by one justice it is not competent for others to discharge the defendant upon his appeal- ing to the next sessions, and giving bail to prosecute his appeal (g). Although it is said by one old writer(^), that he may be released upon finding sureties to pay the penalty this is exceedingly questionable (i). (a) Ante, p. 189. (6) See Smythe's J. P., 300, 301 ; the analogous English Statute, 24 Geo. II. c. 55, is cited as applying to commitments in execution ; Pal. 243. (c) Ante, pp. 225, 490. (e?) Ante, p. 492. (c) Ante, p. 492. In Dublin metropolis constables do not get receipts for their prisoners. (f) Anon. 11 Mod. 4552; Pal. 245; 1 Burn, 798; R. v. Brooke, 2 T. R. 190. (g) R. v. Brooke, ubi sup. in which case a criminal information was granted against the justices. (ft) Dalt. 118, p. 341. (i) 1 Burn, 798 ; Pal. 245. 4s 682 Discharge of Offenders Appropriating Penalties. If offender after committal to prison, shall pay the amount of penalty, &c., to the keeper, he shall be forthwith dis- charged. So also on pay- ment to the offi- cer. When Crown can or cannot pardon. Appropriation of penalties, &c, It is provided by Stat. 5 Geo. IV. c. 18, s. 3, that in the case of any offender or offenders committed for default of payment of such penalty or forfeiture, to- gether with the reasonable costs and charges attending the conviction, if such offender or offenders shall at any time during the period of his, her, or their imprison- ment, pay, or cause to be paid, to the governor or keeper of the prison the full amount of such penalty, together with the costs and charges, it shall be lawful for such governor or keeper of such prison, and he or they are hereby required forthwith to discharge such offender or offenders from his or their custody. So also the defendant ought to be discharged on payment of the sum to the officer charged with the execution of the warrant(#). Where the Statute gives a penalty or any portion of it to any other than the Crown, the Crown cannot remit the penalty (6). Some Statutes, however, contain pro- visions enabling the Lord Lieutenant to pardon prison- ers committed for nonpayment of money to others than the Crown(c). If the party think he is entitled to be discharged he may have a remedy by habeas corpus. IV. All fines created by penal Statutes would, if otherwise unappropriated, belong to the King(cT). There is, however, almost invariably introduced into the Statute creating the penalty a clause directing how (a) Smith v. Sibson, 1 Wils. 153 ; Pal. 245 ; 1 Burn, 798; but see Hult, 124 ; the objection there made, however, that there would be a dif- ficulty in saying that the officer is an agent to receive the penalty, does not seem applicable to Ireland ; see 1 & 2 Viet. c. 99, ante, p. 649 ; on pay- ment to the gaoler the prisoner is entitled to be immediately discharged, see R. v. Rogers, 1 D. & R. 158. 0) 3 Inst. 231 ; see R. v. Barrett, 1 Salk. 383. (c) See 9 Geo. IV. c. 55, s. 66, and c. 56, s. 46, in the App. (d) R. v. Millard, 2 Str. 828 j Pal. 226 ; 2 Hawk, c. 26, s. 17. Appropriating and accounting for Penalties. 683 it shall be appropriated. The Petty Sessions Act con- tains a provision, already stated, allowing the justices at Petty Sessions, under certain restrictions, to fix cer- tain local charities to which penalties by law payable to the county infirmary shall be paid(a). Corporations as well as individuals are entitled as " parties aggrieved. Where the sum to be levied is a fine or penalty, and Accounting for is levied under Stat. 1 & 2 Viet. c. 99, that Statute con- the penalty * . If paid to the tains full directions as to the manner of disposing of constable. and accounting for it. Stat. 6 & 7 Will. IV. c. 34, s. 3, if paid to the enacts, that the clerk of every Petty Sessions shall enter se^sio^s. e " y in the book to be kept by him, containing a record of the proceedings at Petty Sessions, an account of all fines and penalties, or portions of fines, &c., imposed at said court, and paid to or deposited with him by order of the justices attending thereat, or otherwise, and of the appropriation thereof; and such account shall always be open to the inspection of any justice at such Petty Sessions ; and the clerk is liable to a penalty of 5 for every neglect. By sect. 4 the clerk is required to transmit to the Chief Secretary once in every three months a return of the appropriation of all fees, fines, penalties, and portions of fines and penalties received by the justices or clerk of such Petty Sessions(c). Where the payment is made to justices acting out of Under parti- -r , c, . .-,'.. cular Statutes. Petty Sessions, some Statutes contain special provisions as to accounting for it(d). (a) 6 & 7 Will. IV. c. 34, s. 10, ante, p. 94. (6) 9 Geo, IV. c. 54, s. 3, ante, p. 614. (c) Ante, pp. 90, 91 ; see form of return in A pp. (d) See 9 Geo. IV. c. 55, s. 60, and c. 56, s. 40, in App. 684 Of evading the Conviction. CHAPTER VI. Evading the execution. Writ of error. Certiorari and appeal. Certiorari, what. CERTIORARI AND APPEAL. IN this chapter will be considered the steps which may be taken by the party if dissatisfied with the decision of the magistrate, to prevent its being carried into exe- cution. No writ of error lies upon a summary convic- tion or order(a). There are, however, two methods by which the party may obtain a revision of the justice's adjudication. If the defect appears upon the face of the record, he may generally obtain relief by removing the proceedings into the Queen's Bench by certiorari; and whether the record be defective or not, he may also in most instances obtain a rehearing of his cause by ap- peal to the Quarter Sessions. It is not, however, with- in the object of this treatise to follow the proceedings when once removed from before the magistrates in the exercise of their summary jurisdiction, and it is, there- fore, not intended here to enter fully upon the subject of appeal or certiorari, but merely to consider so much of the preliminary steps in each proceeding as usually do or may take place before the convicting justices(^). The certiorari is a writ issuing out of the Crown Office in the name of the King and tested by the Chief Justice, directing the judges or officers of inferior juris- dictions to certify or return the record of a cause de- pending before them(tf), the Court of Queen's Bench (a) R. v. Leighton, Fort. 173 ; R. v. Lomas, Comb. 297 j 1 Burn, 604; Pal. 278. (6) For full information on these subjects the reader may refer to 1 Burn, 1 45, et seq. ; tit. " A ppeal ," 603, et seq., tit. " Certiorari ;" Pal. pt. III. cc. 2 and 3, pp. 247, 272 ; Hull, lib. 2, p. 81, et seq., and see Hayes Cr. L. 549, et seq. ; Dick. Sess. 586, &c., 774, &c. (c) 1 Bac. Abr. Certiorari, see Com. Dig. Certiorari, The form of Of Certiorari. 685 having the general superintendence of all inferior courts of criminal jurisdiction(a). The right to bring a cer- Right to r- t loram cannot tiorari exists as a matter of course in every case in be destroyed which it is not expressly taken away, and it has been frequently decided that nothing but an express and ment. positive enactment can have this effect(6) ; and even when the Statute declares in terms that the proceed- ings shall not be removable by certtorari, this does not prevent its issuing at the suit of the prosecutor; for to For the Crown, restrain the prerogative of the Crown in this particular there must either be words for that express purpose or an intention manifestly appearing on the Act that the Crown as well as the subject should be included(c). In England there are several statutory regulations Certiorari, how respecting the suing out a certiorari as giving notice to sued out * the justices, security for costs, &c (d), but there are no the writ is as follows : " Victoria, by the grace of God, &c., to one of our justices, &c. We being willing for certain reasons that all and sin- gular records of conviction of whatsoever trespasses and contempts against the form of a certain Statute, &c., whereof A. B. is convicted before you as is said, [or as the case may be, stating the records to be removed], be sent before us, do command you and every of you that you or one of you do send under your seals, or the seal of one of you before us, on where- soever we shall then be in Ireland, all and singular the said records of, &c., with all things touching the same, as fully and perfectly as they have been made by you, and now remain in your custody or power, together with this our writ, that we may further cause to be done thereon what of right and according to the law and custom of Ireland we shall see fit to be done. Witness the, &c. (a) 2 Hawk. c. 27, s. 22; R. v. Buckly, 1 Keny. 99. (&) R. v. Jukes, 8 T. R. 542 ; R. v. Mosley, 2 Burr. 1040 ; R. v. Reeve, 1 W. Bl. 231 ; R. v. Eaton, 2 T. R. 89; R. v. Territ, 2 T. R. 735; R. v. Kaye, 1 D. & R. 436 ; Hull, 82, 83 ; Pal. 279, et seq., and numerous authorities there cited. (c) R. v. Allen, 15 Ea. 341 ; R. v. , 2 Chit. Rep. 136; Hult, 85; Pal. 283 ; Ex parte Spencer, 1 Per. & Dav. 358. (d) 13 Geo. II. c. 18, Eng. ; 5 Geo. II. c. 19, Eng. ; Pal. 287, et seq. 686 Of Certiorari. To whom di reeled. general analogous statutable regulations in Ireland. In term time, the certiorari is granted by the court upon motion of counsel, but in vacation a fiat for certiorari may be allowed at chambers by any Judge of B. R. the application being supported by proper affidavits in each case(). The writ is directed to the justices by whom the conviction was made, or if it has been returned to the sessions to the justices assigned to keep the peace in and for the county, and to the Clerk of the Peace(). But if the person who ought to make the return die, having the record in his custody, it may be directed to his executor or administrator to certify it(c). When effectual. The writ is of no effect unless it is delivered before the time for its return is expired(d) ; but when duly de- Effect of. livered, its effect is to remove all proceedings of the nature described therein which have taken place be- tween the teste and return, although the proceedings originated after the teste(e) ; and further steps taken before the justices are void and coram nonjudice(f), be- sides being a contempt of the King's Bench for which the justices are liable to attachment and fine(g) ; and it ousts the jurisdiction of the justices when delivered to if after adjudi- one of them though directed to several(^). It is, how- ever, said, that if the certiorari come after the adjudica- tion made, but before the amount of the fine has been cation. (a) See Hayes, 555 ; 1 Burn, 614 ; 1 Hawk. c. 27, s. 40. (6) In England the Clerk of the Peace is not included in the direction to the sessions, see Pal. 293 j 1 Burn, 617 ; but it is customary to include him in Ireland, R. v. Macnamara, Al. & Nap. 61 ; Hayes, 556. (c) 2 Hawk. c. 27, s. 42 j Curw.s. 41. () Cross v. Smith, 2 Lord Raym. 836; 1 Salk. 149 ; R. v. Battams, I Ea. 298. (rf) 2 Hawk. c. 27, s. 64 ; R. v. Rhodes, 1 Keb. 944. (/) Id. ibid. 2 Hawk. c. 27, s. 64. () See R. v. Jukes, 8 T. R. 540, by Lord Kenyon. (o) R. v. Commissioners of Appeal in Excise, 3 M. & S. 133 ; Pal. 267. This is strongly condemned in the report of the Commissioners of Inquiry, into the courts of justice, &c., in Ireland; see the 17th Report, p. 5. (rf) R. v. Justices of Leeds, 4 T. R. 583, 585. (e) R. v. Justices of Went Riding of Yorkshire, 3 M. & S. 493. Of Appeal. 691 appeal. If the Statute requires a "reasonable" notice Reasonable no- this does not regard the precise description of notice, but that it be reasonable in point of time, and unless a Written notice. particular species of notice be required, (as that it be in writing), a parol notice may be given(a) ; and though notice in writing is mentioned a printed notice would seem sufficient(&). Where the notice is required B ? the Pf rl y aggrieved. to be by the party aggrieved, it must state that it is so(c). And where the Statute requires notice of appeal, Stating the and of the cause and matter thereof, the notice should 3"!^ 3 ( state the grounds of appeal(c/) ; but a statement that the party is not guilty of the offence is a sufficient state- ment of the ground of appeal, as that means that all the ingredients oftte offence are disputed(e). So many Days' notice, clear days' (ex. gr. ten clear days) notice means, ten days exclusive both of the day of service and of the day of holding the sessions(/) ; but " ten days' notice" means one day exclusive and the other inclusive(g) ; " ten days at least" is the same as ten clear days(/a). When imme- Immediate no- diate notice is required, though it may not be required to be instantaneously on conviction, yet a prompt com- (a) R. v. Justices of Surrey, 5 B. Be Al. 539 ; 1 D. & R. 160 ; R. v. Justices of Salop, 4 B. & Al. 626 j Pal. 256 ; 1 Burn, 152, 153. (6) See 1 Burn, 152, n. (a). (c) R. v. Justices of West Riding of Yorkshire, 7 &. & C. 678 j R. v. Justices of Essex, 7 D. & R. 658. But it need not do so in express terms j and when the notice contained a statement of the injury that would result to the appellant in common with othe* by the decision, it was held sufficient, without directly terming him the party aggrieved. R. v. Justices of York- shire, 4 B. & Ad. 685. (d) R. v. Boultbee, 6 N. & M. 26. (e) R. v. Justices of Newcastle, 1 B. & Ad. 933. (/) R. v. Justices of Hereford, 3 B. & Al. 581 ; 4 B. & Ad. 685. (g) R. v. Justices of Yorkshire, ubi sup. (A) Dick. Sess. 603, citing Zouch v. Empsey, 4 B. & Al. 522 j R. v. Justices of Salop, 3 N. & P. 286. 692 Of Appeal, pliance with the terms of the Act is necessary, and a delay (as for seven days) will oust the party of the right to appeal(). Where a Statute mentioned six days after the cause of complaint, a notice within six days after the execution, though more than six days from the date To whom no- o f a warrant of distress, was held sufficient^). The tice should be ... given. Statute requiring notice to be given generally specifies to whom, but if it does not, it is safer to give notice to all concerned(c) ; and though the Statute mentions only notice to the convicting justice, yet if the conviction be before two, notice should be given to both(?). Recognizance. Statutes allowing an appeal sometimes also require as a condition precedent to the right, that the appellant shall enter into a recognizance to try the appeal and abide the order of sessions, or to pay costs, or both. The body of such a recognizance is in the ordinary form, and should state particularly the names and residences of Amount. the parties, as is required in other cases(e). The amount in which they should be bound is sometimes fixed absolutely by the Act, and sometimes is discre- tionary, the Statute merely directing that the securities Condition. shall be sufficient. To the recognizance is annexed a condition that it shall be void if the appellant pro- secutes the appeal, abides by the order of the court, &c., according to the terms prescribed by the Act.(/). (a) R. v. Justices of Huntingdon, 5 D. & R. 588. (6) R. v. Justices of Devon, 1 M. & S. 411. (c) See R. v. Justices of Lancashire, 1 B. & Al. 630. (d) R. v. Justices of Bedfordshire, 1 Per. & Davis. 21 ; R. v. Justices of Cheshire, ib. 23. (e) See 57 Geo. III. c. 56, s. 2. It is observable that the first part of this section relating to the names and additions of the parties is sufficiently general to include all recognizances taken by Justices of Peace, but the latter part of the section relating to the form of oath, &c., is confined to cases of bail and sureties for the peace, ante, pp. 495, 496. (/) See form of such recognizance and notice of appeal in Appendix. Of Appeal 693 The Sessions to which the appeal is to be made is At what ses- necessarily stated in the recognizance. Statute 4 & 5 Will. IV. c. 93, reciting that it is expedient for the ease of the parties concerned, that appeals from orders or convictions of justices should be heard at the sessions for the division where they are made, enacts that every such appeal shall and may be heard and determined on at the"next General or Quarter Sessions of the Peace, to be held in the same division of the county wherein the order or conviction has been made or pronounced, and not at the sessions holden in any other division of said county. Independently of this general enactment it is Meanin g of ./ ,. r J next sessions. usually directed by the particular Statute, that the ap- peal shall be to the next sessions ; and this phrase, gene- rally speaking, means the next possible or practicable sessions after the act done, from which the time is to be counted(a). As to the latter question, however, From what the from what the time is to be counted, it is not easy to counted? lay down any rule, and each case most depend upon the wording of the particular Statute. When the Act allows the party aggrieved by the j udgment in a case of summary conviction to appeal, the next sessions after the conviction, and not after the execution, is meant(6) ; and so, in case of an order, when the party aggrieved may appeal to the next sessions after such orders or pro- ceedings had, the next after the making of the order is (a) For otherwise the next actual sessions may follow so soon as to render the right of appeal nugatory ; R. v. Js. of Essex, 1 B. & A. 210 ; R. v. Js. of Surrey, 1 M. & S. 479 j R. v. Js. of Sussex, 7T.R.137 j R.v.Js. of Yorkshire, Dougl. 192. In the two latter the appellants were 30 and 60 miles from the place where the sessions were held. R. v. Js. of Flintshire, 7 T. R. 200. In wme of these cases one day only intervened before the ses- sions, but in the last case four days intervened before the sessions, and it was held too short a time for appealing j R. v. Thackwell, 4 B. & C. 62, 6 D. & R. 61 ; R. v. Hendon, 2 D. & R. 149 j see Dick. Sess. 593, &c. (6) Prosser v. Hyde, I T. R. 414. 694 Of Appeal. From what the meant(a). But in general next after the cause of com- is"to be* a * plaint, and similar phrases without other words to fix counted. the meaning, mean next after the execution or final exercise of the jurisdiction given(), for the proceedings initiated may not be proceeded in. When the Statute enacts that the party might within 3 months after the conviction appeal, first giving so many days' notice, he has the 3 months within which he may give the notice of appeal to the then following sessions, although they are not held till more than 3 months after the convic- Though no time tion(c). If no period be defined within which the ap- peal shall be brought, it must be brought within a rea- sonable time, and this is a question for the sessions to determine(c?). (a) R. v. Js. of Pembroke, 2 Ea. 212 ; R. v. Js. of Bucks, 2 M.& S. 234 ; and that the defendant hs?d no notice of the order in time to enable him to appeal is immaterial ; R. v. Js. of Staffordshire, 3 Ea. 153. (6) R. v. Js. of Devonshire, 1 M. & S. 4 1 1 ; R. v. Js. of Gloucester, 3 M. & S. 127 ; R. v. Js, of Herts, 3 M. & S. 459 ; R. v. Js. of Middlesex, 1 Chit. Rep. 367 ; but see R. v. Nockolds, 1 Ad. & E. 245 ; R. v. Js. of Wilts, 13 Ea. 353 ; see also Collins v. Rose, 5 M. & W. 194 j see the cases compared, Dick. Sess. 594 ; 1 Burn, 147. (c) R. v. J*. of Middlesex, 6 M. & S. 279. (d) Dick. Sess. 592; R. v. Js.of Oxfordshire, 1 M. & S. 488. PART IV. CHAPTER I. OF THE CIVIL AND MISCELLANEOUS DUTIES OF JUSTICES OF THE PEACE. THERE are some duties of Justices of the Peace which do not properly come within the subjects of the preceding chapters of this work, and which it is intended here to notice. Some of these are in the nature of civil remedies, and some consist in the discharge of peculiar duties which the policy of particular Acts has imposed upon the magis- tracy. Proceedings in the nature of civil remedies before Of civil pro- magistrates are entirely regulated by the Statutes under $f d p gs before which they arise. In numerous instances they are analogous to those in cases of summary conviction, the final decree being in the form of an order ; the nature of which and wherein it differs from a conviction has been already considered(a). In some cases, however, pecu- liar modes of proceeding are pointed out which do not admit of being reduced to any system, and in which the magistrate must be solely guided by the particular Statute under which he acts. The mode of enforcing How enforced. the determination of the magistrate depends also upon the particular Statute. If it be by distress or commit- (o) Ante, p. 638, et seq. C9G Civil Proceedings before Justices. merit, the rules which regulate the proceedings are for the most part the same as when they are employed to enforce a summary conviction, the principal distinction being that the important Statutes 1 & 2 Viet. c. 99, and 5 Geo. IV. c. 18, do not apply to civil proceedings ; but as this difference, with the other particulars necessary to be observed when enforcing civil decisions before magistrates by distress or commitment, have been noticed when considering those proceedings in refe- rence to summary convictions, the reader is here only referred to the former chapter on this subject(a). indictment for Disobedience to an order of justices concerning a order of J. P. matter over which they have jurisdiction is also an offence indictable at common law ; and this seems the only mode of enforcing obedience to such an order in a case where a Statute authorizes the making of it with- out prescribing any specific means to enforce it(). Jurisdiction As the power of magistrates in these cases is created to'subjectTde- a^g etner by special enactment, so its exercise must fined in the be confined exclusively to the particular subjects to which the Statute refers. Thus in an order under the Statutes relating to masters and servants it must dis- tinctly appear that the relation of master and servant within the meaning of the particular Act existed between the parties(c). So the jurisdiction of justices under the (a) Ante, p. 646, &c.; of distress, 657, &c. ; of commitment, 666, &c. (6) See fully 3 Burn, 1150 ; Dick. Sess. 419, &c. ; Archb. Cr. PI. ; and authorities cited by these authors. This is an ordinary mode of en- forcing orders under the Friendly Society Acts; see R. \.Gilkes, R.v. Soper, infra. (c) Wiles v. Cooper, 5 N. & M. 276, 1 H. & W. 560 ; see ante, p. 639; and seethe cases cited infra. With respect to the question, Who are servants within these Acts 1 it was once considered that the words, " other labourer," in Stat. 20 Geo. II. c. 19, Eng. (corresponding to 25 Geo. II. c. 8, Ir. A pp. c. xiii, &c.) were to be understood of labourers of the same class as those before enumerated in the Statute, but it has been held that Civil Duties of Justices of Peace. 697 Friendly Society Acts was exclusively confined to so- cieties whose rules have been duly confirmed and filed as directed hy those Acts(a). Where one of the former (English) Acts allowed any member aggrieved by anything done by any such society to make com- plaint to two magistrates, who might hear and de- termine and make such order therein as seemed fit, it was held, that their jurisdiction in such cases was confined to the subject matter of the com- plaint laid before them ; and, therefore, when a party complained to them that he had been deprived of the relief to which he was entitled, and the justices awarded not only that the steward would give him such relief, but also that the party should be continued as a mem- ber of such society, it was held, that the latter part of the order was illegal, as the expulsion was no part of the complaint(^). the Act extends not only to artificers of the particular kinds enumerated, but to servants and workmen, and labourers in general ; Lowther v. Earl of Radnor, 8 Ea. 113 ; 5 Burn, 537 ; but it does not extend to a person em- ployed by an attorney to keep possession of goods seized under a^z./a. ; Branwell v. Penneck, 7 B. & C. 537 ; on the clause as to recovering wages now rep. in Ir. The relation of master and servant does not exist in cases where work is done by contract for a sum certain, aud where the hours of work are entirely in the discretion of the contracting party ; Lancaster v. Greaves, 9 B. & C. 628 ; Hardy v. Ryle, 9 B. & C. 603. These cases arose under 4 Geo. IV. c. 34, Eng., which contains an enumeration of the class of per- sons to which it relates, nearly similar to that in 25 Geo. II. c. 8, Ir. App. p. cxiv. The recovery of wages in Ireland is regulated by a different Statute j see App. p. ccvii. (a) R. v. dikes, 8 B. & C. 433 j 2 M. & R. 454 ; 3 C. & P. 52. (ft) R. v. Super, 3 B. & C. 857 ; 5 D. & R. 669 ; see now 4 & 5 Will. IV. c. 40, s. 8, App. p. clxxiii ; so the order must be to do what, by the constitution of the society, the persons to whom the order relates have power to do j see R. v. Inge, 2 Smith, 56 j the order is to be made in ac- cordance with the rules of the society ; see 10 Geo. IV. c. 56, App. p. clxviii. The principal enactments investing magistrates with powers to decide disputes or make orders in civil matters, with forms adapted to those which are of most usual occurrence, will be found at large in the Appendix. 4u 698 Civil Duties. Practice in ire- It is observed by the Commissioners of Inquiry into land as to pay- /-, ** i i i ing for nursing tn e Courts of justice in Ireland, that the payment of bastard chil- t h e expenses of bastard children has no statutable sanc- tion in Ireland, but is entertained irregularly by Justices of the Peace on the fiction of wages, on a supposed con- tract for nursing the child of the person against whom the order is made, supported by the oath of the mother as to its paternity, intercourse not being denied by the father(a). Administering The practice which has sometimes obtained, of ad- extra-judicial ... . ,. . , . . oaths. mmistermg-extra judicial oaths in matters in which magistrates have no jurisdiction, has been much con- demned^) ; and now Slat. 5 & 6 Will IV. c. 62, s. 13, after reciting, that a practice has prevailed of adminis- tering and receiving oaths and affidavits voluntarily taken and made in matters not the subject of any judi- cial inquiry, nor in anywise pending or at issue before the Justice of the Peace or other person by whom such oaths or affidavits have been administered or received, and that doubts have arisen whether or not such pro- ceeding is illegal, enacts, that it shall not be lawful for (a) See pp. 4, 14, 17th Report. (6) See 4 Bl. Com. " Perjury." It is doubtful how far justices have authority at all to administer an oath in a case where a Statute gives them a new jurisdiction, without expressly conferring this power; see fully 3 Burn, 1109, &c., and see the Eng. Stat. 15 Geo. III. c. 39 ; as to this power, however, in cases of summary jurisdiction, see ante, p. 596 and n. ; and Statutes authorizing proceedings before magistrates usually expressly con- fer this power. It may be here observed, that in the Statutes given in the Appendix of this work, where the context obviously shows, that an exami- nation on oath is intended, the clause empowering the justice to administer it is, to save space, generally omitted. Under some Statutes, justices are empowered to administer oaths required for particular purposes, as verifying vouchers, &c., in matters in which they have no further jurisdiction, e. g. by Stat. 7 Geo. IV. c. 16, s. 16, as to the truth of claims on the Royal Hospital; 11 Geo. IV. c. 20, (relating to the pay of the navy), s. 64, verifying accounts of creditors' claims against the assets of deceased seamen or mariners, &c, Administering Oaths. 699 any Justice of the Peace or other person to administer, or cause or allow to be administered, or to receive, or cause or allow to be received, any oath, affidavit, or solemn affirmation, touching any matter or thing where- No oath or affi - davit to be ad- of such justice or other person hath not jurisdiction ministered, ex- or cognizance by some Statute in force at the time ce P l as herem being ; but it is provided, that this shall not extend to any oath, affidavit, or affirmation, in any matter or thing touching the preservation of the peace, or the prosecu- tion, trial, or punishment of offences ; or touching pro- ceedings before parliament, or required by the laws of any foreign country, to give validity to instruments in. writing designed to be used in such foreign country. The following duties, prescribed by particular Sta- Miscellaneous tutes, will be noticed in this chapter ; I. Superintending d prisons; II. Inspecting certain public institutions; III. Committing lunatics; IV. Election of ex officio Poor Law Guardians ; V. Some duties connected with the relation of landlord and tenant. 1. By the Prison Act, 7 Geo. IV. c. 74, s. 2(a), every Appointment of grand jury (b) are required at each assizes or Presenting intendence for term, with the consent of the court or judge, to appoint P risons - not less than eight or more than twelve persons, one-half of whom, at least, shall be Justices of the Peace for the county, &c., wherein the appointment is made, to be a Board of Superintendence of every gaol, Bridewell, House of Correction, or other prison within such county, &c., not being a prison of a different county, &c., and subsequent Grand Juries may appoint new Boards, or vary or add to the members of the former Board, pro- (a) As a copy of this Act (see sect. 109, r. 23), and the rules made in pursuance of it, are provided for every prison, it is considered here un- necessary to do more than notice such of its provisions as immediately concern justices. (.'>) Dublin was exceptcd, but see now 6 & 7 Will. IV. c. 51, s. 6. 700 Inspection and Regulation of Prisons. Three members, v ided they be not increased beyond twelve in number. one being a J. J ,-r-,no P., competent to Any three or more of such Board of Superintendence, act in all cases. one Q f whom at j eagt shal j be a J ust i ce o f t ^ e p eac e, shall be in all cases competent to do and perform any matter or thing in execution of any duty required to be done, or which might be lawfully done, by the whole Board under this Act or any other Act not containing an express provision to the contrary. This section then provides for presentments being made to the Board by Grand Juries(a), and enacts, that every sum presented in advance shall be afterwards applied and applicable by and under the orders of such Board of Superinten- dence, for the purposes for which the same shall be so presented, and shall be afterwards duly accounted for according to law(6). The Board em- Sect. 3 empowers the board to inquire concerning powered to visit all prisons, and the due performance of the rules and regulations by thenT aniTthe tn * s ^ ct prescribed, or from time to time made under the conduct of the authority of the King's Bench, and also to examine into the state and repair of the buildings, the conduct and situation of the prisoners in every such gaol, Bride- well, House of Correction, or other prison, and of all persons concerned in the government or manage- ment thereof, or holding any office or employment therein or relating thereto ; and such Board are au- Examination on thorized to examine on oath any officer or any other person whomsoever, touching the conduct of any officer of any such prison, or of any prisoner there- in, or touching or relating to the government and management of such prison, and the promotion of in- dustry and order therein, and the classification and dis- (a) See 6 & 7 Will. IV. c. 116, s. 124. (6) By sec. 81, any member of the Board of Superintendence as well as inspectors, chaplains, &c., being concerned in any contract for supplying prison necessaries, or deriving profit therefrom, is subject to a penalty of five hundred pounds. Inspection and Regulation of Prisons. 701 tribution of offenders and prisoners ; and if it shall appear to the said Board, by evidence on oath or other- wise, that the persons concerned in the government or management of any such prison, or of any of them, or any person holding any office or employment therein or relating thereto, have misbehaved therein, by any neglect or breach or non-observance of the rules and regulations, or any of them, to which they were respec- tively bound by law to conform, such Board of Super- And report as intendence may make a report respecting such misbe- haviour to the next going Judge of Assize, and to the Grand Jury at the next assizes. Sec. 4 empowers such Board of Superintendence to The Board may make by-laws for any gaol or other prison under their J^a^" 1 ^* superintendence, not inconsistent with the regulations Confirmation of this Act, and such by-laws, when approved by a thereof. succeeding Grand J ury, and by one or more of the judges of King's Bench, shall be printed and posted in the prison, and obeyed as standing regulations of such prison: and no magistrate shall have authority No other Js. P. to alter or add to such by-laws or regulations, or ^g^ in any manner to interfere with the discipline of the the gaol. prison'; and the sheriff shall not interfere therein, further than may be necessary for the safe custody of the pri- soners. But by sect. 5 it shall be lawful for any Justice Any J. p. may of the Peace for any county, county of a city, or town, vls * tthe prison, . _ J . J J J . ' and report at his own free will and pleasure, to enter into and abuses to the examine any prison of such county, &c., at such time or times, and as often as he shall see fit ; and if he shall discover any abuse or abuses therein, he is hereby re- quired to report them in writing to the Board of Super- intendence ; and when and so often as a report of any abuse in any such prison shall be made by any such justice, the abuse or abuses so reported shall be taken into immediate consideration by the Board of Superin- tendence, and they are hereby required to adopt the 702 Inspection and Regulation of Prisons. How gaols shall caseofacci- dents. Books to be any of the Board of Super- intendence and " servations. Books to be Poor prisoners shall be kept to work prescribed by Board or 3 Js. P. most effectual measures for inquiring into and rectifying such abuse or abuses so soon as the nature of the case will allow. Sect. 14 enacts, that in case any fire or other sudden accident shall happen in any gaol, Bridewell, House o f Correction, or other county prison, it shall be lawful for the Board to cause an estimate and valuation to be then forthwith made of the sum necessary to be ex- pended on the repair and preservation of such gaol, or other county prison, and to cause such repair to be made ; and thereupon it shall be lawful for any 3 or more justices, being members of the Board, after having jointly inspected the said damage, to make an order under their hands and seals on the treasurer of such county, &c., to pay or advance to any person or per- sons specified in such order such sum or sums of money as may be necessary to complete such repair, not exceeding 100; which the treasurer must pay, if he has sufficient money in hand, and it shall be replaced by presentment. Sect. 62 enacts, that in every prison a book shall be kept, in order that any member of the Board and the local inspector, or either of the inspectors'-generaLmay . . . ' from time to time enter therein such observations as tlie y thmk fit ' and cver y officer attending or required to attend at such prison shall, in turn, insert in his own handwriting, his name, and the date of his visit and duty performed ; and every keeper of every such prison shall be responsible for the safe custody of such book, and shall at all times, when required so to do, produce the same for inspection to the Grand Jury or Board of Superintendence, or any member thereof, without fee. g y g ect 104 the keeper of every prison may and . J . J . , . is required to keep every poor prisoner m such prison to wor k o f suc h kind as the Grand Jury or Board of Superintendence, or in their default any 3 Justices of Inspection and Regulation of Prisons. 703 the Peace respectively, shall direct and appoint by any order to be made for that purpose : provided, that no person shall be put to hard labour who has not been convicted of some offence and sentenced for the same. Sect. 105 recites, that persons are often committed Persons com- to prison for trial, who not being poor prisoners are wil- ma^be'aiiciwed ling to be employed in such work as can be conveniently to work, and executed in the prison, and it is fit that they should be po^fon oHheir so employed, rather than obliged to remain idle ; and earnings. enacts, that it shall be lawful for the Board of Super- intendence to authorize, by an order in writing, the em- ployment of any such prisoners, with their own consent, in any such work or labour ; and the keeper may em- ploy such prisoner accordingly, and pay him such wages, or portion of the same, and at such periods as shall be directed by the Board ; provided no prisoners be placed together, on account of such employment, who would otherwise be kept separate under this Act ; and that the prisoner's consent shall be freely given, Prisoner's con- and not extorted or obtained by deprivation, or threat sent of deprivation, of any prison or other allowance ; and no prisoner before conviction shall, under any pretence, be employed on the tread-wheel. Sect. 106 provides for No prisoner to the supply of tools, materials, &c., and 107, that poor treacUwheel be" prisoners shall have one-third of the profit, and two- fore conviction. thirds shall be applied to their maintenance. Sect. 109 contains 24 rules for the regulation and inspector to re- internal economy of all prisons in Ireland. By rule 13 ^5^^ the local inspector shall visit every prison under his in- dence. spection twice a week, and at each visit go into every room in the prison, and if any complaint be made by any prisoner, or against the gaoler or his assistants, the in- spector shall immediately inquire into the particulars, and if the same shall appear well founded, shall report accordingly to the Inspector-General and to the Board of Superintendence. By rule 17, no prisoner shall be NO prisoner to 704 Inspection and Regulation of Prisons. be kept in irons p u t i n irons by the keeper of any prison, except in case more than four m -,-,, i . days, unless of urgent and absolute necessity, and the particulars of under order of ever y $ uc h ca se shall be forthwith entered in the keep- J. P. as herein. - ? er s journal, and notice forthwith given thereof to one of the Board of Superintendence ; and the keeper shall not continue the use of irons on any prisoner longer than 4 days, without an order in writing from a mem- ber of the Board, being a Justice of the Peace, speci- fying the cause thereof, which order shall be pre- served by the keeper as his warrant for the same. Board to regu- R u l e 19 directs, that provision shall be made for the late intercourse , , , of prisoners admission, at proper times and under proper restnc- with their tions, of persons with whom prisoners for trial may desire to communicate, and such rules and regulations shall be made by the Board of Superintendence, with the approbation of the King's Bench, for the admission of the friends of prisoners, as may seem expedient ; and the Board shall also impose such restrictions upon the communications and correspondence of all prisonerswith their friends, either within or without the prison, as they shall judge necessary for the maintenance of good Notice of the order and discipline. Rule 22 directs, that notice of soner. * P "" the death of a prisoner shall be given by the keeper forthwith, to some member of the Board, being a Jus- tice of the Peace, and to the coroner, and the nearest relative of the deceased, where practicable. For supplying Sect. Ill enacts, that it shall be lawful for the Board soners with {he" ^ Superintendence of any prison from whence any means of re- prisoner shall be discharged, to direct that such mode- turning to their _ '-. i i ^ j homes, & c . rate sum of money shall be given and paid to any and every such prisoner so discharged, who shall not have the means of returning to his or her family or place of settlement, or resorting to any place of employment or honest occupation, as in their judgment shall be requi- site for such purpose, under all the circumstances of the case ; and such sum shall be paid by the inspector of such prison for the use of such prisoner ; and shall Inspection of Prisons. Charitable Institutions. 705 be provided for, as the expense of the support of the prisoners. Sect. 113 enacts, that every keeper of any county Keepers of prison, and the inspector and every other officer of such ?* and* officers prison, shall at all reasonable hours attend in such pri- shall attend and P ,, . , . answer all in- son, on due notice for that purpose, in order to give to qu i r i es O f t he the Board or any three of them, such information as Board of Super. . ini intendance. may be necessary, on oath or otherwise, as shall be re- quired by them, concerning such prison and the officers thereof or any of them, and concerning the prisoners therein or any of them, and relating to all matters con- nected with the order and good government of such prison ; and if any such officer shall refuse so to attend, or to be examined, or to give sufficient answer to any inquiry, any one of such Board may make complaint to the Court of King's Bench, or in vacation to any judge thereof, and such court or judge may commit such offender as for a contempt of court. By sect. 140, this Act shall not extend to any hulks Nottoextendto T . L ^ e .1 f n hulks and cer- or general penitentiaries for the confinement of persons ta i n p en iten- sentenced to transportation, except such parts as relate tianes - to the inspection and report of the Inspectors-General. II. Stat. 2 & 3 Will. IV. c. 85, s. 1, recites, that it is Appointment of desirable to provide for the inspection of the various intendance 11 ! 5 "" houses of industry, infirmaries, hospitals, lunatic asylums, charitable in- ,. . ... iii IT i T stitutions. dispensaries, and other charitable establishments in Ire- land, supported wholly or in part by Grand Jury present- ment, and requires Grand Juries (except in the city of Dublin) to appoint, as herein, not less than 8 or more than 12 persons, one-half of whom at least shall be jus- tices for the respective county, city, or town, to be a Board of Superintendance of each and every charitable establishment supported in the whole or in part by Grand Jury presentment, within such county, &c. ; and subse- quent Grand Juries may appoint a new Board or remove any member thereof. Any 3 or more of such Board, of How many 4x 706 Inspection of charitable Institutions. Duties of the constitu te a whom one at least shall be a Justice of the Peace, shall in all cases be competent to do anything in execution of any duty of the Board under this Act, and it shall be as valid as if done by the whole Board. By sect. 2, it shall be lawful for such Board of Superintendence to visit and inspecteachand every such charitable or public establishment as aforesaid, from time to time, as they shall think fit, and to inquire into and examine into the management and discipline thereof, and into the mode in which the several laws, rules and directions for its re- gulation are carried into effect, and into the accounts of receipts and expenditure, and attendance given by the several officers and attendants, and all such other mat- ters and things as relate thereto ; and also to examine into the state and repair of the buildings, the conduct and situation of the several patients and inmates, and of all officers and attendants, and to audit and examine the accounts of such establishments ; and such Board shall make a report upon each such establishment to the Grand Jury at each and every assizes, containing a statement of income and expenditure, of the salaries paid and attendance given by officers, and the number of patients admitted or discharged, which shall be printed with the list of presentments. Sect. 3 provides, that nothing in the Act shall abridge the legal powers of the several directors, governors, subscribers, committees, or managers, entrusted with the control of charitable es- tablishments. Justices to III. Stat. 1 Viet. c. 27, recites, that it is expedient to gerous'lu^atics. mate P rov ision for the better prevention of crime by insane persons, and enacts, that if any person shall be discovered and apprehended in Ireland under circum- stances denoting a derangement of mind, and a purpose of committing some crime, for which, if committed, such person would be liable to be indicted, it shall be lawful for any two Justices of the Peace of the county, county Saving au- Commitment of dangerous Lunatics. 707 of a city, county of a town, city or town, and liberties, before whom such person may be brought, to call to their assistance any legally qualified physician, surgeon, or apothecary ; and if upon view and examination of the said person so apprehended, or from other proof, the said justices shall be satisfied that such person is a dan- gerous lunatic or a dangerous idiot, it shall be lawful for the said justices, by warrant under their hands and seals, to commit(a) such person to the gaol of such county, &c., there to be kept in strict custody until or Until discharg- unless such person shall be discharged by the order of e ' two Justices of the Peace, one whereof shall be one of the justices' who has signed such warrant, or by the Assist- ant Barrister presiding at the county General Quarter Sessions, or by one ofthe judges of her Majesty's superior courts in Dublin or by the Lord Chancellor, or Lords Com- missioners of the Great Seal, or until such person shall be removed to the proper lunatic asylum by order ofthe Lord Lieutenant or other chief governor of Ireland, as hereinafter provided. Sect. 2 empowers the Lord Transmitting Lieutenant to direct the removal of persons so commit- S oners C toth"e ted, or in prison under sentence of imprisonment or county asylum. transportation, or for default of surety to keep the peace, whose insanity shall be certified by two physicians or sur- geons, or a surgeon and physician, to the county luna- tic asylum ; and on a like certificate of their becoming of sound mind afterwards to remit them to prison or discharge them. Sect. 3 empowers the Lord Lieute- nant, on a like medical certificate ofthe insanity or idiotcy of any person committed for trial, to order his removal to the county lunatic asylum, and detention there until the assizes or sessions at which he should be tried, un- less he be in the meantime admitted to bail by some (a) As to commitments see ante, p. 476, etseq,, 670, etseq. ; see a form under this Stat. in Appendix. 708 Election of Ex Officio legal authority, and to order him to be remitted to the original custody in order to his trial ; and persons so detained in the lunatic asylum shall have the same liberty of seeing their friends and legal advisers at all reasonable times, which they would have had in gaol. Ex offido Poor IV. The duties and powers of Poor Law Guardians dians. U are regulated by Stat. 1 & 2 Viet. c. 56, and the orders of the commissioners made in pursuance thereof. They are not, however, within the object of this work; but it is proper here to notice one duty of magistrates con- nected with this subject, viz., the election of ex officio What Js. P. guardians. After providing for the division of the country may be. j nto un j ons an( j fa e election of guardians, the Statute enacts, sec. 23, that every Justice of the Peace residing in any such union, and acting for the county in which he so resides, and not being a stipendiary magistrate or assistant barrister, or in holy orders, or a regular minis- ter of any religious denomination, shall be an ex officio guardian of the poor for such union, and (unless the To act until Commissioners postpone the time) shall until a Board of Boarf, * * Guardians be duly constituted, and also in case of any irregularity or delay in any subsequent election of guar- dians, by reason whereof there shall be no legally con- stituted Board of Guardians for such union, receive and carry into effect the orders of the Commissioners ; and after the Board of Guardians shall be constituted every or as members such justice shall, ex officio, act as a member of such board in addition to and in like manner as an elected Number of ex guardian. But sect. 24 provides, that the number of officio guar- /* T in- i i i / dians. ex fficio guardians shall in no case exceed one-third of the number of guardians elected by the rate payers of any union; and in every case where the number of jus- tices qualified as aforesaid shall exceed one-third of the Meeting to whole number of guardians to be elected, the justices so qualified shall, within 14 days after the declaration of such union, assembled at a meeting to be specially held Poor Law Guardians. 709 for the purpose, at a time and place to be appointed by or under the order of the Commissioners 5 of which meet- ing the justice senior by appointment who shall be present shall be chairman ; and thereupon the said jus- Mode of voting. tices shall, by a majority of their number present and voting, (the chairman, in case of an equality of votes in favour of two or more persons, to have a double or casting vote), appoint from the justices so qualified a number of persons nearest to but not exceeding one- third of the number of the guardians to be elected by the rate payers ; and the justices so appointed shall be entitled to act ex officio guardians from the period of the first appointment so made until the 29th of Sep- tember, and for one year next ensuing, or until others shall be appointed in their stead ; and at the expiration Appointment of one year after the 29th September next following tobeannual - such first appointment, and on the 29th of September in every succeeding year, or within 14 days thereof, the ex officio guardians for the year, computed from the 29th of September, shall in like manner be appointed ; and immediately upon their appointment those last pre- viously appointed shall go out of office ; and lists of the names of the justices so appointed ex officio guardians, duly certified by the chairman of the said meeting, shall be sent by him to the Commissioners and to the Clerk of the Peace of the county, who shall preserve the same in the county records. Provided any ex officio guar- Js. P. re-eli- dian shall be re-eligible for the ensuing or any sub- sequent year ; and whenever the number of justices when not ex- qualified to act as ex officio guardians in any union shall, ^ in ( f f one " by death, removal, disqualification, or any other cause, the elective be reduced to or below one-third of the number of the j^ t n " a11 elective guardians, then, and so long as the number shall not exceed one-third, the whole of the justices so qualified shall be entitled to act. V. In addition to the provisions of the Malicious In- Powers of Justices in Proceedings juries Act for preventing the wilful destruction of houses by tenants, which will be found in another place(a), the following duties in connexion with the relation of landlord and tenant are entrusted to justices. Giving certifi- By Stat. 56 Geo. III. c. 88, s. 1, if any tenant, holding cate of desertion i i 11 i of premises to an y tenement, who shall be in arrear for one half-year s enable landlord ren t sna ]i desert the tenement demised to him, or leave to recover by civil bill eject- the same uncultivated, or carry oft the stock and crops, ment. or otherwise abandon the same so as no sufficient dis- tress may be had to countervail the arrears of rent then due for the same, it shall be lawful for the landlord or lessor to proceed by civil bill to obtain possession of the tenement; and thereupon it shall be lawful for two or more Justices of thePeace of the county in which such tenement shall be, having no interest in the demised premises, at the request of such landlord or lessor, his bailiff or receiver, to go upon and view the s.ame between the hours often Time for view- o'clock in the forenoon and fourin the afternoon, and hav- ing fully ascertained to their satisfaction, by examination of witnesses or by their own view, that the premises are so deserted by the tenant or left so unoccupied as afore- said, and without sufficient distress to countervail the Ecclesiastical () See the Stat. A pp. p. civ, cvi, and forms. Besides these Acts, Stat. residences. 5 Geo. IV. c. 91, for enforcing the residence of spiritual persons in Ireland, provides that contracts for letting houses in which spiritual persons are required by the bishops to reside shall be void, and subjects any person holding posses- sion after the service of notice as therein directed, to a penalty ; and empowers and requires any J. P. applied to to grant a warrant to take forcible possession, if necessary, without any proceeding by ejectment, see s. 31 of the Act. Stat. 23 & 24 Geo. III. c. 39, for the encouragement of planting timber trees, Tenants en- sec< 9 provides, that when the term of a tenant entitled to the property in titled to cut trees by that Act shall be for life or uncertain, he shall have a year from its trees * expiration to enter and take the trees, making such reasonable compensa- tion for the damages incurred by so doing, as shall be awarded by two neighbours who shall be appointed by the next residing J. P. for the county, by an order under his hand, and which two neighbours shall in case of a difference between them, call in a third. between Landlords and Tenants. arrears of rent then clue, to certify to the Assistant Form of certifi- Barrister, Chairman of the Sessions, or Recorder be- c< fore whom such proceeding by civil bill shall be, under the hands and seals of such justices, that they have together viewed the premises in question, fully describ- ing the same, and that the same appeared to them de- serted or unoccupied and without any sufficient distress thereon to countervail the arrear of rent, ascertained by affidavit of the landlord or lessor, his bailiff or re- ceiver, to be due thereon after all fair and just allow- ances ; which certificate shall be sufficient and conclu- sive evidence of the facts therein, unless they be dis- proved by contrary evidence on hearing of the civil bill, or appeal therefrom. The section then provides for the serving or posting of the certificate and process on the civil bill; and the landlord may be decreed to be put Proof of cenifi- into possession upon proof of the certificate by any Cl person who may have witnessed the execution of the same, and that half a year's rent was due when the pro- ceedings commenced, and that the process and a copy of the certificate have been served or posted as directed. By some ancient Statutes justices may convict sum- Restitution to ., - /> ., , . . - landlords in manly on view lor forcible entry or detainer, and may cases O f forcible restore possession to landlords. For this purpose, the entl > magistrate is empowered to issue a precept to the sheriff to summon a jury. He should then issue a summons to the defendants, warning them to appear on the day ap- pointed. An inquisition is then found by the jury, which should be engrossed on parchment and signed and sealed by each of the jury and by the justice in the same man- ner as an inquisition before a coroner, and this inquisi- tion may be kept by the justice unless removed by cer- tiorari. If the jury find the entry to have been forcible or unlawful, and the detainer forcible, and if the defen- dant has not been in possession for three years, the justice may put the complainant into possession peace- 712 Restitution under Forcible Entry Acts Proceedings under these Acts of rare occurrence. ably and make an indorsement on the inquisition that he did so. If the defendant still forcibly resists, the justice should issue a warrant to the sheriff to restore the pre- mises to the complainant(a). Summary proceedings under these ancient Statutes are, however, involved in considerable difficulty(), and have been at all times, even in England, of rare occurrence, as parties, in gene- ral, prefer obtaining restitution by the safer course of indictment(c). (a) See the Statutes in App. p. 1, liv, and for their interpretation see fully 2 Burn, 844, etseq. ; Archb. J. P. 354, et seq. ; from which the prac- tical directions above are taken. For forms of warrants, precepts, convic- tions, inquisitions, and memoranda, see 2 Burn, 910, &c. ; Archb., J. P., ubi sup. ; Bull. J. P. 287, 291 ; 2 M'Nally, J. P. 214, et seq. ; the convictions in the two latter and in former editions of Burn are, however, bad. (6) In almost all the reported cases which arose under these Acts, the convictions have been held bad. In R. v. Elwelt, 2 Str. 794 j 2 Lord Raym. 1514; the conviction was quashed for not stating the amount of the fine imposed. In R. v. Bengough, 3 Salk. 170, it was adjudged the justice had acted illegally in refusing a traverse tendered when taking an inquisi- tion for a forcible entry. In R. v. Oakley, 4 Ad. & El. 370, the conviction was held bad for stating merely an entry (not an unlawful entry) and forci- ble detainer. In R. v. Wilson, 5 N. & M. 164, the conviction set forth in the information an unlawful ejection and a forcible detainer, but purported to be a conviction by the justices on their own view of the forcible detainer, (without showing evidence of the unlawful entry which could not have been viewed) ; it also did not set forth that the party had been summoned ; both conviction and inquisition were quashed. As to the nature of the case of JR. v. Layton, 1 Salk. 359, see this case p. 170. (c) R. v. Wilson, 5 Nev. & M. 171, and see ib. 169. This remark applies with still greater force to Ireland, where any person who forcibly and without due process of law takes possession of any land or tenement, and forcibly and without due authority by law holds such possession so taken by force, is guilty of felony, by 26 Geo. III. c. 24, s. 64, and a pecu- liar mode of proclaiming persons guilty of such offences is pointed out. In England forcible entry is only a misdemeanor, see Arch. Cr. L. sub tit. ; as to the misdemeanor merging in the felony, see R. v. Cross, 1 Lord Raym. 711. Of Special Sessions. 713 CHAPTER II. OF SPECIAL SESSIONS. A SPECIAL session is a meeting of justices holden on What is a Spe- a special occasion, for the execution of some particular cial Session - branch of their authority, convened by reasonable notice to the other magistrates of the division(a). It is dis- Differs from tiuguished from a Petty Session in this, that every magistrate of the division must have an option presented to him of attending and taking part in the proceedings of a Special Session(6). A Special Sessions cannot be holden by different Cannot be hold- sets of magistrates for the same purpose, and therefore j b s y p W f S r ets when two sets of magistrates have concurrent jurisdic- same purpose. tion, and one of them holds the Special Sessions to ex- ercise it, the jurisdiction attaches to them, and a sub- sequent meeting of the other set of magistrates for the same purpose is illegal(c). The principal Special Sessions held in Ireland are, I. for revising the jury lists ; II. Presentment Sessions, under the Grand Jury Act. I. Stat. 3 & 4 Will. c. 91, ss. 4, 8, provides, that Issuing pre- the Clerk of the Peace shall, within one week after the tors S toretura C " commencement of the Midsummer Sessions every year, list of persons / /_r _ qualified to be issue and deliver his precept to the collectors of Grand j ur ors. Jury cess, (or other cess where no Grand Jury cess is levied), in each barony requiring them, within one month, to prepare a true list of all men residing within (a) R. v. Js. of Worcester, 2 B. & A1. 233 ; Dick. Sess. 12 ; 5 Burn, 623. (6) Dick. Sess. 12 ; as to Petty Sessions, ante, p. 75, et seq. (c) R. v. Sainsbury, 4 T. R. 451 ; and the Js. P. may be indicted, ib. 5 Burn, 624; ante, p. 80. 4Y 714 Revision of Jury Lists. Contents of the returns. Returns to be kept for inspec- tion and laid before Special Sessions. Fixing a time and place for holding Special Sessions. Penalty for neglect or mis- conduct. their respective districts, qualified and liable to serve on juries according to this Act; such precepts and a sufficient number of returns to be printed in the form in the schedule ; and the collectors shall forthwith after the receipt of the precept make out, in alphabeti- cal order, a true list of every man residing within their respective districts, who shall be qualified and liable to serve on juries, with the Christian and surname at full length, the true place of abode, the title, quality, call- ing or business, and the nature of the qualification of every such man, in the proper columns of the return ; and deliver those copies within one month to the Clerks of the Peace, who shall keep them for three weeks to be perused by any of the inhabitants of the county with- out fee, and after that time lay the same before the justices at Special Sessions(a). Sect. 9 enacts, that the justices at October Quarter Sessions shall fix a time, within prescribed limits, for holding the Special Sessions, and shall give public notice of the time and place. Stat. 4 Will. IV. c. 8, s. 1, recites (a) By sec. 35, any collector who shall refuse or neglect (unless pre- vented by sickness) the making out of the lists, so that they shall not be duly made out, or shall wilfully omit any man whose name ought to be inserted, or wilfully insert any man who ought to be omitted, or shall take any money or other reward, or promise of them, or other consideration for omitting or inserting any man, or shall wilfully insert a wrong description of the name, place of abode, title, quality, calling, business, or other nature of the qua- lification of any man, or shall refuse or neglect to apply to the Clerk of the Peace, if necessary, for a sufficient number of forms, or shall refuse to allow any inhabitant of their respective districts to inspect such lists or a true copy, gratis, at any reasonable time during the three weeks, or shall, on due no- tice, refuse, or wilfully neglect to produce such list at Special Sessions, or to answer on oath such questions touching the same as shall then be put, or to attend at such sessions or any adjournment thereof, shall forfeit from 40s. to 50 at the discretion of the J. P. before whom he is convicted ; and if the offence be wrongful insertion or omission, the J. P. shall forthwith in writing, under his hand, certify the same to the Clerk of the Peace to have the list corrected. Sect. 43 gives a summary form of conviction. Revision of Jury Lists. 715 this, and that the periods so prescribed had been found inconvenient; and enacts, that the justices at any Octo- ber General or Quarter Sessions in each division of each county at large, and each county of a city or town, shall fix a place within such(#) cities and counties of towns respectively, and a time not less than one lunar month, nor more than six weeks after the first day of such October Sessions, for holding a Special Sessions for examining the jury lists. Stat. 2 & 3 Viet. c. 48, re- Remedy when , _ , -ii. i the sessions are cites both of these enactments, and that m some places not effectually the provisions of the said Acts had not been carried held ' into operation for want of a sufficient number of justices attending ; and empowers the Lord Lieutenant in every case where such Special Sessions shall not be effec- tually held, for that or any other cause, by warrant, (a copy of which shall be published in the Dublin Gazette and in some one newspaper circulating in the county), to fix a day, not sooner than fourteen days after publi- cation in the Gazette, and a place for holding such Special Sessions. Stat. 3 & 4 Will. IV. c. 91, s. 9, enacts, that the Justices at s F e- i 11 -1,11 -i / i i cial Sessions to justices shall attend at the place and time fixed; and exa mine and the high constables and collectors shall attend the jus- reform J UI 7 lists, as herein tices, and answer upon oath such questions touching directed. the jury lists as shall be put to them by the justices then present ; and if any man not qualified or not liable to serve on juries shall be inserted in any list, it shall be lawful for the justices, if satisfied from the oath of any party examined before them, or from other proof, or upon their own knowledge, that he is not qualified or not liable to serve, to strike his name out of such list(#) ; and also to strike out the name of any man disabled (a) The words " divisions and counties of" seem omitted; they oocur in 3 & 4 Will. IV. c. 91, s. 9 j and 2 & 3 Viet. c. 48. (fe) The qualifications enumerated in sect. 1 of the Act are with regard Who are quali- to age, to be within 21 and 60. And every man residing in any county fied * 716 Revision of Jury Lists. Who are quali- fied in counties at large. In counties of cities and towns. Who are ex- empt. Who are in- competent. by lunacy or imbecillity of mind, or by deafness or blindness, or other permanent infirmity, from serving on juries ; and also to insert the name of any man omitted who ought to have been inserted, and likewise to re- form any errors or omissions which shall appear to them who has in his own name or in trust for him, within the same county, 10 in the year above reprises in lands and tenements, or rents issuing out of lands and tenements, or in lands, tenements, and rents together, in fee sim- ple, fee tail, or for life of himself or some other person or persons, or above 15 by the year in lands and tenements by lease or leases originally made for an absolute term of not less than 21 years, whether determinate on lives or not ; and also every resident merchant, freeman, and householder, having a house and tenements in any city, town, or borough, situate within the said county, (not being a county in itself), of the clear yearly value of 20, is qualified to sit on county juries. And every person so qualified, and also every resident merchant, freeman, and householder having lands or tenements, or personal estate of the value of 100, is qualified to sit on juries for a county of a city or town. The following are, by sect. 2, exempt from serving as jurors : peers ; judges of the King's courts of record in Dublin; clergymen in holy orders ; teachers or preachers in any religious congregation ; sergeants and barristers at law actually practising ; assistant barristers ; judges of the ecclesiastical courts ; advocates in ecclesiastical courts or courts of civil law actually practising ; attorneys, solicitors, and proctors, admitted into any court of law or equity, or ecclesiastical or admi- ralty courts, actually practising, and having duly taken out their annual certificates; officers of such courts, or of a court of criminal jurisdiction actually exercising the duties of their offices ; public notaries; coroners; gaolers, and keepers of Houses of Correction ; members and licentiates of the King's and Queen's College of Physicians, and all other physicians actu- ally practising ; surgeons, being members of one of the colleges in London, Edinburgh, or Dublin, and actually practising ; apothecaries certificated by the Apothecaries' Hall, and actually practising ; officers in the navy or army on full pay ; officers in customs or excise ; sheriffs officers, police constables) and parish clerks ; postmasters and their deputies, and persons employed under the Post- Office ; treasurers and secretaries of Grand Juries ; and all persons exempt by prescription, charter, or grant, shall enjoy their exemption. The following are, by sect. 3, incompetent : aliens, except on juries demedietate lingua; all attainted of treason, felony, or any infamous crime, unless they have obtained a free pardon ; any man outlawed on criminal process or excommunicated. By sect. 38, no justice shall be sum- moned as a juror at Quarter Sessions for his own jurisdiction. Revision of Jury Lists. 7 1 7 to have been committed in respect to the name, place of abode, title, quality, calling, business, or the nature of the qualification of any man included in any such list. Provided that no man's name, if omitted, shall be in- But no altera- .. . tions to be made serted in such list, nor shall any man s name be struck un i ess on app ii_ out of such list, nor shall any error or omission in the cation of the . party or notice description of any man in such list be reformed by the given as herein said justices, unless upon the application of such men respectively, or unless such men respectively shall have had notice that an application for such purpose would be made to the justices at such Special Sessions, or un- less the said justices at such sessions, or any two of them, shall cause notice to be given to such men re- spectively, requiring them to show cause either at the same Special Sessions or at an adjournment thereof, to be holden within four days thereafter, and at such time and place as the said justices shall in such notice specify, why their names should not be inserted, or struck out of such list, or why any error or omission in the de- scription of such men in such list should not be re- formed. And when every such list shall be duly cor- Revised list to rected by the justices present at such Special Sessions, t ^ e QeTiTof t0 or adjournment thereof, and allowed and signed by the Peace, them, or three of them, they, the said justices, shall cause one general list to be made out therefrom, con- taining the names of all persons whose qualification shall have been so allowed, arranged according to rank and property, and the presiding justices at such sessions shall deliver the same to the Clerk of the Peace, to be copied into the juror's book. II. The duties of magistrates at Special Presentment Special Pre- Sessions are prescribed by Stat. 6 & 7 Will. IV. c. 116. s ? ntmen l s t s - J sions to be held This Act enacts, s. 4, that it shall be lawful for every by Js. P, Justice of the Peace(a) in and for any county, county of (a) Under this section no property qualification is required from the 718 Of Special Presentment Sessions. Time and place for holding. Sessions in cities. Number and list of cess payers to serve at Presentment Sessions. Choice of a chairman. Casting vote. No property qualification now required, a city or town, or city and county, in Ireland, not being a stipendiary magistrate, to attend, and all such justices are required to assemble from time to time, and with the cess payers associated with them as hereinafter ap- pointed, to hold a Special or Presentment Sessions for the purposes of this Act, in such place and places and at such time within every such county as the Grand Jury shall have appointed pursuant to this Act. Sect. 5, and Stat. 7 Will. IV .c. 2, s. 1 4, provides for the appointment by the Grand Jury of the time and place for holding the Presentment Sessions until the next assizes. Sect. 6, directs the appointment of one such Presentment Ses- sions in counties of cities and towns. Sects. 7 and 8 re- quire the Grand Jury at each assizes to fix the number of cess payers to be associated with the justices at the Presentment Sessions, and to make out, from returns made as herein, a list of double that number ; and that their secretary shall deliver a copy of this list to each of the persons included therein, and also to the justices assembled at each Presentment Sessions. Sect. 9 enacts, that at every meeting of such Pre- sentment Sessions the majority of the justices then pre- sent shall choose one of their number to preside thereat ; and if but two be present, then the senior, or if one only, then that one shall preside ; and such chairman shall have, in addition to his vote a casting voice, in case of an equlity of votes. Immediately after the ap- justices, as there was under the former Statute, see ante, p. 4, and it seems clear that no property qualification is now necessary to entitle justices to attend at Presentment Sessions under this Act, see 1 Darl. Stat. 474, n. (a). But sec. 32 of this Act provides,that it shall not be lawful for any stipendiary magistrate, or the county treasurer, or secretary of the Grand Jury, surveyor, high constable or collector of any barony or half-barony, or Clerk of the Crown, or Clerk of the Peace, or coroner, to act as a justice or associated cess payer at any Presentment Sessions for the county wherein he holds office. Of Special Presentment Sessions. 7 1 9 pointment of such chairman, and before entering on any Cess payers to V, , . ' ^ be balloted for other business, the name of every cess payer in the O ut of Grand Grand Jury list, written on separate pieces of parchment Jul y list - or card, as near as may be of equal size, shall be put into a box, provided, as well as the cards or parchment, by the secretary of the Grand Jury ; and the chairman shall, in open court, draw out, one after another, the number fixed by the Grand Jury ; and if any whose names shall be drawn shall not appear, then others shall be drawn, until the number so fixed is made up or all the names are drawn. Such number of the cess payers so Those drawn first drawn and appearing, or so many as appear when *o ^aTsTdated drawn, shall be associated with the j ustices, and have and with the jus- exercise jointly with them all power and authority in the business of such sessions. But it is provided, that in How far asso- caseofany county at large, the cess payers so associated Gl a at eI? s c a e r e S ei ,_ with the justices at the Presentment Sessions holden in titled to act the county court-house(a), shall (save and excepting ^ the cess payers selected as hereinafter mentioned) have no voice, power, or authority, in respect of any applica- tions the expense whereof it may be proposed to levy off* the county at large, but only in respect of those ap- plications the expense whereof it may be proposed to levy off the barony or half barony or portion thereof wherein such court-house may be situate ; provided also that such one of the associated cess payers as shall be for that purpose selected by the justices and associated cess payers at the Presentment Sessions holden in the county court-house, and such one of the associated cess (a) This Act, Stat. 6 & 7 Will. IV. c. 116, s. 5, required the last meeting of the sessions to be appointed by the Grand Jury to be held at the county court-house ; but 7 Will. IV. c. 2, s. 14, recites, that in many counties the county court-house is inconveniently situated, and requires the Grand Jury to appoint such last meeting to be holden either in the county court-house or such other court-house or place as they consider most con- venient. 720 Of Special Presentment Sessions. payers as shall be for that purpose selected by the justices and associated cess payers at each of the baro- nial Presentment Sessions, shall be associated with the justices at the Presentment Sessions holden in the county court-house, and have and exercise jointly with such justices all such power and authority as is conferred upon the justices and cess payers at such sessions, in respect of so much of the business of such sessions as When cess shall relate to the county at large. If none of the cess attend justices P a yers named in the Grand Jury list shall attend, it shall may act alone, be lawful for such justice or justices at any Presentment Sessions alone to do all matters and things authorized by this Act to be done thereat by the justices and asso- ciated cess payers. Declarations to Sect. 10 enacts, that before acting at sessions the tices and MM justices and cess payers shall make and subscribe, in payers. open court, declarations in the respective forms(a) iu the schedule, which declarations any one of the justices Form of decla- ration of J. P. Of cess payer. Title of the Act, (a) The justice's declaration is : " I, A. B., of [here insert the name and place of abode of the justice taking this declaration], do declare that I am a Justice of the Peace of the county of [here insert the name of the county for which the Presentment Sessions is holden], and * that I will truly, faith- fully, and impartially do and perform all such acts, matters, and things as I am authorized to do and perform by and under the provisions of an Act passed in the year of the reign of his Majesty King William the Fourth, intituled [here set forth the title of this Act] j and that I will with- out favour, affection, hatred, or malice or ill will, diligently inquire into and impartially and honestly judge and determine according to the evidence, and to the best of my judgment and ability upou the several applications and other matters which may be brought before me under the authority of the said Act. Witness my hand. The cess payer's declaration is : " I, A. B., [here insert the name and place of abode of the cess payer taking this declaration], do declare, that T will truly," &c. The form is exactly the same as the preceding from the asterisk*. The title of the Act is, " an Act to consolidate and amend the laws relating to the presentment of public money by Grand Juries in Ire- land." Of Special Presentment Sessions. 721 the corers etary of the Grand Jury is authorized to ad- minister ; and the chairman at each such sessions is re- Chairman to T r make list of quired to make out a list of the names ot all the justices persons making and cess payers who shall have made and subscribed declarations, such declarations respectively, at the sessions where he presided, and deliver it to the secretary of the Grand Jury ; who is to deliver it and all the declarations made to the Clerk of the Peace, to be preserved among the county records. Sect. 12 enacts, that all applications for works, the What appiica- i ., , , * ,. tions shall be expense whereof it may be by such applications pro- made to the posed to levy off the county at large, or off the barony sessi ns at the _ . , / k ' 11 , county court- in which the county court-house is situate, shall be house. made at the Presentment Sessions holden thereat. And What at Barony n , , sessions. all applications for works, the expense whereof it may be proposed to levy off any other barony, shall be made at the Presentment Sessions for such barony ; provided that applications for certain works(a) shall be made at the Presentment Sessions for the barony in which the works included in such applications may be locally situ- ated. And by Stat. 7 Will. IV. c. 2, s. 4, all applications for works, the expense whereof is by 6 & 7 Will. IV. c. 116(6), directed to be levied, one-half off the county, (a) All applications for lowering any hill, or filling up any hollow, or both, in any public road, and for making the road thereon with stones and gravel ; or for building, rebuilding, repairing, altering, or enlarging any bridge, pipe, arch, or gullet, built of stones, or bricks, or wood, under or on any such road, or filling or gravelling over any such bridge, &c. ; or for building or repairing any wall or part of a wall necessary to the sup- port of, or to prevent, any steep banks of earth from falling on any such, road ; or for erecting any fence, railing, or wall, for the protection of tra- vellers from dangerous precipices or holes lying on the side of any public road ; or for maintaining any dispensary. (&) By sect. 51, presentments for the widening, narrowing, repairing, improving, or fencing public roads on which H. M. mails are carried in mail carriages shall be made, one-half to be levied off the county and the other half off any barony or baronies in which such road, or any part of it, is situate. 4z iWA Of Special Presentment Sessions. How applica- tions are to be lodged. County sur- veyor may, in certain cases, make applica- tions, which he need not lodge. By whom ap- plications are to be made. Forms thereof. and the other half off" the barony or baronies in which such works, or any part thereof, are situated, shall be made at the Presentment Sessions for the barony in which such work, or the greater portion thereof, is locally situated. By Sect. 13, applications for any new works, which it is proposed to charge upon two or more baronies, but not upon the county at large, shall be made at the sessions for the barony off which it is pro- posed that the larger portion of the expense is to be raised, without making them at the sessions for both baronies. Sect. 14 requires all applications to be lodged with some high constable of the county fifteen days, or with the secretary of the Grand Jury ten days, at least, be- fore the day for holding the first Presentment Sessions after the assizes ; an abstract and index of which shall be prepared as herein directed and laid, together with the application, before the proper Presentment Sessions. Sect. 15 allows the county surveyor to examine the ap- plications lodged, and in case there be no application for any public work which he thinks necessary, he may apply for the same without lodging the application ; and such application delivered to the chairman at the pro- per sessions shall be dealt with in all respects in the same manner as the other applications which have been lodged. Sect. 16 enacts, that every application to Pre- sentment Sessions for any presentment, other than for a public work, shall be made by or on behalf of the person or persons requiring such presentment; and every application for any public work shall be made by two persons paying Grand Jury Cess, or by the county surveyor ; and the secretary of the Grand Jury is pro- And by sect. 52, the same provision is made as to mail coach roads, to be repaired by contract for seven years, see seel. 20, post, p. 725. By sect. 55, new lines of mail coach roads are to be presented for in the same way. Of Special Presentment Sessions. 723 hibited from receiving them, if not made in the form and containing the particulars hereby directed. Sect. 17 enacts, that at each Presentment Sessions justices and the justices and associated cess payers shall take into cess P a y ers V> ^ ^ examine and consideration all such applications as may be laid before decide on ap- them in the manner prescribed, and examine into the p " posting and serving of the notices where a notice is necessary(a), and into the merits of such applications, (a) Sect. 11 directed where notices required by this Act should be When and posted, but now Stat. 7 Will. IV. c. 2, s. 3, enacts, that a notice in writing where notices of every application for any work intended to be made at any Presentment sha11 be P osle(1 ' Sessions, shall be affixed by or on behalf of the person or persons intending to make such application, on or immediately adjacent to the doors of every police station or barrack within such parish or parishes wherein the work to which such application shall relate is proposed to be executed, and at the places (if any) appointed by the Grand Jury for posting notices therein ; and such notices shall be so affixed as in 6 & 7 Will. IV. is directed, (i. e. ten days previously to the first day appointed for holding the Presentment Ses- sions at which the application for the work is to be made). St. 6 &7 Will. IV. Notice to Clerk c. 116, s. 11, further directed a copy thereof to be delivered to the Clerk of Pelt y Ses ' sions, county of certain Petty Sessions, and to the county surveyor and secretary of the surv eyor, e. Grand Jury, within the time above mentioned ; but 7 Will. IV. c. 2, enacts, that a copy of every such notice shall be delivered to the Clerk of the Petty Sessions of the district, where the work for which such application is to be made, or the greater part of it is to be performed, (instead of the Clerk of Petty Sessions mentioned in 6 & 7 Will. IV.), and the notice of every such application shall be delivered to the county surveyor ten days before the day for holding the first Presentment Sessions after the assizes ; provided that the delivery of any such notice to the baronial constable fifteen days before the day for holding such sessions shall be deemed due notice to the county surveyor, to whom the baronial constable shall, in five days after, deliver it ; and that no notice other than the application itself need be given to the secretary of the Grand Jury. By sect. 55, no new line of road shall Notices for new be presented for by the Grand Jury unless a notice setting forth that an ap- lines of road, plication is intended to be made for a presentment to lay out such new road, (distinguishing the townlands and baronies, with the number of perches in each through which it is to pass), has been personally served upon or left at the house of each occupier of land through which it is in- tended to be made, fifteen days at least before the day of holding the first Presentment Sessions after the assizes. 724 Of Special Presentment Sessions. Approved ap- plications to be referred to sur- veyor, to pre- pare tender and specifications as herein. Chairman to indorse and sign adopted applications and deliver them to secre- tary of Grand Jury. Appointing mode of notice of tenders and time for ad- journed ses- sions. and the conformity thereof with the provisions of this Act; and after such examination, decide thereupon hy majority of voices, and whether the same ought to be adopted or rejected, and whether wholly, or in part, or conditionally in the event of the expense thereof not exceeding a certain specified sum, and what modifica- tion thereof, if any, may be proper. And if the justices and cess payers shall approve of any proposed work, either wholly or in part, or conditionally, or of any modification thereof, they shall, save in cases herein- after otherwise provided for(a), direct the county sur- veyor to prepare a proper form of tender for the exe- cution of the same, together with such specifications, plans, maps, sections, or elevations as may be necessary, expressing the nature and extent of such works, and, if the sessions shall so direct, the quantity per perch, and description of the materials proper to be employed in performing and executing the same, and the term within which such work ought to be completed, and such other particulars as the justices and cess payers shall think fit. The chairman shall indorse all applications adopted and approved, and sign his name thereto, and deliver all such applications so indorsed to the secretary of the Grand Jury, to whom also the county surveyor is to deliver, as soon as they can be conveniently prepared, the tenders, specifications, &c. And the justices and cess payers shall appoint the manner in which notice for the receipt oftenders and pro- posals for the execution of such works shall be given, and the period during which they shall be received; and shall adjourn such sessions until some day previous to the next assizes, to be then holden for the opening of such sealed tenders and proposals, such day not being later than thirty days from the day of such adjournment. (it) See sects. 18 and 27, post, pp. 725, 727. Of Special Presentment Sessions. 725 Sect. 18, prescribes the steps to be taken by persons in case the sessions refuse to approve applications. Sect. 19 enacts, that when the county surveyor considers Tenders may, it probable that the expense of any work will exceed ^eedT^Too, 100, the justices and cess payers, if they think fit, may be directed to order a notice for the receipt of such tenders to be in- thVorandJury. serted in some newspaper circulating in the district, and to direct that the opening of the tenders for such work shall not take place at such adjourned sessions, but that such tenders shall be opened by the Grand Jury at the following assizes(a); and the Grand Jury may open them and proceed as if they had been opened at the adjourned sessions. Sect. 20, in order to lessen the expense of keeping Contracts for public roads in repair, and to obviate the necessity of kee P 1D S roads 9 m repair may making frequent applications to Presentment Sessions, be made for enacts, that whenever application is made for gravelling s< or repairing with small stones any public road, or keep- ing open drains, or for gravelling or repairing any foot- path on the road side, or for repairing battlements on bridges or roads, the justice and cess payers may fix a period not more than seven years for which a contract may be made for such purpose, and the county surveyor shall insert such period in the specification and tender therefor. Sect. 21 enacts, that in case of applicants dying or In case of death being prevented from attending Presentment Sessions absencltffp- 6 by illness or unavoidable necessity, the justices and plicants appii- Al cations may be cess payers may examine any other persons who have considered. knowledge of the matter, and decide upon the appli- cation. Sect. 22 enacts, that the secretary of the Grand Advertising for Jury shall notify by public advertisement or otherwise, tenders * (a) By adopting this course the Presentment Sessions lose all control over the tender sent before the Grand Jury j Porter's Grand Jury Act, 140. 726 Of Special Presentment Sessions. must contain, Security for per forming con- tracts. Opening the Lowest to be as the justices and cess payers shall have directed, his readiness to receive sealed tenders and proposals during such period as they shall have appointed, and the time to which such sessions has adjourned for the opening of such tenders and proposals, and shall furnish forms at a sum not excee ^ing six-pence. Each of such sealed tenders and proposals shall contain a statement of the lowest sum for which the party making such proposal is willing to contract for the performance of the work or works specified ; and shall be subscribed with the name, description, and residence of the party so desirous to enter into such contract ; and also the names, descrip- . tions, and residences of not less than two sufficient per- sons willing to be bound jointly and severally with him for the due and faithful performance of the contract, in the time and manner prescribed, in a penal sum double the amount of the sum mentioned in such tenders and proposals, if it does not exceed 1000 ; and if it exceeds 1000, in such sum so mentioned and 1000 addi- tional. All maps, &c., prepared by the county surveyor shall be open for inspection at the secretary's office without fee. Sect. 23 enacts, that at the meeting of the adjourned sessions the secretary of the Grand Jury shall produce, in open court, duly numbered and arranged, and with the seals unbroken, all tenders and proposals delivered to him, and open consecutively all those relating to the same public work. And so soon as the lowest proposal made for the P erformance of each such work shall be ascertained, the party making such proposal and his sureties shall be called, and if he and his sureties appear and satisfy the justices and cess payers, upon oath or otherwise, of the sufficiency and ability of each and every of them to make good the penalty for nonper- formance of the contract, and that such proposal has not been made for any unfair or fraudulent purpose, Of Special Presentment Sessions. 727 and shall thereupon enter into security for the due per- formance of the contract in the penalty aforesaid, such proposal shall be accepted and the party (a) declared en- titled to execute the work, if it shall be presented for by the Grand Jury. But if the party and his sureties if terms not do not appear, or fail to satisfy the justices and cess thTnext lowest, payers of any of these particulars, or decline entering into the security, such proposal shall be void, and the next lowest shall be ascertained and dealt with in the same way ; and so on till one is accepted. If there be no pro- If n P r pP sal 1 *, application posal within the time limited for receiving it, the appli- void, cation shall be void; and if ultimately the Grand Jury If Grand Jury do not present, the contract shall be void. By sect. 24, the security shall be by recognizance to the Crown, Security to be which any justices present, or the chairman may take; ^ u T ^ sm ' and the secretary of the Grand Jury shall come pro- vided therewith to prevent delay, the parties bound paying for it not exceeding Is. ; and it shall be kept by the secretary till the condition is fulfilled. Sect. 27 provides, that if such application at Pre- Course of pre- sentment Sessions shall be for making any new road, or the probable building any new bridge, or erecting, enlarging, repair- ex .P ense of cer- P ' tarn works ex- ing, rebuilding, or finishing any house or other build- ceeds 50. ing, the probable expense whereof shall exceed 50; and if the justices and cess payers approve of the ap- If approved of plication wholly or partially, or of a modification ofit,they shall direct the county surveyor to prepare the necessary specifications, maps, plans, sections, or elevations, ex- pressing the nature and extent of, and the proper mate- rials for the work; and the chairman of the sessions (a) Sect. 47, however, provides, that no magistrate of the county or cess payer shall undertake or be interested in any contract under this Act, for any work approved of or applied for at any sessions at which he shall act, or be capable of acting, as a justice or associated cess payer : nor shall any county officer, or any person in his employment, undertake or be inte- rested in any contract under the Act. 728 Of Special Presentment Sessions. To be certified and again laid before the Pre- sentment Ses- sions. To be adopted, rejected, &c., and tenders, &c., prepared as for other applications. Application to Presentment Sessions before presentment is shall indorse such application accordingly, and sign his name thereto, and deliver it to the Secretary of the Grand Jury, to be laid before the Grand Jury at nex t assizes, where it shall be certified as herein, but not presented for. By sect. 28, at the first meeting of Pre- sentment Sessions holden after such assizes for the same barony or for the county at large at which such appli- cation shall have been made, the county surveyor shall lay the specifications, &c., so prepared, before the jus- tices and cess payers for their consideration, who shall examine them and such other specifications, plans, &c., as shall be submitted to them, and decide by a majority of voices whether the same ought to be adopted or re- jected, or what modification may be proper, and shall, if need be, direct the county surveyor to alter and modify the same accordingly, and to prepare the proper form of tender, expressing the nature and extent of, and materials proper for such work, and the term within which they should be completed, and such other parti- culars as the justices and cess payers think fit to pre- scribe ; and shall deliver the specifications, &c., so ap- proved to the secretary of the Grand Jury, and appoint the manner in which notice for the receipt of tenders shall be given, and the period during which they shall be received ; and such sealed tenders shall be opened at the first adjournment of the sessions for opening ten- ders, and be subject to the same regulations as other applications and tenders. Subsequent sections authorize the Grand Jury to pre- sent for various purposes, but require the application, with certain vouchers, to have been first laid before and approved of by the Presentment Sessions(a). Thus : Sec. 81 provides, that when any fever hospital or dis- pensary for affording medicine or medical assistance to the poor of any city, town, or place in the county, is (a) As to presentment for Petty Sessions room, ante, p. 86. Of Special Presentment Sessions. 729 established by private subscriptions or donations, and a made in aid of certificate of the sums actually received from private dispensaries 0^ subscription or donation by the treasurer since the last hos P itals ' application to Presentment Sessions, or since its esta- blishment, and a statement of the number of persons ad- mitted or relieved, with an account of the receipt and disbursement of all monies raised by presentment, or actually received from private subscription or donation for such institution since the last application, shall have been laid before the Presentment Sessions ensuing the disbursement thereof, and such certificate and account, verified upon the oath of such treasurer, shall, together with the application for a presentment, have been allowed and approved of at such sessions, the Grand Jury shall present(a) for a fever hospital not exceeding double the amount, and for a dispensary equal to the amount of private subscription. If the fever hospital is attached to the dispensary the treasurer shall separate the accounts. Sect. 82 allows similar presentments for For building a erecting fever hospitals, if a statement on oath that a ever los P Ua sum has been actually received from private subscrip- tions or donations for its erection, and a certificate of one or more physicians that there is a necessity for pro- viding accommodation for fever patients has been, to- gether with the application for the presentment, laid before the Presentment Sessions and approved thereat. By sect, 83, the Grand Jury may present, not exceed- For support of ing 250 at each assizes, for support of the county fever Bounty fever hospital, if an account of the receipts and expenditure (o) Provided no such presentment shall be made unless it appears by the treasurer's certificate, verified as aforesaid, that the medical attendant, if appointed since this Act, resided since the creation of the institution, or since last assizes, within 5 statute miles of the institution ; there was also a proviso as to the amount of his salary, but it is repealed by 7 Will. IV. c. 2, s. 5. 5A 730 Of Special Presentment Seqsiofts. since its establishment, or since the last presentment re- quired has beenlaid before the Presentment Sessions, and, County in- with the application, approved of by them. By sect. 85 they may present not exceeding 700 for the county in- firmary, provided that, together with the application a certificate under the hand of the physician or surgeon, stating the number and names of patients extern and intern relieved since last application, and a true debtor and creditor account of the funds and expenses from the preceding application attested by the signature of the treasurer of the infirmary, shall have been laid before For surgeons of and approved of by the sessions. By sect. 86 the Grand infirmary. j ur ^ ma ^ p resent not exceeding 47 for the surgeon or surgeons of the infirmary, if there shall have been laid before the Presentment Sessions, together with the appli- cation, a certificate signed by the governors, or 5 of them at least, that such surgeon or surgeons have resided at or within one mile of the infirmary, and duly and faithfully executed his or their duty and diligently complied with the rules and regulations of the governors since the last application(a). For the House By sect. 88 the Grand Jury may present not less of Industry. dustry, if together with the application there has been laid before and approved of by the Presentment Ses- sions, a debtor and creditor account of the funds and expenses since the last application. For the coroner. Sects. 97 and 98 allow a presentment not exceeding 30 for the coroner, if together with the application there be laid before the sessions, a certificate of each in- quest taken by him, made and signed by him in the (or) And if a true copy certified under the hand of the treasurer of the infirmary, of the letters testimonial from the College of Surgeons in Ireland shall have been laid before the Special Sessions next after his appointment. Of Special Presentment Sessions. 731 form prescribed(tf), and the session may if they think fit examine him as to the truth of it ; and sect, 99 not Medical wit> exceeding '3 ordered by coroners for medical witnesses on inquests(5), provided the coroner certifies to the Pre- sentment Sessions for the barony in which the inquest was held the amount and particulars of all such sums so by him ordered, and such payment is approved of thereat. By sect. 108, the expense of removing offenders ap- Expense of re- prehended in any other part of the United Kingdom may m vio s P rison - be presented for, provided that with an application by the county treasurer to the next county Presentment Ses- sions, after such expenses shall have been repaid by him(c'), there shall be laid by him before such sessions the account or accounts of such expenses verified as is by law required, upon which he shall have repaid the same, and such application and account have been approved of. By sect. 109 the Grand Jury may present not ex- Deserted chii- ceeding 5 per annum for the maintenance of any child dren< exposed and deserted under the age of 2 years in any parish, if an application shall have been made by any 2 cess payers with the approval of 2 or more Justices of the Peace at Petty Sessions assembled, and such ap- plication shall likewise have been approved at the Pre- sentment Sessions for the barony in which the parish is situate(d). () I, A. 13., a coroner in the county [county of a city or county of a town] of , do hereby certify, that on the day of , 1 held an inquest on the body of C. D. at , in this county [or county of city, &c.] and that the names of the jurors impannelled on such inquest were as follows : ; and that the names of the witnesses examined before such jurors were as follows : ; and that the verdict of such jury was ; all which 1 certify. Dated this day of . "A. B. coroner of this county [or county of city, &c.] of .'* (6) And see 7 Will. IV. c. 2, s. 6; ante, p. 366 in note. (c) See ante, p. 225, n. ( a ). (d) If the presentment is refused, application may be made to the 732 Of Special Presentment Sessions. Law expenses. g ec t. 1 17 authorizes presentments for law expenses, if together with the application there has been laid be- fore the sessions a bill of costs duly taxed and certified by the taxing officer. Presentments Sects, 123, 124, 126 allow presentments for works under particular .-ici , T Acts. under particular JStatutes(rt) after previous application Superannua- to the sessions ; and by sect. 125 the Grand Jury may office rs. PriS grant superannuations to keepers, turnkeys or matrons, on recommendation of one of the inspectors-general, supported by a presentment of the Presentment Ses- sions of the county at large, and certificate of the Board of Superintendance of the prison, and such other certi- ficates as the Lord Lieutenant directs. Duties of the Sect. 130. Any contractor, when entitled to payment, Ses^ons^n" 1 shall give notice to the county surveyor 10 days at least allowing or dis- before the day for holding the first Presentment Sessions canons from '" a ^ G ^ GSich assizes, of his intention to apply as herein- contractors for after, and require a certificate of the due execution of the contract; and shall lodge within the period before direct- ed for lodging notices of application for presentments for public works(&), a notice of his intention to apply for payment with the secretary of the Grand Jury, who judge. But no sum shall be presented for any child after it has attained the age of 12 years. (a) Sect. 123 allows presentments under 1 & 2 Will. IV. c. 57, (for re- moving obstructions in rivers, &c.), if an application in the form prescribed in that Act has been made and approved at the Presentment Sessions for the barony where the work is situate. And sect. 124 allows presentments under the Prison Act, 7 Geo. IV. c. 74, after previous application to the sessions, (except repairs for sudden fire), and the work shall be executed by contracts after sealed tenders, &c., as before directed. Sect. 126 allows pre- sentments as under 1 & 2 Will. IV. c. 33, for extending public works, but previous application must be made to the Presentment Sessions (unless the work be done under the direction of the commissioners) and the contract shall be by sealed tenders, &c., as before directed j see also 7 Will. IV. c. 2, s. 10. (fr) Ante, p. 723 n. (a). Of Special Presentment Sessions. 733 shall lay all such notices and certificates, with an ab- stract and index of them, before the Presentment Ses- sions for the barony or one of the baronies, or the county of a city or town, in which the work was exe- cuted ; and the justices and cess payers shall examine all such applications for payment, and inspect the notices and certificates, and examine the surveyor or surveyors, and all such other persons as they think necessary to as- certain the due execution of the work contracted for ; and shall have therein all such powers as in case of applica- tions for presentments, and in like manner decide by majority of votes ; and the chairman shall upon every ap- plication approved indorse the word "allowed," or if it be not approved, the word " disallowed," and the reason of such disallowance, and a note of or reference to the parti- culars of the execution of the work which may have caused such disallowance. Such applications with the notices, &c., are then to be given to the secretary to be laid before the Grand Jury, who may consider those that were approved ; and no contractor shall be entitled to payment who has not given such notice and made such application. By sect. 131, contracts for printing are to t:s be treated in the same way, but the certificate is to be obtained, not from the surveyor, but from the Clerk of the Peace or secretary of the Grand Jury or county treasurer, for whose offices respectively the printing was done. By 6 & 7 Will. IV. c. 116, the certificates were required to be lodged with the notice, but by 7 Will. IV. c. 2, s. 16, it is sufficient if the contractors produce such certificates at the sessions when they apply for payment. Sect. 135 enacts, that in all cases of maliciously or i n what cases wantonly setting fire to, burning or destroying any com pens>ation * may be obtained house, outhouse, or other building, or any haggard, for malicious corn, hay, straw, or turf, or of maliciously setting fire 1D J uncs ' to, burning or sinking any boat or barge laden with 734 Of Special Presentment Sessions. corn or other provisions, or of maliciously killing, maim- ing, houghing, or injuring any horse, mule, ass, or swine, or any horned cattle or sheep, or of maliciously damaging, injuring, or destroying any bank, gate, lock, weir, sluice, bridge, dam, or other work belonging to any person, public canal or navigation ; any person or persons injured and intending to apply for compensa- Noticc, tion shall serve notice in writing of such injury and of such his intention, on the high constable of the barony and the churchwardens (or, if there be no church- wardens, upon two of the principal inhabitants) of the parish, where the offence is committed, and at the nearest police station, within six days at least after the commission of the offence ; and shall lodge with the high constable or secretary of the Grand Jury in like manner and time as applications for presentments for public works are directed to be lodged, an application setting forth the loss or damage occasioned by such offence, and stating the time and place of the injury, the particular property consumed, injured, or destroyed, and the amount of damage sustained, and by what num- ber of persons and whom by name and description such injury was done, if they be known, or, if not, such par- ticulars about them as may be known ; and like notice shall be posted of such application as is prescribed for other applications to Presentment Sessions ; and the Proceedings at secretary of the Grand Jury shall deal with it in all re- SeSTinsuch s P ects as w ^^ others ; and the Presentment Sessions cases. shall examine into the serving and posting of the notices and into the merits of the application, and the chairman shall indorse their opinion thereon, and the secretary shall deliver it so indorsed to the Grand Jury. By To what Pre- sect. 136 every application for compensation for such sentment Ses- malicious injuries shall be made at the next Present- sions applica- .' . . tion shall be ment Sessions, holdcn after the commission of such made. Of Special Presentment Sessions. 73/> offence for the barony or county of a city or town, where the same shall have been committed, unless the injury has been done after the day for holding the first Present- ment Sessions after the assizes, or so near the day that the application cannot be duly lodged, and then the application may be to the next sessions but one for the barony, &c., and notice shall be posted accordingly. By. sect. 137 every person so applying for compensa- Information to tion shall, within three days of the injury, unless pre- J* p.'t vented by illness or other sufficient cause, give in his, days. her, or their examination on oath, or it shall be given by the servant who had the care of the property injured, before some justice of the county, specifying whether they know the persons who committed the injury, or any of them, and the examinant shall in such case be bound over to prosecute. By sect. 140 if the injury is On verge of the committed on the verge of two counties, the parties may cc apply for compensation in either. By sect. 165, if any public work erected or repaired Application to by Grand Jury presentment, shall be wantonly or ma- seSonsThen a liciously damaged or destroyed, the county surveyor public work is shall apply at the Presenting Sessions of the district injur where it is situate, holden next after the discovery of such damage, for the repair thereof, and such proceed- ings shall be had as in other cases of applications by the county surveyor. By sect. 168 no stamp duty is required on contracts Stamp duty. or recognizances under the Act. By sect. 172 justices Affidavits. are prohibited from taking any money or reward for affi- davits under this Act. By sect. 174, no notice or other Informality, proceeding under the Act shall be impeached on any formal or technical grounds, or for any informality, provided it be in substance conformable to the Act. As to what presentments require a previous appli- For what appli- cation to Presentment Sessions, sect. 38 enacts, that it ^ad^tTiPre- 6 shall not be lawful for any Grand Jury to make a pre- sentment Ses- 7 30 Of Special Presentment Sessions. sentment for any public work whatever, or for raising any money, for which an application shall not have been made and approved at sessions, either wholly or in part, except such presentments as are by the Act specially excepted(a), and also such as may be necessary for the immediate repairs of sudden breaches or damages in roads or buildings, so recent as not to admit of proper application having been made. Extent of the By 7 Will. IV. c. 2, s. 2, the foregoing provisions are declared not to extend to the county or city of Dublin. (a) See sect. 73, as to rents of courts and sessions-houses ; 76, fuel for court-house ; 78, buying surrenders of leases ; 79, sessions-housekeepers and interpreters j 90, advances for Board of Health ; 93, advances for lunatic asylums ; 94, purchase and rent of asylums ; 101, 102, 103, money for constabulary ; 104, special constables ; 105, 107, witnesses, rewards for prosecuting, &c. ; 110, salaries of county officers ; 118, valuation of lands j 122, bridges under 4 & 5 Will. IV, c. 61. APPENDIX. ASSAULTS. BY Stat. 10 Geo. IV. c. 34, consolidating the laws relating to ASSAULTS. offences against the person, s. 32, " If any person shall beat, Geo> 1V - C ' wound, or use any other violence to any person, with intent to Assaults with deter or hinder him from selling or buying any wheat or other intent to hinder grain, flour, meal, malt, or potatoes, in any market or other before^wo'js/ place, or shall beat, wound, or use any other violence to any P. person having the care or charge of any wheat or other grain, flour, meal, malt, or potatoes, whilst on the way to or from any city, market, town, or other place, with intent to stop the con- veyance of the same ; every such offender may be convicted Punishment. thereof before two Js. P., and imp., and kept to H. L. in the common gaol, or H. of Cor. for any term not exceeding 3 calen- dar months;" provided that no person punished under this provi- sion shall be punished for the same offence under any other law. 36. " When any person shall unlawfully assault or beat Common as- any other person, it shall be lawful for two Js. P., upon com- J*" e " plaint of the party aggrieved, to hear and determine such of- fence ; and the offender, upon conviction thereof before them, shall forfeit and pay such fine as shall appear to them to be Penalty. meet, not exceeding, together with costs, if ordered, the sum of 5." Such fine to be paid to the Treasurer or other proper officer of the Infirmary of the county, or place where the con- viction takes place, or, if there be no Infirmary, of such other public charity as such Js. direct ; and see ante, p. 94. If such fine, together with costs, if ordered, shall not be paid either immediately " or within such period as the Js. at the time of the conviction appoint, it shall be lawful for them to commit the Commitment. offender to the common gaol, or H. of Cor., there to be imp. 11 APPENDIX. ASSAULTS. for any term not exceeding 2 calendar months, unless such fine 10 Geo. IV. and costs be sooner paid ; but if the Js. P., upon the hearing Certificate of ^ an y suc ^ case ^ assault and battery, shall deem the offence dismissal when not to be proved, or shall find the assault and battery to have proved or justi- been justified, or so trifling as not to merit any punishment, and ned, or trifling, shall accordingly dismiss the complaint, they shall forthwith make out a certificate under their hands stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint was preferred." Certificate or 37. " If any person against whom any such complaint shall conviction and jj ave k een p re f erref | f or any common assault or battery, shall punishment a . " bar to any other have obtained such certificate, or having been convicted, shall proceeding. have paid the whole sum adjudged to be paid under such conviction, or shall have suffered the imp. awarded for non- payment thereof, in every such case he shall be released from all further and other proceedings, civil or criminal, for the same When offence is cause." 38. " In case the Js. P. shall find the assault or bat- i^Jufiment ter ^ complained of to have* been accompanied by any attempt to commit felony, or shall be of opinion that the same is from any other circumstance a fit subject for a prosecution by indict- ment, they shall abstain from any adjudication thereon, and shall deal with the case in all respects in the same manner as they Jurisdiction not would before the passing of this Act : provided also, that nothing to be exercised nere j n shall authorize any Js. P. to hear and determine any in cases where .... . title, &c. case of assault or battery, in which any question shall arise as to the title to any lands, tenements, or hereditaments, or any interest therein, or accruing thereon ; or as to any bankruptcy or insol- vency, or any execution under the process of any court of justice." Offender may 42. " Where any person shall be charged on the oath of a or arrested credible witness before any J. P., with any such offence, the J. P. may summon the person charged to appear before any two Js. P. at a time and place to be named in such summons, and if he shall not appear accordingly, then (upon proof of the due service of the summons upon such person, by delivering the same to him) the Js. may either proceed to hear and determine the case ex parte, or may issue their warrant for apprehending such person and bringing him before them ; or the J. P. before whom the charge is made may, if he shall so think fit, issue such APPENDIX. Ill warrant in the first instance, without any previous summons. ASSAULTS. Complainant may be bound to prosecute; see ante, p. 93. 10 Geo - 1V - 43. " The prosecution for every offence, pun. on sum- Limitation, mary conviction by virtue of this Act, shall be commenced within 3 calendar months after the commission of the offence, and not otherwise." 44. Js. P. convicting may " cause the conviction to be Form of con- drawn up in the following form of words, or any other form of v words to the same effect, as the case shall require : " Be it remembered, that on the day of in the year of our Lord at in the county of [or, riding, division, liberty, city, &c., as the case may be,] A. O. is convicted before us, [naming the justices,'] two of his Majesty's justices of the peace for the said county, [or riding, &c.,] for that he, the said A. O. did [specify the offence, and the time and place, when and where the same was committed, as the case may be,] and we, the said justices, adjudge the said A. O. for his said offence to be imprisoned in the and there kept to hard labour for the space of [or, we adjudge the said A. O. for his said offence to forfeit and pay the sum of (here state the amount of the fin e imposed,) and also to pay the sum of for costs ; and in default of immediate payment of the said sums to be imprisoned in the for the space of unless the said sums shall be sooner paid, (or we order that the said sums shall be paid by the said A. O. on or before the day of ) and we direct that the said sum of (the amount of the fine) shall be paid to and we order that the said sum of for costs, shall be paid to C. D. (the party aggrieved.)] Given under our hands the day and year first above mentioned." 45. No such conviction shall be quashed for want of Proceedings not form, or be removed by certiorari or otherwise to superior want of form courts. No warrant of commitment void for defect therein, pro- and nocerd'o- vided it be therein alleged, that the party has been convicted, rari ' and there be a valid conviction to sustain it. By Stat. 2 & 3 Viet. c. 77, s. 1, reciting the evil of 2 &3 Viet. c.. assaults with stones and loaded weapons, and reciting 10 77g Geo. IV, c. 34, s, 36, supra. "If upon hearing of any such IV APPENDIX, ASSAULTS. 2 & 3 Viet. c. 77. Penalty for as- sault committed with a stone or loaded weapon. If penalty not paid the of- fender to be committed. Penalty and costs in certain cases may be paid to the party injured. Pardon for non- payment of money. Js. to dismiss and certify, if the offence be not proved, or the assault jus- tified but not on the ground that the injury is trifling, if the assault be com- mitted with a stone in the hand, or loaded whip or stick. complaint it shall appear to the justices, by proof, on oath, that such unlawful assault or beating was committed by the offender hitting or striking the party aggrieved with a stone or brickbat, or heavy and dangerous metal weapon held in or swung by the offender's hand while the blow was inflicted, or with a stick or whip loaded with iron or any other metal, or with any heavy instrument so loaded, the offender, upon conviction thereof before such justices, shall, in lieu of such fine or penalty so imposed by the said Act, forfeit and pay such fine as shall appear meet to such Js., not less than the sum of 10s. nor exceeding 5, together with costs (if ordered) ;" such fine and costs to be paid and applied as any fine imposed by virtue of the said Act, unless otherwise ordered as herein- after mentioned ; and if such fine and costs (if ordered) " shall not be paid either immediately, or within such period as the Js. shall at the time of the conviction appoint, it shall be lawful for them to commit the offender to the common gaol or H. of Cor., there to be imp. with oV without H. L., for any term not exceeding two calendar months, unless such fine or costs be sooner paid." 2. Provided, "that in case the party injured by such beating or assault shall not himself be examined upon the hearing of such complaint, it shall be lawful for the Js. to award that the amount of such fine or penalty, or any part thereof, and such costs as aforesaid, shall be paid to such party so injured." 3. Lord Lieutenant, &c., may extend the royal mercy to any person imprisoned under this Act. 4. " In case the Js., upon the hearing of any such complaint of assault or battery, shall deem the offence not to be proved, or in case they shall find the assault or battery to have been justified, and in case they shall dismiss the complaint accord- ingly, they shall forthwith make out a certificate under their hands, stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint was pre- ferred ; and the said certificate shall be of the same force and effect as any certificate given under the said recited Act : pro- vided also, that nothing herein or in the said recited Act shall empower the Js. to dismiss any such complaint if the offence APPENDIX. V shall be proved, and they shall not find the assault or battery to ASSAULTS. have been justified, (although they might, under other circum- 77 stances, deem the offence to be so trifling as not to merit any punishment), where proof shall be given before them that the assault or beating was committed by the offender so hitting or striking with a stone or brickbat or heavy and dangerous me- tal weapon held in or swung by his hand when the blow was in- flicted, or with a whip or stick or heavy instrument so res- pectively loaded as aforesaid." 5. In case the Js. shall find the assault to be such as in Js. if they think .,.,., fit, or prosecutor their opinion to be a fit subject for a prosecution by indictment, or near the counter, a beam and scales, with proper weights or scales, and other sufficient balance, in order that every person who may weig ts ' purchase any such bread, may, if he or she shall think proper, require the same to be weighed in his or her presence ; and in ^ J e j g case any such baker or seller of bread, shall neglect to fix such quired, beam and scales, or other sufficient balance in manner aforesaid, omitting so to or to provide and keep for use proper beam and scales, and ' proper weights or balance, or shall have or use any incorrect or false beam or scales or balance, or any false weight not being of or usin false the weight it purports to be, according to the standard in the Exchequer, or shall, when thereunto required by any person who may purchase any such bread, refuse to weigh the same or refusing to in the presence of such person in such scales or balance, and W61g ' with such weights as aforesaid, then, and in every such case, he, she, or they shall for every offence forfeit and pay any sum not exceeding 5," which the J. or Js. convicting shall penalty. adjudge. ^ 7. " No baker or other person who shall make bread for To prevent sale in Ireland, nor any journeyman or other servant of any adu 't eratin " such baker or other person, shall, at any time or times, in the Vlll APPENDIX. BREAD. 1 & 2 Viet. c. 28. Penalty. Names and places of abode of offenders to be published. Adulterating corn, meal, flour, &c. Selling flour of one sort, as flour of another sort, making of bread for sale, use any mixture or ingredient what- ever in the making of such bread, other than and except as hereinbefore mentioned, on any account or under any colour or pretence whatsoever in the making of such bread, upon pain that every such person, whether master or journeyman, servant or other person, who shall offend in the premises, and shall be convicted of any such offence" by oath (or affirmation) of one or more witnesses, or on confession, " shall for every such offence forfeit and pay any sum not exceeding 5 nor less than 50*., or in default thereof shall, by warrant under the hands and seals of the magistrate or magistrates, J. or Js. before whom such offender shall be convicted, be apprehended and com- mitted to the H. of Cor. or some prison of the city, county, or place where the offence shall have been committed, or the offender apprehended, there to remain for any time not exceed- ing 3 calendar months, with or without H. L. from the time of such commitment, unless the penalty shall be sooner paid, as any such magistrate, &c., shall think fit to order ; and it shall be lawful for the magistrate or magistrates, J. or Js. before whom any such offender or offenders shall be convicted to cause the offender's name, place of abode, and offence to be published in some newspaper or newspapers which shall be printed or pub- lished in or near the city, county, borough, or place where the offence shall have been committed ;" and proprietors, printers, and others concerned, are hereby authorized to print and pub- lish the same when required so to do, by, or by the order of, such magistrate, &c., and indemnified from prosecution for so doing ; " and the costs and charges of such printing and pub- lishing shall be paid out of such penalty or forfeiture, in case any shall be so forfeited, paid, or recovered." 8. " If any person in Ireland shall put into any corn, meal, or flour which shall be ground, dressed, bolted, or manufac- tured in Ireland, either at the time of grinding, dressing, bolt- ing, or manufacturing the same, or any other time, any ingre- dient or mixture whatsoever, not being the real and genuine produce of the corn or grain which shall be so ground ; or if any person in Ireland shall knowingly sell, or offer or expose for sale, either separately or mixed, any corn, meal, or flour APPENDIX. IX which shall not be equal or superior in quality or goodness to BREAD. the sample purporting to be a sample of such corn, meal, or ' & 2 Vict - c - flour, and produced, by the owner or owners thereof or other or not e q ua j lo person or persons selling or exposing or offering the same re- sample. spectively for sale, to the view of the buyer or buyers or pur- chasers thereof respectively, or of the person or persons to whom the same respectively shall have been so exposed or of- fered for sale ; or shall use or practise any fraud, covin, or de- Frauds to in- ceit by which such corn, meal, or flour shall be made or ren- crease weI 8 ht - dered of greater weight than the same respectively would have been in case such mixture, fraud, covin, or deceit had not been used or practised, then and in every such case every such per- son so offending shall, for every such offence," upon conviction before one or more J. or Js. of the city, county, or place where such offence is committed, on oath, (or affirmation), of one or more witnesses, or by confession, " forfeit and pay any sum Penalty. not exceeding 10 nor less than 40s., and shall also forfeit all such corn, meal, or flour so sold or exposed or offered for sale ; and one moiety of such penalty and one moiety of such corn, meal, or flour so forfeited shall go to the use of the poor of the parish where such offence or offences shall have been committed, and the other moiety of such penalty and forfeiture shall go to the informer." 9. " Every person who shall make for sale or sell or ex- Bread made of pose for sale in Ireland any bread made wholly or partially of mixed meal ,, or flour to be peas or beans or potatoes, or ot any sort ot corn or grain other ma,.^ w j t [j a than wheat, shall cause all such bread to be marked with a large Roman M. Roman M ; and if any person shall at any time in Ireland make or sell or expose for sale any such bread without such mark as hereinbefore directed, then and in every such case every person so offending shall, upon conviction in manner hereinafter mentioned, forfeit and pay for every pound weight penalty for of such bread, and so in proportion for any less quantity, which neglect. shall be so made for sale or sold or exposed for sale without being so marked as aforesaid, any sum not exceeding 10s.," as the J. or Js. convicting shall from time to time order and ad- Proviso as to judge; provided nothing herein shall extend to require any y^f/ b APPENDIX. 1 & 2 Viet. c. 28. Penalty if in- gredients for adulteration of meal or bread are found in any premises. First offence. Second offence. Subsequent ,of- fences. Names of offen- ders to be pub- lished. Obstructing search. Penalty. bread made of the meal or flour of wheat only, and in the making of which potato yeast shall be used, to be so marked. 10. Warrant to search baker's premises, &c., ante, p. 277. 11. " Every miller, mealman, flour factor, or baker in Ire- land, in whose house, mill, shop, stall, bakehouse, bolting-house, pastry warehouse, out-house, ground, or possession any ingre- dient or mixture shall be found, which shall, after due examina- tion, be adjudged by any magistrate or magistrates, Js. or J.P.,to have been deposited there for the purpose of being used in adul- terating meal, flour, dough, or bread, shall, upon being con- victed of any such offence," on confession or oath of one or more witnesses, " forfeit and pay on every such conviction any sum not exceeding 10 nor less than 40s. for the first offence; 5 for the second offence; and10for every subsequent offence; or in default of payment thereof shall, by warrant under the hand and seal or hands and seals of the magistrate, &c., before whom such offender shall be convicted, be apprehended and com- mitted to the H. of Cor. or some prison of the city, county, or place where the offence shall have been committed, or the of- fender apprehended, there to remain for any time not exceeding 3 calendar months, with or without H. L., from the time of such commitment, (unless the penalty be sooner paid), as any such magistrate, &c., shall think fit and order ;" and it shall be lawful for the convicting magistrate, &c., to have offender's name, &c., published, and the expense paid out of the penalty. This clause is in the same words as in s. 7, ante, p. viii. 12. "If any person or persons shall wilfully obstruct or hinder any such search as hereinbefore is authorized to be made, or the seizure of any meal, flour, dough, or bread, or of any ingredient or mixture which shall be found in any such search, and deemed to have been lodged with an intent to adulterate the purity or wholesomeness of any meal, flour, dough, or bread, or shall wilfully oppose or resist any such search being made, or the carrying away any such ingredient or mixture as aforesaid, or any meal, flour, dough, or bread which shall be seized as being adulterated or as not being made pursuant to this Act, he, she, or they so doing or offending in any of the cases last aforesaid shall for every such offence, on APPENDIX. XI being convicted thereof, forfeit and pay such sum not exceeding BREAD. 10" as the J. or Js. convicting shall think fit; "provided that * & 2 Vlct ' c ' if any person making or who shall make bread for sale in Ire- Proviso for of- land shall at any time make complaint to any magistrate, J. or fences occa * , ... . . sioned by wilful Js. P. within his or their jurisdiction, and make it appear to default of jour- him or them, by the oath, or in case of a Quaker by affirma- neymen and tion, of any credible witness, that any offence which such per- Se son shall have been charged with, and for which he or she shall have incurred and paid any penalty under this Act, shall have been occasioned by or through the wilful act, neglect, or default of any journeyman or other servant employed by or under such persons so making complaint ; and provided also, that if any or damage person making or who shall make bread for sale in Ireland shall by l iem * at any time make complaint to any magistrate, J. or Js., within his or their jurisdiction, and make it appear to them that any journeyman, apprentice, or other servant did, by his or their wilful act, neglect, or default, injure, damage, destroy, or adul- terate the material or property of his or their employer, then, and in every such case, any such magistrate, &c., may and is or On complaint are hereby required to issue his or their warrant, under his or of wlncl) J - ** may grant war- their hand and seal or respective hands and seals, for bringing rant> any such journeyman, &c., before any such magistrate, &c., or any magistrate or J. P. acting in and for the city, county, or place, where the offender can be found ; and on any such journeyman, &c., being thereupon apprehended and brought before any such magistrate, &c., he or they, within his or their respective juris- and examine dictions, is and are hereby authorized and required to examine complaint ; into the matter of such complaint; and on proof thereof, upon an(J on of of oath or affirmation, to the satisfaction of any such magistrate, offence order J.or Js. P. who shall hear such complaint, then any such magis- fYsonable si trate, &c., is and are hereby directed and authorized, by an order under his or their respective hand or hands, to adjudge and order what reasonable sum of money shall be paid by any such journeyman, &c., to his master or mistress as or by way of recompense to him or her for the money he or she shall have paid, or for the injury they might have otherwise sustained by reason of the wilful act, neglect, or default of any such journeyman, apprentice, or other servant ;" and if any such Xll APPENDIX. BREAD. 1 & 2 Viet. c. 28. It penalty on journeymen is not paid, J. P. to order impri- sonment. Bakers not to bake bread or rolls on Sun- day,, or sell bread or bake pies, &c., ex- cept between certain hours. But may set sponge for bread, &c., for the next day. Penally. First offence. Second, and subsequent offences. journeyman, &c., shall neglect or refuse, on his conviction, to make immediate payment of the sum so ordered, then any such magistrate, J. or Js., within their respective jurisdictions, is and are hereby authorized and required, by warrant under hand and seal, "to cause such journeyman, &c., to be apprehended and committed to the H. of Cor. or some other prison of the city, county, or place in which such journeyman, &c., shall be apprehended or convicted, there to be kept to H. L. for any time not exceeding one calendar month from the time of such commitment, as to such magistrate, &c., shall seem reasonable, unless payment shall have been made of the money ordered, after such commitment and before the expiration of the said time." 13. " No master or mistress, journeyman, or other person, respectively, exercising the trade or calling of a baker in Ireland, shall, on the Lord's Day, or on any part thereof, make or bake any bread, rolls, or cake of any sort or kind, or shall on any other part of the said day than between the hours of 9 of the clock in the forenoon and 1 in the afternoon, on any pretence whatsoever, sell or expose for sale, or permit or suffer to be sold, delivered, or exposed for sale, any bread, rolls, or cakes of any sort or kind, or bake or deliver, or permit or suffer to be baked or delivered, any meat, pudding, pie, tart, or victuals, except as hereinafter is excepted, or in any other manner exer- cise the trade or calling of a baker, or be engaged or employed in the business or occupation thereof, save and except so far as may be necessary in setting and superintending the sponge to prepare the bread or dough for the following day ; and every person offending against the last mentioned regulations, or any one or more of them, and being thereof convicted before any J. P. of the city, county, or place where the offence shall be committed, within 10 days from the commission thereof, either upon the view of such J., or on confession by the party, or proof by one or more credible witness upon oath or affirma- tion, shall for every such offence pay and undergo the for- feiture, penalty, and punishment hereinafter mentioned ; i. e. for the first offence the penalty of 10*. ; for the second offence the penalty of 20s. ; and for the third and every subsequent APPENDIX. Xlll offence respectively the penalty of 40s. ; and shall moreover, BREAD. upon every such conviction, bear and pay the costs and expenses * & 2 vict - c ' of the prosecution ; such costs and expenses to be assessed, Costs, settled and ascertained by the J. P. convicting, and the amount thereof, together with such part of the penalty as such J. shall think proper to be allowed to the prosecutor or prosecutors, for loss of time in instituting and following up Compensation the prosecution, at a rate not exceeding 3s. per diem, and to be j P rosec " tor paid to the prosecutor or prosecutors for his, her, or their own use and benefit, and the residue of such penalty to be paid to such J., and within 7 days after his receipt thereof to be trans- ferred by him to the use of the poor of the parish where the offence shall be committed ; and in case the whole amount of In default of the penalty and of the costs and expenses aforesaid be not forth- with paid after conviction of the offender or offenders, such J. shall and may, by warrant under his hand and seal, direct the same to be raised and levied by distress and sale of the goods and chattels of the offender or offenders, and in default or insuf- In default of ficiency of such distress commit the offender or offenders to sufficient dis - the H. of Cor., with or without H. L. on a first offence for the men t as herein, space of 7 days, on a second offence for a space of 14 days, and on a third or any subsequent offence for the space of one month, unless the whole of the penalty, costs, and expenses be sooner paid and discharged ; provided, that it shall be lawful for every Bakings may be baker in Ireland to deliver to his or her customer or customers deliv ered until * r -m 11. ha if- past one on on the Lord s Day any bakings, i. e. baked dishes, meat, or Sundays. puddings, (but not bread), until half-past 1 o'clock in the after- noon of that day, without incurring or being liable to any of the penalties in this Act." 1 4. No person who shall follow or be concerned in the busi- Miller, meal- ness of miller, mealman, flour factor or baker shall be capable lnan flour f ac- e . . T TJ j ,,. A . . tor, or baker, of acting as a magistrate or J. r. under this Act, or in exe- Dot to act as a cuting any of the powers hereby granted ; and if any miller, J- P. &c., shall presume so to do, he shall for every such offence for- p ena ] ty feit 100, with full costs to any informing or suing in courts at Dublin. 15. In case any person or persons shall resist or make Opposing exe- forcible opposition against any person or persons employed in cution ofthe the due execution of this Act, every such person offending XIV APPENDIX. BREAD. 1 & 2 Viet. c. 28. Recovery and application of penalties and forfeitures. Before 1 J. P. Costs; distress Offender to be kept in custody till return of the distress warrant, unless security given. Commitment in default of suffi- cient distress. Application of penalties. therein shall for every such offence forfeit and pay any sum not exceeding 5," at discretion of the J. or Js. P. convicting. 16. All penalties, forfeitures, and fines under this Act, the manner of recovering and applying which is not herein otherwise directed, shall upon proof, and conviction of the offences, before any magistrate or magistrates. J. or Js. P. for the city, county, or place where the offence shall have been committed (as the case may require), either by the confession of offender, or by the oath, (or, in case of a quaker, by affirmation), of any credible witness or witnesses, be levied, together with the costs attending the information and conviction, by distress and sale of the goods and chattels of the parties offending, by warrant under the hand and seal of such magistrate or J. P., which warrant he is hereby empowered and required to grant ; and the overplus (if any) after such penalties, &c., and the charges of such dis- tress and sale are deducted, shall be returned, upon demand, to the owners of such goods ; and in case such fines, penalties, and forfeitures shall not be forthwith paid upon conviction, such magistrate or J. may order the offender or offenders to be de- tained in custody until return can be conveniently made to the distress warrant, unless sufficient security be given, to the satis- faction of such magistrate, for his or their appearance, on the day or days appointed for the return of such warrant not being more than 7 days from the time of taking such security, and which security the magistrate, &c., may take by way of recognizance or otherwise ; but if upon return of such warrant it appear that no sufficient distress can be had thereupon, then any such magistrate or J. P. is hereby authorized and required, by warrant under hand and seal, to cause such offender or of- fenders to be committed to the common gaol or H. of Cor. of the city, county or place, where the offender shall be or reside, there to remain without bail or mainprize, for any time not ex- ceeding one calendar month, with or without H. L., save and ex- cept as herein otherwise directed, unless such penalties, &c., and all reasonable charges attending the same, shall be sooner paid and satisfied ; the monies arising by such penalties and forfei- tures, when paid or levied, if not otherwise directed to be ap- plied, shall be paid, one moiety thereof to the informer or per- son suing for and recovering the same, and the other moiety to APPENDIX. XV the use of the poor of the parish where the offence shall have BREAD. 1 & 2 Vici. c. been committed. 28. 17. Every summons to be served on any offender against Form of sum- this Act shall be in the form or to the effect following : mons - " To A.B. of County of ) WHEREAS complaint and information hath been to wit. /made before me, C. D., one of her Majesty's justices of the peace [or magistrate] for the said county, &c., by E. F, of that &c., [here state the nature and circumstances of the case, as far as it shall be necessary to show the offence, and to bring it within the authority of the justice or magistrate, and in doing that follow the words of the Act as near as may be~] : These are therefore to require you personally to appear before me (or such Magistrate or Justice as shall be then and there present) at in the said county, on the day of next, at the hour of in the noon, to answer the said complaint and information made by the said E. F., who is likewise directed to be then and there resent, either in person or by his agent or attorney, to make good the same. Herein fail not. Given under my hand this day of ." 18. " Every information to be laid before any J. P. or ma- Form O f infer- gistrate for any offence against this Act shall be in the form or nation. to the effect following : County of ) BE it remembered, that on the day to wit. J of A. B. of in the said county, informeth me, one of her Majesty's justices of the peace [or magistrate, as the case may be~\ for the said County that of in the said County [here describe the offence, with the time and place, and follow the the words of the Act as near as may be~], contrary to the Sta- tute made in the year of the reign of Queen Vic- toria, intituled An Act [set forth the Title of this Act(a)~], which hath imposed a forfeiture of for the said offence. Taken the day of before me, C. D" (a) " An Act to repeal the several Acts now in force relating to bread to be sold in Ireland, and to provide other regulations for the making and sale of bread, and for preventing the adulteration of meal, flour, and bread, in that part of the United Kingdom called Ireland." XVI APPENDIX. BREAD. 1 & 2 Viet. c. 28. Before what Js. P. informations are to be laid. Power to sum- mon witnesses. On behalf of prosecutor or accused. If after tender of expenses they fail to appear ; on proof of service warrant may issue. Examination upon oath or affirmation. Committal for refusal to answer. 19. ** All offences committed against this Act, except where it is otherwise directed, shall he laid before the magis- trate or magistrates, J. or Js., usually acting in and for the district in which the offence shall have been committed, in a summary way, upon complaint, and the said magistrate, &c., is and are hereby empowered to issue his or their summons for the purpose of hearing and determining the same." 20. If it shall be made appear, by oath or affirmation of any credible person or persons, to the satisfaction of any ma- gistrate, J. or Js., that any person or persons, within their juris- diction, is or are likely to give or offer material evidence on behalf of the prosecutor, or on behalf of the person or persons accused, and will not voluntarily appear before such magistrate, &c., to be examined and give evidence concerning the pre- mises, every such magistrate or Js. P. is and are hereby au- thorized and required to issue his or their summons to convene every such person or persons before them, at such reasonable time as in such summons shall be fixed ; and if any person so summoned, after having been paid or tendered a reasonable sum for his, her, or their costs and expenses, shall neglect or refuse to appear at the time by such summons appointed, and no just excuse shall be offered for such neglect or refusal, then after proof, upon oath or affirmation, of such summons having been duly served upon the party or parties so summoned, every such magistrate, J. or Js., is and are hereby authorized and re- quired to issue his or their warrant, under hand and seal, to bring every such person or persons before such J. or Js. ; and on their appearance empowered to examine them upon oath or affirmation, and if any such person on his or her appearance, or on being brought before any such magistrate, J. or Js.,, shall refuse to be examined upon oath or affirmation concerning the premises, without offering any just excuse for such refusal, any such magistrate, J. or Js., within the limits of his or their juris- diction, may, by warrant under his or their hands and seals, commit any person or persons so refusing to be examined to the public prison of the city, county, division, liberty, or place in which the person or persons so refusing to be examined shall be, there to remain for any time not exceeding 14 days, with APPENDIX. XV11 or without H. L., as any such magistrate, J. or Js. shall di- BREAD. rect." l & 2 Vict - c - 28 21. Making false oath or affirmation perjury. 22. Convictions under this Act " to be drawn up in the Form of convic- form or to the effect following ; i. e. }BE it remembered, that on this day of in the year of the reign of A. B. is convicted before her Majesty's Justice of the Peace for the county of [or for the division of the said county of or for the city, liberty, or town of as the case shall happen to be>~\ for and do adjudge him [or her or them as the case may be~\ to pay and forfeit for the same the sum of given under the day and year aforesaid," 23. No order, judgment, or conviction under this Act, nor Proceedings i 11 not Quashed any proceedings touching the conviction ot offenders, shall be through infor- quashed for want of form, or removeable by certiorari or other mality. process into Courts at Dublin; nor distress unlawful, nor par- Or distress un- , ,. ! ,. lawful, ties making it trespassers, for detect in proceedings relating thereto, nor trespassers (ab initio) for subsequent irregularity ; nor shall plaintiff in action for special damage recover if tender Tender of of sufficient amends be made before action brought. 24. Per- sons convicted who think themselves aggrieved may appeal to Appeal to Quar- the next Quarter Sessions for the city, county, &c., where ler Sessions - such judgment shall have been given, " and the execution of Execution sus- such judgment shall in such case be suspended, the person or pe persons so convicted entering into a recognizance within 24 Recognizance, hours of the time of such conviction, with 2 sufficient sureties, in double the sum which such person or persons shall have been adjudged to pay or forfeit, upon condition to prosecute such appeal with effect, and to be forthcoming to abide the judgment and determination of the Js. at their said next Gene- ral or General Quarter Sessions, which recognizance the magis- trate or magistrates, J. or Js. before whom such conviction shall be had is and are hereby empowered and required to Determination take ;" Quarter Sessions shall hear and finally determine, and J fina1 ' award costs. 25. No plaintiff to recover in action for any thing done un- Notice of ae- c XV111 APPENDIX. lion to be given tender of amends. Limitation of actions, &c. Limitation of proceedings un- der the Act. Application of penalties. der this Act unless 21 days' notice in writing as herein be given to the defendant ; nor if tender of sufficient amends is made to him, or his attorney, before action brought ; or the money may be paid into Court. 26. No action to be brought after 6 cal. months from the time of the fact committed ; venue local ; general issue, and double costs for defendant. 27. " No person shall be convicted of any offence under this Act unless the complaint is made within 14 days after the offence shall have been committed, or within such reasonable time as to the J. or Js. shall seem fit, except in cases of per- jury or proceedings in the superior Courts of Dublin ; and no person prosecuted to conviction for any offence done or com- mitted against this Act shall be liable to be prosecuted for the same offence under any other law." 28. All pecuniary penalties and forfeitures by this Act inflicted, the application of which is not hereinbefore directed, shall, when recovered or paid, be disposed of in manner fol- lowing; i. e. one moiety thereof, where any offender shall be convicted either by his, her, or their own confession, or by the oath or affirmation of one or more witnesses, shall go and be paid to the person or persons who shall inform against and prosecute to conviction any such offender or offenders ; and the other moiety thereof, and in case there be no such person in- forming, then the whole thereof, shall go and be paid to the use of the poor of the parish where the offence shall have been committed, 3Geo.II.c.l7. Clay for brick- making, must be dug and turned before Nov. preceding the burning. The upper soil to be stripped and brick clay only used. BRICKS AND BUILDING. By Stat. 3 Geo. II. c. 14, s. 1 1, reciting the evils from abuses in making bricks, " every person or persons who shall make, or cause to be made, bricks for public sale, or expose such bricks when made to public sale in any brick fields or lands, shall be obliged to dig and turn such clay before the month of Nov. next preceding the burning of such bricks, and in so doing shall fairly and cleanly uncaloe or strip the upper soil from such brick earth as he or they shall make use of, and shall not on any pre- tence whatever, make use of any other than proper and natural APPENDIX. XIX brick earth : and shall also be obliged to turn and temper the BRICKS. clay once more after the month of Nov., and before Feb. next 3 Geo - H.c.14. preceding the burning of such bricks. No brickmaker, temperer, Clay to be tern- moulder, or any other person employed in brickmaking, shall in 3 " any way mould, or cast in form, any clay which has not first been before Feb., tempered and turned in manner as is hereinbefore mentioned, and picked clear of stones of any kind, particularly limestones, and picked or shall on any pretence whatever, mould or form into brick, of stones and -. r . bricks, and any clay wherein there is any lime-wash, or mould or form any n , uided at the bricks as aforesaid, after the 25th Nov. in any year, and before time of the year the 25th March following." 1 2. "Allbricks made or burned for sale, shall, when burned, be Dimensions of not less than 9 inches and a-half long, 4 inches and a-half broad, bricks when and 2 inches and a quarter thick. No moulder, brickmaker, or other person whatever, forming or moulding bricks, pursuant to the tenor of this Act, shall cast into form or mould any piece or parcel of clay as it is delivered to him on the stool or else- Consistence of where, unless it be of such a consistence that it will stick toge- * e ther if taken up with a common pitchfork of 2 grains or tangs. No person or persons employed in the art of brickmaking shall mould, form, or burn any bricks at any other time of the year than between 1st March and 1st Nov., unless such bricks so Season forburn- made or burned at any other time than as aforesaid, be for the j^ jf'f^aleor proper and private use of the person or persons so making or use in town. burning the same, and not for public sale, or to be used in any of the edifices or buildings of the city of Dublin or any cor- porate town or city in this kingdom." 13. If any person or persons shall make any bricks for If bricks other- , . i i i i. T w s e made ; on sale in any other manner than is herein before directed and ap- C0 mplaint be- pointed," upon complaint made thereof, by one or more per- fore two Js. P. sons before 2 or more Js. P., such Js. are hereby authorized and required to summon the person or persons complained of shall summon to appear before them : and upon their appearance or default, oi and due proof of such offence by the oath of one or more wit- nesses " to convict such offender or offenders and adjudge that Penalty or con- he or they shall forfeit and pay 20s. per 1000, and so proportion- victlon - ally for a greater or lesser quantity of bricks as* shall be so made * Sic. for sale contrary to the tenor, purport, true intent, and meaning XX APPENDIX, BRICKS, ETC. SGeo.II.c. 14. How applied and levied. Appeal. Building mate- rials. Frauds in sell- ing. Measure to be used. Penalty before 1J.P. To prevent de- cay in buildings and frequent fires, no timber to be improperly placed in walls in towns, as herein. of this Act : one-half thereof to be given to the first informer, and the other to the poor of the parish ; the same to be levied by warrant under the hands and seals of any two or more Js. P., within their jurisdictions, by distress and sale of the offender's goods and chattels, rendering the overplus to the owner : and for want of sufficient distress such Js. are hereby authorized and required to commit the person or persons so offending to the common gaol of the city, county, &c., where such offence shall be committed, there to remain without bail or mainprize, for any term not exceeding 3 months." 14. Any person aggrieved by such distress, sale, or imp., may appeal to the next Quarter Sessions. 15. " If any carter, carman, loader, or other person or persons concerned, shall deliver false or unusual measure, weight, or quantity, either in bricks, lime, stone, or sand, (which usual weight, measure, and quantity is hereby declared to be, in brick 125 to the car load, in slack lime 64 gallons to the hogshead, and in stones, 5 cwt. to the car load), or any other materials requisite and necessary in building, (which false mea- sure, &c., is commonly called by workmen running a brick), or shall wilfully endeavour to impose a false account of any such delivery on the person or persons to whom the same are to be delivered, every such offender" being convicted upon oath of one or more witness before one or more J. P., " shall for every such offence forfeit and pay 20s., the same to be levied by dis- tress and sale of the offender's goods and chattels in manner as is before mentioned ; and for want of distress shall be committed to the H. of Cor., there to remain and be kept to H. L., for any time not exceeding 3 months." 16. Recites the quick decay of buildings and frequent fires arising from improper placing of timber in walls. " If any ma- son, bricklayer, or other workman, shall lay, or cause to be laid any beam, Joyce, or piece of timber whatever, in any party or back wall of any house within the city of Dublin, or front within any other city or town in this kingdom, in such a manner that it shall appear through the same, or shall lay it within 4 inches of the outside of the said wall, or shall build or repair from the foundation any brick or stone APPENDIX. XXI walls upon timber, so that the same shall bear or depend thereon BUILDINGS. (except what timber shall be necessary in securing foundations, 3 Geo. II. c. 14, or for making shop windows arid doors), such person or persons so offending," being convicted before 2 or more Js. P., " shall, for every such offence, forfeit5, one-half thereof to be given to " conviction^ the informer, and the other half to the poor of the parish" to be p j levied by distress and sale, as before mentioned ; and for want of sufficient distress shall be committed to the common gaol of the city, &c., for 3 months, or till such time as the said 5 shall be fully paid. BUTCHERS. St. 17 Geo. II. c. 5, s. 4, enacts, that " no butcher or other BUTCHERS. person or persons, who shall kill or slaughter any ox, cow, sheep, 17 Geo. II. c. 5. swine, calf, lamb, or other cattle for sale, shall slaughter, kill, Cattle not to be killed or dressed or dress the same within the markets, or where they keep in the markets or stalls ; and that every butcher, and other person and persons, stalls. who shall kill or slaughter any ox, cow, sheep, swine, calf, lamb, or other cattle for sale, shall slaughter and flay the same in To be flayed the most clean and plain manner, and not on any pretence * at | a "^ d er whatsoever raise or blow the same, or thrust any skewers so as cleanly, and to be concealed therein, or grease, varnish, or any way lay on Pj* 1 raise r ' frau _ the flesh of such ox, &c., or other cattle, any fat, tallow, suet, dulently set off. butter, grease, or other matter whatsoever, or use any fraudu- lent and deceitful art to set off the same contrary to the true intent and meaning of this Act ; and that no butcher or other person or persons whatsoever do sell or expose to sale, any ox, &c., or other cattle killed, but what shall be killed and dressed in the most plain manner, and according to the true intent and meaning of this Act ; and if any butcher or other per- son or persons as aforesaid, shall offend in all or any of the pre- mises, he, she, or they so offending, and being convicted upon oath of the said offence before one or more Js. P. of any county, Conviction be- or any chief magistrate of any city or corporation or before fore one or . raore the seneschals of St. Sepulchre's, Thomas Court, and Donore, magistrate, or within their jurisdictions and liberties respectively, by one seneschal, as or more witness or witnesses, or upon confession of the of- XX11 APPENDIX. BUTCHERS. Penalty. Levy by dis- tress. Commitment or whipping in default of dis- tress. Other Stats. fender or offenders, before such J. or Js., chief magistrate or seneschal, or on view by such J. or Js., chief, &c., the said party or parties so offending, shall forfeit and lose such ox, cow, sheep, swine, calf, lamb, or other cattle, or part thereof, killed or dressed contrary to the directions in this Act; to be disposed of by such J. or Js., &c., before whom such offender or offenders shall be convicted, amongst the poor of the parish or parishes, where the said offence shall be com- mitted; and if such beast, or part thereof so forfeited, be not of the full value of 10s., then such butcher, or other person or persons, shall, over and above the said forfeiture, pay for every such offence the sum of 5s., to be levied by dis- tress and sale of the offender's goods and chattels, the over- plus to be restored after all charges of the said distress de- frayed ; the said penalty of 5s. to be paid to the person or persons who shall discover and prove the said offence ; and every constable of the parish, or chief constable of the barony, where such offence* shall be committed, are hereby required to levy the same accordingly by warrant under the hand and seal of such J. or Js., chief magistrate, or seneschal ; and in case such offender or offenders shall not have goods or chattels sufficient for the levying of the said penalty, then it shall be lawful for the J. or Js., &c., before whom such convic- tion shall be, by warrant under his or their hand and seal, to appoint such offender or offenders to be publicly whipped through such corporation or next market town, on the next market day immediately following, or imp. for any time not exceeding 14 days, at the discretion of such J. or Js.," &c. For some provisions as to slaughtering for exportation, see 9 Anne, c. 7, and 2 Geo. I. c. 16, s. 11 ; as to butchers in Dublin, see 15 Geo. II. c. 9, and 31 Geo. II. c. 8; and as to slaughter-houses in towns where 9 Geo. IV. c. 82, for lighting and cleansing, is in force, see ib. s. 64. BURNING LAND. 17 Geo. II. c. 10. By Stat. 17 Geo. II. c. 10, reciting the evil of burning land, No person in the possession or enjoyment of any land by virtue APPENDIX. xxiii BURNING LAND. of any lease, contract, or demise, nor any claiming or deriving under him, shall be suffered to burn the soil or surface of the . 17 Geo. II. c. earth on any part of the lands in his possession, and "if any 10. possessor or occupier of any land set or demised, or agreed to I f th e surface be set or demised, to any person or persons, shall burn the soil burned 'p ena ity or surface of the earth, or cause or permit the soil or surface of recoverable, the earth to be burned in or upon any part of any such land in his, her, or their possession, or in the possession or occupa- tion of any other person deriving or holding under him, her, or them, every person so offending shall forfeit the sum of 40s. for every English statute acre so burned) ; see 40 Geo. III. c. 24, by lessor or per- post), to be recovered by the person and persons, and in man- son entitled to .,..-, ., ,, /. reversion, if the ner hereafter mentioned ; i. e. it the soil or suriace or any land burning is by shall be burned, or permitted to be burned, by the first lessee or fif st lessee, his lessees of such land, his, her, or their heirs, executors, adminis- trators, or assigns, then the said penalty of, &c., shall be recovered of such offender or offenders by his, her, or their lessor or les- sors, their heirs, successors, and assigns respectively, or by the person or persons who for the time being shall be entitled to the rent, or reversion, or remainder of the said premises ; and O r by the imme- if the soil or surface of any land shallbe burned, or permitted to di ^ te !essor hi* be burned, by the possessor or occupier of such land, holding or thTburning be enjoying the same by lease or contract from the first lessee or by the occupier lessees of such land, his, her, or their heirs, exors., admors., or fi in ^ j 11 assigns, or from any person or persons deriving or holding under them, any, or either of them, then the said penalty of, &c., shall and may be recovered of and from such offender or offenders, by his, her, or their immediate lessor or lessors, his, her, or their heirs, exors., admors., or assigns, unless such imme- .. , i.i , . 7 unless suchles- diate lessor or lessors, his, her, or their heirs, exors., admors., sor consents to or assigns, shall have consented to such burning, in which case burning, and the said penalty shall and may be recovered by the next and ne ^ immediate immediate lessor or lessors, his, her, or their heirs, exors., lessor, &c., admors., or assigns, who shall not have consented to such burn- ing ; it being the intent and meaning of this Act that neither Neitherori inal the original lessor or lessors, nor any intermediate lessor or or intermediate lessors, his, her, or their heirs, successors, exors., admors., or !f sor to recover if a co assigns, consenting to such burning, shall be entitled to or re- party. XXIV APPENDIX. BURNING cover the said penalty, or any part thereof." An allegation of LAND * consent does not oust the Js. of jurisdiction, but is matter of 10. defence, which it is their duty to inquire into ; R. v. Lopdell, Landlords may Batty, 39. Sects. 2, 3, 4, provide for the recovery of penal- ako proceed t j es un( j er fa e Act by civil bill. S. 5. When tenant or lessee under the lease. has covenanted not to burn under penalty of increase of rent, or other penalty, landlord, &c,, or person entitled to the reversion, may distrain or sue therefor as for rent or other debt, or may Penalty for pre- proceed by civil bill. S. 6. " It shall be lawful for the person veying g of7he Ur " or P ersons entitled to the penalty in this Act, or by covenant land burned. in any lease, or any other person or persons employed by him, her, or them, to enter upon such land so burned and to survey same, and if any person shall hinder the person or persons entitled as aforesaid, or those employed by him, her, or them, from taking such survey, he or they shall forfeit to the person or persons entitled to the penalties in this Act, or by covenant as aforesaid, 20," to be recovered by civil bill, as other penal- ties herein. Original lessor 1 Geo. III. c. 17, s. 2, perpetuates the foregoing Stat. may recover in gg 3 In all cases w h a tever, whether the soil or surface shall be all cases from immediate les- burned, or permitted to be burned, by the original lessee or see, who has lessees, or by the occupier or occupiers of such land, and where his remedy over. . . ., . . , , the original lessor is not consenting to such burning, the origi- nal lessor shall be entitled to recover the penalty from his imme- diate lessee or lessees, who shall be answerable for the acts of his or their under tenants, and for the acts of the occupiers of such land, (and see 5 Geo. III. c. 10, post)) provided such origi- nal lessor commence his suit at the next Assizes or Quarter Ses- sions, as in the said Act ; such immediate lessee may have the like remedy over against his under-tenants or occupiers, com- mencing his suit at next Assizes, &c., after lessor has obtained his decree ; and in case the original lessor shall not so sue, the immediate lessor of the occupier may recover from such occu- Ridges unburn- P ier as ner ein ; but see 3 Geo. III. c. 29, s. 3, post. S. 4, re- ed may be mea- cites that, to evade the penalty, offenders leave narrow ridges or paths unburned intermixed with the parts burned, " all such ridges or paths so left unburned, or intermixed with the parts so burned, shall and may be surveyed in one common survey APPENDIX. XXV with the other part or parts so burned, and shall be deemed BURNING and considered as part of the land so burned, so far as to subject the person or persons so offending to the penalty in 1 7 Geo. II. c. 1 7. 10, equally as if no such ridges or paths had been soleftunburned." S. 5. The penalty " shall be proportioned to the quantity Penalty appor- burned, though it be under one English statute acre." Stat. 3 Geo. III. c. 29, s. 1, recites 17 Geo. II. c. 10, and 3 Geo. III. c. *?Q 1 Geo. III. c. 17. " In all cases whatsoever, whether the soil In ' a]] caseg or surface of any land shall be burned, or permitted to be penalty reco- burned, by the original lessee or lessees, or by the occupier or veral)le before J . . r 2 or more occupiers of such land, and where the original lessor of such j s . p. land shall not have consented to such burning in manner as in the said Act is mentioned, then and in such case it shall be lawful to and for two or more Js. P., within their respective jurisdictions, to hear and determine in a summary way all offences committed against the true intent and meaning of the said Acts ; and for that purpose upon information upon oath given before them by the original lessor, his or her heirs or assigns, or one or more credible witness or witnesses on his or their behalf, of-the offence of such pernicious burning of land, to summon before any two or more of them within their said Summons, jurisdictions, any party or parties so accused as aforesaid of being an offender or offenders against the true intent and mean- ing of the said Acts ; and in case the party or parties accused shall not appear on such summons, or offer some reasonable excuse for his, her, or their default, then upon the information On non-appear- upon oath as aforesaid, it shall be lawful for the said two or excus^wauant more Js. to issue their warrant or warrants under their hands to arrest. and seals for the apprehending the party or parties so accused as aforesaid, within their respective jurisdictions ; and upon In case of ap- their appearing, or in case he, she, or they shall not appear, and P earance or . non-appear- cannot be apprehended on a warrant granted against him, her, ance and no- or them, as hereinbefore is directed, then upon notice in writing tlce served as being given to or left for him, her, or them, at his, her, or their usual place of abode, and such notice being proved upon oath ;" then any such two or more Js. P. are required to inquire into two or more the matters complained of, and to examine any witnesses ?* Pt ma y hear complaint, on either side on oath, " and after hearing of the parties who d XXVI APPENDIX. BURNING LAND. 3 Geo. III. c. 29. and adjudge penalty and costs of survey. On non-pay- ment in 24 hours distress warrant, which may be backed. Sale in 5 days. In default of distress, com- mitment. shall appear, and the witnesses who shall be offered on either side, such Js. P. shall convict or acquit the party or parties accused of the penalty or penalties in the said recited Acts, or any of them mentioned, together with the cost of surveying the land so burned." If the penalties inflicted be not paid within 24 hours after conviction, the said Js. P. so convicting shall thereupon issue a warrant or warrants under hand and seal, directed to any peace officer or officers within their re- spective jurisdictions, empowering him or them to make dis- tress of the goods and chattels of the offender or offenders. If the offender convey his goods out of the jurisdiction of the convicting Js. P., or so much thereof, that the penalty cannot be levied, any chief magistrate or J. P. within whose jurisdic- tion he shall have removed the goods shall back the warrant, and thereupon the penalty and costs of surveying shall be levied by distress and sale thereof. And if within 5 days from the taking of the distress the money forfeited shall not be paid, the goods seized shall be appraised and sold, rendering the overplus, if any, deducting the penalty or forfeiture and the costs and charges of the distress and sale, to the owner, which charges shall be ascertained by the convicting Js. P., or by the magistrate or J. P. who backed the warrant. And for want of such distress it shall be lawful for the convicting Js. P., and for every other magistrate or J. P. within whose respective jurisdiction any such offender shall reside or be, on application of any prosecutor or prosecutors and proof made of the conviction and non-payment of the penalty, costs, and charges, by warrant under hand and seal, to commit every such offender or offenders to the common gaol within the city, county, or place where he shall be found, there to remain for the space of 3 months, unless from the time of such commit- ment payment shall be made of the said penalty and forfeiture before the expiration thereof; but see 5 Geo. III. c. 10, s. 2, Form of con- viction. 2. Conviction under this Act shall be drawn in the form, and to the effect following, i. e. " Be it remembered, that on this day of in the year of the reign of A. B. is convicted APPENDIX. XXV11 before his Majesty's Justices of the Peace for the said BURNING LAND. county of [or for as the case may happen^, for the jj ^ e0 ' ^^ c - pernicious burning of land, to wit, the quantity of and we do therefore adjudge him [her or them] to pay and forfeit for the same, the sum of together with the costs of for surveying the same. Given under our hands and seals, the day and year aforesaid." The conviction should, it seems, state the name of the lands burned, and the county in which they He ; see Batty, 43, n. 3. Parties convicted may appeal to Or. Sessions, unless the Appeal ; sus- conviction be within 10 days thereof, and then to the next ses- J^ .' sions or next following that, at the option of the party convicted ; zance execution of the judgment to be in such case suspended ; the persons so convicted entering into a recognizance at the time of conviction, with two sureties in double the sum adjudged to be forfeited, " upon condition to prosecute such appeal with effect, and to be forthcoming to abide the judgment and determination of the justice at their said General or Quarter Sessions." The sessions shall hear and determine the appeal, and may award costs; and, if judgment of the convicting Js. is affirmed, appel- lant or appellants shall immediately pay down the sum adjudged to be forfeited, together with the costs awarded by the Js. at Enforcing costs of appeal, sessions ; and in default of appellant paying the same, any two such Js., or any one magistrate, or J. P. having jurisdiction in the place where such appellant shall escape, or where he shall reside, shall and may by warrant under hand and seal, commit every such appellant or appellants to the common gaol of the county, city, or place, where he, she, or they shall be appre- , hended, until he, &c., shall make payment of such penalty, and of the costs and charges so adjudged to the prosecutor ; but if the appellant make good the appeal, and be discharged of the conviction, reasonable costs shall be awarded to the appellant against the prosecutor, which costs may be recovered by the appellant against the prosecutor in like manner as is hereinbefore directed, to be recovered against such appellant. " And in case if or jgi na i lessor the said original lessor, his or her heirs, shall omit or neglect to omit to proceed proceed for the said penalty aforesaid, within six calendar jJ^JUJj^ months after any such pernicious burning, then it shall be lawful may proceed. XXV111 APPENDIX. BURNING LAND, for the original lessee, his or her heirs, executors, administra- 3 Geo. III. c. tors, or assigns, within 6 months next after the expiration of the time hereby given to the original lessor, to proceed in the same manner and form for, and recover any such penalty and costs, as If he omit for 6 hereinbefore directed in the case of the original lessor; and in months, next case t h e sa jj or jgj na i lessee, shall omit or neglect to proceed for lessor may pro- . ceed, and so tne sai penalty and costs as aforesaid, then it shall be lawful for successively. the next immediate lessor or lessors, and so successively, to proceed for, and recover the said penalty and cost from the occupier or occupiers of the land so burned by him, her, or them, within three months next after the time hereby grant- Form of pro- e d to the original lessee." The summary form of conviction ceedings, not . . . . . affected by sub- g lven y this Act, is still to be used in convictions for the in- sequent Stats, creased penalty under the subsequent Acts ; so also the costs of the survey additional may still be awarded, R. v. Lopdel, Batty, 39, 42. The right to appeal also still continues ; and the recognizance must be in double the sum adjudged to suspend the execution, or entitle the party to appeal, R. v. Henessy, 2 Hud. & Br. 373; R. v. Wall, Al. & Nap. 178. Commitment to j t j g no objection to a committal, to enforce the decision on enforce decision on appeal. appeal, under s. 3, that it does not show the relation of land- lord and tenant, but follows the short form of conviction, or that it does not specify the term of imp. ; for in these it pur- sues the direction of the Stat. R. v. Wall, ubi sup. It was said in the judgment in this case, in answer to the objection that thus the party might be imp. for life, that perhaps the court of B. R. would, on payment of the costs and undergoing twelve months' imp., discharge him. 5 Geo. III. c. Stat. 5 Geo. III. c. 10, s. 1, reciting the evasion of the foregoing Statutes, " In all cases whatsoever, whether the soil or surface of any land shall be burned by the original lessee or lessees, or by the occupier or occupiers of such land, then and in such cases, on conviction according to the mode prescribed in the last recited Act, two or more Js. P. in the respective county in which such burning of land shall have been corn- Penalties may mitted, shall issue their warrant for levying the penalties, either be levied against f burning the land, or preventing the survey, according to original lessee /' or sub-tenants, the tenor of the last recited Act or Acts, either against the APPENDIX. XXIX original lessee, or any tenant or tenants deriving under said BURNING LAND. original lessee or lessees, or the immediate occupier or occupiers 5 Geo. IV. of such land, at the choice and election of said original lessor or or occupier at lessors, his, her, or their heirs or assigns ; and in such case,* option of origi- such original lessee or lessees, or any deriving under him or nai lessor them, shall remove from the county in which such burning shall (( *f/ ca be committed, any chief magistrate or J. P., within whose jurisdiction such person or persons shall be found, shall back and enforce the warrant granted by the convicting Js. P. ; and and warrant thereupon the penalty or penalties forfeited, together with the ecut i on ' had as costs of surveying, shall be levied on the goods and chattels of before. said person or persons in like manner, and with such like powers as have been provided by the last recited Act, in the case of offenders against said Act removing their goods to another county ; and any chief magistrate, or J. P., within whose jurisdiction such original lessee or tenant deriving under him may be or reside, shall back and enforce such summons or Summons may summonses, to be served, as by the above recited Act, on said also be backed. original lessee or intermediate tenant chargeable with such of- fence; and the original lessee or intermediate tenant, on whom said penalties shall be levied, shall have his remedy and indem- Remedy over nification against the occupier or occupiers of the land, in such " e manner as by the above recited Acts has been provided for the original lessor. 2. " In default of payment according to the last recited Commitment on Act, on application of any prosecutor or prosecutors, and application of prosecutor, after proof made of the conviction, it shall be lawful for such Js. non-payment, before whom the party or parties was or were convicted, or from 3 to 12 chief magistrate or J. who backed the warrant, to commit the offender or offenders to the common gaol as directed by said Act, there to remain for the space of not less than 3 months, nor more than 12 months," to be proportioned by their discre- tion, to the quantity of land so burned. Sect. 3, entitles bishops, deans, chapters, and other corpo- Corporation rate bodies to the penalties, as if they were heirs to their s>mn &* predecessors. St. 11 Geo. III. c. 2, s. 3, raised the penalty to 5, per Eng. Stat. acre ; but by St. 40 Geo. III. c. 24, reciting the XXX APPENDIX. BURNING LAND, insufficiency of the penalty, "Any person who shall burn the'soil o ueo. ill. c. or sur f ace o f t ne earth, or cause, or permit the soil or surface of Penalty in- ^ e eartn to ^ e burned, on any land in this kingdom, contrary to creased to 10 the provisions of any laws in force to prevent the burning of tion^cre* 01 *" landj shal1 ' instead of the penalties inflicted by any of the said laws, forfeit the sum of 10 (exclusive of the rent payable by such person), for every Irish plantation acre so to be burned, and at the same rate for any greater or less quantity of land, such quantity to be ascertained in the same manner as is directed by the said Acts, or any of them, and such penalty to be sued for, and recovered in the same manner as the penalties by the said Acts inflicted in respect of burning of land, might before the passing of this Act be recovered. 54 Geo. III. Stat. 54 Geo. III. c. 115, recites the difficulties of proof * ' ' by persons suing for penalties under 17 Geo. II. c. 16, and the Receipt of rent f ore nr O ing Acts, < in every suit, for recovery -of the penalty or for one yr. after J * death of person penalties for burning land under the said first recited Act, and after whom the several Acts in force in Ireland, or any of them, it shall be claims sufficient deemed full and sufficient proof of title in the plaintiff or plain- proof of title, tiffs in such suit or suits, and that he, she, or they, is or are in point of title competent to bring and maintain such suit or suits, if it shall be duly proved on his, her, or their behalf, that he, she, or they has or have for one year at least after the death of the lessor, or other person next after whom he, she, or they claim to be entitled, received the rent reserved in the lease or demise under which the lands are held, in respect of which such suit for such penalty as aforesaid shall be brought, Unless defen- unless the defendant in such suit shall prove that the title to dam may prove t h e rent or reversion expectant on such lease or demise, is in person. some other person than the plaintiff or plaintiffs in such suit.' Construction of For questions which have arisen in the construction of these Statutes, see ante, pp. xxiv, xxvii. CHIMNEY SWEEPERS. CHIMNEY Stat. 4 & 5 Will. IV. c. 35, relating to chimney sweepers, has SWEEPERS, been continued by Stat. 3 & 4 Viet. c. 85, to July 1 st., 1 842 ; as 3 & 4 Viet. ^ expires so soon it is omitted. By 3 & 4 Viet. c. 85, s. 2, "from and after 1st July, 1842, any person who shall compel APPENDIX. XXXI or knowingly allow any child or young person under the age CHI-HNEY -1111* /! SWEEPERS* of 21 years, to ascend or descend a chimney, or enter a flue, & ^ for the purpose of sweeping, cleaning, or coring the same, or for c . 35. extinguishing fire therein, shall be liable to a penalty not more Penalty for than.0,orlessthan 5 ." ZX&S. 3. After the passing of this Act, 7 Aug., 1840, "it shall dren to climb not be lawful to apprentice to any person using the trade or cnim neys. business of a chimney sweeper, any child under the age of 16 16 ^ o ^ er years, and every indenture of such apprenticeship which may prenticed to a be entered into after such date shall be null and void." JwwlS 4. " Upon the application of any child apprenticed to Apprentices any person using the trade or business of a chimney sweeper, may apply to be at any time after 1 July, 1841, and previously to 1 July, 1 842, to any J. P. having jurisdiction where the master or mistress of such child shall reside, it shall be lawful for such J. P. to summon such master or mistress to appear, 1 J - p - *p sum- , , -, -, . ., mon. and 2 Js. at a reasonable time to be named in the summons, not p to j e ter- being sooner than 7 days from the time of granting the mine, summons, before any two Js. having jurisdiction as afore- said ; and upon proof made upon oath, to the satisfaction of the Js. by whom the case shall be heard, that such apprentice is desirous of being discharged from his or her apprenticeship, it shall be lawful for such Js. forthwith to discharge such apprentice by warrant under their hands and seals, for which warrant no fees shall be paid ;" and no certiorari or other process shall issue to remove any proceedings hereunder, into superior courts. 5. "From and after the 1st July, 1842, all existing in- Indentures of dentures of apprenticeship to the trade or business of a chirn- cnildren under ney sweeper, of any child who shall then be under the age of ifor 1st July, 16 yrs. shall be null and void." 1842. 6. Reciting that, for security from accidents, the improved Re g ulati g , . iiii . i construction of construction ot chimneys should be continued, " all withsand chimneys. partitions between any chimney or flue, which at any time after the passing of this Act, shall be built or rebuilt shall be of brick or stone, and at least equal to half a brick in thick- ness ; and every breast back and with or partition of any chim- ney or flue hereafter to be built or rebuilt, shall be built of XXX11 APPENDIX. CHIMNEY sound materials, and the joints of the work well filled in with 3 ITI' ^ 0( * mortar or cement > an d rendered or stuccoed within ; and c . 85. every chimney or flue^ hereafter to be built or rebuilt in any wall, or of greater length than 4 feet out of the wall, not being a circular chimney or flue 12 inches in diameter, shall be in every section of the same not less than 14 inches by 9 inches ; and no chimney or flue shall be constructed with an angle therein which shall be less obtuse than an angle of 120 degrees, except as is herein-after excepted ; and every salient or pro- jecting angle in any chimney or flue, shall be rounded off 4 inches at the least ; upon pain of forfeiture, by every master builder or other master workman, who shall make or cause to be made such chimney or flue, of any sum not less than Proviso. 10 nor exceeding 50. Provided that chimneys orjflues may be built at angles with each other of 90 degrees and more, such chimney or flues having therein proper doors or openings not less than 6 inches sqmare." Convictions 7. All convictions for penalties for any offence against before 2 Js. P. fl^g Act may be before 2 or more Js. P., acting for the county, Penalties how city? or place where the offence shall happen ; "such penalties, to be levied and an( j the costs and charges attending the recovery thereof, shall bejevied by distress and sale of the goods and chattels of the offender or person liable or ordered to pay the same, by warrant under the hands and seals of two or more of the said Js., rendering the overplus of such distress (if any) to the party or parties, after deducting the charge of making the same; which warrant such Js. are hereby empowered and required to grant, upon conviction of the offender by confession, or oath of one or more credible witness ; the penalties, costs, and charges, when so levied, shall be paid, one half to the informer, and the other half to the overseers or managers of the poor of the parish, township, or place where the offender shall dwell," to be by them applied in aid of the rate or assessment for the Js P ma relief of the poor of such parish, &c, 8. The Js. P. by whom direct when any person shall be convicted, may adjudge that such person penalty shall be gj^j pay t ^ e sum adjudged together with costs, " either im- mediately or within such period as the said Js. shall think fit ; and in default of payment at the time appointed, such person APPENDIX. XXX111 shall be imp. in the common gaol or H. of Cor., (with or with- CHIMNEY out H. L.,) as to the said Js. shall seem meet, for any time not WEEPE exceeding 2 calendar months ; the commitment to be deter- c . 85. minable upon payment of the amount of the penalty and costs." Commitment in 9. No inhabitant of any parish, township, or place shall default - be deemed an incompetent witness in any proceeding under incompetent* 10 this Act, for any offence committed within such parish, &c., witnesses by by reason of such person being rated or assessed to, or liable reasonof P a y in S to be so, or being otherwise interested in, the rates or assess- ments of any such parish, township, or place. 10. No distress under the Act unlawful, nor persons making it trespassers for want of form in the proceedings, nor cuting the Act. trespassers ab initio for subsequent irregularity. Plaintiff in action for special damage not to recover if tender be made of sufficient amends before action brought ; or amount may be paid into court before issue joined. 11. Any person aggrieved by conviction under this Act, Appeal, may appeal to the next Quarter Sessions holden, not less than 12 days after the day of conviction, for the county, &c. where the cause of complaint arises; " provided that such person Notice and shall give to the complainant a notice in writing of such appeal, reco S nizance - and of the cause and matter thereof within 3 days after such conviction, and 7 clear days at the least before such session, and shall also either remain in custody until the session, or enter into a recognizance, with 2 sufficient sureties, before a J. P., conditioned personally to appear at the said session of the peace, and to try such appeal, and to abide the judgment of the court thereupon, and to pay such costs as shall be by the court awarded ; and upon such notice being given, and such recognizance being entered into, the J. before whom the same shall be entered into shall liberate such person, if in custody." The sessions shall hear and determine the appeal, and make such order, with or without costs to either party, as shall seem fit. Determinations of Js. not appealed from and of Quarter Sessions shall be final. 12. No conviction or ajudication on appeal, to be quashed Want of form ; for want of form, or removed by certiorari, and no warrant of de / ects in corn- commitment void for defect therein, provided it be therein e XXXIV APPENDIX. CHIMNEY alleged that the party has been convicted, and there be a SWEEPERS. ya i^ conviction to sustain it. COALS. COALS. Stat. 2 Will. IV., c. 21, s. 1, repeals several former Acts 2. Will. IV. c. relating to the coal trade, (except as to the repeal of others, and 21 - a duty in Cork.) 2. " On a conspicuous place of every ship, fixed, stating lighter, or vessel in which coals shall be publicly offered for description, sa i e i n anv port, harbour, or river in Ireland, there shall and^rice^? 01 ^ e affixed a board or label, on which there shall be legibly coals. painted, printed, or written, the reputed name, or commonly received denomination or description of such coals, and the port or place from which such coals have been brought, and Penalty for ne- the price at which such coals are offered for sale ; and in de- statement 11 fault of such board or label being affixed pursuant to the provisions hereinbefore made, or if the name, denomination, or description of such coals, or the place or port whence the same may have been brought, shall be falsely stated in any such board or label, then and in every such case the master or owner of such ship, lighter, or vessel shall, for every in- stance of coals sold in contravention of this Act, whether upon the same or different days, upon conviction thereof before one J. P. upon oath before any J. P. of the county, city, or place wherein such offence shall be committed, forfeit and pay 5, to be given" to the Houses of Industry if in Dublin or Cork, or to the Infirmary or Hospital of the county, county of a city, or town in which such offence is committed, if it be Commitment, committed elsewhere than in these cities ; " and in case any fine or penalty be not paid immediately on conviction, it shall be lawful for the J. P. before whom such conviction shall be made to commit the offender to gaol, there to remain without bail or mainprize for any time not exceeding 2 months, nor Offences triable less than 15 days, or until the fine be paid." 3. Any offence in adjoining aga i nst this Act committed in any harbour, port, or river, or county, &c. * . within 5 miles thereof, shall be considered as committed within any county, county of a city, or town containing or contiguous to such harbour, port, or river. Saving powers 4. Nothing herein to repeal or in any way affect powers now enjoyed. ^ v j aw ves t e d in any corporate or other body, or person. APPENDIX. XXXV 5. No porter, carman, meter, or any servant however appointed, shall interfere in the sale, measurement, weighing, 2 i. delivering, or storage of coals, save upon request and by de- sire of the buyer or seller, or demand any fee unless so em- ployed ; and any other person may be employed for the weigh- ing, &c., as agreed on. COMMON. Stat. 29 Geo. III. c. 30, s. 1, for preventing the commis- COMMON. sion of waste on the several commons in the kingdom. " If 3Q Geo ' I1I>C * any person shall skin or otherwise destroy the surface of any Penalty for such common or any part thereof, every person so offending ^"^"fn^the shall for every such offence, forfeit the sum of 5." 2. Any surface. J. P. of the county where offence is committed may upon complaint, summon any person or persons complained against Summons to appear before him ; and if, after such notice to appear, " such person or persons shall be convicted before such J. P, before one J. P. of any such offence by the oath of one or more credible wit- ness, every such person shall forfeit 5 for every such offence, to be levied by distress and sale of the goods of every Levy, such person so convicted," to be made by warrant of the J. before whom such person is convicted ; if no sufficient distress be found such J. shall commit every such person who shall have been so convicted to the common gaol of the county in which he is convicted for any time not less than one, or more than 3 calendar months. 3. Penalty when levied " shall be paid Application of one moiety to the person who shall make such complaint, surface'of the other moiety to the poor of the parish. 4. Provided ground used for nothing herein shall extend to prohibit the cutting or carry- ue ' ing away the surface of heathy, mountainous, or moory ground, which has been been heretofore used as fuel." 5. No pj gs without person shall drive or suffer pigs to graze on .any common rin s in noses, unless they have rings or staples in their noses, sufficient to ^ay'be^dzed ' prevent them from rooting up or destroying the surface of the and impounded common, " and if any pig or pigs shall be found on any fi such common without such ring or staple as aforesaid, it shall be lawful for any person to seize and impound such pig or pigs in the pound next adjoining to such common, until XXX VI APPENDIX. COMMONS. 31 Geo. III. c. 38. Skimming or destroying the surface of com- mon. the owner or proprietor of such pig shall pay 5s. for every pig so impounded to the person or persons who shall have so im- pounded such pig or pigs." By St. 31 Geo. III., c. 38, s. 1, reciting 29 Geo. III., c 30, " if any person shall skin or otherwise destroy the surface of any common, or part of a common within this kingdom, every person so offending shall forfeit a sum not exceeding 5 nor less than 5s. for every square yard of such common which he shall so skin or destroy, which penalty shall be recovered and levied in like manner and by such ways and means as are prescribed and directed by the said recited Act, in respect of the penalties thereby inflicted. CORONER S INQUESTS. CORONER'S INQUESTS. 6&7 Will. IV. c. 89. dical practi- tioner, By Stat. 6 & 7 Will. IV. c. 89, coroners are empowered to summon medical witnesses, and direct post mortem examina- tions in the manner prescribed; and by sect. 6, when an order Neglect by me- for the attendance of a medical practitioner has been person- ally served, or, if not personally served, received by him in suf- ficient time for him to have obeyed it, or has been served at his residence, and when he has not obeyed such order, he shall forfeit 5 on complaint by the coroner or 2 of the jury before 2 Js. P. of the place where the inquest was held or where the practioner resides, leviable by distress, unless he shows sufficient cause for his disobedience. COMBINATION. Compelling journeymen to leave their em- ployment or re- turn work un- finished, or preventing their hiring themselves, or accepting work. COMBINATION. Stat. 6 Geo. IV. c. 129, ss. 1, 2, repeals former Acts re- lating to combination. 3. " If any person shall, by violence to the person or property, or by threats or intimidation, or by molesting or in any way obstructing another, force, or endea- vour to force, any journeyman, manufacturer, workman, or other person hired or employed in any manufacture, trade, or business, to depart from his hiring, employment, or work, or to return his work before the same shall be finished ; or pre- vent, or endeavour to prevent, any journeyman, manufacturer, workman, or other person not being hired or employed, from APPENDIX. XXXV11 hiring himself to, or from accepting work or employment from COMBINATION. any person or persons; or if any person shall use or employ 6 Geo. IV. c. violence to the person or property of another, or threats, or intimidation, or shall molest or in any way obstruct another for the purpose of forcing or inducing such person to belong or usin S V1 " b lence or threats to any club, or association, or to contribute to any common to j j n tnem fund, or to pay any fine or penalty, or on account of his not into clubs, &c., belonging to any particular club or association, or not having p ii ancet contributed or having refused to contribute to any common fund or to pay any fine or penalty, or on account of his not having complied, or of his refusing to comply with any rules, orders, resolutions, or regulations made to obtain an advance, or to reduce the rate of wages, or to lessen or alter the hours of working, or to decrease or alter the quantity of work, or to regulate the mode of carrying on any manufacture, trade, or business, or the management thereof; or if any person shall or compelling by violence to the person or property of another, or by threats J^ "^^ 1 *' or intimidation, or by molesting or in any way obstructing mode of carry- another, force, or endeavour to force, any manufacturer or in oa business - person carrying on any trade or business, to make any altera- tion in his mode of regulating, managing, conducting, or carry- ing on such manufacture, trade, or business, or to limit the number of his apprentices, or the number or description of his journeymen, workmen, or servants ; every person so offending, Punishment. or aiding, abetting, or assisting therein, being convicted thereof in manner hereinafter mentioned, shall and may be imp. only, or shall be imp. and kept to H. L. for any time not exceeding 3 cal. months." 4. " Provided this Act shall not extend to subject any per- Not to affect sons to punishment who shall meet together for the sole purpose raee ^ in 8: for set- of consulting upon and determining the rate of wages or prices wag e es to be re- which the persons present at such meeting, or any of them, ceived, or hours shall require or demand for his or their work, or the hours or employed by time for which he or they shall work in any manufacture, th e persons trade, or business, or who shall enter into any agreement, ver- K bal or written, among themselves, for the purpose of fixing the rate of wages or prices, which the parties entering into such agreement, or any of them, shall require or demand for his or their work, or the hours of time for which he or they XXXV111 APPENDIX. COMBINATION, will work in any manufacture, trade, or business ;" and per- 6 Geo. IV. c. sons so doing are not liable to any prosecution or penalty. 5. " Provided also that this Act shall not extend to subject Not to affect meetings of any persons to punishment who shall meet together for the masters for so j e p Ur p O se of consulting upon and determining the rate of similar pur- . , c poses. wages or prices which the persons present at such meeting, or any of them, shall pay to his or their journeymen, workmen, or servants for their work, or the hours or time of working in any manufacture, trade, or business, or who shall enter into any agreement, verbal or written, among themselves, for the purpose of fixing the rate of wages or prices which the parties entering into such agreement, or any of them, shall pay to his or their journeymen, workmen, or servants, for their work, or the hours or time of working in any manufacture, trade, or business;" and persons so doing are not liable to any prose- cution or penalty. Offenders com- 6. All and every persons and person who shall or may evidence fa-* offend against this Act shall and may equally with all other demnih'ed. persons, be called upon and compelled to give his or her tes- timony and evidence as a witness or witnesses on behalf of his Majesty or of the prosecutor, or informer upon any in- formation under this Act against any other person or persons not being such witnesses, and in all such cases every person having so given evidence, is hereby indemnified against any information to be laid or prosecution to be commenced against him or her for having offended in the matter relative to which he, she, or they shall have given evidence. On information 7. " On complaint and information on oath before any one oneJ th p bef re or more J< or Js ' R of an ? offence havin - been committed against this Act, within his or their respective jurisdictions, within 6 months and within 6 calendar months before such complaint or after offence. m f ormat i on s h a ll be made, such J. or Js. are hereby re- quired to summon the person or persons charged with be- Summons ing an offender or offenders against this Act, to appear before before 2 Js. P. any twQ suc j 1 j g &t ft certaul t j me or pj ace fa b e specified ; and if any person or persons so summoned shall not appear On proof of ser- according to such summons, then such Js. (proof on oath vice, as herein, having been first made before them of the due service of such raay summons upon such person or persons, by delivering the same APPENDIX. XXXIX to him or them personally, or leaving the same at his or their COMBINATION. usual place of abode, provided the same shall be so left 24 12 9^ hours at least before the time which shall be appointed to attend the said Js. upon such summons), shall make and issue their warrant or warrants for apprehending the person or persons so summoned and not appearing as aforesaid, and bringing him or them before such Js. ; or it shall be lawful Warrant in the for such Js., if they shall think fit, without issuing any pre- first instance> vious summons, and instead of issuing the same upon such complaint and information as aforesaid, to make and issue their warrant or warrants for apprehending the person or per- sons by such information charged to have offended against this Act, and bringing him or them before such Js. ;" and upon the On appearance, , . , . or if patty persons complained against appearing upon such summons, absconds, or being brought under such warrants, or upon proof on oath complaint to of their absconding, so that the warrants cannot be executed, such Js. are authorized and required forthwith to examine into, and hear and determine the matter ; and, upon confession by the party, or proof by one or more credible witnesses upon oath, to convict or acquit. 8. The Js. P. before whom complaint is made may, and are Attendance of hereby required, " at the request in writing of any of the par- wltnesses - ties, to issue his or their summons to any witness or witnesses to appear and give evidence before such Js. at the time and place appointed for hearing such complaint, and which time and place shall be specified in such summons; and if any On their default person or persons so summoned to appear as a witness or wit- or refusal to nesses shall not appear before such Js. at the time and place specified in such summons, or offer some reasonable excuse for the default ; or, appearing according to such summons, shall not submit to be examined as a witness and give his or their evidence before such Js., touching the matter of such com- plaint; then, and in every such case, it shall be lawful for such Js., (proof on oath, in case of any person not appearing O n proof of ser- according to such summons, having been first made before vice as herein, such Js. P., of the due service of such summons on every such person, by delivering the same to him or her, or leaving the same 24 hours before the time appointed for such person to appear before such Js. at the usual place of abode of such xl APPENDIX. COMBINATION, 6 Geo. IV. c. 129. Commitment. Form of con- viction and commitment. Convictions to be returned to the sessions on parchment. Appeal. Recognizance. No master to act as J. P. Schedule. Form of con- viction and commitment. person), by warrant under the hands of such Js., to commit such person or persons so making default in appearing, or appearing and refusing to give evidence to some prison within the jurisdiction of such Js., there to remain without bail or mainprize for 3 calendar months, or until such person or persons shall submit to be examined and give evidence before such Js." 9. The Js. before whom any person is convicted under this Act, or committed for not appearing as a witness, or not sub- mitting to be examined, shall cause all such convictions, and warrants or orders for commitments, to be drawn up in the form or to the effect set forth in Sch. 10. The Js. before whom such conviction shall be had shall cause the same drawn up as directed, to be fairly written on parchment and trans- mitted to the next General or Quarter Sessions for the county or place where the conviction is had, to be filed amongst the records there. 12. Any person convicted, aggrieved by the judgment of the Js. may appeal to the next sessions; " and the execution of every judgment so appealed from shall be suspended in case the person so convicted shall immediately enter into recogni- zances before such Js., (which they are hereby required to take), himself in the penal sum of 10, with 2 sufficient sure- ties in the penal sum of 10, upon condition to prosecute such appeal with effect, and to be forthcoming to abide the judg- ment and determination of the said next General Sessions, or General Quarter Sessions, and to pay such costs as the said court shall award on such occasion." Sessions shall hear, and may award costs, and their decision shall be final ; and if con- viction is affirmed they shall commit offender. 13. " No J. P., being also a master in the particular trade or manufacture, in or concerning which any offence is charged to have been committed under this Act, shall act as such J. under this Act." 4 ' Be it remembered, that on the day of in the year of his Majesty's reign, and in the year of our Lord A. B. is convicted before us, [naming the Justices] two of his Majesty's justices of the peace for the county [or riding, division, city, liberty, town or place,] of APPENDIX. x having [stating the offence"] contrary to the Act made in the COMBINATION. sixth year of the reign of King George the Fourth, intituled an 129 ^ ' Act, [here set forth the title of this Act,'] and we, the said jus- tices, do hereby order and adjudge the said A. B., for the said offence, to be committed to and confined in the common gaol for the said county [or riding, &c.] for the space of [or to be committed to the House of Correction at within the said county [or riding, &c.] there to be kept to hard labour for the space of ] Given under our hands the day and year above written." The title of the Act is, " An Act to repeal the laws relating Title of the to the combination of workmen, and to make other provisions ct * in lieu thereof." " Whereas C. D. hath been duly summoned to appear and Form of corn- give evidence before us, [naming the justices who issued the "J*^,^* summons^] two of his Majesty's justices of the peace for the moned as a county [or riding, division, city, liberty, town or place] of Wltness - on this day of at being the time and place appointed for hearing and determining the complaint made by [the informer or prosecutor] before us, against A. B., of having [stating the offence as laid in the infor- mation^ contrary to the Act made in the sixth year of the reign of King George the Fourth, intituled an Act, [insert the title.] And whereas the said C. D. hath not appeared before us, at the time and place aforesaid specified for that purpose, or offered any reasonable excuse for his [or her] default, [or, and whereas the said C. D. having appeared before us, at the time and place aforesaid, specified for that purpose, hath not submit- ted to be examined as a witness, and give his [or her] evidence before us, touching the matter of the said complaint, but hath refused so to do,] therefore, we the said justices do hereby, in pursuance of the said Statute, commit the said C. D. to the [describing the prison,] there to remain without bail or main- prize for his [or her] contempt aforesaid, for three calendar months, or until he [or she] shall submit himself [or herself J to be examined, and give his [or her] evidence before us ? touching the matter of the said complaint, or shall other- wise be discharged by due course of law ; and you [the con- f xlii APPENDIX. 6Geo.1V. c. 129. COMBINATION, stable or other peace officer or officers, to whom the warrant is directed] are hereby authorized and required to take into your custody the body of the said C. D., and him [or her] safely to convey to the said prison, and him [or her] there to deliver to the gaoler or keeper thereof, who is hereby authorized and required to receive into his custody the body of the said C. D., and him [or her] safely to detain and keep pursuant to this commitment. Given under our hands this day of in the year of our Lord " This commitment to be directed to the proper peace officer and the gaoler or keeper of the prison." CRUELTY TO ANIMALS. 5& 6 Will. IV c. 59. Wantonly beat- ing or otherwise ill-treating brutes ; or im- properly driving them, whereby mischief shall be done ; penal- ty before 1 J.P. Commitment not to abridge civil remedy. Keeping pits for fighting dogs CRUELTY TO ANIMALS. Stat. 5 & 6 Will. IV. c. 59, s. 1, repeals 3 Geo. IV. c. 71, and part of 3 Will. IV. c. 19, Eng. 2. If any person shall wantonly and cruelly beat, ill-treat, abuse, or torture any horse, mare, gelding, bull, ox, eow, beifer, steer, calf, mule, ass, sheep, lamb, dog, or any other cattle or domestic animal, or if any person who shall drive any cattle or other animal shall, by negligence or ill-usage in the driving thereof, be the means whereby any mischief, damage, or injury shall be done by any such cattle or other animal, every such offender, being convicted of any or either of the said offences before any one J. P. for the city, town, or county in which any such offence shall have been committed, shall for every such offence forfeit and pay (over and above the amount of the damage or injury (if any) done thereby, which damage or injury shall and may be ascertained and de- termined by such J.) such a sum of money not exceeding 40s. nor less than 5s., with costs, as to such J. shall seem meet ; or the offender shall, in default of payment, be committed to the common gaol or H. of Cor. for the city, town or county, in which such offence shall have been committed, there to be imp. for anytime not exceeding 14 days ;" provided nothing herein shall abridge remedy by action against the offender's employer, where the damage is not sought to be recovered hereunder. 3. Reciting that cruelties are encouraged by persons keeping places for fighting animals, &c., and that the same are APPENDIX. xliii nuisances, and tend to demoralize ; -"if any person shall keep CKUELTT TO il f v ANIMALS. or use any house, room, pit, ground, or other place, lor the pur- pose of running, baiting, or fighting any bull, bear, badger, dog, c . 59. or other animal (whether of domestic or wild nature or kind), or baiting bears, or for cock-fighting, or in which any bull, bear, badger, dog, or &c> ' P eDalt y- other such animal shall be baited, run, or fought, every such person shall be liable to a penalty not exceeding 5 nor less than 10s. for every day in which he shall so keep and use such house, room, pit, ground, or place for any of the purposes afore- said : provided that the person who shall act as the manager of wh to be any such house, room, &c., or who shall receive any money for deemed the the admission of any person thereto, or who shall assist in any f*^ ' such baiting or fighting, or bull-running, shall be deemed and taken to be the keeper of the same for the purposes of this Act, and be liable to all such penalties as are by this Act im- posed upon the person who shall actually keep any such house, &c., for the purposes aforesaid." 4. Recites that cruelties are practised by keeping animals Parties im- impounded without food, everv person who shall impound or P un d' n g cattle to provide suffi. confine, or cause to be impounded or confined, any horse, ass, CJ - ent f 00 d f or or other cattle or animal, in any common pound, open pound, them, or close pound, or in any inclosed place, is hereby required to supply such horse, ass, or cattle or animal so impounded or con- fined, daily and with good and sufficient food and nourishment so long as such horse, or other cattle shall remain so impounded or confined; " and every such person who shall so find, provide, and Remedy for the supply any such horse, ass, or other cattle or animal, with such jecovery thereof daily food and nourishment, shall, and he or they are hereby em- powered to recover of and from the owner or owners of such cattle or animal not exceeding double the full value of the food and nou- rishment so supplied, by proceeding before any one J. P. within whose jurisdiction such cattle or animal shall have been so im- pounded and supplied with food, in like manner as any penalty or forfeiture, or any damage or injury, may be recovered un- der and by virtue of any of the powers or authorities in this Act, and which value of the food and nourishment so to be supplied as aforesaid such J. is hereby fully authorized and em- powered to ascertain, determine, and enforce as aforesaid ;" or the person so supplying such food shall be at liberty, if he shall xl'lV APPENDIX. CUUELTY TO so think fit, (instead of so proceeding to recover the value ANIMALS. thereof), after the expiration of 7 clear days from the time of 0*59 Wlll ' IV ' impounding, to sell any such horse or other animal, openly at Or animal may any public market (after having given 3 days public printed be sold as notice thereof) for the most money that can be then got for the same, and to apply the produce in discharge of the value of the food so supplied, and the expenses of the sale, rendering the Persons may overplus (if any) to the owner. 5. If any horse, ass, or other enter pounds for animal shall at any time so remain impounded or confined, J. e / Urp ^ t [ ) without sufficient daily food, more than 24 hours, any person or persons whomsoever may, from time to time and as often as shall be necessary, enter any such pound or other inclosed place where such animal is confined, and supply good and sufficient food so long as such animal remains confined, without being liable to any action of trespass or other proceeding by any per- son whomsoever for such entry. Penalty on par- 6. " In case any such person who shall so impound or con- ties neglecting fi ne , or cause to be impounded or confined, any such horse, u^ded^cattle ass ' or ot ^ er cat ^ e or animal as aforesaid, shall refuse, or neglect to find, provide, and supply such daily good and sufficient food and nourishment to such cattle and animal so impounded or confined as aforesaid, he and they shall, for every day during which he or they shall so refuse or neglect to find, provide, and supply the same as aforesaid, forfeit and pay the sum of 5s., which last sum and sums of money shall and may be recoverable by proceeding before any one J. P. in like manner, as herein- before provided for the recovery of any penalty, &c., as herein- before mentioned." As to slaughter- 7. Reciting the cruelties practised at knackers, by starving, ing horses, &c. anc i working old horses, &c., imposes a penalty on any person keeping or using any house or place for the purpose of slaughter- ing or killing any horse, or cattle which shall not be for butch- er's meat, not complying with the regulation of an English Stat. 26 Geo. III. c. 71. 8. Every person so keeping or using any house or place for the purpose of slaughtering or killing horses or other cattle shall slaughter every such horse or cattle within 3 days next after it has been purchased by or delivered to him, or any person in his employ, for the purposes of slaughter ; and shall also in the meantime, and until it is so APPENDIX. CRUELTY TO ANIMALS. slaughtered, provide such horse or other cattle with good and sufficient daily food and nourishment ; and shall make the en- tries in the book required by 26 Geo. III. c. 71, Eng. ; " and c . 59. if any such horse or other cattle so received for the purpose of Penalty for being slaughtered as aforesaid shall be employed in any manner ^1^^. of work, or shall not be supplied with good and sufficient food c i e nt food. during the time he shall survive, every such person so receiving every such horse or other cattle shall for each and every such offence forfeit and pay any sum not exceeding 40s. nor less than 5*. for every day on which such offence shall be committed or continued." 9. " When and so often as any of the said offences shall Any constable happen it shall be lawful for any constable or other peace officer, * fh^owner ^f or for the owner of any such cattle or animal, upon view thereof any cattle, may or upon the information of any other person (who shall declare seize en his, her, or their name or names and place or places of abode to the said constable or other peace officer), to seize and secure, by the authority of this Act, and forthwith and without any other authority or warrant to convey any such offender before any one J. P. within whose jurisdiction the offence shall have been committed, to be dealt with according to law, and such J. shall forthwith proceed to examine upon oath any witness or witnesses who shall appear or be produced to give information touching any such offence/'" 10. " If any person who shall be Offenders who apprehended for having committed any offence against this Act T\ not dellver their names shall refuse to discover his name and place of abode to the J. may be corn- before whom he shall be brought, such person refusing shall im- mitte d* mediately be delivered over to a constable or other peace offi- cer, and shall by him be conveyed to the common gaol or H. of Cor. for the city, town, or county within which the offence shall have been committed, or in which the offender shall have been apprehended, there to remain for a space not exceeding one calendar month, or until he shall make known his name and place of abode to the said J." 11. " The prosecution of every offence punishable under Limitation as to this Act shall be commenced within 3 calendar months next af- ^duTY F0 " ter the commission of the offence, and not otherwise ; and the Competency of evidence of the party complaining shall be admitted in proof of witnesses. xlvi APPENDIX. CRUELTY TO ANIMALS. 5& 6 Will. IV, c. 59. Enforcing pe- nalties. Mode of pro- ceeding for pe- nalties. Summons within 14 days. Form of con- viction. the offence, and also the evidence of any overseer or inhabitant of the parish in which the offence shall have been committed, notwithstanding any forfeiture or penalty incurred by the offence may be payable to the overseers of the poor of such parish. 12. " In every case of a conviction under this Act, where the sum which shall be awarded for the amount of the damage or in- jury done, or which shall be imposed as a penalty for any offence contrary to this Act, shall not be paid either immediately upon or after the conviction, or within such period as the J. shall at the time of the conviction appoint, it shall be lawful for such J. (unless where otherwise specially directed) to commit the of- fender to the common gaol orH. of Cor., there to be imp. only, or to be imp. and kept to H. L., according to the discretion of such J., for any term not exceeding 14 days, where the amount of the sum awarded, or the penalty imposed or both, (as the case may be), together with the costs, shall not exceed 5, and for any term not exceeding 2 calendar months where the amount with costs, shall exceed 5; the'commitment to be determinable in each of the cases aforesaid upon payment of the sum or sums awarded and costs." 13. It shall be lawful for one J. P., in all cases where no other mode of proceeding is specially provided, or where any person shall not be conveyed before any J. under this Act, upon information or complaint made by any person of any offence against this Act within 14 days next after the com- mission of any such offence to summon the party accused to appear before such J., or before any other J. P., at a time and place to be by him named ; and either on the appearance of the accused or in default thereof, such J., or any other J., at the time and place appointed, may examine the matter, and upon due proof by voluntary confession of the party, or by oath of one or more witness, award, order, give judgment, or convict, as the case may be. 14. Convictions for any offence contrary to this Act shall be drawn or made out according to the form following, or to the effect thereof or as near thereto as the case shall require, viz. : " County \or as the \ BE it remembered, that on the case may be] of /day O f in the year of our Lord at in the county [or a* the case APPENDIX. xlvii may be~\ of A.B. is convicted before me J. P., one of his CRUELTY TO __ , ANIMALS. Majesty s justices of the peace for the said county, \or as the 5&6Wi jj jy case may be], for that he, the said A. B. on the day c . 59. of in the year at in the said did [here specify the offence, and on a second conviction state the firsf\ t and I, the said J. P. do adjudge the said A. B. for his said offence to forfeit and pay the sum of [here state the penalty actually imposed, or the penalty and also the amount of the injury done, or as the case may be~], and also to pay the sum of for costs ; and in default of immediate payment of the said sums to be im- prisoned in the [or, in case of a second or sub- sequent conviction, to be there kept to hard labour], for the space of unless the said sums shall be sooner paid ; and I direct that the said sum of [the penalty] shall be paid as fol- lows: that is to say one moiety thereof to the [insert the name of the Dispensary, Hospital, or Infirmary to which the moiety is adjudged, see post, p. xlix.] and the other moiety thereof to C. D. of [the prosecutor, or as the case may be"] ; and that the said sum of [the sum for the amount of injury done, if any sum is awarded,"] shall be paid to E. F. [or the said C. D., as the case may be] ; and I order that the said sum of for costs, shall be paid to the said C. D. Given under my hand and seal the day and year first above mentioned." 15. "Any summons issued by any such J. requiring the ap- Service of sum- pearance of any defendant, against any of the provisions of this Act, shall be deemed and taken to be well and sufficiently served in case either the summons or copy thereof be served personally O ut of the on such person, or be left at his usual or last known place of C( 1Dty * abode, in whatever county the same may be so served or left." 16. " If any constable or other peace officer shall refuse or Penalty on con- neglect to serve or execute any such summons or warrant granted J^ e { ~ or issued by any J. P. pursuant to any of the provisions of this glecting to serve Act, every such constable or peace officer so offending, and be- summ <>ns, & ing convicted thereof upon the information of any person before any J. P., shall forfeit any sum not exceeding 5, as shall be awarded by such J., and in default of payment thereof shall be xlviii APPENDIX. CRUELTY TO ANIMALS. 5 &6 Will. IV, c. 59. Informants or complainants not disqualified. For protection of persons exe- cutingthisAct. Appeal. Construction of terms used in this Act. Cattle." 1 Viet. c. 66. Application of penalties. committed by such J. to the county gaol or H. of Cor. of the city, town, or county, in which such J. has jurisdiction, there to be kept for the space of time not exceeding one calendar month, unless such penalty shall be sooner paid." See ante, p. 22. 17. Distribution of penalties; but see infra, p. xlix. 18. Upon the hearing of any information or complaint under any of the provisions of this Act, any person giving or making such information or complaint, or other person shall be a competent witness, notwithstanding he may be entitled to any part of the pecuniary penalty, on the conviction of any offender, upon any such information or complaint. See also ante, s. 11. 19. Actions and prosecutions for any thing done under the Act to be within one calendar month ; venue local ; defendant may tender amends ; general issue, full costs, &c. 20. Persons aggrieved by any adjudication or conviction by any J. P., may appeal, on giving 14 days' notice of such appeal, and the cause or matter thereof, to such J., to the next Quarter Sessions to be held next after the expiration of the said 14 days. 21. Words used in this Act, importing the singular number or the masculine or ^feminine gender only, yet shall be under- stood to include several persons or animals, as well as one, and females as well as males, and several matters or things as well as one, unless it be otherwise specially provided, or there be something in the subject or context repugnant to such con- struction ; where the word " cattle" is used alone in this Act the same shall be understood and taken for any horse, mare, gelding, bull, ox, cow, heifer, steer, calf, mule, ass, sheep, or lamb, or any other cattle or domestic animal. Stat. 1 Viet. c. 66, s. 1, recites the foregoing Act, and enacts that the same shall extend to Ireland. 2. All pecuniary pe- nalties recovered before any J. P. under the said Act, upon con- victions for offences in Ireland, shall be divided, paid, and dis- tributed as follows, i. e. " one moiety thereof to such Dispensary, Hospital, or Infirmary as the J. before whom the conviction shall have taken place may direct, to be by the Treasurer thereof applied in aid of the funds maintaining such institution, APPENDIX. and the other moiety thereof, with, full costs, to the person who CRUELTY TO shall inform and prosecute for such offence, or to such other ANI person as to such J. shall seem fit and proper ; and all and every sum or sums of money which shall or may be ascertained, de- Of sums as- termined, adjudged, and ordered by any J. P., under the * essed as authority of the said Act, to be paid as the amount of any damage or injury occasioned by the commission of any of the offences therein mentioned, shall be paid to the person who shall or may have sustained such damage or injury, ac- cording to the order or determination, and at the discretion of any such J." 3. In convictions for offences committed in Form of con- Ireland, the name of the Dispensary, Hospital, or Infirmary to * m lre ' which the J. before whom any such conviction may take place, may direct one moiety of the penalty to be paid as aforesaid, shall be inserted in the form by the said Act prescribed for drawing up convictions instead of the words " overseers of," &c. The form given ante p. xlviii, is altered accordingly. FIREWORKS. By Stat. Geo. II. c. 12, s. 1, making squibs and fireworks, or FIREWORKS. permitting the throwing of them, or throwing or assisting therein, 5Geo - 1L c - 12 * is declared a nuisance. 2. " If any person or persons shall make or cause to be made, or shall give, sell, or utter, or offer . Makin g or se H- ing fireworks, to expose to sale, any squibs, rockets, serpents, or other fire- O r instruments works, or any cases, moulds, or other implements, for the for makin g i M a them, making any such squibs, &c., every such person or persons so offending, and being thereof convicted before one or more J. or Js. P. of the county, limits, division, corporation, or liberty, or chief magistrate of the place where such offence shall be committed, either by the confession of the party or parties, or b ycon fession or oath of two wit- the oaths of two witnesses, shall, for every such offence, forfeit nesses. the sum of 5; and if any person or persons whatsoever shall Penalty. permit or suffer any squibs, &c., to be cast, thrown, or fired from, out of, or in, his, her, or their house or houses, shops, ^rkTto'lf ^*' dwelling, lodging, or habitation, or from, out of, or in, any part thrown, &c., thereof, or place thereto belonging, or adjoining unto any public street, highway, road, or passage, or any other house or place On conviction, whatsoever, every such person or persons so offending, and being na i t y. g APPENDIX. FIRE WORKS. SGeo.lI.c. 12. Levy by dis- tress. Application of penalty. Throwing fire- works in a pub- lic street, &c. on conviction as above j pe- nalty. Commitment in default of pay- ment. 1'roviso, ex- cepting Ord- nance. Protection of persons execut- ing Act. thereof as aforesaid convicted, shall, for every such offence for- feit the sum of 20s. ;" the said forfeitures to be levied by distress and sale, by warrant under the hand and seal of the J. or Js. P. or chief magistrate before whom the conviction shall be ; one- half thereof to be to the use of the poor of the parish where such offence shall be committed, and the other half to the use of him or them who shall prosecute and cause such offender or of- fenders to be convicted. 3. "If any person or persons shall throw, cast or fire, or be aiding or assisting in the throwing, casting, or firing of any squibs, rockets, serpents, or other fireworks in, or into, any public street, house, shop, river, highway, road, or passage, every person so offending and being thereof as afore- said convicted, shall, for every such offence forfeit the sum of 20s. to the uses aforesaid ;" and if the person or persons so as aforesaid last offending, shall not immediately, upon conviction, pay to the said J. or Js. P. or chief magistrate, before whom such conviction shall be, the. said forfeiture, then every such J. or Js. P., or chief magistrate is, and are hereby required by war- rant under his or their hands and seals, to commit every such person to the house of correction within the county or limits where such offence as is last mentioned shall be committed, there to remain, and to be set and kept to hard labour, without bail or mainprize, for any time not exceeding one month, unless such offender shall sooner pay such forfeiture to the said J. or Js. P., or chief magistrate. 4. Provided the master, lieutenant, or commissioner of the Ordnance, or persons by them authorized, may give orders for making any sort of fire works to be used ac- cording to such orders. 5. General issue, treble costs, &c. FORCIBLE ENTRY AND DETAINER. FORCIBLE ENTRY AND DETAINER. By an ancient Statute, 5 Ric. II. c. 7, Eng., it is forbidden to any to make any entry into any lands and tenements, but in 5 Ric. II. c. 7. case wne re entry is given by the law; and in such case not with strong hand nor with multitude of people, but only in peaceable and easy manner. And if any man do to the con- trary, and be duly convict, he shall be punished by fine and im- prisonment. This Stat. gave no speedy remedy, leaving the party to proceed by indictment or action, and it did not extend to for- APPENDIX. H cible detainers ; 1 Russ. 284. But by 15 Ric. II. c. 2, Eng., it FORCIBLE is accorded that the ordinances and Statutes made, and not VTAIVEK. repealed, of them that make entries with strong hand into lands 15 RiCf Ilt c> and tenements, or other possessions whatsoever, and them hold 2. with force, and also of those that make insurrections or riots shall be fully executed. " Joined to the same, that at all times that such forcible entry shall be made, and complaint thereof cometh to the Js. P., or any of them, that the same Js. or J. take Js. P. to corn- sufficient power of the county, and go to the place where such JJ^ f D fo "j [^ force is made; and if they find any that hold such place forcibly, entry. after such entry made, they shall be taken and put in the next gaol, there to abide convict, by the record of the same Js. or J. until they have made fine and ransom to the King. And that Sheriffs and all the people of the county, as well the sheriffs as other, shall others to assistt be attendant upon the same Js. to go and assist the same Js. to arrest such offenders, upon pain of imprisonment, and to make fine to the King. And in the same manner it shall be done of them that make such forcible entries in benefices or offices of holy Church." Stat. 8 Hen. VI. c. 9, Eng., recites 15 Ric. II., and that it 8 Hen. VI. c. " doth not extend to entries in tenements in peaceable manner, ,,,, i /. ./.i ., Stats, extended and after nolden with force, nor it the persons which enter with to f orc ibi e de- force into lands or tenements be removed and voided before tainers. the coming of the said Js. or J., as before, nor any pain ordained, if the sheriff do not obey the commandments and precepts of the said Js. for to execute the said ordinance ;" and that forcible entries and other wrongs are daily made, and are likely daily to increase if due remedy be not provided in this behalf. 2. " Our lord the King considering the premises hath ordained, that the said Statute and all other Statutes, of such entries or alienations made in times past, shall be holden and duly executed ; joined to the same, that from henceforth where any doth make any forcible entry in lands and tenements or other possessions, or them hold forcibly after complaint thereof made within the same county where such entry is made to Js. P., or to one of them, by the party grieved, that the J. or Js. so warned, within a convenient time, shall cause, or one Costs, of them shall cause, the said Statute duly to be executed, and that at the costs of the party so grieved." lii APPENDIX. FORCIBLE ENTRY AND DETAINER. 8 Hen. VI. c. 9. Js. to inquire of forcible en- tries, and to make restitution as herein. Precept to re- turn a jury to inquire of forci- ble entries. Enforcing penalty against sheriffs, &c., for neglect. 3. " And moreover, though that such persons making such entries be present or else departed before the coming of the said Js. or J., notwithstanding the same Js. or J. in some good town next to the tenements so entered, or in some other con- venient place, according to their discretion, shall have, or either of them shall have, authority and power to inquire by the people of the same county, as well of them that make such forcible entries in lands and tenements, as of them which the same hold with force ; and if it be found before any of them, that any doth contrary to this Statute, then the said Js. or J. shall cause to re-seize the lands and tenements so entered or holden as before, and shall put the party so put out in full pos- session of the same lands and tenements so entered and holden as before." 4. " And also when the said Js. or J. make such inquiries as before, they shall make, or one of them shall make, their warrants and precepts to be. directed to the sheriff of the same county, commanding him, of the King's behalf, to cause to come before them and every of them, sufficient and indifferent persons dwelling next about the lands so entered as before, to inquire of such entries. Whereof every man which shall be impannelled to inquire in this behalf shall have land or tene- ment of the yearly value of 40s. by year, at the least, above reprises. And that the sheriff return issues upon every one of them, at the day of the first precept returnable, 20s. ; and at the second day 40s. ; and of the third time 1 OOs. ; and at every day after the double. And if any sheriff, or bailiff within a fran- chise having return of the King's writ, be slack, and make not execution duly of the said precepts to him directed to make such inquiries, that he shall forfeit to the King 20 for every default, and moreover shall make fine and ransom to the King." 5. f And that as well the J. or Js. aforesaid as the Js. of As- size, and every of them, at their coming into the country to take assizes, shall have, and every of them shall have, power to hear and determine such defaults and negligences of the said sheriffs and bailiffs, and every of them, as well by bill at the suit of the party grieved to sue for himself, as for the King by indictment only to be taken for the King ; and if the sheriff or bailiff be duly attainted in this behalf by indictment or by bill, that he APPENDIX. liii which sueth for himself or for the King have the one moiety of FORCIBLE EN- the forfeiture of 20, together with his costs and expenses: TB ^^ E " and the same process be made against such persons indicted or g HeQ yi c 9 sued by bill in this behalf as should be against persons indicted or sued by writ of trespass done with force and arms against the peace of the King." 6. Provides for the recovery, by action, of lands where a Recovery of feoffment or discontinuance has been made after a forcible en- lands b y action, try; and if the party recover, and it be found that the defendant entered, or held the lands with force, the plaintiff shall have treble damages, and the defendant shall make fine and ransom to the King ; " and mayors, Js., or J. P., sheriffs and bailiffs of cities, towns, and boroughs, having franchise, have in the said cities, towns, and boroughs, like power to remove such entries, Entries in and in other articles aforesaid, rising within the same, as the Js. cities or towns. P., and sheriffs in counties and countries aforesaid have." 7. "Provided, that they which keep their possessions with Star, nottoap- force in any lands and tenements whereof they or their ances- P 1 ? wh< r n p , os ~ session has been tors, or they whose estates they have in such lands and tene- held for 3 years. ments have continued their possessions in the same by three years or more, be not endamaged by force of this Statute." Stat. 10 Car. I. Sess. 3, c. 1, reciting this last provision, and 10 Car. I. S. 3. that it is very beneficial, but that, notwithstanding, persons have c ' 13 .* . been removed after three years, contrary to its true intent, for n ot disturbing remedy thereof enacts, that " no restitution upon any indictment after 3 y ears , , .. . , further en- of forcible entry, or holding with force, be made unto any person f orce d. or persons, if the person or persons so indicted hath or have had the occupation, or hath or have been in the quiet possession by the space of three whole years together, next before the day of such indictment so found, and his, her, or their estate or estates therein not ended nor determined ; which the party indicted shall and may allege for stay of restitution ; and restitution to stay until that be tried, if the other will deny or traverse the same ; and if the same allegations be tried against the same person or persons so indicted, then the same person or persons so indicted, to pay such costs and damages to the other party as shall be assessed by the judges, or Js., before whom the same shall be tried ; the same costs and damages to be recovered and levied as is usual for all costs and damages contained in judgments upon other actions." liv APPENDIX. FORCIBLE 2. Judges, Js., or Js. P. as by reason of any Act now in force ENTRY AND .1 . , . . . DETAINER. ar6 autnonz ed upon inquiry, to give restitution of possesssion 10 Car. I. S. 3, unto tenants of any estate of freehold of their lands or tene- c - 13 - ments which shall be entered upon with force, or from them Restitution of withholden by force shall, by this present Act, have the like and possession ex- tended to titles tne same authority and ability, from henceforth (upon indict- of term of years, ment of such forcible entries, or forcible withholding before them duly found) to give like restitution of possession unto tenants for term of years, tenants by copy of court-roll, te- nants by elegit, statute merchants and staple, of lands or tene- ments by them so holden, which shall be entered upon by force, or holden from them by force." By Stat. 26 Geo. III. c. 24, ss. 6466, forcible entry, or detainer, or resisting process for giving possession, are made felonies, and a method prescribed of proclaiming and requiring the surrender of persons indicted therefor. And for the appli- cation of the foregoing ancient Statutes, see ante. GAME. GAME. St. 10 Will. III. c. 8, s. 2, enacts, that " no person or persons 10 Will. III. whatsoever, not having an estate of freehold in his own or his N ' . wife's right, of the yearly value of 40 at the least, or a personal qualified as estate of the value of 1000 at least, over and above all debts by herein to keep fa m QVf \ u ^ either for himself, or as servant to any other, (unless uiel &c.' ex- ne be such servant as hath no other way of livelihood for his cept whelps for \vages from such person), have or keep any hound, beagle, grey- persons quali- . fied^ bound, or land-spaniel, within this kingdom, other than and ex- cept whelps under the age of twelve months, which shall be kept at nurse for persons qualified within this Act, for the having the same; on pain that such hound, &c., so kept contrary hereunto, shall or may be seized and taken away by any J. P. of the respective counties where the same shall be so kept, or by any person or persons authorized thereunto, by warrant under the hand and seal of such J. P., or by any person having Or they may be a freehold of the yearly value of 40 or upwards within such seized ; and CO unty ; which J. P. and freeholder respectively seizing such owner convicted before one J. P. hound, &c., may detain the same to his and their own uses, or otherwise dispose of the same as they shall think fit : and all APPENDIX, lv and every person or persons so keeping such hound, &c., con- GAME. trary hereunto, and being thereof convict before some J. P. 10 Wlllt nlt of the county where such offence shall be committed, on the oath of one or more credible witness or witnesses, shall, for every such offence, forfeit and lose the sum of 5, to be levied by warrant of such J. P. before whom such offender shall be convict, by distress and sale of the goods of such offender, re- turning the overplus (if any be) to the party distrained on ; the one moiety thereof to the informer who shall prosecute for the same, the other moiety to be issued for the use of the poor of the parish where such offence shall be committed." See also 27 Geo. III. c. 35, s. 8, post, and see ib. s. 21. 3. Penalty Qualified per- on qualified persons sheltering or concealing such dogs for per- J* for mi? sons not qualified 40, recoverable in courts in Dublin, half to qualified. the King and half to any suing therefor. 5. " No person or persons whatsoever shall shoot any deer None to shoot at any season of the year, except on his own ground onlv. or ^eer exce pt on * { his own ground, on the ground or such person or persons to whom the person O r, if a Protes- shooting such deer, being a Protestant, shall be a menial family tant > on his , . ",'. i master's, servant at the time of shooting the same, and that by warrant only under the hand of such his master, and not otherwise ; on pain that every person so offending contrary hereunto, being thereof convict before one or more J. or Js. P. of the county where such offence shall be committed, on oath of one or more credible witnesses, shall for every such offence forfeit and lose Penalty before the sum of 5, the one moiety thereof to be to the use of the poor of the parish where such offence shall be committed, the other moiety to him or them who shall give information and make proof of such offence before such J. or Js. P., (but see s. 21, post, p. Ixiii), the same to be levied on the goods and chattels of the offender, by warrant under the hand and seal of such J. or Js., who are hereby required to grant such warrant, and to pay or order payment of the money levied thereby accordingly." 6. " No person or persons whatsoever shall in any year None to hunt, after 20th Oct. 1698, hunt, course, or kill any male deer, Jj^jjj^ 1 * before the 10th day of June in such year, unless it be in the June, or male park or proper ground of the person hunting, coursing, or kill- f *^ **** Ivi APPENDIX. GAME. ing the same ; nor shall course, hunt, or kill any male fallow 10 Will. III. deer after Michaelmas, in any year, unless in the proper ground of the person hunting, coursing, or killing the same ; on pain that all and every person and persons offending contrary here- unto shall, for every such offence, forfeit and lose the sum of 5; such offence to be heard, examined, and determined by such Js. P. as aforesaid, and the forfeiture for the same levied, divided, and paid to such person or persons, and in such man- ner as is hereinbefore appointed for the other offence of shoot- ing deer." None to burn 7. No person or persons shall burn on any mountain, hill, heath, &c., save 11*1 i * ,i as herein, moor, bog, heath, or waste ground, any grig, ling, furze, heath, goss, or fern, at any other season of the year, save only between the 14th day of June and the 2nd day of February in every year ; on pain that every person and persons offending contrary penalty. hereunto, shall for every such offence forfeit and lose the sum of 5 ; such offence to be likewise heard," &c., same as s. 6, su- pra ; see also 27 Geo. III. c. 35, s. 3, post. 8. No person to trace game in the snow, nor destroy the eggs, but see 27 Geo. III. c. 35, s. 4, post ; " nor shall any None unless person or persons not having such freehold estate of 40 per fore, to kill annum, or personal estate of 1000 as aforesaid, shoot at, kill, game, take, or destroy any hare or hares, partridge, pheasant, grouse, or quail ; or any person whatsoever shoot at, take, kill, or de- stroy any house-dove or pigeon, other than such as shall be or to kill pi- ij or belonging unto the dove-house or pigeon-house of the geon, except in p erson or persons so shooting at, killing, or destroying the same ; his own dove- . .. house on P am that every person ouending contrary hereunto in any of the particulars aforesaid, shall for every such offence being thereof convict before one or more J. or Js. P. of the county where the same shall be committed, or the offender appre- penalty. hended, forfeit and lose the sum of 10*., the one moiety thereof to the use of the poor of the parish where such offence shall be committed, to be paid to the churchwardens of such parish for such use ; the other moiety to him or them who shall inform and prosecute for the same as aforesaid, or otherwise shall be publicly whipped," &c. ; but see 27 Geo. III. c. 35, s. 22, post ; and there seems now no means of enforcing this penalty. APPENDIX. Ivil 9. Provided nothing herein shall extend to restrain tenants GAME. to persons not restrained by this Act from keeping any hound, 10 Will. III. beagle, spaniel, or greyhound, for the use of their landlord, so Tenants may as they do not use them except in their landlord's company. keep dogs for 10. ' No person or persons not having an estate of freehold of the yearly value of 100, or upwards, or a personal estate of se tting dog ex- the value of 1000, shall have or keep any setting dog or bitch, cept qualified as other than such person or persons as shall be allowed and li- cense( J by Q r . censed thereunto, by the Js. P. of the county where he shall Sessions for live, at the Quarter Sessions of the Peace to be held for ^"thfn the 8 ' such county, next after Christmas in every year, in order to must train two the making and training up setting dogs or bitches, and that under such regulations only as shall be allowed and specified in such license ; and such person or persons so to be licensed, shall also, and are hereby required, every two years during the continuance of such their license, to train up, teach, and make some one or more hound or hounds, to hunt on dry foot ; and, in default thereof, such license so obtained shall be of no force and effect and shall be reputed and deemed so to have been from the granting the same ; and the person or persons to whom the same was granted shall be liable to the same penal- ties as if he or they had acted without such license." 11. " No person or persons keeping or using a gun to fowl Servants to per- . , . , , 6 . : b A A . sons qual.fied with, as servant to any person not restrained by this Act from not to sell game. keeping the same, shall sell or dispose of any fowl or game he or they shall kill to any person whatsoever, but shall bring all such fowl or game to his or their master's house, for the use of his or their said master ; on pain that every person offending Penalty. contrary hereunto, shall for every such offence forfeit 20s., the said offence to be heard, &c.," same as sect. 6, ante. 12. " No non-commissioned officer, or private soldier, be- Soldiers, and longing to any regiment, troop or company, within this king- . Officers dom, shall be permitted to go out of his garrison or other not to go out of quarters, with any gun or other fire-arms, unless the same be q uarters wlth fire-arms, ex- on a march or a commanded party, by command of the officer in C ept as herein. chief then present, and commanding in such respective garrison or quarters; on pain that such non-commissioned officer and pri- vate soldier being thereof convict before some one or more J. h Iviii APPENDIX. GAME. 10 Will. III. C. 8. Penalty. Officer to deliver up offender to the civil autho- rities on de- mand. Penalty. No officer to kill game except on his own ground. Penalty under Mutiny Acts, and 6 Anne, c. 14. or Js. P. for the county where such offence shall be committed, shall for every such offence forfeit and lose the sum of 5s., to be paid to such person or persons as shall give information of, and make out, such offence before such J. P. (see s. 21, p. Ixiii,) and to be levied on the warrant of such J. P., by distress and sale of goods of the person offending, rendering the overplus to the party distrained on : and in case no sufficient distress shall be found, the person or persons so offending shall by warrant of such J. P., be sent to the common gaol for such county, there to be kept in close custody without bail or mainprize for 10 days ;" " and the officer in chief of such garrison or quarters to which such offender shall then belong, shall on demand render the body of the offender into the hand of the J. P. or other civil magistrate, to be dealt with according to law : and in case such officer shall neglect or refuse to deliver up such offender, such officer, being thereof convict before one or more J. or Js. P. of the county where such garrison or quarters shall be, shall for such offence forfeit and lose the sum of 5, to be levied on the warrant of such J. or Js., by distress and sale of the goods of such officer, rendering the overplus (if any be), one moiety whereof shall be to the use of the poor of the parish where such offence shall be committed, the other moiety to him and them that shall inform of, and make out such offence before such J. or Js." 13. No commissioned officer of any regiment, or any per- son employed by or under him, shall shoot or course with grey- hounds any deer, hare, or other game whatsoever, except on his own ground or otherwise by the free permission and leave of the owner of the ground or soil, where he or they shall so hunt or course, on pain of forfeiture by such commissioned officer of the sum of 5 for every such offence ; which offences shall also be heard, &c., as in s. 6. By the Annual Mutiny Acts, " Every officer who shall without leave, in writing, from the per- sons entitled to grant such leave, take, kill, or destroy any game, or fish, in the U. K. of G. Brit, and Ireland, and upon complaint thereof, shall be, upon oath of one or more credible witnesses, convicted before any J. P., shall for every such offence forfeit the sum of 5," 3 & 4 Viet. c. 6, s. 69. See also, 6 Anne, c. APPENDIX. X 14, s. 10, which, in addition to a penalty of 5, on officers or sol- GAME. diers, without permission, killing game or fish, makes the officer 10 Wl11 - m - commanding-in-chief upon the place, liable to forfeit 10*. for every such offence of which a soldier under his command shall be convicted. * 15. Lords of manors or other royalties, not under the de- Appointment of gree of an esquire, may, by writing under their hands and seals, pr"sei ^aUoiTof authorize one or more gamekeepers who may take and seize game. all guns, hounds, greyhounds, beagles, land-spaniels or setting- dogs, within such respective manors or royalties, used by per- sons prohibited to use the same ; and, by s. 16, all such lords of manors or royalties, or persons so authorized, may resist such offenders, in killing or destroying the game contrary to this Act, in the night time, in the same manner, and be equally in- demnified as if such fact had been committed within any ancient chase, park or warren. 17. That no persons convicted of any of the offences afore- Detaining of- j -i ^ i a- i / i -i_ fender until re- said may escape punishment by night or removal, authority turn of wairantt is hereby given, after such conviction, to the constable or other officer, or person or persons prosecuting, to detain in custody such offenders (if the money due by such conviction be not presently paid) during such reasonable time as a return may be conveniently made to the distress warrant, so as such detainer do not exceed two days. 18. Persons sued may plead general issue, and have treble Protection of costs, &c. 19. Reciting the mischiefs " of inferior trades- ecutingtheAct. men, apprentices, and other dissolute persons, neglecting their trades and employments," enacts, " that if any such person shall Tradesmen or presume to hunt, hawk, fish, or fowl, unless in company with *PP re the master of such apprentice, duly qualified by law, such per- fowling, son or persons shall be liable to the same penalties as the per- sons on whom game shall be found are liable unto by virtue of Penalty, this Act,"i. e. by s. 14, (rep. by 27 Geo. III. c. 35, s. 2,) shall forfeit for every hare, partridge, pheasant, pigeon, fish, fowl, or other game, or venison, any sum not under 5s., nor exceeding 20s., one moiety thereof to be paid to the informer, and the other moiety to the poor of the parish where such offender shall live, (see s. 21, p. Ixiii,) to be levied by distress and sale, by Ix APPENDIX, GAME. warrant under the hand and seal of the J. rendering the over- 10 Will. III. plus (if any be); and for want of distress the offender shall be committed to the house of correction for any time not exceed- ing one month, and not less than ten days, there to be kept to hard labour, and whipped ; but see 27 Geo. III. s. 22, post, p. Ixiv. Dogs may be 20. ll Provided nothing herein shall restrain any person within kept within a with an y manor from keeping hounds, beagles, greyhounds, span- manor consent of the niels or setting-dogs within the same, to hunt, course, set with, hand and seal. or ot l ierw ' se use i such manor, only so as the same be allowed of and kept with the consent and free permission of the lord of the manor for the time being, in which the same shall be so kept, appearing by license under the hand and seal of such lord of the manor." 27 Geo. 111. c. Stat. 27 Geo. III. c. 35, ss. 1, 2, repeals several Stats, re- lating to game, and such parts of 10 Will. III. c. 8, as are omitted in the Act as given* in the preceding pages. 10 Will. 111. c. 3. Recites 10 Will. III. c. 8, s. 7, ante, p. Ivi, and enacts, 8, s. 7, not to <{ ^ at no thi n cr in said Act shall extend or be construed to extend, extend to parts B broken up for to subject the owner or occupier of any such mountain, hill, agriculture or m oor, bog, heath, or waste ground, to said penalty for burning gregling, furs, heath, goss, or fern, at any time of the year on such part of said mountain, &c., as shall be broken up for the pur- poses of agriculture or planting." Killing or using 4. " Every person who shall wilfully take, kill, or destroy, pheasants at or shall sell or expose to sale, or who shall buy, or cause to be certain seasons. 11^ 7 bought any moor game, fyc., as herein, or any pheasant par- tridge, quail, land-rail, or wild turkey, between 10th January and 1st September, in any year, shall forfeit a sum not exceed- ing 5, for every such moor game, heath game, or grouse, phea- sant, partridge, quail, land-rail, or wild turkey, [as to the part Buyio.. hare at in Italic ' see 37 Geo - IJ[I ' c - 21 ' s> 2 P 08 *\' Every person who certain seasons, shall buy, or cause to be bought, sell, or expose to sale, any penalty, 5. na re at an y t j me between the 1st Monday in every Nov. and the 1st Monday in every July following, shall forfeit a sum not exceeding 5 for every such hare ; and every person who . shall make use of anv gun, snare, net, or other engine to take, Making use of an> gun, &c., kill, or destroy any moor game, heath game, or grouse, pnea- APPENDIX. Ixi sant, partridge, quail, land-rail, wild turkey, or other wild fowl, OAMK. or any hare or rabbit on a Sunday, shall forfeit for every such 27 Geo. II I.e. offence a sum not exceeding 5 ; and every person who shall '^ ame on wilfully take, kill, or destroy any hare, pheasant, partridge, a Sunday, pe- quail, land-rail, moor game, heath game, or grouse, in the Dalt y 5 * night, between one hour after sunsetting and one hour before Killing game by night, except sunrising, unless qualified to take or kill game, and upon his or a s herein, her own lands, or duly authorized so to do, shall forfeit a sum Penalty 5 for each hare or not exceeding 5 for every such hare, pheasant, &c., so taken, \^\ r ^ killed or destroyed; and every person who shall trace any hare, Tracing game or other game whatsoever in the snow, unless qualified to take in snow if not i MI !_ i j u 11 f qualified, or on or kill game, and upon his or her own lands, shall for every Q WD j a0( j Sj pt ,_ such offence forfeit a sum not exceeding 5 ; and every nalty 5. person who shall wilfully destroy the eggs or nest of any phea- Destroying eggs , j -i i i ! 1^1 or nests, penalty sant, partridge, quail, land-rail, moor game, heath game, or 5 grouse, wild duck, widgeon, plover, or snipe shall forfeit for every such offence a sum not exceeding 5." 5. Persons using dog, gun, snare, net, or other engine, Persons, unless or setting snares, &c., to take or kill hare, rabbit, pheasant, wh <> . . use an y dog, partridge, quail, land-rail, moor game, heath game, or grouse, g un , snare, &c., snipe or woodcock, in the night, unless qualified, and upon their to tak . e S ame ia own land, or duly authorized so to do, forfeit 10, on indict- f e it ib. ' ment at the sessions, and may be whipped and imprisoned. 6. " If any higgler, chapman, carrier, victualler, or ale- Higglers, c., house keeper, shall have in his, her, or their custody or pos- avmg in pos " * session, any session, any hare, pheasant, partridge, moor,* heath game, game, except grouse, land-rail or quail, or shall buy, sell, or offer to sell, any P r P ert y of .- persons quali- hare, pheasant, partridge, moor, heath game, grouse, land-rail, fied, forfeit 5. or quail, every such higgler, chapman, inn -keeper, victualler, * sic. Semble ale-house keeper, or carrier, unless such game in the hands of Caret g ame - such carrier be sent up by person or persons qualified to kill the game, shall upon conviction of such offence, before a J. P., forfeit the sum of 5." 7. " If any hare, pheasant, partridge, moor,* heath game, Game in a grouse, land-rail, or quail, shall be found in the shop, house, ^P> &c. pe- or possession of any poulterer, salesman, fishmonger, cook, or pastry cook, the same shall be adjudged, deemed, and taken to be an exposing thereof to sell, within the true intent Ixii APPENDIX. GAME. 27 Geo. III. c. 35. 10 Will. III. c. 8, extended to hounds, &c. Persons not au- thorized shall not enter upon the lands of other persons to look for game, penalty 10. Not deemed looking for game without having a dog, fee. Qualified per- sons may pur- their four-footed game into lands of others. Damages to be recovered. Dogs of per- sons not quali- fied to keep setting dogs or hounds, com- mitting the mat- ters herein, may be destroyed by virtue of a jus- tice's warrant. and meaning of this Act, and the offender on conviction thereof before a J. P., shall forfeit the sum of 5." 8. Recites 10 Will. III. c. 8, s. 10, ante, "No person or persons shall have or keep any pointer, hound, beagle, grey- hound, or land-spaniel, other than and except such person or persons as by the said Act may have or keep any setting dog or bitch, and under and subject to the same qualifications, regu- lations and penalties." 9. Higglers, &c., having game in their possession, and search warrant therefor, ante, p. 283. 10. " No person or persons not being duly authorized shall go or enter upon the land of any other person or persons to look for, set, spring, start, follow, shoot, course, hunt, hawk, or otherwise pursue, take or destroy any sort of game, wood- cock, snipe, duck, teal, or widgeon ; and each and every person and persons offending in any of the particulars herein set forth, shall for every such offence forfeit a sum not exceeding 10." 11. Provided " no person shall be construed to be within the meaning of this Act as looking for game, unless such person shall appear to be provided with a dog or dogs, gun or guns, net or nets, or some other implement for taking or destroying game." 12. "Provided also, that nothing herein contained shall subject any person or persons duly qualified to take or kill game, his, or their servants, or necessary attendants, to any of the penalties hereby inflicted for following or pursuing their four-footed game into the lands of other persons." 13. But such person may have such remedies as they are entitled to against persons so following their game, for any damages they shall do. 16. " Where any dog or dogs, of whatever species, belong- ing to any person or persons not qualified or authorized to keep setting dogs or hounds, shall be known to destroy any sort of game, or to kill or wound sheep, or bite horses, to the annoyance of travellers on the highway, or which in any other respect shall prove a nuisance, on information thereof given upon the oath of one credible witness before a J. P. for the county, county of a city or town, where such dog or dogs shall happen to be, it shall be lawful for such J. to summon the APPENDIX. Ixiii owner of such dog or dogs to appear before him, and after a p AME r ' TI full inquiry to issue his warrant for destroying such dog or dogs 35 as shall be informed against, in case he shall see sufficient cause for the same, but not otherwise." 17. But nothing herein shall Further redress prevent any person from obtaining such further or other redress for any damage sustained by means of any such dog, as he is by law entitled to. 18. Provided " nothing in this Act contained shall be Saving rights of construed to affect, injure or lessen in any way whatsoever the rights or privileges of lords of manors." 19. All offences against this Act not herein otherwise Offences deter- provided for, shall be inquired into, and determined either by mined by . oath . J of one witness, oath or one or more credible witnesses, or by confession ot the accused, before one or more Js. P. for any county, county of a before one J.P. city or town where the offence shall be committed, or* found ; * Sic. " and such J. P. is hereby empowered to issue his warrant for the distraining and sale of the goods of the party offending, in order to raise the penalty or forfeiture ; and in case no sufficient distress shall be found, the person or persons so offending shall by warrant of such J. P. be committed to the House of Industry or house of correction, there to be kept to hard labour, or to the gaol of such county, city or town, there to remain without bail or mainprize, for any time not exceeding one calendar month, or until such fine shall be paid." 20. " Provided such prosecution shall be commenced within Prosecutions in 6 calendar months after the offence shall be committed." six mon ths. 21. "All forfeitures to be incurred for any offence against Application of the game laws, shall, when recovered, be paid, one half-to the forf etures for , , , , offences against informer or prosecutor, and the other halt to the use of the tne garae i aws . County Infirmary, or House of Industry, first deducting a sum after the rate of 2s. for every twenty which shall be paid to the constable or constables, for his or their trouble in executing the warrants of such J. P. if such Js. shall think fit ;" but constabu- lary cannot be employed, ante, p. 20. 22. It shall not be lawful for any J. or Js. P. before No persons to whom any person is tried in a summary way, for any offence be whipped, &c. . f /. , , for offences against any laws now in torce tor the preservation of the game, against game to order or direct any person or persons to be whipped or suffer laws * APPENDIX. GAME. any other corporal punishment for any offence or offences com- 27 Go. III. c. m itted against said laws. ' 23. Any person aggrieved by any thing done in pursuance aggrieved by of the laws relative to the game, by any J. P., may appeal to the justices may nex t General Sessions for the county, who may, if necessary, appeal to Gene- . ral Quarter impannel a jury, and award reasonable costs to the parties Sessions. appealed against ; " such person appealing having first entered into a recognizance before some J. P. for said county with 2 sufficient sureties conditioned to try such appeal, and abide the order of, and to pay such costs as shall be awarded by the said Js.," at sessions ; their determination to be final and con- clusive. No order made concerning any matters, or convictions peTsomi'execu- re ^ at ' ve to tne game, shall be quashed for want of form, or ting the Act. removed by certiorari. 24. General issue, &c. 37Geo. III. c. 37Geo.III. c. 21, s.l, repeals part of s. 4 of the above. 2. No person or persons shall on any pretence whatsoever, take, kill, c heath game, or grouse, between the 10th seasons prohi- Dec. and 20th Aug., or any partridge, land-rail, or quail, between bited as herein, the 1Qth of Jan and 2()th g ep ^ in any year . and j f afiy pej> son or persons shall take, kill, destroy, carry, sell, buy, or have in his, her or their possession, or make use of any moor game, heath game, or grouse, between the 10th day of Dec. and the 20th day of Aug. in any year, or any partridge, land-rail, or quail, between the 10th day of Jan., and the 20th day of Sept. Penalty. in & n y year, every such person or persons shall be liable to the same penalty, as by the said Act is laid on every person or per- sons transgressing the same, (ante, p. Ix, s. 4) ; such penalty to be imposed, inflicted, received and applied in like manner, and under the same rules and regulations as in and by the said Act is directed with respect to application of forfeitures to be incurred for any offence against the game laws," ante, p. Ixiii. 58 Geo. III. c. There is considerable doubt whether the following Stat. 58 Geo. III. c. 75, extends to Ireland, though the prevailing opinion is, that it does so(a). 1. To prevent the sale of game enacts, that " if any person or persons whatsoever, whether qualified or not qualified to kill game, shall buy any hare, pheasant, partridge, (a) It is omitted in Finlay's Game Law ; Oult. Ind. ; Toml. Ind. ; but is given as applying to Ireland, Gab. Dig, Supp. Preface, viii. ; M-Nal. J. P. vol. ii. 356 j and see O'Don, Sum. Jurisd. 79, n. a. APPENDIX. 1XV moor, heath game or grouse, every such person or persons who shall so offend, and thereof be convicted before one or more J. 75' or Js. P.," for the county, city or place where the offence shall Penalty on per- be committed, by oath of one or more witnesses, shall for every sons or not buying hare, pheasant, &c., so bought, forfeit 5, one-half to be paid to game. the informer, and the other to the poor of the parish where the before 1 J. P. offence is committed ; to be levied by distress and sale by war- Levied and ap- rant, under hand and seal of the J. and Js. convicting, render- ing to the owner the overplus after deducting the charges of making the same. Provided that such conviction be within six within calendar months after such offence is committed. 2. For the better discovery of offenders, any person who Offenders dis- shall buy, sell, or offer to sell, or have unlawfully^ his posses- JSJJ^J** 1 sion, any hare, pheasant, partridge, moor heath game, or grouse, charged from and shall make discovery of any person that hath within six calen- ^ability, dar months bought or sold any such game, so as any one shall be convicted of any such offence by virtue of this or any other Stat. now in force, such discoverer shall be discharged from all pain, forfeiture, or penalties to which he may be liable before and at the time of making such discovery, by reason of the buying or selling, or offering to sell, or having unlawfully in his posses- sion any such game, and shall receive the same benefit and advantage as any other informer is entitled to by this Act for such discovery and information. Provided this shall not dis- unless prosecu- charge such discoverer from the consequence of a prosecution actually pending, or a conviction or judgment given against him at the time of the discovery. 3. Authorizes any person what- Suinw for pe- ever, either to proceed for penalties under this Act summarily nalties in the as above prescribed, or to sue for the same in the superior courts ; in which latter case he shall have the whole penalty and double costs. By Stat. 55 Geo. III. c. 100, s. 21, Every person in Ireland GAME CERTI- not acting as a gamekeeper under a deputation duly registered * IC ^ as hereinafter directed, who shall keeper use any dog, gun, net, c . 100. or engine, for the taking or destruction of game, shall previously Game certifi - J cate to be taken deliver in an account m writing, containing his name and place O ut annually, as of abode, to the proper officer at the Stamp-Office, in Dublin, herein, unless if he resides or has a residence in the county or city of Dub- i Ixvi APPENDIX. GAME CERTI- FICATE. 55 Geo. III. e. 100. keeper's depu- tation ; and then such deputation to be registered at Stamp Office, or in the coun- try with a stamp distributor ; and certificate to be granted to the game- keeper as herein. Date and dura- tion of certifi- cate. Penalty for keeping dogs or engines with- out having a certificate. Penalty on gamekeeper lin ; and if not, then to the distributor of stamps in whose dis- trict he resides ; and if he has more than one residence, none of which are in the county or city of Dublin, then to any dis- tributor of stamps in whose district any of such residences is ; and shall annually take out a certificate in the form given hereby from such officer or distributor. Fee 2s. 6d. British, besides the price of the paper and stamp. By s. 22, every deputation or appointment of a gamekeeper, granted by any lord or lady of a manor, or other person having a right to make it in Ireland, shall be registered with the proper officer at the Stamp-Office in Dublin, if the lands over which it extends, or any part thereof, are situate in the county or city of Dublin ; and if no part is so situate, then with any distributor of stamps within whose district any of them is situate. By s. 23, every game- keeper to whom any such deputation or appointment shall be so granted, so registering the same, and producing annually a piece of vellum, parchment, or paper, stamped with the duty by law required thereon, and also paying 2s. 6d. British to the officer or distributor of stamps for his trouble, shall be entitled to have a certificate on such stamped paper, vellum, or parchment, in the form herein given ; and by s. 24, the distributor or officer refusing to give it, is liable to a penalty. 25. " Every certificate issued by any distributor of stamps or other officer as aforesaid, shall bear date on the day of the month and year on which the same shall be issued, and shall endure and remain in force from thence until the 25th day of March next following the date thereof, and no longer." 26. " If any person in Ireland shall have, keep, or use any greyhound, hound, pointer, setting dog, spaniel, lurcher, or other dog, or any gun, net, or other engine for the taking or destruction of any hare, pheasant, partridge, heath fowl, com- monly called black game, or grouse, commonly called red game, or any other game whatsoever, without having a certificate for the same, or a certificate of having registered a deputation, whereby such person is appointed a gamekeeper according to law ; every such person shall for every such offence forfeit and pay the sum of 20." 27. " If any person shall have or obtain any deputation AI'PENDIX, or appointment as a gamekeeper, or shall act as a gamekeeper GAME CERTI- without having such certificate of the registry thereof as afore- ce i 55 Geo. I1J c ' said, according to law, every such person so offending shall tor JQQ every such offence forfeit and pay the sum of 20." acting without 28. Directs that distributors shall each month transmit to the Jjjjjjjjl 1 and Stamp- Office a list of the certificates issued by them, which, by s. 29, shall be deposited at the Stamp-Office in Dublin, and may be inspected during office hours by any person, on pay- ment of Is. ; and, by s. 30, may, if commissioners think fit, be published. 31. Reciting that the deputation may cease, and the person making it maybe unable to get the certificate. "If Jfanewdepu- any lord or lady of a manor or other person as aforesaid, shall ^j'Tn" the saoi make any new deputation or appointment within the year of a year to another gamekeeper for any manor or lands, in the room of the per- g amekee pe r 'on registry son previously appointed, and to whom any certificate shall have thereof, former been previously issued, and such person so newly appointed shall certific ate to register such new deputation or appointment with the distri- V oid. butor of stamps in the same district in which such former cer- tificate was granted, and obtain a new certificate thereof, every former certificate granted in the same year on a deputation signed by the same person, shall from thenceforth be null and void ; and any person acting under any such former certificate, after the granting of such new and other certificate, having notice thereof, shall be liable to all penalties which are or shall be prescribed by law, in the same manner as if no certificate had been granted to such person ; provided that in every such case the distributor granting such further certificate within the year, shall write at the foot thereof these words, " second (third, Subscribing fourth, and so on, as the case may be) certificate within this certificate"' year," and shall subscribe such memorandum with his name; and every such further certificate so subscribed shall not re- quire any stamp, but shall be good and valid as if duly stamped." 32. "If any person or persons shall be found using any Owners of land, dog, gun, net, or other engine for the taking or destruction of or P ersons cer " . . tificated, may game, it shall be lawful for the occupier of the land where he demand fiom shall be so found, or for any owner or proprietor of, or any persons sport- , . ing, the produc- person or persons having any estate whatsoever in, the same tionof their cer lands, whether in possession, remainder, reversion, or future tificaie. Ixviii APPENDIX. GAME CERTI- FICATE. 55 Geo. III. c. 100. Penalty for re- fusing to pro- duce it, or to give name and residence, or giving false names, &c. Arrest of offen- der. Certificate not to authorize killing game at improper seasons, &c., or to be a qualifi- cation. interest, or for any person who hath obtained a certificate in manner hereinbefore directed, and who shall produce the same, to demand and require from the person so using such dog, gun, net, or engine as aforesaid, to produce and show a certificate issued to him for that purpose as hereinbefore is directed ; and every such person shall upon such demand and requisition, produce such certificate to the person so demanding and re- quiring the same, and shall permit the same to be inspected accordingly ; and if any such person shall wilfully refuse to pro- duce and show a certificate issued to him for that purpose and then in force, or shall decline to produce or show the same, or shall refuse, on being required so to do, to give and declare his name and surname and the place of his residence, or shall give or declare any false or fictitious name, surname, or place of residence, every person so offending shall for every such offence forfeit and pay the sum of 40 ; and it shall be lawful for the occupier of the land where any person shall be found, who shall refuse to produce such certificate, or who shall refuse to declare his name and surname and place of residence, or for any other person or persons present at the time of such refusal, to appre- hend the person so refusing as aforesaid, and to convey him forthwith before any J. P. within whose jurisdiction such of- fence shall be committed ; and such J. shall proceed to the conviction of such offender for such offence in like manner as if such offender had been summoned to appear before such J., upon any information or complaint for such offence." 33. " The certificate hereby directed to be issued by any distributor of stamps or other officer, shall riot authorize or enable any person to use any greyhound, hound, pointer, set- ting dog, spaniel, lurcher, or other dog, or any gun, net, or other engine, for the taking or destruction of game, at any time or times, or in any place, or in any manner prohibited by any law now in being, or hereafter to be made; nor shall give to any person any right to use any greyhound, hound, pointer? setting dog, spaniel, or other dog, or any gun, net, or other engine, for the taking or destruction of game, unless such per- son shall be otherwise duly qualified by law so to do, nor in any place in which such person would not otherwise have a right to use the same." APPENDIX. 34. " Whenever any prosecution or proceeding shall be OA.ME CERTI- had or commenced against any person for keeping or using any dog, gun, net, or engine, for the taking or destruction of game, c 100.' without having obtained a certificate duly stamped in manner p r0 of of the required by law, the proof that such person has obtained such certificate lies . . . .. on defendant, certificate duly stamped shall he on the party against whom such prosecution or proceeding shall be had or commenced, and not on the party complaining." By Stat. 7 & 8 Geo. IV. c. 49, s. 1, whenever any person 7 & 8 Geo - IV - shall have paid or shall pay the duty imposed for game certifi- p ersons w ho cates in Great Britain on persons, other than those acting by have P aid tn virtue of a deputation or appointment, he shall be exempt for the ce^ficates'in 6 period from the duties imposed in Ireland, and penalties in the G. B. exempt Acts relating thereto ; and persons paying the duty in Ireland j n 1,^^. * shall be exempt from the duty in Great Britain, paying the ^ .^ vers ^ difference only, which, by s. 2, Commissioners of Stamps in Ire- on paying the land may receive and stamp the certificate accordingly. difference. GRAIN. St. 58 Geo. III. c. 82, to prevent frauds in the sale of SALE OF grain. " Whereas divers .frauds are often practised by persons 5Q G ^ in Ireland selling, or offering to sale, wheat, rye, meslin, peas, c. 82. beans, barley, bere, oats, shillin, cutlings, meal, flour, and malt, J P revent fruuds in the by spoiling or adulterating the same, or producing to the view sale of grain. of the intended buyer a species of such corn, &c., of a quality superior to the bulk of that offered to sale," in order to deceive and defraud the buyer thereof, or the person to whom it is offered for sale, to prevent which, " if any person or persons Selling any in Ireland shall sell or offer to sale any of the said sorts of corn, fated, ^r not" grain, malt, meal, or flour, which shall in the whole or in part ec l ual to tn e be spoiled or adulterated by wetting or mixing therewith any ^g ^ r sand, gravel, dirt, or rotten or damaged corn, grain, malt, meal, deceit therein, or flour, or grown or blighted corn, or other kind of stuff, or which shall not. be in quality of equal goodness to that pro- duced to the view of the intended buyer or buyers thereof; or shall use any other fraud or deceit therein, or in order to make such corn, grain, malt, meal, or flour, appear heavier than it would have been without such mixture, fraud, or deceit; every Ixx APPENDIX. SALE OF person being lawfully convicted of any of the said frauds or de- ceits by the oath of one credible witness before any one J. P. or 58 Geo. III. . " . . c. 82. magistrate in any city or town corporate in Ireland, where such On conviction offence shall be committed, or before any two Js. P. in any of acU ne o^ ? * ^ aCe ^" * re l an( * not being a city or town corporate, where Js. P. eise- such offence shall be committed, shall for every such offence where. forfeit all such corn, grain, malt, meal, or flour, one-half thereof Forfeiture of to the use of the informer, and the other half to the use of the poor of the parish where such offence shall have been corn- Penalty, mitted, and also the sum of 40s., to be levied by distress and sale of such offender's goods ; one moiety of which said sum of 40s. shall be to the informer, and the other moiety thereof to use of the poor of the parish." See also 25 Geo. II. c. 15, Weights and Measures," post. GRAND JURY ACT. GKAND JUE Y By St. 6 & 7 Will. IV. c % 1 1 6, s. 49, any two Js. P. at Petty ACT * Sessions in any county may, under their hands and seals, order 6&7 Will. IV. ,. ' ' . , . c. 116 s. 49 an y sum not exceeding 20, to be expended in repairing any Two Js. P. at bridge, or anysum not exceeding 10, tobe expended in repairing ma ^makec ' an Y P u ^^ c roa d? or any pier or quay on the bank of any navi- der for repairs gable lake or river, now, or hereafter to be, built by Grand Jury presentment, which may be suddenly damaged; provided it shall appear upon the view of both of them, that the repairs of such bridge or road, or such pier or quay, cannot be delayed until the next assizes without prejudice to the public, and that the necessity of the same shall be notified to them by the county surveyor ; and it shall be lawful for such Js. to appoint a pro- per person or persons to repair the same." The expense to be levied by the Grand Jury at the next assizes, and paid to the person appointed by the Js. to make the repairs, upon production of such order of the Js., and the surveyor's certi- but not oftener ficate as herein. " Provided that the same Js. shall not make or sign more than one order for the expenditure of any sum for the reparation of the like sudden damage between the ter- mination of one assize and the commencement of another." Surveying new 58. Any person may survey new lines of road, and enter upon lands for that purpose, provided he be authorized by the certificate of the county surveyor, indorsed by two Js. P. APPENDIX. 1XXI 59. It shall be lawful for any two Js. P., upon the application of the county surveyor, to forbid any person or persons from g & 7 Will. IV. riding or driving any kind of beast or carriage on any new road c. 1)6. for such space of time as shall to them appear necessary, not Two Js * p * ma y , , %i i j order a new exceeding six months after such new road shall have been made ; roa( j not to b e and any person who shall wilfully disobey such order, the same used for a being duly notified by a notice affixed to a board or boards erected upon such road, shall be liable to be fined any sum not exceeding 20s. for each offence, to be imposed by any J. P., Penalty for dis- obeying order ; on his own view, or on the evidence or any one competent before one J. P. witness, and levied off the goods and chattels of such offender, by warrant under the hand and seal of such J." 129. " All contractors under this Act shall be liable to be Wages or summoned before the Js. assembled at any Petty Sessions, on complaint of the party aggrieved, for recovery of any wages contractor, or money payable to any person employed by them in the exe- may , reco " cution of such works, so as the sum demanded does not exceed sessions, 6 ; and such Js. so assembled are hereby required to hear such complaint and adjudicate thereon ; and it shall be no de- although not fence to such complaint that such contractor has not himself received any payment upon foot of his contract ; and the decision of such Js. shall be final ; and the sum adjudged to be due shall be levied by warrant of distress under hand and seal of any two such Js. off the goods and chattels of such contractor." 152. The person duly authorized to collect grand jury cess, Recovery of as soon as he shall have received the applotment shall collect ^* before a the same, and may distrain for non-payment ; and if the col- J. P. after a lector shall not think it expedient to proceed by distress, then 06 left as he "shall leave at the dwelling-house of the party, chargeable for, or in respect of, such premises, a notice bearing date the day and year of serving the same, subscribed with the name and abode of such collector, requiring payment of the sum applotted within six days from the date of such notice, and expressing that within six days the money demanded may be paid to the collector at his house or office ; and if such money be not paid within such time, it shall be lawful for such collector to prefer a complaint to J. P. for the county in which the party may reside ; and such J. shall summon the party so complained against, to appear before Ixxii APPENDIX. GRAND JUKY 7 wii TV c> n(j. ' Costs and levy, Indorsing war- Vehicles to keep the left side of the road, except when passing others j and in certain owner's name andhaveadou- ble rein. him and answer the said complaint, and shall, at the time specified * n suc ^ summons > examine into the matter of such complaint on oath, and shall direct the payment to such collector of such money as he shall find due and payable under such applotment by the party complained against, together with a sum certain as and for such reasonable costs and charges as to such J. shall seem meet ; and in default of the appearance of such party, or upon his or her refusal or neglect forthwith to pay the sum or sums so by such J. directed to be paid, it shall be lawful for such J., or for any J. P. for such county, to issue his warrant authorizing and empowering the said collector to levy the money thereby ordered to be paid by distress and sale of any goods or chattels of the party so complained against, which may be found within any part of such county, rendering the overplus, if any, to him or her, the necessary charges and ex- penses of distraining being thereout first deducted, as directed by such J. ; and if sufficient distress cannot be found within the same count y> then on oat{l thereof made before any J. P. of any other county in which any of the goods and chattels of such party shall be found, which oath such J. shall administer and certify by indorsing in his handwriting his name on the war- rant granted to make such distress," the distress and sale may be made of such goods, as if they had been found in the first mentioned county. 156. " The drivers of every kind and species of vehicle, ^ a jj p ersons riding or driving any animal or animals, laden or unladen, on any road, or in any street of any city or town, shall keep their left hand side of the road or street in going and coming thereon, leaving the other side free to all other passen- gers ; and when they may have occasion to pass any other persons going in the same direction with themselves, shall in all cases, where it is practicable, take and go on the right hand of SU ch persons ; and on every cart, car, or other carriage without springs, on any road upon which his Majesty's mails are conveyed in coaches, or any other road being a county road, the name and surname and residence of the owner of such vehicle, shall be painted in white Roman letters, one inch long at the least ; and every car or cart drawn by one horse, shall have a double APPENDIX. Ixxiii rein extending back to such car or cart ; and if any person shall GKAND JURY wilfully refuse or neglect to drive or pass in manner aforesaid, ACTt ., * .' 6&7Will.IV. or if any person shall drive any vehicle on any such road, c 116< whereon the name of the owner is not painted, or without a Offenders may double rein as aforesaid, it shall and may be lawful for any ma- carrieTtTfor^a gistrate, constable, or turnpike keeper to stop and detain such J. P. offender, and the vehicle and animal or animals on which or with which such offender shall be, and forthwith to carry or convey such offender before any J. P. for the county where such offence shall be committed, or for any person whatsoever to lodge information against such offender before any such J. ; and upon being convicted thereof, upon the oath of one credible witness, every such person so offending shall forfeit and pay Penalty, any sum not exceeding 5s., to be levied by distress and sale of Levy, the goods and chattels of such offender, or by distress and sale of the carriage and horse or horses, or other beasts, and the goods therein or thereon, wherewith such offender shall have been travelling at the time of such offence ; such distress to be made under the hand and seal of such J., rendering the over- plus, (if any), after deducting the said fine and expenses of such distress and sale, to the owner or owners, on demand; one-half of the amount of the penalties so levied to be paid to the informer, and the remaining half to the minister or curate of the parish in which such offence shall be committed, for the use of the poor of such parish ; and if distress sufficient for such penalty or penalties shall not have been seized or found, it shall and may be lawful for such J., and he is hereby empowered and required, to commit such offender so convicted to the common Commitment, gaol for any time not exceeding one calendar month, unless such offender shall sooner pay and satisfy the said penalty or penal- ties ; and every person offending as aforesaid, shall likewise be liable to pay and satisfy the damages which shall happen in con- Damages, sequence of any such neglect or default." 157. "No house or part of a house shall be built within No houses to thirty feet of the centre of any road, or within fifteen feet of dLan the side thereof, (except in the streets of corporate or market of the road, towns) ; and if any person shall offend herein, every such person shall upon conviction before any J. P. forfeit and pay the sum of k APPENDIX. GB AND JURY Penalty before one J. P. windmills how abated. What the cen- tre of the road. Beasts wander- Jwunded, and" owner fined, ' Levy by sale, as herein. Notice and posting thereof, Injuring ditches and drains by orVoTscouHng them after no- structingw'ater; 10, and the further sum of 20s. for every week after such conviction until the same shall be pulled down or removed." No limekiln or windmill shall be built within 100 feet of the centre of any public road ; and any Js. at a General Sessions of t jj e p eace mav direct any house, limekiln, or windmill, built or building contrary to this Act, to be pulled down, and issue orders to constables for that purpose, which order every chief and other constable shall assist in executing; "and the centre of tlle roa( j for tne p urpos e o f this Act shall be deemed to be the centre of the part thereof made with gravel or small stones." 158. It shall be lawful for any person whatsoever to seize an( * impound, or cause to be seized or impounded, any swine or beasts which shall be found wandering upon any public road, or about the streets or passages of any town, in case the owner thereof shall not be known ; and it shall be lawful for any J. P. to fine the owner of such swine or beast any sum not exceeding 2s., and in case such penalty, and the expenses of impounding and detaining the same when it shall be so impounded, shall not be paid within four days after imposing such fine, or after impounding the same, to cause such swine or beast to be sold, ^ out ^ ^ mone y ar i s i n g f rO m the sale thereof to pay such penalty, and the expenses of impounding, keeping, and selling the same, rendering the overplus (if any) to the owner, due notice having been previously given of such sale, in which shall be inserted the name of the parish and townland where such swine or beast was seized ; which notice shall be posted up in some conspicuous place in the parish where such beast was seized, and at the place where impounded, forty-eight hours at the least before the time of sale." 159. If any person shall scour, deepen, widen, or fill up, an y ditch or drain by the side of any road, without the con- sent or direction of the county surveyor ; or if the owner or occupier of any lands contiguous to any public road, shall omit to scour anv ditch or drain leading from such road, so as to al- low the water to pass away, within ten days after notice shall have been given to him or her so to do by such surveyor, or by the contractor for the repairs of such road, or shall suffer the passage of the water to be obstructed by making or leaving APPENDIX. Ixxv any way or passage from any road into the lands adjoining GRAND JURY ^j to his or her house, without a sufficient pipe, sewer, or gul- let underneath it; or if any person shall ride or drive any horse, beast or cattle of any description, willingly and unnecessarily on any footpath ; or shall steep or dry any driving on the flax, or burn any bricks or lime, or any weeds or vegeta- P athwa y > bles for ashes, upon any public road, or within thirty feet JJjJJJJJJJ^ of the centre of any such public road ; or shall make any nuisances on kind of fire upon any public road ; or shall cut any turf or or near r make any turf stack upon any public road, or within thirty feet of the centre thereof; or build any wall, or make any ditch, or dig any pit or drain on any public road, or within thirty feet of the centre thereof, unless by authority of a presentment ; or shall lay any dirt, dung, turf, straw, rubbish, or scourings of any ditches or drains, or any stones, bricks, timber, sand, clay, or lime, on any public road, or within thirty feet of the centre thereof; or shall leave on any public road any plough or harrow, or any cart, car, dray, or other carriage, without the horse or horses or other beast or beasts being harnessed thereto, unless such carriage shall have been accidentally broken down there ; or shall spread any linen, blanket, or cloth for winnow- ing corn within thirty feet of the centre of any public road ; or shall leave any dead beast on any road, or within thirty feet of the centre thereof, unless in a house or yard inclosed with walls ; or shall beat any flax, or thrash or winnow any corn, or erect any May-pole or May-bush, or signpost, on anyroad; or shall keep any cur, dog, mastiff, or bull dog, without having or having dogs a block of wood of the weight of five pounds at the least, fastened taking clay, at the neck of such dog, within fifty yards of any public road ; &c - ; r having or shall, without the consent of such surveyor or contractor, peril leaded- scrape any public road, or cut away sods or turf on the side of any such road, or take any earth, clay, stone, or gravel there- from ; or shall lead or drive any car or carriage with timber, boards, or iron laid across, so as that either end shall project two feet beyond the wheels or sides thereof; or shall draw any timber or stones along any part of a public road, without being supported by wheels from touching the same ; every person so On conviction offending shall, upon conviction by oath of one credible wit- before one J - p< ness, before any J. P. within his jurisdiction, or upon the view Ixxvi APPENDIX. GRAND JURY ACT. 6 &7 Will. IV. C. 116. How such nui- sances and ne- glect may be remedied, and expenses thereof levied. Surveyors and contractors leaving rubbish, &c., on roads ; penalty. Surveyors and contractors may require owners of any justice, forfeit and pay a sum not exceeding 20s., for every such offence ; and it shall be lawful for any such sur- veyor or contractor to fill up any such ditch or drain which shall be scoured, deepened, or widened, or to scour any drains which have been filled on the side of any road, without such direction or consent, and to scour and deepen any drain or ditch leading from any road which shall be omitted to be scoured or deepened after such notice as aforesaid, and to remove any way or passage from any road into any adjoining land, or to any house which may obstruct the free passage of the water, and to remake the same by building a gutter, sewer, or arch therein ; and it shall be lawful for any such surveyor or for any other person by the order of any J. P. or any such surveyor, to remove any bricks, or weeds, or vegetables for making ashes, or other materials, which shall be burning, or any flax which shall be steeped or drying, contrary to the pro- visions of this Act, and to pull down any signpost, May-pole, May-bush, or to pull down, or fill up and level any wall, drain, or ditch which shall be built or made, or begun to be built or made contrary to this Act, and to remove the carcase of any dead beast which shall remain in or near any public road con- trary to this Act, and to levy the expense of so doing by dis- tress and sale of the goods of the offender, or of the occupier of the lands adjoining the place where such nuisance shall be committed, rendering the overplus (if any) to the owner, after deducting the sum of Is. in the pound, for the expense and trouble of taking such distress." 160. If any county surveyor, or any contractor for any public work under this Act, " shall lay or cause to be laid any heap of stones, gravel, rubbish, or other matter whatsoever, upon any public road, and allow the same to remain there at night, to the danger or personal damage of any person passing thereon, all due and reasonable precaution not having been taken by the said surveyor or contractor to prevent any such danger or damage, such surveyor or contractor shall forfeit for every such offence, any sum not exceding 40s." 161. " If any county surveyor or contractor for the re- pairing of any public road in any county shall think that such APPENDIX. Ixxvii road is prejudiced by the shade of any hedges or trees (except OEAKD JURY those planted for ornament or shelter of any dwelling-house, g & ^ ^ ^ court-yard, or garden), or if any obstruction is caused in any c> 116> public road by any hedge or tree, it shall be lawful for such to prune hedges surveyor or contractor, and they are hereby each or either of and trees m- . , luring the road. them authorized, to require the owner of the land on which J Ownersneglect- such hedges or trees are growing to cause such hedges to be i ng roay be cut or plashed, or such trees to be pruned or lopped, so as summoned to v i r , , j i A i Petty Sessions, that such road may not be prejudiced or obstructed by the and Js> may same ; and if such owner shall not comply with such request order the cut- within ten days, it shall and may be lawful for such surveyor owners neglect, or contractor, and they are hereby respectively authorized the surveyor, and required to summon such owner before the Js. assembled tnenai . at any Petty Sessions for such county, to show cause why he has not complied with such request ; and if such Js. shall or- der and direct that such hedges shall be cut or plashed, or such trees pruned or lopped, and if the said owner shall not obey such order within ten days after the making of the same, it shall be lawful for such surveyor or contractor to cut or plash such hedges, or to prune or lop such trees, for the be- nefit and improvement of such road, and to remove such ob- struction to the best of their skill and judgment; and the said surveyor or contractor shall be reimbursed by the said owner what charges and expenses he shall be at in cutting or plashing such hedges, or pruning or lopping such trees; and Expenses, how it shall be lawful for such Js. at Petty Sessions to direct such Ievled - charges and expenses to be levied by distress and sale of the goods and chattels of such owner in such manner as other distresses and sales for forfeitures are authorized and directed to be levied by virtue of this Act ; provided that no person At what sea- shall be compelled, nor any such surveyor or contractor per- son ' mitted to cut or prune any hedge at any other time than be- tween the last day of September and the last day of March." 162. Every county surveyor or contractor for any work to Surveyors, &c. f be executed by Grand Jury presentment, may dig for and mav dl S for carry away from any lands (not being a deer park, bleach- have damage green, orchard, walled garden, haggard, or yard, or planted assessed, walk, lawn, or avenue to a mansion-house,) any gravel, stone, Ixxviii APPENDIX. GRAND JURY ACT. 6&7 Will. IV. c. 116. by three house- holders, sworn by a J. P.; and if entry is against occu- pier's will, un- der order of a J.P. Materials not to be taken so as to injure roads, buildings, &c. or other materials, whether in the same or an adjoining county, wanted for building, enlarging, or repairing any bridge, arch, gullet, pipe or wall, or making or repairing a road or footpath; and may make drains for carrying off water from such bridge, &c., or such road, through any lands (not being a deer park, &c., as above;) and shall make satisfac- tion for any damage, to be assessed by three substantial house- holders, who shall view the ground before and after the damage is committed, one to be named by the owner or oc- cupier of the land, another by the surveyor or contractor, and the third by any neighbouring J. P. ; and if the surveyor or contractor shall refuse, or after four days' notice in writing neglect, to name a householder on his part, one shall be named for him by such J. P. ; " and such three householders shall be sworn by such J. P. (previous to the damage being committed) to be appraisers of such damages as may occur, and to make a true estimate thereof, in which estimate the value of any stones, gravel, or other materials shall not be included, but only the waste, committed by breaking the surface and making a passage through the land, unless where such stones, &c., shall be taken from any quarries or gravel pits bona fide de- mised with liberty to work the same." But such surveyor or contractor shall not so enter any lands against the occupier's will, without a previous order of a J. P., " which order any such J. is hereby required to grant on its being proved to his satisfaction, that the gravel, stones, or other materials sought cannot be conveniently procured elsewhere, nor such drain otherwise sufficiently made or cleansed." 163. " It shall not be lawful for any such surveyor or contractor to dig, raise, and carry away any gravel, stones, sand or other materials from the side of any public road, or from any beach or seashore, whereby a public road, or bul- wark or defence to any building or any land adjoining any road, may be injured; and any person who shall be con- victed thereof, on the oath of one or more witnesses, before any J. P., shall for every such offence forfeit a sum not ex- ceeding 5s. for^every cart load of such gravel, stones, sand, or other materials so dug, raised, or carried away, to be levied, APPENDIX. 4 by warrant of distress under the hand and seal of such J. off GRA.ND JURY the goods and chattels of such offender." 164. "If any person shall wilfully prevent, assault, or g*^'* 1 * 1 ^ threaten to assault any surveyor or contractor in the execution Assaulting or of his duty, or any person or persons employed by proper au- interrupting thority in surveying or measuring, or laying out any line * urve y rs * intended for a new road ; or if any person shall wilfully destroy, as herein, pull up, deface, or injure any surveyor's instruments or imple- ments used in public works, or any milestone, mile-post, or direction post, or any bridge, battlement, wall, railing, mound, or fence erected or repaired by presentment, or shall wilfully break, deface, pull down, or take away stones out of any such battlement, wall, mound, or fence, or out of any Court-house, gaol, House of Correction, pier, or other buildings, or out of any bridge, pipe, arch, or gullet, built or repaired bv presentment ; every person so offending shall forfeit arid pay for every such Penalty at offence, upon conviction by the oath of one witness before any ty Sessions. two Js. P. at Petty Sessions, such sum not exceeding 10 as the said J. shall think fit ; and in case the same shall not be paid, such Js. are hereby empowered and required to commit such offender to any gaol, Bridewell, or House of Correction for any time not exceeding three months, or until the said forfeiture shall be paid." 169. "All fines and forfeitures inflicted by virtue of this Penalties may Act, if not immediately paid, shall be levied by distress and Jj^ en [ ( ! r . ced by sale of the offender's goods, by warrant under the hand and seal of a J. P., together with all expenses attending the levying the same ; and all such fines, unless otherwise specially directed, -Application shall when levied and paid be given, one-half to the informer, and the other half to such dispensary, hospital, or infirmary as the J. shall direct ; and in case any fine be not immediately paid upon conviction, or within such time as the J. shall appoint, it shall be lawful for the J. P. before whom such conviction Commitment. shall have been made to commit the offender to gaol for any time not exceeding two months, or until the fine be paid." 170, 171. For protection of persons executing the Act. 172. It shall not be lawful for any J. P. or any other person ,, J No fees for affi- to demand or take any sum of money for swearinor any affidavit davits. Ixxx APPENDIX. GRAND JURV ACT. 6&7 Will. IV. c. 116. Notice, &c., good, though informal. HARBOURS. 54 Geo. III. c. 150. Ports and har- bours where regulations are established by the Admiralty. Throwing rub- bish into the water. Manner in which ships may unlade their ballast. Ballast to be cast on shore from the side of the ship near- est to the land. under this Act. 174. No notice, recognizance, warrant or other proceeding whatever under this Act, shall be impeached on technical or formal grounds, provided it be in substance con- formable to the provisions of this Act. HARBOURS. Stat. 54 Geo. III. c. 159, for the regulation of the ports, harbours, navigable rivers, &c., in the United Kingdom, and of his Majesty's moorings and stores therein, contains provisions in the first ten sections as to ports, harbours, &c., where the Admiralty shall establish, and have posted in conspicuous places, regulations as to the King's moorings, breaming ships, landing gunpowder, having guns shotted, prohibiting sweeping for the King's stores, and giving certain powers to harbour masters ; but as the enforcement of penalties under these sections is seldom necessary, they are here omitted. 11. Imposes a penalty on persons owning or commanding private or merchant vessels, or working quarries, pits, or mines, throwing ballast or rubbish into, or where it may be washed into, the sea in such harbours, &c. 12. " For the more effectually preventing such injuries, no ship or vessel, lighter, barge, boat, or craft whatsoever, shall unlade on any part of the shore (except on some wharf properly constructed for the purpose) any ballast, stone, slate, gravel, earth, rubbish, wreck, or filth, except at the time of high water, or within two hours before or two hours after highwater ; and for every such purpose, every such ship or vessel, &c., shall ap- proach the shore, as far as the tide and the draught of water of such ship, vessel, &c., will admit, and shall, under no circum- stances, and in no situation, deposit any of the said matters below lowwater-mark at neap tides ; and every vessel drawing above eleven feet of water at the stern, shall unlade all such mate- rials into some lighter, barge, or boat, as hereinbefore directed, in order that the same may be conveyed as near the shore as possible at the time of highwater." 13. " All such ballast and other matter shall, in all the abovementioned cases, be cast on shore, from the side of the ship, lighter, barge, boat, or other craft, which shall be nearest to the land, and not otherwise ; and every person who shall offend in any of the above particu- APPENDIX. l.XXXi lars shall, for every such offence, forfeit and pay a sum not HAKBOURS. exceeding 10 over and above all expenses which may be in- curred in removing to a proper place the said matters" deposited p enalt " contrary to the provisions of this Act ; such expenses to be recoverable in the same manner as penalties or forfeitures under this Act. 14. To prevent damage to the shores or banks of ports and Penalty on harbours, no person shall take any ballast or shingle from the J shores or banks, or any portion of the shores or banks of any i n harbours. port, harbour, or haven, from which the Admiralty by order as herein, published in the London Gazette, shall prohibit the taking or removing of such shingle or ballast ; penalty 10. 15. " In the taking of ballast into any ship or vessel, lighter, Tarpaulins to barge, boat, or other craft, and also in the discharging of the same ^k^ in and from any ship or vessel, into any lighter,' boat, barge, or other discharging craft, every such ship or vessel, lighter, barge, boat, or other craft, shall be provided with, and shall make use of, one or more tarpaulin or tarpaulins properly stretched and spread, in order to prevent such ballast or any part thereof from falling into the sea, or into any harbour, haven or navigable river ; and in case any person or persons shall either take any ballast into any ship or vessel, lighter, barge, boat, or other craft, or shall discharge the same from any ship or vessel into any lighter, barge, boat, or other craft, without using such sufficient tarpaulin or tarpau- lins, properly stretched and spread, in order to prevent such ballast or any part thereof from falling into the sea, or into any such harbour, haven, or navigable river ; all and every person and persons offending therein shall for every such offence forfeit and pay the sum of 5." 16. The Admiralty may grant licenses for dispensing with Licenses dis- the foregoing provisions relative to ballast. pensing with 17. Vessels sunk or stranded, after 28 days' neglect of owner I^TtoTa* last!" to raise them, may be weighed and raised under orders of bar- Raising sunk bour master, or commissioner of the navy. 18. Harbour mas- vessels. ter, &c., indemnified for acting under this Statute. 19. On neglect of harbour master, &c., for 2 months, owner may raise the vessel. 20. Commissioners of the navy residing at any port Commissioners 1 XXX11 APPENDIX. HARBOURS. 54Geo. III. s. 159. of navy may act as Js. P. Recovery of penalties. Warrant. Extent of juris- diction of com- missioners and Js. P. Form of con- viction. near the place where any offence against this Act is committed, may act as Js. P. thereunder. 21. All penalties and forfeitures under this Act shall be sued for within 12 calendar months, next after the offence is committed, before any commissioner of the navy or J. P. re- siding at or near to the place where it is committed ; and be applied one moiety thereof to the use of his Majesty, his heirs, and successors, and the other moiety, with full costs to be adjudged, to the informer; such commissioner, or J. P., is re- quired, upon information exhibited or complaint made, to grant and issue his warrant in writing under his hand, to bring before them respectively such offender or offenders at the time and place in such warrant specified ; if on conviction such penalty or forfeiture, with such costs, shall not be forthwith paid, such com- missioner or J. P. may commit any such offender to the common gaol or house of corrrection for the county, city, or borough, at or near the place where the offence is committed, there to remain without bail or mainprize for any time not exceed- ing 3 months, unless such penalty and costs be sooner paid. 22. Reciting, that ports, &c., may lie in different counties, or out of the body of the county, which may occasion doubts as to jurisdiction ; it shall be lawful for any commissioner of the navy, residing at or near to any port, &c., or any J. P. for any county, city, or borough, acting in and for any district or place next adjoining to any such port, harbour, haven, road, roadstead, sound, channel, creek, bay, or navigable river, or any member of any of them, where any such offence may be committed, to proceed under this Act, as if such offence had been committed locally within the limits of their jurisdiction. 23. Convictions may be drawn up in the following form, or in any form of words to the like effect, mutatis mutandis : " BE it remembered, that on the day of in the year of our Lord A. B is convicted before me one of the Commissioners of the Navy, [or one of his Majesty's Justices of the Peace for the of as the case may be"] for that the said A. B. on the day of at did [here state the offence against this Act\ contrary to the Statute in APPENDIX. Ixxxiil such case made and provided. Given under my hand and seal HARBOURS. the day and year first above written." 54Geo. 111. Conviction to be fairly written upon parchment or paper, and returned to the next Quarter Sessions; and shall not be re- moved by certiorari. 24. " If any person or persons shall be summoned as a wit- Punishing wit- nesses not ness or witnesses to give evidence before any such commissioner attending or J. or Js. P., touching any of the matters relative to this Act, either on the part of the informer or prosecutor, or of the party or parties accused, and shall neglect or refuse to appear at the time and place to be for that purpose appointed, without a rea- sonable excuse for such neglect or refusal, to be allowed by such commissioner or J. or Js. P., before whom the complaint or prosecution shall be depending, every such person shall forfeit for every such offence the sum of 10," to be recovered and applied as fines on summary conviction, under this Act. 25. False swearing hereunder, perjury. 26. Persons convicted may, within 3 calendar months next Appeal, after such conviction, appeal to the Quarter Sessions, " first giving 10 days' notice of such appeal to the person or persons appealed against, and of the matter thereof, and entering into a recognizance before some commissioner of the navy, or J. P., for such county, city, or place, with 2 sufficient sureties con- ditioned to try such appeal, and for abiding the determination of the court therein." 27. Limitation of actions 6 months, venue local, general Protection of issue, treble costs, &c. P ersons e , x ' A ecutingthe Act. 28. Nothing in this Act shall extend to prejudice, abridge, g vino . ^^ or alter, any right of property, privilege, or jurisdiction, or any rights, powers of conservancy, exercised or enjoyed by any body corporate or politic, or lord or lady of a manor, or any per- son whatsoever, in, or over, any ports, harbours, bays, rivers, &c., or to the banks, shores, or sides thereof; or to repeal any of the provisions contained in any Act passed, for the regulation of any river, port or harbour, in the United Kingdom, or the Former Stats, shipping frequenting the same, except such as are expressly re- pealed; but such respective rights and powers shall continue as if this Act was not made. APPENDIX. I-ARCENY. 9 Geo. IV. Possessing shipwrecked - goods offered for sale may be restored to owner by J. P. on payment of Offering such two Js. P., penalty. Stealing deer Suspected per- S ss ss" nd T venison, &c,, LARCENY. Stat. 9 Geo. IV. c. 55, s. 19, imposes a penalty for the improper possession of shipwrecked goods ; see this sect. ante, p. 254. Sect. 20, " if any person shall offer or ex- p 0se f or sa j e> an y goods, merchandize, or articles what- soever, which shall have been unlawfully taken, or reasonably suspected to have been taken, from any ship or vessel in distress, or wrecked, stranded, or cast on shore, as afore- . . . 8a *a, m every such case any person to whom the same shall be offered for sale, or any officer of the Customs or Excise, or peace officer, may lawfully seize the same, and shall with all convenient speed carry the same, or give notice of such seizure to some J. P. ; and if the person who shall have offered or exposed the same for sale, being duly summoned by such justice, shall not appear and satisfy the J. that he came lawfully by such goods, merchandize or articles, then the same shall* by order of the J. be forthwith delivered over to or for the use of the rightful owner thereof, upon payment of a reasonable reward, to be ascertained by the J. to the person who seized the same ; and the person hav- in & offered sucl1 goods, merchandize, or articles for sale, shall on conviction of such offence before any two Js. P., forfeit an d p av the amount of such reward so ordered, and also such sums of money not exceeding 30, as to such two Js. shall seem meet." 26. " If any person shall unlawfully and wilfully course, hunt, snare j or carry away, or kill or wound, or attempt to kill or wound, any deer, kept, or being in any park, paddock, or inclosed land wherein deer shall be usually kept, every such offender shall for every such offence, upon conviction thereof before any two Js. P., forfeit any sum not exceeding 30." 27. " If any deer, or the head, skin, or other part thereof, r anv snare or en gine for the taking of deer, shall by virtue of a search warrant to be granted as hereinafter mentioned, be found in the possession of any person, or on the premises of any person with his knowledge, and such person being carried be- APPENDIX. Ixxxv fore a J. P., shall not satisfy the J. that he came lawfully by LARCENY. such deer, or the head, skin, or other part thereof, or that he 9 Geo ' IV. had a lawful occasion for such snare or engine, and did not keep the same for any unlawful purpose, he shall, on conviction by the on conv j ct ; on J., forfeit and pay any sum not exceeding 20 ; and if any such by one J. P., person shall not, under the provisions aforesaid, be liable to con- *" J^ viction, then for the discovery of the party who actually killed or If no conv | c . stole such deer, it shall be lawful for the J., at his discretion, as tion, others rcay the evidence given and the circumstances of the case shall re- as j, ere j n quire, to summon before him any and every person, through whose hands such deer, or the head, skin, or other part thereof shall appear to have passed ; and if the person from whom the same shall have been first received, or any person who shall have had possession thereof, shall not satisfy the J. that he came law- fully by the same, he shall on conviction by the J., be liable to the payment of such sum of money as is hereinbefore last men- tioned." 28. " If any person shall steal any dog, or shall steal any | teal J g b d J f beast or bird ordinarily kept in a state of confinement, not be- ordinarily con- ing the subject of larceny at common law, (ante, p. 420,) every fined but not such offender being convicted before two Js. P., shall, for the i arce ny. first offence, forfeit and pay the value of the dog, beast, or bird Conviction by and also such sum of money, not exceeding 20, as to such J. two Js - p> '> P e ' . . nalty first of- shall seem meet ; and if any person so convicted thereof shall f en ce. afterwards be guilty of any of the said offences, and shall be con- Subsequent victed thereof in like manner, every such offender shall be com- offences ' mitted to the common gaol or House of Correction, there to be kept to hard labour for such term, not exceeding 12 calendar months, as the convicting Js. shall think fit." 29. " If any dog, or any such beast, or the skin thereof, or Persons in 11-1 oii PI P i whose posses- any such bird, or any of the plumage thereof, shall be found in s i on suc j, jogs, the possession or on the premises of any person, by virtue of a &c - are found, search warrant to be granted as hereinafter mentioned, the J. v j c ted . anc | tne by whom such warrant shall be granted may restore the same property re- respectively to the owner thereof ; and the person in whose pos- session, or on whose premises the same shall be so found (such person knowing that the dog, beast, or bird has been stolen, or that the skin is the skin of a stolen dog or beast, or that the Lxxxvi APPENDIX. LARCENY. 9 Geo. IV. c. 55. Stealing trees, &c., wherever growing, of va- lue Is. Conviction be- fore two Js. P., penalty first of- fence. Second offence, Stealing, &c., any fence, stile, or gate. Conviction by two Js. P., pe- nalty first of- fence. Subsequent offence. Suspected per- sons found in possession of wood. plumage is the plumage of a stolen bird), shall, on conviction before two Js. P., be liable for the first offence to such for- feiture, and for every subsequent offence to such punishment as persons convicted of stealing any dog, beast, or bird are herein- before made liable to." 31. Stealing trees, &c., when the offence is felony, ante, p. 440. 32. ' If any person shall steal, or shall cut, break, root up, or otherwise destroy or damage with intent to steal, the whole or any part of any tree, sapling or shrub, or any un- derwood, wheresoever the same may be respectively growing, the stealing of such article or articles or the injury done being to the amount of Is. at the least, every such offender being convicted before two Js. P., shall for the first offence forfeit and pay the value of the article or articles stolen, or the amount of the injury done, and also such sum of money not exceeding 5, as to the Js. shall seem meet ; and if any person so convicted shall afterwards be guilty of any of the said offences, and shall be convicted thereof in like manner, every such offender shall for such second offence be committed to the common gaol or House of Correction, there to be kept to hard labour for such term not exceeding 12 calendar months, as the convicting Js. shall think fit." Third offence, felony ; ante, p. 440. 33. " If any person shall steal, or shall cut, break, or throw down, with intent to steal, any part of any live or dead fence, or any wooden post, pale, or rail, set up or used as a fence, or any stile or gate, or any part thereof respectively, every such offender, being convicted before two Js. P., shall, for the first offence, forfeit and pay the value of the article or articles so stolen, or the amount of the injury done, and also such sum of money not exceeding 5, as to the Js. shall seem meet ; and if any person so convicted shall afterwards be guilty of any of the said offences, and shall be convicted thereof in like manner, every such offender shall be committed to the common gaol, or House of Correction, there to be kept to hard labour for such term, not exceeding 12 calendar months, as the convicting Js. shall think fit." 34. " If the whole or any part of any tree, sapling, or shrub, or any underwood, or any part of any live or dead fence, or any post, pale, rail, stile, or gate, or any part thereof, being of APPENDIX. the value of 2s. at the least, shall by virtue of a search warrant, LARCENY. to be granted as hereinafter, be found in the possession of any 9 Ge - IV. person, or on the premises of any person with his knowledge, and i i / T -r 11 Conviction such person, being carried before a J. or Js. P., shall not satisfy by one or more the J. or Js. that he came lawfully by the same, he shall, on Js - p -> conviction by the J. or Js., forfeit and pay the value of the penalty, article or articles so found, and also any sum not exceeding 2." 35. " If any person shall steal, or shall destroy or damage, Stealing, &c., with intent to steal; any plant, root, fruit, or vegetable produc- J^g ^ ^ e | ^ tion, growing in any garden, orchard, nursery ground, hothouse, den, greenhouse or conservatory, every such offender being convicted Conviction by thereof before a J. or Js. P. shall at the discretion of the J. or Js p Js., either be committed to the common gaol or House of Cor- penalty, first of- rection, there to be imprisoned only, or to be imprisoned and e kept to hard labour for any term not exceeding six calendar months, or else shall forfeit and pay the value of the article or articles so stolen, or the amount of the injury done, and also such sum of money not exceeding 20 as to the J. or Js. shall seem meet." Subsequent offences felony, ante, p. 417. 36. " If any person shall steal, or shall destroy or damage Stealing, &c., with intent to steal, any cultivated root or plant used for the roots or ve g eta ~ ,. . bles, not in a food of man or beast, or lor medicine, or for distilling, or for garden. dyeing, or for or in the course of any manufacture, and growing in any land, open or inclosed, not being a garden, orchard, or conviction by nursery ground, every such offender, being convicted before two Js. P., two Js. P., shall at the discretion of the Js., either be committed to the common gaol or House of Correction, there to be im- prisoned only, or to be imprisoned and kept to hard labour for any term not exceeding one calendar month, or else shall for- P enalt y first of- feit and pay the value of the article or articles so stolen, or the amount of the injury done, and also such sum of money not exceeding 20s., as to the Js. shall seem meet ; and in default of payment thereof, together with the costs (if ordered) shall be committed as aforesaid for any term not exceeding one calendar month, unless payment be sooner made ; and if any person so con- Subsequent victed shall afterwards be guilty of any of the said offences, and shall be convicted thereof in like manner, every such offender shall be committed to the common gaol or House of Correction, Ixxxviii APPENDIX. LARCENY. 9 Gco. IV. c. 55. Receivers of property pu- nished as origi- nal offenders. Abettors pu- nished as prin- Limitation. Evidence of party ag- grieved. On complaint on oath before one J. P. sum- mons may issue. Service. Proceedings ex parte. Warrant. there to be kept to hard labour for such term not exceeding six calendar months, as the convicting Js. shall think fit." 53. " Where the stealing or taking of any property whatso- ever is by this Act punishable on summary conviction, either for every offence, or for the first and second offence only, or for the first offence only, any person who shall receive any such pro- perty, knowing the same to be unlawfully come by, shall on conviction thereof before a J. or Js. P., be liable for every first, second, or subsequent offence of receiving, to the same forfeiture and punishment to which a person guilty of a first, second, or subsequent offence of stealing or taking such pro- perty, is by this Act made liable." 55. {< If any person shall aid, abet, counsel, or procure the commission of any offence which is by this Act punishable on summary conviction, either for every time of its commission, or for the first and second time only, or for the first time only, every such person shall, on conviction before a J. or Js. P., be liable for every first, second, or subsequent offence of aiding, abetting, counselling, or procuring, to the same forfeiture and punishment to which a person guilty of a first second or subse- quent offence as a principal offender is by this Act made liable.'* 57. ** The prosecution of every offence punishable on sum- mary conviction under this Act, shall be commenced within 3 calendar months after the commission of the offence, and not otherwise; and the evidence of the party aggrieved shall be admitted in proof of the offence." 58. To facilitate prosecution, " where any person shall be charged on the oath of a credible witness before any J. P. with any such offence, the J. may summon the person charged to appear ata time and place to be named in such summons ; and if he shall not appear accordingly, then upon proof of the due service of the summons upon such person, by delivering the same to him personally, or by leaving the same at his usual place of abode, the J. may either proceed to hear and deter- mine the case ex parte, or may issue his warrant for apprehend- ing such person, and bringing such person before such J. or some other J. or Js. P. ; or it shall be lawful for the J. before whom the charge shall be made (if he shall so think fit) without any APPENDIX. IXXXIX previous summons, (unless where otherwise specially directed), LARCENV. to issue such warrant: and the J. or Js. before whom the person 9 Geo * lv * c 55 charged shall appear or be brought shall proceed to hear and determine the case. 59. Every sum of money which shall be forfeited for or Application of r. ,- monies when as the value of any property stolen or taken, or tor or as me assesse( j f or t j, e amount of any injury done (such value or amount to be as- injury, sessed in each case by the convicting J. or Js.), shall be paid to the party aggrieved, if known, except where such party shall have been examined in proof of the offence, and in that case, or where the party aggrieved is unknown, such sum Wnen a P e ' shall be applied in the same manner as a penalty ; and every sum which shall be imposed as a penalty by any J. or Js. P., whether in addition to such value and amount or otherwise, shall be paid under the order of such J. or Js. to the treasurer or other proper officer of the infirmary for the use of such infirmary, or if there be no infirmary, to such other public charity within the county, town, or place as the J. or Js. shall by their order direct, and see ante, p. 94 ; provided that But party ag- when several persons shall join in the commission of the ^"^^^ same offence, and shall, upon conviction thereof, each be ad- one offender judged to forfeit a sum equivalent to the value of the property onl y* or to the amount of the injury done, in every such case, no fur- ther sum shall be paid to the party aggrieved than that which shall be forfeited by one of such offenders only, and the cor- responding sum or sums forfeited by the other offenders shall be applied in the same manner as a penalty. 60. Any J. P. by or before whom any conviction is J. P. may re- made under this Act, may receive any forfeiture or penalty or money payable as such hereunder to the treasurer or officer of any public charity, and give a receipt therefor, specifying and give re- therein the name or description of such infirmary or charity ; CG1 P t * which receipt shall be a sufficient discharge to the party paying. Such J. P. within 1 4 days shall pay the amount to the officer of the charity, and take receipts specifying the time when and person by whom such money was paid to such J. P. and such J. P., or his clerk, shall keep an account in a book, Account of containing the amount of every sum so received, the place, m XC APPENDIX. LARCENY. time, and manner of the adjudication and offence for which it Geo, c. 55. Geo. IV. was paj^ the name of the offender, and the name and descrip- tion of the infirmary or other charity, and the treasurer, or officer thereof to whom it was paid ; and transmit, 14 days be- fore the commission day of the Spring and Summer Assizes each year, to the Clerk of the Peace, an account in writing stating the several penalties, &c., imposed hereunder by such J., since 14 days before the last assizes, showing which have been received by such J. from whom and for what, and to whom they have been paid, with the dates of the receipts ; To be open to and see 6 & 7 Will. IV. c. 67, s. 3, 10, ante, pp. 90, 94. 61 * Such accounts sha11 be P roduced to the treasurer or other proper officer of the infirmary or other charity to inspect at all seasonable times at his desire, for ascertaining whether any, and what, sums are due. 62. Clerk of the Peace to make an abstract of such accounts, and post them on court- Penalty for re- house door, and insert them in a newspaper. 63. Penalty on Busing receipt, j p or refusing to give receipt, or for neglect in any of the foregoing duties, 100. Commitment in 64. In every case of summary conviction under this ment l aonce" Act wbere the sum forfeited for tlie value of the property or in a specified stolen or amount of the injury done, or which shall be im- time> posed by any J. or Js., together with the costs, if award- ed, " shall not be paid either immediately after the convic- tion or within such period as the J. or Js. shall at the time of conviction appoint, (which he or they is and are hereby au- thorized to appoint), it shall be lawful for the convicting J. or Js. (unless where otherwise specially directed) to commit the offender to the common gaol or House of Correction, there to be imprisoned only or imprisoned and kept to hard labour, according to the discretion of such J. or Js., for any term not exceeding 2 calendar months, when the amount of the when sum un- sum forfeited or penalty imposed, or of both (as the case may der 5 ; |j e j together with the costs, shall not exceed 5 ; and for any term not exceeding 4 calendar months where the amount of such forfeiture or penalty, or both, as the case may be, under 10; together with costs, shall exceed 5, and shall not exceed .10; and for any term not exceeding 6 calendar months APPENDIX. XC1 in any other case ; the commitment to be determinable in each LARCENY. of the cases aforesaid, upon payment of the amount and costs." c> 5 |' 65. ' Provided that where any person shall be summarily i n ot h er cases ; convicted before any J. or Js. P., for any offence against this but for first of- Act, and it shall be a first conviction, it shall be lawful for the f ^ ce ^ ' J. or Js. if he or they shall so think fit, to discharge the of- offender making fender from his conviction upon his making such satisfaction satisfaction, to the party aggrieved for damages and costs, or either of them, as shall be ascertained by such J. or Js." 66. Lord Lieutenant, &c., may pardon any person impri- Pardon, soned hereunder. 67. If a person convicted shall have paid the sum adjudged Conviction a to be paid, together with costs if awarded, or shall have Q *^ roceed- received a remission thereof from the Crown, or shall have suf- ing tor same fered imprisonment awarded for the nonpayment, or been im- c prisoned in the first instance and then pardoned, he shall be released from all other and further proceedings for the same cause. 68. Conviction may be drawn up in the following form of Form of con- words, or any other form to the same effect, as the case shall Vlctlon> require, viz. : " Be it remembered, that on the day of in the year of our Lord at in the county of [or city, town, or place, as the case may be~] A. O. is convicted before me J. P., one of his Majesty's justices [or before us J. P. and S. L. justices] of the peace for the said county, [or city, &c.], for that he, the said A. O. did, [specify the offence and the time and place, when and where the same was committed, as the case may be, and on a second conviction, state the first convic- tion,] and I, the said J. P. [or, we the said J. P. and S. L.,] do adjudge the said A. O. for his said offence, to be imprisoned in the [or, to be imprisoned in the and there kept to hard labour,] for the space of [or, to forfeit and pay here state the penalty actually imposed, or state the penalty, and also the value of the articles stolen, embezzled, or taken, or the amount of the injury done, as the case may be,~\ and [in any case where the costs shall be awarded^ also to pay the sum of for costs ; and in default of immediate payment of the said sum [or sums J to be imprisoned in the [or, to be imprisoned in the XC11 APPENDIX. LARCENY. 9 Geo. IV. c. 55. One J. P. issu- ing summons and enforcing penalty, &c. Conviction so to state. Appeal. Notice and re- cognizance. and there kept to hard labour], for the space of unless the said sum [or sums] shall be sooner paid ; [or and I, or we] order that the said sum [or sums] shall be paid by the said A. O. on or before the day of .and I, [or, we] direct that the said sum of [i. Q. the penalty only] shall be paid to of in the county, [or, city, town, or place, as the case may be,'] to be by him, [or them] applied, according to the directions of the Statute in that case made and provided, [or that the said sum of [i. e. the penalty only] shall be paid to [&c., as before] and that the said sum of [i. e. the value of the articles stolen, or the amount of the injury done] shall be paid to C. D. [the party aggrieved, unless he is unknown, or has been examined in proof of the offence, in which case, state that fact, and dispose of the whole like the penalty as before], and \if such justice or justices shall think proper to award the complainant his costs,] I [or we] order that the said sum of for costs shall be paid to [the complainant.] Given under my hand and seal, [or our hands and seals,] the day and year first above mentioned." 69. When two or more Js. P. may hear and determine, one may receive original information or complaint, and issue sum- mons to appear before two or more, and after adjudication by such two Js., all subsequent proceedings to enforce obedience thereto, or otherwise in any thing relating to the offence, may be enforced by either of the said Js., or any other J. P. of the same county, city, &c., in like manner as if done by the J. P. who adjudged ; and where the original complaint shall be made to any J. or Js. P., different from the J. or Js. before whom the same shall be heard and determined, the form of conviction shall be made conformable to the fact ; see ante, p. 63. 70. Where the sum adjudged to be paid exceeds 5, or the imprisonment one calendar month, or where the conviction shall take place before one J. P., any person aggrieved may appeal to the next Quarter Sessions, holden not less than 12 days after the day of conviction ; provided he give to complainant a notice in writing of the appeal and cause and matter thereof, within 3 days after conviction, and 7 clear days at least before the sessions, and shall " also enter into a recognizance with two sufficient sureties before a J. P., conditioned personally to appear at the said sessions, and to try such appeal, and to abide the judgment of the court APPENDIX. XC111 thereupon, and to pay such costs as shall be by the court . , . . . . 9Geo. IV. awarded ; and upon such notice being given, and such recogni- c> 55> zance being entered into, the J. before whom the same shall be Li5 erat ; n g d e _ entered into shall liberate such person if in custody." fendant. 71. No conviction, or adjudication on appeal, shall be Want of form quashed for want of form, or removeable by certiorari ; nor in conviction, warrant of commitment void for defect therein, provided it be therein alleged that the party has been convicted, and there be d if stat ; n g a valid conviction to sustain the same. a conviction. 72. " Every J. P. before whom any person shall be convicted Convictions to of any offence against this Act, shall transmit the conviction to returne to J sessions. the next court of General or Quarter Sessions, holden for the county or place wherein the offence shall have been committed, there to be kept by the proper officer among the records of the court, and upon any indictment or information against any person for a subsequent offence, a copy of such conviction cer- ies as tified by the proper officer of the court, or proved to be a true herein copy, shall be sufficient evidence to prove a conviction for the evidence in future cases. former offence, and the conviction shall be presumed to have been unappealed against till the contrary is shown/' 73. In actions against persons executing the Act, venue Protection of local, limitation 6 months, general issue, &c., and defendants ' OI may tender amends, or pay money into court. For Search Warrant, see ante, p. 243, &c.; Arrest, ante, p. 107. LIGHTHOUSES. St. 6 & 7 Will. IV. c. 79, establishes several regulations with LIGHTHOUSES. respect to lighthouses, and gives powers to the Trinity House of 6& 7 wili - 1V - Deptford Strond in England, the Commissioners of Northern Lighthouses in Scotland, and the Corporation for preserving and improving the port of Dublin in Ireland. By s. 61, reciting the danger arising from fires or lights caused by kilns, factories or 01 her works near the coast, " If any fire or light shall at any Fires in kilns time hereafter be burned at, or caused by any kiln, factory, fur- "jfJ^mT^i nace, forge, chimney, building or other work, in such manner mistaken for and form, or at such times and in such place, on or near to any part Il g hthouses * r not to be con- of the coasts of the U. K. as to be subject and liable to be tinued after mistaken at sea for any lighthouse, on or near to any part of notl( ; e as such coasts, for the protection and guidance of vessels, and the XC1V APPENDIX. LIGHTHOUSES 6&7 Will.IV c. 79. Penalty before one J. P. How levied or applied. Abating or re- medying such nuisance. owner or other person having the care or management of such kiln, &c., shall not within a reasonable time after notice to that effect, shall have been delivered to him or them, or left at such kiln, &c., by the said [Trinity House, Commissioners, or] Cor- poration, as the case may be, (such reasonable time to be speci- fied in such notice,) take effectual means in order to prevent the fire or light, burned at or caused by the same, from being so mistaken at sea for any such lighthouse, every such owner or other person, so having the care or management of such kiln, &c., so making default, shall be deemed guilty of a common nui- sance ; and over and besides all other pains and penalties by law inflicted upon persons guilty of a common nuisance, shall be subject to a penalty of 10, to be levied and recovered in a summary way before any one or more Js. P. acting in and for the county, wherein or next whereunto such kiln, &c. shall be situate, upon complaint to him or them in that behalf by the said Corporation or one of their agents ; and such penalty, unless forthwith paid, shall and may be levied by distress and sale under the warrant of such J. or Js, of the goods and chattels of the person who shall be adjudged guilty of such nuisance, and shall go and be applied (after first paying thereout the reasona- ble costs and charges of recovering the same) to or for the use of the parish or union where such offence shall have been com- mitted, or such default made, to be applied in aid of the poor rate of such parish or union." And if the owner, See., neglects to abate such nuisance for 7 days after the penalty is adjudged, the said Corporation, their agents or workmen, may enter upon the land and abate it, or take other proper means to prevent its being so mistaken for a lighthouse, and may recover the expense by action. Convictions or proceedings not to be quashed for want of form, nor removed by certiorari. LINEN. LINEN. Stat. 5 & 6 Will. IV. c. 27, for regulating the linen and 5&6 Will. IV. hempen manufactures in Ireland, is continued by 1 & 2 Viet. c ' 27 ' c. 52, for 5 years, from 27th July, 1838, and to the end of the Flax to be of then next session of parliament. Sect. 1. <{ All flax sold by sam- ^d^leann'ess P^ e or ot ^ erw ^ se ' or exposed for sale in open fair or market, shall throughout. be of equal cleanness and quality throughout each parcel, upon APPENDIX. pain that any person selling or exposing for sale such flax, or the LINEV. owner thereof at the time of sale, shall forfeit and pay a sum ^ 2? not exceeding the amount of 1*. for every stone of flax so sold p ena i ty . or exposed for sale which shall not be of equal cleanness and quality throughout each parcel." 2. " All brown or unbleached or unpurged linen yarn Linen yarn to * be well spun, sold in open fair or market in Ireland, shall be well and suf- O f equal quality, ficiently spun and made up into hanks, each hank to consist and made into hanks, and of 12 cuts and no more, except in the case 01 yarn or grist 01 ree i ec j as herein. 2 hanks in the lb., commonly called pound yarn or head yarn, which last-mentioned description of yarn shall be made up in half hanks of 6 cuts and no less ; and every such cut shall contain 120 threads, and no more; and every such hank shall be 1 yard and 1 quarter in length, or 2 yards and one-half in circumference and no more ; and each such cut in every such hank shall be separated as the same shall be reeled, and not afterwards ; and in reeling such linen yarn no more than 1 thread at a time shall be reeled ; and all the yarn contained in every such hank shall be of flax yarn only, or tow yarn only, of the same colour and fineness throughout each hank ; and when the hank or 12 cuts are reeled, the same shall be made up in such manner as to admit of opening thereof at every part at 10 inches at least, for the purpose of spreading on the bleach green; and in case any person or persons shall sell or expose for sale in open fair or market any yarn which shall not be conformable to the above regulations, or which shall be deficient in quality, length, or count, such person or persons, or the owner or owners of such yarn at the time of sale, shall forfeit a sum after the rate of not less Penalty. than 1 penny, nor more than 4 pence for every hank of such yarn so sold or exposed for sale ; and in all cases of fraud or Frauds in pre- wilful default in the preparation of linen yarn which shall be P arin 8 y arn * sold or exposed for sale in open fair or market, the person or persons selling or exposing for sale such yarn, or the owner or owners thereof, shall forfeit a sum not less than 1 penny, or more than 4 pence for every hank of such yarn so sold ; provided Proviso, ex- that nothing herein shall extend to mill-spun yarn, and that ce P tin S mill- spun yarn. no mill-spun yarn shall be subject to the regulations aforesaid." XCV1 APPENDIX. 3. For the purposes of this Act all flax or linen yarn sold 5 &6 Will. IV. , f -i - ,.1 IT c 27. or exposed tor sale in the public or usual market place of any What a sale in ^ air or market, between the hours of 8 o'clock in the fore- open market of noon and 2 in the afternoon of any fair or market day, shall fl ax 7 be taken to be sold or offered for sale in open fair or market, and none other. Two coarse 4. " Across each end of every piece of linen cloth sold or woveVir^each ex P ose d ^ or Sa l e m P en ^ r or market, there shall be woven piece of linen, 2 coarse threads or cords, distant from each other about one- and name and f ourt h par t of an inch ; and there shall be written with pen and residence of r r . weaver, and ln k, close to such coarse threads or cords on each end, in legi- size of the piece bi e characters, the Christian name, surname, and place of resi- dence of the weaver or manufacturer thereof, and there shall be also written or marked upon the outside fold of every such Penalty. piece of linen the length and breadth thereof; and in case any person shall sell or offer for sale in open fair or market any piece of linen wherein such threads or cords shall not be so woven, or whereon the name and residence of the weaver or manufacturer, and the length and breadth thereof, shall not be so written, such person so offending shall forfeit a sum not exceeding 5s. for every such offence," at discretion of the J. P. before whom the complaint is made. Widths of linen 5. No person shall sell or expose for sale in open fair or cloth * market any piece of brown linen cloth, being of or exceeding the set of twelve hundred, made or intended to be of the deno- mination commonly called yard-wide, that shall not be when brown and before the same shall be bleached 37 inches and a-half broad at least, and all cloth of the denomination of Yard wide. yard -wide, being under the set of twelve hundred, shall be, when brown, 36 inches broad at least ; and no person shall Other widths, sell or expose to sale in any public market any piece of plain linen cloth of the denomination called, Seven-eighths wide f^5 1 32 inches broad ^ Three-quarters wide l|| 28 inches broad +g Nine- eighths wide sheeting || | j> 41 inches broad ?J| Five-quarters wide sheeting * II 4 ^ inches broad "5 Six-quarters wide sheeting [_'|| fj.1 J 54 inches broad * APPENDIX. XCV11 " And if any person shall sell or expose for sale in any fair LINEN. or market any linen cloth or sheetings of the denominations 5 & 6 Will. IV. above mentioned, which shall not be respectively of the widths above directed and specified, every such person shall Penalty, be subject to a penalty of not less than 5s. , nor more than 10s. for every such piece so sold in open fair or market." 6. " Every piece of brown or unbleached linen cloth Linen to be which shall be exposed to sale in open fair or market shall be *J^ in P ea folds. so exposed in open folds, and no ways tied at either end or in the middle, upon pain that any person selling or exposing for sale any such linen cloth, contrary to the directions aforesaid, shall forfeit not less than 2*. 6d. or more than 5*. for every Penalty, such piece so sold or exposed for sale." 7. " No person shall in open fair or market sell or expose Linen to be of for sale any piece of brown or unbleached plain linen cloth e j ual ^ neness r . throughout, which shall be thicker or finer in the selvage than in the body of such piece, or which shall not be of equal fineness and thick- ness throughout every part of the length and breadth of such piece, under a penalty of a sum not less than 2s. 6d. nor more p ena ity. than 20s. for every such piece of linen so sold or exposed for sale." 8. " No person shall sell or expose for sale in open fair And not to be or market any piece of brown or unbleached linen any part ^ ^ ^ ' whereof shall have been glazed, pasted, or spouted, after it is woven, or dyed, or stained, either in the yarn or cloth, with any material which has a tendency to render the part so glazed, pasted, spouted, dyed, or stained more difficult to bleach, or to deceive the buyer as to quality, on pain of for- feiting not less than 5*. nor more than 20s. for every such Penalty, piece so sold." 9. For the purposes of this Act, all linen sold or exposed What a sale in for sale within the custom-gaps or custom-gates of any fair or P en marketof market, on the respective fair or market days, between 10 o'clock in the forenoon and 2 in the afternoon from 25th March to 25th of Sept., and between 11 in the forenoon and 2 in the afternoon from 25th of Sept. to 25th March in each year, shall be taken to be sold or exposed for sale in open market, and none other. XCV111 APPENDIX. LINEN. 5&6 Will. IV. c. 27. On complaint on oath to J. P. or chief magis- trate of a town, three persons to be summon- ed and sworn as herein ; and to find a verdict ; and award a sum to defen- dant, if com- plaint unfound Disputes be- tween buyers and sellers may, on com- plaint to one J. P., within twenty-four hours, 10. " Any J. P., or the chief magistrate of any town, before whom a complaint on oath shall be made against any person or persons for selling or offering for sale in fair or market any flax, yarn, or linen, not conformable to the regulations in this Act contained, or for any fraud or wilful default in the preparation or manufacture of such flax, yarn, or linen so sold or offered for sale," may, and is hereby required to "summon before him 3 persons skilled in flax, yarn, or linen, as the case may be, of whom one shall be named by the party making such complaint, another by the party against whom such complaint may be made, and the third by such J. or chief magistrate ; and in default of either party making such nomination, such J. or chief magistrate shall nominate a person on behalf of the party so making default ; and the 3 persons so summoned shall be sworn by such J. or chief magistrate well and truly to examine the flax, yarn, or linen, as the case may be, which is the subject of such complaint, and a true verdict to give whether such complaint be or be not well founded ; and such verdict shall be conclusive on the subject of such complaint ; and if such complaint shall be declared to be ill- founded, then the said three persons shall award such compen- sation as they may deem just, to be paid by the party making such complaint to the person or persons against whom such complaint is made, for his, her or their trouble and loss of time and expenses occasioned by such unfounded complaint ; and the money so awarded shall and may be recovered by all such means as any penalty might have been recovered in case the said complaint had been proved to be well founded." 11. " If the buyer of any such flax, yarn, and cloth, sold, or agreed to be sold, in fair or market, shall, without just cause, refuse to pay to the person selling the same the price agreed upon between them, or if the seller shall without just cause refuse to deliver such flax, yarn, or cloth to the person buying the same, or shall wilfully neglect to present the same for pay- ment at the usual place of payment of the buyer within 5 hours after having sold the same, being duly informed of such place of payment, it shall be lawful for the buyer or seller respectively to complain, at any time within 24 hours, to the next J. P., or to the chief magistrate of any town where such dispute shall APPENDIX. XC1X have arisen ; and every such J. P. or magistrate is hereby re- I.INEN. quired and authorized forthwith to summon the parties to appear 5 & 6 Will. IV. before such J., and some other J. or chief magistrate ; and if it shall appear to such Js. or chief magistrate and J. that the buyer shall without just and reasonable cause refuse or have re- be determined . before two Js. fused to pay the seller the price first agreed upon between such p an( j pena ity buyer and seller at such fair or market, such Js. P. or magistrate imposed on and J. may, by warrant under their hands and seals respectively, order such flax, yarn, or cloth to be returned to the seller thereof, and may by such warrant direct any penalty not ex- ceeding the sum of 10s., to be levied off the goods and chattels of the buyer thereof; and if it shall appear to such Js. P., or to such chief magistrate and J., that the seller shall without or seller, reasonable cause refuse, or have refused, to deliver up such flax, yarn, or cloth to the person or persons to whom he had sold or agreed to sell the same, or shall have wilfully neglected to pre- sent the same for payment at the usual place of payment of the buyer within 5 hours after having sold the same, being duly in- formed of such place of payment, such Js. P. or chief magistrate and J., may, by warrant under their hands and seals, order the same to be delivered up to the person who had bought or agreed to buy the same, and may also by such warrant direct any penalty not exceeding the sum of 10s., to be levied off the goods and chattels of the seller." 12. Nothing in this Act shall extend to or affect any flax, Act to extend yarn, or linens not sold or exposed for sale in open fair or only lo sa . les in A . A open market. market, it being the intent of this Act that all persons may manufacture, make up and sell such in any manner they think fit, unless they sell in open fair or market. Sects. 13 to 20 re- Appointment of late to sealmasters and the committee for appointing them. sealmasters. 21. Every sealmaster of brown or unbleached linen shall Their duties in carefully view, examine, and measure every piece of such linen examiniQin g produced or offered to him to be sealed ; and if the same shall brow^ line g n. appear to him to be merchantable and conformable to the di- rections in this Act, then, and not otherwise, such sealmas- ter shall affix or cause to be affixed a fair impression of such seal as shall be appointed for him by the committee, with lampblack or vermilion, or stone blue and size or common APPENDIX. LINEN. oil, on the middle of such fold, at no more than 13 inches 5& 6 Will. IV. f rom t h e en( j of ,5^ p iece ^ and sha u nk ew j se mar k or cause to be marked, with such ingredients as aforesaid, on the back or outside of every such piece, the length of such piece and the number of inches it contains in breadth, and also the half- inch if it shall be in breadth an inch more than any num- ber of inches (without regard to any lesser fractions) together with the name of such sealmaster and the parish and county where he resides, or the name of the market town for which he may be appointed to act ; and if any parts of such piece shall be damaged or faulty, but not so as to render the same unmerchantable, every such damaged or faulty part shall be fairly exposed in the lap or bosom of such piece, so as that the same may be easily seen ; and opposite to such damaged or faulty part upon the bosom of every such piece, such seal- master shall affix or cause to be affixed an impression of his seal, with such ingredients as aforesaid, to denote such da- Fees. maged or faulty part ; and such sealmaster may demand and take 1 penny and no more for every piece of brown or un- bleached linen containing 25 yards or under, which shall be sealed by him, and so in proportion for a greater quantity ; Penalty for * and if any sealmaster shall offend by neglecting or trans- gressing any one of the regulations aforesaid, every such seal- master shall forfeit a sum not less than 5s. or exceeding 20s. for Moneto sell, or every such offence." 22. " No person shall in open fair or bmwtt ihaennot market sel1 or expose to sale, buy or agree to buy, any pieces so sealed. of brown or unbleached linen which shall not, at the time of selling or exposing the same to sale, be sealed and marked as Penaltj. required by this Act, upon pain of forfeiting the sum of 5s. for every piece of linen so sold or exposed to sale." How linen shall 23. " All brown linen shall be measured between seal and re ' seal, and bad and insufficient ends shall not be taken into the length thereof; and such linen shall be bought and sold by no other measure than the statute yard, containing 36 inches ; and no extraordinary measure or allowance, except the breadth of a thumb, as is now generally practised, to every yard in the measuring thereof, shall be made therein by the seller to the buyer, or required or accepted of or taken by APPENDIX. Cl the buyer from the seller, upon pain that every person buying LINEN. or selling any such linen contrary to the true intent and 5&6W111.IV. meaning of this Act, shall forfeit not less than 2s. 6d. nor p ena [ t y. more than 5s. for every such offence." 32. All complaints for offences against this Act, when the Proceedings for j , penalties up to penalty or forfeiture does not exceed 5, may be heard by 1 5 before one J. P. within his jurisdiction or the chief magistrate of a town. J. P. In default of payment, such J. or chief magistrate may levy the amount by warrant of distress under his hand and seal off the goods and chattels of the person liable to pay, rendering the overplus, if any, after deducting the costs and expense of distress ; and if no sufficient distress be found, may commit Distress or , commitment, for any period not exceeding 1 calendar month, unless such penalty or sum of money be sooner paid. 33. Whenever com- plaint is made against a sealmaster, and he resides more than 5 miles from the place in which such complaint is made, it shall be sufficient if the summons issued against him to What s uffici * nt service of suin- answer such complaint be proved on oath to be put into the mons on sea i. post-office of the town in which such complaint is made, and master, addressed to such sealmaster by his name, residence, and oc- cupation; provided such summons be so put in the post- office 4 days previous to the day appointed for the hearing of the complaint. 34. If any sealmaster of one county commits Offences of > , Al . ,. . n , . , ., . sealmasters to an offence, and the piece of linen in respect of which it is be tried where committed be sold or exposed for sale and seized in another the linen is county, the complaint shall be heard and penalty levied by a selzed> J. P. of the county where the linen was sold, offered for sale or seized, as if the offence was committed in the county where such linen was seized. 35. All penalties hereunder to be applied as follows, " in Application of every case where the person preferring the complaint shall ap- pear to have suffered any damage, costs, loss of time, or other injury in the matter being the subject of complaint, any such penalty shall and may be paid to such person ; and if no such damage, &c., shall appear to have been sustained, then such penalty shall be paid to the committee appointed in manner hereinbefore directed, in the county in which the complaint originated, to be applied by such committtee towards forming Cll APPENDIX. LINEN. a fund for defraying any expenses in executing the duties 5 & 6 Will. IV. assigned to them by this Act ; or it shall and may he lawful for c * 27< such J. or chief magistrate to direct any portion of any such penalty so levied to he paid to the party aggrieved, and the re- maining portion of such penalty to he paid to such committee." 36. Penalties over 5 and under 20, recoverable by civil bill ; above 20 in superior courts. 3 & 4 Viet. c. St. 3 & 4 Viet, c. 91 , repeals certain parts of the foregoing Act, which are omitted supra; and contains several new en- actments as to weavers, sewers, and others employed in the linen, hempen, cotton, silk, and woollen manufactures in Ire- land ; but as it is to continue in force only one year from the end of the last and to the end of the then next session, it is here omitted. MALICIOUS INJURIES. MALICIOUS IN- By Stat. 9 Geo. IV., c.*56, s. 5. " If any artificer, work- JUKIES. man, journeyman, apprentice, servant or labourer shall wil- 5 g" ' fully and unlawfully damage, spoil, or destroy any goods, Journeymen, wares or work committed to his care or charge, without the &c., spoiling consent of the person by whom he shall be hired, re- goods entrusted to them. tamed or employed, every such offender being lawfully con- Conviction be- victed thereof before any J. or Js. P., shall forfeit and pay fore 1 J. P. such sum of money as shall appear to the J. or Js. to be a rea- sonable compensation for the damage, injury, spoil, or de- struction so committed, not exceeding in any case the sum of Penalty. 5^ wn ich sum of money shall be paid to the party grieved ; and every person so convicted shall , in default of immediate Commitment, payment, be committed to the gaol of the county of the city, or town, or to the house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour for any term not exceeding 3 calendar months." Damaging 19. Damaging trees, &c., by night, or above the value of d'eT^'n jj^' 5, felony, ante, p. 440. 20. " If any person shall between day time, on sunrise and sunset unlawfully and maliciously cut, break, bark, forgone .? *p" root U P' 01 ot ^ erw i se destroy or damage the whole or any part of any tree, sapling, or shrub, or any underwood, the injury penalty. done being under the value of 5, every such offender being APPENDIX. Clll convicted before a J. or Js. P., shall be committed to the com- MALICIOUS mon gaol or house of correction, there to^be kept to hard la- bour for such term not exceeding 12 calendar months, as the 5^ convicting J. or Js. shall think fit." 21. " If any person shall unlawfully and maliciously de- Destroying stroy or damage with intent to destroy, any plant, fruit, or ve- g a * J e n S . '' getable production growing in any garden, orchard, nursery- ground, hothouse, greenhouse or conservatory, every such conviction offender being convicted thereof before a J. or Js. P., shall at before one J ' P ' the discretion of the J. or Js., either be committed to the com- mon gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour for any term not punishment, exceeding 6 calendar months, or else shall forfeit and pay the amount of the injury done, and also a sum of money not exceeding 20, as to the Justice shall seem meet ;" and if any 2nd offence, person so convicted afterwards commit any of the said of- fences, it is felony, ante, p. 417. 22. " If any person shall unlawfully and maliciously de- Destroying stroy, or damage with intent to destroy, any cultivated root or JJSowtT " plant used for food of man or beast, or for medicine or for dis- herein, not tilling, or for dyeing, or for or in the course of any manufac- g^ f . ns ID gar " ture, and growing in any land, open or inclosed, not being a garden, orchard, or nursery ground, every such offender be- conviction be- ing convicted thereof before a J. or Js. P. shall at the discre- fore one J ' Pt ' tion of the J. or Js., either be committed to the common gaol or house of correction, there to be imprisoned only, or to punishment ; be imprisoned and kept to hard labour, for any term not ex- ceeding one calendar month, or else shall forfeit and pay the amount of the injury done, and also such sura of money, not ex- ceeding 20*., as to the J. or Js. shall seem meet, and in default of payment thereof together with the costs, if ordered, shall be committed as aforesaid, for any term not exceeding one calendar month, unless payment be sooner made ; and if any person so 2nd offence, convicted shall afterwards be guilty of any of the said offences, and shall be convicted thereof in like manner, every such offen- der shall be committed to the common gaol or house of cor- rection, there to be kept to hard labour for such term, not ex- eeding six calendar months, as the convicting J. or Js, shall think fit." CIV APPENDIX. MALICIOUS 23. <* If any person shall unlawfully and maliciously cut, Es * break, throw down, or in anywise destroy any fence of any c 56 " description whatsoever, or any wall, stile or gate, or any part Damaging thereof respectively, every such offender, being convicted be- gatesor fences; fon R j Qr Jg p ^ ^j for ^ ^^ Q ff euce foj . feit and pay fore one J P" *k e amount of the injury done, and also such sum of money, penalty ; not exceeding 5, as to the J. or Js. shall seem meet ; and if any person so convicted shall afterwards be guilty of any of the 2nd offence. sa ^ offences, and shall be convicted thereof in like manner, every such offender shall be committed to the common gaol or House of Correction, there to be kept to hard labour, for such term, not exceeding twelve calendar months, as the convicting J. or Js. shall think fit." Where suspi- 25. In all cases where any dwelling-house or other build- clou is enter j n g^ or anv p ar j. o f an y dwelling-house or other building, shall tention to com- be held by virtue of any lease or agreement, or for any term of mit wilful da- years, or other less term .certain, or at will, whether the pos- mageto houses, . '*. i i-ii^i session thereof shall nave been obtained by fraud or not, whenever it shall be suspected that any person or persons is or are about to pull down or demolish, or to commit any unlaw- ful waste or destruction upon such house or building, or part of it, it shall be lawful for any owner, lessor, or landlord thereof, or any other person or persons entitled to the same, or inter- ested in the preservation thereof, or for any trustee or agent an affidavit may acting upon the part or behalf of any owner, &c., or person so be made before interested, to make an oath or affidavit in writing, Cor affirma- a J. P. as herein. tion in writing, if a Quaker,) before any J. P. or magistrate for the county, city, or place within which such house, &c., is situate, stating the belief and suspicion of the person making it, " that some person or persons in the possession or occupa- tion of such dwelling-house or other building, or of some part Contents thereof, or by the permission or collusion of some person in thereof. the occupation of such dwelling-house or other building, or of some part of such dwelling-house or other building, hath or have an intention to commit, or do propose to commit, some such wilful or fraudulent waste and destruction as is herein- before described ; or if any such waste or destruction shall have been commenced there, that the same was fraudulent or mail- APPENDIX. CV cious, and not for the purpose of any improvement or benefi- MALICIOUS cial alteration in such dwelling-house or other building, or part of such dwelling-house or other building;" and upon c . 55.' such affidavit or affirmation being made, it shall be lawful for such J. or magistrate " to issue a notice in writing signed by J- P- 1 issue him, stating that information on oath or affirmation has been received, that some person or persons occupying such dwelling- house or other building, or acting under or by the authority, or permission of, and in collusion with, such occupier or occu- piers of such dwelling-house, &c., intends or intend, or is or are about to commit wilful and fraudulent waste by pulling down and destroying such dwelling-house, &c., or any part of such dwelling-house, &c., and cautioning and admonishing all such persons, and all persons whomsoever, not to proceed to pull down or destroy, or otherwise injure such dwelling-house, &c., or any part of such dwelling-house, &c., until special leave, license, and authority in writing for that purpose, shall be first procured from and given by the J. or magistrate by whom such notice shall be signed ;" and such notice shall be served Service thereof. on any and every person by whom it shall be suspected that such waste and destruction shall be intended to be committed, or by whom it shall have been commenced, if such person can be found ; and if not, then such notice shall be affixed on the prin- cipal door or entrance of such dwelling-house or other build- ing; proceeding after this notice is a misdemeanor, ante, p. 457. 26. " If any person shall, after the service or posting of such If the demoli- notice, begin to pull down and destroy, or shall proceed in pull- ing down or destroying, or shall otherwise wilfully and mali- nued, ciously injure and commit unlawful waste in, on, or to any such dwelling-house or other building, or anypart of such, &c., or if any person or persons, having commenced any such waste, pulling down, or destruction, shall not immediately desist from continuing and committing such offence," it shall be J. P. to issue lawful for any J. P., or magistrate, and he is required " to issue w his warrant, under his hand and seal, directed to any con- stable or constables, authorizing such constable, &c.,to pre- vent such pulling down or destruction of such dwelling- house or building, or any part of such, &c., and to take into o CV1 APPENDIX. MALICIOUS INJURIES. 9 Geo. IV. c. 56. and commit, until security be given not lo proceed ; but if security be given as herein, the alterations may be proceeded with. What to be a sufficient naming of the party in the notice. Any wilful damage to any property not before provided for. Conviction be- lure one J. P. custody, and apprehend every person present, aiding and as- sisting in such pulling down and destruction, and to bring all such persons before such J. or magistrate ; and it shall be lawful for such J. or magistrate to commit any such offender so taken and apprehended to any neighbouring gaol or prison, there to remain without bail or mainprize, until such offender shall give good and sufficient security, by recognizance condi- tioned not to commit, or proceed in committing such wilful waste and destruction ;" or if it shall havejbeenin part commit- ted, " then also conditioned to rebuild and repair such dwelling- house or other building, so as to leave the same in as good te- nantable order and condition as such dwelling-house, &c., was in previous to the commission of such waste and destruction," which recognizance such J. is hereby authorized and required to take. 27. In case any tenant or occupier of any dwelling-house or other building, shall, on being required so to do by any such J. or magistrate, enter into security by recognizance, with two sufficient sureties, in such sum as such J. or magistrate shall require, conditioned to rebuild and repair any such dwelling- house or other building within six calendar months from the date of such recognizance, and to put such dwelling-house, &c., in as tenantable, or in the like state of repair, as the same was in previous to the commencement of any wilful waste and destruction thereof, or therein, then such persons may proceed in repairing or making any alterations or improvements. 28. If any such notice as aforesaid shall be personally served on any person, or, if personal service cannot be effected, if it shall be regularly posted, as before directed, on the door or principal entrance of any such dwelling-house or other building, such notice shall be deemed good and sufficient for the purposes of this Act, although it shall not be addressed to such person by his, or her, proper name, or by any name whatsoever. 29. This Act shall not affect other remedies of the landlord. 30. " If any person shall wilfully or maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever, either of a public or private nature, for which no remedy or punishment is hereinbefore provided, every such person being convicted thereof before a J. or Js. P. shall forfeit and pay such sum of money as shall appear to the APPENDIX. CVll J. or Js. to be a reasonable compensation for the damage, MALICIOUS injury, or spoil so committed, not exceeding the sum of 5; ^^jy ' which sum of money shall, in the case of private property, be c . 56. paid to the party aggrieved, if known, except where such party Application of shall have been examined in proof of the offence; and in such case, or where the party aggrieved is unknown, or in the case of property of a public nature, or wherein any public right is concerned, the money shall be applied in such manner as every penalty imposed by a J. or Js. P. under this Act is herein- after directed to be applied ; and if such sum of money, to- gether with costs, if awarded (which costs such J. or Js. is and are hereby authorized to award if he or they shall think fit,) shall not be paid, either immediately after the conviction, or within such period as the J. or Js. shall at the time of the conviction appoint, the J. or Js. may commit the offender to Commitment the common gaol or House of Correction, there to be impri- m default of payment, soned only, or to be imprisoned and kept to hard labour as the J. or Js. shall think fit, for any term not exceeding two calen- dar months, unless such sum and costs be sooner paid ; pro- vided always, that nothing herein contained shall extend to any j^ot to extend case where the party trespassing acted under a fair and reason- to injuries un- able supposition that he had a right to do the act complained suppost^no'f 16 of, nor to any trespass, not being wilful and malicious, com- rightorinsport- mitted in hunting, fishing, or the pursuit of game but that ltlg * every such trespass shall be punishable in the same manner as before the passing of this Act." 32. " Every punishment and forfeiture by thisAct imposed Malice against on any person maliciously committing any offence, whether the owner not . , , . . ,. . essential to any same be punishable upon indictment or upon summary convic- offences here- tion shall equally apply and be enforced, whether the offence under, shall be committed from malice conceived against the owner of the property in respect of which it shall be committed or otherwise." 35. Persons committing offences may be arrested, ante, p. Arrest. 107. 36. Limitation to summary proceedings three months ; the Limitation, party aggrieved may be a witness. 37. Compelling appearance, Appearance. &c. These sections are in the same words as sects. 57 and 58 of 9 Geo.IV. c. 55 ; ante, p. Ixxxviii, to which the reader is referred. CV111 APPENDIX. HALICIOUS INJURIES. 9 Geo. IV. c. 56. Abettors pun- ishable as prin- cipals. Receiving and application of penalties. Commitment. Discharge or pardon bar to other proceed- ings. Form of con- viction. Appeal. Want of form, &c. 38. " When any offence is by this Act punishable on summary conviction either for every time of its commission or for the first and second time only, or for the first time only, every person who shall aid, abet, counsel, or procure the commission of such offence shall, on conviction before a J. or Js. P., be liable, as the case may be, for every first, second, or subsequent offence of aiding, abetting, counselling, or pro- curing, to the same forfeiture and punishment to which a person guilty of a first, second, or subsequent offence as a principal of- fender is by this Act made liable." Sect. 39, as to the application of penalties, is the same as 9 Geo. IV. c. 55, s. 59, ante, p.lxxxix. omitting " the value of any pro- perty stolen." Ss. 40, 41, 42, 43, as to receiving and accounting for penalties are respectively the same as ss. 60, 61, 62, and 63, of the same Act ante, ib., and xc. Sect. 44, as to commitment in de- fault of payment, is the same as s. 64, ib., omitting " for the value of the property stolen." Sects. 45, 46, as to discharge or par- don of offenders are the same as ss. 65 and 66, ante, p. xci. Sect. 47, as to other proceedings for the same offence, is the same as s. 67, ante, p. xci. 48. Conviction may be drawn up in the following form, or any other to the same effect. The form given is precisely the same as that, ante, p. xci. omitting the words, " value of the articles stolen, embezzled, or taken." The subse- quent sections 49, as to one J. P. receiving information where two may convict ; 50, as to appeal ; 51, no certiorari, &c. ; 52, transmitting convictions to Quarter Sessions, and 53, Protect- ing persons executing the Act, are respectively the same as sects. 70, 71, 72, 73, ante, pp. xcii, xciii, to which therefore, to avoid repetition, the reader is referred. MASTERS AND SERVANTS, AND APPREN- TICES. 2 Geo. I. c. 5. Servants setting fire to houses, &c., through negligence. Penalty before 2 Js. P. MASTERS AND SERVANTS, AND APPRENTICES. By Stat. 2 Geo. I. c. 5, s. 4, " If any menial or other ser- vant or servants, through negligence or carelessness, shall fire or occasion the burning of any dwelling-house, or out-house, or houses, such servant or servants being thereof lawfully convicted by the oath of one or more credible witness or witnesses, made before two or more Js. P., shall forfeit and pay the sum of 50, unto the churchwardens of such parish where such fire shall happen, to be distributed by the Grand Jury at the next Qr. APPENDIX. eix Sessions of the peace for the county, where such fire shall happen MASTERS AND amongst the sufferers by such fire, in such proportion as to the 8 \ TS ' said Grand Jury shall seem just ; and in case of default or refusal to pay the same immediately after such conviction, the same being lawfully demanded by the said churchwardens ; then, and in such case, such servant or servants shall by warrant under Commitment, the hand of two or more Js. P. be committed to some Work- house, or the House of Correction, as the said Js. shall think fit, for the space of eighteen months, there to be kept to hard labour." B y Stat. 2 Geo. I. c. 17, s. 2, *< Forasmuch as several ser- 2 Geo.I. c. 17. vants are drunkards, idle, or otherwise disorderly in their ser- Servants mis- vices, or waste and purloin their master's goods, or lend the same le^ni^before without their master's or mistress's consent or knowledge or de- their time of part their master's or mistress's service without his or her con- s< sent within the time for which they had obliged themselves to serve ;" " upon the complaint of any master or mistresses, upon oath, of any such offence of his or her servant, any J. P. of any county or city, or chief magistrate of any city or town corpo- rate, where the master or mistress inhabits, is hereby empowered and required to issue a warrant for bringing such servant or ser- vants before him ; and upon examination and due proof upon oath made of such offence or offences, it shall and may be law- Punishment, ful for the said J. P. or chief magistrate to put such servant or servants in the stocks in some market town on the market day, or in the parish stocks, for any space of time not exceeding six hours, or send them to the House of Correction of the county, where such offence shall be committed, there to be kept at hard labour for any time not exceeding ten days ; and in case that Refusing to re- the said master or mistress shall, after the said time of punish- turn to the ' r , , . , . , service, ment is expired, desire the said servant to return to their service, for the remainder of the time that by agreement such servant ought to serve, then the said J. P. or chief magistrate shall order the said servant so to do ; and in case the said servant Punishment, shall refuse or neglect so to do, then, and in such case, the said J. P. or chief magistrate is again to commit such servant to the House of Correction, to be kept to hard labour, and corpo- rally punished during the time he or she ought to serve his or ex APPENDIX. MASTERS AND SERVANTS. 2 Geo. I. c. 17. No servant to hire with ano- ther master till terra of service is expired. Without a months' notice. Punishment. Master giving discharge to servant. On refusal, ap- plication may be made by the servant to a J.P., her master or mistress according to their agreement, or until the next general Quarter Sessions of the Peace, where the Js. in open sessions may examine the matter, and discharge the said servant, or continue him or her, as to them shall seem meet." 3. " No servant shall hire him or herself, or offer themselves to be hired into any service, while he or she is actually in ser- vice, and before the time for which he or she did contract or hire him or herself be expired, without license from his or her mas- ter or mistress first obtained, unless such servant or servants do first give one month's notice thereof to his or her master or mis- tress; and in case any servant shall do the contrary, on com- plaint and due proof upon oath being made thereof, before any J. P. of the county, or chief magistrate of any town corporate, where such servant resides, every such servant shall be com- mitted to the House of Correction for any time not exceeding ten days, there to be kept at hard labour during that time, or put in the stocks in some market town on the market day, for any time not exceeding the space of six hours." 4. " On the discharge or putting away any servant from his or her service, or upon such servant's regularly leaving his or her service, the master or mistress of such servant shall give a certificate in writing under his or her hand, that such person, who is therein named, was his or her servant, and that he or she is discharged from the said service, and shall in the said discharge certify, if desired or such master or mistress thinks fit, the behaviour of such servant ;" and by s. 5, " No master or mistress shall hire any servant without a discharge as afore- said, under the hand of the master or mistress with whom the said servant last dwelt ; and in case any person shall refuse to give his or her servant a discharge and certificate of their be- haviour as aforesaid, then such servant may apply him or her- self to some neighbouring J. P. of the county or city where such master or mistress inhabits, or to the chief magistrate of any city or corporate town, if such master or mistress live in one, who shall write to the master or mistress of such servant, (not being a peer or peeress of this realm), and in case such master or mistress shall be a peer or peeress of this realm, then to the steward or bailiff of such peer or peeress, and require APPENDIX. CXI from them respectively the reason why such servant is refused MASTEBS AND such discharge and certificate of his or her behaviour; and in SI , *- case no answer be given to such letter within the space of five who may grant days, or that the J. P. or chief magistrate shall sooner, by an a certificate as answer to such letter find, that the cause of the refusal of such herein, discharge or certificate was not sufficient in either of the said cases the said J. P. or chief magistrate, may and are hereby required to give a certificate thereof, or of such reason or rea- sons as the master and mistress give for refusing such discharge or certificate, that such person who is about to hire such ser- vant maybe apprized of such servant's behaviour, and judge thereof, before he or she hires such servant ; for which certifi- cate the said J. P. or chief magistrate, or their clerks, shall not take any fee or reward; and the said certificate to all intents and purposes shall be as good as if the same had been given by such master or mistress ; and any servant who shall be convicted of Counterfeiting . .~ certificate, counterfeiting or producing a counterfeited certificate, under the hand of any master or mistress, or J. P., or chief magistrate, or under the hand of the steward or bailiff of any peer or peeress, before two Js. P. by the oath of one or more wit- nesses, or by such servant's own confession, such servant shall Punishment be committed to the House of Correction, and there kept for Before 2 jTp the space of three months to hard labour, and whipped publicly on some market day, between the hours of 11 and 12 in the morning through the streets of the town where the H. of Cor. stands." But whipping females is abolished by 1 Geo. IV. c. 57. 7 " No woman shall hire herself to be a nurse, or take No woman to upon her the nursing of any child knowing herself to be with be a hired nurse child at the time she taketh the child to nurse ; neither shall t o be with any woman continue to nurse any child after she knoweth her- child, or having . . a foul or in fee- self to be with child, without giving notice thereof to the pa- tious disease, rents of the child ; and no woman that hath any foul or in- fectious disease, which may be communicated to the child, shall hire herself to be a nurse or take upon her the nursing of any child, or shall continue to nurse any child after she shall discover herself to have any foul or infectious disease ; and or may be con- if any woman offend therein, on complaint made to any J. P. , ^ r j p or chief magistrate of any city or town corporate within this CXU APPENDIX. MASTERS AND kingdom, the said J. P. or chief magistrate are hereby autho- SERVANTS. r j zec i an d required to appoint two or more physicians, chirur- geons, or midwives, as the case shall require, to examine the matter complained of, and to make report upon oath, which the said J. or chief magistrate is hereby empowered to admi- nister ; and if they do on their oaths declare that in their judg- ment the woman or nurse complained of hath offended in any Penalty. of the particulars aforesaid, then and in such case every such nurse so offending shall, by the judgment of such J. P., forfeit such wages as shall be then due to her, and all such profits, sum or sums of money as she shall have received on account of such nursing, to the person informing against her for such of- fence, to be recovered and levied in such manner as servants' wages are hereinbefore directed to be recovered and levied ; and also shall suffer such corporal-punishment" as for counterfeiting certificates, ante, s. 5, p. cxi. Sect. 1, now repealed as to the re- covery of wages, enacts that any J. P. within five miles, and if none within five miles, then the next neighbouring J. P. or any chief magistrate of a town where the master or mistress lives , within their respective jurisdictions shall, on oath made by servant, summon the master or mistress, expressing in the summons the Enforcing pay. sum demanded, and the place and time for appearance. In default of appearance on proof on oath that summons was served person- ally on the defendant, or on their son or daughter, or menial ser- vant, 16 years of age or upwards, at defendant's usual place of abode, J. P. or chief magistrate may proceed to hear and deter- mine by examining witnesses, and, if such J, P. or chief magistrate shall see it necessary, by the examination of the party or par- ties complaining or complained against, on their respective oaths ; and if the defendant shall not pay what the J. P. or chief magistrate shall adjudge to be due, within such time as the said J. P. or chief magistrate shall direct, not exceeding ten days, the said J. P. or chief magistrate is hereby required and em- powered by warrant under his hand and seal, at the instance of the plaintiff, directed to any constable or constables of the said county, to levy so much as shall be adjudged due, together with the costs of summons and warrant as herein, (but see ante, pp. 87, 96), and 12 ** m . a y are often by the failure or death of their master left without O f apprentices employment or instruction, in the trade to which they were to handicraft bound, and others often by the severity of their masters or mis- ^ote^nd 6 ' tresses have been cruelly used, for remedy whereof, it may be turn them over lawful for any two Js. P. of any county, county of a city, or town, to hear and determine all such complaints of appren- tices who are or shall be employed in any handicraft trade or manufacture, and to displace and remove such apprentice if they shall find just cause for so doing, from such service, by order under their hands and seals, and by the like order to turn over such apprentice to some other master or mistress of the same trade, for the remainder of the term of such apprentice- ship;" and see 25 Geo. III. c. 8, s. 3, post, p. cxii. 17. Mas- Appeal, ter or mistress aggrieved by such order may appeal to next Quarter Sessions. 24. Persons sued for executing the Act may plead general issue, and have treble costs. Stat. 25 Geo. II. c. 8, is made perpetual by 5 Geo. III. MASTERS AND c. 15. s. 32. Sect. 1. As to disputes concerning wages, arising SERVANTS ., AND WORK- between masters and mistresses and servants, or between mas- MEN. ters and mistresses and artificers, &c., or other labourers, 25 Geo. II. employed for any certain time, or in any other manner, is now repealed. By s. 2. " It shall and may be lawful to and for such jus- Js. may hear P CX1V APPENDIX* MASTERS AND tices, (1. c. by s. 1, any 2 Js. P. of the county, city, liberty, AND APPREN- town corporate, or place, but see post, p. cxv), upon applica- TICES. tion or complaint made upon oath by any master, mistress, 25 Geo. II. or employer, against any such servant, artificer, handicrafts- complaints of man > miner collier, keelman, pitman, glassman, potter, or masters or em- other labourer, touching or concerning any misdemeanor, ployers against m j scarr i a g e or ill-behaviour in such his or her service or servants, arti- ficers, or la- employment (which oaths such justices are hereby impowered bourers as to administer) to hear, examine, and determine, the same, and nish offender by to punish the offender by commitment to the House of Cor- commitment, rection, there to remain and be corrected, and held to hard . labour for a reasonable time, not exceeding one calendar and may hear month, or otherwise by abating some part of his or her complaints of wages, or by discharging such servant, artificer, &c.. or other such servants, . &c., against labourer, from his, her, or tneir service or employment ; their masters or an( j j n lik e manner also it shall be lawful to and for such Js. upon any comlaint or application upon oath, by any such servant, artificer, handicraftsman, miner, collier, keel- man, pitman, glassman, potter, or other labourer, against such master, mistress, or employer, touching or concerning any misusage, refusal of necessary provisions, cruelty, or other ill treatment of, to, or towards such servant, artificer, &c., or other labourer, to summon such master, mistress, or employer, to appear before such Js. at a reasonable time, to be prefixed in such smmons ; (and such Js. shall and may examine into the matter of such complaint, whether such master, mistress, or employer shall appear or not, proof being made upon oath of his or her being duly summoned), and, upon proof thereof made upon oath to their satisfaction, to discharge such servant, artificer, &c., or other labourer, of and from his said service and employment ; which discharge shall be given under the hands and seals of such Js. gratis." Apprentices 3. It shall be lawful for 2 or more such Js. (but see p. cxv) , with whom 5 upon any complaint or application by any apprentice upon on connplahrtof whose binding out no larger a sum than 5 was paid, touch- ill usage, have ing or concerning any misusage, refusal of necessary provi- a^herein" J< ? sion > cruelt 7 or otner ^ treatment of or towards such appren- tice, by his or her master or mistress, to summon such APPENDIX. CXV master or mistress to appear before such Js. at a reasonable MASTERS AND time, to be named in such summons ; and such Js. shall and AND APPUEN" may examine into the matter of such complaint, and upon TICKS. proof thereof made upon oath to their satisfaction, whether 25 Geo. II. the master or mistress be present or not, if service of the c ' ' summons be also upon oath proved, the said Js. may dis- charge such apprentice by warrant or certificate under their hands and seals, for which warrant or certificate no fees shall be paid;" and see 59 Geo. III. c. 92, s. 5, post. 4. It shall be lawful for such Js., (see infra,) " upon appli- Or on com- eation or complaint made upon oath by any master or mistress, P lamt ot n against any such apprentice, touching or concerning any misr tice with whom demeanor, miscarriage, or ill behaviour, in such his or her & only paid, to punish or service, to hear, examine, and determine the same, and to discharge ap- punish the offender by commitment to the House of Correc- prentice as tion, there to remain and be corrected and held to hard labour for a reasonable time, not exceeding 1 calendar month, or other- wise by discharging such apprentice in manner and form before mentioned." 5. Persons aggrieved by such determination, order, or Appeal. warrant of such Js., except any order of commitment, may appeal to the next Quarter Sessions. 6. No certiorari. By 29 Geo. II. c. 81, s. 3, " the several complaints, diffe- 29 Geo. II. rences, and disputes, which by the said Act (25 Geo. II. c. 8) c " 8< . J . } Complaints, as are directed to be heard and determined by two or more such above, may be Js. P., as in and by the said Act are described, shall and may be heard before heard and determined by one or more such J. or Js. P., which one or more J. or Js. P. is and are hereby empowered to make such orders, and to do all such other acts as two or more such Js. P. are empowered by the said Act to make or do," with like liberty of appeal. By Stat. 31 Geo. III. c. 23, s. 3, " if any apprentice or 31 Geo. III. person bound by indenture to serve in any trade or mys- c - 23 > s - tery, shall, during his or her apprenticeship, elope or run runnng away from his or her master or mistress, or wilfully refuse to away, or re- learn or to work at the trade or mystery to which he or J-"JJJ learn she is bound," [or shall do malicious mischief,] " every such Convictioil be . apprentice, upon conviction thereof before any magistrate lore one J. P. CXV1 APPENDIX. MASTERS AND WORKMEN, AND APPREN- TICES. 43 Geo. III. c. 86. Punishment. Workmen ne- glecting their work, or hindering others from working, or refusing to work, or return- ing it unfinish- punishment, on conviction be- fore 2 Js. upon the oath of one or more credible witness, shall be im- prisoned for any time not exceeding 3 months for every time he or she shall be guilty of any such offence ; and every magistrate is hereby authorized and required to hear all com- plaints and administer the necessary oaths, and issue the necessary warrants for carrying this Act into execution." The other sections of this Act, as to seducing artificers abroad, are repealed by 5 Geo. IV. c. 97, and the part of this section relating to malicious mischief, by 9 Geo. IV. c. 53. 43 Geo. III. c. 86, s. 6, " If any manufacturer, artificer, journeyman, workman, or labourer, being engaged with any master, mistress, or employer, shall, after such engagement and during the time for which he shall be so engaged, refuse to work, or shall absent himself from the service of the per- son by whom he shall he so employed, during the accustomed hours of working at such trade or occupation, as he shall be accustomed to be employed at, or if hired by the week, month, or year, shall neglect to come to work each and every day during the said term, on any account or pretext whatsoever, unless prevented by sickness or some other reasonable cause, to the satisfaction of the Js. before whom complaint shall be made ; or shall hinder, prevent, or molest, or attempt to hin- der, prevent, or molest any person or persons from working at any business or occupation on account of the said persons being foreigners, strangers, or natives of any other part of the United Kingdom, or of any other county, city, or place within Ireland, or on any other account whatsoever ; or shall refuse or neglect to work in the trade or calling he shall be so engaged for, and in an usual or reasonable manner, being thereto required by his employer, or shall return his work before the same shall be completely finished without the con- sent of the person or persons by whom he shall be so em- ployed, unless it be for some reasonable and sufficient cause, to be allowed by 2 Js. P. in their respective jurisdictions ; and shall be thereof convicted before 2 Js. P. for the county, city, or place, where such offence shall be committed, it shall be lawful for such Js. P., by warrant under their hands and seals, to commit the person or persons so convicted to the common APPENDIX. CXV11 gaol, there to be kept, without bail or mainprize, for any time MASTERS AND not exceeding 6 calendar months, or otherwise at the discre- AND tion of such Js. to some House of Correction within their TICKS. jurisdiction, there to remain and be kept to hard labour for 43 Geo. III. any time not exceeding 3 calendar months." 7. " If any master- workman, or any person whatsoever Masters hiring for him or by his direction, or with his privity, shall know- ^ir^ploy-^ ingly receive, employ, or entertain any artificer, journeyman, mem with manufacturer, workman, or labourer, already employed or Ol GT& a retained by another, during the time such artificer, &c., shall enalt ' before be so employed or retained, without leave of the person or 2 Js. P. persons by whom such artificer, &c., shall be so employed or retained, every such offender being thereof lawfully convicted before any 2 Js. P. for the county, city, or place where such offence shall be committed, shall for every such offence for- feit and pay any sum not less than 5 or more than 20 ; one moiety thereof to be paid to the person aggrieved," and the other moiety to the trustees of Stevens's Hospital, if the of- fence be committed in the county or city of Dublin, or if it be committed elsewhere, " to such public charity in the county or place where it is committed, as the Js. shall direct." 9. All undertakers or contractors for work in Ireland Who to be shall be considered as masters under this Act, so far as relates deemed mas ' tprc to the journeymen, artificers, workmen, and labourers em- ployed by them. 11. On complaint and information on oath One J> p *!! ia y summon offen- before one or more Js. P. such J. or Js. shall summon the der person or persons so charged, to appear before any 2 Js. of the place where the offence is committed ; in default of Service of sum- offender appearing according to such summons, after proof on mons * oath of the due service thereof, by delivering it to him per- sonally, or leaving it at his usual place of abode 24 hours at least before the time appointed for appearance, having deli- vered it into the hands of some person above the age of 16 then resident there, such 2 Js. shall make and issue their war- On non-ap- rant or warrants for apprehending the person or persons so ^,"^2 J~ summoned and not appearing, and for bringing him or them P. before such Js. ; on offender's appearance, or being brought 2 Js - p - to hear under the warrant, or upon proof on oath of his absconding a exviii APPENDIX. MASTERS AND WORKMEN, 43 Geo, III. c. 86. Commitment. Masters in the trade not to act, Compelling at- tendance and obedience of witnesses. Informer com- petent. Forms, return on parchment. Appeal on en- tering into re- cognizance as herein. so that it cannot be executed, such 2 Js. shall hear and deter- mine, and upon confession or proof on oath by one or more witnesses, convict or acquit, and give sentence for the penalty ; and in case such penalty shall not be forthwith paid, such 2 Js. shall and may, by warrant under their hands and seals, commit the offender or offenders to the common gaol for any time not exceeding 6 or less than 2 calendar months, unless such penalty be sooner paid, or at their discretion to some House of Correction, to be kept to hard labour for any time not exceeding 3 calendar months, unless such penalty be sooner paid. 12. No master in the particular trade concern- ing which any offence is charged to have been committed, shall act as a J. P. therein. 13. The J. or Js. before whom any such complaint is made, are hereby required, at the re- quest of any of the parties, to issue a summons to any wit- nesses to appear and give evidence at the hearing of the complaint, specifying the time and place. If the witness sum- moned fails to appear accordingly, without reasonable excuse^ and it be proved on oath that the summons was served per- sonally, or left at his usual abode 24 hours before the time of the hearing, or if he appear, but refuse to be examined and give evidence, such J. or Js. may commit him till he shall submit to be examined and give evidence. 14. " The in- former or prosecutor shall in every case under this Act be deemed a competent witness to prove the offence charged ;" and informers giving evidence are indemnified from prosecu- tion for the same matter. 15. Convictions and warrants to be drawn up in the form or to the effect set forth in schedule ; and 16, to be written out on parchment and transmitted to the next Quarter Sessions. 17. Any person convicted hereunder may appeal to the next Quarter Sessions, and the execution of the judgment shall be suspended, "in case the person so convicted shall, with two sufficient sureties, immediately enter before such Js. into a bond to his Majesty, his heirs and successors, in the penal sum of double the amount of the penalty so incurred or for- feited ; or in case such conviction shall contain judgment of imprisonment, such appellant shall immediately enter into a APPENDIX. CX1X recognizance before such Js., himself in the penalty of 20, MASTERS AND with two sufficient sureties in the penalty of 10 each ; and WOBKMEN such bond or recognizance shall be conditioned to prosecute c . 36. such appeal with effect, and to be forthcoming to abide the judgment and determination of the said next General Sessions or General Quarter Sessions, and to pay such costs as the said court shall award." 19. No person convicted under this Act, and who shall A bar to other suffer for his offence accordingly, shall be punished under puc any other law. > BE it remembered, that on the day of Schedule. -- / . i / i u/r > 1-1 Form of con' ear Maest s rein > and in To wit C m r a J es y s rei g n > an in e viction and 3 year of our Lord A. B. is convicted before commitment. us, [naming the Js.], two of his Majesty's justices of the peace for the county, [or city, liberty, town, or place,] of of having [stating the offence^] contrary to the Statute made in the forty-third year of the reign of his Majesty King George the Third, entitled " An Act to prevent unlawful combinations of workmen, artificers, journeymen, and labourers, in Ireland, and for other purposes relating thereto." And we the said jus- tices do hereby order and adjudge the said A. B. for the said offence to be committed to, and confined in, the common gaol for the said county, [or city, &c.,] for the space of [or to be committed to the House of Correction at within the said county, [or city, &c.,] there to be kept to hard labour for the space of ] Given under our hands the day and year above written. BE it remembered, that on [pursuing the same form Form of con- asfar as to the end of the title of this Act], and we, the said jus- vict ! on in a P e ' tices do adjudge and hereby determine the said A. B. for the said nalty. offence to forfeit and lose the sum of to be distributed as the said Act directs. Given under [as before]. There is also a form of commitment of a person summoned as a witness, which, from its length, is here omitted. The other clauses of this Stat. are repealed by the Combi- nation Act, 6 Geo. IV. ante, p. xxxviii ; see Oult. 807. There were also similar clauses in Stat. 3 Geo. III. c. 14, s. 2, 6. By Stat. 59 Geo. III. c. 92, s. 5, "it shall and may be Js, P. may fine cxx APPENDIX. MASTERS AND WORKMEN, AND APPREN- TICES. 59 Geo. III. c. 92. certain officers, and masters and mistresses for ill using apprentices. Penalty. Distress. Application. Appeal, Commitment. lawful for any two or more Js. P., assembled at any Special or Petty Sessions of the Peace, upon complaint being made upon oath before them of any neglect of duty, or of any disobedience of any lawful warrant or order of any J. or Js. P., by any con- stable or other peace or parish officer, or upon complaint made to such two or more Js. upon oath, by or upon the behalf of any apprentice to any trade or business whatsoever, whether bound apprentice by any parish or township or otherwise, (pro- vided that not more than the sum of 10 be paid upon the binding of such apprentice), against his or her master or mis- tress, of any ill usage of such apprentice by such master or mistress, (such constable or other officer, master or mistress, having been duly summoned to appear and answer such charge or complaint), to impose upon conviction any reasonable fine or fines, not exceeding the sum of 40s., upon such constable or other officer, master or mistress, respectively, as a punishment for such disobedience, neglect of duty, or ill usage ; and by war- rant under the hands and seals of any two or more of such Js., assembled at, &c., as aforesaid, to direct such fine or fines, if not paid, to be levied by distress and sale of the goods and chat- tels of the person or persons so offending, rendering the overplus (if any) after deducting the amount of such fine or fines, and the charges of such distress and sale to such offender or offen- ders ; and such fine or fines which may be imposed upon any such constable or other officer as aforesaid, shall be applied and disposed of for the relief of the poor of the parish, township, or place where the offenders shall respectively reside, at the dis- cretion of the Js. imposing the same ; and such fine or fines which may be imposed upon any such master or mistress, shall, at the discretion, &c., be either so applied and disposed of as aforesaid, or be otherwise paid and applied to or for the use and benefit of such apprentice, for or towards a recompense or com- pensation for the injury which may have been by him or her sustained by reason of such ill usage as aforesaid." Any person aggrieved by the judgment, fine, or by the warrant or distress, may appeal to the next General Sessions, " of which appeal 1 days' notice at the least shall be given. And for want of such APPENDIX. CXXl distress such person shall be committed to the House of Correc- MASTERS AND tion for any space not exceeding 1 days." As to fining consta- A ^D ^PREN- bles repealed, see ante, p. 16. TICES. For the Statutes relating to wages, see post ; and for com- bination, ante, p. xxxvi, et seg. NOTES AND BILLS. By Stat. 45 Geo. III. c. 41, s. 3, " all promissory notes, or NO TES AND undertakings in writing, being negotiable or transferable, for any BILLS. sum or sums of money less than 20s. Irish currency, or on which 45 Ge0t III- any sum less than 20s. Irish currency shall remain undis- Promissory charged, which shall bear date, or be issued in Ireland after 1st * o^under- January 1805, shall be absolutely null and void, and not be than 20s. void. negotiable or transferable ;" " and the person or persons who p ena ] t shall have issued, or shall issue the same, shall forfeit the sum sons issuing or of 10, Irish currency, for every such note or undertaking so issued, and the person or persons who shall have given or taken, or shall give or take the same, in payment, shall forfeit double the amount of each such note or undertaking to any per- son who shall sue for the same." Such penalties shall be reco- before 1 J. P. vered before any one J. P., upon the oath of one credible witness, or on confession, and if they be not paid, " upon such convic- tion being made, it shall be lawful for such J. P. by warrant under his hand and seal to cause the same to be levied by dis- tress and sale of the goods of the offender, together with all costs and charges attending such conviction and sale, return- ing the overplus (if any) to the owner : and if such offender shall not have sufficient goods and chattels to satisfy such pe- nalties he shall be committed to the common gaol or House of Correction, by warrant of such J. for any time not less than one month, or more than three months, unless such penalty or forfeiture shall be sooner paid." 4. " Any memorandum, What j nstru . ticket, token, draft, certificate, or engagement, written, printed, ments 10 be or engraved, on paper, card, vellum, or parchment, being nego- "" ' tiable or transferable, or which shall have been, or shall be, writing. given, negotiated, or transferred, with intent to imply or to make a promise or engagement to pay money or value of any CXX11 APPENDIX. NOTES AND BILLS. 45 Geo. III. c. 4L kind, in goods or otherwise, under the sum of 20s., Irish cur- rency, or on which a less sum than 20s. Irish, shall remain un- discharged, shall be deemed an undertaking in writing to all intents and purposes whatsoever." PAWNBRO- KERS. 26 Geo. III. c. 43. May take pledges. Must lend in money only. Disputes as to re-delivery or money to be paid determi na- ble, if under 40s., by 1J. P. ; if over, by 2 Js. P. On examination of the parties or of witnesses. Pawnbrokers taking pledges to enter parti- culars as herein, and give dupli- cate as herein. Charge there- for. PAWNBROKERS. Stat. 26 Geo. III. c. 43, s. 1, allows duly qualified pawn- brokers to take pledges, and require the exact rate of interest hereafter specified before redelivering them. 2. The sums of money lent by them shall be in current money, and no sum shall be made up by including any other sort of value or pay- ment whatever, post, p. cxxvi, cxxxii, 3. Rates of interest ; but see p. cxxxiv. 4. " In case any difference or dispute shall arise between any person or persons pledging any goods or chattels, and the pawn- broker or pawnbrokers with whom the same shall have been pledged, respecting the re-delivery thereof, or the money to be paid to such pawnbroker or pawnbrokers, every such difference or dispute, in case the original sum lent does not exceed 40s. shall be settled and determined by one J. P., and where the money lent exceeds 40s., by any two Js. P. acting for the respective county, city, &c. ;" which J. or Js. are hereby re- quired upon application made to him or them, by examination on oath of the parties themselves, (or if they are Quakers, on solemn affirmation), and such other credible person or persons as shall appear before him or them, to hear and determine ; which determination shall be final and binding upon all parties concerned, and no such difference or dispute shall be deter- mined in any superior court, or in any other manner. 5. Pawnbrokers shall enter in a fair and regular manner in a book kept for the purpose, a description of all goods pawned, and the sum advanced thereon, with the day of the month and year, and name and place of abode of the person pawning them, and also the name and place of abode of the owner, according to the information of the person pawning ; and shall at the same time give a duplicate or copy of such entry, charging therefor, when the sum lent does not exceed 10s., Id. ; when it exceeds 10s. and not 40s., 2d ; when it exceeds 40s., 4d. ; and no more. APPENDIX. CXX111 Such duplicates shall be on strong fair paper fit to bear writing, PAWNBRO- and large in proportion to the number of articles, and shall have . 26 Geo. 111. the name or names of the pawnbroker or pawnbrokers, and their c 43 number, sign (if any), and place of abode written or printed thereon." In default of making such entry, and giving such Penalty. duplicate as aforesaid, he, she, or they shall respectively, for every such offence, forfeit the sum of 40s., to be levied by dis- Levy andappli- tress and sale, by warrant under the hands and seals of any J. or Js. P. for the county, city, &c., where the offence is com- mitted, and paid to the minister or churchwardens of the parish wherein the offender or offenders reside, and by them applied to the use of the poor of the same. 6. The person producing the duplicate shall be deemed, so Persons pro- far as regards the pawnbroker, the real owner of the goods, ca tes,aod pay- or empowered to act for him ; and the pawnbroker is required, ing, to receive on receiving principal and interest, to deliver them to him, and ^ is indemnified for so doing, unless he shall have had previous have notice as notice from the real owners, not so to deliver them, or unless erem ' he had notice that they have been, or are suspected to have been, fraudulently or feloniously taken or obtained, and unless the real owners proceed as hereinafter directed for the redeem- ing goods, when the duplicate is lost or stolen. 7. In case any Tjp 0n notice, pawnbroker shall have had such previous notice, or in case any leal owner such duplicate shall be lost, mislaid, destroyed, or fraudulently p ert y ( and that obtained from the owner, and the goods remain unredeemed, duplicate is lost, then the owners of such duplicate, and of the goods mentioned j^^ 1 *"' " therein, as the case may happen, shall prove property in such goods to the satisfaction of a J. P. of the jurisdiction, and shall also make an affidavit (or affirmation) of the particular circum- stances attending the case before any J. P. ; whereupon the pawnbroker shall suffer the person proving property to the satis- faction of such J. P., and making such affidavit (or affirmation), to redeem such goods, and is indemnified for so doing. 8. Recites the evils of persons pawning the goods of others. Pawning, &c. " If any person or persons shall knowingly and designedly pawn or exchange, or unlawfully dispose of the goods or chattels of any person or persons, not being employed or authorized by the owner or owners thereof so to do, and shall be thereof con- victed by the oath of any credible witness or witnesses, or by CXX1V APPENDIX. PAWNBRO- KERS. 26 Geo. III. c. 43. On conviction before 1 J. P., penalty, enforced by commitment, and whipping if required. How applied. If it is proved before J. P. that goods have been injured, &c., whilst in pawn, a reasonable satisfaction shall be allowed to the owner to be deducted from principal and interest, and goods to be restored on the confession of the person or persons charged with such of- fence before any J. or Js. P. as aforesaid, every such offender shall, for every such offence, forfeit the sum of 20s. ;" if it be not forthwith paid, the J. or Js. P. before whom such conviction is had shall commit the party or parties so convicted to the House of Correction or some other public prison of the county, &c., wherein the offender resides or is convicted, there to remain and be kept to hard labour, for the space of 14 days, unless the said forfeiture shall be sooner paid ; and if within 3 days before the expiration of said 14 days it is not paid, the said J. or Js. P. are hereby required to order, on the application of the prosecutor or prosecutors, the person or persons so con- victed to be whipped in the House of Correction, or prison, or in some open public place of the city, borough, or town cor- porate wherein the offence was committed, as to such J. or Js. shall seem proper. The said forfeitures, when recovered, shall be applied to making satisfaction to the parties injured, and de- fraying the costs of prosecution as shall be adjudged reasonable by the J. or Js. convicting ; or if the party decline receiving such, or if there be any overplus, shall be paid to the minister or churchwardens for the use of the poor of the parish where the offence is committed. 9. " If in the course of any of the aforesaid proceedings be- fore any J. or Js. P. under this Act, it shall appear or be proved to the satisfaction of such J. or Js. upon oath (or solemn affir- mation), that any of the goods or chattels so pawned as afore- said, are become, or have been rendered of less value, than the same were at the time of pawning or pledging thereof, by or through the default, neglect, or wilful misbehaviour of such pawnbroker or pawnbrokers with whom the same were so pledged or pawned, his, her, or their executors, administrators, or assigns, agents, clerks, or servants, then and in any such case it shall be lawful, and every such J. and Js. is and are hereby required to allow or award after an examination on oath, (or solemn affirmation), of the parties, a reasonable satisfaction to the owner or owners of such goods or chattels in respect of such damage." Sums so awarded shall be deducted out of the prin- cipal and interest then due; and in all cases where goods APPENDIX. CXXV pawned are thus damaged, it shall be sufficient for the pawners, PAWNBRO- their executors, &c., to pay or tender the money due upon the balance, after deducting such reasonable satisfaction ; " or upon c 43 so doing the J. or Js. shall proceed as if the pawner or pawners, paying or ten- their executors, &c., had paid or tendered the whole money \^Q due for the principal and interest." 10. " If any person or persons shall knowingly buy, or Buying or tak- ing in pledge take in as a pledge, any linen or apparel, entrusted to any any )j nen< & c ^ other person or persons to wash, scour, iron, mend, or make intrusted to a up, and shall be convicted of the same on the oath of one ^ en ^ &c< credible witness, or confession of the party, before one or more J. or Js. acting for the county or district where the offence shall have been committed, every such person or p ena i ty persons shall forfeit double the sum given for or lent on the same, to be paid to the minister or churchwardens for the poor of the parish where the offence shall have been com- mitted, to be recovered in the manner other forfeitures are by this Act directed to be recovered, and shall likewise be Restitution. obliged to restore the said goods to the owner in the presence of the said J. or Js." For ss. 11 and 12 see ante, p. 108. 13. Search warrant, Arrest. Search ante, p. 288, <4 and if any person or persons shall oppose or hin- !^ arr der any such search, and be thereof convicted before any such search. J. or Js. by oath of one or more credible witnesses, every per- son so offending shall forfeit for every offence the sum of 5 ; Penalty. and if it be not paid immediately, or within 24 hours, J. or Js. P. convicting shall commit the party or parties convicted to the House of Correction or some public prison within their jurisdic- tion, there to be kept to hard labour for any time not exceeding one month, or less than 5 days, unless such forfeiture be in the meantime paid ; when recovered to be forthwith paid to the minister or churchwardens for the use of the poor of the parish. 14. No person shall be a pawnbroker who is not of good re- Pawnbrokers to pute, and does not execute a bond of 300, and procure three b on( ] > an( j pro . persons to give a bond each of 100, payable as herein ; and, by cure three . j Al _ e ., .. , . . others to do the s. 15, renew it upon the death or failure of any of the securities ; same> penalty for neglect so to renew within three months not less Upon death or than 5, nor more than 20, before two Js. P., to be levied, [i^\ e w Se o C nes if not paid within ten days, by distress. to be provided. CXXV1 APPENDIX. PAWNBRO- 16. Persons having entered into such security may carry 26 G^o K IH n k us * ness f a pawnbroker ; " and all and every such pawn- c. 43. broker or pawnbrokers shall cause to be painted or written, for Pawnbroker's public information, in large legible characters or letters not less name and busi- . . ness to be than four inches in length over the door of each shop, ware- painted over house, or other place by him, her, or them respectively made the door in let- . J , J ters of dimen- use of for carrying on that business, the name or names of the sions herein. person or persons so carrying on said business, and the word < pawnbroker,' or 'pawnbrokers,' as the case may be, following Penalty. the same, upon pain of forfeiting the sum of 5, for every shop, warehouse, or place which shall at any time be so made use of for the space of one week, without having such name or names, Warrant of dis- an( ^ the said words so painted or written," to be recovered by tress by 2 Js. P. distress and sale, by warrant under the hands and seals of any two Js. P., acting within the respective county, &c. The said penalty, when the charges of recovering the same shall be de- ducted, shall be paid one half to the informer, and the other half to the poor of the parish in which the offence is committed. In case sufficient distress shall not be found, or such penalty shall not forthwith be paid, such Js. are required, by warrant under their hands and seals, to cause the offender or offenders Commitment, to be committed to the county gaol or House of Correction, there to remain without bail or mainprize for any time not exceeding 3 months, nor less than 4 days, unless the penalty and all reasonable charges be sooner paid. Loan at 6 per 17. Nothing in this Act shall extend to persons lending at Carrying on ^ P er cent> on ^' ^' " ^ ***? P erson whomsoever, shall business of commence or follow the said business of a pawnbroker, who P^ n [ er . shall not have entered into and given such securities as are without giving security ; hereinbefore directed, every such person so presuming and taking- upon himself or herself the said business as aforesaid, or or lending at w ho shall take or receive any greater sums by way of interest higher inte- . . rest ; or giving mone y> or profit, or shall make up any sum lent by giving goods goods in part in part thereof, instead of current money, on any pretence what- soever, than at the rate of 6 per cent, per annum, such person shall forfeit and pay for each and every such oftence," on due proof on oath of one or more witnesses, or on confession " before before 2 Js. P. any two Js. P., for the county or district wherein the offence shall have been committed, any sum not less than 10, nor APPENDIX. CXXV11 more than 20, as such Js. shall think proper;" to be levied by warrant of said Js., by distress and sale; and paid to the 26 Geo. III. minister or churchwardens of the parish where offender re- c - 43< sides, for the use of the poor ; " and such offender shall also, in the presence of said Js., forthwith return the goods and chattels Goods to be re- , turned on pay- upon payment of the principal sum only, and no more, which reent O f pr [ n . he or she shall have advanced or lent on said goods." If the cP al onl y- fine be not forthwith paid, or for want of sufficient distress can- Commitment. not be levied, and said goods so returned, said Js. are required to commit the offender by warrant under their hands and seals to the common gaol or prison of the county or district, there to remain and be kept to hard labour for any term not exceed- ing 6 months, or less than 3 months, unless said fine be sooner paid, and goods returned. See also, 28 Geo. III. c. 49, s. 1, post, p. cxxxii. 19. " If any person confined for debt or other cause in Pawnbroking any marshalsea or prison, shall lend money on any pawn or ^olerTgoods in pledge, or give any kind of value for any pawn or pledge, or prisons, shall buy or receive goods of any kind which shall have been stolen, or clandestinely obtained, each and every person so offending," on due proof thereof by oath of one or more witness Conviction before any two Js. P. of the district in which he is confined, before 2 Js - p - " shall be committed to the felon's common gaol of said county or Punishment. district, by warrant under the hands and seals of said Js." which they shall grant, notwithstanding any action or execu- tion which such prisoner shall then be charged with, without injury to the marshal or keeper of the prison ; " and said war- Form of war ' rant of commitment shall not only state such offence and the fine incurred thereby, but also shall specify the several actions, executions, or causes upon which said prisoner then stands committed ; and said offender shall remain in actual and close custody in the said felon's common gaol, for the space of three months, without bail or mainprize, and shall also pay the fine mentioned in this Act, which is to be levied off any person who In addition to shall presume to lend money, not being qualified, at a higher fh^AcT " rate than 6 per cent, per annum ;" and in case of non-pay- ment, offender shall be further imprisoned in the manner before CXXV111 APPENDIX. PAWNBRO- KERS. 26 Geo. III. c. 43. Goods to be re- turned, or satis- faction made. Pawnbrokers selling malt or spirits, penalty before 1 J. P., notwithstand- ing license. What arrear of interest will authorize sale of pawns. All goods un- redeemed for a year may be sold. Or if pawnbro- ker dies, &c. Appraiser's duty. Delivering or posting bills of appraisement. Contents thereof. directed for the like offence, and also shall return the goods received by him to the owners, or shall still further continue in said felon's common gaol, until satisfaction shall be made equal to the value of said goods to such owner or owners ; the fine, if paid, shall be applied as before is set forth. 20. Gaoler of felon's gaol shall be accountable for such prisoner as the mar- shal or keeper had been. 21. No pawnbroker shall keep a public house, or be licensed for sale of malt or spirit ; " and in case any pawnbroker shall sell by retail any kind of malt liquor, strong waters or spirits, such pawnbroker, upon due proof thereof being made by one or more credible witness or witnesses upon oath, or on the confes- sion of the party before a J. P., acting for the county or dis- trict wherein such offence shall have been committed, such pawnbroker, for every such offence shall forfeit and pay the sum of 10, to be levied by distress and sale of the offender's goods, notwithstanding a license may have been obtained by such offender," payable to the minister or churchwardens of the parish wherein the offender resides, for the use of the poor. 22. Goods in pawn, upon which, not exceeding 20s. shall be lent, and on which 5 calendar months' interest shall be due, or when the sum lent exceeds 20s., but not 405., and 9 calendar months' interest shall be due, may be appraised in order to sell the same. 23. In all cases where the goods shall have remained unredeemed after the expiration of one whole year from the day on which they were pawned, the pawnbroker, his heirs, executors, &c., may obtain appraisement and sales. 24. No goods except as before mentioned, shall be appraised or sold until the expiration of one year, except also such pawnbroker should die, fail in his credit, or discontinue the business. 25. Prescribes the duty of the appraiser in listing the goods to be appraised, who shall give to the pawnbroker two fair copies of the entry he shall make ; of which the pawnbroker is to keep one, and to give the other to the owner of the goods if found, and if he cannot be found, have it posted on the next market or court house, to give notice of the intended sale. 26. Bill of appraise- ment to be on strong paper, with appraiser's name and number, APPENDIX. CXX1X sign, and place of abode, and the names of the owner, and PAAVNBRO- pawner of the goods, and to state that unless redeemed in 14 ' days they will be sold. 27. If the goods be not then redeemed c . 43. in 14 days, they may be sold by public auction, duly advertised, Sale after 14 and not otherwise, and shall be sold only by the appraiser who valued them, or persons appointed by him. The particulars (as herein) shall be entered for the inspection of all parties concerned, who shall be at liberty to examine the same in the day time, on paying Id. to the appraiser. 28. Pawnbrokers Entry of parti- culars by auc- shall enter an account of the sale of goods so sold, exactly tioneer, and by copied from such bill of sale or sale book, expressing the day pawnbroker, - 1-11 i which owner when, and money for which the goods were sold, with the may i ns p ec t. appraiser's or auctioneer's name and abode, and if they were sold for more than the principal and interest due at the time of sale, the overplus shall be paid to the person by whom, or on Returning whose account they were pawned, his executors, &c., provided demand is made in three years after the sale, deducting the necessary costs of the sale and appraisement, who for their satis- faction shall be permitted to inspect the entry so made, paying for every such inspection Id. " And in case any such pawnbro- Pawnbroker or ker or pawnbrokers, or such appraiser or auctioneer, who shall auctioneer re- have appraised and sold said goods, shall refuse to permit any inspection j such person or persons who pawned or pledged such goods or chattels, to inspect such entry in such book or books, (such per- son or persons, if an executor or executors, administrator or administrators, or assignee or assignees, at such time producing his or their letters testamentary, letters of administration or assignment) ; or in case the said goods or chattels were sold for or entering less more than the sum entered in such book or books ; or if any than the ie * 1 J sum for which such pawnbroker, appraiser, or auctioneer, shall not make such they sold ; entry, or shall not have bond fide, according to the directions of or omitting en- this Act, sold the same, or shall refuse to pay such overplus on i^ demand as shall appear to remain in his, her, or their hands, to or refusing the owner or owners, pawner or pawners, his, her, or their overplus, executors, &c., or assigns, producing such their letters testa- mentary, &c., or assignment; every such person so offending, Penalty, shall, for every such offence, forfeit treble the sum such goods CXXX APPENDIX. PAWNBRO- and chattels shall have originally been pawned for, to the per- KERS. son or persons by whom, or on whose account such goods or c . 43. chattels were pawned, his, her, or their executors, adminis- before 2 Js. P. trators, or assigns;" to be levied by distress and sale by war- rant under hands and seals of any two Js. P., for the county, &c., where the offence is committed ; and no such offence shall be tried in any superior court, or in any other manner than before two Js. P. as aforesaid. J. P. may, on 29. " It shall be lawful for any J. P. upon complaint made oath made be- to him, on the oath of one or more credible witness or witnesses, fore him, sum- . mon pawnbro- respecting any dispute between pawnbrokers and the persons who kers with all s\ia\\ have pawned goods, or respecting any felony or other mat- necessary books . and papers. ter which m the judgment of such J. shall make the production of any book, duplicate, voucher, or other paper necessary, which shall or ought to be in the hands, custody, or power of any pawnbroker, to summon such pawnbroker before him to attend with any book, duplicate, Voucher, or other paper which he or she may have in his or her custody or power, relating to the same, and which he or she is hereby required to produce before such J. in the state the same was made at the time the pawn or pledge was received, without any alteration, erasement, or Penalty for ne- obliteration whatever ; and in case such pawnbroker shall ne- glect to attend. ^| ec( . Qr re f use to attend, or to produce the same in its true and perfect state as aforesaid, such pawnbroker shall forfeit and pay to the minister or churchwardens, the sum of 5, for the use of the poor of the parish wherein such pawnbroker shall reside," to be levied by distress and sale, under warrant of the J. P. so summoning the party. No pawn to be 30. " No pawnbroker shall, upon any pretence whatever, disposed of ex- ^ Dispose of any pledge or pawn, or cause the same to be cept as herein. J * sold, otherwise than as this Act specially directs; and in case any pawnbroker shall sell, or cause to be sold, any pledge or pawn, otherwise than is herein directed, such pawnbroker, upon Penalty before due proof thereof, before a J. P. acting in the county or district 1 Jt ** of such pawnbroker's residence, shall be fined, and forfeit for every such offence, the sum of 5 sterling, besides the full value of any pledge or pawn that shall so be sold by such pawnbroker ; and in case any appraiser shall advance or lend money on any APPENDIX. CXXX1 pledge or pawn, and shall take any greater interest or profit PAWNBBO- thereon than at the rate of 6 per cent, per annum, such ap- * praiser, upon due proof thereof before any two Js., acting as c . 43. aforesaid, shall be fined, and forfeit for every such offence any Appraiser lend- sum the said two Js. shall think proper, not less than 10, or pledges. more than 20, as hereinbefore is directed to be levied off any Penalty before person carrying on the business of a pawnbroker not duly qua- 2 Js ' p< lified ;" in case the said fines and forfeitures on such pawn- broker and appraiser, shall not be forthwith paid, such J. or Js. shall grant a warrant for levying them by distress and sale ; " and the said fines (after deducting the necessary expenses of Application levying the same, and making reasonable satisfaction to the in- l jured party) shall be paid to the minister or churchwardens of the respective parish wherein such fine shall be levied, for the use of the poor thereof." 31. Appraisers shall enter into a bond of 300, and procure Bond and sure- three sureties in separate bonds each of 100, conditioned for ties for a PP rai ' sers. the true discharge of their duties, as herein, payable to the treasurer or town clerk for the purposes herein mentioned ; and, by s. 32, shall, on the death or failure of any security, procure a fresh one in his place ; penalty, for neglecting to give such secu- rity for 3 calendar months, 5 for each such neglect, recoverable before one J. P., leviable by distress and sale, payable to minister or churchwardens for the use of the poor of parish where ap- praiser resides ; appraiser to be incapable of acting until security renewed. 33. Form of oath for appraisers and auctioneers, to Oath before be sworn before two Js. P., but see post, p. cxxxv. 34. Act not to affect appraisers or auctioneers in other matters. 35. Appraisers act- l< In case any person or persons whomsoever shall take upon ing without himself or herself to act in the business or occupation of an ap- praiser who shall not be duly elected, appointed, and sworn by the person or persons having power or authority so to elect, appoint, or swear into office such appraiser, such person so pre- suming to act as an appraiser, and due proof being made Penalty before ; thereof upon oath before any J. P. of the district wherein the ' ' offender shall reside, shall pay or forfeit to the minister or churchwardens of the parish wherein such offender shall then reside, for the use of the poor thereof, 10 for each and every CXXX11 APPENDIX. PAWNBRO- 26 Geo. III. c. 43. Appointment of appraisers by grand juries. Rates of inte- rest and price of duplicates to be hung up in offices. Goods not re- turnable till payment. 28 Geo. III. c. 49. Pawnbroking by unqualified persons. Giving goods in payment. Receiving un- due interest by means of pledges. On conviction before 1 J. P., penalty and restitution. How levied and such offence ;" to be levied by distress and sale by warrant of the J. before whom the complaint is heard; if offender be unable to pay the fine, he shall by warrant of such J. be com- mitted to the public prison of the district where he resides, there to remain for 3 months unless such fine shall be sooner paid. 36. Grand Juries may in certain cases appoint appraisers. 38. Every person carrying on the business of a pawnbroker shall cause to be painted or printed in large legible characters, the rates of profit allowed by this Act, together with the prices of duplicates, and hang up the same in some conspicuous part of each office, shop, or warehouse wherein he carries on business. 39 42. Relate to certificates to be given to, and monthly re- turns to be made by, pawnbrokers. 43. No action for non- delivery of goods pawned to the owners is maintainable till the full sums due be tendered. 44. For protection of persons ex- ecuting the Act. Stat. 28 Geo. III. c. 49, s. 1, recites the foregoing Slat, and the evasion of the penalties thereunder by usurers. " If any person or persons, not being duly qualified and licensed, shall in any manner presume to use, exercise, or carry on the said trade or business of a pawnbroker ; or shall make up any sum required by any borrower or borrowers, by giving goods in part of such sum; or shall buy or agree to buy, or receive any pledge or pledges, at any certain price or prices, and shall re- turn the same, or part thereof, to such borrower, at a higher or greater value than such pledge or pledges had been respectively rated at when pledged or deposited, whereby to gain or obtain an exorbitant interest or profit for any sum so lent or advanced ; every such person so offending, upon due proof thereof being made upon oath, before any J. P. acting within his jurisdiction, by one or more credible witness or witnesses, or by the con- fession of said person, shall forfeit and pay, for each and every such offence, the sum of 5, and shall also return the said goods, or the value thereof, upon being repaid the exact sum borrowed; one-half of each of the said fines to be paid to the respective persons who shall prosecute such offender, and the other half, to be paid to the minister or churchwardens of the parish wherein such offender then resides, for the use of the poor of such APPENDIX. CXXX111 parish ;" if the fine shall remain unpaid for 24 hours after PAWNBBO- the adjudication thereof, the J. who has heard the complaint K may, and is hereby required to issue a warrant under his c< 49> hand and seal, to levy said fine, for the purposes aforesaid, by distress and sale of the offender's goods ; " said fine of 5, and In addition to every of them, to be levied and paid, over and above the fines fa er pe set forth in said recited Act, payable by any unqualified person or persons who shall presume to carry on or exercise the said business." 2, 3. Provide for licensing- and giving of security by pawn- Pawnbrokers in brokers in Dublin metropolis, or within three miles of it. 4, 5, 6. Jurisdiction of Divisional Js. and county of Dublin Js. over pawnbrokers in the same district, appeal, &c. 7. De- facing marks in plate, punishable as receiving stolen goods, see ante. 8. " No pawnbroker shall divide the sum any borrower shall Dividing loan want into smaller sums, in order to entitle such pawnbroker to so as to be P ai< * for more than receive payment for more than one duplicate ; and in case any one duplicate. pawnbroker shall demand and receive payment for more than one duplicate, for any sum authorized to be lent by this Act, as aforesaid, such pawnbroker shall, for every such offence, for- p ena it y before feit and pay the sum of 20s. on due proof thereof being made, 1 J- P on the oath of any credible witness, before any J. P. acting within his jurisdiction; and if said fine be not forthwith paid, said J. shall issue a warrant under his hand and seal, to levy the same by distress and sale of the offender's goods, which fine, when levied, shall be paid to the minister or churchwardens of the parish wherein said offender resides, for the use of the poor thereof." 9 to 18, contain special provisions as to appointment of gales in Dub - auctioneers and management of sales in Dublin. li* 19. Instead of the rates of interest set forth in 26 Geo. III. R ates O f j nte . c. 43, it shall be lawful for all qualified persons following the rest in 26 Geo. trade of a pawnbroker, to demand, receive, and take from persons applying or offering to redeem any goods or chattels pawned, a profit at the following rates over and above the principal sum lent on such pledges before such pawnbroker shall be obliged to re- deliver the same, and no higher interest shall be demanded on CXXX1V APPENDIX. PAWNBRO- KEBS. 28 Geo. III. c. 49. Interest now demandable. any pretence, viz. : For every pledge upon which there shall have been lent any sum above Is., and not exceeding 2s. the sum of one halfpenny, for any time during which the pledge shall remain in pawn, not exceeding one calendar month, and the like sum for every succeeding calendar month, including the current month in which such pledge shall be redeemed, pro- vided there be more than three days of said current month then expired : and For every pledge upon which And for every pledge upon which there shall have been lent a there has been lent sum above Per Month. Per Month. 1 2s. Od. 5%d. 2s. and not above 4s. Id. 140 ,,6 4 6 . . 1J 160 6J 6 ,> 8 . . 2 180 ,,7 8 10 . . 2| 1 10 7 10 12 . .--3 1 12 ,,8 12 14 .. 3J 1 14 8 14 16 . . 4 1 16 ,,9 16 18 .. 41 1 18 9J 18 20 . . 5 200 ,,10 In lieu of all charges. No pledge to be taken on Sun- day, or at other hours than are hereby allowed. And so on progressively for any sum not exceeding 10, allow- ing one halfpenny per month for each sum of 2s. which seve- ral sums shall be in lieu of, and taken as a full satisfaction for all interest due, and charges for warehouse room and all other expenses which may be necessary for the safe keeping of the pledges. 20. " No pawnbroker shall be allowed to receive, or take in any pledge or pawn upon Sundays, nor before ten o'clock in the morning of any other day in each week, or after four o'clock in the afternoon of any of said days, between the 29th day of September, and 25th day of March during the winter half-year, nor before ten o'clock in the morning as aforesaid, or after seven o'clock in the afternoon of any of said days, during the summer half-year, to wit, between the 25th of March and the 29th of September; and in case any pawn, broker aforesaid shall receive or take in any pledge on any Sunday, or before or after the hours above-mentioned, in APPENDIX. CXXXV which pledges are not to be received by them such pawn- PAWNBRO- broker shall, for each and every such offence, forfeit and pay ' the sum of 40s., due proof thereof being made upon the oath c> 49. of one or more credible witness or witnesses, before a J. P. of Penahy before the district wherein such offender resides ;" if the said fine be not paid within three days, the said J. is hereby required to issue a warrant, upon demand, under his hand and seal, to levy the same by distress ; when levied to be paid to the minister or churchwardens of the parish where offender resides for the use of the poor thereof. 21. Oath to be taken by pawnbroker in Dublin. Oath in Dub- 22. " No fine whatever shall be determined or adjudged ^ n against any pawnbroker or auctioneer, until such pawnbroker Summons to or auctioneer shall be duly summoned to appear before the J. P awDD roker. or Js. before whom complaint of any of said offences shall be made, and such reasonable time shall be allowed for the at- tendance of such pawnbroker or auctioneer, as the special case shall require ,- the service of every such summons to be proved Proof of ser- on the oath of one credible witness no way interested in the vice ' event of such adjudication." 23. The several clauses in 26 Geo. III. c. 43, not hereby altered, saved in force. By 5 & 6 Will. IV. c. 62, s. 12, where by any Act or Acts 5 & 6 Will. IV. for regulating the business of a pawnbroker any oath, affirma- c * 62 * tion, or affidavit, might but for this Act be required to be taken or made, the person who should take or make it shall, in lieu pawnbroker's or thereof, make and subscribe a declaration to the same effect : and such declaration shall be made and subscribed at the same time, on the same occasion, and in presence of the same per- sons as the oath, &c., would have been ; and all the enactments, provisions and penalties in such Act as to any such oath, &c., shall extend and apply to any declaration in lieu thereof, as if they were herein expressly enacted. Stat. 2 & 3 Viet. c. 37, amending the usury laws, pro- Not a ff ec ted by vides, s. 3, that nothing therein shall affect any Statute relating usury laws. to pawnbrokers. CXXXV1 APPENDIX. POOR LAW. POOR LAW. By the Act for the relief of the poor, 1 & 2 Viet. c. 56, 1 &2 Viet. s. 6, a written or printed copy of every order of the commis- Orders of com- s i ners > sna ^ ^ e sent D y them " sealed, or stamped with their missioners to be seal, addressed to the guardians of the union, or their clerk, or of" uardians 8 *^ e ffi cer acting in the management, or relief of the distressed and petty ses- poor, or other officers required to carry such order into effect, and sions, &c., t j je c ] er k to the justices at petty sessions, held for the division or divisions in which such union, or the place where such order is to take effect shall be situate ;" provided no neglect in sending such order to the clerk to the Js. shall affect its validity. 7. to be published, Every such clerk of the guardians, and clerk to such Js. respec- and copied tively, shall preserve and give publicity to such orders in such manner as the commissioners shall direct, and allow every rate- payer, (or his agent authorized in writing) in every such union to inspect the same, at all reasonable times, free of any charge, and furnish copies of the same, being paid at the rate of 3d. for every folio of 72 words, and allow copies or extracts to be taken, on being paid at the rate of 3 halfpence for every folio of 72 Penalty for ne- words ; " and in case any such clerk to the guardians, or clerk glecting to give to the Js. to whom such orders or copies thereof shall be sent as aforesaid, shall neglect to preserve and give publicity to the same, in the mode prescribed or directed by the commissioners, or shall refuse such inspection, or to furnish or allow such copies thereof to be taken, every person so offending shall for every such offence be subject and liable to a penalty not exceed- ing the sum of 10, nor less than 40s." Liability to 63. For the purposes of this Act, every husband shall be maintain wife liable to maintain his wife, and every child under the age of 15, and children. , . . * legitimate or illegitimate, which she may have at the ume or marriage ; every father to maintain his child, every widow her child, and the mother of every bastard child such bastard child, till they are respectively 15. This is not to affect any liability independently of this Act. Liability of 57. " Where any poor person shall, through old age, infir- children to mity, or defect, be unable to support himself, every child of such APPENDIX. CXXXV11 poor person shall be liable, according to his ability, to support, POOR LAW. or contribute to support, such poor person ; and in case relief * & 2 Vict - shall be given under this Act to any poor person whose child maintain pa- shall be liable to support him, or contribute to his support, it rents - shall be lawful for any two Js. P. of the jurisdiction within Enforced before which such child may dwell, on the application of the guar- dians of the union in which such relief shall have been given, by their order to direct what sum, not exceeding the cost price of such relief, shall be paid by such child to such guardians in respect of the relief which shall have been so given, and also what weekly or other periodical payments shall be made by such child to such guardians in respect of such relief as shall subsequently be given to such poor person ; and the sum so Sums to be directed to be paid, and also such weekly or other periodical p ena iti es . payments, when and as they shall become due, shall be recover- able by such guardians in the same manner as any penalties are recoverable under this Act." 58. " Every person who shall refuse to be lodged and main- Refusing to tained in the workhouse of any union, or abscond out of such or ' a scond ~ ing from work- workhouse while his wife or any child whom he may be liable house, disorder- to maintain, shall be relieved therein, and every person main- y. c n " uct > p r disobeying the tained in a workhouse who shall refuse to be set to work, or rules. shall be guilty of drunkenness, insubordination to the officers of the union, or disobedience to the rules prescribed or sanctioned by the commissioners for the government of such workhouse, or of other misbehaviour therein, and every person who shall intro- Introduc ing spirits. duce, or attempt to introduce, spirituous or fermented liquors into any workhouse, contrary to the orders of the commissioners, shall on conviction thereof before any J. P. at petty sessions in open Conviction court, either by the confession of such offender, or by the evi- J^ ^ 1 s J e ' s P '' dence on oath of one or more credible witness or witnesses, be sions. committed to the common gaol or House of Correction, there to Punishment. be kept to hard labour for any time not exceeding one calendar month." 59. " If any person shall desert and leave his wife, or any Deserting wife child whom such person shall be liable to maintain, so that such or ch " d ' wife or child shall become destitute and be relieved in the CXXXV111 APPENDIX. POOR LAW. workhouse of any union, every such person shall, on conviction 1 & 2 Viet. thereof before any J. P. at petty sessions in open court, either Conviction by tne confession of the offender, or by the evidence of one or before 1 J. P. more credible witness or witnesses, be committed to the conci- sions y S mon a l or House of Correction, there to be kept to hard Punishment. labour for any term not exceeding 3 calendar months." Js.P, may issue 60. " It shall be lawful for any J. P., upon oath being made warrant to i ap- b e f ore n j m t h a an y p erson hath committed any offence as prehend offend- ers. aforesaid, to issue his warrant to apprehend and bring before him, or some other J. or Js. P. at petty sessions in open court, the person so charged to be dealt with as is directed by this Act." 70. Before any rate shall be levied, the guardians shall publish a notice of its being made, in such manner as is directed Inspection of by the commissioners ; and thenceforth any person affected rates * thereby may, at all reasonable times, take copies thereof or Refusing to extracts therefrom, without paying anything therefor. " And allow ' in case the person or persons having the custody of such rate shall refuse to permit, or shall not permit such person or per- sons so affected thereby to take copies thereof or extracts therefrom, the person or persons so refusing or not permitting such copy or extract to be made, shall for each and every such offence forfeit and pay any sum not exceeding 10s.," recover- able as penalties under this Act. What sufficient 93. The delivery of any summons authorized to be issued service of sum- _ _. , . . , mons . by any J. r. under this Act, to any party to whom such sum- mons shall be directed, or at his place of abode, to his wife, or to any child or servant of such party, being 16 years of age or upwards, shall in all cases be deemed good and sufficient ser- J. P., &c., vice. 99. " In all cases in which any penalty or forfeiture is " plantr, wrt recoverable before Js. P. under this Act, it shall be lawful for ing, issue sum- any commissioner or assistant commissioner, or any J. to whom complaint in writing shall be made of any such offence, to sum- mon the party complained against to appear before any '2 Js., 2 Js. P. may and on such summons the said 2 Js. may hear and determine hear and deter- h mat ter of such complaint," and on proof of the offence con- tmne. vict and adjudge the penalty, and proceed to recover it. Officers dis- 100 u j n cage any warc | en? mas t er of a workhouse, or other APPENDIX. CXXXIX officer of any union shall wilfully disobey the legal and reason- roou LAW. able orders of guardians in carrying the orders of the commis- ' & * Vicu sioners or assistant commissioners, or the provisions of this Act, O b ev i n g gu ar- into execution, every such offender shall, upon conviction be- dians or com- missioners. fore any 2 Js., forfeit and pay for every such offence any sum ,. - Conviction not exceeding 5." before 2 Js p> 101. " If any master of a workhouse or other paid officer, Qffi cers> & c . or any other person employed by or under the authority of the purloining, said guardians, shall purloin, embezzle, or wilfully waste or mis- O r ^wasting^' apply any of the monies, goods, or chattels, belonging to any goods or money union, every such offender shall, besides and in addition to such ol pains and penalties as such persons so offending shall, indepen- p un j snment dently of this Act, be liable to, upon conviction before any on conviction 2 Js., forfeit and pay for every such offence any sum not ex- before 2 Js - p - ceeding 20, and also treble the amount or value of such money, goods, or chattels, so purloined, embezzled, wasted, or misapplied; and every person so convicted shall be for ever thereafter incapable of serving any office relating to the relief of the destitute poor." 102. " In case any person shall wilfully neglect or disobey Persons wilfully any of the orders of the commissioners or assistant commis- ^ s ^ ng or sioners, purporting to be sealed or stamped with their seal of office, such person shall, upon conviction before any 2 Js., for- Conviction feit for the 1st offence any s-um not exceeding 5 ; for 2nd of- fence not exceeding 20, nor less than 5 ;" 3rd and subsequent offences are misdemeanors, ante, p. 465. 103. All penalties and forfeitures under this Act shall, on Penalties re- conviction before any 2 Js. P., by confession, or oath of any credible witness or witnesses, " or upon order made as afore- said, be levied, together with the costs attending the informa- tion, summons, and conviction, by distress and sale of the goods and chattels of the offender, or person liable or ordered to pay the same respectively, by warrant under the hands of the Distress. Js. before whom the party may have been convicted, or on proof of such conviction, by a warrant under the hands of any 2 Js." which they are hereby empowered and required to grant ; the overplus, deducting the penalties and charges of distress and of sale, shall be returned on demand to the owner of cxl APPENDIX. POOR LAW. 1 & 2 Viet, c. 56. Return of dis- tress warrant. Commitment. Application of penalties. Competency of witnesses. Protection of person dis- training. Appeal. Notice of ap- peal. Kecognizance the goods. In case such fines, penalties, and forfeitures shall not be forthwith paid on conviction, it shall be lawful for srfch Js. as aforesaid, to order the offender or offenders so convicted to be detained in custody till return can conveniently be made to the distress warrant, unless they give sufficient security, by recognizance or otherwise, for their appearance on the return day, such day not to be more than 7 days from the time of taking the security. If, upon the return, it appears that no sufficient distress can be had, any such Js. as aforesaid, as the case may be, may and are hereby required " by warrant or warrants under their hands, to cause such offender or offenders to be committed to the common gaol or House of Correction of the county where the offender shall be or reside, there to remain without bail or mainprize, for any term not exceeding 3 calendar months, unless such penalties and forfeitures, and all reasonable charges attending the same shall be sooner paid." Penalties, when levied, shall be paid to or for the use of the union where the offence is committed, to be applied in aid of the poor rate ; if not committed within any union, to the treasurer of the county in aid of the county cess. 104. No rate-payer or inhabitant of any union, or payer of county cess, to be deemed an incom- petent witness because of the application of the penalty. 105. No distress shall be unlawful for want of form, or party distrain- ing a trespasser ab initio for subsequent irregularity, nor shall plaintiff recover for special damage, if tender of amends be made ; and defendant may pay money into court. 106. Persons ag- grieved by any order or conviction of any J. or Js., if the penalty exceeds 5, or by any rate, may appeal to any sessions to be held before the Assistant Barrister for the county, within 4 months after the cause of complaint shall have arisen, or if such sessions shall be held before the expiration of 1 calendar month next after the cause of complaint, then toHhe next following sessions. 107, 108. Proceedings after appeal. 109. Persons so appealing shall give or cause to be given at least 14 days, notice in writing of intention to appeal, and of the matter or cause thereof to the clerk of the guardians, or respondent or respondents, or to, the persons concerned in certain objections to rates. 111. " Within 5 days after notice given of appeal, the APPENDIX. CXH person or persons appealing shall enter into a recognizance be- POOR LAW. fore some J. P. with sufficient sureties, conditioned to try such 1 & 2 vict * appeal at the then next sessions of the peace, to be held in the to " tr y' a pp ea i presence of the Assistant Barrister as aforesaid, and to abide and abide order. the order of and pay such costs as shall be awarded by the Js. and Assistant Barrister at such sessions." 113. For protection of persons executing Act. 118. * Poor Law Commissioners' ' Poor Law shall be taken to mean the Poor Law Commissioners for Eng- ers > land and Wales, appointed under 4 & 5 Will. IV. c. 76. 119. The Queen may appoint a fourth commissioner. 121. Orders of com- The commissioners shall cause to be made a seal and duplicate jj S8 Q^ji5 an( j seal of the board, and all orders or copies thereof purporting to how proved. be sealed or stamped with the seal of the board, shall be re- ceived as evidence of such orders, and that they were duly made and issued ; and no order shall be valid or have any force unless sealed or stamped. POPULATION ACCOUNT. By Stat. 3 & 4 Viet. c. 100, for taking an account of the POPULATION . - T , , . . ACCOUNTS. population oi Ireland, s. 4, persons appointed to take the ac- 3 & 4 Viet. count, may ask such questions of all persons within their re- c . 100. spective districts, respecting themselves or their families, as shall be directed in their instructions, or necessary for taking the account. 5. " Every person refusing to answer, or Giving none or wilfully giving a false answer to any such questions, and every & S person in any way wilfully obstructing such persons in the persons em ploy- execution of the duties required of them under this Act, ?. in ta in ^ shall for every such refusal, false answer, or wilful obstruc- tion, on proof thereof made before any 2 Js. P. of the county penalty before in which such persons shall reside, on the testimony of one or S * more credible witnesses, forfeit a sum not exceeding 5," at the discretion of said Js. 6. " Every member of the said police or Wilful neglect constabulary force, or other person who shall be so appointed ^rsonTen!" to take the said accounts, or to assist therein, who shall ployed, make any wilful neglect, default, or falsification in any matters relating to the said accounts, shall for every such neglect, default, or falsification, on proof thereof being made before P enalt y before any 2 Js. P. of the county, in which he shall so act, on the testimony of one or more credible witnesses, forfeit a sum not Cxlii APPENDIX. POPULATION exceeding 5, or less than 40s." at discretion of the said Js. ACCOUNT. 7 Amount of f or f e it ur e s under this Act shall, if not imme- c | oo. diately paid be levied by warrant under hand and seal of 2 Js. Levy and ap- p. o f the county, addressed to one or more sub-inspectors of nakies. constabulary, as directed by 1 & 2 Viet. c. 99. The amount when paid or levied shall be forthwith remitted to the pay- master of civil services in Ireland, and by him paid, one half to the informer, and the other half to the credit of, and to be appropriated as, the surplus fund under the said Act. POUNDS. POUNDS. By Stat. 6 Geo. IV. c. 43, s. 1 , every person who shall be, 6 Geo. IV. or shall be duly appointed the keeper of any pound overt in J: 43 ' . Ireland, legally constituted, at some Quarter Sessions or ad- Pound-keepers . J to give security journment thereof, enter into security by recognizance to the as herein, Clerk of the Peace of the? county, county of a city,^or town, within which such pound is situate, or to the mayor or other chief officer of a town corporate, where a pound shall be situ- ate within the jurisdiction of such town, conditioned for the due execution of the office of pound-keeper each such pound- and renew the keeper in 10, and two sufficient sureties in 5 each ; and same annually. everv such security shall be renewed yearly and every year, in manner aforesaid ; " and if any person in Ireland shall keep any pound overt, or shall act as a pound-keeper, without having given and entered into such security as is required by this Act, or without having renewed such security in manner Penalty. aforesaid, every such person shall, for every such offence, for- feit the sum of 10, recoverable as hereinafter mentioned. Whenever any 2. Pound breach and rescuing cattle a misdemeanor, ^ut^pound" 8 ante > P- 468 ' 3 ' " Evei T pound-keeper as aforesaid, whenever notice to be and so often as any animals of any description which shall be ^unda^Vad found stra y in S sha11 be impounded with him, shall post a jacent church written notice on the gate of his pound, and also upon the and chapel, de- nearest church and chapel, setting forth a description of such scribing the animals so im- cattle so impounded or in his possession; and such notice pounded. shall remain so posted, until such animals shall have been claimed, or otherwise disposed of by due course of law ; and every pound-keeper who shall neglect to post such notices, APPENDIX. cxliii shall not claim or be entitled to receive any poundage fee for POUNDS. the custody of such animal, and shall for each such neglect ' c forfeit a sum not exceeding 5." Penalty. 4. The magistrates at Michaelmas Quarter sessions, may Charge which appoint and fix the rates which pound-keepers may charge, for i^make^or* the sustenance of any cattle committed to any pound in case the sustenance of owner should not feed them himself; " which rate or price so cattle ' fixed by such magistrates shall constantly be and remain posted in legible characters, either on the outside of the dwelling- house, or on the outside of the pound, of every such pound- keeper ; and every pound-keeper, who shall not keep such rate Penalty for not so continually posted, or who shall charge any greater sum or posfed^utTor rate for the sustenance of any such cattle, than the rate or sum charging more fixed by such magistrates, shall forfeit any sum not exceeding * a w , iat s a 5 for each and every month that he shall so act as pound keeper without having such rate affixed as aforesaid." 5. "It shall be lawful for the keeper of each and every Charges of pound in Ireland legally constituted, to demand and receive as P ound ' kee P ers * pound fees, for the cattle of the several descriptions im- pounded therein the several and respective sums following, and no more ; i. e. for the first or only horse, mule, or ass, For the first and for the first or only horned beast commonly called black ^W^for^*' cattle, the sum of 5d., and the further sum of 2c?. for each every other. and every additional beast of the kind impounded at the same time for the same distress ; and for any one or more, not For sheep, &c., exceeding four in number, of sheep, lambs, goats, or swine, " ot exceedin g which shall be so impounded, the sum of 4d. and the further id. for every sum of Id. each for every additional animal of the like kind, one additi onal. beyond four, impounded at the same time or for the same distress." 6. " The several sums so by this Act authorized What to be to be demanded and taken by any such pound-keeper, shall be keep taken and deemed to be in full satisfaction as pound fees to tira e during such pound-keeper for 3 days, consisting of 72 hours, next "jj j&Jin after the time when such cattle shall be so impounded, pounded. whether such cattle shall remain impounded during the whole or during part only of such 72 hours ; and after such 3 days it shall be lawful for any pound-keeper to demand and take one-half of the like sum, at the rate herein-before men- I'm-" cxliv APPENDIX. POUNDS. 6 Geo. IV. c. 43. Greatest fees for a distress, Extortion by pound-keepers. If pound not walled and cleaned daily, and supplied with water ; or if keeper administers an oath. Penalty. Cattle dis- trained shall be impounded in the nearest pound ; and within the same barony and county. Where there is a manor pound, cattle may be impounded in such manor pound. Penalty on per- tioned, for every additional 72 hours during the whole or any part of which any cattle of the description herein-before mentioned shall remain in the custody of such pound-keeper in such pound, and whether such cattle shall remain im- pounded during the whole or during part only of such 72 hours : provided, that no greater sum shall be demanded or taken by any pound-keeper, as pound fees, for any one distress for the same demand, than the sum of 20e?. in the whole, whatever may be the number of animals taken for such dis- tress, or whatever may be the length of time that they shall have been impounded for the same." 7. " If any pound- keeper in Ireland shall demand or take any greater sum for the impounding of any cattle than such pound-keeper is by this Act authorized to demand and take ; or if the walls of the pound of any such keeper shall not be well and substan- tially built with stone or brick, and of the height of 7 feet at the least; or if three -fourths at least of the area of any such pound shall not be scraped or swept once in every 24 hours at the least, or otherwise kept clean and in good order, and with a sufficiency of wholesome water for the cattle which from time to time shall be kept therein ; or if any pound keeper shall take upon himself to administer any oath ; every such pound keeper shall, upon conviction of any such offence or neglect, forfeit and pay a sum not exceeding 5." 8. " All or any cattle, of whatever description they may be, which shall be seized and distrained for the purposes of being impounded, in order to secure and enforce the payment of any rent, or to levy the amount of any decree of court, or for any trespass or other matter whatsoever, shall be driven to and shall be impounded in the pound overt which shall be situate next and nearest to the land upon which such cattle shall have been so distrained, and within the same barony and county." 9. " Provided that where there shall be a manor pound appertaining or reputed to appertain to any particular manor or estate, all or any cattle which shall be seized and distrained on any land belonging or reputed to belong to such manor or estate, shall and may be impounded in the manor pound of such manor estate." 10. " If any cattle distrained APPENDIX. Cxlv shall be impounded in any pound contrary to the direction POUNDS. and provisions of this Act, every person so offending shall, 6 ^eo. 1V * upon conviction, be liable to forfeit and pay any sum not ex- sons impound- ceeding 5 for each such offence." IhUAct^ * 11. " All penalties incurred under this Act, by any person ' , who shall be guilty of any offence against this Act, and all this Act, and damages not exceeding 10, to which any pound keeper shall a11 damages not ' exceeding 10, or may be subject, by reason or on account ot neglect or de- a g a i nst pound- fault of such pound keeper, either in enlarging any cattle dis- keepers for ne- trained and impounded, or in permitting any such cattle to be f e covere ** ante, p. 142-144, " and such offender or offenders shall perse from UQ- thereupon be proceeded against in a summary way for such of- fence, before any two Js. P. before whom he or they may be brought ; and such Js. are hereby authorized to hear and de- termine the said complaint ; and every person, being convicted thereof, on the oath of one or more credible witnesses, shall be committed to any one of his Majesty's common gaols or prisons, for the term of one calendar month ; and for a second, or any subsequent offence against the provisions of this Act, for the term of three calendar months." The offence may also be, and commonly is, the subject of indictment, ante, p. 466. PROFANE SWEARING. PROFANE By Stat. 7 Will. III. c. 9, for preventing profane swearing. BEARING. 1. If any person or persons shall profanely swear, and curse c 9 in the presence or hearing of any J. P. of the county, division, or Profane cursing o f the mayor or other head officer or J. P. for any city, or town presence o? ^ c r P rate ' where such offence is or shall be committed, or that J. P., shall thereof be convicted on the oath of one witness, or by the or on conviction confession of the party offending, before any J. P. of the county ' *' or mayor or bailiff or other chief officer or J. P. of such city or town corporate where the said offence shall be committed ; for penalty. every such offence the party so offending shall forfeit and pay to the use of the poor of the parish where such offence or offences shall be committed, the respective sums hereinafter mentioned : i. e., every servant, day labourer, common soldier, and common 1st, 2nd, or 3rd seaman, Is., and every other person, 2s. ; and in case any of the persons aforesaid shall, after conviction, offend a second time, such persons shall forfeit and pay double, and if a third time, treble the sum, respectively by him or her to be paid for the first offence." On nonpay- 2. < Upon neglect or refusal of payment of the said forfei- ture, any J. P. of the county, or mayor or other head officer or J. P. of any city, or town corporate where the said offence APPENDIX. Cxlix shall be committed, shall direct and send his warrant to the PROFANE constable, tithing-man, churchwarden, or overseer of the poor SWE of the parish where the offence shall be committed, or where the c< g t offender shall inhabit, thereby commanding them, or some one distress war- or more of them, to levy by distress and sale of the goods of the offender, the sum so forfeited for the use of the poor of the parish as aforesaid ; and in case no such distress can be had, In default of distress, for then every such offender being above the age of 16 years, shall adults, stocks ; by warrant under the hand and seal of the said J. P. or other officer as aforesaid, be publicly set in the stocks for the space of one hour for every single offence, and for any number of of- fences whereof he shall be convicted at one and the same time, then two hours, and if the party offending be under the age of for youths 16 years, and shall not forthwith pay the said forfeitures, then he shall by warrant as aforesaid be whipped by the constable, or by the parent, guardian, or master of such offender in the presence of the constable." 3. J. P. or chief magistrate wil- Penalty on J. fully neglecting the execution of this Act, forfeits 5 recovera- ting"^ 6 ^ 60 ble by action, &c. ; and by s. 4, if sued for executing the Act, Limitation. may plead general issue. 5. No person shall be prosecuted or troubled for any offence against this Statute unless the same be proved or prosecuted within ten days next after the offence committed." 7. Js. P., &c., shall register all the convictions made be- fore him upon this Act and certify the same to the next Quarter Sessions. There is an earlier Stat. 10 and 11 Car. I. c. 1, against Earlier Sta- profane swearing, inflicting a penalty of 1*., recoverable as tutes ' above, or in default of distress stocks for three hours, or if the offender be under 12 years, whipping ; the limitation is twenty instead of ten days. PUBLIC HOUSES. Stat. 3 & 4 Will. IV. c. 68, ss. 1, 6, prescribes the man- PUBLIC ner of obtaining licenses for the sale of spirits, beer, &c., by HOUSES. retail. 7. Party requiring the license shall enter into a bond g ^ !l1 ' IV * with sureties for the payment of all penalties or sums of money Licensing, becoming due for any offence against the Act, by the person to whom the license is granted. 8. If any person licensed to Magistrate* cl APPENDIX. PUBLIC HOUSES. 3 &4 Will. IV. c. 68. may annul li- censes held by persons con- victed of mis- demeanor or of offences of a higher nature. Selling after- wards. Persons obtain- ing licenses shall enter their names with the Clerk of the Peace. Penalty, liegister of sell beer, cider, or spirits by retail shall, during the continu- ance of such license or licenses, be convicted of any misdemea- nor, or of any offence of a higher nature [or of offences under this Act within two months, but see 6 & 7 WilL IV. c. 38, a. I6,post,~\ it shall be lawful for the Js. P. within whose ju- risdiction such person shall be licensed, assembled at any Quarter Sessions or adjournment thereof, by order in open Court made upon due notice, to annul the license, " and if any such person whose license or licenses shall be so annulled, and on whom a notice shall have been served of the same being annulled, signed by the said magistrates or any two of them, shall sell by retail any spirits or beer, every such person shall be subject to the same penalties as persons selling beer, cider, or spirits without having obtained a license for that purpose are by law liable." 10. "Every person. who shall obtain a license to sell spirits, beer, or cider by retail, to be consumed in the bouse where sold, shall, within 6 days next after he shall have so obtained such license, deliver, or cause to be delivered to the clerk of the peace for the county, city, or town within which the house specified in such license shall be situate, a note in writing, under the hand of such person, or under the hand of some person by him authorized in that behalf, in which shall be specified, set forth, and inserted the Christian and surname and place of abode of such person, and a description of the house and premises in which spirits, beer, or cider are licensed to be sold by such person, and the place where such house and premises shall be situate, together with the Christian name and surname and the occupation or profession, and actual re- sidence of each of the persons who shall have become sureties for such licensed person ; and such licensed person shall pay or cause to be paid to such clerk of the peace the sum of 2*. 6d. ; and if any person who shall have obtained such license as aforesaid shall not, within the time and in the manner here- inbefore directed, deliver or cause to be delivered such note in writing as aforesaid, every such person shall forfeit and lose the sum of 10." 1 1. A list or register of every license so granted for selling APPENDIX. by retail any beer, &c., to be drank on the premises, specifying PUBLIC the name and place of abode of every person licensed, and of 3 each of his sureties, and the description and situation of the c. 68. house or place mentioned in such license, shall be kept at the Iicen! > es to be kf*nt bv the office of the Clerk of the Peace, which list shall at all rea- clerk of the sonable times be produced and open to the inspection of every Peace, magistrate within whose jurisdiction the house or place licensed is situate ; and any copy or extract therefrom at any Open to inspec- time required by any such magistrate shall be given to him tlon J * ' by such Clerk of the Peace. 12. Persons who obtain licenses for the sale of spirits In Dublin, within the police district of Dublin shall enter their names, &c., at the Head Police Office, and pay 10s. to the receiver of public offices, under a penalty of 2. 13. " No distiller, brewer, rectifier or compounder of No distiller, spirits, bailiff, gaoler, turnkey, constable, sheriff, sub -sheriff, ^"thaiThofd sheriff's officer, peace officer, or keeper of any turnpike gate, a license for the nor any person not being a householder, shall be capable of sale ofbeer - &c - receiving or holding a license to sell beer, cider, or spirits by retail, to be drank on the premises." And by 6 & 7 Will. IV. c. 28, ss. 2 and 3, no person appointed to serve civil bill pro- cesses, or grocers under certain restrictions. 14. " No person selling or licensed to sell beer or cider, Retailers' spirits or wine, by retail, to be drank or consumed on the houses shall not be open for the premises, shall have or keep his house or other place of sale sale of spirits open for the sale of spirits, wine, or beer, nor shall sell or re- between ] ' at i -. i n /r ... night and 7 in tail spirits, wine, or beer, nor shall suiter any spirits, wine, the morning. or beer to be drank. or consumed in or at such house or other place, at any time between the hours of 1 1 in the night and 7 in the morning, nor at any time before 2 in the afternoon on or before 2 on any Sunday, (see also 6 & 7 Will. IV. s. 4, p. clxxvii), Good certain holy- Friday, Christmas Day, or any day appointed for a public fast or ays< thanksgiving ; and if any such person shall keep his house or other place of sale open for selling, or shall sell, spirits, wine, or beer, at any time between the hour of eleven of the clock at night and the hour of seven of the clock in the morning, or at any time before two of the clock in the afternoon on any Sunday, Good Friday, Christmas Day, or any day ap- pointed for a public fast or thanksgiving, such person shall APPENDIX. PUBLIC H " SES ' c/68. ' Exception as to Search, &c. Penalty if per- sons are found gaming at pro- hibited hours, Parishioners to appoint over- Disobeying or- Penalties may information ex- hibited before ' ' ' and heard by *' on appearance of party, or on proof of service of summons as forfeit the sum of 2 for any such offence ; every separate sale shall be deemed a separate offence, and all sales on any one d a y shall k e deemed and may be prosecuted as separate offences ; provided always, that nothing herein contained shall extend to prohibit the sale of spirits, wine, or beer to a tra- veller." 15 18. Js. P., &c., may enter and search during pro- hibited hours. Penalty on persons found tippling or opposing entry, &c., ante, p. 290. 19. " Every person selling or licensed to sell spirits, wine, or ^ eer ^y retail, in whose house or place any person shall be found to be or to have been recently drinking, tippling, or gaming at any hour or time at which the sale of spirits or beer is prohibited by this Act, shall, upon conviction thereof, forfeit and pay the sum of 2." 20. Parishioners of the several parishes in Ireland at ves- try, once a-year,'or oftener if necessary, may appoint 5 over- seers, who shall have powers as constables for executing this Act; but see 6 & 7 Will. IV. c. 38, s. \3,post, p. clxxx. 21. Closing houses in cases of riot, see this sect, ante, p. 141 . " And every person to whom such order shall be given, and who shall keep open such house or other place in viola- tion of such order, shall forfeit and lose the sum of 2." 22. For the recovery of any penalty imposed by this Act ^ or w ^^ cn no other provision is hereby made) an information may be exhibited by any person whomsoever before any 1 or more Js. P. for the county, city, town, or place wherein the offence shall have been committed, or the person or persons committing the same shall be found ; and such information s ^ a ^ ^e nea i*d an( ^ determined in Dublin by any 2 divisional Js. in one of the public offices, and elsewhere by any 2 or more Js. P. for such county, &c., in petty sessions asembled; and any 2 or more of such divisional Js. or. Js. P. shall, upon suc h information having been so exhibited, and upon the ap- . , . P e &rance of the person and persons against whom it has been exhibited, or, in default of such appearance, upon proof of the service of such summons on such person or persons as hereinafter mentioned, to proceed to examine the facts in the APPENDIX. cliii information alleged, and give judgment for such penalties, as PUBLIC upon due examination of 1 or more credible witnesses, or on $ ^4 ^ til' IV confession of the party accused, shall be found to have been c . 53. incurred, together with the legal costs of the conviction ; and Conviction on shall grant a warrant under their hands for the due execution more w i tnesses> as hereinafter mentioned, of such judgment. or confession. 23. Every such information shall be within a month, but Penalty, costs, and execution. see now 6 & 7 Will. IV. c. 38, s. 13, post, " and a notice in Limitatioa< writing of such information having been so exhibited shall Not j ce to t, e within one week after the exhibition thereof be given to the given within a person or persons against whom the same shall have been so ^matton' * exhibited;" and the J. or Js. P. before whom it is exhibited Summons, are required to summon every person against whom it is ex- hibited " to appear and plead to, and to attend the hearing of such information at a time and place to be stated in such summons, which summons shall be served upon every such Service 2 days person or persons two days at least before the time appointed before hearing, in such summons;" see post, p. clxii. 24. " It shall be lawful for such J. or Js. P. respectively, Js. P. may mi- to mitigate any penalty annexed by this Act to the offence for tJ S ate P enalt y which any information shall have been exhibited before such J. or Js. respectively, so as such mitigation shall not in any case reduce such penalty to less than one-fourth thereof ; and and se . t out the cause of such mitigation shall be set forth upon such con- con viction. viction." 25. Persons against whom any information is exhibited, Appeal, who are aggrieved by the judgment thereon, giving notice, may appeal to the next Quarter Sessions, or if there be not one week between the adjudication and the next sessions, then to the sessions next after the expiration of such week. Sessions may finally determine and may rectify any formal defects in the proceedings or the record. 26. " No such appeal No appeal al- shall be allowed unless the party or parties appellant shall, n Tfce "hereof within 48 hours after the giving of the judgment appealed given, against, give notice in writing of such appeal to the clerk of the Js. or Sessions from whose judgment such appeal shall be made, and shall lodge such notice at the office or with the Clerk of the Peace" at that Quarter Sessions before whom it is to be deter- mined. Nothing herein to prevent a certiorari. u cliv APPENDIX. PUBLIC HOUSES. 3&4W111.IV. c. 68. Certiorari. Execution shall not be stayed unless the party convicted enter into recogni- zance. Condition thereof. Prosecutor and witnesses also to be bound to ap- pear and give evidence. Penalty on wit- nesses not attending. Proceedings when convic- tion affirmed. 27. " No appeal shall stay or prevent the execution of any warrant or process on any conviction unless the party convicted shall before the convicting J. or Js. enter into a recognizance, with two sufficient sureties, in a sum equal to double the amount of the penalty or penalties in which the said party shall have been convicted, and of the costs awarded, if any, conditioned that the party so appealing shall personally appear at the proper General Quarter Sessions, and abide the judgment of the court thereupon, and pay such costs, if any, as shall be by the court awarded ; which recognizance such J. or Js. is and are hereby authorized to require and take of the party convicted entering into such recognizance ; and the J. or Js. who shall take such recognizances is and are also hereby required to bind the person who shall make the charge on which such judgment shall have been given in a recogni- zance conditioned that he shall appear at such General or Quarter Sessions aforesaid, then and there to give evidence against the person so charged, and to, in like manner, bind any other person who shall have any knowledge of the 'circum- stances of such offence." 28. Sessions shall rehear the case, and may state a special case for the opinion of the Queen's Bench; and by s. 29, shall award costs on failure of the appeal. 30. " Any person duly and necessarily summoned as a wit- ness to give evidence before any J. or Js., or any court of General or Qr. Sessions, touching any of the matters aforesaid, either on the part of the complainant or of the person accused, who shall neglect or refuse to appear at the time and place for that purpose appointed, and who shall not make such reason- able excuse for such neglect or refusal as shall be admitted and allowed by such J. or Js., or Sessions, or who appearing shall refuse to be examined on oath or affirmation, and give evidence, shall forfeit the sum of 2," to be recovered and enforced as any penalty under this Act. 31. " Where any judgment appealed against under this Act shall be affirmed, such judgment may be enforced and executed by the original convicting J. or Js. P. respectively, in like manner as if there had been no appeal." APPENDIX. civ 32. " Where any judgment not appealed from, or any PUBLIC HOUSES. judgment affirmed on appeal, is by this Act required to be enforced and executed by the J. or Js. by whom the same c> 68 shall have been given, such J. or Js. P." may and is and are j s . shall grant required " to award and grant a warrant or warrants under his warrants to lev y amount of judg- or their hand or hands to any constable or peace officer m en t. authorizing such constable or peace officer to levy the penalty or penalties or sum or sums of money so adjudged upon the goods and chattels of such person or persons so convicted, and either to detain and keep such goods and chattels in the house or place where the same shall have been found, or to remove the same to some convenient place of safety." 33. A similar provision where the judgment is required to be enforced by the Quarter Sessions. 34. " It shall which may a p - be lawful in any such levy warrant to order and direct therein ^ Q^tex- that the goods and chattels upon which such levy shall be ceedmg 10 days made shall be sold and disposed of so soon as conveniently may be, after a certain time to be limited in such warrant for the sale thereof (so as that such time be not less than 6 nor more than 10 days from the day of seizure), unless the penalty or penalties or sum and sums of money for which such levy shall be made shall, within the time limited for the payment thereof as aforesaid, be paid and satisfied." 35. It shall be lawful for the constable or peace officer Penalty and ex- making such levy, and he is required to deduct the penalties or deducted from sums of money for which it is made, and all reasonable charges the sale, and and expenses attending such levy, not exceeding Is. in the pound on the amount specified in such warrant, out of the money aris- ing by such sale, and to return the overplus, if any, to the proprietor or proprietors of the goods sold, or to the person legally entitled thereto; and such officer shall, if required, A copy of the show such warrant to the person upon whose goods such warraQ t rna y be levy is made, and suffer such person or persons to take a copy thereof. . 36. " For want of sufficient goods and chattels whereon such Where suffi- penalty and penalties or sum and sums of inonev, with the cient dl f ress J ' cannot be charges and expenses aforesaid, may be levied, and on a return found, in writing made upon any levy warrant by any constable or clvi APPENDIX. PUBLIC HOUSES. 3&4WU1.IV. c. 68. and a return to that effect is made to any 2 Js. P., or that a part has been levied and there are not goods to satisfy the re- sidue. Offender may be committed for 1 month if not exceeding 5 ; for 2 if exceeding 5. Proviso for offenders pay- ing penalty, &c. On default of full payment of penalties, pro- ceedings may be had against the sureties. peace officer to whom such warrant may have been directed, to the Js. by whom such warrant shall have been granted, or to any two or more of the Js. P. within whose jurisdiction any such warrant shall have been issued, that such constable or peace officer cannot find, within the jurisdiction in which such warrant shall have been issued, any goods and chattels of the person against whom such warrant shall have been granted whereon the same can be levied, or on a return as afore- said, that part of such penalty and penalties, or sum and sums of money, charges, and expenses, has been levied or paid, and that the constable or peace officer cannot find my further goods and chattels of the person or persons against whom such warrant shall have been granted beyond the goods and chattels already seized and sold, within the jurisdiction as aforesaid, whereon the residue of such penalty and penalties, &c., can be levied, it shall be lawful for such Js. to commit such person to the common gaol or to the House of Correction of the county or place for which such Js. shall then be acting for any term not exceeding one calendar month if the penalty or penalties or sum remaining due on foot thereof shall not be above 5, for any term not exceeding two calendar months if the penalty &c., shall be above 5": provided, that if any offender so committed shall pay or cause to be paid to the gaoler or keeper of the gaol or House of Correction, or to whomsoever such J. or Js. shall have appointed, the penalty, &c., at any time previous to the expiration of the time for which he shall have been committed, such offender shall be forthwith discharged. 37. In case any person convicted under this Act shall not pay the penalty and costs awarded by such conviction, or upon any appeal therefrom, it shall be lawful for the J. or Js. in Quarter Sessions assembled convicting such offender, after the expiration of one calendar month next after such conviction, or order in case of appeal, to summon any surety or sureties named in the bond or recognizance executed by such person and his surety or sureties at the time of obtaining his license or making such appeal, to appear before the said J. or Js., APPENDIX. clvii and show cause why the penalty mentioned in such bond or PUBLIC , . , , ! .. HOUSES. recognizance should not be paid by such surety or sureties, or so much thereof as shall be sufficient to pay any penalty or Ct 6 s. costs so incurred, or to satisfy so much of such penalty or costs as shall remain unpaid ; and in case any such surety shall not show any sufficient cause to the contrary, it shall be lawful for such J. or Js. to adjudge that such penalty if not paid, or so much thereof as aforesaid, shall be paid by such surety within 14 days; and in case such penalty, or so much thereof as afore- said, shall not be paid within 14 days, to issue a warrant, and levy the amount of such penalty, or so much thereof as afore- said, by distress and sale of the goods and chattels of such surety, together with the costs of such distress and sale." 38. No conviction under this Act, nor adjudication upon N O conviction appeal, shall be quashed for want of form ; nor warrant of com- sna11 be quash- mitment void for mere formal defect, if it allege that the party f orm> has been convicted, and there be a good conviction to sus- tain it. 39. " One moiety of every fine, penalty, and forfeiture by Application of this Act imposed, and not expressly directed to" be otherwise pena ties * applied, shall, after deducting all further necessary charges of levy not hereinbefore provided for, be paid to the use of his Majesty, his heirs and successors, and the other moiety to him who shall inform, discover, or sue for the same, or to the poor of the parish in which such offence shall have been committed, at the discretion of the Js. who shall award the same." By Stat. 6 & 7 Will. c. 38, amending the above, s. 4. " No 6 & 7 Will. IV person selling or licensed to sell beer or cider, spirits or wine by Ct 38 .* retail, to be drunk or consumed on the premises, shall have or houses shall not keep his house or other place of sale (not being a booth or tent b open for the at any lawful or accustomed fair, or at any public races) open b^tween^a! for the sale of spirits, wine, or beer, nor shall sell or retail spirits, night of Sun- Sec., nor shall suffer any spirits, &c., to be drunk or consumed the 'mornb "of in or at such house or other place, at any time between the Monday, hours of 9 in the night of Sunday and 9 in the morning of Monday ; and if any such person shall keep his house or other place of sale open for selling, or shall sell spirits, wine, or beer, or suffer spirits, wine, or beer to be sold, drunk, or con- APPENDIX. PUBLIC HOUSES. 6&7 Will. IV. c. 38. Exception as to travellers. Booths and tents at fairs, &c., not to be open for the sale of spirits, wine, or beer at any hour be- tween 6 in the evening and 9 in the morning in Summer, and 3 in the after- noon and 9 in the morning in winter j or at all on certain days. Sales to travel- lers. Illegal meet- ings, Sec. sumed in or at such house or other place, at any time between the hour of 9 of the clock at night on Sunday and the hour of 9 of the clock in the morning of Monday, such person shall forfeit the sum of 2 for any such offence ; and every separate sale shall be deemed a separate offence, and all sales on any one day shall be deemed and may be prosecuted as separate of- fences : provided, that nothing herein contained shall extend to prohibit the sale of spirits, wine, or beer, to a traveller." 5. No person selling or licensed to sell beer or cider and spirits or wine by retail, to be drank or consumed on the pre- mises, or otherwise, shall have or keep any booth or tent or other place, not being a house duly licensed for the sale of spi- rits, at any lawful or accustomed fair or at any public races, open for the sale of spirits, wine, or beer, nor shall sell or retail spirits, &c., nor shall suffer any spirits, &c., to be sold, drunk, or consumed in or at such booth or tent, or other place between the hours of 6 of the clock in the evening and 9 of the clock in the morning at any time between the 1st day of April, and the 1st day of the following month of October, or between the hours of 3 of the clock in the afternoon and 9 of the clock in the morning at any time between the first day of Oc- tober and the first day of the following month of April, nor at any time whatsoever on any Sunday, Good Friday, Christmas Day, or any day appointed for a public fast or thanksgiving ; and if any such person shall keep such booth or tent or other place open for selling, or shall sell spirits, wine, or beer, or shall suffer any spirits, wine, or beer to be drunk or consumed in or at such booth or tent or other place, at any hour or time at which the same are hereby respectively prohibited, such person shall forfeit the sum of 2 for any such offence ; and every separate sale shall be deemed a separate offence ; and all sales on any one day shall be deemed and may be prosecuted as separate offences ; and this prohibition shall be deemed and taken to extend to the sale of spirits, wine, or beer, to a traveller as well as to any other person." 8. Holding certain meetings, having flags, &c., in public houses, prohibited, see ante, pp. 292, 293 ; " and if any such per- son shall knowingly permit any such body, union, society, or as- APPENDIX. cllX sembly to meet or assemble or hold any meeting or assembly PUBLIC on any occasion or pretence whatsoever in the house or place of such person, or shall hang out or display, or suffer to be hung c 33. out or displayed, on, from, or out of, such house or place of sale any such sign, flag, symbol, colour, decoration, or emblem what- soever, except as aforesaid, any such person so offending shall Penalty, forfeit and pay for every such offence the sum of 2 ;" and the license of such person convicted of such offence shall not be renewed without the certificate of the Js. at Quarter Sessions, and of the Assistant Barrister, that they consider him, notwithstanding such conviction, a fit person to be li- censed, on condition of his not again committing a like of- fence ; and if after so obtaining a renewal of his license on said Loss oflicense, certificate he shall be again convicted of a like offence, such license shall immediately on such second conviction become null and void to all intents and purposes whatsoever, and he shall not be capable at any time thereafter of obtaining such license*. " Provided however, that nothing herein contained shall extend Proviso, to any meeting of persons consisting exclusively of Freemasons or members of the society called the Friendly Brothers." 9, 11. Entry and search by J. P., &c., penalty for refusing admittance, &c., ante, pp. 293-295. 12. " Every person selling or licensed to sell spirits, wine, or Penalty if per- beer by retail, in whose house or place any person shall be found sons are oun to be, or to have been, recently drinking, tippling, or gaming at gaming at pro- anv hour or time at which the sale of spirits or beer is prohibited nil)ited hour - s - and on persons by this Act, shall, upon conviction thereof, forfeit and pay the found drunk. sum of 105. ; and any person found drunk at any hour of the day or night in any street, square, lane, road, way, or other public thoroughfare or place, shall, upon conviction thereof, for- feit and pay any sum not exceeding 5s. ; and in default of pay- Commitment, ment thereof shall and may be committed to the common gaol of the county or place, or to any neighbouring House of Cor- rection or Bridewell, for any time not less than 12, nor more than 48 hours ; and every person so found drunk in any street, Arrest, square, lane, road, way, or other public thoroughfare or place, shall and lawfully may be apprehended by any justice, constable, peace officer, churchwarden, or overseer as aforesaid, and forth- with carried and conveyed before any J. P, within whose juris- clx APPENDIX. PUBLIC HOUSES. 6 &7 Will. IV. c. 38. Number of overseers under 3 & 4 Will. IV. c. 68, in- creased. Overseers to be constables. Penalty on their not act- ing. 2 Justices at petty sessions may appoint overseers if the parishoners do not. diction he shall be so found, to be dealt with according to law." 13. Instead of five overseers (ante, p. clii), the parishioners of the several parishes in Ireland in Vestry assembled, are hereby required, once in every year, or oftener, if necessary, to appoint such number of persons, not exceeding 20, nor less than 10, as to them shall seem meet, to be overseers of persons and houses in which spirits or beer shall be sold by retail within every such parish respectively ; and every overseer so appointed shall have as full and ample power and authority for carrying the provisions of this Act and the said Act into execution as any constable or other peace officer, or overseer under said Act may have by virtue of this or the said Act, and shall, for the purposes of this and the said Act, be a constable or peace officer ; and the said overseers, when so appointed, shall forthwith meet and make such proper arrangements together as to them shall seem necessary for the performance of their duties, and for the due inspection and visiting the several houses within their juris- diction ; and the arrangements shall be so made that at least two of the overseers shall be appointed to and perform the said duty for each month ; "and every person who shall be appointed such overseer who shall neglect or refuse (not being prevented by sickness or other unavoidable accident) to act as such over- seer shall forfeit and pay the sum of 1." 14. " If the parishioners of any parish in Ireland shall not appoint such overseers on or before August 1st, in any year, or within one week after the termination of the office of any over- seer already appointed or to be appointed under this Act. or the said Act, it shall be lawful for any two Js. of the county, county of a city, county of a town, or town and liberties, in which such parish shall be situated, assembled at any petty sessions or di- visional or other office of police, for the district in which such parish shall be situate, to appoint such number of overseers as aforesaid to act as such overseers for one year ; and the person s so appointed shall have all the powers of any overseer or over- seers appointed under this or the said recited Act, and shall perform the like duties and be liable to the like penalty for nonperformance thereof as is hereinbefore provided in respect of the overseers to be appointed by the parishioners." APPENDIX. clxi 15. " Every information for any penalty incurred under this PUBLIC or the said recited Act shall and may be exhibited within two * ... 6 & 7 Will. IV. calendar months next after the offence alleged in said informa- c> 33. tion shall have been committed." Informations to 16. Part of s. 8, ante, p. cl. rep. " If any person licensed w hhin two to sell beer, cider, or spirits by retail shall during the continu- months. ance of such license be duly convicted of 3 several offences un- Licenses may be annulled der the provisions of said recited Act, or of this Act, or of both, when licensed which 3 offences shall have been committed within the space of g ^ 8 ^ 6 months, it shall be lawful for two Js. P. within whose juris- three times. diction such person shall be licensed, assembled at any Quar- ter Sessions or adjournment thereof, by order made in open court, after notice served six days before on the person so licensed of the intention to apply for such order, to annul the license held by such person ; and if any person whose license shall be so annulled shall at any time after the making of such order sell any beer, cider, or spirits without having obtained a new license, he shall be subject to all the penalties to which any Penalty for af- person is or may be subject for selling beer, cider, or spirits, without having obtained a license for that purpose." 19. " If any person not being duly licensed to sell beer, Unlicensed per- cider, or spirits, shall at any time sell any beer, cider, or spirits, spirits, &c., he shall for every such offence, in addition to any other penalty to which he is liable, forfeit a sum not exceeding 2, and such penalty, sum shall and may be recovered as any other penalty under the said recited Act, or this Act ; and in every proceeding to recover Proof of of- such penalty it shall be sufficient to prove the sale of such beer, cider, or spirits, and the person charged shall be thereupon con- victed unless he shall prove that at the time of such sale he was duly licensed to sell the beer, cider, or spirits so sold." As to keeping for sale, see post, p. clxiii. 20. " In any proceeding to recover a penalty against any per- Production of , * r ... license not ne- son charged as being licensed to sell beer, cider, or spirits it cessa ry on pro- shall not be necessary to call for or require the production of ceeding?. the license ; and the notice by said Act directed to be served on the Clerk of the Peace, or evidence of his having been at the time at which the offence charged against him was committed acting as the owner of a licensed house, shall be sufficient evi- x APPENDIX. PUBLIC dence of the fact of his being licensed, unless he shall prove HOUSES. t jj at ne was not d u iy li cense( j ; an d if he shall on the hearing 1 of any such complaint prove that he was not duly licensed at But if party the time at which the sale complained of was made, it shall be prove himself j awful for the Jg before whom guch f m be made to not licensed, ne . may be con- convict him of having made such sale without being duly li- victed as herein. cens ed." Persons com- 21. In every proceeding under this or the said recited Act petent as wit- A , . ,, nesses though tne P erson wno m &y inform or who shall sue for the penalty entitled to part shall be a competent witness to prove any fact, notwithstanding any provision by which he may become entitled to receive any portion of the penalty." Service of sum- 22. " In every case in which any proceeding shall be taken mons or notice. . , , . , . , A to recover any penalty under the said recited Act or under this Act, or under both, or for any other purpose, the delivery or service of a copy of any notice or summons to the person charged with the offence at any place, or to his wife, servant, clerk, manager, or child, such child being of the age of 16 years or up- wards, at or upon the premises used or occupied by any such person for carrying on his or her trade or business, or on the premises on which any such offence shall have been, or shall be charged to have been, committed, shall be deemed and taken to be a sufficient service and delivery of such summons or notice to the person or persons to whom the same may be directed." Provisions of 23. Except where otherwise provided all penalties and for- 3& 4 Will. IV. f . c. 68, to apply * ei t ures imposed by this Act shall be sued for, levied, mitigated, to proceedings and distributed as by 3 & 4 Will, IV. c. 68, is directed ; and in every respect, save where expressly repealed or altered, the said Act shall remain in full force, and apply to penalties and offences hereby created, as if it were herein re-enacted. 24. Every conviction under this or the said recited Act shall and may be drawn up in the form following, or in any other form of words to the same effect : General form | BE it remembered, that on the day of conviction. f ., . to wit. J ot in the year 01 our Lord A. 13. is convicted before us, two of his Majesty's Justices of the Peace of the said county, [or city or town, as the case may be,"] on the oaths of C. D. &c., [as the case may be], in the sum APPENDIX, clxiii of for that [here specify the offence, PUBLIC and when and where committed]. Given under our hands and 2 & 3 Viet. c. seals the day and year above written. 79. Stat. 2 & 3 Viet. c. 79, s. 1, recites the two last. Acts, and Penalty on un- authorizes granting search warrants, see ante, p. 295. 2. " If t"^^ beer any person not being duly licensed to sell beer, cider, or spi- &c., for sale. rits, shall at any time after the passing of this Act keep for sale any beer, cider, or spirits, he shall for every such offence, in ad- dition to any other penalty to which he is liable, forfeit a sum not exceeding 2, and such sum shall and may be recovered as any other penalty under 3 & 4 Will. IV. c. 68, or this Act ; and in every proceeding to recover such penalty it shall be suffi- cient to prove that such beer, cider, or spirits was kept for sale by such person, or on his premises with his knowledge, and thereupon the person charged shall be convicted, unless he shall prove that at the time of so keeping the same he was duly licensed to sell the beer, cider, or spirits': so kept for sale." 3. 6 & 7 Will. IV. c. 38, s. 18, rep. 4. Warrant to enter unlicensed premises and penalty on persons found therein, ante, p. 296. 5. Penalty for delaying to admit, ante, pp. 296, 297. 7. Except as herein otherwise provided, all penalties and The penalties forfeitures imposed by this Act, and the legal costs of the may bVrecom-- conviction, if awarded, shall be sued for, levied, mitigated, ed in the same and distributed, and any conviction appealed from, as by ^ e gj ^ 1S Stat. 3 & 4 Will. IV. c. 68, is directed as to penalties 3& 4 Will. IV. thereunder; and except where otherwise provided, the said aitei^b^thTs Act shall apply to penalties and offences hereby created, as if Act. herein re-enacted. 8. Conviction under this Act shall be drawn up in the form Form of con- following, or in any other form of words to the same effect. The form given is the same as that ante, p. clxii. 9. In con. Interpretation struingthis Act, words importing the singular number only shall extend to several persons or things as well as one, and words im- porting the masculine gender only to a female as well as a male. Stat. 9 Geo. II. c. 8, (revived and made perpetual by 9 Geo, II. c. 8. 1 Geo. III. c. 17, s. 14), reciting the evils that arise from re- tailers of beer, ale, brandy, rum, geneva, aqua vitee, and &c. clxiv APPENDIX. PUBLIC no USES. vants or work- men to secure payment above other spirituous liquors, giving credit to servants, day labour- ers? an( j other persons who usually work or ply for hire or 9 Geo, II. c. 8. wa g egj enacts, that such retailers selling liquor to servants, &c., on credit, beyond the amount of Is., shall have no remedy for the sum due, and securities for such debts shall be Pledges by ser- void. " In case any such servant or day labourer, or other ,, , i /> i P erson or persons who usually work or ply lor hire or wages shall leave any pawn or pledge of any kind whatsoever as a ^'..recoverable securitv for the payment of any sum of money, exceeding the as herein. sum of Is., contracted in such manner as aforesaid, such ser- vant or day labourer, or any person or persons usually work- ing or plying for hire may complain to the chief magistrate of any city or town corporate, or to any J. P. of the county, county of a city or town, where such retailer of beer, ale, &c., usually resides, that such pledge or pawn is detained from him or her by such retailer of beer, &c. ; and having made proof thereof upon oath, it shall be lawful for the aforesaid chief magistrate or J. P., and he is hereby empowered and re- quired, by warrant under his hand and seal, to compel such retailer of beer, &c., by distress and sale of his goods, to restore the aforesaid pledge or pawn to the party complaining, or to make him satisfaction for the loss or abuse thereof." KAILWAYS. 3 & 4 Viet, c 97. Wilfully ob- structing railway inspec- tors. Penalty. Commitment. RAILWAYS. By Stat. 3 & 4 Viet. c. 97, for the regulation of railways. Sect. 5. The Board of Trade may authorize persons to inspect any railway, and such persons may, at all reasonable times, upon producing their authority if required, enter upon and examine the railway, stations, works, buildings, and engines and carriages ; and by s. 6, " every person wilfully obstructing any person duly authorized as aforesaid, in the execution of his duty, shall, on examination before a J. P. having juris- diction in the place where the offence shall have been com- mitted, forfeit and pay for every such offence any sum not exceeding 10 ; and on default of payment of any penalty so adjudged, immediately or within such time as the said J. P. shall appoint, the same J. or any J. having jurisdiction where the offender shall be or reside, may commit the offender to APPENDIX. prison for any period not exceeding 3 calendar months ; such RAILWAYS. committal to be determined on payment of the amount of the 3 & 4 Viet, penalty ; and every such penalty shall be returned to the next Ct ensuing court of Quarter Sessions in the usual manner." 13. "It shall be lawful for any officer or agent of any Railway ser- railway company, or for any special constable duly appointed, vants fouud . . . drunk or mis- ana all such persons as they may call to their assistance, to conducting seize and detain any engine driver, guard, porter, or other themselves may servant in the employ of such company, who shall be found drunk while employed upon the railway, or commit any of- fence against any of the by-laws, rules, or regulations of such company, or shall wilfully, maliciously, or negligently do or omit to do any act whereby the life or limb of any person passing along or being upon the railway belonging to such company, or the works thereof respectively, shall be or might be injured or endangered, or whereby the passage of any of the engines, carriages, or trains, shall be or might be obstructed or impeded, and to convey such engine driver, guard, porter, or other servant so offending, or any person counselling, aiding, or assisting in such offence, with all convenient despatch, before some J. P. for the place within which such offence shall be com- mitted, without any other warrant or authority than this Act ; and every such person so offending, and every person coun- selling, aiding, or assisting therein, shall, when convicted before such J. (who is hereby authorized and required, upon and carried be- complaint to him made, upon oath without information in fore J * P V J** 10 may convict writing, to take cognizance thereof, and to act summarily without infor- in the premises), in the discretion of such J., be imprisoned matlOD - with or without hard labour for any term not exceeding 2 ca- ums lendar months, or, in the like discretion of such J., shall for every such offence forfeit to her Majesty any sum not exceeding 10 ; and in default of payment thereof shall be Penalty, imprisoned, with or without hard labour, for such period not exceeding 2 calendar months, as such J. shall appoint." Com- mitment determinable on payment, return to Quarter Sessions ; this is in the same words as sect. 6, supra. 1 4. Provides that such J. P. may, if on the hearing of any such complaint he thinks fit, instead of deciding summarily commit any persons clxvi APPENDIX. HAILWAYS. 3 & 4 Viet, c. 97. Persons ob- structing rail- way officers or railways may be arrested and carried be- fore J. P., who may act summarily. Penalty. Commitment. No ctrtiorari. SMALL-POX. 3 & 4 Viet. c. 29. Persons ino- culating or otherwise pro- ducing small- pox. On conviction by 2 Js. P. at charged, for 'trial at the Quarter Sessions for the place where the offence has been committed, and order that he shall be imprisoned in the meantime, or may take bail for his appear- ance, with or without sureties, at his discretion, see ante, p. 466. 16. " If any person shall wilfully obstruct or impede any officer or agent of any railway company in the execution of his duty upon any railway, or upon or in any of the stations or other works or premises connected therewith, or if any person shall wilfully trespass upon any railway, or any of the stations or other works or premises connected therewith ; and shall refuse to quit the same upon request to him made by any officer or agent of the said company ; every such person so offending, and all others aiding or assisting therein, shall and may be seized or detained by any such officer or agent, or any person whom he may call to his assistance, until such offender or offenders can be conveniently taken before some J. P. for the county or place wherein such offence shall be committed ; and when convicted before such J. as aforesaid, (who is hereby authorized and required, upon complaint to him upon oath, to take cognizance thereof, and to act summarily in the premises) , shall, in the discretion of such J., forfeit to her Majesty any sum not exceeding 5, and in default of payment thereof shall or may be imprisoned for any term not exceeding 2 calendar months, such imprisonment to be determined on payment of the amount of the penalty." 17. No proceeding hereunder to be quashed for want of form, or removeable by certiorari. SMALL-POX. By Stat. 3 & 4 Viet. c. 29, s. 8, " Any person who shall produce or attempt to produce in any person, by inoculation with variolous matter, or by wilful exposure to variolous mat- ter, or to any matter, article, or thing impregnated with variolous matter, or wilfully, by any other means whatsoever, produce the disease of small-pox in any person in Eng. or Ireland, shall be liable to be proceeded against and convicted summarily before any 2 or more Js. P. in Petty Sessions assembled ; and for APPENDIX. every such offence shall, upon conviction, be imprisoned in petty sessions to the common gaol or House of Correction for any term not be imprisoned. exceeding 1 month." FRIENDLY SOCIETIES. By 10 Geo. IV. c. 56, s. 2, Friendly Societies may be es- FRIENDLY so- tablished for certain purposes, but see 4 & 5 Will. IV. c. 40, s. CIETIES. 2, post, p. clxxii. 7. No such society shall have the benefit of c 56 ^' this Act unless all the rules for the management thereof be Not to have entered in a book to be kept by an officer of the society for that JJJJ^J purpose, which shall be open at all seasonable times for the in- rules be enterea spection of the members of such society, and unless all such in a book> &c> rules shall be fairly transcribed and deposited with the Clerk of the Peace. 8. Rules when entered in such book and confirmed at the Quarter Sessions, shall be binding, (and see 4 & 5 Will. IV. c. 40, s. 4, post, p. clxxii.) and all members and officers of, and contributors to the society, and their representatives, shall be deemed to have notice thereof, " and the entry of what su ffi c ient such rules in such book, or the transcript thereof, deposited evidence of with the Clerk of the Peace, or a true copy of such transcript examined with the original and proved to be a true copy, shall be evidence of such rules in all cases." 21. All property and rights of the society shall vest in the Proceedings to treasurer or trustee for the time being, for the use of the so- b * '" the name . . _ . _ . ..of the treasurer ciety ; and after his death or removal, in his successor ; and O r trustee. shall for all purposes of action or suit as well criminal as civil, be taken to be, and in all proceedings, when necessary, be stated to be the property of the treasurer or trustee, for the time being, in his or her proper name, without further descrip- tion ; and he or she shall sue and be sued in his or her proper name, as treasurer or trustee of such society, without further description. 22. Limits the responsibility of officers of the so- Responsibility ciety to such amount as shall be specified by them in writing : of officers. provided, however, that every such officer shall be personally responsible for all sums actually received by him. 23. When- Payments to ever a payment is made by the trustees to persons appearing to ne xt of kin. be next of kin to a deceased member, it shall be valid as re- clxviii APPENDIX. FRIENDLY SO- CIETIES. 10 Geo. IV, c. 56. Persons com- mitting frauds in obtaining or detaining mo- ney of such so- ciety, if not punished by its rules, may be sum- moned on com- plaint by offi- cer, before 1 J. P. 2 Js. P. to hear and determine. Penalty. Costs. Levied by dis- ress. gards the society, but the next of kin may have their remedy against the persons who received it; and, by s. 24, when the sum to which a member dying intestate is entitled does not exceed 20, it may be paid without administration. 25. " For the more effectually preventing fraud and im- position on the funds of such societies, if any officer, member, or any other person being or representing himself, or herself? to be a member of such society, or the nominee, executor, ad- ministrator or assignee of any member of such society, or any other person whatever, shall in or by any false repre- sentation or imposition fraudulently obtain possession of the monies of such society, or any part thereof, or having in his or her possession any sum of money belonging to such society, shall fraudulently withhold the same, and for which offence no especial provision is made in the rules of such society, it shall be lawful for any one J. P. re- siding within the county within which such society shall be held, upon complaint macte on oath or affirmation by an offi- cer of such society appointed for that purpose, to summon such person against whom such complaint shall be made, to appear at a time and place to be named in such summons ; and upon his or her appearance, or in default thereof, upon due proof, upon oath or affirmation of the service of such summons, it shall and may be lawful for any two Js. residing within the county, to hear and determine the said complaint according to the rules of the said society, confirmed as directed by this Act; and upon due proof of such fraud, the said Js. shall convict the said party, and award double the amount of the money so fraudulently obtained or withheld, to be paid to the trea- surer, to be applied by him to the purposes of the society so proved to have been imposed upon and defrauded, together with such costs as shall be awarded by the said Js., not ex- ceeding the sum of 10s." ; and if the person complained against " shall not pay the sum so awarded to the person, and at the time specified in the said order, such Js. are hereby required by warrant, under their hands and seals, to cause the same to be levied by distress and sale of the goods of such person, or by other legal proceeding, together with such costs as shall be awarded by the said Js., not exceeding 10^., and also the APPENDIX. clxiX costs and charges attending such distress and sale, or other FRIENDLY so- legal proceeding, returning the overplus (if any) to the owner; CIETIES. and in default of such distress being found, the said Js. P. * 5 g e ' IV< shall commit such person so proved to have offended, to the Commitment. common gaol or House of Correction, there to be kept to hard labour, for such a period, not exceeding three calendar months, as to them shall seem meet." Provided nothing herein jsj t to prevent shall prevent the society from proceeding by indictment or indictment, un- , , . ,. , less there is a complaint against the party ; but no person shall be indicted previous con- after a previous conviction for the same offence. viction. 26. It shall not be lawful for any such society, by any rule Society shall at any general meeting, or otherwise, to dissolve or determine ot dissolve ^ such society so long as the intents or purposes declared by it, or and consent as any of them, remain to be carried into effect, without obtaining herein, the votes of consent of five-sixths in value of the then existing members of such society, and also the consent of all persons then receiving or entitled to receive relief from such society, on account of sickness, age, or infirmity, testified under their hands individually and respectively ; and in voting, every mem- Method of ber shall be entitled to one vote, and an additional vote for ascerlainin S votes. every five years that he may have been a member, but no one member shall have more than five votes in the whole ; and in Division of all cases of dissolution, the intended appropriation of the funds * d j to be or other property shall be fairly and distinctly stated in the proposed plan of dissolution, prior to such consent being given ; nor shall it be lawful for such society by any rule, to direct Not to misap- the division or distribution of such stock or fund, or any part ply f "n ds - thereof, to or amongst the members of such society other than for carrying into effect the general intents and purposes of such society, declared by them, and duly confirmed at Quarter Sessions, but all such rules for dissolution, without such consent, or for the distribution or division of the stock or fund, contrary to the rules confirmed by the Js. at their sessions, and filed, shall be of no effect : " and in the event of such division or misap- Penalty for so propriation of the funds of such society without the consent oing * hereby declared to be requisite, the trustee or other officer or person aiding or abetting therein, shall be liable to the like pe- nalties as are hereinbefore provided for incases of fraud." y clxx APPENDIX. FRIENDLY SO- CIETIES. 10 Geo. IV. c. 56. Rules to direct how disputes shall be settled. If to be referred to arbitration, arbitrators to be elected. Their award final ; and on neglect to comply with it J. P. shall summon offend- 2 Js. P. to determine. Distress. 27. Provision shall be made by the rules of every such so- ciety, specifying whether a reference of every matter in dis- pute between any such society, or any person acting under them, and any individual member thereof, or any person claiming on account of any member, shall be made to Js. P. or to arbi- trators. If the matter shall be referred to arbitration, certain arbitrators shall be named and elected at the first meeting of such society, or general committee thereof, held after the en- rolment of its rules, none of the said arbitrators being beneficially interested directly or indirectly in the funds of the society ; of whom a certain number, not less than three, shall be chosen by ballot in each such case of dispute, their number and the mode of ballot being determined by the rules of each society. The names of such arbitrators shall be duly entered in the book of the so- ciety's rules ; and in case of the death, or refusal or neglect of any or all of them to act, the society or general committee shall, at their next meeting, name and elect one or more to act in the place of those so dying, &p. Whatever award shall be made by the arbitrators or the major part of them, according to the rules of such society duly confirmed, shall be in the form an- nexed, and binding on all parties and final ; "and should either of the said parties in dispute refuse or neglect to comply with, or conform to the decision of the said arbitrators, or the major part of them, it shall be lawful for any one J. P. residing within the county within which such society shall be held, upon good and sufficient proof being adduced before him of such award having been made, and of the refusal of the party to comply therewith, upon complaint made by, or on behalf of, the party aggrieved, to summon the person against whom such complaint shall be made, to appear at a time and place to be named in such sum- mons ; and upon his or her appearance, or, in default thereof, upon due proof upon oath of the service of such summons any two Js. P. may proceed to make such order thereupon as to them may seem just ; and if the sum so awarded, together with a sum for costs not exceeding 10s., as to such Js. shall seem meet, shall not be immediately paid, then such Js. shall, by warrant under their hands and seals, cause such sum and costs to be levied by distress, or by distress and sale of the monies, goods, APPENDIX. chattels, securities and effects belonging to the said party, or to FRIENDLY- the said society, or other legal proceeding, together with all further costs and charges attending such distress and sale or c< 56 other legal proceeding, returning the overplus (if any) to the said party, or to the said society or to one of the treasurers or trus- tees thereof ; and in default of such distress being found, or such Further pro- other legal proceeding being ineffectual, then to be levied by ceedings. distress and sale of the proper goods of the said party, or of the officer of the said society, so neglecting or refusing, by other legal proceedings, together with such further costs and charges as aforesaid, returning the overplus (if any) to the owner :" provided that sums paid by any such officer, so levied in pur- Repayment to suance of the award or order of any Js. shall be repaid, with officer of soci- all damages, out of the society's monies, or the first monies thereafter received by them. 28. " If by the rules of any such society it is directed If reference in that any matter in dispute as aforesaid, shall be decided by ^ instance to Js. P., it shall be lawful for any such J. on complaint being one j p on made to him of any refusal or neglect to comply with the complaint may rules of such society by any member or officer thereof, to Sl summon the person against whom such complaint shall be made to appear at a time and place to be named in such sum- mons, and upon his or her appearance, or, in default thereof, upon due proof on oath or affirmation of the service of such summons it shall be lawful for any two Js. to proceed to hear and determine the said complaint according to the rules of the termine. said society ; and in case the said Js. shall adjudge any sum of money to be paid by such person against whom such complaint shall be made, and such person shall not pay such sum of money n f orc ; n g & 7 Win< IV c 55j any num ber of persons may y f rm themselves into a society to raise a fund for the purpose of _ c. 55. granting loans to the industrious classes, and receiving back Objects of loan p ayment ^y instalments, with interest. Sections 2-8, contain fund societies. * J J ral ro- provisions as to the Loan Fund Board, and allow societies to visions. make rules (which are to be certified and enrolled by the Clerk of the Peace, as herein), and to appoint officers. See also 1 & 2 Rules to be en- Viet. c. 78, post, Ixxvii. 9. All rules in force and duly en- tered as herein, ^^ ^^ ^ entered in & book kept by an officer Q f the soc i et y, which shall, at all reasonable times, at least one day in the week, be open to the inspection of persons obtaining or granting loans, and parties O r their representatives, or parties becoming sureties, all of notice thereof, whom shall be deemed to have notice thereof, by such entry What sufficient and filing with the Clerk of the Peace; and the entry in such evidence of book or books, or the transcript filed with the Clerk of the Peace, or a true copy of such transcript examined with the original and proved to be a true copy, shall be evidence of such rules in all cases. Amount which 13. " It shall not be lawful for any such society to make any loan on personal security to any one individual at any one time exceeding in amount 10; and no second or other loan shall be made to the same individual until the previous loan is repaid." No stamp duty. 14. All notes, securities, receipts, and other documents re- Rate of interest quired by societies under the Act are exempt from stamp duty. 15. Trustees or managers may demand from the person to whom any loan is made the full amount of interest up to the time fixed for the payment of the last instalment, which would be due on the whole money advanced, at a rate not exceeding 6d. in the pound for 20 weeks, and may receive the principal by instal- ments at such times and proportions as they think fit, and may APPENDIX. clxXV take a note or security for the whole amount of the loan, to be I/OAN sued for on failure of the payment of any of the instalments. Q &7 WiJ | IV 16. " All notes and securities entered into for the payment c. 55. of such loans, shall be made payable to the treasurer or clerk St ' curities to r J ( whom payable. for the time being of the said society ; and if the party or parties On f a ji ure O f liable to pay the same shall fail in the payment of any of the in- payment party stalments, as agreed to by the conditions or terms of the loan, ^ ODe< f|^fo re a according to the rules of the society, it shall be lawful for any J. P. or Petty one J. P. for the county or place where such party or parties, or s any one of them so liable, may happen to be or reside, and he is required, upon complaint made by or on behalf of such treasurer or clerk, to summon the person or persons against whom such complaint shall be made, to appear either before himself or be- fore the Js. assembled at the Petty Sessions of the district; and after his, her, or their appearance, or in default thereof, upon due proof upon oath of such summons having been duly served, such J. or Js. shall proceed to hear and determine the said complaint, and award such sum to be paid by the person or persons respec- tively, liable to the payment of any such- note or security, to such treasurer or clerk, as shall appear to such J. or Js. to be due Costs and levy. thereon, together with such a sum for costs, not exceeding the sum of 2.9., as to such J.or Js. shall seem meet ;" and if any per- son or persons shall refuse or neglect to pay or satisfy the sum so adjudged, such J. or Js. shall, by warrant under his or their hands and seals, " cause the same to be levied by distress and sale of the goods of the party so neglecting or refusing, together with all costs and charges attending such distress and sale, returning the overplus (if any) to the owner;" and no such proceedings shall be removed by certiorari. 17. The Loan Fund Board may, Loan Fund if the society violate its rules, &c., (and see 1 & 2 Viet. c. 74, Board ma y dis ' continue the ss. 4, 17), cause an advertisement to that enect to be inserted right of a so- in some country paper circulating in the district, and notify the ciel y to sue as same to the Clerk of the Peace ; from 6 months after such advertisement it shall be no longer lawful for any officer of the society to avail himself of this Act, or any J. P. to award any sum to be paid to him in consideration of any such note or security. 18. " No clerk, officer, or servant of any Loan Fund Society No officer or hereafter to be established in Ireland under the provisions of this servant to take APPENDIX. LOAN socn> Act, or entitled to the benefit thereof, shall directly or indi- ' rectly have, receive, or take any bonus, gratuity, or present c. 55. from any borrower from such Loan Fund Society ; and in case gratuities from such clerk of g cer or ser vant shall offend herein he shall borrowers. Penalty. ^ e ^ a ^ e to a penalty of 20, to be recovered by the treasurer or clerk for the time being, in the same manner as is herein- before provided for the recovery of any loan granted by such society ; the said penalty, when recovered, to be applied in aid No business to of the funds of such society." 19. " All and every the affairs aVuMcTouse 1 anc * Business f an 7 Loan Fund Society shall on no account or or place of en- pretence whatever be conducted, carried on, or transacted at ?nt * any hotel, tavern, public house, beer shop, or house of enter- Penalty. tainment; and any clerk or servant respectively of the society who shall offend herein, shall forfeit the sum of 10, to be re- covered, &c." The rest of this section as to the recovery and application is in the same words as s. 18, supra. Competency of 25. In any proceedings respecting the property of the so- ciety, or before any J. P., any trustee, manager, member, officer, clerk, or servant of such society, shall be a competent witness. 1 &2 Viet. By gtat l & 2 Vict< c 78> 4 Geo IV c 32? and ]0 Geo IV. c. 42, are repealed after 1 year from the passing of the Act, save as to the Irish Reproductive Loan Fund (London) insti- 6&7 J W , ill ' I n < tution ( asto which see s - 26 )> and b y s - 2 Stat - 7 Will. IV. c. extended to all J Loan Societies ; 55, as altered hereby, is extended to all associations or societies already formed, or which may hereafter be so, in any part of the t United Kingdom, for the purpose of lending either directly or indirectly money or goods to the poor or industrious classes in Ireland, so far as regards the proceedings of branch offices or Loan Societies actually doing business within Ireland ; and it is enacted that every existing society, whose rules have not been enrolled pursuant to the recited Act, shall cause them to be so; but pre-existing and if an guch society snall not at the expiration of 12 calen- societies must conform thereto dar months from the passing of this Act, have caused its rules within a-year. to be certified, for the purpose of being transmitted and enrolled pursuant to the recited Act, it shall not be lawful for such society, or any person on their behalf, to sue for, receive, or recover any money or goods lent or advanced out of the funds, subsequent to the expiration of 12 months from the passing of APPENDIX. this Act. 3. Every society hereafter formed for the purposes LOAN SOCIE- aforesaid shall, with all convenient speed, cause its rules to be ' certified and enrolled, as required by the recited Act ; and until c . 73. its rules have been so certified it shall not be lawful for such And no societ y to have its society, or any officer or other person, in its name or otherwise, to advantages till sue for, receive, or recover any money or goods theretofore lent its rules are or advanced out of its funds or property ; but the rules of every such society shall be binding immediately after they have been certified, and it shall not be necessary to suspend its operations until they have been confirmed at Quarter Sessions. 17. The Loan Fund Board may, for breach of the rules, &c., Loan Fund (instead of advertising and proceeding as in 6 & 7 Will. IV. c. wi n a ( J 32, s. 17, flwfe, clxxv), if they shall think fit, after notifying their of societies, and decision to any society, and also to the Clerk of the Peace, cause son^ho^jT" the affairs of the society to be wound up, and for that purpose sue as the trea- appoint a fit person to call in and receive all outstanding debts Sl and demands, and either in his own name or the name of the treasurer, trustees, or other officers of the society, to institute the necessary proceedings for that purpose, and such person shall have all the powers vested in the said treasurer, trustees, or other officers of such society ; but the society may, within a month, appeal to the Privy Council, and no steps shall be taken towards winding up the affairs until 1 calendar month after the date of the notice to the society, nor, if an appeal be lodged, until judgment thereon be given. Sect. 19 empowers the treasurer for Treasurer for the time being of any loan society, whose rules shall Aave been the time bein & may sue on duly certified, to sue for and recover for the use of such society, notes, &c., to the amount of any note or other security passed or made paya- his P redeces- ble to the treasurer for the time being of such society, not- withstanding any change which may have taken place in the person by whom the said office of treasurer may be filled. 21. Exemption from stamp duty. 22. Reciting doubts as to summonses under 6 & 7 Will. IV. Defaulters may " It shall be lawful for one J. P. for the county or place where be * umm ned to retty fees- such Loan Society carry on their business to summon defaulters in sions, either of the manner pointed out by the recited Act, either before the Js. distnct wner assembled at Petty Sessions of the town or district where such where they re- Loan Society transact their business, or before the Js. in Petty Slde ' z clxxviii APPENDIX. LOA TiEs CIE " Sessions at the town or P^ ace where sucn defaulters shall reside." UNLAWFUL SOCIETIES. UNLAWFUL so- By 50 Geo. III. c. 102, s. 1, "administering, upon a s * book, or otherwise, any oath or engagement importing to under 50 GeQ U ^ n ^ ^ e P erson or persons taking the same to be of any III. c. 102. association, brotherhood, committee, society, or confederacy whatsoever, in reality formed, or to be formed, for seditious purposes, or to disturb the public peace, or to injure the persons or property of any person or persons whatsoever, or to compel any person or persons whatsoever to do or omit or refuse to do any act or acts whatsoever, under whatever name, description, or pretence, such association, &c., shall assume or pretend to be formed or constituted ; or any oath or engagement importing to bind the person taking the same to obey the orders, or rules, or commands of any com- mittee, or other body of men not lawfully constituted, or of any captain, leader, or commander not appointed by or under the authority of his Majesty, his heirs, and successors ; or to assemble at the desire and command of any such captain, leader, commander, or committee, or of any person or persons not having lawful authority ; or not to inform or give evidence, against any brother, associate, confederate, or other person ; or not to reveal or discover his or her having taken any ille- gal oath or not to reveal or discover any illegal act done or to be done, or not to discover any illegal oath or engagement which may be administered or tendered to him or her, or the import thereof," is felony, ante, p. 426. Societies taking Stat - 4 Geo - IV - c * 87 > recites tne foregoing 50 Geo. III. oaths or en- c. 102, and enacts, that every society now established, or here- heferT- 1118 " after to be so > of tne nature hereinafter described, shall be an unlawful combination ; i. e. "every society, association, brother- hood, committee, lodge, club, or confederacy, the members whereof shall, according to the rules thereof, or to any pro- vision or agreement for that purpose, be required or admitted or permitted to take any oath or engagement which shall be an or havin tests un ^ aw ^ oat h or engagement within the intent and meaning of the said recited Act, or to take any oath not required or au- APPENDIX. thorized by law; and any and every society, c., the members UNLAWFUL go- whereof, or any of them, shall take or in any manner bind 4 Ggo IV - themselves by any such oath or engagement, upon becoming, c . 87. or in consequence of being members of such society, &c. ; and orsecret . ces J ' or committees. any and every society, &c., the members whereof shall take, subscribe, or assent to any test or declaration not required by law ; and any and every society, &c., of which the names of the members, or any of them, shall be kept secret from the society at large, or which shall have any committee or select body chosen or appointed, in such manner that the members consti- tuting the same may not be known by the society at large to be members of such committee or select body, or which shall have any president, treasurer, secretary, delegate, or other officer, chosen or appointed in such manner that the election or appointment of such persons to such offices may not be known to the society at large ; or of which the names of all the mem- bers, and of all committees or select bodies of members, and of all presidents, treasurers, secretaries, delegates, and other officers shall not be entered in a book or books to be kept for that purpose, and to be open to the inspection of all the mem- bers of such society." "And every person who at any time And all being after the expiration of 14 days next after the passing of this Act, ^rrespon'dhL: shall become a member of any such society, &c., or who being with such, a member of any such society, &c., at the time of the passing of this Act, shall afterwards act as a member thereof; and every person who after the expiration of 14 days, &c., shall directly or indirectly maintain correspondence or intercourse with any such society, &c., or with any division, branch, lodge, com- mittee, or other select body, president, treasurer, secretary, delegate, or other officer or member thereof as such, or who shall, by contribution of money or otherwise, aid, abet, or support any such society, &c., or any member or officer thereof as such, shall are guilty of un- be deemed guilty of an unlawful combination and confederacy." 2. Nothing herein shall extend to any declaration by the Except declara- members of any society, in case the form of such declaration shall tion a PP roved have been first approved and subscribed by 2 or more Js. P. for registered and the district where such society shall ordinarily assemble, and shall confirmed by have been registered with the Clerk of the Peace or his deputy ; ter Sessions. but such approbation shall be valid no longer than until the cixxx APPENDIX. UNLAWFUL SO- CIETIES. 4 Geo. IV. c. 87. Offenders may be proceeded against before 2 Js. P. Punishment or penalty. How enforced. May be miti- gated as herein, None to be twice prose- cuted for the same offence. next General Sessions, unless the same shall be confirmed by the major part of the Js. present at such sessions ; and if it be not so confirmed, the provisions of this Act shall extend to such declaration, and all societies or persons subscribing the same, as to all acts done after the holding of such General Sessions. 3. Every person who shall, in breach of any of the pro- visions of this Act, be guilty of any such unlawful combina- tion or confederacy as in this Act is described, shall and may be proceeded against in a summary way either before any 2 Js. P. for the county, city, or place where such person shall hap- pen to be, or by indictment ; and being convicted thereof on oath of 1 or more witnesses by such Js. P., " shall be by them committed to the common gaol or House of Correction, there to remain without bail or mainprize for the term of 3 calendar months ; or shall be by such Js. adjudged to forfeit and pay the sum of 20, British currency, as to such Js. shall seem meet ; and in case such sum of money shall not be forthwith paid into the hands of such Js., they shall, by warrant under their hands and seals, cause the same to be levied by distress and sale of the offender's goods and chattels, together with all costs and charges attending such distress and sale ; and for want of suffi- cient distress shall commit such offender to the common gaol or House of Correction for any time not exceeding 3 calendar months." For punishment on indictment, see ante, p. 472. 4. The Js. P. before whom any person shall be convicted under this Act, may (if they shall see cause so to do) mitigate and les- sen the punishment hereinbefore directed to be inflicted upon any offender against this Act so convicted, so as such punish- ment be not thereby reduced to less than one-third of the punishment hereby directed to be inflicted, whether such punish- ment shall be by imprisonment or fine." 5. Any person who shall be prosecuted before any Js. P. in a summary way for any offence against this Act, and shall be convicted or acquitted, shall not afterwards be prosecuted or liable to be so, by indictment or otherwise, for the same offence ; and no person acquitted or convicted on indictment shall after- terwards be prosecuted summarily for the same offence. 6. But persons may be prosecuted as heretofore if not proceeded against under this Act. APPENDIX. 7. " If any person shall knowingly permit any meeting of UNLAWFUL so ?IES. IV. any society, hereby declared to be an unlawful combination or CI] confederacy, or of any division, branch, or committee of such c . 37. society, to be held in his or her house or apartment; such per- Penalty on per- 7> sons permitting son shall, for the first offence, forfeit the sum of 5, to be re- un i aw f u i meet- covered in like manner as any other penalty under this Act ; | n g s in th eir houses, and shall for any such offence committed after the date of his or her conviction for such first offence, be deemed guilty of an 2nd offence, unlawful combination and confederacy, in breach of this Act." 8. All pecuniary penalties imposed by this Act shall be Application of applied and disposed of; "one moiety thereof to the informer, pen and the other moiety thereof to his Majesty, his heirs, and successors." 9. *< Any conviction by any Js. P. for unlawful combina- tion and confederacy in pursuance of this Act shall and may be in the form following : ^ BE it remembered, that on this day of Form of convic- to wit. Cm the year of the reign of A. B. of is duly convicted before us, A. B. and C. D., two of his Majesty's Justices of the Peace for the county, [city, or town] of in pursuance of an Act made in the fourth year of the reign of King George the Fourth, [setforththe title of this Act,] for that the said A. B., after the passing of the said Act, to wit, on the day of at did, contrary to the said Act, become a member of [or as the case may be, act as a member of, or maintain correspondence or intercourse with, or by contribu- tion of money, or otherwise, abet or support] a society [describ- ing the society'], which society is an unlawful combination and confederacy within the intent and meaning of the said Act : wherefore we, the said A. B. and C. D., do adjudge that he, the said A. B., do pay the sum of pounds, [or, be imprisoned for the space of ] as a penalty for his offence, in pursuance of the said Act. Given under our hands and seals, this Protection of day of in the year of our Lord and in the year P ersons x ( of the reign of his Majesty. The Act is entitled " An Act to amend and render more Title of the effectual the provisions of an Act made in the fiftieth year of his Act ' late Majesty's reign, for preventing the administering and tak- ing of unlawful oaths in Ireland." clxxxii APPENDIX. UNLAWFUL SO- CIETIES. 2 & 3 Viet. c. 74. Societies using secret signs ; or for pur- chasing arms, or collecting funds therefor. and all persons taking part therein, or having any in- tercourse there- with, or having or using pass- words, &c. punishable as offenders under 4 Geo. IV. c. 87. 10. Limitation of actions 3 months, venue local, &c. By Stat. 2 & 3 Viet. c. 74(a), reciting the foregoing 4 Geo. IV. c. 87, Every society now established, or hereafter to be so, in Ireland, of the nature hereinafter described, shall be and be deemed an unlawful combination and confederacy : i.e." any and every society so constituted that the members thereof may or shall communicate with, or be known to each other by, or may use for the purpose of being known as such, any secret sign or signs, or password or passwords, by way of question and answer or otherwise ; and any and every society formed or act- ing wholly or in part for the purchase of arms, or for the distri- bution of arms among the members thereof, or among any other persons, by lot or otherwise, or which shall collect any funds for any such purpose, or purchase or procure, or cause to be purchased or procured, any arms for any such purpose of distribution as t aforesaid ; and every person who, (after 1st Sept. 1839,) shall become a member of any such society, or act or assist in or at any meeting or proceeding of any such society, or who being a member of any such society, shall after that day act as a member thereof; and every person who, after that day, shall directly or indirectly knowingly maintain correspondence or intercourse with any such society, or with any division, president, treasurer, secre- tary, delegate, or other officer or member thereof, as such ; or shall make use of any secret sign or signs, or password or pass- words of any such society as hereinbefore mentioned, or fitted to be used for or towards the forming of any such society, or for any purpose of any such society, whether actually formed or not ; or knowingly have in his possession any copy, written or printed, of any such password or passwords, or other secret mode of communication, or of any oath, engagement, test, or declaration made use of or purporting to be made use of by any such society or by any division of any society declared to be unlawful by the said Act, (Stat. 4 Geo. IV. c. 87), and (a) An Act to extend and render more effectual for five years, an Act passed in the fourth year of his late Majesty George the Fourth, to amend an Act passed in the fiftieth year of his Majesty George the Third, for pre- venting the administering and taking unlawful oaths in Ireland. APPENDIX. clxxxiii shall not be able satisfactorily to account for the same, shall UNLAWFUL so- be deemed guilty of an unlawful combination and confe- 2 & 3 Viet. deracy, and shall be liable to such and the like penalties, c . 74. proceedings, and punishment as if he were guilty of an So of persons unlawful combination or confederacy under the provisions of meetings of the said last- mentioned Act; and every such offender shall and such societies. may be proceeded against and punished in the manner and according to the provisions of the said Act, as if he were guilty of an unlawful combination or confederacy under such last-men- tioned Act ; and any person who shall knowingly permit any meeting of any society hereby declared to be an unlawful com- bination or confederacy, or of any division of any such society, to be held in his house or apartment, shall be liable to such and the like penalties ahd punishment as if he knowingly permitted any meeting of any society declared by the said Act to be an unlawful society, or of any division of any such society, to be held in his house or apartment, and shall and may be proceeded against and punished in the manner and according to the pro- visions of the said Act, as if he had so knowingly permitted such meeting to be held ;" and all the provisions of the said Proviso as to Act shall be applied accordingly for the punishment of such an( j soc i et i es offenders, and for the mitigation of such punishment, and for permitted as the application of penalties, limitation of actions, and other pur- poses therein specified, as if the same were hereby re-enacted with reference to such offenders. Provided " nothing herein shall extend to any partners in trade duly licensed to sell arms or to keep arms for sale, or to any society or association formed or acting by the authority of her Majesty, or of the Lord Lieutenant or other chief governor or governors of Ireland, or of the Lieute- nant of any county, with the concurrenceor sanction of the Lord Lieutenant or other chief governor or governors." 2. Recites the existence of societies or lodges of Freema- Not to extend sons, and societies or knots of Friendly Brothers of the benevo- U'lriSTBil. lent order of Saint Patrick, and enacts that nothing in this Act thers, provided shall extend to the meetings of any such society or lodge hereto- ^ Swkofeer- fore holden, or which after the passing of this Act shall, by or tify upon oath from any such society or lodge now existing, be formed under l^h^been 6 " the said denomination, and in conformity to the rules prevailing formed accord- clxxxiv APPENDIX. UNLAWFUL SO- CIETIES. 2 & 3 Viet, c. 74. ing to the rules prevailing in those societies. and such certi- ficate be attest- ed by the ma- gistrates, and deposited with the Clerk of the Peace ; and the name of the society, &c., registered with the Clerk of the Peace. Enrolling the certificate, &c. Societies con- tinuing after order of discon- tinuance. Interpretation clause. among the said societies ; " provided that this exemption shall not extend to any such society or lodge, unless two of the mem- bers composing the same shall certify upon oath, which oath any J. P. or other magistrate is hereby empowered to administer, that such society or lodge has before the passing of this Act been usually held, or if so formed after the passing of this Act, has been so formed, under the denomination of a Lodge of Freemasons or society of Friendly Brothers of the said order, and in con- formity to the rules prevailing among the societies or lodges of Freemasons or of such societies of such Friendly Brothers in this kingdom ; which certificate duly attested by the magistrates before whom the same shall be sworn, and subscribed by the persons so certifying, shall, within the space of two calendar months after the passing of this Act, or within the space of two calendar months after such formation of such society or lodge, be deposited with the Clerk of the Peace for the county, divi- sion, or place where such r society or lodge hath been usually held or shall be so formed: provided also, that this exemption shall not extend to any such society or lodge, unless the name or denomination thereof, and the usual place or places, and the time or times of its meetings, and the names and descriptions of all and every the members thereof, be registered with such Clerk of the Peace within such two months, and also on or before the 25th day of March in every succeeding year while this Act shall continue in force." S. 3, provides for the enrolling the certificate and laying the same once a year before the General Sessions ; and the Js., or the major part of them thereat may, if they think fit, upon complaint to them made, direct that the meetings of any such society or lodge within such county or place, shall thenceforth be discontinued; " and any such meeting held notwithstanding such order of discontinuance, and before the same shall by the like authority be revoked, shall be deemed an unlawful combination and confederacy under the provisions of this Act." 4. In the construction of this Act " society" shall be con- strued to mean and include association, brotherhood, lodge, knot, club, or confederacy ; " division" to mean any branch, committee, or other select body of any such society ; " county" to mean any county at large, or county of a city or of a town, or APPENDIX. city or town and county ; and words importing the singular number only shall extend to several persons or things as well as one, and importing the masculine gender only to a female as well as a male. 5. " This Act shall continue in force 5 years Continuance of from the 1st September, 1839, and no longer." STAGE COACHES. STAGE By Stat. 50 Geo. III. c. 32, s. 2, " any coach, berlin, COACHES. landau, chariot, diligence, calash, chaise marine, or other car- 50 Geo. III. riage with 4 or more wheels, by what name soever the same is c '. .'. or shall hereafter be called, or known, to be employed as a pub- num ber of per- lic stage coach or carriage for the purpose of conveying pas- sons to be COQ - sengers for hire to and from different places in Ireland, and coachesf drawn by 4 or more horses, shall be allowed to carry 6 inside 4 horse and 10 outside passengers, and no more, exclusive of the coach- coaches. man, but including the guard (where there is a guard with such coach) ; and one of such passengers, and no more, shall be Number in each S^B-t allowed to sit upon the box with the coachman, 3 on the front of the roof, and the remaining 6 behind, in the manner the most safe and convenient for the said passengers ; and all stage coaches or other carriages above described, drawn by 2 or 3 2 or 3 horse horses, shall be allowed 4 outside passengers, and no more, ex- clusive of the coachman ; and all stage coaches called long coaches or double-bodied coaches, shall be permitted to carry in all 16 passengers and no more, exclusive of the coachman, but including the guard," under the penalties by this Act imposed: " provided that no child in the lap or under 7 years of age shall Exclusive of be included in or counted as one of such number." 3. Every person who shall keep any carriage to be employed as a public stage coach or other carriage above described, shall in the license Number of pas- sengers to be which he is hereby required to take out from the commission- conveyed to be ers of stamps in Dublin, specify the number of passengers to s P ecin ed in the license * be carried in or about such coach or other carriage; and no such license shall be granted for more than 16 inside and out. side passengers in all exclusive of the coachman. 4. " All and an ^ to be paint- ed on the every person or persons who shall be duly licensed to keep any coacll coach or other carriage above described, for the purpose of con- veying passengers for hire to and from different places in Ire- 2a clxxxvi APPENDIX. STAGE COACHES. 50 Geo. III. c. 32. in words and letters as herein, together with proprietors' names. Penalties for infringing the foregoing regu- lations. Luggage to be carried on the top of the coach j in 4 horse coaches , in 2 horse or long coaches. Penalty. Misconduct of drivers or guards by ne- gligence, inso- land, shall, and he, she, or they is and are respectively directed and required to paint, or cause to be painted, on the outside of each door of each such coach or other carriage above de- scribed, or on some other conspicuous part thereof, in legible characters of at least one inch and a half in length, and in a different colour from the ground on which the same is painted, and in words at length, the number of passengers which the li- cense obtained for such carriages respectively shall specify or express, together with the name or names of the person or per- sons, or firm of the company of proprietors to whom such coach, &c., shall belong; and if any person or persons shall employ or make use of any such carriage as aforesaid, for carrying 1 any passengers for hire to and from different places in Ireland with- out being licensed so to do, or without having the said words painted on the outside of each door of such carriage, or in such other conspicuous part thereof, and in such manner as is herein- before directed, or if any coachman or other driver shall at any time carry more passengers than shall be specified or expressed in the license for using- such coach or other carriage, every person so offending shall for each and every such offence forfeit and lose the sum of 5," recoverable as hereinafter. The drivers only, and not the owners, are liable to the penalty, for carrying above the proper number of passengers ; R. v. Gosson, 3 L. Rec. N. S. 149. 5. " It shall not be lawful for any driver, owner, or pro- prietor of any such coach or other carriage above described, going or travelling for hire, to carry or permit or suffer any parcel or parcels or luggage whatever exceeding 2 feet in height, to be conveyed on the roof of any such coach, mail coach or other carriage above described, drawn by 4 or more horses ; and where carriages are drawn by 2 or 3 horses, or are of the description called long coaches or double-bodied coaches, then such luggage not to exceed 18 inches above the roof; and every such owner or driver acting contrary thereto, and being convicted of such offence, shall forfeit and pay the sum of 5," recoverable as hereinafter. 6. " In case the driver of any such coach or other carriage above described, or the person acting as guard, shall by reason of intoxication, negligence, or other misconduct, endanger his APPENDIX. passengers in their lives or their property, or the property of any other person with which they may be entrusted, or shall loiter ' on the road, or wilfully misspend or lose time, or shall use abu- c . 32. sive or insulting language to any passengers, or shall demand or lence, extor- exact more than the fare due from any passenger, or shall not tlon ' or ' ay> in all possible cases travel at the speed of such a number of miles an hour as are fixed and expressed in and by the time-bill carried with the same, unless the circumstances of the weather or the occurrence of any accident to the coach or horses shall prevent the same ; then and in every such case the driver or guard (as the case may be) of such coach or other such carriage, so offending and being convicted thereof shall forfeit and pay the sum of 5 for every such offence, over and above the sum Penalty, or sums of money so embezzled, and shall make compensation for all damage or loss occasioned by their misconduct ; such penalty to be recovered and applied in manner hereinafter specified ; and in case of nonpayment every such offender shall be com- Commitment, mitted to the common gaol or House of Correction of the county, city, town, division, or place where such offence shall have been committed, or where such offender is actually pre- sent, there to remain without bail or mainprize for any time not exceeding 2 months nor less than 15 days, at the discretion of the J. or Js. by or before whom any such offender shall be con- victed." 7. " In case the driver of any such coach or other car- Drivers not to riage above described going or travelling for hire, shall (at any j, orses without place or places where assistance can be procured), quit his a proper person horses or the box of such coach or other carriage above de- scribed, until a proper person or persons shall stand at the head of the horses or fore-horses, so as to prevent them from running away, such person or persons to remain at their head until the driver has returned to his box ; and if such driver shall neglect to attend to the same, he or they being duly convicted thereof, shall be subject to and forfeit and pay a penalty of 5 for each Penalty, offence ; such penalty to be recovered, &c.," in the same words as last section to the end, except that the commitment is for any time not exceeding 1 month, nor less than 15 days : pro- vided nothing in this section or clause shall extend to hackney coaches drawn by 2 horses only. clxxxviii APPENDIX. STAGE COACHES. 50 Geo. III. c. 32. What sufficient service of sum- mons to driver or guard. Penalty on peace office! s neglecting to execute war- rants. In defauli * payment 01 se- curity, commit- ment. Justices, &c., may mitigate penalties. Penalty and costs, to whom payable. Offences to be tried before a Justice, &c., where offence committed or offender found One witness. Penalty and costs leviable by distress, 8. Any summons issued by any J. P. commanding any driver or guard of any coach to appear before him for any of- fence committed against this Act, shall be deemed good and sufficient service in case the same be left with the known or act- ing book-keeper, or any other person having the care of any office where places are usually taken or parcels received for such coach, or other carriage. 9. " If any constable or other peace officer shall refuse or neglect to execute any warrant granted by any J. P. under this Act, every such person so offending, and being convicted thereof, shall for every such offence forfeit the sum of 40s. ; and in case the person so convicted doth not forthwith pay or secure to be paid the said penalty, then it shall be lawful for such J. or Js. P. to commit such person to the common gaol or House of Cor- rection of the county, &c., thereto remain without bail or main- prize for any time not exceeding one month, unless the said penalty shall be sooner paid," 10. If any justice, mayor, bailiff or other chief officer before whom any person shall have been convicted for any offence against this Act, shall see cause to mitigate any penalty, he may mitigate or lessen the same to any sum not less than half of the penalty or forfeiture incurred, over and above all reasonable costs and charges expended or incurred in the prosecution ; one moiety of the penalty so imposed, with the said costs and charges, shall be paid to the informer, and the other moiety to the cler- gyman either of the parish where such offence is committed, or of the parish where such J. resides, for the use of the poor of such parish. 11. All offences against this Act shall be cognizable, and determined by any one or more J. P., or before any mayor, bailiff, or other chief officer for any county, shire, city, borough, town corporate, or place where any such offence may happen to be commited, or where the offender is actually present, upon the oath of one or more witnesses, or on confession of the party ; which oath every such J., &c., is required to administer, " and upon proof of any such offence to give judgment or sentence for the forfeiture or penalty incurred, and for the reasonable costs and charges of the prosecution (such penalty and costs to be le- vied by distress and sale of the goods of such offender, by war- APPENDIX. rant under the hand and seal of such J. or other magistrate) STAGE or to commit the person or persons so convicted to the common gaol or House of Correction for the said county, &c., for such c 32 time as is hereinbefore specified." or commitment. 12. " No coach or other carriage above described, shall be Such stage charged or compelled to pay at any toll or turnpike gate any more toll greater toll than is paid by other coaches or carriages drawn by than other an equal number of horses." coaches. 13. The forms of proceedings set forth in the schedule, Forms of pro- ceedings set " may be used upon all occasions, and with such additions or f ort h j n sc he- variations as may be necessary to adapt them to the particular dule to be circumstances of the case ; and no objection shall be allowed to he made or advantage taken on account of want of form in any Want of form, such proceedings." " Be it remembered, that on the day of one Schedule, thousand eight hundred and A. 13., of in the Form of infor ' said county, informeth me one of his Majesty's Justices of the Peace for the said county, that [here describe the offence particularly , and follow the words of the Act as near as may be~\ contrary to the Statute made in the fiftieth year of the reign of King George the Third, intituled, an Act for [here insert the title of this Act] which hath im- posed a forfeiture of for the said offence. Received the day of by me, C. D. ToA.J3.of The title is " An Act to repeal certain parts of several Acts Title of Act. of the Parliament of Ireland, so far as relates to the limiting the number of persons to be carried by stage coaches or other car- riages ; for enacting other limitations in lieu thereof ; and for other purposes relating thereto." " Whereas complaint and information hath been made before Summons, me C. D. one of his Majesty's Justices of the Peace for the said [county, fyc."\ that, &c. [here state the nature and circum- stances of the case, as far as it shall be necesary to shew the of- fence and bring it within the authority of the justice, and in doing that follow the words of the Act as near as may be~\ these are therefore to require you personally to appear before me, or such other of his Majesty's Justices of the Peace for the said [county, fyc.] on the day of next, at the hour of in the noon, to answer the said com- cxc APPENDIX, STAGE COACHES. 50 Geo. III. c. 32. Conviction. Alterations to suit circum- stances. plaint and information ; and further to do and receive what to the law shall appertain. Herein fail not. Given under my hand and seal this day of one thousand eight hun- dred and " Be it remembered, that on the day of in the year of our Lord one thousand eight hundred and at in the county of aforesaid, A. B. came before me, C. D. one of his Majesty's Justices of the Peace for the said [county, &c chattels whatsoever, upon the Lord's day or any part thereof, upon pain that every person so offending shall forfeit the same Penalty, goods so cried, or showed forth, or exposed to sale." This clause extends only to work done in the ordinary calling of the offender, interpretation and includes only persons who have an ordinary calling ; but it of tl)is clause - seems every species of labour, public or private, in their ordinary calling, is within the prohibition. See Drury v. Defontaine, 1 Taunt. 131 ; Fennell v. Ridler, 5 B. & C.408 ; 8 D. & R. 206. The words " other person" mean other persons ejusdem generis, with the words preceding "tradesmen," &c., and have been held not to include the owner or driver of a stage coach. Sandiman v. Breach, 9 D. & R. 796 ; 7 B. & C. 96. See 3 Burn, 753. 2. " No drover, horse-courser, waggoner, carrier, butcher, Carriers not to higler, their or any of their servants, shall travel, or come into ^ vel on Sun " his or their inn or lodging, upon the Lord's day, or any part thereof, upon pain that each and every such offender shall for- Penalty, feit 205. for such offence." 3. To prevent disorders which commonly happen by disor- No games or derly meetings on the Lord's day, under pretence of hurling or sp g ts ^f heiem other sports, " no person or persons whatsoever shall play, use or exercise any hurling, commoning, football playing, cudgels, wrestling, or any other games, pastimes, or sports, on the Lord's day, or any part thereof ; and if any person or persons shall offend therein, and be thereof convicted, every such person and Penalty. persons shall forfeit the sum of 12c?. sterling, for every such offence, to be immediately paid to such J. P., officer, or officers, before whom such conviction shall be ; and if any person offending Conviction be- against this Act, or anything therein contained, shall be thereof ^V^'if* r CXC11 APPENDIX. OBSERVANCE OF SUNDAY. 7 Will. III. C. 17. witnesses, or on confession. Warrant to levy. In default of distress or ina- bility to pay, stocks. Application of penalties. Rewards. Not to extend to works of ne- cessity as herein. Limitation. convicted before any J. P. of the county, or of the chief offi- cer or officers, or any J. P. of or within any city, borough, or town corporate where the said offence shall be committed, upon nis or their view, or confession of the party, or proof of any one or more witnesses by oath, the said J. or chief offi- cer or officers shall give warrants under his or their hands and seals to the constables, or churchwardens of the parish or parishes where such offence shall be committed, to seize the said goods cried, showed forth, or put to sale as aforesaid, and to sell the same, and to levy the said other forfeitures or penalties by way of distress and sale of the goods of every such offender distrained, rendering to the said offender the overplus (if any) of the monies raised thereby ; and in default of such distress, or in case of insufficiency, or inability of the said of- fender to pay the said forfeiture and penalties, the party offend, ing be set publicly in the stocks by the space of 2 hours ; and all and singular the forfeitures or penalties aforesaid, shall be employed and converted to the use of the poor of the parish where the said offences shall be committed ; saving only that it shall be lawful for any Justice, &c., out of the said forfeitures or penalties, to reward any person or persons that shall inform of any offence against this Act according to their discretions, so as such reward exceed not the 3rd part of the forfeitures or pe- nalties ; provided that nothing in this Act shall extend to the prohibiting of dressing meat in families, or dressing or selling of meat in inns, cook-shops, or victualling houses for such as otherwise cannot be provided ; nor the crying or selling of milk or fish before 10 o'clock, A. M., or after 4, P. M., nor to the using of hackney coaches in or about the city of Dublin." 4. " Pro- vided also that no person or persons shall be impeached, pre- vented, or molested for any offence before mentioned in this Act, unless he or they be prosecuted for the same within 10 days after the offence committed." TOLLS AND CUSTOMS. CUSTOMS. -By Stat. 4 Anne, c. 8, s. 1, reciting that exacting tolls for 4 Anne, c. 8. passing through towns, &c., which do not maintain some No toll for cat- bridge, is a discouragement to trade, " No toll shall be de- APPENDIX. CXC111 manded or received by any body politic or corporate, or other TOLLS AND person or persons, for any cattle, goods, or merchandizes UI whatsoever, that shall be driven or carried into or through , J tie or mercnan- any city, borough, market town, or other place where the dize carried in same shall not be sold, consumed, or slaughtered." 2. " Pro- \ throu g h an >' _. . , place where it vided where any person or persons or bodies politic hereto- j s not so id > & c . fore lawfully could demand or take any toll for any cattle or Unless by per- other goods driven or carried over any bridge or bridges for, sons rnamtain- or in respect of such person, &c., being obliged at his or their their own cost, own costs and charges, and not at the costs and charges of for passing over any county, county of a city, or town, to keep such bridge or bridges in repair, in such case such person or persons or body politic may receive and take such reasonable toll for such cattle or goods driven or carried over such bridge or bridges, as he or they might have done by law before the passing of this Act." 3. "In all cases where any cattle shall remain unsold at Whe . n cattle remain unsold any fair or market, it shall be lawful for the owners or drivers at a fair or mar- thereof to carry away such cattle as shall remain unsold, ket the y ma y without paying any toll whatsoever for the same." without toll. 4. " In case any body politic or corporate, or other per- Penalty if toll son or persons whatsoever, shall presume to take, demand, or be tak ^ n coa " collect any toll contrary to this Act, every such offender shall forfeit for the 1st offence the sum of 10s., to be demanded Complaint before a J. P. within 6 days after such offence committed, within 6 da y s< and for the 2nd and every other offence after conviction ^^ ent the sum of 5, to be demanded also within the time afore- Application said ; one moiety thereof to the party injured, and the other thereof, moiety to the use of the poor of the parish wherein such *Sic. offender* shall be committed, to be recovered by distress and Recoverable by i o ,-, /Y.-I, i i n distress, before sale oi the offender s goods, on conviction before any one or i j. p. more J. P. of the county wherein such offence shall be com- on con f ess j onor mitted, by confession of the party offending, or by oath of 2 oath of 2 wit- credible witnesses, to be taken before such J. P., who is nesses - hereby impowered and required to administer such oath, and to hear and determine such complaint." Penalty of 20 if J enalt y on , __ J. P. for ne- J. r. neglects to enforce this Act. gleet. 5. " For preventing all frauds and deceits that may be 2b CXC1Y APPENDIX. TOLLS AND CUSTOMS. 4 Anne, c. 8. Refusing or evading accus- tomed toll. Penalty 1st of- fence, before 1 J. P. Subsequent of- fences. 57 Geo. III. c. 108. Boards to be affixed in a conspicuous place, at mar- kets, &c., speci- fying tolls, and collector's and owner's names. Collecting tolls without such board. Penalty. Proviso if the board were forcibly re- moved. committed by such persons who shall drive or carry away cattle, goods, or merchandize, into any city, borough, or town corporate, and shall there refuse to pay the accustomed toll, under pretence that such cattle, goods, or merchandizes, are only to be driven through such city, &c., and shall after sell or dispose of all or any part of such cattle, goods, or mer- chandizes, in such city, borough, or town corporate every such person or persons who shall offend therein shall for the 1st offence forfeit 10s., being duly convicted thereof before any 1 J. P. or chief magistrate of such city, town, or borough wherein such offence shall be committed ; and for every 2nd and other offence that shall be committed after such convic- tion as aforesaid, the party so offending shall forfeit the sum of 5, to be recovered and levied as aforesaid." This Stat. as perpetuated by 6 Anne, c. 12, s. 1. By Stat. 57 Geo. III. c. 108, reciting the exaction of undue tolls and customs for prevention thereof, enacts, that " all per- sons collecting customs, tolls, or duties, or claiming the same at any fair, market, or port in Ireland, shall erect, affix, and keep up during the whole continuance of such fair or market, in some conspicuous place at each principal entrance of the same, and the principal quay or landing place at each port, a painted board, having thereon a schedule in large and legible characters, specifying distinctly the custom, toll, or duty, claimed on each and every article or thing sold at such fair or market, or landed at such port, and the names of the persons collecting the same, and of the person or persons or corpo- ration claiming right to the same, so that such boards may be referred to and examined by all persons desirous of so doing." 2. " Every person who shall attempt to collect or levy any custom, toll, or duty, without having previously erected such boards, or without having kept up the same as aforesaid, shall for every custom, toll, or duty, which he shall attempt to collect or levy either in money or kind, not being specified on such boards, or at a time when such boards shall not be up as aforesaid, forfeit for every such offence the sum of 40*. to any person suing for the same." 3. " Provided that in case it shall appear that the toll board or boards shall have been defaced or removed by violence, then such collector APPENDIX. CXCV shall not be liable to such penalty unless he shall neglect to TOLLS AND , ill CUSTOMS. reinstate such boards as soon as the same may be reasonably ^ done." c. 108. 4. " Every person who shall deface or remove such board Defacing or re- or boards, or shall be engaged in any riot in which such moving toll L)08,rus board or boards shall be defaced or removed, shall forfeit 5 to any person suing for the same." 5. " The penalties hereinbefore set forth shall be recover- Convictions be- able on summary conviction of either of the offences afore- fore 2 Js. P. said, before any 2 magistrates or Js. P. of the county, city, or town where such offence shall be committed, and shall be levied by distress under the warrant of such magistrates or Distress war- Js. P., who are hereby empowered to issue the same. 6. "It rant * shall and may be lawful for persons so convicted to appeal in Appeal. the usual manner to the next ensuing Quarter Sessions, where the case shall be finally determined." 7. Persons or corporations claiming a right to levy tolls Registry of at any fair, &c., are required before 1st July, 1818, to deliver schedule of tolls to the Clerk of the Peace a schedule of the tolls, customs, or duties claimed by them on every article sold at such fair or market, or landed at such port ; or in default thereof persons attempting to levy such tolls, shall incur the penalties by law provided for taking illegal tolls ; but when the schedule is de- livered in, though after the 1st July, 1818, the tolls may be levied. 8. The Clerk of the Peace shall keep a registry of such schedules, and give certificates of having registered. By27Geo.III.c. 53,s.2, " If any person who shall be sub- 27 Geo. III. ject to pay any toll or duty at any toll-house or turnpike gate ' ^ in respect of any beast or carriage passing through the same, U p 0a demand, shall not pay the same on demand to the person authorized to receive the same, upon proof thereof upon the oath of one or more credible witness or witnesses , before the trustees of such road on which such toll-house or turnpike gate shall be, or any 3 or more of them, or before any J. P. for the county in which such offence shall be committed, every such offender shall forfeit and pay to such trustees respectively the sum of Penalty before 40s., to be levied by distress and sale of the goods and chat- l Jt P * tels of such offender, upon the warrant of such trustees or CXCV1 APPENDIX. TOLLS AND CUSTOMS. 57 Geo. III. c. 108. any 3 of them, or of such J. P., under their hands and seals respectively, rendering the overplus (if any be) to the owner, the charges of distraining and disposing of such goods being first deducted." The rest of this Stat. is repealed by 9 Geo. IV. c. 53. TREES. 23 & 24 Geo. III..C. 39. Penalty for having fresh wrought timber. Commitment. Goats trespass* ing on planta- tions. Penalty on owners, before 1 J. P. Sic. Goat may be kept. To prevent the barking of trees. TREES. By Stat. 23 & 24 Geo. III. c. 39, for encouraging the planting of timber trees, sects. 13 and 14, fresh wrought timber may be seized, and the possessor convicted as herein, see ante f p. 302. 15. If such person or persons when con- victed before a J. P. as aforesaid, shall not immediately pay the fine ordered, he or they shall be committed to the House of Correction or county gaol until such fine shall be paid, or if not paid, to remain there without bail or mainprize for such time as the said J. P. shall direct, not exceeding 3 months for the 1st offence; 6 for the 2nd. ; and 12 for every such offence as he or they shall again commit. Sects. 16 to 18 are repealed by 9 Geo. IV. c. 53. 19. Recites that " the keeping of goats in any woodland or improved country greatly tends to the destruction of timber. Upon complaint made before any J. P. of any damage or trespass committed by any goat or goats the party owning the same shall be summoned before said J. P., and on proof of said trespass being made on the oath of one credible witness, such owner of the goats may be fined any sum not exceeding 20s. for every goat so trespassing, as said J. P. shall think fit ; to be paid to the complainant if he shall demand the same, or otherwise to the churchwardens for the use of the poor of the parish ; and if any person shall find a goat trespassing on his or her plantation he may take the same, and keep or dispose of them* as his or her own property." Stat. 17 & 18 Geo. III. c. 19, ss. 10, 12, forbids curing nets with bark, and imposes a penalty on barking trees ; and Stat. 17 & 18 Geo. III. c. 35, also prohibits any but tanners from tanning, or dyers from dyeing, with the bark of trees growing here, not being their own property. APPENDIX. CXCVll TRESPASS AND MEARES AND FENCES. Stat. 40 Geo. III. c. 71, s. 1, recites the injuries arising TRESPASS AND ,. , , MEAKE8 AND from vexatious impounding of cattle lor trespass or damage FENCES. feasant ; and the inconveniences and disputes arising from 40 Geo. III. the insufficiency of meares and fences ; and that Stat. 37 Geo. c - 71 ' III. c. 27, is insufficient, and further regulations are neces- sary to settle the disputes as to trespass, and meares and fences ; and enacts, that " whenever any cattle, beast, or beasts, shall be distrained for trespass or damage feasant, it shall be j p t may ta k e lawful for any J. P. residing in the parish where such dis- security, and tress shall be taken, or in any parish immediately adjoining kLperTt^de- thereto, upon complaint being made thereof, to take secu- liver cattle dis- rity for the trespass demanded, and immediately to issue an trai : order under his hand and seal to the pound keeper or other feasant. person in whose custody such cattle, beast, or beasts may be, to deliver the same to the owner, upon being paid the sum demanded, together with such usual fee as such pound keeper is by law or custom entitled to demand ; and to summon Summoning the within 24 hours the parties concerned before him, and to re- P arties> quire each party to name one landholder residing in such parish, or some parish immediately adjoining thereto, as arbi- trators, to appraise and value the damage done ; and in case Arbltrators l ' value the da- the arbitrators shall not agree, such J. may name any third per- mages done. son as umpire ; which arbitrators or umpire, as the case may be, so appointed, shall proceed to value the damage done, and shall make a true award according to the best of their skill and judgment upon oath, (which oath such J. is required to administer), and shall certify the same under his or their Order to pound hands to such J. P., who upon receipt of such certificate le^ca^tuT shall issue an order to the pound keeper or other person in after payment whose custody such cattle, beast, or beasts, may be, to pay for dama et over to the person sustaining the damage the sum so awarded, and return to the owner of the cattle the overplus, if any shall Parties ma y a P' remain ; provided that if the parties concerned shall agree to holder as arbi- appoint one landholder as aforesaid, as arbitrator to value tralor< the damage done, it shall be lawful for such J. P., upon re- ceiving the award of such arbitrator certified under his hand, CXCVlll APPENDIX. TRESPASS AND to proceed in like manner as if it were the award of 2 arbitra- MEAHES AND , ,, FENCES. 40 Geo. III. 2. " If any person or persons at whose suit such distress c. 7 1 . shall have been taken, shall refuse or neglect to obey such sum- If parties do mons or to appoint such arbitrators as required, such J. P. not attend, Jus- tices may pro- may proceed to hear the cause in a summary manner, and ceed. ma y or der such cattle, beast, or beasts to be delivered to the owner, paying the pound keeper the usual and accustomed fees." Pound keeper 3. " If any pound keeper or other person in whose custody defiver caitle, suc ^ cat ^ e ? beast or beasts shall be, shall refuse or neglect to deliver up such cattle, beast or beasts, upon being served with such order, and being tendered the sum therein specified, together with the usual fees; or shall deliver such cattle, beast, or beasts to the owner without such Justice's order, or or delivering paying the sum demanded for trespass ; he, she, or they shall, them impro- for every guch offence? for f eit the sum Q f 5 over an( j a b ove Penalty *^ e sum demanded for trespass, to be levied by distress and Levy. sa ^ e f hi s > ^ er > or their goods and chattels, by warrant under the hand and seal of any J. P. for the county in which such Application. offence shall be committed, for the use of the county in- firmary." Treble value of 4. " If any swine, not having an iron ring or staple in the damages done nose? s h a n b e impounded for trespass or damage feasant, the by swine with- . . . ,, , .. , , out rinos or person or persons owning such swine shall be liable to pay staples in their treble the value of the damage done by such swine, which the aforesaid arbitrators or umpire shall award." Not to extend 5. " Provided that nothing herein shall extend to autho- to cattle dis- empower any J. P. to issue any order as aforesaid, if trained to ascer- * ' tain title to it shall appear that such cattle, beast, or beasts, were dis- land.orforrent. trained for the purpose of ascertaining the title to any land or lands, or for rent." Rates of tres- 6. Empowers the Justices at Quarter Sessions, from time pass; but not to to tmie to fix and a ] ter rates of tre spass ; "provided that limit amount . J awarded for nothing herein shall prevent any person from recovering damage. greater damage, if awarded by arbitrators as aforesaid." Persons owning 7. " Whereas great frauds are practised by persons who caule^raz^oa ^ not OOCU P V anv l an d> keeping cattle and grazing them on sides of road, the sides of the road ; it shall be lawful for any person or per- APPENDIX. CXC1X sons distraining such cattle for trespass or damage feasant, to TRESPASS AND charge treble the affixed rate of trespass; and also it shall be FENCES lawful for any J. P. to whom complaint is made, upon proof 40 Geo. III. of the damage by arbitrators as aforesaid, to order as afore- c< 7 ] said treble damage to be paid by the owners of such cattle." J^| e to treble 8. Recites that trespasses and disputes happen in conse- Complaint to quence of the insufficiency of meares and fences of land. " If it be made to J, P. shall appear to any proprietor, occupier, or tenant of any lands ^ n d e ces we within this kingdom, that the meares and fences betweeen his, insufficient, her, or their lands, and the lands next adjoining thereto, are insufficient, and that he, she, or they shall be desirous of re- pairing the same, and shall complain thereof to any J. P. as aforesaid, it shall be lawful for such J. P. to summon the Summons, proprietor or proprietors, occupier or occupiers, tenant or tenants of such adjoining lands, and to require him, her, or them, with the person or persons so complaining, to appoint arbitrators as aforesaid ; and in case such arbitrators shall not agree, then such J. may appoint an umpire to ascertain the state of such meares and fences, and to make a division thereof in cases where no division has been heretofore made, which arbitrators and umpire, respectively, shall be sworn to Arbitrators to do justice between the parties to the best of their skill and judg- be sworru ment, (which oath such J. P. is hereby authorized to adminis- ter) ; and if such person so appointed shall find that such fences what the arbi- are insufficient, they shall also estimate what sum of money trators are to will be necessary effectually to repair the same, and also what proportion thereof ought to be paid by each party respectively, and also what proportion of such meares and fences ought to be kept in repair respectively by each party; and they shall cer- tify the same to such J., who upon receipt of such certificate j p. to j ssue may issue an order under his hand and seal to each party to re- orders to repair. pair such meares and fences, stating in such order the proportion of expenses that each party is to be at in repairing the same, as also the proportion of such meares and fences as each party respectively are to keep in repair. If either party shall refuse, Either party or for the space of 3 months neglect to repair his, her, or their proportion of such meares and fences, then it shall be lawful for fuses. the party who shall be willing so to do, to proceed to repair the CC APPENDIX. TRESPASS AND whole of such meares and fences, and the party having refused M F*NCE3. ND or ne gl ecte d as aforesaid, shall pay to the person or persons 40 Geo. III. wno sna ^ nave repaired the same, or who shall have caused the c. 71. S ame to be repaired, such proportion of the expense of repair- expenseshaU in g tnem as sucn arbitrators or umpire shall have certified to be recovered by SU ch J. that such person or persons ought to have paid towards repairing the same, to be recovered by distress and sale of his, or civil bill. her, or their goods and chattels, by warrant under the hand and Not to exceed seal of such J. ; or by Civil Bill," under 36 Geo. III. c. 25, with ^ 20 double costs ; " provided such sum does not exceed in the or 2s. per perch; whole the sum of 20, and provided such sum shall not exceed to have been the rate of 2s. per perch for each and every perch to be so re- b nC (\ A e paired ; and provided the same shall appear to have been really and bonajide expended, and to be a just and reasonable charge." Persons who 9. Any person refusing or neglecting to repair such meares refuse to repair ^ fences as aforesaid, shall have no remedy for any involun- meares and * fences shall tary trespass committed by the cattle of the proprietor, occu- have no reme y p^ Qr tenant of any neighbouring land, for any trespass on committed by his, her, or their land, occasioned by his, her, or their default in their neigh- mending, procuring, or keeping in repair his, her, or their part bour's cattle, , r but they shall of su ch meares or fences ; and if the cattle of such person or pay treble rates, persons shall trespass on the neighbouring land, they shall be liable to pay treble trespass, and the arbitrator or arbitrators, or umpire as aforesaid shall award accordingly." Tenants at will 10. Every person or persons compellable by this Act to stuns s^ paid repair such meares or fences, or to pay for the same, who out of rent. shall be only tenant at will or sufferance at the time he shall be so compelled, is hereby empowered to deduct out of the rent due, payable to his landlord, what he shall have so laid out or paid, and such landlord is required to allow the same ; such Proof on oath tenant first proving on oath, before some J. P. for the county fore J. P. w h ere suc h i anc [ s \{ e ( w hich oath such J. may administer) what he so laid out, or paid, provided such sum does not exceed in the whole the sum which the arbitrators awarded such person or Not to avoid persons ought to pay ; provided nothing herein shall extend to covenants be- tween landlord avoid any covenants or contracts between landlord and tenant and tenant. for fencing, ditching, draining, or enclosing lands. 11. Recites that it would improve lands divided by double APPENDIX. CC1 ditches, and prevent disputes, if the tops of such double ditches TRESPASS AND were planted with timber trees. It shall be lawful for the oc- ME ^L^ D 1 ENC ES cupiers of land at either side of such double ditches, to plant 40 Geo jj j them with timber trees for their mutual benefit, and at their c. 71. mutual expense ; and if either party shall refuse to pay his pro- Occupiers of portion of the expense of planting such ditches, having been de side m )ant manded in writing so to do, it shall be lawful for the other party, trees in double in 12 months after such notice being served, to plant all such double ditches, and to convert to his or her use all such timber 'trees as shall be planted thereon, and registered." 12. " It Party planting shall be lawful for the party so planting to impound any beast f or trespassing caught trespassing on any part of such double ditch, and recover on double damages as on other lands." 13. "Whereas in many places where manor courts are Not to extend .. ,, to where manor held agreeable to charter, it is unnecessary that the provi- courts are held. sions of this Act should extend ; nothing herein contained shall extend to affect the rights of manor, where manor courts are held agreeable to charter." 14. Any person or persons aggrieved by the determina- Appeal to tion of such J. may appeal to the next sessions for the county, gf^ns^aH be &c., in which such distress was taken; no certiorari. 15. final. " No magistrate shall take any fee for anything which he No fee to ma- shall do by virtue of this Act," Stat. 7 Geo. IV. c. 42, recites Stat. 40 Geo. III. c. 71, and 7 Geo. IV, that it is expedient to render its provisions more effectual ; and enacts, that it shall be lawful for the magistrates at Qr. Ses- sionstb appoint sions, not less than 3 being present, to appoint any number of appraisers and . , . arbitrators of persons, not exceeding 3, resident in each and every parish in damages arising such county, county of a city, or town, to act as appraisers and from trespass j arbitrators in the execution of this Act in such parish, or in such number of adjacent parishes, as such magistrates shall fix ; and, and sus P end from time to time, to suspend or remove all or any them and them ; appoint others in their room ; and also to fix and appoint the and fix or alter quantum or rate of fee or remuneration to be paid to them in their fees> the execution of their duty, and to alter and vary the amount thereof from time to time; "and every person appointed to be such appraiser and arbitrator, before taking upon himself such office, shall take and subscribe the following oath : 2c ecu APPENDIX. TRESPASS AND MEARES AND FENCES. 7 Geo. IV. c. 42. Oath ofap- praiser and ar- bitrator. To be sworn and registered at Petty Ses- sions. Arbitrator shall attend when called upon. In cases of trespass, where the rates of damage are fixed, persons injured may take cattle to the owner, &c., or show him the trespass. Payment of rates of damage. " 1 I, A. B. of C. D. in the parish of E. do swear, that I will, when called upon, justly and honestly appraise and value and arbitrate with respect to all matters relating to the trespassing and damage feasant of animals of any description ; and that I will faithfully and honestly perform all other the duties of an appraiser and arbitrator, according to the Act made in the seventh year of the reign of King George the Fourth, intitu- led [here set forth the title of this Act(d)] ; and that I will not accept or take any fee or reward for executing such duty, save and accept what I shall be entitled to under the provisions of said Act. So help me GOD.' Which oath it shall be lawful for any magistrate within his jurisdiction to administer in open court at any Petty Sessions, or reputed Petty Sessions ; and such oath shall be registered and recorded at such Petty Sessions or reputed Petty Sessions ; and every person so ap- pointed shall be liable to be so called upon, and shall attend accordingly, to appraise and arbitrate and decide between par- ties in cases of complaint of injury arising from animals of any description trespassing or damage feasant ; and also in all cases of disputes and complaints as to the state of the fences arising under the recited Act or this Act" 2. In order to avoid the impounding of cattle, " where animals of any description shall be found trespassing or da- mage feasant, and the rates of damage to be paid for such trespass shall have been fixed by the magistrates in pursu- ance of the said recited Act, it shall be lawful for the person or persons entitled to such rates of damage, to take, drive, or send such animals to their owner, or the known steward or herdsman of the owner, or to show such owner, or the known steward or herdsman of such owner, the animal or animals actually in the act of trespassing and damage feasant ; and if such owner, or the known steward or herdsman of such owner, shall be satisfied that such trespass has been actually committed, it shall be lawful for such owner, and he is hereby required to pay such rates of damage so fixed, and in such (a) " An Act to amend the laws in force in Ireland for preventing the vexatious impounding of cattle for trespass or damage feasant." APPENDIX. CC111 cases the animals so trespassing shall not be impounded ; but TRESPASS AND , i i l MEARES AND in case the owner ot any such animal or animals, or some FENC ES person on his behalf, shall not pay the amount of such fixed 7 GCO. IV. rate of damage, it shall be lawful for the party aggrieved by c - 42 - such trespass, instead of impounding them, to make his com- "P amt m plaint to the magistrates assembled in Petty Sessions, or re- puted Petty Sessions, for the district where the parties reside ; and such magistrates shall summon the owner of the animals Summons, so trespassing, or the steward or herdsman of such owner, to appear before them, and it shall be lawful for such magis- trates (after the time appointed by such summons for the ap- pearance of the party complained against, whether the person so summoned shall appear or not), upon proof of the service Hearing, of such summons, to inquire and examine into the matter of such complaint ; and upon satisfactory proof of such trespass, Distress, costs, and of the neglect or refusal to pay the rate of damage for such trespass so fixed, to issue their warrant to levy such rate of damage for such trespass, together with such reasonable costs for loss of time, as such magistrates shall think fit to be paid to the plaintiff, unless it shall appear to the satisfaction of such magistrates, that the defendant had sufficient grounds to justify the nonpayment of the rate of damage for such trespass." 3. " In all cases where it shall happen that the rate of damage Where the da- for any particular description of trespass which shall be the J^ 6 ^ 1 D0t subject of any complaint beween parties, shall not have been rated, fixed by the magistrates in manner required by the said recited Act ; or where any damages so complained of shall exceed in its nature and amount the rates so fixed ; or where the neglect or or arises from f i , , neglect to re- refusal to pay any demand on account of trespass or damage pa f r f ences> as aforesaid shall arise out of the neglect or refusal of the com- plainant to keep his fences in a proper state of repair ; or where or where owners . . refuse to ap- the owner or owners of the animals complained against as hav- ~ - ini aro itr a - ingbeen trespassing or damage feasant shall neglect or refuse to tors, appoint or concur in the appointment of arbitrators pursuant to the provisions of the said recited Act, for the space of 24 hours after complaint made then and in any or either of such dist . rict a P* cases it shall be lawful for the person or persons making such applied to. CC1V APPENDIX. TRESPASS AND complaint to call upon any person who shall have been appointed ME FENCES N1 un der the authority of this Act to be an appraiser and arbitrator 7 Geo. IV. ' in or f r the barony, parish, or place within which such trespass c. 42. or damage shall be alleged to have been committed ; and such appraiser and arbitrator shall proceed without delay to view the place, and to inquire into the matter, and to estimate the amount of a fair and and reasonable compensation to be paid for such damage, and to view the state of the fences between the parties, and to ascertain and determine by whose neglect or re- fusal such trespass and the damage arising therefrom shall have Contents of his been committed and caused ; and such appraiser and arbitrator shall give a certificate in writing, signed with his hand, of the amount of damage incurred, and specifying by whose act or neglect such damage was caused, and also his opinion of the state of the fences, and by whom the same ought to be repaired." On refusal to 4. " In case the amount of such damage so certified shall pay, complaint not be j d b t ^ Q person 3 f a t e d in such certificate to be liable may be made . to 2 Js. P. at to pay the same, it shall be lawful for the person aggrieved to Petty Sessions. ap pi y to t ^ e magistrates assembled at the Petty Sessions, or re- puted Petty Sessions, not less than 2 of such magistrates being Summons. present, and such magistrates shall summon the parties to ap- pear before them and shall examine into and determine the matter of such complaint ; and if they shall be of opinion that the award and certificate of such appraiser and arbitrator is just and equitable, such magistrates shall issue their warrant to cause Distress. Costs, the amount of damage so specified in such certificate, together with reasonable costs for loss of time, to be levied by distress and sale of the goods of the offender, and to be paid to the party aggrieved, rendering the overplus, (if any), to such of- fender." Where damage 5. " Whenever it shall appear that the trespassing or da- occurs from bad ma ore feasant of animals of any description, or any injury relating fences, and cer- e tificate has been thereto, shall be occasioned to or suffered by any person or per- given by arbi- sons in consequence of the bad or imperfect state or destruction may "require * an y ^ ences > an ^ the person aggrieved thereby shall, pursuant time to be spe- to the provisions of the said recited Act or this Act, have laid his complaint before a magistrate, and arbitrators shall have been thereupon appointed under the said recited Act, or called APPENDIX. CCV upon to act under this Act, and shall have estimated the sum TRESPASS AND necessary for the repair of such fences, and the proportion of ", money to be paid, and also the proportion offences to be kept 7 Geo jy in repair by each or any of the parties, and shall have certified the c. 42. same to the magistrates, (ante, pp. cxcix, cciv), then and in every such case it shall be lawful for such magistrate, and he is hereby required to call upon such arbitrators to add to their certificate a specification of the time within which every such party shall execute such repairs, and such arbitrators shall specify such time accordingly; and such magistrate, if he shall think fit, shall Order by .T. P. thereupon issue an order under his hand, requiring every such party to make or repair the fences, or proportion of fences, within such time so specified and fixed; and if either party If either party shall neglect or refuse to make or repair such fences in manner "^f e f C m ' a e ro . and within the time so specified and required, it shall be law- ceed and reco- ful for such magistrate to order and authorize the other party y er e . x P en forthwith to make or repair the whole of such fences so esti- mated ; and the person who shall repair the whole of such fences accordingly, shall and may apply to the magistrates assembled at any Petty Sessions, or reputed Petty Sessions, to recover the proportion of the expense incurred by him in respect of the party who shall have so made default; and the magistrates at such when under Petty Sessions, or reputed Petty Sessions, shall, in all cases ^ 5 - where the sum awarded by them shall not exceed 5, issue their warrant to cause the same to be levied by distress and sale of the goods of the offender, and to be paid to the person ag- grieved ; and in all cases where the sum shall exceed 5, it When over 5. shall and may be lawful for the said magistrates, and they are hereby required, to examine into the matter as in all other cases, and to give a certificate signed by them to either party, stating their opinion and decision on the case ; and such certi- ficate shall be admitted as evidence in the trial of any action which may be instituted in any Court to recover such larger amount." 6. Whenever any person shall complain of damage sustained Where persons from animals trespassing, or damage feasant, or by reason of the f^e^receive" want or insufficiency offences, and it shall appear that such per- compensation, son so complaining shall have been offered a fair and reasonable a^traTo^T 'ma- compensation for such trespass, and shall have refused the same, gistrate may CCV1 APPENDIX. TRESPASS AND MEARES AND FENCES. 7 Geo. IV. c. 42. hear complaint and give costs to the defen- dant. Where party against whom any order is made neglects to pay within 24 hours or time appointed, distress shall Magistrates may order pay- ment of arbi- trators, either by plaintiff or defendant. Appeal. Notice. Kecognuance. and shall have refused or neglected to appoint or to concur in appointing arbitrators, and shall nevertheless persist in impound- ing such animals, it shall be lawful for the magistrates, before whom such complaint shall be made, to hear and determine such complaint, and to allow and order any reasonable costs to be le- vied and paid to the party aggrieved by such refusal or neglect of the party complaining; and in case of neglect or refusal to pay such costs, to issue their warrant, and to cause the same to be levied by distress, to be paid to the party aggrieved ac- cordingly." 7. " In all cases of dispute relating to trespass or damage feasant, in which any magistrate or magistrates shall have made any order for the payment of any sums of money pur- suant to the provisions of the said recited Act or this Act, if any person against whom such order shall have heen made shall neglect or refuse t and malt, shall be sold and delivered by weight, and not by Corn, &c., to measure, or in any other manner whatsoever." 2. " Such weight be . so .J d by shall be according to the avoirdupois pound, 14lbs. whereof shall B ; , make a stone, and 8 stone one cwt., and 20 cwt. one ton, to be standing weight, with an even and equal beam or balance ; and A " bargains to all bargains, contracts, and agreements for selling such wheat, O r for allow-' rye, &c., by any other and different weight, or for selling the anceoraddi- same by measure, or for selling thereof in any other manner than by weight, or for giving, adding, or allowing any quantity of such wheat, rye, &c., to the quantity agreed to be sold, or for giving, or making any addition or allowance to the stone, cwt., ton, or other weight," shall be wholly void. 3. " If any person or persons shall sell or expose to sale, or If corn sold, barter, exchange, or deliver any such wheat, rye, measlin, pease, Delivered or beans, barley, bere, oats, shillin, meal, flour, cutlins, or malt, bought, or con- any other way than by weight, and in the manner aforesaid ; ^he* manner or if any brewer, baker, malster, mealman, corn merchant, higgler, or any person or persons, either by him or themselves, 2d ccx APPENDIX. WEIGHTS AND MEASURES. 25 Geo. II. c. 116. or allowance or greater quan- tity demanded. Penalty. Summons. Hearing. Appeal. Distress war- rant. Commitment. or by any other person or persons, employed by him or them, respectively, shall buy, or make, or enter into, any contract, bar- gain, or agreement for buying or receiving any wheat, rye, &c., any other way than by weight, and in the manner aforesaid ; or shall demand, contract for, take or receive any other or greater quantity thereof than the very quantity really and bona fide bought and agreed for, or shall demand or take any addition or allowance to the pound, stone, cwt., ton, or other weight, over and above the real content thereof, at standing weight as afore- said all and every brewer, baker, malster, mealman, corn mer- chant, higgler, or other person whatsoever, buying any corn, grain, flour, or meal, contrary to the directions aforesaid, shall forfeit the sum of 5, to be paid to such person who within 3 calendar months next after such offence committed shall first give information thereof to any mayor, or other chief magistrate of any city, or town corporate, or any J. P. of any county, or county of a city, or town within their respective jurisdictions ; who shall and may issue a summons under his hand, requiring the party accused to appear before him at any reasonable time, not less than 24 hours, after the time he shall be served with such notice, and after the same shall be left at his house or usual place of abode ; at which time such magistrate, or J. P. shall and may, by examination of one or more witnesses upon oath, proceed to hear and determine the same." Any person aggrieved by the judgment of such magistrate or J. P. may appeal to the next going Judges of Assize, or if in the city or county of Dublin, to the next General Sessions, who shall finally determine. " And such magis- trate or J. P., (or in case of appeal, such Judges or Js. P. at ses- sions) shall and may issue a warrant under his or their respective hands and seals, directed to any constable of such county, city, or town corporate, requiring him to levy the sum so adjudged to be forfeited, by distress and sale of the offender's goods, ren- dering the overplus (if any be) to the owner thereof, after de- ducting 12c?. in the pound, for his pains in levying the same ; but if no goods shall be found to answer such sum, then such of- fender shall be committed to the House of Correction and kept to hard labour during the space of 3 calendar months, unless he sooner pay the sum so adjudged, to the party entitled to the same." APPENDIX. CCXi 12. Reciting that the sale of potatoes by measure is at- WEIGHTS AND tended by fraud, " all potatoes in cities, towns corporate, market towns, and elsewhere, shall be sold and delivered by weight, c 15. and not by measure," to be avoirdupois, (and see p. ccxiii,) which Potatoes to be potatoes shall be weighed without fee at the beam and scales of sold b .v weight the said respective places to be erected and kept. 13. " If any master, or owner of a ship, vessel, or boat coming into any port, harbour, or town of this kingdom with potatoes, or any market man, herb man, herb woman, huckster, or any other person sell- ing potatoes, shall presume to sell the same by measure, or any otherwise than by weight, and shall be lawfully convicted Penalty for sell- thereof before the chief magistrate of any city, town or bo- 1D ^ rough, or before any J. P. of any county, county of a city or town, where such offence shall be committed, by the oath of one or more credible witnesses, every such market man, herb man, herb woman, huckster, or other person so offending, shall, for every such offence, not only forfeit the value of all such pota- toes by him or them sold otherwise than by weight, but shall also forfeit the sum of 6d. for every stone of potatoes so sold by him or them otherwise than by weight, and the sum of 6d. for any quantity under a stone ; which forfeitures shall be le- vied by distress and sale of the offender's goods ; one moiety to be given to the informer, and the other moiety to the poor of the parish where such offence shall be committed : provided complaint be made within 3 days after such offence shall be committed." 9. For preventing frauds in the sale of grain, but see now Other Acts on 58 Geo. III. c. 82, ante, p. Ixix. The foregoing enactments same sub J ect ' as to the sale of corn, &c., are precisely similar to those of Stat. 11 Geo. II. c. 11, which latter was revived and amended, in some particulars relating to Dublin, by Stats. 19 Geo. II. c. 17, and 29 Geo. II. c. 11, and perpetuated (as to these subjects) by 1 Geo. III. c. 17, s. 6. St. 25 Geo. II. c. 15, was perpetu- Acts perpetu- ated by 27 Geo. III. c. 41, s. 1. ated - Stat. 23 & 24 Geo. III. c. 19, for regulating the corn trade 23 & 24 Geo. and other purposes, s. 13, to remove doubts as to the contents * l ' Barrels of va- of a barrel within the meaning ot the Act, declares that every r j ous g ra ins. barrel of wheat, rye, peasej and beans, shall weigh 20 stone, of CCX11 APPENDIX. WEIGHTS AND MEASURES. 5 Geo. IV. c. 74. As to standards of weights and measures. 5.&6Will. IV. c. 63. Penalty for selling by other measures than imperial. Not to prevent sale of articles in certain ves- sels. Heaped mea- sure abolished. Penalty for selling thereby. Articles here- tofore sold by heaped mea- sure may be sold by bushel, or weight. 141bs. avoirdupois to the stone ; every barrel of barley or bere, 16; of oats, 14; and of malt made of bere or barley, 12 like stone. Stat. 5 Geo. IV. c. 74, establishes fixed references for ascertaining the value of all standard weights and measures. Sect. 9 contains a provision as to the sale of coals, potatoes, fruit, and other things commonly sold by heaped measure ; but sect. 10 provides, that nothing therein shall authorize the sell- ing by measure in Ireland, of any articles, matters, or things which by any law in force in Ireland are required to be sold by weight only. Stat. 5 & 6 Will. IV. c. 63, s. 6, abolishes the Winches- ter bushel, Scotch ell, and all other local and customary measures. " Any person who shall sell by any denomination of measure other than one of the imperial measures, or some multiple or some aliquot part, such as half, the quarter, the 8th, the 16th, or the 32nd parts thereof, shall, on conviction, be liable to a penalty not exceeding the sum of 40*. for every such sale ; provided nothing herein shall prevent the sale of any articles in any vessel, where such vessel is not represented as containing any amount of imperial measure, or of any fixed, local, or customary measure heretofore in use." 7. Whereas the heaped measure is liable to considerable variation, the use thereof is abolished ; " and all bargains, sales, and contracts which shall be made by the heaped mea- sure shall be null and void; and every person who shall sell any articles by the heaped measure, shall, on conviction, be liable to a penalty not exceeding 40s. for every such sale." 8. But as some articles heretofore sold by heaped measure are from their size and shape incapable of being stricken, and from their nature and quality may not be conveniently sold by weight, all such articles may henceforth be sold by a bushel measure, corresponding in shape with that prescribed by 5 Geo. IV. c. 74, or by any multiple, or by some aliquot part, such as the half, the quarter, or the eighth part thereof, filled in all parts as nearly to the level of the brim as the size and shape of the articles sold will admit ; provided nothing herein shall prevent the sale by weight of any article heretofore sold by heaped measure. APPENDIX. CCX111 9. Whereas the sale of coals. &c., by weight, and not WEIGHTS AND , , MEASURES. by measure, would prevent frauds, " all coals, slack, culm, -. fiw -., 1V and cannel of every description shall be sold by weight and c . 63. not by measure; and every person who shall from 1st Jan. Coals to be sold 1836, sell any coals, slack, culm, or cannel of every descrip- *>y weight and * not by rnea- tion by measure, and not by weight, shall on conviction be sure. liable to a penalty not exceeding 40s. for every such sale." Penalty. 10. " All articles sold by weight shall be sold by avoir- All articles to dupois weight, except gold, silver, platina, diamonds, or other ^J^J^JJ^ precious stones, which may be sold by Troy weight, and precious me- drugs, which, when sold by retail, may be sold by Apothe- *** "^ ones > caries' weisrht." 11. Whereas, by local customs the stone _, J Ine stone weight varies, " the weight denominated a stone shall in all weight, hun- cases consist of 14 standard pounds avoirdupois, and the weight dred wei ht denominated an hundred weight shall consist of 8 such stones, and the weight denominated a ton shall consist of 20 such cwt. ;" provided nothing herein shall prevent any sale or contract being made by any multiple or aliquot part, as the half, quarter, eighth, or sixteenth of the pound weight. 12. " All weights which shall be made after the passing Contents of of this Act of the weight of one pound avoirdupois or more m^asure-ao be shall have the number of pounds contained in every such stamped on weight stamped or cast on the top or side thereof in legible lhem * figures and letters ; and all measures of capacity, which shall be made, &c., shall have their contents denominated, stamped, or marked on the outside of such measures in legible figures and letters." 13. " Whereas the use of Weights made weights made of soft materials affords facility to fraud; no P evv ' weight made of lead or of pewter, or of any mixture thereof, stamped. shall be stamped or used ; provided nothing herein shall pre- vent the use of lead or pewter, or of any mixture thereof, in the manufacture of weights, if they be wholly and substan- tially cased with brass, copper, or iron, and legibly stamped or marked l cased,' or shall prevent the insertion of such a plug of lead or pewter into weights as shall be bond fide ne- cessary for the purpose of adjusting them and of affixing thereon the stamp hereinafter mentioned." 19. Grand Juries in Ireland at assizes or presenting Cop \ es V f terms shall determine the number of copies of the imperial we ights and APPENDIX. WEIGHTS AND standard weights and measures requisite for the comparison of all weights and measures in use within their counties, &.C., and |J 63 * direct such copies, verified and stamped at the Exchequer, measures to be to ^ e provided, and fix the places where they shall be depo- provided ; sited ; and appoint inspectors of weights and measures to have appoinled- 101 the custod y of such c P ies ' 2L The Grand Jui 7 f each and stamps for county shall provide for the inspectors stamps for the stamp- their use. j n g or sealing the weights and measures used in each and every county, riding, or division, county of a city or county of a town, which stamps so provided shall be taken to be the All weights and stamps for such county, riding, &c. ; and all weights and measures to be measures whatsoever, except as hereinafter excepted, which such copies, shall be used for buying and selling, or for the collecting of any tolls or duties, or for the making of any charges on the conveyance of any goods or merchandize, shall be examined and compared with one or more of the copies of the imperial standard weights and measures provided for the purpose of and stamped. comparison by inspectors^ who shall stamp, in such manner as best to prevent fraud, such weights and measures when so examined and compared, if found to correspond with the copies ; the fees therefor to be according to the scale in the Penalty on schedule. " And every person who shall use any weight cr mea- using unautho- th than those aut h or i ze( } ty t hi s Act, or some aliquot nzed weights or measures, or part thereof as hereinbefore described, or which has not been u . n ^ am P etl or so stamped as aforesaid, except as hereinafter excepted ; or which shall be found light or otherwise unjust shall on con- viction forfeit a sum not exceeding 5 ; and any contract, bar- Sales, &c., g am ? or sale made by any such weights and measures shall be voiti * wholly null and void ; and every such light or unjust weight and measure so used shall, on being discovered by any inspector so appointed as aforesaid be seized, and, on conviction of the No weight person using or possessing the same, shall be forfeited ; pro- wooden o' r vided nothin S nerein shall extend to require any single weight wicker, or earth- above 56 pounds to be inspected and stamped, such weight of enware measure 55 pounds being the greatest of the imperial standard weights as herein, to be , ., j . ,, ,-, , . . , inspected or deposited in the Exchequer ; and nothing herein contained stamped. shall extend to require any wooden or wicker measure used in the sale of lime, or other articles of the like nature, or any APPENDIX. CCXV glass or earthenware jug or drinking cup, though represented WEIGHTS AND ... . , p MEASURES. as containing the amount oi any imperial measure, or ol any multiple thereof, to be stamped ; but any person buying by c . 63. any vessel represented as containing the amount of any impe- But buyers may rial measure, or of any multiple thereof, is hereby authorized ^J}^^ 1 to require the contents of such vessel to be ascertained by a ascertained by comparison with a stamped measure, such stamped measure * s r tan l p c ed mea ' to be found and provided by the person who shall use such wooden or wicker measure, glass jug or drinking cup; and in Penalty for re- case the person who shall use such last mentioned measure or " s . 8 f measure^ vessel shall refuse to make such comparison, or if, upon such deficient, comparison being made, such wooden or wicker measure, glass jug or drinking cup, shall be found to be deficient in quantity, the person who shall use the same shall, on convic- tion, be subject to the forfeitures and penalties hereinbefore imposed on any person using light or unjust weights or mea- sures." 25. In places privileged so to do, magistrates and others inspectors in authorized may appoint inspectors, who shall, within their p rivile s ei l limits, have the same powers as inspectors under the Act, but the latter may come within such limits to inspect and stamp the weights or measures of any person residing within their district; "but any inspector knowingly stamping any weight or measure Penalty on .,.,,.. , , . . ,. ,. other inspector of any person residing within the limits ot any local jurisdiction k now i ng ]y for which another inspector may have been legally appointed stamping as aforesaid, shall forfeit a sum not exceeding 20s. for every JpjUig iSd- weight or measure which he may so stamp." 26. In every city ing therein, or town not being a county of itself, every individual or body Weighmastcrs corporate appointing a weighmastcr shall, on 1st January 1836, in lr f i la d n ^ 1 t h b( or within 3 months after the set of copies for the county shall b eams an( i have been provided, supply such weighmaster with accurate scales, and ,..,..*, * accurate copies, beams and scales, and with a set or accurate copies in respect of weight, capacity, and length, of the county set, under a penalty of 20 ; such set shall, for the purpose of compari- son and verification, be considered copies of the imperial standard weights and measures, and used for no other pur- pose, under a penalty of 5 ; and once at least in every 5 years under the like penalty, shall be re-adjusted by some set of CCXV1 APPENDIX. WEIGHTS AND MEASURES. 5 &6 Will. IV c. 63. Weights and measures once stamped need not be re- stamped. Search. Misconduct of inspectors, &c. Penalty. Counterfeiting stamps on weights and measures. Penalty. Selling such forged weights or measures. Penalty. Price lists, &c., denoting greater or less weight or mea- sure than the same denomi- nation of im- perial weight or measure. copies of the standard weights and measures verified by the Exchequer standard. 27. No weight or measure duly stamped, shall be liable to be re-stamped, although the same be used in any other place than that at which it was originally stamped, but shall be considered as a legal weight or measure, throughout the United Kingdom, unless found to be defective or unjust. 28. Entry to search and try weights, &c., and penalty for having false, &c., ante, p. 303. 29. " If any inspector or other person legally authorized to examine and stamp weights and measures, shall stamp any weight or measure without duly verifying the same by com- parison with a copy of the imperial standard, or shall be guilty of a breach of any duty imposed upon him by this Act, or shall otherwise misconduct himself in the execution of his office, every such offender shall, upon conviction, forfeit a sum not exceeding 5 for every such offence." 30. " If any person or-persons shall make, forge, or coun- terfeit, or cause or procure to be made, forged, or counterfeited, or knowingly act or assist in the making, forging, or counter- feiting any stamp or mark now used or which may hereafter be used for the stamping or marking of any weights or measures under this Act, shall for every such offence forfeit,on conviction, a sum not exceeding 50, or less than 10 ; and if any person shall knowingly sell, utter, dispose of, or expose to sale any weight or measure with such forged or counterfeit stamp or mark thereon, every person so offending shall for every such offence forfeit, on conviction, a sum not exceeding 10, or less than 40s. ; and all weights and measures with such forged or counterfeited stamps or marks shall be forfeited and broken up, and the proceeds thereof shall be disposed of in the manner hereinafter mentioned." 31. " If any person or persons shall print, or if the Clerk of any market or other person shall make any return, price list, price current, or any journal or other paper containing price list, or price current, in which the deno- mination of weights and measures quoted or referred to shall denote or imply a greater or less weight or measure than is de- noted or implied by the same denomination of the imperial APPENDIX. CCXV11 weights and measures under and according to the provisions of WEIGHTS AND this Act, such person or persons, or clerk of the market shall f , . ,. 1A , 5&6WU1.IV. forfeit and pay any sum not exceeding 105. for every copy of c 63 every such return, &c., which he or they shall publish." 32. " All penalties and forfeitures (under 5 Geo. IV. or) Application of this Act, after deducting so much thereof, not exceeding a P ena ties ' moiety, to be paid to the party on whose information the con- viction shall take place, as the J. before whom the party is convicted shall think fit, shall be paid to the treasurer of such county, riding, or division, county of a city, corporate town, or other place in which they shall be respectively recovered, or to such other person as shall be duly authorized to receive the same, and be applied to and make part of the county stock, or of such other funds as shall be liable, under this or any other Act, to the cost of providing and maintaining copies of the imperial standard weights and measures." 33. " All penal- Penalties reco- ties and forfeitures under this Act shall be sued for before 2 or 2 j s p at more Js. P. at Petty Sessions, or before the mayor or other Petty Sessions, chief magistrate of any city, borough, town or place within f*,^ 1 ^ *\t*' whose jurisdiction the offence shall have been committed; the &c. conviction may be drawn up according to the following form, or in words to the like effect : Be it remembered, that on the day of in Form of con- the year of our Lord A. B., is convicted before vict us two of his Majesty's Justices of the Peace [or before me the mayor or chief magistrate of the city, borough, &c., of ] for the [here specify the offence, and the time and place, when and where committed, as the case may fee], contrary to an Act passed in the fifth and sixth years of the reign of King William the Fourth, intituled, &c., [as the case may oe], and we [or I,] do adjudge that the said A. B. hath forfeited for his [or her] said offence the sum of [here insert the penalty']. Given under our hands and seals [or my hand and seal], the day and year first above written." The title of this Act is " An Act to repeal an Act of the Title of the Act. fourth and fifth year of his present Majesty, relating to weights and measures, and to make other provisions instead thereof." 34. All penalties and forfeitures imposed by this Act " may, Recovery of 2e CCXV111 APPENDIX. WEIGHTS AND MEASURES. 5& 6 Will. IV. c. 63. penalties ; before 2 Js. P. or mayor, &c. Distress, &c. Summoning witnesses. Overplus to be returned. Offender may be detained until return to distress war- rant. In default of distress, or if it appear there are not sufficient goods, Commitment. in case of nonpayment thereof, be recovered in a summary way by the order and adjudication of 2 or more Js. P. at Petty Sessions, or before the mayor, &c., (as in s. 33), on complaint to them or him for that purpose made ; and afterwards be levied, as well as the costs (if any) of such proceedings, on nonpay- ment, by distress and sale of the goods and chattels of the respective offenders, by warrant under the hands and seals of such Js., or hand and seal of such mayor, &c., who is and are hereby required to summon and examine any witnesses of or concerning such offence, and to hear and determine the same ; and the overplus (if any) of the money so raised or recovered, after discharging such penalties or forfeitures, and the costs and expenses as aforesaid, shall be returned, on demand, to the respective owners of the goods and chattels so seized ;" in case any such penalty or forfeiture shall not be forthwith paid, the said Js., Mayor, &c., may order any offender so convicted to be detained in safe custody until return can be conveniently made to such warrant of distress, unless he can give sufficient security, to the satisfaction of such Js., &c., for his or her appearance be- fore the said Js., or some other Js. havingjurisdiction, or before such Mayor, &c., on such day as shall be appointed for the re- turn of such warrant, such day not being later than 8 days from the day of taking any such security, and which security any such Js., Mayor, &c., may take by way of recognizance or otherwise; " but if upon the return of such warrant it shall appear that no sufficient distress can be had whereupon to levy the said penalty or forfeiture and costs and expenses, and the same shall not be forthwith paid, or in case it shall appear to the satisfaction of any such Js., Mayor, &c., upon the confession of the offender or otherwise, that he or she hath not sufficient goods and chat- tels whereupon such penalty or forfeiture, costs and expenses, could be levied if a warrant of distress were issued, such Js., Mayor, &c., shall not be required to issue such warrant, but in such case such Js., Mayor, &c., are hereby required, by warrant under their hands and seals, to commit such offender to some common gaol or House of Correction for the county, city, bo- rough, town, or place, there to remain without bail or main- prize for any time not exceeding 2 calendar months, or until APPENDIX. CCX1X such offender shall have paid such penalty or forfeiture, and all WEIGHTS AND . . MEASURES. costs and charges attending the proceedings (to be ascertained , . w ... j by such Js., Mayor, &.C.), or shall otherwise be discharged by c . 63, due course of law." 35. Persons aggrieved by any order, judgment, or deter- Persons ag- mination of any J. P., Mayor,&c., may, within 14 days, appeal to g m ^ the next ensuing General or Quarter Sessions, " first giving 7 ter Sessions. days' notice in writing of such intention to appeal, and the Notice, grounds and nature thereof, to the party against whom such complaint is intended to be made, and forthwith after such no- Recognizance, tice entering into a recognizance before some J. P., Mayor, or other chief magisirate, with 2 sufficient sureties, conditioned to try such appeal, and abide the order and award of the said court thereon ;" and the sessions may, if they see cause, miti- Order at ses- gate any penalty or forfeiture, and may order any money, le- vied in pursuance of such order or determination to be returned, and reasonable satisfaction to be made to the party injured. 36. No proceeding under this Act shall be quashed or va- Want of form cated for want of form. No certiorari. 39. For protection c P roceedin g s > of persons executing the Act, venue local, tender of amends, &c. DISPUTES BETWEEN MASTERS AND WORKMEN. Stat. 5 Geo. IV. c. 96, s. 1, repeals former Acts. By Sec. 2, DISPUTES BE- " The following subjects of dispute arising between masters and TWEEN MAS ' TERS AND workmen, or between workmen and those employed by them, WORKMEN. in any trade or manufacture in any part of the United King- 5 Geo. IV. dom of Great Britain and Ireland, may be settled and adjusted c * 96 ' in manner hereafter mentioned ; that is to say, disagreements ^e^u^esTf f respecting the price to be paid for work done, or in the course dispute that of being done, whether such disputes shall happen or arise raay be refer " between them respecting the payment of wages as agreed upon, or the hours of work as agreed upon, or any injury or damage done or alleged to have been done to the work, or respecting any delay or supposed delay in finishing the work, or the not finishing the work in a good and workmanlike man- ner, or according to any contract, or to bad materials ; cases where the workmen are to be employed to work any new pat- tern which shall require them to purchase any new implements ccxx APPENDIX. WORKMEN S DISPUTES. 5 Geo. IV. c. 96. Rate of wages not to be with- out consent. Limitation. Reference of such disputes, by consent, be- fore a J, P. Otherwise com- plaint may be made as herein of manufacture, or to make any alteration upon the old imple- ments for the working thereof, and the masters and workmen cannot agree upon the compensation to be made to such work- men for or in respect thereof; disputes respecting the length, breadth, or quality of pieces of goods, or in the case of cotton manufacture, the yarn thereof, or the quantity and quality of the wool thereof; disputes respecting the wages or compensa- tion to be paid for pieces of goods that are made of any great or extraordinary length ; disputes in the cotton manufacture res- pecting the manufacture of cravats, shawls, policat, romal, and other handkerchiefs, and the number to be contained in one piece of such handkerchiefs ; disputes arising out of, for, or touching the particular trade or manufacture, or contracts rela- tive thereto, which cannot be otherwise mutually adjusted and settled ; disputes between masters and persons engaged in sizing or ornamenting goods ; but nothing in this Act contained shall authorize any J. or Js. acting as hereinafter mentioned to es- tablish a rate of wages or pr.ice of labour or workmanship at which the workmen shall in future be paid, unless with the mu- tual consent of both master and workman : provided that all complaints by any workman as to bad materials shall be made within three weeks of his receiving the same ; and all com- plaints arising from any other cause shall be made within six days after such cause of complaint shall arise ;" but see post, p. ccxxxv. 3. " Whenever such subjects of dispute shall arise, it shall be lawful for the master and workman, or either of them, to de- mand and have an arbitration or reference thereof in manner following ; i. e., where the party complaining and the party com- plained of shall come before or agree by any writing under their hands to abide by the determination of any J. P. or magis- trate of any county, &c., within which the parties reside, (but see post, p, ccxxxv), it shall be lawful for such J. P. or magis- trate to hear and finally determine, in a summary manner, the matter in dispute between such parties. But if such parties shall not come before or so agree to abide by the determination of such J. P. or magistrate, then it shall be lawful for any such J. or magistrate, and such J. &c. is required, on complaint made APPENDIX. CCXX1 before him, and proof, by the examination of the party making WORKMEN'S such complaint, that application has been made to the person or persons against whom such cause of complaint has arisen, (or his, c 96 ' her, or their agent or agents, if such dispute has arisen with such agent or agents), to settle such dispute, and that the same has not been settled upon such complaint being made, or where the dispute relates to a bad warp that such cause of complaint has not been done away with within 48 hours after such appli- cation, to summon before him such person or persons, or agent or agents, on some day not exceeding 3 days, exclusive of Sun- Summons, day, after the making such complaint, giving notice to the per- son making such complaint of the time and place appointed in such summons for the attendance of such person or persons, agent or agents ; and if at such time and place the person or Appointment of persons so summoned shall not appear by himself, herself, or referees< themselves, or send some person on his, her, or their behalf, to settle such dispute, or appearing shall not do away such cause of complaint, then it shall be lawful for such J., and he is required, at the request of either of such parties, to nominate arbitrators or referees for settling the matters in dispute; and such J. shall then and there, at such meeting, propose not less than 4 nor more than 6 persons, one half of whom shall be master manufacturers, or agents or foremen of some master manufacturer, and the other half of whom shall be workmen in such manufacture ; such respective persons residing in or near to the place where such disputes shall have arisen ; out of which master manufacturers, agents, or foremen, the master engaged in such dispute, or his agent, shall choose one, and out of which workmen so proposed, the workman or his agent shall choose another, who shall have full power to hear and finally deter- mine such dispute.'' 4. " In case any or either of the persons so proposed by Appointment of any such J. shall refuse or delay to accept such arbitration, or ot , her referees . . . where those ap- accepting shall not act therein, within 2 days after such nomina- pointed refuse tion, the J. shall proceed to name another or other persons of or dela y to ac * .... ... cept the refe- the descriptions aforesaid, in the room of the person so refusing, rence or to act> to be arbitrator or arbitrators in the place of any such arbitrators, &c. so refusing or delaying to accept or who shall not act ; and CCXX11 APPENDIX. WORKMEN'S in every case of a second nomination the arbitrators shall meet 5 GeQ P I' within 24 hours after the application for the same, and at the Ct gg. same place at which the meeting of the referees first named was appointed, or at some other convenient place, as the J. may Expense appoint ; and the expense of every such application for the ap- pointment of a second referee shall be borne and defrayed by the party through whose default, or the default of whose re- feree, such application is rendered necessary ; and the J. making such second appointment shall certify the same in the form for that purpose hereafter set forth, or in some other form to the On 2nd neglect jj]^ e e ff e ct ; and in every case where a second arbitrator shall be arbitrators may proceed alone, appointed, and such second arbitrator shall not attend at the same time and place appointed for settling the matters in dispute, it shall be lawful for the other arbitrator, at such time and place to proceed by himself to the hearing and determining of the same matters in dispute ; and in such case the award of such sole arbitrator shall be final and conclusive as to all matters in dispute submitted to such arbitrator, without being subject to review, appeal, or suspension." Meeting of re- 5. The arbitrators or referees being so nominated, the said which shain>e ^' s ^ a ^ ^ ereu P on appoint a place of meeting "according to the given. directions of this Act, and also a day for the meeting ; notice of which nomination, and of the day of meeting, shall thereupon be given by such J. to the persons so nominated, and to any party to" any such dispute, who may not have attended the meeting before such J. ; which appointment shall be by such J. certified in the form following, or some other form to the like effect : Form of order, ^ A. B., one of the Justices of the Peace acting for mination of re- ^ hereby certify, that C. D. and E. F. are duly nominated ferees. referees to settle the matters in difference between G. H. of master manufacturer, [or agent or foreman, as the case may be], and /. K. of weaver, [or otherwise, as the case may be~\, pursuant to an Act passed in the fifth year of the reign of his present Majesty; and that the said referees are hereby directed to meet at on the day of at of the clock in forenoon [or afternoon, a* the case may be]. A. B." APPENDIX. CCXXii 1 " I, A. B., one of the Justices of the Peace, acting for do WOBKMEN'S hereby certify, that the above-named C. D. and E. F. [or one DISPUTES, of them, as the case may fee,] having refused or delayed to act in jj 9 g* the above-mentioned reference, L. M. and N. O. [or L. M. 2n( j nomina- only as the case may be] are [or is] by me duly nominated re- tion after a re- ferees [or referee], together with the above-named C. D. [or E. F.] to settle the matters in difference between the above- named G. H. and /. K. ; and the said C. D. or E. F. toge- ther with the said L. M. [or the said L. M. or N. O. as the case may be], are directed to meet at the place above-mentioned, on the day of in the year of our Lord at of the clock in the fore- noon [or afternoon, as the case may be]. A. B" And the persons so appointed as aforesaid shall hear and ex- Time O f meet- amine the parties and their witnesses, and determine such dis- in g' pute within 2 days after such nomination, exclusive of Sundays ; and the determination of such arbitrators shall be final and con- clusive." 6. "In all cases where complaints are made respecting bad place for the meeting of re- warps or utensils by workmen, the place of meeting of the re- ferees. ferees shall be at or as near as may be to the place where the work shall be carrying on ; and in all other cases at or as near as may be to the place or places where the work has been given out." 7. " Provided that if any person so complaining shall not Effect of non- attend, or send some person on his or her behalf, at the time and place appointed by such J. P., for the purpose of naming rees. such persons, such person shall not in such case be entitled to the benefit of this Act ; and if any person against whom any such complaint shall have been made shall not attend, or send some person on his or her behalf, the J. P. shall there- upon nominate a person for him out of such persons so pro- posed as aforesaid." 8. " The said arbitrators and referees shall meet at the time Investigation of and place fixed by the J. P. by whom such referees were ap- thecom pl a nt- pointed, and shall, by inspection of the work in regard to which the dispute may have arisen, by hearing and examining the parties, or any other persons on their behalf, or that attend CCXX1V APPENDIX. WORKMEN DISPUTES. 5 Geo. IV. c. 96. Award final. Summoning witnesses. Neglect to at- tend, or refusal to answer. Proof of ser- vice. Commitment. to give evidence respecting the matters in dispute, upon oath, (which the arbitrators may administer), or otherwise, or by otherwise ascertaining the true state of the case in such man- ner as to such arbitrators and referees shall appear necessary, proceed to determine the matter or matters in dispute referred to them;" and their award shall be final, and not subject to review by any court or authority. 9. "It shall be lawful for any arbitrator or arbitrators, referee or referees, and they are hereby required at the re- quest in writing of any of the parties to issue his or their summons to any witness or witnesses to appear and give evi- dence before such arbitrator, &c., at the time and place ap- pointed for hearing and determining any such dispute, and which time and place shall be specified in such summons ; and if any person so summoned to appear as a witness shall not appear before such arbitrator or arbitrators, referee or re- ferees, at the time and place specified in such summons, or offer some reasonable excuse for the default ; or appearing according to such summons, shall not submit to be examined as a witness, and give his evidence before such arbitrator, &c., touching the matter of such dispute then and in every such case it shall be lawful for any one or more Js. P. acting in and for the county, riding, division, barony, city, town, or place, where such dispute shall have arisen, and they are hereby authorized, (proof on oath, in the case of any person not appearing according to such summons, having been first made before such J. or Js. of the due service of such sum- mons on every such person by delivering the same to him, or by leaving the same 24 hours before the time appointed for such person to appear before such arbitrator, &c., at the usual place of abode of such person), by warrant under the hands of any such J. or Js. to commit any such person so making default in appearing, or appearing and refusing to give evi- dence, to some prison within the jurisdiction of any such J. or Js., there to remain, without bail or mainprize, for any time not exceeding 2 calendar months, nor less than 7 days, or until such person shall submit himself to be examined, and give his evidence before such arbitrator, &c., as aforesaid ; APPENDIX. CCAXV provided that in case such dispute shall be heard and deter- WORKMEN'S mined before such offender shall submit to be examined and give evidence as aforesaid, then and in every such case, he, determined be- she, or they shall be imprisoned the full term of such com- fore witness mitment;" see sect. 27, post. submits< 10. " In case such arbitrators and referees so appointed Adjournment cannot agree upon and decide such matter or matters in dis- ^^ c ^ the pute so referred, or shall not make and sign their award within referees. 3 days after the date of the order of such J. certifying their In what cases, appointment, then the said arbitrators and referees shall, To what J. P. without delay, go before the J. by whom they were appointed, and in case of his absence or indisposition, before any other of the Js. P. acting in and for the county, &c., or place, and residing nearest to the place where the meeting to settle such dispute shall have taken place ; and shall state to such J. or Js. who may be present the points in difference between them the said arbitrators and referees, which points in difference the said J. or Js. shall, and are hereby authorized and re- quired to hear and determine upon the statement of the ar- bitrators and referees ; and the said J. or Js. is and are hereby within what directed and required to settle and determine the matter in dis- time to b de- pute with all possible dispatch, and in all cases within the space of 2 days after the expiration of the time hereby allowed to the arbitrators and referees to make and sign their award;" and the determination of such J. or Js. shall be final, and not subject to review by any court. 11. "If either arbitrator or Where one re- referee shall neglect or refuse to go before such J. P. in the feree refuses to manner herein directed, it shall be lawful for such J. after summoning the arbitrators to attend him, to determine the matter or matters in dispute, upon the statement and repre- sentation of either of the arbitrators who shall come before him." 12. " No J. P. being also a master manufacturer or agent, Manufacturer, shall act as such J. under this Act." * c j' "' to act 13. " Provided that as well in all such cases of dispute as j)j sputes j n a ]j aforesaid as in all other cases, if the parties mutually agree that cases may be the matter in dispute shall be arbitrated and determined in a arbitration* as 2f CCXXV1 APPENDIX. WORKMEN S DISPUTES. agreed on, which may be enforced by J. P. Partners, agents, and ser- vants, to^be considered principals. Masters may by writing depute another to act for them. Provision for the case of the master be- coming bank- rupt after pro- ceedings com- menced. different mode to the one hereby prescribed, such agreement shall be valid, and the award and determination thereon final and conclusive between the parties ; and the same proceedings of distress, sale, and imprisonment, as hereafter mentioned, shall be had towards enforcing such award, (by application to any J. P. of the county, &c., or place within which the parties shall reside), as are by this Act prescribed for enforcing awards made under and by virtue of its provisions." 14. " Provided where any work shall have been delivered to any workman by the agent or servant of any master or mas- ters, to be, when finished, delivered to such agent or servant; and also where two or more persons shall carry on the business of such manufacture as partners, in every such case respec- tively the like proceedings shall and may be had and made against such agent, servant, or any partner, and shall be as ef- fectual as if the same had been had and made against the prin- cipal, or all the partners ; apd all the said persons respectively shall obey the award made thereupon, and all such order or or- ders as shall be made by the said J. or Js. in or respecting the matters in dispute, and shall be subject to the same proceedings and consequences for refusing or delaying to abide by or per- form the same, as if the proceedings had been had against the principal, or against all the partners." 15. " It shall be lawful in all cases for any master or work- man, by writing under his hand, to authorize any person to act for him in submitting to arbitration and attending arbitrators or Js. touching the matter of any arbitration." 16. " In all cases where any proceedings may be had against a master or masters under this Act, or where such proceedings shall have been commenced, and the master or masters shall become or be bankrupt, or any assignment of his or their estate or effects shall have been made under the said bankruptcy, or otherwise by deed or in law, the factor or trustee upon, or the assignee or assignees of such estate or effects shall be liable to the proceedings authorized by this Act against the master or masters, as fully as the master or masters was or were before the bankruptcy or assignment ; and such proceedings may be commenced or carried on against such factor, trustee, assignee, APPENDIX. CCXXV11 or assignees, who shall fulfil and abide by the award made WORKMEN'S thereupon, and all such order or orders as shall be made by ' the said J. or Js. in or respecting the matters in dispute, and c . 95. shall be subject to the same proceedings and consequences for wilfully refusing or delaying to abide by or perform the same, as if the proceedings had been had against the master or mas- ters before his or their bankruptcy, or the assignment of his or their estate or effects; provided that all sums of money to be Sums recover- . . . able only out of paid in pursuance of such award or orders shall be recovera- p r i nc ip a i' s ble only out of the estate or effects of such master or masters, estate, and not out of the proper money of such factor, trustee, assig- nee or assignees." 17. " Where any married woman, or infant under the age Proceedings ni i 11 i o i where the corn- er 21 years, shall have cause of complaint, in any or the cases p i a i nant j s a provided for by this Act, against any master or masters, his or married woman .i . ,, or infant, their agent or servant, or factor or trustee, or assignee or assig- nees as aforesaid, such complaint may be lodged, and all further proceedings thereupon had, by and in the name of the husband of such married woman, and of the father, or (if dead) of the mother, or (if on the death of both parents) of any of the kin- dred of any such infant, or of the surety or sureties in any in- denture of apprenticeship of any such infant, being an apprentice, or of any person nominated by such infant, if he or she shall not have parent, kindred, or surety ;" and such proceedings shall be as valid as if such married woman was sole, and such infants were of full age, and pursued the remedies under this Act by themselves. 18. " With every piece of work given out by the manufac- Tickets of par- turer to a workman to be done, there shall (if both parties are witliTh^wo^k agreed) be delivered a note or ticket, in such form as the said to be evidence, parties shall mutually agree upon ; and which said note or ticket, in the event of dispute between the manufacturer and workman, shall be evidence of all matters and things mentioned therein or respecting the same." 19. " A duplicate of every such note Duplicates of or ticket shall be made and kept by the master or agent de- sucn tickets. livering the same, which duplicate shall be evidence of all the matters and things therein contained, in case the workmen shall CCXXV111 APPENDIX. WORKMEN'S not produce to the arbitrators, or the said J., as the case may c . 96.' 20. " It shall not be allowable to any manufacturer, who Manufacturers shall have received into his possession any article without ob- vin artl " jection made within 24 hours, by himself, his clerk, or foreman, jection not to afterwards to make any complaint on account of work so re- complain after- ce } ve d. Extension of 21 * " ^ tne P art ies by and between whom the said reference the time limited shall take place as aforesaid, shall think it expedient, or be de- e sirous to extend the time hereby limited for the making the award or umpirage, it shall be lawful for them to extend the same accordingly by indorsement, according to form of the schedule hereunto annexed, on the back of the order of the J. P., certifying the appointment of the referees, to be signed by both of them in the presence of one or more credible witness or witnesses." Form of award, 22. " The award or umpirage to be made upon any refe- and how drawn rence demanded under this *Act shall and may he drawn up and written at the foot or upon the back of the said order certifying the appointment of the referees, according to the form in the Acknowledg- schedule annexed." 23. Upon fulfilment of the award or ment of fulfil- . . ,, , , , . . . . _ ment of award, umpirage, the same shall be acknowledged by the party in whose behalf the same was made, by an acknowledgment at the foot of the said award, in the form of the schedule annexed, which, To whom de- with the award, shall thereupon be delivered to the party ful- livered. fining the same Performance of 24. " If any party shall refuse or delay to fulfil an award the award may un d er this Act, for the space or term of 2 days after the same distress. shall have been reduced into writing, it shall be lawful for any such J. as aforesaid, on the application of the party aggrieved, and he is hereby required, by warrant under his hand according Form of war- to the form of the schedule annexed, or in some other form to rant * the like effect, to cause the sum and sums of money directed to be paid by any such award fo be levied by distress and sale of any goods and chattels of the person or persons liable to pay the same, together with all costs and charges attending such distress and sale ; such sale to take place within such time, not APPENDIX. CCXX1X exceeding 5 days as the said J. shall think proper ; and the WORKMEN'S overplus, (if any), to arise by such sale, to be rendered to the owners of the goods and chattels distrained ; and in case it shall c g g' appear by any return to such warrant that no sufficient distress R e t ur n to war- can be readily had, (which return may be in the form contained rant. in the schedule annexed, or in some other form to the like ef- fect), it shall be lawful for any such J. as aforesaid, and he is Commitment in hereby required, by warrant under his hand, according to the ^ form of the schedule annexed, or in some other form to the like effect, to commit the person or persons so liable to the common gaol or some House of Correction within his or their jurisdic- tion, there to remain without bail for any time not exceeding 3 months." 25. Recites that cases may occur where the recovery of In certain cases such sums by distress may appear to the J. or Js. P. by whom " the warrant is to be issued to be attended with consequences be withheld, ruinous or especially injurious to the defaulter and his family, * . to prevent which it is enacted, " that the said J. or Js., in all mitted. such cases, shall withhold such warrant, and commit the de- faulter to the common gaol or some House of Correction within his or their jurisdiction, there to remain without bail for any time not exceeding 3 months ; such commitment to be in the form or to the effect of the form in the schedule annexed." 26. Where any person shall be committed for refusing or On payment of delaying to fulfil an award, and shall, at any time during the tl l e s m award- J J ed, with costs, period of imprisonment, pay to the governor or keeper of the the party shall prison the full amount of the sum awarded, with all reasonable be discharged. expenses incurred through such refusal or delay, such governor or keeper is required forthwith to discharge such person. 27. The J. or Js. by whom any person shall be committed Form of com- , .... mitment of a for not appearing as a witness, or not submitting to be ex- w i tness . amined, (see s. 9), shall cause the warrant or order for such commitment to be drawn up in the form or to the effect set forth in the schedule. 28. " No appeal or certiorari shall lie against any proceed- No appeal or ings under this Act." 29. No proceedings under this Act certiorari - shall be invalid for want of form." Want of form ' 30. " The following and no higher fees shall be allowed to Fees. ccxxx APPENDIX. WORKMEN'S DISPUTES. 5 Geo. IV. c. 96. To clerk of Js. To constable. Table of fees. Costs and ex- penses. How settled by arbitrators or J. P. By what J. P. Costs to mas- ters, &c., when allowed. Proceedings exempt from stamp duty. Protection of J. P. &c. Former Acts, &c. Schedule. Form of award to be written at be taken for any proceeding under this Act, i. e. To the Clerk of the J. or Js. for each summons 2 pence ; for every oath or affirmation, 3 pence ; for drawing or entering the order, 4 pence ; for every warrant, 6 pence ;" (but see 7 & 8 Geo. IV. c. 67, s. 10 and s. 8, ante, pp. 86, 87, and 96). To the Con- stable or other peace officer for service of summons or order, 4 pence ; for executing warrant of distress and sale of goods 1 shilling ; for custody of goods distrained, per diem, 3 pence ; for every mile he shall travel 3 pence ; for every caption, 6 pence. And a table of fees signed by the Clerk to such J. or Js., shall be hung up in every place where any General or Quarter Session, or Petty or other Sessions of the Peace shall be held.'* See ante, p. 87. 31. " All costs, time, and expenses attending the applica- tion to Js., to be made under this Act, and of the arbitration pursuant thereon, shall be settled by the arbitrators or arbitra- tor by whom such dispute, shall be settled ; and where the same shall be determined by any J. P., pursuant to this Act, then the costs, time, and expenses aforesaid shall be settled by such J. ; and where the arbitrators appointed cannot agree as to the costs, &c., to be allowed, the same shall be settled by the J. or Js. P. by whom the arbitrators were named, and in case of his absence or indisposition, by any J. P. for the same county, &c., or place nearest to the place at which the arbitra- tors met to settle the dispute : provided that no master manu- facturer, his foreman or agent, shall in any case be allowed for costs, time, or expenses, by the said J. or Js., unless it shall appear to him or them that the proceedings of the workmen were vexatious and oppressive." 32. " Every agreement, submission, award, ticket, matter, or thing, under and by virtue of this Act, or relating to any other mode of arbitration as aforesaid, shall and may be drawn up and written upon unstamped paper." 33, 34. For protec- tion of persons executing the Act. 35. Nothing in this Act shall extend to repeal or abridge any clause or remedy not hereby repealed. " We, I. K. and L. M. [name and describe the referees] the referees appointed to settle the matters in dispute between APPENDIX. CCXXXi the parties within named [or I. K. one of the referees so ap- WORKMEN'S pointed ; or L. M., the other referee so appointed, having failed ^ to attend ; or I, N. O. the Justice, as the case may be~] ; do c g 6> ' hereby adjudge and determine that [here set forth the deter- the foot or upoo initiation ; to which the referee or referees, or Justice as the tne back of tne ./ . * order of the case may be, shall subscribe their names']. j s . p. ; certify- ing the refe- rence. We, A. B. and C. D., parties to the within reference, do , , hereby agree to extend the same to the day of in- extending the elusive. Witness our hands this day of time limited for TXT-. A -n making the Witness, A. B. award. C.D. I, A. B. do hereby acknowledge that the above award hath Acknowledg been fulfilled by C. D., who is hereby discharged of the same Witness my hand this day of award, to be Witness, A.B. 7 ritten k on ' he foot or back thereof. The evidence you shall give before us, the arbitrators ap- Qath to be ad- pointed by C. Z). and E. F. [the parties] to determine the rninistered by matters in difference between them, under and by virtue of an orVW /he " Act passed in the fifth year of the reign of King George the parties and Fourth, intituled An Act [state the title of this Act], shall be witnesses - the truth, the whole truth, and nothing but the truth. So help you GOD. Whereas proof on oath hath been made before me, one of Commitment of his Majesty's Justices of the Peace for the county, [or riding, ^J^asT w!t- stewartry, division, city, burgh, liberty, town, or place] of ness before the on this day of that A. B. hath been duly arbitrators. summoned, and hath neglected to appear and give evidence be- fore C. D. and E. F. the arbitrators appointed by and between G. H. and /. K. to determine the matters in dispute between them at in the county [or riding, stewartry, divi- sion, city, burgh, liberty, town, or place] of on the day of under and by virtue of an Act made in the fifth year of the reign of his present Majesty, intituled An Act [here set forth the title of this Act~], and the CCXXX11 APPENDIX. WORKMEN S DISPUTES. 5 Geo. IV. c. 96, Warrant of dis- tress. said A. B. being required by me, the said Justice, to give evi- dence before the said arbitrators, and still refusing so to do, therefore I, the said Justice, do hereby in pursuance of the said Act, commit the said A.. B. to the [describing the prison and the House of Correction] there to remain without bail or main- prize for his [or her] offence aforesaid, until he [or she] shall submit himself [or herself] to be examined, and give his [or her] evidence before the said arbitrators, touching the matters referred to them as aforesaid, or shall otherwise be discharged by the course of law : and you the [Constable or Peace Officer or Officers to whom the warrant is directed] are hereby au- thorized and required to take into your custody the body of the said A.. B. and him [or her] safely to convey to the said prison [or House of Correction] and him [or her] there to deliver to the gaoler [or keeper] thereof, who is hereby authorized and required to receive into his custody the body of the said A. B. and him [or her] safely to detain and keep, pursuant to this commitment. Given under my hand this day of in the year of our Lord [ This commitment to be directed to the proper Peace Officer, and the gaoler [or keeper] of the Prison [or House of Cor- rection']. To the Constable of Whereas of under an award made by on the day of in the year of our Lord pursuant to an Act passed in the fifth year of the reign of his present Majesty, intituled An Act [state the title of this Act], is liable to pay to of the sum of and also the sum of and the said having refused or neglected to pay the same for the space of two days and up- wards subsequent to the making such award, these are therefore to command you to levy the said sum of by dis- tress and sale of the goods and chattels of the said and I do hereby order and direct the goods and chattels so to be dis- trained to be sold and disposed of within days, unless the said sum of for which such distress shall be made, APPENDIX. ccxxxiii together with the reasonable charges of taking and keeping WORKMEN'S such distress, shall be sooner paid ; and you are also hereby commanded to certify to me what you shall do by virtue of this c< 96 ' my warrant. Given under my hand and seal, at the day of I, Constable of do hereby Constable's re- certify to Justice of the Peace of that Jj} r j is \ re rrant I have made diligent search for, but do not know of, nor can find any goods and chattels of by distress and sale whereof I may levy the sum of pursuant to his warrant for that purpose. Dated the day of in the year of our Lord Given under my hand this day of in the year of our Lord Here name the \ To the Constable of and Commitment County. [also to the Keeper of the House ofCorrec- ^TnTse of tion at Correction. Whereas of under an award made by on the day of in the year of our Lord pursuant to an Act passed in the fifth year of the reign of his present Majesty intituled An Act [state the title of this Acf], became liable to pay to the sum of and also the sum of for costs, time, and expenses, making together the sum of ; and having refused or neglected to pay the same for the space of two days and upwards subsequent to the making of such award, my warrant was, according to the provisions of the said Act, duly made and issued for the levying of the said sum of by distress and sale of the goods and chattels of the said ; and whereas it appears by the re- turn of constable of dated the day of that he hath made diligent search for, but doth not know of, nor can find any goods and chattels of the said by distress and sale whereof the said sum of may be levied pursuant to my said warrant : these are therefore to command you the said consta- ble of to apprehend the said and CCXXX1V APPENDIX. WORKMEN'S convey him to the sarid House of Correction at afore- DISPUTES. gg^ an( j Deliver him there to the keeper of the said House of c QQ' Correction ; and these are also to command you the keeper of the said House of Correction to receive him the said into the said House of Correction, and there to keep him without bail or mainprize for the space of months, unless the said sum of so ordered to be paid as aforesaid, shall be sooner satisfied, with all reasonable expenses. Given under my hand and seal, at the day of Commitment Here name the -j To the constable of and also to the when a warrant v of distress is bounty. ] keeper ot the House or Correction at withheld. Whereas of under an award made by on the day of in the year of our Lord pursuant to an Act passed in the fifth year of the reign of his present Majesty, intituled " An Act" [state the title of this Act], became liable to pay to the sum of and also the sum of for costs, time, and expenses, making together the sum of which he has refused or neglected to pay for the space of two days and upwards subsequent to the making of such award ; and whereas it appears to me that the recovery of such sum and warrant of distress and sale of goods and chattels of the said will be attended with consequences ruinous or in an especial manner injurious to the defaulter [and his family if any] and I have therefore determined to withhold such warrant and to commit the said to prison, pursuant to the said Act: these are therefore to command you, the said constable of to apprehend the said and convey him to the said House of Correction at aforesaid, and deliver him there to the keeper of the said House of Cor- rection ; and these are also to command you the keeper of the said House of Correction to receive him the said into the said House of Correction, and there keep him with- out bail or mainprize for the space of months, unless the said sum of so ordered to be paid as aforesaid shall be sooner satisfied, with all reasonable APPENDIX. CCXXXV expenses. Given under my hand and seal, at the WORKMEN'S day of DISPUTES. The title of this Act is, " An Act to consolidate and amend Title of the the laws relative to the arbitration of disputes between masters and workmen. Stat. 1 Viet. c. 67, recites 5 Geo. IV. c. 96, and that it 1 Viet. c. 67. provides, (see sect. 2, ante, p. ccxx), " that all complaints Period for thereunder by any workman for any cause, except as to bad "J*^"^ c t m ", materials, shall be made within 6 days after such cause of ed. complaint shall arise ; but the said period of 6 days has been found too short," and enacts, " that the same be extended to 14 days." 2. " Whereas it is enacted by the said Act, that various Js. P. having differences under the same shall be subject as therein men- ^ e s r lct , lon tioned to the adjudication of any J. P. or magistrate of any complained county, riding, division, stewartry, barony, city, burgh, town, a S ainst resides J ' . ., , to havejuns- or place within which the parties reside : and whereas many diction in the cases have arisen where no J. P. or magistrate could be matt ers of the found who has jurisdiction where both of the parties dif- fering reside ; in consequence whereof it has been doubted whether the above beneficial enactment can in such cases take effect ; and for the remedy thereof it is necessary that the jurisdiction and powers which are by the said Act conferred on the Js. or magistrates of the district where both parties reside shall in future be exercised by the Js. or magis- trates of the district where the party complained against re- sides. In the place of the Js. or magistrates of the district where both parties reside, the Js. or magistrates of the dis- trict where the parties complained against reside shall have the said jurisdiction and powers ; and whatever acts and duties are by the said Act required to be done by the first mentioned Js. or magistrates, or any one of them, shall be done by the last mentioned Js. or magistrates, or by any one of them ; and the said Act shall in all respects be construed as if the words ' where the party complained against resides' had been originally inserted in the third section of the said Act instead of the words ' within which the parties reside.' 3. Wherever the expression ' Justice of the Peace' occurs in Interpretation the said Act it shall be construed to mean ' magistrate.' " of " justice." CCXXXV1 APPENDIX. SALVAGE. 4 Geo. I. c. 4. Sheriffs, Js. P., &c., when ships are in danger, on application made to them, shall summon assistants. Ships, &c., at anchor, required to lend assist- Penalty for re- fusal. Persons so as- sisting to be paid a reason- able reward. SALVAGE. Stat. 4 Geo. I. c. 4, s. 1, perpetuated by 11 Geo. II. c. 9, reciting the evils of the existing salvage laws, enacts, " that the sheriffs, Js. P., of every county, or county of a city or town, and also all mayors, bailiffs, and other head officers of corporations and port towns near or adjoining to the sea, and all constables, headboroughs, tythingmen, and officers of the customs, in all and every such places, shall, upon application made to them, or any of them, by or on the behalf of any commander, chief officers, owners, or freighters of any ship or vessel of any of his Majesty's subjects, or others, being in danger of being stranded or run on shore, or being stranded or run on shore, are hereby empowered and required to command the constables of the several ports nearest the sea coasts, where any such ship or vessel shall be so in danger, to summon and call together as many men as shall be thought necessary to the assistance and for the preservation of such ship, &c. and their cargoes ; and if there shall be any ship or vessel, either man of war or merchant ship, belonging to his Majesty, or any of his subjects, riding at anchor near the place where such ship or vessel is in distress or danger, the officers of the customs and constables above men- tioned, or any of them, are empowered and required to demand of the superior officer of such ship or vessel, so riding at anchor, assistance of their boats, and such hands as they can conve- niently spare for the said service and preservation of the said ship or vessel so in distress ;" and if the superior officer shall refuse or neglect to give such assistance, he shall forfeit 100. " And for the encouragement of such persons as shall give their assistance to such ships or vessels so in distress, the said collectors of the customs, and the master or commanding offi- cer of any ships or vessels, and all others who shall act or be employed in the preserving any such ship or vessel so in dis- tress, or their cargoes, shall within thirty days (but see 23 & 24 Geo. III. c. 48, post) after the service performed, be paid a reasonable reward for the same, by the commander, master, or other superior officer, manners, or owners of the ship or vessel so in distress, or by the person or merchant whose ship APPENDIX. CCXXXVU or vessel, or goods, shall be so saved ;" and in default thereof, SALVAGE. the ship, vessel, or goods so saved, shall remain in the cus- tody of such officer of the customs, or his deputy, until all charges t, e detained shall be paid, and the persons employed be reasonably gratified until payment, or good security given, (see 23 & 24 Geo. III. c. 48, ss. 13, 15.) " And in case after such salvage, the commander, or other In case of dis ' ~. _ , agreement as to superior officer, manners, or owners of such ship or vessel so amount, the sal- saved, or the person or merchant whose goods shall be saved, vage shall be ad- ' justed by Js. P. as aforesaid, shall disagree with the said officer of the customs, or his deputy, touching the monies deserved by any of the per- sons so employed, it shall be lawful for the commander of such ship or vessel so saved, or the owner of the goods, or the per- son or merchant interested therein, and also for the said officer of the customs, or his deputy, to nominate two or more of the neighbouring Js. P., who shall thereupon adjust the quantum of the monies or gratuities to be paid to the several persons acting or being employed in the salvage of the said ship, vessel, or goods, and such adjustments shall be binding, (but see 17 Geo. II. post) and the commander of such ship or vessel so saved, or the owner of the goods, or the person or merchant interested therein, shall pay down to thesaid officer the monies Ships, &c., de- so allotted by the said Js. P., or give good and sufficient secu- ^tVsecu-*" rity for the same before the said goods be delivered ; (and see r "y. 23 & 24 Geo. III. c. 48, s. 1.5) ; and in case it shall happen What shall be that no person shall appear to make his claim to all or any of cia^manTof the the goods that shall be saved, then the chief officer of the cus- goods appears, toms of the nearest port to the place where the said ship or vessel was so in distress, shall apply to two or more of the nearest Js. P., who shall put him, or some other responsible person in possession of the said goods; such Js. P. taking an account in writing of the said goods, to be signed by such officer of the customs ;" and the goods, if unclaimed for twelve months, may be sold, or, if perishable, may be sold immediately, and ac- counted for as herein. Stat. 17 Geo. II. c. 11, s. 2, recites the foregoing, and 17 Geo. II. c. 11. enacts, that the commander, mariners, or owners of the vessel Appeal, saved, or owner of the goods, or any person interested therein, or any person or persons employed in such salvage, or having CCXXXV111 APPENDIX. SALVAGE. an} 7 interest in such adjustment, if aggrieved by such adjust- 17Geo.II.c. 11. m ent,may,by petition, appeal to the Lord Lieutenant and Privy the^ecisiorTof Council, or to the next going Judges of Assize, for the county the Js. P. in which the ship or goods or any of them is saved. By s. 3 no petition of appeal to the Lord Lieutenant and Council shall be received, unless preferred within three calendar months after the adjustment is made and published by the Js. P. ; and the If to the Lord p ar ty appealing shall, within 21 days from the date of preferring Lieutenant and ' ' Council. his petition, serve the officer of customs or his deputy with a true copy thereof; in default of so doing, the adjustment shall be conclusive on all concerned. Sec. 4 relates to further pro- If to the Judge ceedings on the appeal. Sec. 5 provides, that when the party proceeds by appeal to the Judges of Assize, he shall, 10 days at least before the first day of the Assizes, serve the officer of cus- toms, or his deputy, with a true copy of the petition, which ser- vice shall be taken to be a sufficient notice to all persons claim- ing salvage; such petition shall be filed before 12 o'clock at noon, on the 2nd day of the assizes, and determined at the assizes, unless the judge postpone it to the next assizes ; and in default of the service of such copy, or of due prosecution of the petition, the adjustment to be conclusive. By s. 6, if there be not 10 days between the adjustment and assizes, the proceed- ings are to be had at the assizes next after. Sects. 7, 8 relate to the further proceedings on appeal at the assizes. Vessels are to By s. 9, the officer of customs shall deliver the vessel and depSfng^'he 011 & oods to the master and owners, on depositing the money money or giving allotted, or giving security as herein. 10. Costs decreed to owners on appeal may be deducted out of the adjustment. Stat. 4 Geo. I. applies only to assistance given by persons employed as therein described : and 1 7 Geo. II. only gives an appeal in such cases ; but the jurisdiction of Justices has been extended to the case of assistance voluntarily given by 23 & 24 Geo. Stat. 23 & 24 Geo. III. c. 48, (see Towns. Law of Salvage, 35), n tem w ^ c ^ enac ts> s. 5, " In case any person or persons not em- ployed as under ployed by the master, mariners, or owners, or other persons fle^Toa'rea- 1 " lawfull J authorized in the salvage of any ship or vessel, or sonable reward, the cargo or provision thereof, shall, in the absence of the persons so employed or authorized, save any such ship, ves- APPENDIX. CCXXX1X sel, goods or effects, and cause the same to be carried for the SALVAGE. benefit of the owners or proprietors thereof into port, or to 23 & 24 Geo. any near adjoining custom-house or other place of safe cus- tody, immediately giving notice thereof to some J. P., magis- trate, or custom-house or excise officer, or shall discover to any such J., magistrate or officer where any such goods or effects have been wrongfully bought or sold, or are concealed ; then, such person or persons shall be entitled to a reasonable reward for such services, to be paid by the masters or owners of such vessels or goods, and to be adjusted, in case of dis- agreement about the quantum, in like manner as the salvage is to be adjusted and paid by virtue of 4 Geo, I. c. 4, and also in the manner hereinafter prescribed." Sect. 8 requires " any one or more Js. P., in case of need, j s . P. in the and in the absence of the high sheriff, to take sufficient power ^eriff ^ftlke of the county to repress all unjust violence, and to enforce the the posse comi- execution of this Act." 9. To prevent confusion among to persons assembled to save any ship, &c., "all persons so Persons em- assembled shall conform, in the first place, to the orders of P lo .y ed in &f assistance shall the master or other officers, or owners, or other persons em- obey orders as ployed by them ; and for want of their presence or directions, herem ' then, in the next place, to the orders of any officer or officers of the customs ; then, of any officer or officers of excise ; then, of the sheriff or his deputy ; then, of any Js. P. ; then, of the mayor or chief magistrate of any corporation ; then, of the coroner ; then, of any high constable ; then, of any petty constable or other peace officer : and any person whatever acting knowingly and wilfully contrary to such order, shall forfeit any sum not exceeding 5, to be levied by warrant of Penalty, one J. P., and in case of nonpayment, the offender shall be committed to the House of Correction for any period not ex- ceeding 3 months." Sect. 10. Saves rights of the Crown to wreck. 11. Requires Examination on the officer of customs, as soon as conveniently mav be, to procure oath before J - p - to ascertain persons belonging to the said ship, and others who can give any particulars as to account thereof, or of the cargo, to be examined upon oath the shlp< before a J. P., as to the name and description of the said ship or vessel, and the names of the master, commander, or chief CCX1 APPENDIX. SALVAGE. officers and owners thereof, and of the owners of the said 23 & 24 Geo. cargo, and of the ports or place from and to which said ship or vessel was bound, and the occasion of said ship's distress ; which examination the said J. P. is hereby required to take down in writing, and to deliver a true copy thereof, together with a To be taken in c Py ^ ^ e sa ^ account of the goods, to the said officer of cus- writing and toms, who shall transmit the same" to the Privy Council to be transmitted as herein. published as herein. Course to be Sec. 12 recites the evil of delay arising from the mode of vorT to oblain " P roce eding prescribed by 4 Geo. I. and enacts, that when any remuneration, person or persons shall act or be employed in the preserving any ship or vessel, goods or effects of H. M. subjects or others in danger, or being stranded or run on shore, and shall claim a reward by way of salvage for so doing, every such per- son shall, within fourteen days next after such service per- formed, make and file his or their claims in writing, signed with his or their proper names or marks in the excise office of the district in or nearest to which such service shall have been performed ; in every of which claims, all sums claimed for storage, labour, expenses, and services, and for every matter and thing concerning such salvage, shall be separately and distinctly specified, with the respective charges of each and every parti- cular thereof; and the said claimant or claimants shall (if there- unto required by the owners or persons lawfully authorized by them, but not otherwise) verify the truth of such claims by affidavit, or affirmation if a Quaker, made at the foot of the claim, and to be sworn before any J. P. for the county or place in or nearest to which such service was performed ; " and in de- fault of such claim or claims being so made and filed, or (if re- quired) being verified, such person or persons who shall act or be employed in the preserving any such ship or vessel, goods or effects, shall be, and are hereby declared to be barred and pre- cluded from receiving or recovering any such reward or rewards, or any salvage" therefor. Owners, on pay- 13. In case the owners, or persons interested, shall abide by suc ^ c ^ ims so m ade and filed, and shall pay to the officer of the ship or goods customs, the sums so claimed for the use of the persons entitled, delivered up. APPENDIX CCXI the officer of customs shall immediately deliver up the ship and SALVAGE. effects to the persons interested, without any further charge. 14. " In case the said owner or other persons interested in If dissatisfied, the said ship or vessel, goods, or effects, shall think the claims, S or any of them, to be unreasonable, and shall desire that the by Js. P. quantum of salvage so claimed or any part thereof, shall be adjusted by two or more Js. P. pursuant to 4 Geo. I. c. 4, the same shall accordingly be forthwith adjusted ;" and if the owners or persons interested, or any person in their behalf, shall pay to the officer of customs, for the use of the claimants, the sums so adjusted, the said officer shall immediately deliver up the ship And ship, &c., and effects to the owners or persons authorized, without any payment n further charge. By s. 15, the owners, &c., without waiting the event of the Owners may adjustment, may send the ship to sea, or otherwise dispose d 'sp se of the , J ' J ship on deposit- thereof, on depositing with the officer of customs the amount ing the sum of the salvage claimed, to abide the event of the adjustment ; or in lieu of such deposit, on giving security by the bond of two by bond. sufficient persons in the penalty of double the amount claimed, conditioned to pay to the officer, for the use of the claimants, the sums which shall be awarded upon such adjustment. 18. " The said Js. P., after they shall be nominated to ad- Js. P. to adjust just the amount or quantum of the said salvage, shall imme- JJ a f e imme " diately and diligently proceed to adjust the same without any wilful delay." And sec. 20 subjects any J. P. neglecting 1 his duty under this Act, to a penalty of 100. 19. " The justices shall not, in their adjustment of the sal- Not to exceed vage, exceed the sum or sums demanded in and by the several sum demanded - claims by this Act required to be made and filed, such claims (if thereunto required) being also verified by oath or affirmation as hereinbefore directed." Sec. 21 provides that nothing herein shall bar any person Appeal. from appealing against such adjustment according to 17 Geo. II. c. 1 1. 22 saves 4 Geo. I. c. 4, and 17 Geo. II. c. 1 1 , in force, save as altered by this Act. 23, " Provided, that if it shall appear to such justices, that Claim barred any person claiming salvage, shall have stolen or pilfered any by pl1 of the goods or effects, or any thing belonging to the ship 2 h ccxlii APPENDIX. SALVAGE. 4 GCO. I. To what cases the Salvage Acts apply. Factory Act Passengers, &c. Custody of plar.s for parliamen- tary bills. Improving rivers. or vessel, out of which salvage is so claimed, such person shall be absolutely barred from his claim of salvage." The jurisdiction of Js. P. under these Acts appears to ex- tend only to cases where the assistance is under the direction of officers enumerated in 4 Geo. I. c. 4, or given by persons acting voluntarily, as mentioned in sec. 5 of 23 & 24 Geo. III. ; and therefore if the master sends for any particular person not in- cluded in 4 Geo. I. he becomes the master's agent, and his re- medy is untouched by the Acts, and Js. P. cannot interfere. See Towns. L. of Salvage, 37, 42. The following Statutes, conferring summary powers on Js. P. have been omitted as being of less general application. For their provisions, the reader is referred to the Statute Book. Stat. 3 & 4 Will. IV. c. 103, for regulating the labour of children and young persons in the mills and factories of the U. K., which contains various provisions as to the hours of employ- ment and schooling of children, cleaning the factory, &c. Stat. 4 Geo. IV. c. 88, for regulating the conveyance of passengers between Great Britain and Ireland ; see also 9 Geo. IV. c. 76, s. 29, as to steam-packets ; as to the carriage of passengers abroad, see 5 & 6 Will. IV. s. 53 ; as to quarantine, see 6 Geo. IV. c. 78. Stat. 1 Viet. c. 83, requiring Clerks of the Peace, Post- masters, &c., with whom plans, writings, &c., are (on the intro- duction of bills into parliament relating to public works) de- posited to keep them, and to permit them to be inspected, &c. Stat. 1 & 2 Will. IV. c. 57, empowering landed proprietors in Ireland to sink, embank, and remove obstructions in rivers. Sect. 59 provides for rendering secure all pits, &c., wherein materials are found. Sect. 47, &c., authorizes companies un- der the Act, to take possession of flood-gates, sluices, &c., and imposes a penalty for refusing to deliver them up. 69. Same penalty on any person wilfully or maliciously drawing, pluck- ing up, or opening flood-gates, sluices, &c., made by order of the company, or surrendered under this Act ; before two Js. P. at Petty Sessions. 70. Officers or others acting under the company or trustees, with such aid as shall be necessary, APPENDIX. ccxliii may apprehend transient offenders, who are strangers, and carry them before a J. P. Stat. 6 Geo. IV. c. 99, for ascertaining the boundaries of Boundaries of lands in Ireland. Sects. 9, 13, 18, for facilitating the execu- tion of the Act, impose penalties for obstruction, &c. Sects. 10, 11 direct surveyors, after the divisions have been suffi- ciently ascertained, to mark them in some durable manner, by posts, &c. 12. Penalty for removing, defacing, or muti- lating any such mark. 20. Form of conviction. So Stat. 6 & 7 Will. IV. c. 84, for the uniform valuation Valuation of of lands in Ireland. Sect. 50 imposes a penalty for neglect la by valuators, churchwardens, &c. 55. Penalty for removing, defacing, injuring, or destroying any post or mark placed for the purposes of the Act, or for obstructing or resisting per- sons employed in its execution. 58. Form of conviction. Stat. 9 Geo. IV. c. 82, for lighting, cleansing, and watch- Town Act. ing cities, towns corporate, and market towns in Ireland, imposes several important duties on magistrates ; but these are in force only in those towns which have embraced its provisions, by proceeding as directed in ss. 2, 10, &c. Sect. 48 empowers watchmen to arrest disorderly persons, and to detain them till morning, to be carried before a J. P. Sect. 49 imposes 20. penalty for entertaining watchmen during hours of duty. 51. Penalty on any person, other than scavengers or authorized persons, carrying away dirt. 59. Provides for the sweeping of the footways ; and pavements. 63. Imposes penalties for wilful damage to watchboxes, lamps, water- courses, &c., extinguishing lamps, or wanton mischief to any article or work employed for the purposes of the Act. Sect. 64 imposes penalties for various nuisances and impediments, as riding or driving on footways, driving animals furiously, or leaving them unwatched, &c. ; carrying timber, &c., pro- truding beyond the wheel ; preparing building materials, or throwing rubbish or filth otherwise than as allowed ; slaugh- tering meat in the streets, &c. ; using dangerous games, or bonfires or fireworks in the streets, &c. ; or obstructing or annoying in any way the free passage. 66. Cattle found straying may be impounded. 71. Form of conviction. .cxliv APPENDIX. Petty Sessions Registry of Summonses issued from Petty Sessions held for Registry. * J the County of at Summonses. No. Date of Complaint. Complainant's Name and Residence. Complaint. Persons sum- moned, Name and Residence. Kegistry of Civil Proceedings at Petty Sessions held for the County of at Civil proceed- ings. j c -g Kl s ^ Q -2s g g O ryi Co -^ o C3* c ... s *! s 1 M 3 & c * S ^ '1 J= "S HlJ-i! < o ^^ Ills Ijjl^ J1 If s 1-S J|?|] d-i 0> Q> O u H o g^ 1 1 1 ill jj -g ^0 IS "5 O -^ uvmoins pajBOipnfpy | 1 | u | ^ ^ OT 2 '5b I ' S o 1 IP 6" 1 o< ^J 09 03 w u r ; N O *J ccxlvi APPENDIX. Application to October Quarter Sessions for al- c teration of dis tricts. WE, the undersigned Justices of the Peace for the do hereby apply for the establishment of a Petty Sessions at in the Parish of in the said for a district bounded as follows [here set forth the proposed boundaries J\ Given under our hands and seals, this day of 7 & 8 Geo. IV., c. 68, s. 4, ante, p. 84. SUMMONS. 1. Common sum- mons before a J. P. County of to wit. ^ You are hereby required personally to _) be and appear before meJ.P., one of her Majesty's Justices of the Peace, in and for the said county of , at , on Monday, the day of , at the hour of of the clock in the (fore) noon, to answer the com- plaint of X. Y., labourer, for that you, on the at [here state the offence which may be as in a commitment, see the forms post]. Herein fail not at your peril. Given under my hand, this day of 184. J. P. [Justice's signature.] To [party summoned.'] See fully ante, 151, as to naming an hour, and the time to be allowed, see ante, p. 155. 2. County of Summons by way of precept to Wit. ") To-^. .B., constable of the said county. _) WHEREAS C.D.of in the county to the constable. a f ore s a id, hath this day been charged before me, J. P., one of her Majesty's Justices of the Peace for the county afore- said, [on the oath of ] for that he the said C. D. did, on the day of , in the year of our Lord, 18 , at , [here state the offence']. These are therefore to require you forth- with to summon the said C. D. to appear before me, at in the said county, on (Tuesday), the day of instant, at the hour of in the (fore)noon, to answer the said charge, and to be further dealt with according to law : and be you then and there to certify what you have done in the premises. Herein fail you not. Given under my hand and seal, the day of , in the year of our Lord As to this form, see ante, p. 154; as to affixing a seal, pp. 154, 155. FORMS. ccxlvii PETTY SESSIONS DISTRICT. SUMMONS. 3. County of Dublin,") You are hereby required personally to Summons to to wit. (be and appear before the Magistrates, at Petty Sessions * the Petit Sessions, in said county, on Monday, the day of 184 , at the hour of eleven of the clock, in the forenoon, to answer the complaint (on oath) of for that you \Jiere state tlie offence}. Herein fail not at your peril. Given under my hand, this day of 184 . A. B., Justice of the Peace. To [party summoned.] See ante, p. 64. OATHS, AFFIR- MATIONS. You shall true answers make to all such questions as shall Common torni be demanded of you. So help you God. of oath. THE evidence which you shall give to this court, touching 2. this charge against (7. D. [or touching the charge in this Oath of a wit " information] shall be the truth, the whole truth, and nothing but the truth. So help you God. See ante, p. 161. I, A. B., being one of the people called Quakers [or one 3. of the persuasion of people called Quakers, or of the united Moravian'saffir. brethren called Moravians, as the case may be] do solemnly, mation. sincerely, and truly declare and affirm [that the evidence I will, &c., as the case may be]. Prescribedby 3 & 4 Will. IV. c. 49, s. 1, ante, p. 161. I, A. B., do, in the presence of the Almighty God, solemnly 4 - JL iii , T r Separatist's af- smcerely, and truly affirm and declare, that I am a member fi rm ation. of the religious sect called: Separatists, and that taking of any oath is contrary to my religious belief, as well as essentially opposed to the tenets of that sect, and I do also, in the same solemn manner affirm and declare, that, &c. Prescribed by 3 & 4 Will, IV, c. 82, s. 1, ante, p. 161. ccxlviii APPENDIX. OATHS, AFFIR- I ? A. 23., having been one of the people called Quakers, MATIONS [or one of the persuasion of people called Quakers, or of the If-deponent united brethren called Moravians, as the case may ~be~\ and OuakeTor ^lo entertamm g conscientious objections to taking an oath, do ravian. solemnly, sincerely and truly declare and affirm, that, &c. Prescribed by I & 2 Viet. c. 77, ante, p. 161. 61 , You shall well and truly interpret and explanation make oath. of the evidence in this case, according to the best of your skill and understanding. So help you God. See ante, p. 1 76. WARRANTS AND INDORSEMENTS. Warrant toar- Count y of ~) To A. B. constable, and all chief and other rest. to wit. _J constables of said county of or any of them. FORASMUCH as C. D. of , in the county aforesaid 1 , [bricklayer,] hath this day. been charged before me J.P.* one of her Majesty's Justices of the Peace in and for tht county aforesaid, on the oath of a credible witness, for that he the said C. D. did &c. [here state the offence, which may be as in a commitment, see post.] These are, therefore, to command you in her Majesty's name, forthwith to apprehend and bring before me, or some other of her Majesty's Justices of the Peace for the said county, the body of the said C. D. , to answer unto the said charge, and to be further dealt with according to law; and for so doing this shall be your warrant. Given under my hand and seal, this day of , in the year of our Lord [_Seal.~] J. P. [Justice's signature.] See ante, p. 178, et seq. As to the direction, see pp. 179, 180. If issued at Petty Sessions, it may be headed as the sum- mons ; ante, p. ccxlvii. ; and it may direct the offender to be brought before the magistrates assembled at the Petty Sessions. See ante, p. 185. The sam \ GQ iy f \ To A * B - constable, and all chief and other another form. ^ W1 ^' j constables of said county of or any of them. You and each of you, are hereby authorized and required to arrest and bring before me [07- us], or some other of her FORMS. CCXlix Majesty's Justices of the Peace for the said county, the body WARRANTS AND ,111 T.-II IT/ Al INDORSEMENTS. of A. if., who hath been this day charged before me, on the oath of a credible witness, for, that he the said A. B. [state the offence], to answer unto the said charge, and be further dealt with according to law. Herein fail you not. Given under, &c. 8b If the offender's name be unknown, say: The body of a Form if name J " _. . -^ be unknown, man whose name is unknown, but whose person is well known, and who is employed as a pig driver, and is commonly called C. D., [or otherwise describe him according to the cir- cumstances.'} See ante, p. 181. County of "I VICTORIA, by the grace of God, of the Warrant in the /United Kingdom of Great Britain and Queen ' s name - Ireland, Queen, Defender of the Faith, to [as in the direction of the warrant,] and all and singular our bailiffs and ministers in the same county, as well within liberties as without, greeting. Forasmuch as C. D. hath come before J. P., Esq., one of our Justices assigned to keep the peace within the said county, and hath [reciting the charge in the information]. j.hese are, therefore, &c. [proceeding as inform No. 1, to the signature, which is as follows :] Witness the said J. P., at on the day of See ante, p. 178, and n. (b), 188. If the warrant be after an indictment found, instead of Warrant after stating that C. D. is charged on oath, &c., as in the foregoing forms, say : " Forasmuch as C. D., late of [describing him as in the indictment^ stands indicted at the last General Quarter Sessions [or as the case may be} of the peace held at , in and for the division of the said county, for [describing the offence concisely], to which indictment the said C. D. has not yet appeared or pleaded, as it appears to me by a certificate under the hand of G. H. y Esquire, Clerk of the Peace for the said county. These are, therefore," &c., [concluding as in forms No. 1 and 4.] See ante, pp. 188, 189. If the warrant be for an offence not bailable, and to be exe- offence r cuted in G. Britain, write not bailable on the face of the war- bailable. rant. See ante, pp. 183-4, 395. 2i not CC1 APPENDIX. INDORSEMENT. County of J FORASMUCH as proof on oath hath Form of in- to wit. f been made before me J. P., one of her dorsement when Majesty's Justices of the Peace for the said county of , cuted out of the that the name of A. B., to the within warrant subscribed, is county. the handwriting of the Justice of the Peace within mentioned, I do hereby authorize A. C., who bringeth to me this warrant, and all other persons to whom the said warrant is directed, to execute the same within the said county of . Given under my hand this day of in the year of our Lord J. P. [Signature ofj. P. indorsing.] See ante, 189, &c. If issued in Great Britain, proof of the handwriting on oath is unnecessary, ante, 190, n. (6). SUFERSEDEAS. County of ^ To all sheriffs, bailiffs, constables, tojrik J and others, within the said county. FORASMUCH as A. B., of , in the said county, [car- penter], hath personally come before me J. P., one of her Ma- jesty's Justices of the Peace in and for the said county, and hath found sufficient sureties, that is to say, M. 7?., of , [yeoman], and N. O., of , [tailor], either of the which hath undertaken for himself, under the pain of pounds, and he the said A. B. hath undertaken for himself, under the pain of pounds, that he the said A. B. shall personally appear at the next General Quarter Sessions of the Peace, to be holden in and for the , then and there to answer such matters and things as shall be objected against him on her Majesty's behalf, and particularly to answer to an indictment found against him for [stating what : or to keep the peace towards our said Lady the Queen and all her liege people, and especially towards P.Q.,of , carpenter, or otherwise, taking this statement from the condition of 'the recognizance. ] These are, therefore, in her Majesty's name, to charge and command you, and every of you, on sight hereof, to forbear to arrest, take, imprison, or otherwise by any means for the said cause to molest the said A. B., and if you have, for the said occasion, and for none other, taken and imprisoned him the said A. B., that you forthwith, on sight hereof, set him at liberty, and for so doing this shall be to you and each of you, a sufficient warrant. FORMS. Cell Given at aforesaid, under my hand and seal, this day SEARCH WAR- of in the year of our Lord . BANTS - See ante, pp. 238, 241, 539, and n. (e). County of ) To M. N., Constable, and his assis- . L . v oea.rcii war- to Wlt - J tants, and all other chief and other con- rant for stolen stables of the said county, or any of them. 8 ods> WHEREAS, it appears to me J. P., Esq., one of her Ma- jesty's Justices of the Peace in and for the said county, by the information on oath of C. Z>., of , labourer, that * [or that he the said C. D. hath reasonable cause to suspect, and doth suspect, that] the following goods ; to wit, [one frieze coat, two linen shirts, and one hat, have, within four days last past, by some person or persons unknown, been fe- loniously taken, stolen and carried away out of the house of the said C. Z>., at aforesaid,] and that he the said C. D. hath reasonable cause to suspect, and doth suspect that the said goods, or part thereof, are concealed in the [dwel- ling-house] of M. N. at , in the said county, yeoman. These are therefore, in her Majesty's name, to authorize and require you, with necessary and proper assistants, to enter in the day-time into the said [dwelling-house] of the said M. JV. at aforesaid, and there diligently to search for the said goods, and if the same, or any part thereof, shall be found upon such search, that you bring the goods so found, and also the body of the said M. N., before me, or some other of her Majesty's Justices of the Peace in and for the said county, to be disposed of, and dealt with according to law. Given under my hand and seal, at , in the county aforesaid, the day of in the year of our Lord \_Seal.'] J. P. [Signature of Justice. 1 See fully 243, et seq. If issued at Petty Sessions, vary as the summons, ante, p. ccxlvii. As to specifying the day time, ante, p. 249. Direction, ib. The information may be in same form as post, No. 1 , p. cclviii. i nform f t ' ion . For what the informant should swear to, see ante, pp. 247, 248. 3. This form may be adapted to any offence under the Lar- For offences ceny Act, by altering the statement following the *, e. g. if for ""ny Vet? * Cell! APPENDIX. SEARCH WAR- shipiureckcd goods, say that a certain ship was on stranded RANTS. and cast on shore, on the sea coast of the county aforesaid, For shipwreck- , . inn. , i , ed goods. and that the following goods belonging to the said ship, to wit, [naming ihem\ , have been, by some person or persons unknown, feloniously plundered, stolen, taken and carried away, and that he the said C. D. hath reasonable cause to suspect, &c. [as before, to the end.] Search tar- Count y of \ To [the Messenger deputed by the rant^for bank- ^ to wit. f Commissioners.'] Whereas it appears to rupt's property. me j p ^^ ^ Qjf -^ Ma j esty . g J ugtices of the p eace f or the said county, upon the information on oath of C. D., of that there is reason to suspect and believe that property of A. B., a bankrupt, is concealed in the dwelling-house [any house or premises, or other place not belonging to the bankrupt,"} of J. R. at in the county aforesaid. These are therefore by virtue of an Act of Parliament passed in the sixth year of the reign of his late Majesty King William the Fourth, to amend the laws relating to bankrupts in Ireland, to authorize and require you, with necessary and proper assistants, to enter in the day-time into the said dwelling-house of the said J. JR. at aforesaid, in the county aforesaid, and there diligently to search for the said property ; and if any of the property of the said bankrupt shall be found upon such search, that you seize the same, to be disposed of, and dealt with according to the provisions in the said Act contained. Given under, &c. This form will suit for a warrant under the English Act, altering the title to, made in the sixth year of the reign of his Majesty King George the Fourth, to amend the laws relating to bankrupts in England. See ante, pp. 276, 277. 5. 1 To M.N. constable, and his assistants fantfor W coin. to wit. ( a nd all other chief and other constables of the said county, or any of them. WHEREAS A. B. of, &c., hath this day made complaint upon oath before me, E.F., Esquire, one of her Majesty's Justices of the Peace in and for the said county, that he hath just and reasonable cause to suspect, and doth suspect, that C. D. of is concerned in the counterfeiting of coin, resembling FORMS. ccliii the Queen's current silver coin called shillings \or has in his SEARCH WAR. custody and possession a certain instrument adapted and in- tended for the counterfeiting, &c., or as the case may be"] in a certain dwelling-house belonging to, and in the occupa- tion of the said C. D. [or as the case may be~\. These are therefore in her Majesty's name, to authorize and require you, with necessary and proper assistants to enter, in the day- time, into the said dwelling of the said C. D. t at afore- said, and there diligently to search for such false or counter- feit , and all tools and implements and materials for making or coining any such false or counterfeit , and if the same, or any of them shall be found on such search, you are to bring the same and every of them so found, before me, or some other of her Majesty's Justices of the Peace, in and for the county aforesaid, in order that the same may be secured and produced in evidence against the said C. D. 9 and such other person or persons who shall or may be prosecuted for the offence aforesaid, according to the Statute in that behalf made and provided. Given under, &c. See the Stat. ante, p. 280. County of 1 BY .7. P. Esquire, one of her Majesty's Jus- Warrant' to to wit. Jtices of the Peace in and for the said county, * nter P" bli . c J houses during BY virtue of the powers in me vested by an Act of Par- prohibited liament made and passed in the third and fourth years of hours * the reign of his late Majesty, William the Fourth, entitled "An Act to amend the laws relating to the sale of wine, spirits, beer, and cider in Ireland," and also of a certain other Act of Parliament made and passed in the Session of Parlia- ment, held in the sixth and seventh years of the reign of his said late Majesty, entitled, " An Act to amend an Act passed in the third and fourth years of the reign of his present Majes- ty, entitled, 'An Act to amend the laws relating to excise licenses, and to the sale of wine, spirits, beer, and cider by retail in Ireland.' " I do hereby authorize M. N. constable for the said county, to enter into any house or place kept by any person selling, or having a license to sell wine, spirits, or beer by retail within the said county, at any time between the CC'liv APPENDIX. SEARCH WAR- hours of eleven of the clock on Saturday night, and two of the clock in the afternoon of Sunday, or between the hours of eleven of the clock on any other night of the week, and seven of the clock in the morning of the following day, or between the hours of nine of the clock in the night of Sunday, and nine of the clock in the morning of the Monday then next following, and to remove from and put out of such house or place, any person who shall be so found within such prohibited hours in such house or place, (not being a traveller or a lodger, or inmate of such house or place,) and who shall appear to be or to have recently been drinking, tippling or gaming therein; and if any such person shall not, when thereto required by the said M. N. 9 remove from and quit such house or place, or shall forcibly resist the said M. N. therein, I do hereby further authorize the said M. JV., to apprehend and take into custody any such person so offending, and to carry and convey or cause to be carried and conveyed, every and any such person so apprehended, before any of her Majesty's Justices of the Peace in and for the said county, and within whose jurisdiction such house or place shall be situate, to be dealt with according to law. Given under, &c. Ante, pp. 290, 291. A warrant to enter booths, fyc. t at fairs, may readily be framed from the foregoing. 7 -. County of ") M. N. 9 one of the Constables of Information . v and search war- to wit. J Police of the said county, came before emer'unlfcensed me > a ^ us ti ce of fae Peace in and for said county, and being premises. duly sworn on the Holy Evangelists, deposeth and saith, that . he the said M. N. has good reason to believe that spirits are retailed and sold without a license, and kept for sale without license in a certain house in the occupation of one Jl. B. t situate at in the county aforesaid, and at or over the door of which said house no sign or notice is posted or written, importing that the owner or occupier thereof is licensed to sell spirits.* Taken and subscribed before me, at the day of 184 . J. P. [Justice's signature.'] M. N. [Informant's signature.'] FORMS. County of to wit. }BY Esq., one of her Majesty's Justices of the Peace in and for the said county. Whereas M. N., Constable of Police in and for the said county, hath, on this day, and within five years from the pass- ing of an Act passed in the Session of Parliament held in the Second and Third Years of the Queen Victoria, entitled, " An Act for the better prevention of the sale of spirits by unli- censed persons in Ireland," at within the county aforesaid, made oath in writing, by him then and there taken and sub- scribed before me, that he the said M. N. has good reason to believe, &c. [as in the information to the *.] Now, therefore, by virtue of the powers in me vested by the said Statute, I do hereby authorize and empower N. O., sub-inspector [any justice, sub-inspector or chief constable"] of police in and for the said county, to enter into the said house, not having, as aforesaid, and which, at the time of such entry shall not have at or over the outer door thereof any such sign or notice posted or written as aforesaid ; and if any person shall be found to be, or to have recently been drinking or tippling on such unlicensed premises, as aforesaid, at or over the outer door of which no such sign or notice shall be posted or writ- ten, and in which spirits shall be then sold or kept for sale, I hereby further authorize the said N. O. to apprehend every or any such person, and forthwith to carry and convey before the nearest Justice of the Peace, as directed by the said Statute, to be dealt with according to law. Given under my hand and seal, this day of, &c. SeeQSfS Viet. c. 79, s. 4, ante, p. 296. An information and warrant under sect. 1 of the Statute, (ante, p. 295), by 2 Js.P. to enter unlicensed premises, may be framed from the foregoing. WAR- BANTS. County of to wit. WHEREAS C. 1). of charged on the oath of A. B. of FORMS FOR "WITNESSES. Stands Summons of a witness. before me, J. P., Esquire, one of her Majesty's Justices of the Peace in and for the said county, [or before us, &c.] for that the said A. B. on, &c. [stating the offence], and whereas Cclvi APPENDIX. FORMS FOR it appears to me the said Justice, [or us, &c.], upon oath of the said /^. B., that you, M. N. of , in the said county, labourer, are a material and necessary witness to be examined concerning the said charge. You, the said C. D., are, therefore, hereby required personally to appear before me at, &c., on, &c., [or before us at the Petty Sessions of, &c.] at the hour of , in the noon, then and there to be examined and give evidence touching the premises. Herein fail not at your peril. Given under my hand, this day of To C. D. of J. P. [Justice's signature.'] in the said county, labourer. See ante, pp. 328-330. Warrantor Countyof 1 To M.JV., constable of the said county. wT^f "re^e t /WHEREAS oath has been made before me, to the constable. J> P; esquire, one of her Majesty's Justices, &c., by N. O. of , that one A. B. was lately robbed, [or oilier offence committed as the case may be], at , and that he hath good cause to believe that C. D. of , is a material witness to prove by whom the said robbery was committed ; these are therefore to require you to cause* the said C. D. forthwith to come before me to give such infor- mation and evidence as he knoweth concerning the said offence, that such further proceedings may be had therein as to law doth appertain. Given under my hand and seal, at , in the said county, the day of , 1 84 . [Signature]. [Seal"]. This form may be used as a summons by substituting the word summon for cause.* From Dick. Sess. 117. Warrant Countyof ^ To L. M. constable, and all other chief aftST prevbus to wit - (and other constables for the said county. summons. WHEREAS C. D. of , stands charged before me, J. P., one of, &c., [or before us, &c.], on the oath of A. -B., of , with {describing the felony charged], and it appears to me the said Justice [or us, &c.,] upon the oath of the said A. B., that Af. N. of , in the said FORMS. clvii county, is capable of giving material evidence concerning the FORMS FOK said felony. And whereas it hath also been duly proved upon oath of L. M. [constable, &c.], that the said M.JV. was duly summoned to appear before , [as in the sum- mons}, to be examined touching the same, but the said M. N. hath neglected and refused, and still doth neglect and refuse, to appear before , in pursuance of the said summons. These are therefore to require and command you, and every of you, to cause the said M. JV*., &c., [concluding as in No. 2, from the *]. See ante, p. 330. County of 1 To M. JV., constable, &c., and to the keeper 4 - ..'"/ Commitment of to wit. ) of the at in the said county. a witness for Whereas A. B., of , hath been this day charged refusing to an- on oath before me, J. P., Esquire, one of, &c., for that he, on , at , did [staling the a/fence charged]* and whereas it appears to me, that C. D., of , in the said county, [tailor] can give material evidence touching the said charge, and the said C. D. hath been therefore duly summoned to give evidence touching the same ; and whereas the said C. D. having appeared before me, and being in- formed of the said charge [hath on his examination admitted that he knows the residence of the said A. B. so suspected to have committed the said felony], but he, the said C. Z)., hath refused, and still refuses to answer touching the same [or to disclose the residence of the said . B.~\ You, the said constable, are hereby required to convey and deliver the said C. D. into the custody of the said keeper of the , and you , the said keeper, are hereby required to receive the said C. D. into your said custody, and him safely keep until he shall submit to be examined touching the said felony, or be dis- charged by due course of law, and for so doing this shall be your sufficient warrant. Given under, &c. Ante, p. 332. As in No. 4 to the *, and upon the examination of the 5. said A. B., C. D., of , did give material evidence on oath, gTSSjli before me the said Justice, against the said A. B., touching enter into a re- the said felony, whereupon the said C. D. is required by me c g Qlzance - 2k cclviii APPENDIX. FORMS FOR WITNESSES. the said Justice, to become bound in a recognizance in the sum of conditioned, that he [as in the condition of the re- cognizance], but inasmuch as the said C. D. hath obstinately and contemptuously refused to enter into such recognizance. These are, therefore, in her Majesty's name, to command you the said constable, forthwith to convey and deliver the said E. F. into the custody of the said keeper of , and to com- mand you the said Keeper to receive the said C. D. into your custody, in the said , and him there safely keep until the next [sessions or assizes], to be held in and for the , or until he shall enter into such recognizance as aforesaid, or be discharged by due course of law. Given, &c. Ante, p. 332. County of to wit. THE information of A. B., Labourer, of in the said county, taken this , in the year of our Lord 184 , before INFORMA- TIONS, EXAMI- NATIONS, &C. 1. day of Information me J. P., one [or us, &c.] of her Majesty's Justices of the ttrrTnf^ 1111 ^ Peace in and for the said COUnt y f wh bein S duly sworn upon his oath saith, [here state whatever the in- formant says relative to the charge.] A. B. [Prosecutor's signature.] Taken before me [or us], the day and year above written. [Justice's signature.] See fully ante, 161-169. for what is material in parti- cular informations, 169, &c. Signature, 175. 2. If an interpreter be employed, add, Sworn at &c., by the Jurat where m- above-mentioned A. B., the same having been first read over terpreter is em- c ployed. and explained to him in the [Irish] language, by M. N., of , who was first duly sworn to interpret the same to the said A. B., before me J. P. &c. See ante, p. 176. 3. Where infor- mant cannot read. If the informant affixes only his mark, add: The above in- formation was truly read by me to the above named A. B., before he affixed his mark thereto ; and he has now affixed his mark thereto in my presence. M. N. [Signature.] Ante, p. 175. FORMS. County of ^) THE information of C. Z>., of , Tr A ~ AlO-NSj EX AMI- to wit. J Labourer, taken on oath this day of NATIONS, &c. , in the year of our Lord 184 , before me J. P., T , 4 *. J Information one of her Majesty's Justices of the Peace m and for the SWO rn on the county aforesaid, in the presence and hearing of A. B., prisoner's exa- charged this day before me, for that he the said A. B., on &c. [describing the offence as in a warrant. ] This informant saith [state whatever the informant says in giving his information, or when cross-examined, if he be so.} C. D. [Informant's signature."} Taken before me the day > r T . _ > J. Jr. [Justices signature. and year above written. > See fully, ante, p. 307, et seq. ; and 163, et seq. ; signa- ture, 175; as to statement of the defendant's presence, ante, p. 310, &c. If the information taken in the fir si instance, (see Form 1), 5. be only re-sworn, add thereto : Sworn before me J. P., one of foTmationTs're- her Majesty's &c., in the presence and hearing of A. B., of sworn. , by the said C. D., of , who further on his oath saith [that the said A. B. is the person named in the foregoing information, adding any additional statement.} This day of , &c. See ante, p. 308-9. County of "| THE examination of the undermen- 6 to wit. I tioned witnesses L.M. and M. N., taken D ^ ositions of WlluGSScS* upon oath, [and G. H. upon solemn affirmation,] this day of , before me J. P., one of &c. [or us, &c.], in the presence and hearing of A. B., charged this day before me [or us], with The deponent L. M. of , Grocer, saith as follows : [stating what he says, and so introducing the statement of each witness."] Taken before me [or us], this day of , &c. [Signature."] Ante, pp. 314, 164, &c., 507, and as to the signature, 535-6. APPENDIX. INFOBMA- County of ") THE examination of A. B., of TIONS, EXAMI- > NATIONS, &c. to Wlt - j Labourer, taken this day of , 7. before me, J. P., one of her, &c. \or us, J. P. and JV. O., &c.]. The said A ' B ' bein char ed before me [or us], on the oath of C. D., of , [Labourer], for that he the said A. B., on , at , did [describing the offence], and the said C. D., and the other witnesses against the said d.B., having been examined in his presence, the said A. B.is asked what he hath to say in his own behalf; whereupon the said A. B. saith as follows, [state what the accused says in his own words, or if he refuses to answer say, whereupon the said A. B. answereth nothing]. Signed A. B. Taken before me the day and > > J. P. [Justices Signature.} year above-mentioned. 3 See fully, ante, 332, et seq. ; as to the correctness necessary, 346; as to the signature of the accused, ante, p. 344. If he cannot write, add before the magistrate's signature, having been first truly read to the above named A. B. by me, [and if he affixes his mark add], before he affixed his mark thereto." If read by the clerk, or a third person, and not the J. P., add at foot, the above examination was truly read to the above named, &c., and add the signature of the person reading it. See ante, p. 348; as to the signature of the J. P., see ante, p. 347. 9. County of ) To M. N., constable for the said Commitment , A > for further exa- to wit. J county, and to the keeper of the county ruination. g ao i ? [ or district bridewell, or bridewell], at , in the said county. These are to command you, the said constable, in Her Majesty's name, forthwith to convey and deliver into the custody of the said keeper of , the body of A. B., charged this day before me on oath for that on at [stating the offence}. And whereas the attendance FORMS. cclxi of further material and necessary witnesses is expected on the INFORMA- , . j i r 1 n TIONS, EXAMI- day of instant, you the said gaoler [or keeper] NATI ; NS> &c> are hereby required to receive the said A. B. into your cus- tody, and him safely keep until the said day of instant, when you are hereby required to bring the said A. B. before me, at or before such other of her Majesty's Justices of the Peace as shall be then and there present, to be re-examined and further dealt w ; th according to law. Given under my hand and seal this day of J. P. [Justice's Signature.'] See fully, ante, 320, et seq. ; stating the offences, 326 ; to what prison, 327. County of ^ To the keeper of the [describe the 10 - > Commitment of to Wlt - ) prison], at , in the said county, an accomplice. RECEIVE into your custody the body of L. M., herewith sent to you, charged before me, J. P., Esquire, one of her, &c., [or us, &c.] upon his own confession, with being an ac- complice with C. D., and M. N., in feloniously [describing the offence], he the said L. M. being, by me, the said justice, admitted an evidence on her Majesty's behalf against the said several persons in the said felony, and him safely keep in your said custody for further examination, until his said accomplices are apprehended and secured, or until he shall be discharged by due course of law ; and for so doing this shall be your sufficient warrant. Given under, &c. Ante, 315, &c-, 319. RECOGNIZANCE County of ^ BE it remembered, that on the T0 P *S E <'UTE > AND GIVE EVI- to wit. J day of , in the year of the reign DENCE. of Queen Victoria, A. B. 9 of , in the parish of , 1. in the barony of , in the county of , [or, if in a Reco e nizance J ' ' > L ? ./ to prosecute. county of a town or city, A.B., of street, in the parish of , in the county of the city of ], [Car- penter], personally came before me, J. P., one of her Majesty's Justices of the Peace in and for the said county, and acknowledged himself to owe to our Sovereign Lady the cclxii APPENDIX. J.P. TIECOGNIZANCE Queen the sum of pounds, sterling, to be made and ^ levied of his goods and chattels, lands and tenements, to the use of our said lady the Queen, her heirs and successors, if he the said A. B. shall fail in the condition underwritten. Taken and acknowledged before me > the day and year above written. $ The condition of this recognizance is such, that whereas, one C. D., late of , was brought before the above- mentioned justice by the within bounden A. B., and was by him charged, for that the said C. D., on, &c. [describe the offence]. If, therefore, he the said A. B. shall and do at the next assizes to be held in and for the said county, [or at the next General Quarter Sessions of the Peace to be held in and for the division of the said county], prefer or cause to be preferred a bill of indictment for the said offence against the said C. D., and shall then also give evidence there con- cerning the same, as well to the jurors who shall then inquire thereof, as also to them who shall pass upon the trial of the said C. D., then this recognizance to be void, or else to stand in full force. County of ") THE above-named A. B. maketh oath to wit. J and saith that his usual or actual place of residence is at , in the barony of , in the parish of , in the county of , and that his addition, as set forth in the above recognizance, is just and true. Sworn before me this day of Signed, A. B. See fully, ante, p. 495, et seq. ; signature, ante, p. 500 ; oath, ante, 497. 2. Recognizance to give evi- dence. Same as No. 1 , except the condition which is as follows : The condition of the above-written recognizance is such, that if the above-bounden *4. B. shall personally appear at the next [describe the Assizes or Sessions as in last form], and then and there give such evidence as he knoweth, upon a bill of indictment to be exhibited to the Grand Jury against C. />., late of , Labourer, for that the said C. D., on, &c., FORMS. cclxiii [state the offence], and in case the said bill be found a true bill, RECOGNIZANCE then if the said A. B. shall then and there give evidence to the AND GIVE EVI _ jurors that shall pass on the trial of the said C. D., upon the said DUNCE. bill of indictment, and not depart thence without leave of the court, then this recognizance to be void, or else to remain in full force. Add the oath as in No. 1. See ante, pp. 495, 499, &c. }THE Queen against A. B. [indicted for BAIL. < to wit. J a nuisance by C. D. ] l TAKE Notice that M. N. of [townland} in the parish of Bt petty > Se- , and barony of , and county of , sions. [Shoemaker], and JV. O. , of No. , in street, in the parish of , in the county of the city of , [Carpenter], will on [Monday], the day of instant, at eleven of the clock in the forenoon, before such of her Majesty's Justices of the Peace, as shall be then sitting at the Petty Sessions of , become bail for the personal ap- pearance of the above-named *4. B. at the next Sessions of the Peace, to be holden in and for the division of the said county of , to answer and plead to the indict- ment preferred and found the last Sessions, for [unlawfully keeping a common bawdy house]. Dated this day of , 1841. Your's, &c. P. Q., Attorney for defendant. To R. 8., Attorney for the prosecution. Ante, pp. 244, 383, 384. County of 1 BE it remembered, that on the * > Recognizance to Wlt - ) day of , in the year of the of bail. reign of Queen Victoria, A. B., of [the townland], in the parish of , and barony [or half barony] of in the said county of , [or if in a county of a city or town, say A. B. of street, in the parish of cclxiv APPENDIX. BAIL. Recognizance of bail. in the county of the city, (or town) of ], Carpenter, and also C. D., of [stating the residence and addition as above], and also E. F., of [stating the residence and addition as above], came before us, J. P. and M. JV., Esquires, two of her Majes- ty's Justices of the Peace in and for the said county of and severally acknowledged themselves to owe to our Sove- reign Lady the Queen, that is to say, the said A. B., the sum of [twenty] pounds, sterling, the said C. D. and E. F. the sum of [ten] pounds, sterling, each, to be respectively made and levied off their respective lands and tenements, goods and chattels, if the said A. B., shall make default in the per- formance of the condition under- written. Taken and acknowledged before us } J. P. \ Signatures of the day and year above written. $ M. N. \ the Justices. THE condition of this recognizance is such, that if the above-bounden *4. B. shall be and appear before her Majesty's Justices of General Gaol Delivery, at the next assizes to be holden in and for the said county [or before her Majesty's Justices of the Peace, at the next General Quarter Sessions of the Peace, to be holden at , in and for the division of the said county], then and there to answer to our said Lady the Queen for and concerning the felonious taking and stealing of one mare, the property of A M., farrier, of , in the said county, [or otherwise describing the offence], with the suspicion whereof the said A . B. stands charged before us, the said Justices, and to do and receive what shall by the court be then and there enjoined him, and shall not depart the court without leave, then the above-written recognizance shall be void. County of \ I, the above-named A. B., do swear to wit. J m y usual (or actual) place of residence is at , in the parish of , barony of , and county of , and that my addition as set forth in the above recognizance, is just and true. Sworn before us this day of A. B. [Signature of the accused.] I, the above-named C. />., do swear that I am a house- FORMS. CClxV holder, and have a house, wherein I usually reside, at in the parish of , barony [or half-barony] of , and county of , and that I maintain myself by , and that I am worth the sum of [double the sum for which he is bound'] over and above all my just debts. So help me God. C. D. [signature]. Sworn before us, this day of 1840. J.P. M.N. I, the above-named E. F., &c., add the oath in the same form precisely. If the residence be in a county of a city or town vary the form accordingly as in the recognizance supra. Ante, p. 495, &c., and for the condition, ante, p. 387, et seq. }BE it remembered, that on [stating the 3. date, and names and residences, &cc., of the Form when the party is in pri- sureties, as in No. 2, p. cclxiii], came before us, J. P., &c., and son, or a feme took, in bail, until the next General Gaol Delivery, to beholden in and for the said county, one A. B., late of , Labourer, taken and detained in prison for suspicion of having [stating the charge"], and undertook, that is to say, each of them, the said and , under the penalty of pounds of good and lawful money of Great Britain and Ireland, upon the goods and chattels, lands and tenements of them and each of them to the use of our Lady the Queen, her heirs and succes- sors, to be levied, if the said A. B. shall not personally ap- pear at the said next General Gaol Delivery, before the Jus- tices of our said Lady the Queen assigned to deliver the said gaol, then and there to answer to our said Lady the Queen concerning the premises according to law. Taken and acknowledged before us, the day and year above written. J.P.} M N. I ***&*&? signatures. Add the oaths (of C. D. and E. F.) from the last form. See ante, p. 389. 21 APPENDIX. BA 4 IL - County of ^ J t P., Esq., and R. L., Esq., two of Liberate to dis- to wit - /her Majesty's, &c., to the keeper of [the charge prisoner coun ty gaol at , or as the case may be.~\ in the said who has found bail. county. Forasmuch as A. B. y late of in the said county, [Labourer], hath before us found sufficient sureties [for his appearance before, &c., as the case may be, following the form in the condition of the recognizance, $*c.], to answer to our said Lady the Queen, for and concerning the [describing the offence as in the recognizance^ for the suspicion whereof he was taken and committed to your said gaol : We, therefore, hereby command you, on behalf of our said Sovereign Lady the Queen, that if the said A. B. do remain in your gaol for the said cause and for no other, you shall forbear to detain him any. longer, but that you deliver him thence, and suffer him to go at large, and that upon the pain that will thereon ensue. Given under our hands and seals, at , in the county aforesaid, the day of , in the year of our Lord 184 . Ante, pp. 381, 539. COMMITMENTS. County of ^ To M. N., police constable, and to the Commitment to wit. /gaoler [or keeper] of the common gaol for safe cus- [ or district bridewell] at , in the said county. These are to command you the said constable, in her Ma- jesty's name, forthwith to take, convey and deliver into the cus- tody of the said gaoler [or keeper] of the said common gaol [or district bride well], the body of A. B. charged this day before me J. P., Esq., one of her Majesty's Justices of the Peace in and for the said county, on the oath of C. D. , of , [Yeo- man], for that he the said A. B. did, on the day of , in the year of our Lord one thousand eight hundred and forty , at in the said county, [here describe the offence according to circumstances, which may be in one of the forms post, cclxviii, &c.] ; and you the said gaoler [or keeper] are hereby required to receive the said A. B. into your custody in the FORMS. said common gaol [or bridewell], and him there safely *to COMMITMENTS. keep, until he shall be thence discharged by due course of law. Given under my hand and seal, at , in the said county, this day of , 184 . J. P. [Justice's signature.] [Seal.] See fully, ante, p. 476, et seq. ; as to the proper gaol, 484, 487. If at Petty Sessions, head it as the summons, ante, p. ccxlvii ; and if it be signed by two Js. P., state the charge to be before us J. P- and L. M., two of her Majesty's, &c., ante, p. 477. Direction as in No. 1 . WHEREAS A. B., late of , 2 - r j '77. .7 T M j-i i i , i n The same after {describe him as in the indictment], is now brought before me, indictment E. F. Esq., one of her Majesty's, &c., charged and identified found, on oath of C. D., with being the person who standeth in- dicted at the General Quarter Sessions of the Peace, holden at , in and for the , on the day of , now last past, for [state the offence], to which indictment the said A. B. hath not appeared or pleaded, as appears to me by a certificate under the hand of L. M., Esq., Clerk of the Peace for the said county. These are, therefore, in her Majesty's name, to command you the said constable, to convey the said A. B. to the said keeper, and you the said keeper are hereby required to receive the said A. B. &c. [to the end as in No. 1, supra]. Ante, p. 189. County of 1 To the gaoler or keeper of 3 - f r> wit -^ 1G same ty way of detainer. DETAIN in your custody the body of A. B., of , in the said county, Labourer, now in your custody in the said gaol, he being further charged before me, J. P., Esq., one of her Majesty's Justices of the Peace for the said county, upon the oath of C. D., of , yeoman, for that [stating the offence], and him safely keep in your said custody, until he shall be discharged by due course of law, and for so doing this shall be your sufficient warrant. Given under, &c. Ante, pp. 234, 237. cclxviii APPENDIX. OFFENCES, HOW STATED, The description of the offence in the commitment (and in warrants, $c., when necessary), may be in one of the following forms, which are adapted to the offences of most ordinary oc- currence. See the catalogue of offences, ante, p. 402, et seq. I. Adduction. The said A. B. on the day of in the year of our Lord one thousand eight hundred and at in the said county, one M. N. unlawfully and feloniously and against the will of the said M. N. did take and carry away with the intent that he the said A. B. [or, that one L. M.~] should marry [marry or defile} her the said M. N. against the form of the Statute in that case made and provided. Ante, p. 402. 2. Procuring abortion. A. B., on, &c., at, &c., unlawfully, maliciously, and felo- niously did administer and cause to be taken by one -4. M., a large quantity of a certain noxious thing called savin, [or, did use a certain instrument to wit, a by then and there, describing the means used}, with intent then and there to cause and procure the miscarriage of the said A. M. against the form, &c. Ante, p. 402. Accessary be- fore the fact. After stating the offence of the principal, add, and that the said E. P., before the said felony was so committed as aforesaid, did feloniously and maliciously incite, move, pro- cure, counsel, and command the said A. B. to do and commit the said felony. Ante, p. 402. After stating the offence of the principal, add, and that the said E. P., well knowing the said A. B. to have com- mitted the felony aforesaid, did afterwards feloniously receive, harbour, and maintain the said A. B. Ante, p. 402. 5. If the principal be not committed at the same time, state miuedwThout the ff ence M, for that one E. P., &c., [describing the the principal, offence of the principal}, and that the said A. B., &c., de- scribing the accessary's offence as above. FORMS. On, &c., at, &c., a certain part of the bank of a certain OFFENCE, canal, called the , [or a certain sea wall or bank, * or wall of river, canal, or marsh] there situate, unlawfully, Destroying maliciously, and feloniously, did break and cut down by means banks, &c., so whereof certain lands were then and there overflowed and lands damaged [or in danger of being overflowed and damaged] against the form of the Statute in that case made and pro- vided. Ante, p. 404. On, &c., at, &c., a certain lock [or towing path, &c. ; see 7 / the latter clause ofs. 12, 9 Geo. IV. c. 56] on a certain na- works ^ vigable river, [or canal], called the , there situate, or canal unlawfully, maliciously, and feloniously, did throw down, level, [or did undermine] and destroy, against the form, &c. .404. On, &c., at, &c., three piles [or other materials] then and Remov fn there fixed in the ground, and used for securing the bank of from a bank. a certain canal, [or sea bank, &c. ; see the 1st clause of 9 Geo. IV. c. 56, s. 13], called the , then and there un- lawfully, maliciously, and feloniously, did draw up and re- move [cut off, draw up, or remove'] against the form, &c. Ante, p. 404. On, &c., at, &c., did draw up and open a certain flood T . Doing mischief gate there situate, of and belonging to a certain navigable to impede the river [or describe any other mischief to any navigable river navigation. or canal] called the , with intent then and there to obstruct and prevent the carrying on [or completing] and maintaining the navigation of the said river against the form, &c. Ante, p. 404. On, &c., at, &c., feloniously and unlawfully did marry and take to wife one E. P., A. M. his former wife to whom he y * the said A. B. was previously married, being then alive, against the form, &c. Ante, p. 405. On, &c., at &c., a certain public bridge there situate, un- H- Injuring a bridge. cclxx APPENDIX. OFFENCE, HOW STATED. 12. Buggery. 13. Burning a house, some person being therein. 14. Burning a church, mines, stacks, &c. Burning with intent to de- fraud. 15. lawfully, maliciously, and feloniously, did pull down and de- stroy [or, did, stating the injury done, with intent thereby, the said bridge, (or any part thereof) to render dangerous and impassible, and thereby did render the same dangerous and impassible] against the form, &c. Ante, p. 405. On, &c., at, &c., feloniously did assault one M. JV*., and then and there feloniously, wickedly, diabolically, and against the order of nature, had a venereal affair with the said M. JV., and then and there carnally knew him, the said M. JV*., and then and there feloniously, wickedly, diabolically, and against the order of nature, with the said M. N. did commit and per- petrate that detestable and abominable crime of buggery, against the form, &c. Ante, p. 405. If with a beast so describe it ; the offence is termed by the same name. On, &c., at, &c., unlawfully, maliciously, and feloniously did set fire to a certain dwelling-house of C. D., one E. F. being at the time of the commiting of the said felony in the said dwelling-house, against the form, &c. Ante, p. 405. On, &c., at, &c., unlawfully, maliciously, and feloniously did set fire to a certain church [or chapel or dissenting chapel] there situate, against the form, &c. Ante, p. 405. Burning coalmines, s. 9 ; stacks of corn, fyc., s. 10 ; crops, ., ante, p. 406, in a similar form. On, &c., at, &c., unlawfully, maliciously, and feloniously did set fire to a certain dwelling-house [or any of the build- ings enumerated, 1 Viet. c. 89, s. 3] of C. D. there situate, with intent then and there to injure the said C. D., [or to de- fraud a certain insurance company, called ] against the form, &c. Ante, p. 405. On, &c., at, &c., feloniously did assault one C. D., a. girl under the age of ten years, to wit, of the age of nine years, age. FORMS. CCIXXI and her, the said C. D., then and there feloniously did un- OFFENCE, lawfully and carnally know and abuse, against the form, &c. Ante, p. 406; if between 10 and 12 omit feloniously and say a girl above the age of ten years and under the age of twelve years, to wit, of the age of . Ante, p. 446. 16. On, &c., at &c., one bay gelding, the property of the said Killing or C. D., unlawfully, maliciously, and feloniously did kill [or undil) g cat - maim, or wound] against the form, &c. Ante, p. 406. 17. On, &c., at, &c., one heifer (any of the animals enume- Cattle stealing. rated 9 Geo. IV. c. 55, s. 25), of the goods and chattels of the said C. D.,* feloniously did steal, take, and carry away. Ante, 406. 18. Or, after the * continue, wilfully and feloniously did kill Killing with with intent feloniously to steal, take, and carry away the car- intent to st case [or the skin, or a certain part of the carcase, to wit, de- scribing it], of the said heifer against the form of the Statute in that case made and provided. Ante, p. 406. 19. On, &c., at, &c., a certain male child under the age often child stealing. years, to wit, of the age of named H. JV., the son of one M. JV. 9 then and there feloniously and maliciously by force and fraud, did lead and take away [or decoy and entice, or detain], with intent then and there and thereby to deprive the said M. N. of the possession of the said child, [or to de- prive X. Y. of the possession, &c., the said X. Y. then and there having the lawful care and charge of the said H. N., or, with intent, certain articles to wit, of the value of the goods and chattels of upon and about the person of the said H. N. feloniously to steal, take, and carry away], against the form, &c. Ante, p. 407. 20. On, &c., at, &c., the church of the said parish of Breaking into [or a certain chapel, to wit, the chapel of or other * h a *l\J^l place of divine worship, which describe shortly], there stealing there- from. CCIXX11 APPENDIX. OFFENCE, HOW STATED. situate, feloniously did break and enter, and one silver cup of the chattels of the parishioners of the said parish [or, as the case may be], feloniously and sacrilegiously did take, steal, and carry away, against the form, &c. Ante, p. 407. Stealing and breaking out of the church, vary as in No. 47, post. 21. Larceny by clerks or ser- vants. A. B. on, &c., at, &c. , being then clerk [or servant] of the said C. />., ten pieces of the current gold coin of the realm, called sovereigns, and one woollen cloth coat of the monies, goods, and chattels of the said C. D., feloniously did steal, take, and carry away against the form, &c. Ante, p. 407. COINING. 22. Counterfeiting gold or silver. 23. Colouring, &c,. On, &c., at, &c., two pieces of false and counterfeit coin, each piece thereof resembling [or apparently intended to re- semble] a piece of the Queen's current gold coin called a sove- reign, [or silver coin, &c.],ifalsely, deceitfully, and feloniously did make and counterfeit against the form, &c. Ante, p. 407. On, &c., at, &c., falsely, deceitfully, and feloniously did gild with a certain wash capable of producing the colour of gold a certain false and counterfeit coin resembling a piece of the Queen's current gold coin called a sovereign, [or a certain piece of coarse silver being of a fit size and figure to be coined into a piece of false, &c., resembling, &c., and with intent that the said piece of coarse silver should be coined into a piece of siich false, &c., so resembling, &c.], against the form, &c. Ante, p. 407. 24. Uttering. On, &c., at, &c., one piece of false and counterfeit coin re- sembling [or apparently intended to resemble] a piece of the Queen's current silver coin called a shilling, unlawfully, un- justly, and deceitfully did utter [or tender, or put off], to C. D., he the said A. B. at the time he so uttered [or tendered, &c.] the said piece of counterfeit coin, well knowing the same to be false and counterfeit, [add if true, and afterwards at aforesaid, on the same day (or within the space of ten days FORMS. cclxxiii next ensuing) one other piece of false, &c., as before, adding, OFFENCE, last mentioned before pieces of counterfeit coin in the last HOW STATED - clause], against the form, &c. Ante, p. 448. If there has been a previous conviction for the like of- fence, add feloniously, and conclude, " he, the said A. B. having been before convicted of the like offence, against the form, &c. Ante, p. 407. On, &c., at, &c., did corruptly and feloniously take and 25. receive from E. F. certain money and reward, to wit, the sum J^ffa ^ [ . of ten pounds on account [or upon pretence] of helping the ing to stolen said E. F. to a certain of him the 8 ods * said E. P., which had before then been feloniously stolen, taken, and carried away, [or unlawfully obtained from him the said E. F. by false pretences, or, as the case may oe], he the said A. B. not having caused the person by whom the said goods and chattels were so stolen [or, fyc., as before], as aforesaid, to be apprehended and brought to trial for the same, against the form, &c. Ante, p. 409. On, &c., at, &c., being then clerk [or servant] of the 26< j n T\ j-j jii-j.1- , Embezzlement said C. D. did receive and take into his possession certain b y c i erks or money to the amount of ten pounds and upwards, for, and in servants, the name, and on the account of the said C. JD., his master [or employer], and the said money feloniously did embezzle against the form, &c. Ante, p. 409. On, &c., at, &c., A. B. being lawfully in custody of one 27 * C. D., a constable under and by virtue of a warrant of one of p r i nc *jp' a i her Majesty's Justices of the Peace, on suspicion of having escaping, and feloniously stolen the goods of one N. O. [or otherwise ac- ^ s p ^ m n wh cording to the nature of the custody and charge], unlawfully did escape out of the custody of the said C. D., and he the said E. F. did then and there feloniously and unlawfully aid and assist the said A. B. in so escaping as aforesaid. Ante, pp. 410, 411. On, &c., at, &c., fifty pounds weight of lead, [or one zinc 28< spout, &c., any of the fixtures mentioned, 9 Geo. IV. c. 56, t o a 2m cclxxiv APPENDIX. OFFENCE, s. 37], the property of C. D., and then and there being fixed to STATED. ^ e ( j we iii n g_] louse [ or stable, &c., describing any building, or if the thing stolen be made of metal, it may be fixed in certain land which was private property, to wit, the garden of the said C. D., or fixed for a fence to an area, or dwelling-house or garden of the said C. D.~\ there situate, feloniously did * steal, take, and carry away against the form, &c. Ante, p. 412. If it be metal fixed in a street, fyc., omit the property of C. D., and say, then and there fixed in a cer- tain street \or square, &c.,] called there situate, felo- niously did, &c. 29. Breaking, &c. with intent to steal. The same to the * and conclude, rip, cut, and break, with intent the same to steal, take, and carry away, against the form, &c. 30. On, &c., at, &c., feloniously did falsely make, forge, and n ' counterfeit a certain bond for the payment of money purport- ing to have been signed, sealed, and executed by one C. Z>., with intention to defraud the said C. D., against the form, &c. Ante, p. 413. 31. Uttering a forged bond. On, &c. , at, &c., feloniously did utter and publish as true a certain false, forged, and counterfeit bond, purporting to have been signed, sealed, and executed by one C. Z>., with intent to defraud one M. N., he the said A. B. then well knowing the said bond to be false, forged, and counterfeit, against the form, &c. Ante, p. 413. These forms may be suited to the ordinary cases of forgery, by varying the description of the writing forged, and the names of the parties defrauded, as in the following examples : a cer- tain will purporting to be the last will and testament of one N. O. A certain bill of exchange for the payment of money pur- porting to be drawn by one E. F. upon and accepted by the said C. D. Or, the acceptance [or an indorsement] of and Acceptance or upon a certain bill of exchange, for the payment of money pur- ment * porting to be the acceptance [or the indorsement] of the said 32. A will. 33. Bill of ex- change. 34. FORMS. CCIXXV C. D. Or, a certain promissory note for the payment of OFFENCE, J T_ 17 n HOW STATED. money drawn by one Ji. b. 35> A certain warrant and order for the payment of money, Promissory commonly called a check on a banker, purporting to be the order and draft of the said C. D. upon Messrs. Latouche & Co., Banker's check, bankers, with intent to defraud the said C. D. A warrant and order for the delivery of goods, purporting 37. to be the order of the said C. D. upon M. N. and JV. 0., Ironmongers, for the delivery of one plough, with intent to defraud the said M. N. and N. O. A certain acquittance and receipt purporting to be the re- 38. ceiptofone^f. N. See the cases in which forgery has been made felony enumerated, ante, p. 413, et seq. On, &c., at, &c., feloniously and without lawful excuse had 39. in his custody and possession five forged bank notes of the Having forged Governor and Company of the Bank of Ireland for the pay- ment of fifty pounds each, he, the said */L. B., well knowing the said several bank notes, and each and every of them re- respectively, to be forged, against the form, &c. Ante, p. 414. If the forgery be only a misdemeanor, see ante, p. 454, 40. omit the word feloniously, and if it be an offence only at 0^^ common law omit the clause against the form of the Statute, meanor. &c., e. g. On, &c., at, &c., unlawfully, knowingly, and falsely did 41. counterfeit and forge a certain writing, purporting to be a ^^* * summons issued by J. P., Esquire, one of her Majesty's Jus- tices of the Peace for the county aforesaid, directed to the said C. D., with intent the said C. D. to injure, oppress, impove- rish, and defraud. On, &c., at, &c., wilfully, knowingly, and feloniously did 42. personate one C. D., [adding the intent, which may be as follows'], a Seaman, then and there entitled to certain prize money for service by him, the said C. D., before then done in APPENDIX. OFFENCE, her Majesty's navy, in and on board of a certain ship and vessel called the Mary, in order then and there fraudulently to receive the said prize money then due, for and on account of the services of the said C. D. in her said Majesty's navy as aforesaid, against the form of the Statute in that case made and provided. Ante, p. 416. 43. On, &c., at, &c., twenty pears [any plant, root, fruit, or maging g with *" vegetable production] the property of C. D., then growing in intent to steal in a certain orchard [or garden, nursery ground, hot-house, green-house, or conservatory] of the said C. D., there situate,* feloniously did steal, take, and carry away [or did damage, (or destroy) with intent the same then and there feloniously to steal, take, and carry away], against the form of the Statute in that case made and provided he, the said A. B., having been before convicted of the like offence. Ante, p. 417. 4 4. As in No. 46, to the * unlawfully, maliciously, and felo- iury to plants niously did destroy [or, damage with intent then and there to &c., in gardens, destroy the same], against the form, &c., he, the said A. B., having been before convicted of the like offence. Ante, p. 41 7. 45. Burglary. On, &c., did, about the hour of eleven of the clock in the night, (see ante, p. 418) at aforesaid, in the county aforesaid, the dwelling-house of the said C. D. there situate, feloniously and burglariously break and enter with intent the goods and chattels of the said C. D. in the said dwelling-house then and there feloniously to steal, take, and carry away, [according to the felony intended'], and then and there in the said dwelling-house, twelve silver spoons of the goods and chattels of the said C. D., feloniously and bur- glariously did steal, take, and carry away. The latter clause may be omitted if not trice. Ante, p. 417. 46. Describe the burglary as in the last form, and add, and With wound- ,, , ,, -J A r> i - ing, &c. tnat tne sald * *: k ein g m the said dwelling-house in the night time as aforesaid, then and there did stab and wound one E.F. in the said dwelling-house then and there being, [or FORMS. cclxxvii did cut, beat, or strike E. F. or did feloniously assault one OFFENCE, E. F. in the said dwelling-house then and there being, with intent in so doing the said E. F., then, there, and thereby, feloniously, wilfully, and of his malice aforethought, to kill and murder], against the form, &c. Ante, p. 418. On, &c., at, &c., the dwelling-house of the said C. D. did 47. enter with intent [describe the felony as ante, No. 45], and en U ,^J^ y that the said A. B. so being in the said dwelling-house with commit a felo- the intent aforesaid, afterwards about the hour of eleven in ^ ^f b f r ^* the night of the same day feloniously and burglariously did house, break out of the said dwelling-house, against the form, &c. Ante, p. 417. On, &c., at, &c., the dwelling-house of C. D. there situate, 48. feloliously did break and enter, and one gold watch, [&c.,] of i n USe the monies, goods, and chattels of the said C. D. in the said dwelling-house then and there being, feloniously did steal, take, and carry away, against the form, &c. Ante, p. 418. On, &c., at, &c., five promissory notes of the Governor 49. and Company of the Bank of Ireland for the payment of one ^mlf -'house pound each, and twelve silver teaspoons of the value of four to the value of pounds, [enumerating any chattels, money, or valuable seen- ^ 5 * rity, of the value in the whole of 51, of the monies, goods, and chattels of the said C. D. in the dwelling-house of the said C. D. there situate, there being, then and there in the said dwelling-house, feloniously did steal, take, and carry away, against the form, &c. Ante, p. 418. State the robbery as in No. 49, the amount being, however, 50. immaterial, and add, and at the time of the committing of the ^tin 118 ^ said felony in the said dwelling-house, he the said A. B. by mates in fear, menaces and threats did then and there put one E. F. in the said dwelling-house there being in bodily fear, against the form, &c. Ante, p. 418. On, &c., at, &,c., a certain building of the said C. D. there 51. situate, feloniously did break and enter the said building, st eaiin1iom a cclxxviii APPENDIX. OFFENCE, being then within the curtilage of the dwelling-house of the HOW STATED. i sy Ti 1 i J.T 'j.1 J AT. 1. xi 3 said C. xA, and occupied therewith, and there being then and building within _ ... . . , , .. .. the curtilage of there no communication between the said building and the a dwelling- sa id dwelling-house, either immediate or by means of a covered and enclosed passage leading from the one to the other ; and the said A. B. then and there one silver dish, [&c.,j of the goods and chattels of the said C. D. then and there being, feloniously did steal, take, and carry away, against the form, &c. Ante, p. 418. On, &c., at, &c., [twenty pieces of current gold coin of the realm called sovereigns, one woollen cloth coat, and one linen shirt] , of the monies, goods, and chattels of the said 52. Simple of money goods. C. D., feloniously did steal, take, and carry away. 420. Ante. 53. Maiming by sending, or throwing nox- ious substances. 54. Shooting, at, &c., with in- tent to maim ; or with intent to resist arrest, &c. 55. Manslaughter. On, &c., at, &c., unlawfully, maliciously, and feloniously did send to C. D. two ounces weight of a certain explosive substance called , [or did cast and throw upon the said C. D. one bottle of a certain corrosive fluid called , or as the case may be}, with intent then and there and thereby to burn, [vnaim, disfigure, disable, or do grievous bodily harm tc] him the said C. D., and whereby the said C. D. was then and there grievously burned, [or as the case may be], against the form, &c. Ante, p. 421. In the same manner as similar attempts to murder , post t JVos. 77, fyc., varying the intent, which should be, with intent in so doing then and there unlawfully, maliciously, and felo- niously to maim, disfigure, and disable [or to do grievous bodily harm to] the said M. N., against the form, &c. Ante, p. 421. Or the intent may be, with intent to resist the lawful appre- hension and detainer of him the said A. B., [or of one M. N.], against the form, &c. Ante, p. 421. On, &c., at, &c., feloniously did kill and slay one M. N. by, \_fyc-, describing the means, as in a commitment for murder, post, Nos. 67, c., and concluding in the same manner']. Ante, p. 422. FORMS. Cclxx'lX On, &c., at &c., twenty yards of woollen cloth, [_or any of OFFE>CE, the manufactures enumerated in 9 Geo. IV. c. 56, s. 3], of HOW STATED - the goods and chattels of the said C. D. in a certain loom, [in D estroy jng any process of manufacture], then and there being, did then silk, &c., goods and there unlawfully, maliciously, and feloniously cut, break, ^^ufatture and destroy [or did damage by describing horo with intent then and there feloniously the same to destroy and render use- less] against the form, &c. Ante, p. 422. On, &c., at, &c., a certain warp of silk, [or shute of, &c., 57. any manufacture enumerated in 9 Geo. IV. c. 56, s. 3, or a In J urin S war P? . . .or machines. certain machine called a prepared for and employed in spinning wool, naming the process in any such manufacture"], of the property of C. D. then and there being, did then and there, &c. ? concluding as in JVb. 56. Ante, p. 423. On, &c., at &c., into a certain house [or shop, naming any 53. building or place] of the said C. D., there situate, feloniously Breaking into and by force did enter with intent then and there twenty commit C such yards of, [&c., as the case may be, describing the intended of- offences. fence, as in Nos. 56, 57.], against the form, &c. Ante, p. 423. On, &c., at, &c., a certain threshing machine [or a certain 59. machine and engine called a , then and there prepared Destroying for and employed in the manufacture of cut glass decanters, the same not being prepared for or employed in the manufac- chineryin other n .-n -, j j P manufactures. ture of silk, woollen, mohair, or cotton goods, or goods of any one or more of those materials mixed with each other, or mixed with any other material, or any frame-work-knitted piece or stocking hose or lace], the property of the said C. D., did unlawfully, maliciously, and feloniously, &c., concluding as in J\To. 56 ; see ante, p. 423. On, &c., at, &c., twenty yards of linen cloth [or any goods 60 - of the nature described in 9 Geo. IV. c. 55, s. 16], of the value a^e of one pound, [any sum above 5$.], of the goods and chattels of in process of C. D. in a certain bleach green [or mill, &c.], of the said manufacture - C. D. there situate, then and there in the said bleach green feloniously did steal, take, and carry away, whilst the same was laid and exposed in the said bleach green during a cer- cclxxx APPENDIX. OFFENCE, tain stage and process of manufacture, [to wit, the process of HOW STATED. . . . . _ , , .-_ bleaching]. Ante, p. 423. 61. Stealing from ships, barges, c. On, &c., at, &c., one sack of oatenmeal, [&c.], of the goods, wares, and merchandize of C. D. in a certain ship, [or barge, boat, or vessel], called the Jane, upon a certain navigable river, [or creek communicating with a certain navigable river, or any of the places enumerated in 9 Geo. IV. c. 55, s. 17], called the Shannon, then and there in the said ship feloniously did steal, take, and carry away. 62- If the goods be on a quay, &c., say, in and upon a certain Or from a dock, . . . .,. quay, or wharf, wharf there situate, and adjacent to a certain navigable river, &c. On, &c., at, &c., twenty stone weight of lead ore, [describing any of the productions mentioned in 9 Geo. IV. c. 55, s. 30], the property of C. D. in a certain lead mine of the said C. D. there situate, from the said mine feloniously did steal, take, and carry away, [or feloniously did sever with intent then and there feloniously to take, steal, and carry away the same], against the form, &c. dinte, p. 424. arise! ^ ^ 64. Or severing with intent to steal. 65. Drowning a mine. On, &c., at, &cc., unlawfully, maliciously, and feloniously did cause a large quantity of water to be conveyed into a cer- tain mine [or into a certain subterraneous passage communi- cating with a certain mine], of C. D., with intent thereby to destroy and damage, [or to hinder and delay the working of] the said mine, against the form, &c. Ante, p. 424. 66. On, &c., at, &c., a .certain steam engine, the property of @. D., for the draining of a certain mine of the said C. D. [or gines or works a certain waggon way for conveying of materials from a cer- tain, &c., describing any of the machines or works enumerated, 9 Geo. IV. c. 56, s. 8], unlawfully, maliciously, and felo- niously did pull down and destroy, [or did damage by, stating how, with intent thereby the same to destroy and render use- less], against the form, &c. Ante, p. 425. 67. Murder by shooting. On, &c., at, &c., feloniously, wilfully, and of his malice aforethought, did kill and murder one M. N., by shooting and discharging a certain pistol loaded with gunpowder and a leaden bullet at and against the said M. N., thereby giving FORMS. the said M. N., in and upon the left breast of him the said OFFENCES, M. N. one mortal wound, of which mortal wound the said How STATED - M. N. instantly [or afterwards, to wit, on the day of aforesaid], died. Ante^ p. 425. This form may be suited to any case of murder, by varying the description of the means used, ex. gr. by stabbing the said M.N. with a knife in and upon the fi8 - left side, and on other parts of him the said M. N., thereby By stabbin ' giving to the said M. N. three mortal wounds, of which said mortal wounds, &c. by casting and throwing the said M. N. to and upon the ( ground, and then and there with a stick held in the hand of a stick, him the said A. J9., striking and beating the said M. N. upon the left side of the head of him the said M. N., thereby giving to the said M. N. four mortal fractures and contusions in and upon the head of him the said M. N., of which said mortal fractures and contusions, &c. by casting and throwing him upon the ground, with a 70 - i i i T A V -, By riding over, certain horse, upon which the said A. B. then was riding, by means whereof the said horse with his hinder feet did strike and kick the said M. N. in and upon the head and body of him the said M. N., thereby giving to the said M. N. two mortal bruises and contusions, of which said mortal bruises and contusions, &c. by choking, suffocating, and strangling him the said 7 1 . M. N., of which said choking, suffocating, and strangling, By stran lin &- &c. by mixing a large quantity of a certain deadly poison 72. called white arsenic, with a certain quantity of beer, which he By P lson * the said M. N. was then about to drink, and which he the said M. N. then and there did drink, by means whereof he the said M. N. then and there became sick, and of the said poison so drunk by the said M. wV*., and of the sickness thereby occasioned, the said, &c. 2 n cclxxxii APPENDIX. OFFENCES, HOAr STATED. 73. Conspiring to murder. On, &c., at, &c., with one M. N. and N. O. unlawfully and feloniously did conspire, confederate, and agree felo- niously, wilfully, and of his malice aforethought, the said C. Z>. to kill and murder, against the form of the Statute in that case made and provided. Ante, p. 425. 74. Soliciting to murder. On, &c., at, &c., falsely, wickedly, and feloniously, did solicit, encourage, and persuade, \_or endeavour to persuade or propose to] one C. Z)., feloniously, wilfully, and of his malice aforethought, one M. N. to kill and murder, against the form, &c. Ante, p. 425. 75. intent to mur- On, &c., at, &c., did administer to, and cause to be taken by the said C. D. a large quantity of a certain poison called white arsenic, [or with a knife, in and upon the left side of the breast did stab, describing any stabbing, cutting, wounding, or bodily injury, dangerous to life~\, with intent then and there and thereby feloniously, wilfully, and of his malice afore- thought, the said C. D. to [poison], kill, and murder, against the form, &c. Ante, p. 425. 76. On, &c., at, &c., did unlawfully and feloniously attempt minister poison. to adrainister to the said C ' D ' a lar g e quantity of a certain deadly poison called prussic acid, with intent, &c., concluding as in the last form. 77. Shooting with intent to mur- der. On, &c., at, &c., with a certain gun, loaded with powder and divers leaden shot did unlawfully and feloniously shoot at the said C. D. with intent, &c., as in No. 75. 78. Attempt to shoot at. On, &c., at, &c., certain loaded fire-arms, to wit, a certain blunderbuss then and there loaded with gunpowder and divers leaden balls at and against one M. N. unlawfully, maliciously, and feloniously did present, point, and level, and then and there by drawing the trigger of the said blunderbuss, [or otherwise, describing how~], unlawfully, maliciously, and felo- niously attempt to discharge the same at and against the person of the said M. .AC, with intent, &c., as in No. 75. Ante, p. 425. FORMS. celxxxiii On, c,, at, &c., feloniously did attempt to drown [or OFFENCES, suffocate, or strangle], the said C. D., by then and there [state J >w ^ A how'] with intent, &c., as before. Attempt 'to drown, &c. On, &c., at, &c., did feloniously and unlawfully administer 80. to [or tender to, or was present aiding and assisting in the administering and tendering to, or by menaces and threats, or promises or other undue means, stating how, cause to be taken by] one M. N., a certain oath and engagement upon the holy Gospels, [upon a book or otherwise'], importing to bind the said M. N. to [describing what; see the classes of oaths enumerated, 50 Geo. III. c. 102], against the form, &c. Ante, p. 426. On, &c., at, &c., did feloniously and unlawfully take a 81. certain oath and engagement, [stating its nature, as in No. *, '"fi^ 80], not being then and there compelled by inevitable neces- sity to take the said oath and engagement, against the form, c. Ante, p. 426. Principals in the second degree may generally be described as 82. having actually committed the offence, or if they are committed the^c'^nd'de- ivith the principals in the first degree , after stating the offence of gree. the latter, add, and that the said-J. F. feloniously was then and there present, aiding, abetting, and assisting the said A.B.to do and commit the said felony. Ante, p. 429. On, &c., at, &c., being there lawfully imprisoned in the 83. common gaol of the said county, at aforesaid, under 1>rison breath, and by virtue of a warrant of commitment of one of her Majesty's Justices of the Peace for the said county, feloniously, unlawfully, and wilfully did break the said prison and escape from the same. Omit feloniously, if the offence be only a mis- demeanor. Ante, p. 429. On, &c., at, &c., violently and feloniously did assault one 84. A. M., and her, the said A. M., then and there violently and Ra P e - against her will feloniously did ravish and carnally know against the form, &c. Ante, p. 430. ccb XXXIV APPENDIX. OFFENCES, HOW STATED. 85. Rescue. 86. Receiving stolen goods. 87. Receiver com- mitted along with principal. On, &c., at, &c., whilst C. D. a constable was conveying one E. F. to the district bridewell of at , under and by virtue of a warrant of commitment of one of her Majesty's Justices of the Peace for the said county of , for having feloniously stolen the goods of M. JV., did unlaw- fully assault and beat the said C. D., and did then and there feloniously, unlawfully, and forcibly, and against the will of the said C. D., rescue the said E. F. out of the custody of the said C. D. Omit feloniously if the offence be only a mis- demeanor. 88. Rioters hinder- ing proclama- tion. On, &c., at, &c., one silver teapot of the goods and chattels of C. 2)., by a certain ill-disposed person then lately before feloniously [and burglariously] stolen, taken, and carried away of the same ill-disposed person, feloniously did re- ceive, he the said A. B. well knowing the said goods and chattels to have been feloniously stolen and carried away against the form, &c. Ante, p. 431. If the receiver be committed along with the principal, say, the bodies of A. B. and L. M. charged before me on oath of H. D., for that the said A. B., on, &c., at, &c., did, [stating the larceny, fyc., as in ordinary cases'] t and that the said L. M. afterwards at aforesaid, [describe the articles received^ of the goods and chattels above mentioned, so as aforesaid feloniously stolen, taken, and carried away, feloniously did receive, he, the said L. M., well knowing, &c., concluding as in No. 86. If the original offence were only a misdemeanor (see ante, p. 467), instead of feloniously say unlawfully. If it was not a larceny or theft, instead of stolen, taken, &c., describe i tas an embezzlement or obtaining by false pretences, according to the circumstances. See ante, p. 467. On, &c., at, &cc., with force and arms, \by threats, mes- sages, or force\, feloniously did wilfully and knowingly op- pose, obstruct, and hinder,/. P., Esquire, one of her Majesty's Justices of the Peace for the county aforesaid, who was then and there beginning [or going] to make proclamation to a cer- FORMS. CclxXXV tain unlawful, riotous, and tumultuous assembly there, to dis- OFFENCES, perse themselves according to the Statute for preventing HOW STATED. tumultuous risings and assemblies, whereby such proclama- tion was not then made, against the form, &c. Ante, p. 432. On, &c., at, &c., together with divers evil disposed per- 89. sons to the number of twelve or more, unlawfully, riotously, Continuing one ' . hour after pro- and routously did assemble and gather together : and being clamation. then and there required and commanded by J. P., Esquire, one of her Majesty's Justices of the Peace in and for the said county, by proclamation in the Queen's name then by him made, to disperse themselves and peaceably to depart to their habitations or to their lawful business, did then and there, together with other persons to the number of twelve or more, notwithstanding such proclamation made, feloniously, riotous- ly, and tumultuously remain and continue together by the space of one hour after such command so made by proclama- tion as aforesaid, against the form, &c. Ante, p. 432. On, &c., at, &c., together with divers other evil disposed per- 90 sons to the number of three and more, unlawfully, riotously, and Riot and as- routously did assemble and gather together, and did then and sault< there unlawfully, riotously, and routously make a great noise, riot and disturbance to the terror of her Majesty's subjects then and there being and residing and passing and repassing, and did then and there unlawfully, riotously and routously assault one E. P., and him the said E. F. did then and there beat, wound and ill-treat. Ante, pp. 432, 468. On, &c., at, &c., in and upon the said C. D. feloniously did 91 . make an assault, and him, the said C. D. in bodily fear and Robbery, danger of his life feloniously did put, and [one gold watch, &c.] of the monies, goods, and chattels of the said C. />. from the person and against the will of the said C. D., feloniously and violently did steal, take, and carry away. Ante, p. 434. 92. Add if it be true, and at the time of committing the said Accompanied with wounding, robbery [or immediately before or after J, did stab, cut, and wound [see sect. 2; or if beating, striking, or using personal cclxxxvi APPENDIX. OFFENCES, now STATED. 93. Assault with in- tent to rob. 94. By armed per- sons or num- bers. 95. Demanding money, &c., with force or menace. 96. 97. S i by fire. violence, so describe it ; see sect. 3], the said C. D. against the form of the Statute in that case made and provided. Ante, p. 434. On, &c., at, &c., in and upon the said C. D. feloniously did make an assault with intent then and there the monies, goods, and chattels of the said C. D., from the person and against the will of the said C. D., feloniously and violently to steal, take, and carry away, against the form, &c. Ante, p. 434. On, &c., at, &c., armed with a certain offensive weapon [or instrument] called a pistol, [or, in company with certain other evil disposed persons, as the case may be], did, in and upon &c., concluding as in either ofth,e foregoing. See sect. 3, ante, p. 434. On, &c., at, &c., did with menaces [or by force] feloniously demand of and from the said C. D., the money of him the said C. D., [or a certain chattel to wit, ] with intent the said from the said C. D. then and there feloniously to steal, take, and carry away, against the form, &c. Ante, p. 434. On, &c., at, &c., [five pieces of the current silver coin, &c., describing the. articles'], of the monies, goods, and chattels of the said C. D., from the person of the said C. D. feloniously did steal, take, and carry away, against the form, &c. Ante, p. 434. On, &c., at, &c., on board of a certain ship and vessel called , the property of E. F. [in a certain navigable river called the Shannon], there being, unlawfully, maliciously, and feloniously did damage otherwise than by fire, to wit, by [stating how], with intent then and there feloniously to de- stroy the said ship and vessel, and to render the same useless, against the form, &c. Ante, p. 435. &c On> &c *> at > &C '' unlawfull j, maliciously, and feloniously did ships with in-' set ^ re to [ ast awa i) or otherwise destroy], a certain ship called teat to murder, the , the property of , upon the high seas then FORMS. cclxxxvii and there being, with intent in so doing one M. N. then and OFFENCES, there feloniously, wilfully, and of his malice aforethought, to kill and murder, [or whereby the life of one E. F., was then and faugQv life, there greatly endangered,] against the form, &c. Ante, p. 435. If under sect. 6, state the intent, with intent then and there 99. . ,. ., ^ ^ . With intent to to prejudice the owner thereof, or one E. F. the owner of cer- pre j u( ji c e tain goods on board thereof, or one G. H. and L. M., who owner, &c. had before them underwritten a certain policy of insurance upon, &c., against the form, Sec. Ante, p. 436. On, &c., at, &c., whilst a certain ship was sailing on the '00. high seas, near unto aforesaid, feloniously did exhibit fa * ge ! j-ghf or a false light, [or any false signal], with intent thereby to bring signal, the said ship into danger, against the form, &c. Ante^ p. 435. On, &c. , at, &c. , whilst a certain ship was sailing on the high 101. seas near unto aforesaid, and whilst the said ship was in dis- ie ^ n ^ ^ Q tress, unlawfully, maliciously, and feloniously did, [stating what destruction of the offender did}, the said [stating shortly the act of the offender}, J. *^p m dls ' as aforesaid, then and there tending to the immediate loss and destruction of the said ship, against the form, &c. */Lnte, p. 435. On, &c., at, &c., feloniously and by force did impede and 102. prevent a certain man unknown, [or one M. N.}, whilst he the Opposing ship- said man, [or M. N.}, was then and there endeavouring to save *^ e ^ er his life from a certain ship, which was then and there wrecked and cast on shore, against the form, &c. Jlnte, p. 436. On, &c., at, &c., ten pieces of oak timber, being part of [or 103. one anchor and twelve pounds of indigo belonging to, or, if both, ^J^ ID * O( I S say, being part of and belonging to] a certain ship then and of ships in dis- there stranded and cast on shore, [or in distress], the property of tress% a person or persons unknown [or of M. N.}, unlawfully, maliciously, and feloniously did destroy, against the form, &c., Ante, p. 436. Or, feloniously did plunder, steal, take, and carry away, 104. against the form, &c. Ante, p. 436. Plundering do. cclxxxviii APPENDIX, OFFENCES, HOW STATED, 105. Smuggling. On, &c., at, &c., together with divers evil disposed persons, to the number of three or more, being armed with fire arms and other offensive weapons, feloniously and unlawfully were assem- bled and gathered together, in order to be aiding and assisting [or were aiding and assisting, and then and there unlawfully and feloniously did aid and assist], in the illegal landing, running, and carrying away of certain prohibited goods, [or certain goods liable to pay certain duties, and which said duties had not been paid or secured], against the form, &c. Ante, p. 437. 106. On, &c., at, &c., feloniously and maliciously did shoot at fevenue g vessels. an ^ u P on a certam boat belonging to her Majesty's navy, [or in the service of the Customs or Excise], called the , the said boat being then upon the high seas, within 100 leagues of the coast of \_anypart of the United Kingdom], against the form, &c. Ante, p. 437. * 107. Sending letter demanding money. . On, &c., at &c., knowingly and feloniously did send [or Deliver] to the said C. D. a certain letter [or writing] directed . c to the said C. D., demanding money [or a certain chattel to wit, or a certain valuable security, to wit, ], of and from the said C. D., with menaces, and without any reasonable or probable cause, against the form, &c. Ante, p. 438. accuse to extort money 108 - On, &c., at &c., feloniously did threaten the said C. D. to accuse to extort accuse him, [or did accuse] the said C. D., of having attempted and endeavoured to commit a rape upon Anne, the wife of the said A. B., \or according to the circumstances, the threa- tened accusation being within those enumerated] with a view and intent thereby to extort and gain money [or a certain chattel, to wit, , or a certain valuable security, to wit, ], from the said C. D., against the form, &c. Ante, p. 438. 109. On, &c., at &c., together with divers other false traitors High treason by un k nown armed and arrayed in a warlike manner, and un- Jevying war. FORMS. lawfully, maliciously and traitorously assembled and gathered OFFENCES, together, most wickedly, maliciously, and traitorously did levy l and make war against our Sovereign Lady Queen Victoria, within this realm, against the form, &c. Ante, p. 439. On, &c., at &c., did after sunset and before sunrise unlaw- 110. fully, maliciously, and feloniously bark and damage [cut. pamaging trees '; _ " ' before sunrise. break, bark, root up, or otherwise destroy or damage] ten oak trees, [the whole or any part of any tree, shrub, or underwood], there growing, the property of the said C. >., against the form, &c. Ante, p. 440. On, &c. , at &c. , did between sunrise and sunset, unlawfully, 111. &c., as in last form, adding, thereby doing an injury unto jJj the said C. D. to an amount exceeding the sum of five pounds, 5 against the form, &c. *d.nte, p. 440. On, &c., at, &c., in a certain park of C. D., [or in a certain 112. close of C. D., adjoining to the dwelling-house of the said C. D., describing any of the places enumerated, 9 Geo. IV. park, garden, c. 55, s. 31] one oak tree of the value of one pound and up- &c - wards, the property of the said C. D. in the said park, then and there growing, feloniously did steal, take, and carry away, against the form, &c. Ante, p. 440. On, &c., at, &c., in a certain park of C. D., [or otherwise 113. as in No. 112], one oak tree, the property of the said C. V., ^ then and there growing, feloniously did cut [or break, or root tent to steal. up, or otherwise damage or destroy] with intent then and there feloniously to steal, take, and carry away the same, thereby doing injury to the said C. D. to an amount exceeding the sum of one pound, against the form, &c. d.nte, p. 440. The same forms ; the place, being immaterial, may be in 11 4. a certain close of the said C. D., or otherwise, but state ^amage " the damage or value to be of five pounds and upwards, ceeds 5. Ante, p. 440. 2o ccxc APPENDIX. OFFENCES, HOW STATED. 115. 3rd offence when amount exceeds one shilling. 116. Abduction of an heiress. State the theft or damage with intent to steal, as in Nos. 112, 113, stating the value of one shilling at the least, against the form, &c., and add, he, the said A. B., having previously been twice convicted of the like offence. Ante, p. 440. On, &c., at, &c., unlawfully did take [_or cause to be taken] one M. JV. out of the possession and against the will of H. N., her father, [or mother, or other person having lawful charge of her], she, the said M. JV. t being then under the age of , and having an interest in certain real [or personal] estate, [or being heiress presumptive of, or next of kin to , a person having an interest in certain real [or personal] estate], and afterwards, to wit, on the day of , aforesaid, at , did contract matrimony with [or defile} the said M. N., against the form, &c. Ante, p. 441. 117. Affray. On, &c., at, &c., did in a certain public street and high- way there, unlawfully and to the great terror and disturbance of her Majesty's subjects there being, make an affray. Ante, p. 442. 118. Assault and battery. On, &c., at, &c., unlawfully did assault and beat the said C. D. Ante, p. 442. 11 9. If there be a false imprisonment add, and did then and ment< " there unlawfully and injuriously and against the will of the said C. D., and without any legal warrant, authority, or reasonable or justifiable cause whatever, imprison the said C. D. Ante, p. 444. 120. Assault with intent to com- mit felony, &c. On, &c., at, &c., unlawfully did assault the said C. D. with intent, [state the felony shortly, e. g. her, the said C. D. , violently and against her will, then and there feloniously to ravish and carnally know], against the form, &c. Ante, p. 443. 121. Assaulting On, &c., at, &c., in and upon one C. D., a constable, [or an officer of excise or of customs], did make an assault, and FORMS. CCXC1 him, the said C. Z>., did beat, he, the said C. >., being then OFFENCES, in the execution of his duty as such constable aforesaid, against the form, &c. Ante, p. 443. officers. On, &c., at &c., unlawfully did assault M. N. with intent 122. then and there to resist and prevent the lawful apprehension Assault to P re * veni arresi. [or detention] of him the said A. J5., [or of one N. O.], for felony, or as the case may be, against the form, &c. Ante, p. 443. On, &c., at, &c., unlawfully did keep and maintain a cer- 123. tain common illgoverned and disorderly house, and did cause J^ 66 ? 10 ? a bawdy house, certain persons, as well men as women, of evil name and fame, and of dishonest conversation, to frequent and come together in the said house, and there to be and remain drinking, tippling, whoring, and misbehaving themselves. Ante, p. 445. On, &c., at, &c., unlawfully and wickedly did compose, 124. print, and publish a cer tain scandalous, impious, blasphemous, Blasphemous and profane libel, of and concerning the holy Scriptures and the Christian religion, Ante, pp. 445, 449. On, &c., at, &c., wickedly, designedly, and maliciously 125. did write, send and deliver to one M. N. a letter and paper in Sending a dial writing, containing a challenge to fight a duel with and against him the said A. B. Ante, p. 446. On, &c., at, &c., unlawfully, and designedly, by certain false 126. pretences then and there made by him the said A. B., that is JJJJJJjJJ^ to say, [describing the pretence], did then and there obtain by false pre- from the said C. Z), one gelding and two colts [any chattel, e money, or valuable security] of the goods and chattels, [or monies, &c.], of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same, against the form, &c. Ante, p. 447. On, &c., at, &c., unlawfully did compound a certain [felony] 127. then lately before commuted by one M. N., and then and there exact and receive from one 0. P. , as a reward for de- CCXC11 APPENDIX. OFFENCES, HOW STATED. sisting from all further prosecution of the said M. N. for the felony aforesaid. Ante, p. 448. 128. Concealing biitli. On, &c., at, &c,, then and there being delivered of a cer- tain [male] child, did by secret burying [or otherwise disposing] of the dead body of the said child unlawfully endeavour to conceal the birth thereof, against the form, &c. Ante, p. 449. 129. Conspiracy. Having named the offenders, on, &c., at, &c., did among themselves unlawfully conspire, combine, confederate, and agree, together unlawfully to [describing the object of the con- spiracy]. Ante, p. 449. 130. Robbing a grave. On, &c., at, &c., the churchyard of and belonging to the parish church of the said parish unlawfully did break and enter, and the grave there in which one M. N. deceased had lately before then been intered and then was, unlawfully, wilfully, and indecently, did dig open, and the body of him the said M. N. out of the grave aforesaid unlawfully, wilfully, and indecently did then and there take and carry away. Ante. p. 449. 131. On, &c., at, &c., a certain will and testamentary instrument Stealing or de- T or a certain codicil to the will] of one C. D., unlawfully did stroying, or steal, take, and carry away, [or unlawfully, and for a fraudulent or concealing wills. 132. Bankers, agents, &c., ap- plying money, &c., lodged for a specific pur- pose, with di- rections in writing. purpose, did destroy or conceal], against the form, &c. p. 450. Ante, On, &c., at, &c., one C. D. did there intrust to the said A. B., he, the said A. B., being then a banker and agent [or broker, *c.] the sum of one hundred pounds, [or describe a security for money], with directions to the said A. B. in writing, to apply the said [money or proceeds] for a certain purpose then and there specified in the said directions, and that the said A. B. afterwards, in violation of good faith and contrary to the purpose so in the said directions specified as aforesaid, unlawfully did convert to his own use and benefit the said sum of money, so to him intrusted as aforesaid, against the form, &c. Ante, p. 452. FORMS. CCXC111 On, &c., at, &c., one C. D. did intrust the said A. B. for OFFENCES, safe custody [or for any special purpose, which describe] , he How STATED - the said A. B. being then a banker and agent, [or as the case Se nj ng * con . be], a certain promissory note of one E. F. for the payment of verting goods, one hundred pounds, [any of the instruments enumerated in ^sted' Sr safe" 9 Geo. IV. c. 55, s. 42], without any authority to sell, nego- keeping or a date, transfer, or pledge the same, and that the said A. B. special purpose, afterwards, in violation of good faith, and contrary to the object and purpose for which the said promissory note was so intrusted to him as aforesaid, unlawfully did negotiate, transfer, and con- vert to his own use and benefit the said promissory note, against the form, &c. Ante, p. 452. On, &c., at, &c., C. D. did intrust to A. B., he, the said 134. A.B. y being then and there a factor and agent, five hundred yards of linen cloth for the purpose of selling the same, and the said A. B. afterwards, for his own benefit and in violation of good faith, unlawfully did pledge [deposit or pledge] the said linen cloth with one E. F. as a security for the sum of fifty pounds by the said A. B. before then borrowed and received [or, as the case may be] of and from the said E. F., against the form, &c. Ante, p. 452. On, &c., at, &c., having one M. N. in his custody under 135. and by virtue of a warrant of one of her Majesty's Justices of ^ eg e hgent es ~ the Peace on suspicion of having, [stating what], did unlaw- fully and negligently permit the said M. N. to escape. Ante, p. 452. On, &c., at, &c., being then a constable, unlawfully, cor- 136. ruptly, extorsively, and by colour of his said office, did ex- Extortion tort and receive of and from the said C. D., then in the custody of the said A. B., the sum of five shillings, as and for a fee due to him, the said A. J5., as such constable. Ante, p. 453. On, &c., at, &c., the dam of a certain fish pond [or of a 137. certain pond of water which was then private property, to wit, the property of (the said) C. D., or if tlwre be a private fish. right of fishing so describe if] of one C. D., there situate, unlawfully and maliciously did break down and destroy with ccxciv APPENDIX. OFFENCES, intent thereby then and there to take and destroy the fish in the said pond, against the form, &c. Ante, p. 453. 138. 139. Breaking mill dam. 140. forcible possesson. 142. Keeping a gaming house. I 41 - and forcible" ^ detainer. On, &c., at, &c., unlawfully and maliciously did put a large quantity of into a certain fish pond, [describe it as in No. 137], there situate, with intent thereby to destroy the fish in the said pond, against the form, &c. Ante, 453. On, &c., at, &c., the dam of a certain mill of one C. D. there situate, unlawfully and maliciously did break down and destroy, against the form, &c. Ante, p. 453. On, &c., at, &c., did [feloniously] forcibly and without due process of law take possession of a certain messuage of the said C. D. with the appurtenances there situate, [any house, land, or tenement], and forcibly and without due authority by law, did hold [and still doth hold] such posses- sion so taken by force, against the form, &c. : 26 Geo. III. c. 24, s. 64. Ante, pp. 454, 712, n. (c). On, &c., at, &c., unlawfully did enter a certain messuage, &c., of which one C. D. was seised, in his demesne as of fee [or was possessed for a certain unexpired term of years], and the said C. D. from the peaceable possession of the said did unlawfully expel and put put, and that the said A. B. then and there, and from thence hitherto, the said C. D. from possession of the said , with force and arms, and with a strong hand unlawfully and injuriously did keep out, and the said and the possession thereof, then and there unlawfully and forcibly did hold, and still doth hold, from the said C. D., against the form, &c. Ante, 454. On, &c., at, &c., unlawfully did keep and maintain a cer- tain common gaming house, and in the said common gaming house for lucre and gain, unlawfully and wilfully did cause and procure divers idle and evil disposed persons to come to play together at a certain unlawful game, called hazard ; and then and there in the said common gaming house, unlawfully and wilfully did permit the said idle and evil dis- posed persons to be and remain playing and gaming at the FORMS. CCXCV said unlawful game, called hazard, for divers large and exces- OFFENCES, C A j AKf HO\V STATED. sive sums ot money. Ante, p. 4oo. On, &c., at, &c., unlawfully, wickedly, and scandalously 143. did sell, utter, and publish a certain lewd, indecent, scanda- Obsce ^y. sel1 ' ing indecent lous, and obscene print and picture. Ante, p. 461. pictures. On, &c., at, &c., falsely, wickedly, wilfully, and corruptly 144. did commit wilful and corrupt perjury in an affidavit to hold Perjury, to bail, then and there made by him, the said A. B., [_or in the testimony which he gave upon oath in a certain cause between L. M. and M. O. at the assizes for the county of , then and there holden, or otherwise describing where the testi- mony was given]. Ante, p. 462. On, &c., at, &c., unlawfully, corruptly, wickedly, and ma- 145. licipusly did solicit, suborn, and instigate one M. N. to com- Subornation, mit wilful and corrupt perjury in [stating on what occasion]. On, &c., at, &c., a certain judgment roll of her Majesty's 146. Court of Exchequer, [any q/* the instruments enumerated 9 fraudulent pur- Geo. IV. c. 55, s. 21], in the [describing the place of deposit, poses, records, or in the custody of M. N.] then being deposited, the said P rocesses ' &c - being the place of deposit for the time being of the said judgment roll, [or, the said M. N. then having the lawful custody thereof], unlawfully and for a fraudulent purpose did take from its said place of deposit, [or, from the said custody of the said M. N.], against the form of, &c. Ante, p. 467. On, &c., at, &c., a certain [describing the instrument as 147. in No. 746] then and there being found, unlawfully did steal, j|jj|j]jjf i j* take, and carry away, [or did unlawfully and maliciously obli- same, terate and injure, or obliterate and destroy], against the form, &c. Ante, p. 467. On, &c., at, &c., wickedly, maliciously, and seditiously did 148. write and publish a certain false, wicked, malicious, scandalous, Seditious libel. and seditious libel of and concerning our Sovereign Lady Queen Victoria and her Government. Ante, pp. 459, 469. C CXCV1 APPENDIX. OFFENCES, On, &c., at, &c., wickedly, maliciously, and seditiously did, HOW STATED. . , i i .'/.,. m the presence and hearing- of divers liege subjects of our Seditiouswords. Sovereign Lady Queen Victoria, publish, utter, pronounce, and declare certain scandalous, wicked, malicious, and seditious words of and concerning our said Lady the Queen and her Go- vernment. Ante, p. 469. 150. Signalling smugglers. 151. Soliciting. 152. Destroying turnpike gates, &c. 153. Whiteboy offences ; ap- pearing aimed. 154. Compelling to quit farm. On the day of, &c., between the hours of nine and ten in the evening of the same day, [or, after sunset and before sun- rise to wit, at the hour of ,&c., according to the season of the year~\, on [or within six miles of a certain part of], the coast and shores of Ireland at , did make, and aid and assist in making a certain light, fire, and blaze, for the purpose of giving a certain notice and signal to some person or persons on board a certain smuggling ship and vessel [or boat] there being, against the form, &c. Ante, p. 470. On, &c., at, &c., did falsely, wickedly, and unlawfully solicit and incite one C. D. to [describe the offence]. Ante, p. 470. On, &c., at, &c., a certain turnpike gate [or, a certain chain of and belonging to a certain turnpike gate, or a certain weighing engine for collecting and ascertaining the amount of toll payable at a certain turnpike gate], unlawfully and feloniously did throw down, level, and destroy, against the form, &c. Ante, p. 471. On, &c., at, &c., being armed with fire arms and assuming a particular name and denomination not usually assumed by her Majesty's subjects upon their lawful occasions, to wit, the name of , [or, describe any of the acts enumerated 15 & 16 Geo. III. c. 21, s. 2], did rise and assemble [or did appear] to the terror of her Majesty's subjects, against the form, &c. Ante, p. 473. On, &c., at, &c., having risen and assembled together in a riotous, disorderly, and tumultuous manner, [in the manner mentioned in 15 & 16 Geo. III., or in any other manner], did then and there unlawfully by force, threats, and menaces attempt to compel [the said] C. D. to quit his farm at FORMS. CCXCV11 aforesaid, [or, did maliciously assault and injure the dwelling- OFFENCES, house of the said C. D. at , describing any of the acts enumerated I & 2 Will. IV. c. 44, s. 2], against the form, &c. On, &c., at, &c., did post and publish [print, write, post, 155 - . Threatening publish,^ circulate, send, or deliver, or cause to be printed, fyc., notices. mention any of them"], a certain notice in writing threatening violence to the person of the said C. D., upon a certain condi- tion, that is to say, threatening to [describe what, or mention any notice, letter, or message of the classes enumerated 1 & 2 Will. IV. c. 44, s. 3], against the form, &c. Ante, p. 474. County of 1 BE it remembered that on the day to wit. f O f A. B., of, &c., cam personally AND GOOD before me J. P. one of her Majesty's Justices of the Peace in ^ and for the said county, [or before us, &c.], at , and information be- on his oath informeth me, that C. D. of, &c., did, on, &c., at, s f ^ t requiring &c., [state the facts on which the application is founded ; and if surety for the peace be required, add, and that from the above premisses he, this complainant, is afraid that the said C. D. will do him some grievous bodily injury], and this complainant there- fore prays that the said C. D. may be required to find sufficient sureties to keep the peace [or be of good behaviour] towards him, this complainant. And this complainant also says, he does not make this complaint against or require such sureties from the said C. D. from any hatred, malice, or ill-will. Sworn be- fore me, this, &c. See fully, ante, p. 528 ; as to what facts will be sufficient to state, ante, pp. 520, 526; as to stating the fear of personal injury, ante, pp. 529-30. County of ^ To E. F. constable in and for the said peace * arr|mt to wit. J county, and all others whom it may concern, thereon. WHEREAS A. B., of &c., hath this day made information on oath before me J- P; one of her Majesty's Justices of the Peace in and for the said county, that, &c., as in the informa- tion, and that from the above premisses he, the said A. B., is afraid that the said C. /)., will do him some grievous bodily 2p eexcvm APPENDIX. SURETY OF THE PEACE, a. Recognizance to keep the peace, &c. For a limited time. Till the ses- sions. injury, and therefore the said A. B. hath prayed that the said C. D. may be required to find sureties to keep the peace [or be of good behaviour] towards him the said A. B. These are therefore to require and command you to apprehend and bring the said C. D. before me or some other Justice of the Peace for the same county, to answer the said complaint and to find sureties to keep the peace towards her Majesty and all her liege people, and especially towards the said A. B., for such term as shall be then enjoined him, and to be further dealt with according to law. Given under my hand and seal this day of A summons may be easily framed from the forms, ante, p. ccxlvi. If the 'recognizance be with, one or more sureties use the form No. 2, ante, p. cclxiii ; if the party himself only he bound, the form No. I , ante, p. cclxi : altering' the condition, which should be as follows : THE condition of this recognizance is such that if the above bounden A. B. shall keep the peace [or be of good behaviour] towards the Queen and all her liege people, and especially towards A. B. of for the term of [twelve calendar months] now next ensuing, then the said recognizance shall be void or else shall remain in full force. Or, THE condition of the above recognizance is such that if the said A. B. shall personally appear at the next General Quarter Sessions of the Peace, to be holden in and for the division of the said county of at , to do and receive what shall be then and there enjoined him by the court, and in the meantime shall keep the peace [or be of, &c.] towards her Majesty and all her liege people, and espe- cially towards A. B. of . Then the said, &c. Add the oaths in each case as in the forms, ante, p. cclxii, and p. cclxiv ; see ante, p. 532, et seq., and 495, et seq. 4 - County of Commitment in default of to Wit- sureties. To M '. A*. , constable for the said county, and to the keeper of the district bride- > . r * fae case ma y ^]* _ WHEREAS A. B., of, kc.,[stating the complaint as in No. 2], FORMS. CCXC1X and whereas the said C. D. was this day brought and appeared SURETY OF before me J. P., Esquire, one of her Majesty's Justices of the THE PEACZ - Peace in and for the said county, at, to answer the said complaint, and I the said justice, have ordered and adjudged, and do hereby order and adjudge that the said C.D. shall enter into his own recognizance in the sum of with two sufficient sureties in the sum of to keep the peace, &c., [or as well for his appearance at the next, &c., as in the meantime to keep, &c., or to be of good behaviour, &c., in each case fol- lowing the form of the condition as in No. 3, supra'], and inas- much as the said C. D. hath refused and still refuses to enter into such recognizance and to find such sureties as aforesaid, THESE are therefore to require and command you the said con- stable forthwith to convey the said A. B. to the , and to deliver him to the keeper thereof, together with this war- rant, and you the said keeper are hereby required to receive the said A. 13. into your custody in the said , and him there safely keep for the space of twelve calendar months, [or until the said next General, &c.], unless he in the meantime enter into such recognizance, with such sureties as aforesaid, to keep the peace in the manner and for the term aforesaid, [or sureties as well for his appearance at the said sessions as in the meantime to keep the peace as aforesaid, or to be of good behaviour, as the case may be]. Given under, &c. See fully ante, p. 537, et seq. See form of supersedeas, ante, p. ccl, and Liberate, ante, p. cclxvi. County of " BE it remembered, that on this GENERAL to wit: f day of in the year of our Lord one FORMS BEF <>RE * SUMMARY thousand eight hundred and forty, at in the county CONVICTION. C. D. of in the county aforesaid, [Yeoman], personally cometh before me J. P., Esquire, one [or us J. P. and N. O. two] of her Majesty's Justices of the Peace in and for the said county, and informeth me, that A. B. of in the said county [Carpenter], within the space of , now last past, to wit, on the day of in the year aforesaid, did \here describe the offence] contrary to the form of the Statute ccc APPENDIX. POEMS BEFORE in that case made and provided, whereby the said A. B. hath CONVICTION. forfeited the gum of , Wherefore the said C. D. prayeth the consideration of me the said justice in the premisses and that the said A. B. may be convicted of the offence aforesaid, and that the said forfeiture may be adjudged to [or one moiety of the said forfeiture, &c., as the case may require"], according to the form of the Statute in that case made and provided ; and that the said A. B. may be summoned before me or some other justice to answer the premises. See fully, ante, p. 554, et seq. ; describing the offence, 558, &c. For more than one offence. 3. Where informa- tion is qui tarn. 4. Where a war- rant is issued. 5. Summons. If there be more than one offence, add at the *, and also that the said C. D., within the space of, &c., and proceed in the same form, mutatis mutandis. Ante, p. 552. When the penalty is divided between the informer and another, the following is sometimes inserted after the name and addition of the informer, who as well for our said Lady the Queen [or for the poor of the parish of , or as the case may be], as for himself doth prosecute in this behalf, person- ally cometh before, &c., and as well for our said Lady the Queen [or, &c.]., aforesaid, as for himself, informeth m that, &c. ; but this is unnecessary, ante, p. 557. If a warrant and not a summons be issued, conclude, and that the said C. D. may be apprehended for the said offence, and dealt with according to law. Ante, p. 584, &c. County of 1 PETTY SESSIONS. to wit. J WHEREAS complaint and information [on oath, or in writing, if the Statute so require], was on made before me J. P., Esquire, one of her Majesty's Justices of the Peace in and for the said county, by C. />., that you on at [here state the offence]. These are therefore to require you personally to be and appear before me, or such other of her Majesty's Justices of the Peace as shall be then and there present, at the Petty Sessions to be holden at , in the said county, on Monday the day of , at eleven of the clock in the forenoon, then FORMS. CCC1 and there to answer to the said complaint and information. FORMS BEFORE Herein fail not at your peril. Given under my hand this day of To A. B. of J. P. {Signature.} See other forms of summons, ante, p. ccxlvi, which may be adopted. See fully, ante, p. 580, 8$c., and 154, #c. The sum- mons need not be by the J. P. who is to hear the complaint, ante, pp. 63, 64. For forms of warrants and search warrants, see ante, p. 6. ccxlviii and ccli, a* to using which, see ante, p. 584, 8fc. The Warrants . &c - statement of the offence may be as in an information ; see the forms, post. County of ^ PETTY SESSIONS. 7. Summons witness to Petty to wit. j WHEREAS complaint and information [on ^" oath or in writing if so] has been made before us, J. P. Sessions, and JV. O., Esquires, two of her Majesty's Justices of the Peace [or before me, J. P., one, &c.], in and for the said county, that A. B. of, &c., stating the substance of the eliarge, and whereas it appears to us that you are a material witness to be examined touching the said information. These are, therefore, to command and require you personally to be and appear before us at the Petty Sessions, to be holden at on Monday, the day of , at the hour of , or such other of her Majesty's Justices of the Peace as shall be then and there present, to testify your knowledge of and con- cerning the matters alleged in the said information. Herein fail not. Given under our hands this day of To M. N. of [Justice's Signature']. See fully ante, p. 587. The summons may be framed as a precept to the constable ; see the form, ante, p. ccxlvi. If the Statute prescribe a particular form it should be used. See the general form, ante, p. 621 ; adapted to partiular cases for practical application, it will be as follows : County of S BE it remembered that on the * to w ^- /day of , in the year of our Lord ant'appears and makes defence. CCC11 APPENDIX. CONVICTION. , at , in the county of , A. B. of , in the county aforesaid, Labourer, personally came before me, J. P., one of her Majesty's Justices of the Peace for the said county, and informed me, that C. D. of , in the county of , on the day of , in the year aforesaid, at in the said county, did [here set forth the fact for which the information is laid] contrary to the form of the Statute in such case made and provided. Whereupon the said C. D. after being duly summoned to answer the said charge *, appeared before me on the day of , instant, at , in the said , and having heard the charge contained in the said information, declared he was not guilty of the said offence, whereupon I, the said justice, did proceed to examine into the truth of the charge contained in the said information. And on the day of aforesaid, at afore- said, one credible witness, to wit, E. F. of , in the county of , upon his oath deposeth and saith, in the presence of the said C. D., that [here state the evidence fully, and if there be another witness add, And one other credible wit- ness, to wit, G. H. of , upon his oath deposeth and saith, in the presence of the said C. D., that, &c., or, and also a wit- ness, produced and examined on the part of the said C. D., to wit, J. K. of , upon his oath deposeth and saith, that, &,c.] Therefore, it manifestly appearing to me that he, the said C. D., is guilty of the offence charged upon him in the said information, I ho hereby convict him of the offence afore- said, and do declare andf adjudge that the said C. D. hath forfeited the sum of , of lawful money of Great Britain, for the offence aforesaid, to be distributed [or paid] according to the form of the Statute in that case made and provided. Given under my hand and seal the day of , in the year of our Lord one thousand eight hundred and [Seal]. J. P. [Signature]. See fully ante, p. 620, et seq. ; and for the recital of the in- formation, ante, p. 555, et seq. ; the evidence, 625, $*c., 597-9, fyc.; the judgment, ante, 613, Sfc., 629, $c. When sum- If the fact be so, in stating the information say, per- FORMS. cccm sonally came before J. P., Esquire, one of, &c., and informed CONVICTION. him, the said justice, that C. D. of, &c., and state the appear- m <> n s by one ance thus, to answer the said charge appeared before us, L. M. hearin^ before and ./V*. 0., two of her Majesty's, &c., saying us and we, in- other Js. P. stead of me andl, when necessary to the end. Ante, p. 63. In the same form merely changing, declared he was not 3 - guilty of the said offence to did neglect and refuse to make ant a p pears any defence against the said charge, whereupon I, &c. Ante, does not plead. p. 625. As in No. 1 to the *, then continue, appeared before me 4. on the day of instant, at , in the said county, and having heard the charge contained in the said information, acknowledged and voluntarily confessed the same to be true. Therefore, it manifestly appearing, &c., as in No. 1 to the end. Ante, p. 594, &c., 625. As in No. 1 to the *, then continue, did not appear be- 5. wiry t I fore pursuant to the said summons ; nevertheless, I, the said Justice, \_or we, &c.], did proceed to examine into the not appear. truth of the charge contained in the said information ; and on the day of , aforesaid, one credible witness, to wit, E. F. of , in the county of , upon his oath depo- seth and saith, that, here state the evidence, and state the examination of other witnesses, as in JVo. 1 if necessary, omitting the statement of the defendant' s presence. There- fore it manifestly, &c., as in JVo. 1 to the end. Ante, p. 625. If the sentence be imprisonment, instead of the statement 6t after the f in No. 1, say, adjudged that the said C. D. for his tence is impri- said offence be imprisoned in the [naming the prison, and if sonment. so required, add, there to be kept to hard labour] for the space of [one calendar month]. Given under, &c. Ante, p. 613, &c., 631, 632, 7. As in No. 1, to the f, then say, adjudge that he the said C. wh e th * pe- D. hath forfeited the sum of of lawful money of the realm, mitigated, to be distributed according to the form of the Statute in that CCC1V APPENDIX. CONVICTION, case made and provided : and I the said justice [or we, &c.] seeing cause to mitigate and lessen the said penalty, do ac- cording to the Statute and at the request of the said C. D., mitigate the same to the sum of , to be distributed [or paid], according to the form of the Statute in that case made and provided. Given under, &c. Ante, pp. 634, 614. 8 - Add at the conclusion just before Given under, &c. as fol- lows : And also that the said C. D. shall forthwith pay unto the said A. B. the further sum of for his costs and charges by him the said A. B., about the prosecution in this behalf expended. Given under, &c. Ante, pp. 618, 631. 9 State the information as in' a conviction, (see No. 1, ante, Record of ac- , . . , , quittal. P* CCC1 > to we * ), summoned 4o answer the said charge, ap- peared before me on the, &c., at, &c., as also the said A. B. to prosecute his said information ; and the said C. D. having heard the charge contained in the said information, declared he was not guilty of the said offence, [or if he pleads any spe- cial matter, saith that, stating it correctly], whereupon I the said justice [or we, &c.] did proceed to examine into the truth of the charge contained in the said information, and on the day of aforesaid, at aforesaid, one credible witness, &c., setting out the evidence as in a conviction, see No. 1 . And upon hearing the said proofs and allegations as well of the said A. B. as of the said C. D., it is hereby considered and adjudged by me [or us] that the said C. D. be acquitted of the said charge and offence in the said information contained. As to the grounds of acquittal, see ante, pp. 606-7 ; defence, ante, p. 607, &c. ; setting out the evidence, ante, p. 61 1. :ss - County of ") To \ Distress war- to wit. j WHEREAS C. D. late of in the rant for a pe- sa id county (Labourer) , was on the day of [ or on this day] duly convicted before us J. P. and N. O. two of [or before me J. P., one, &c., or before X. K, Esquire, one of, &c.] her Majesty's Justices of the Peace in and for the said county, for FORMS. CCCV that he the said C. D. [describing the offence as in the convic- DISTRESS /tow], contrary to the form of the Statute in that case made w and provided. And we, the said justices [or I, &c., or the said X. Y.] thereupon adjudged the said C. D. for his said offence to, following the adjudication of the conviction and adding the award of costs if made. And whereas the said C. D. being so convicted as aforesaid, and being required to pay the said sums, hath not paid the same or any part thereof, but therein hath made default. THESE are therefore to com- mand you to levy the said sums of by distraining the goods and chattels of him the said C. Z)., and if within the space of [six] days next after the making of such distress, the said sums, together with the reasonable charges of taking and keeping the said distress, sh? 1 not be paid, that then you do sell the goods and chattels so by you distrained ; and out of the money arising by such sale that you do, [directing the disposal of the money according to the circumstances], rendering the overplus on demand to the said C. D., the reasonable charges of taking, keeping, and selling the said 'distress being first deducted. And you are hereby required to certify to us what you shall have done in execution of this our warrant. Given under our hands and seals this day of , 184 . [Seal}. [Signatures]. Ante, p. 657, &c. ; direction, ante, p. 659; disposal of the money, ante, pp. 654, 660 ; costs of levy, ante, p. 656. J County of "^ To 2. to wit. Distress war- " rant reciting WHEREAS A. B. of, &c., stating the complaint, summons, the proceed- hearing, and adjudication according to the particular case, ln S s * which may be as in a conviction, see ante, p. cccii ; state the refusal to pay and direction to levy as in No. 1 , supra, adding the direction to pay over the money according to the particular case ; see a form for wages, post. Ante, p. 657. \ I, M. N., [Sub-Inspector, &c.] of the 4> J< to wit. J county aforesaid, do hereby certify J. P., Esq., Return of 2q one of her Majesty's Justices of the Peace for the said county, CCCV1 APPENDIX. DISTRESS that by virtue of this warrant I have made diligent search for the goods and chattels of the within named C. D., and that I can find no sufficient goods or chattels of the said C. D. whereon to levy the sums mentioned. Witness my hand this day of in the year of our Lord, 184 . M. N. Ante, p. 665. 4. County of Order of deten- tion till return can be made. to wit. 5, Consent for a commitment instead of dis- 1 WHEREAS A. B. of in the said J county, Labourer, is this day convicted before me J. P., Esq., one of her, &c., for that he the said A. B. did on, &c., at, &c., [stating the offence of which he is convicted], and he is adjudged to forfeit and pay the sum of for his said offence. And whereas I have issued my warrant of distress to levy the said sum of upon the goods and chattels of the said A. B., and it appears to be necessary and expedient for the said A. B. to be detained in custody until a proper refurn can be made to such warrant of distress, pursuant to the Statute in that case made and pro- vided. THESE are therefore to command and require you the said constable, to detain and keep in safe custody the said A. B., until return shall be made to the aforesaid distress warrant, (such return to be made within [eight] days from the date hereof), or until the said A. B. shall give sufficient security to my satisfaction for his appearance before me upon the return of such warrant. Herein fail not. Given under my hand and seal, this day of, &c. Ante, p. 667 ; as to being in writing, ante, p. 671, but see the similar clauses in some Statutes. County of to wit. WHEREAS I the undersigned A. B. of the parish of C. in the county of , have this day been convicted before J. P., Esquire, one of her Majesty's, &c., on, &c., at, &c., [stating the offence as laid in the information], whereupon I was adjudged to forfeit and pay the sum of , which, in default of payment, was directed to be levied by distress upon my goods and chattels. And whereas it would be in an especial manner injurious to me the said A. B. and my family to levy the said penalty by distress and sale of my said goods and chattels ; and I the said A. B. have thereupon desired the said justice to withhold the FORMS. CCCV11 issuing of any warrant of distress for the said cause, and to WISTBESS commit me, the said A. B., immediately and in default of pay- ment of the said penalty, pursuant to the Statute in that case made and provided. Now, therefore, I do hereby consent that the above named justice shall commit me forthwith to the House of Correction for such time and in such manner as by law are directed in respect of the said offence, instead of issuing a distress warrant against my goods and chattels as aforesaid. Given under my hand this day of [Defendant 's signature]. Subscribed in the presence of me, one of her Majesty's Justices of the Peace for the county of [Justices' signature.'] Ante, p. 669. County of 1 To M . N. constable of the said county, COMMITMENTS. to wit and to the keeper of the at I. Commitment as 3 in the said county. a punishment in WHEREAS A. B. late of in the said county, Labourer, the first in ' was convicted before me J. P. one of her Majesty's Justices of the Peace in and for the said county, [or before us, &c., or before X. K, Esquire, one, &c.], for that the said A. B. on, &c., [describing the offence as in a conviction], against the form of the Statute in that case made and provided, and I the said justice thereupon adjudged the said A. B. for his said offence to be imprisoned in the [House of Correction] at in the said county, [if so add, and there kept to hard labour] for the space of . THESE are therefore to command you the said constable to take the said A. B. and him safely to convey to the [House of Correction] at aforesaid, and there to deliver him to the said keeper thereof, together with this precept, and I hereby command you the said keeper to receive the said A. B. into the said [House of Correction], there to imprison him [and to keep him to hard labour] for the space of . And for so doing this shall be your sufficient warrant. Given under my hand and seal [or our, &c.], this day of [Seal]. [Signature]. Ante, pp. 666, 670, &c. CCCV111 APPENDIX. COMMITMENTS. County of ^ To M. N. , constable of the said county, ? to wit. Vand to the keeper of the [district Bride- Commitment in I default of im- _ 3 well] at in the said county. mediate pay- WHEREAS A. B., late of , in the said county, [La- bourer], hath been this day duly convicted before me, J. P., one of her Majesty's Justices of the Peace in and for the said county, [or before us, &c.], for that he the said A. B. did, on, &c., at, &c., [state the offence as in the conviction], against the form of the Statute in that case made and provided ; and I the said justice, [or we, &c.], thereupon adjudged the said C. D. for his said offence to, &c., [following the awai*d of the penalty and costs, if ordered, in the conviction"], * and to be im- prisoned in the for calendar months, unless the said sums should be sooner paid ; and whereas the said A. B. being so convicted, and being now required to pay the said sums, hath not paid the same, or any part thereof, but herein hath made default. THESE are therefore to require you, the said constable, forthwith to take, carry, and convey the said A. B. to the [naming the prison], at aforesaid, and there to deliver him into the custody of the keeper thereof, together with this precept; and I, [or, we, &c.], do hereby command you the said keeper to receive and take the said A. B. into your custody in the said [naming the prison], and him safely keep, [or, if so, there to imprison him and keep him to hard labour], for the space of , unless the said several sums shall be sooner paid. Given under, &c. Ante, p. 666, &c. 3. Direction as in No. 2, supra. Commitment in Whereas A. B. of in the said county, Labourer, was on ment in a given *^ e day f ^ ast past duly convicted, &c., as in last form time. to the *, and I the said Justice, [or we, &c.], then and there ordered the said sums should be paid by the said A. B. on or before the day of then next ; and whereas the said A. B. hath not on or before the said day of paid the said several sums or any part thereof, nor hath he yet paid the said several sums, or any part thereof, but therein hath made default. THESE are therefore to command you the said con- stable, &c., as in the last form to the end. FORMS. CCC1X As in Nos. 2 and 3 to the *. And whereas on the day of COMMITMENTS. in the year aforesaid, I did issue ray [or we did, &c.], . . 4 - -jfT Commitment in warrant to M. N., constable of the said county, to levy the sum default of di&- of , by distress and sale of the goods and chat- tress< tels of him the said A. B. ; and whereas it appears to me by the return of the said constable to the said warrant of distress, [or, if so required, upon the oath of the said constable], that he hath made diligent search for the goods and chattels of the said A. B., but that no sufficient distress can be found whereon to levy the said penalty. THESE are therefore to command you the said constable, &c., as in No. 2 to the end. Ante, pp. 668, 670, &c. If the want of goods appears by defendant's confession, fyc., say, and whereas it appears to me by the confession of the said A. B. [or otherwise}, that he the said A. B. hath no suf- ficient goods and chattels whereon to levy, &c. As in No. 2 to the *. And whereas the recovery of the . 5 - said penalty by distress and sale of the goods and chattels of udder's Geo. the said A. B. appears to me the said justice, [or to us, &c.], IV. c. 18, s. 4. to be attended with consequences ruinous [or in an especial manner injurious to] the said A. B. and his family. THESE are therefore, pursuant to an Act passed in the fifth year of the reign of his late Majesty George IV., entitled, ' An Act for the more effectual recovery of penalties before justices and magistrates, on conviction of offenders, and for facilitating the execution of warrants by constables,' and by the desire and with the consent in writing of the said A. B., to com- mand you the said constable, &c., as in JVb. 2 to the end. Ante, pp. 669, cccvi. Write on the back of the writ, The answer oft/. P. Esquire, Return to one of her, &c. The execution of this writ appears by the certiorari - schedule hereunto annexed. On a separate parchment write : County of ~| I, J- P., Esquire, one of her Majesty's to wit. /Justices of the Peace for the said county, by virtue of this writ to me delivered, do hereby certify to her Majesty in her Court of Queen's Bench, the conviction of cccx APPENDIX. which mention is made in the said writ, together with all matters touching the same, as by the said writ I am com- manded. In witness whereof I, the said J. P., have here- unto set my hand and seal, at in the said county of this day of [Seal.] J. P. Ante, p. 687, fyc. If the conviction cannot be returned this must be varied accordingly, see ante, pp. 687, 688. APPEAL. Notice of ap- peal. 2. Recognizance of appeal. to wit. J THIS is to give you [and each and every of you] notice that I, the undersigned A. B. of , do intend, at the next general Quarter Sessions of the Peace to be holden in and for the division of the said county of , at , in* the said county, to appeal against a certain conviction of me, the said A. B., by J. P., Esquire, one of her Majesty's Justices of the Peace for the said county, for having, as is therein and thereby alleged, on, &c., at, &c., [stating the offence charged in the conviction, and add if required by the Act, and that the cause and matter of such appeal are, that stating what]. Of all which premises you and each of you are hereby desired to take notice. Dated this day of , 184 . Ante, p. 690, &c. A. B. The body of the recognizance as No. 2, ante, p. cclxiii, if with sureties; if the party's own recognizance only, as No. 1, ante, p. cclxi. The condition as follows : WHEREAS by a certain conviction under the hand and seal ofJ.P., Esquire, one [or J. P. and M. N., two] of her Majesty's Justices of the Peace for the said county of , the said A. B. is convicted, for that he, on, &c., at, &c.,[stating the offence, and adding if required, and whereas the said A. B. hath given notice unto of his intention to appeal against the said conviction, and of the cause and matter thereof, as the case may be}. Now the condition of this recog- nizance is such, that if the above bounden A. B. shall appeal- personally at the next General Quarter Sessions of the Peace to FORMS. CCCXl be holden for the division of the said county, at , and shall then and there try such appeal and abide the judgment of the said court of Quarter Sessions thereon, and pay such costs as shall be by the said court awarded, then this recogni- zance to be void. Ante, p. 692, &c. The provisions of different Statutes slightly differ as to the condition required, which should be varied to suit the particular Act. This may easily be done from the foregoing form. APPEAL. ASSAULTS. 1. The following forms for proceedings under particular Sta- tutes are adapted to the cases of the most frequent occurrence ; see the Statutes, ante, pp. i ccxliii. Informations, summons, fyc., as ante, pp. ccxcix,ccci; cow- viction in the summary from ante, p. iii, describe the offence as follows : On the day of , at , unlawfully did beat one C.D. with intent thereby then and there to deter and hinder him, the said A. B., from selling [or buying] certain wheat in the market of , in the said county, against the form of the Statute in such case made and provided. On, &c., at, &c., unlawfully did beat one C. D., the said C. D. then and there having the care and charge of cer- tain wheat whilst on its way to the market town of , in the county aforesaid, with intent thereby then and there to stop the conveyance of the said wheat, against the form, &c. The punishment of imprisonment and hard labour to be added as in the form, ante, p. iii ; see the Stat., ante, p.i. On, &c., at, &c., did unlawfully assault and beat one C. D. Ante, s. 36, p. i. On, &c., at, &c., did unlawfully assault and beat one C. D. by hitting and striking the said C. D. with a heavy and dan- Ass , ault with J / . loaded weapon, gerous metal weapon, to wit, an iron hammer; held m the & c . hand of him the said A. B. while the blow was inflicted \or describe any of the means mentioned in the Act}, against the form, &c. 2 & 3 Viet. c. 77. Ante, pp. iii, iv. 2. 3. CCCX11 APPENDIX. ASSAULTS. 4. Certificate of dismissal of complaint. 1 WE J. P. and M. J\T. two of her Ma- to wit. / jesty's Justices of the Peace in and for the said county of , do hereby certify that on the day of , at [the Petty Sessions holden at in the said county] A. B. of was brought before us the said Justices and charged with having [unlawfully as- saulted and beaten C. D. on, &c., at, &c.] and that we the said Justices deemed the said offence not proved [or found the said assault and battery to have been justified, or, to have been so trifling as not to merit any punishment] and have accordingly dismissed the said complaint. Given under our hands this day of, &c. Ante, p. ii, v. 1. Selling other- wise than by weight. Not using avoirdupois weight. 3. Not having scales, &c. Use the forms of information and summons, ante, p. xv ; of conviction, ante, p. xvii ; ^offences under the Act may be de- scribed as follows : On, &c., at &c., being then and there a baker, did sell to one C. D. one loaf of bread otherwise than by weight, that is to say [for the sum of for the said loaf] the said loaf not being then and there such bread as is usually sold under the denomination of French or fancy bread or rolls, against the form, &c. Sec. 4, ante, p. vi. On at being then and there a baker and seller of bread, did sell to one C. D. a certain loaf of bread by weight, other than avoirdupois weight of sixteen ounces to the pound according to the standard in the Exchequer, to wit, by a weight of twelve ounces to the pound, against, &c. See sec. 5, ante, p. vii. On at being then and there a baker and seller of bread, did not fix nor cause to be fixed in any conspicuous part of his shop there, nor on, nor near the counter any beam or scales, or other sufficient balance, [or did not then and there provide and keep for use any proper beam, &c., as the ease may be], against the form, &c. Sec. 6, ante, p. vii. FORMS. CCCX111 On, &c., at, &c., being then and there a baker, did use in the BREAD. making of certain bread which he, the said A. B., then and , 4< . Adulterating there made for sale a certain ingredient other than and except bread. flour or meal of wheat, barley, rye, oats, buck-wheat, Indian corn, peas, beans, rice, or other grain, or potatoes, or any of them, or common salt, pure water, eggs, milk, barm, leaven, potato, or other yeast, butter, seeds, or sugar, to wit, a certain ingredient called alum, against the form, &c. Ante, p. viii. On, &c., at, &c., did put into certain which was then 5 ' Adulterating and there being ground, a certain ingredient not being the real flour, &c. and genuine produce of the so ground, to wit, an ingre- dient called , against the form, &c. Sec. 8, ante, p. viii. On, &c., at, &c., did sell to the said C. D. certain flour 6. which was inferior in quality and goodness to the sample pur- Selling inferior porting to be the sample of such flour, and produced by him the said A. B., when selling the same, to the view of the said C. D., the buyer thereof, against the form, &c. Sec. 8, ante, p. viii. On, &c., at, &c., he, the said A. B. being then and there a 7 - Miller, [or Mealman, &c.] did have in his mill there a certain terialslbTadul- ingredient called , which after due examination I, the said terating bread justice, do hereby adjudge to have been deposited there for the purpose of being used in adulterating flour [or bread, &c.,] against the form, &c. Sec. 1 1 , ante, p. x. On the Lord's day, to wit, on the day of at , Bakjn 8 ^ being then and there a person exercising the trade of a baker, Sunday, did bake loaves of bread, against the form, &c. Ante, p. xii. Summons and information, ante, p. ccxcix, &c. ; warrant c as ante, p. ccxlviii, describing offences as in the conviction ; com- mitment of a witness, ante, p. xli ; conviction in the statutable form, ante, p. xl, describing the offence as follows : of having on the day of ,at , by threats and i. intimidation, that is to say, by \_statingparticularly how and Compelling to i> r CCCX1V APPENDIX. COMBINATION, so, if it l)e % violence, '.], endeavoured to force [or leave employ- forced] the said C. D., a journeyman Tailor, who was then ment or return , . , , , , , workt and there hired and employed by one M. N. in the trade of a tailor aforesaid, to depart from his said hiring and employ- ment [or to return the work in which he the said C. D. was then and there employed before the same was finished] con- trary to the Act made, &c. Ante, p. xxxvi; and see p. xli. 2. On, &c., at, 8cc., by violence to the person of C. D. of, &c., hiring'oMaking that is to sav bv \? tatin g how~\, endeavoured to prevent the work. said C. D. being such journeyman Tailor as aforesaid, and not being then hired or employed, from then and there hiring him- self to [or accepting work or employment from] one M. N. in the trade of a tailor aforesaid, contrary to, &c. Ante, pp. xxxvi, xl. 3. Using violence to force into clubs, &c. On, &c., at, &c., used and employed violence to the pro- perty of C.D. by [stating how]) for the purpose of then and there forcing [or inducing] the said C. D. to belong to a certain club or association called , contrary to, &c. Ante-, p. xxxvii, xl. 4. On, &c., at, &c., by violence to the property of C. >., that Compelling i s to say, by [stating how] endeavoured to force the said C. D. manufacturers , , . , to alter mode of wno *" en and there carried on the trade and business of a business, &c. [Hatter] to make an alteration in his mode of regulating his said trade and business by [stating how; or to limit his ap- prentices to the number of , or otherwise stating some ob- ject within the meaning of the clause, ante, p. xxxvii] contrary to, c. Ante, pp. xxxvii, xl. CRUELTY TO AMMALS. 1. Wantonly Dealing, &c. Summons and information as p. ccxcix, &c., stating the offence as in the conviction ; conviction in the statutable form, ante, p. xlvi, stating the offence as follows : On, &c., at, &c., did wantonly and cruelly beat, ill treat and abuse [or torture,or a ny of them] a certain [gelding] , against the form of the Statute in that case made and provided. Ante, p. xlii. FORMS. CCCXV On, &c., at, &c., was driving a certain heifer through and along a certain public road and highway, and whilst he the said A. B. was so driving the said heifer as aforesaid, he the vim* whereby said A. B. did then and there violently beat and ill use the niiscbief is same, by means of which said violent beating and ill usage he the said A. B. then and there caused the said heifer to [stating the injury done'], thereby doing injury to C. D. to the amount of , against the form, &c. Ante, p. xlii. On, &c., at, &c., unlawfully did keep [or use] a certain pit 3. and place [or house, &c.] there for the purpose of fighting dogs, [or in which a certain badger was then and there baited, or as the case may be], against the form, &c. See sect. 3, ante, p. xliii. Informations, summons, and convictions in the general form, ROADS. ante, p. ccxcix, &c. The following are for offences : On, &c., at, &c., on a certain public road there situate, called was driving a certain and did wilfully re- fuse and neglect to keep his left hand side of the said road in the road. going thereon, but on the contrary thereof did keep his right- hand side of the said road, he, the said A. B., not having then and there occasion to pass any other person going in the same direction with himself, against the form of the Statute in such case made and provided. Ante, pp. Ixxii, Ixxiii. On, &c.,at, &c.,on a certain road there situate, called ,.,!,,,,,. . , -, . Vehicles not [on which said road her Majesty s mails are conveyed in having owner's coaches], did drive a certain cart without springs, whereon name. the name of the owner was not painted, [in white Roman let- ters one inch long at least], against the form, &c. Jlnte, ib. Nuisances, obstructions, fyc., enumerated in sec. 159 may readily be described from the words of the Act. For proceedings against owners of cattle wandering, sec also 4 & 5 Will. IV., c. 50, Addenda. ceexvi Al'I'ENDIX. 1.AUCENY. Summons and information as in the general form, ante, p. ccxcix ; conviction in the form prescribed, ante, p. xci. As this form, which is the same as that in the Malicious In- juries Jlct is complicated, the following are given in a more simple form for practical application. 1. Form of convic- tion when the punishment is corporeal only. 2. Conviction when the pe- nalty is pecu- niary and a sum for the damage and costs is awarded. County of to wit. day at BE it remembered that on the in the year of our Lord in the county of A. B. is convicted before me J. P. one of her Majesty's Justices of the Peace for the said county, [or before us, two of, &c.], for that he the said +4. B. did, [specifying the offence, ivhich may be in any of the forms, post, p. cccxvii, &c.], and I the said justice [or we, &c., do adjudge the said A. B. for his said offence * to be im- prisoned in the [naming the prison, and if so required, add, and there kept to hard labour] for the space of . Given under my hand and seal, [or our hands, c.], the day and year first above mentioned. As before to the * to forfeit and pay the sum of over and above the value of the said [articles stolen or injury done], and the further sum of being the value of the said [articles stolen, fyc.'], and also to pay the sum of for costs, and in default of immediate payment of the said sums to be imprisoned in the [naming the prison, and add if neces- sary, and there kept to hard labour] for the space of unless the said sums shall be sooner paid. And I [or we] order that the said sum of [the penalty] shall be paid to X. Y. of in the said county, to be by him [or them] ap- plied according to the directions of the Statute in that case made and provided ; and that the said sum of [the value of the articles or amount of injury], shall be paid to C. D. [the oivner, but if he be unknown or a witness, say, shall be also paid to the said X. Y., the owner of the said articles stolen or things injured, being unknown, (or C. D. the owner of the said articles, fyc. t having been examined in proof of the said offence), to be by him applied in like manner], and I [or we] order the said sum of for costs to be paid to C. D. [the complainant]. Given under, &c. FORMS. CCCXV11 As in No. 1, to the * to forfeit and pay the sum of LARCENY. [if costs be given., add, and also to pay the sum of for 3 costs], and in default of immediate payment of the said sum only is inflicted, to be imprisoned in the [naming the prison, and add, if so re- quired, and there kept to hard labour] for the space of , unless the said sum be sooner paid, and I direct that the said sum of shall be paid to X. Y. of in the said county, to be by him [or them] applied according to the di- rections of the Statute in that case made and provided. [If costs be given, add, and we order the said sum of shall be paid to C. D.~\ Given under, &c. .4$ in No. 1, to the * to forfeit and pay the sum of 4. [the penalty, and if the value or costs be awarded, state them ^Jj^for the as in No. 2], and I order that the said sum [or sums] shall be payment, paid by the said A. B., on or before the day of , and I direct that the said sum of, &c., to the end, directing the application as in either of the preceding forms. Proceed as in other cases to the end of the description of 5. the offence, against the form of the Statute in that case made ^ second^ ' and provided, and add, and it is now proved before me the fence, said justice, [or us, &c.] that the said A. B. heretofore and be- fore the commission of the said last-mentioned offence on at , was duly convicted before M. JV., Esquire, one of her Majesty's Justices of the Peace in and for the said county of , [or M. N. and O. P., two, &c.], for that he the said A. B. did on at , stating the offence as in the conviction, against the form of the Statute in that case made and provided. I the said justice, [or we, &c.] do there- fore adjudge the said A. B. for such his said second offence, to, &c., concluding with the sentence as in ordinary cases. Offences under the Larceny Act may be described as fol- lows : For that he the said A. B., on at had in his , Being found in possession [or on his premises at aforesaid, and with his possession of knowledge], ten pounds weight of tobacco, of the value shipwrecked goods. CCCXV111 APPENDIX, LARCENY. of , of the goods and merchandize belonging to a cer- tain ship then lately before stranded and cast on shore at , the property of , and which said goods had been by some person or persons unknown, feloniously plundered, stolen, taken, and carried away whilst the said ship was so stranded and cast ashore as aforesaid; and that, upon the said goods and merchandize being found in the possession and upon the premises of the said C. D. as aforesaid, by vir- tue of a certain search warrant, and the said C. D. being car- ried before us the said J. P. and N. O. now here, as such justices as aforesaid, he the said C. D. doth not show unto or satisfy us that he came lawfully by the said goods and merchandize, but altogether faileth in so doing, against the form, &c. Suet. 19, ante, p. 254. Order to deli- ver ship- wrecked goods found under a search warrant. to wit. To M.-N., constable for Conviction for offering ship WHEREAS by virtue of a certain warrant under the hand and seal of [me] J. P., Esquire, one of her Majesty's Jus- tices of the Peace in and for the said county, authorizing you to enter into the dwelling-house of A. B. at , and there diligently to search for \cts in the warrant] ; and whereas cer- tain of the said goods were found by you in the said dwell- ing-house, to wit, \_name the articles found~\, and the same, together with the said A. B., were thereupon brought before me the said justice ; and it then appearing, upon evidence be- fore me, that the said goods were so in the dwelling-house of the said A. B. with his knowledge the said A. B. was there- upon required by me, the said justice, to account for his possession of the said goods, but he hath not satisfied me that he came lawfully by the same, I DO, therefore, order and direct you, the said constable, forthwith to deliver the said [goods found} unto C. D., the rightful owner thereof, \or, for the use of N. O., the rightful owner thereof]. Given under, &c. Ante, p. 254 ; search warrant, ante, p. cclii. C. D. on at did offer and expose for sale four pounds weight of tobacco, of the value of FORMS. CCCX1X the property of [some person or persons unknown], before then unlawfully taken from a certain ship before then wrecked, wrecked goods [stranded], and cast on shore, at , and the said C. D., although duly summoned by us, as such justices as aforesaid, hath not appeared before us, or satisfied us that he came lawfully by the said tobacco, [or the said C. D. having been duly summoned by us, the said justices, for that purpose, now appeareth before us, but doth not satisfy us, the said jus- tices, that he came lawfully by the said tobacco], against the form, &c. Ante, p. Ixxxiv. On, &c., at, &c., in a certain park, [paddock, or enclosed 9. land], then belonging to C. Z>., wherein deer are usually kept, ^ ! n inclosed did unlawfully and wilfully kill, [or course and carry away, ground. or snare, &c., as the case may be], a certain deer then and there kept and being, against the form, &c. Sec. 26 ; ante, p. Ixxxiv. On, &c., at, &.C., a certain part, to wit, the skin of a deer, [or a certain engine, to wit, &c.], was, by virtue of a certain essoto search warrant before then, to wit, on at granted by venison or J. P., Esquire, one of her Majesty's, &c., on the oath of a ere- snares - dible witness, that there was cause to suspect [", us in the search warrant^, found in the premises of the said A. B. at aforesaid ; and the said skin was then and there on the premises of the said A. B. with his knowledge; and the said A. D. being now carried before me the said J. P., as such justice as aforesaid, doth not satisfy me the said justice that he came lawfully by the said skin, [or where a snare, fyc., is found, that he hath or had a lawful occasion for such snare, (or engine), and that he did not keep the same for any unlawful purpose], against the form, &c. Sec. 27 ; ante, p. Ixxxiv ; search warrant, ante, p. cell. County of ) To of , Labourer. 1 I ., Summons to to wlt _ J WHEREAS on at a cer- personst hrough tain part of a deer, to wit, the head thereof, was by virtue of a whose hands search warrant found upon the premises of one/^. B. at , passe( j. and the said A. B. being thereupon brought before me one of cccxx APPENDIX. 12. Stealing &c. LARCENY, her Majesty's &c., it appeared to me from the evidence then given, that you JV. O. of in the said county, Labourer, had had possession thereof, THESE are therefore to require you the said N. O. personally to be and appear before me at, &c., on, &c., [as in a common summons}, to answer in the premises and to satisfy me that you came lawfully by the said part of the said deer, and to be further dealt with accord- ing to law, herein fail not at your peril. Given, &c. On at one dog of the value of , [or one hawk of the value of one shilling, which was then and there ordinarily kept in a state of confinement, or as tlie case may be~\, the property of one C. D., unlawfully did steal, take, and carry away, against the form, &c. Sect. 28, ante, p. Ixxxv ; for a second offence see the form, ante, p. cccxvii. On at a certain dog, [or the plumage of a certain bird ordinarily kept in a state of confinement, to offenders' pos- wit, a parrot], the property of E. F., by a certain ill-disposed person unknown then lately before unlawfully stolen, was found in the premises [or in the possession] of the said -4. B. there situate, by virtue of a search warrant granted by J. P., Esquire, one of her Majesty's, &c., on the oath of a credible witness, that [fyc., as in the search warrant} he, the said A. B., then and there well knowing that the said skin so found was then and there the skin of a dog before them unlawfully stolen, taken, and carried away, against the form, &c. Sec. 29, ante, p. Ixxxv ; second offence, as, ante, p. cccxvii. 13. Having dogs, &c., found in to steal. 14. C. D., on the day of in the year aforesaid, at r g dama- tlie P arisl1 of in the county aforesaid, one ash tree, gingwith intent [describing the whole or any part of any tree, sapling, or shrub, or any underwood] of the value of two shillings, the property of E. F., then and there growing, unlawfully did steal, take, and carry away ; [or, omit the value and say, the property of, &c., unlawfully did cut and damage (cut, break, root up, or otherwise destroy or damage] with intent the same then and there to steal, take, and carry away, thereby then FORMS. CCCXX1 and there doing injury to the said E. F. to the amount of LARCENY. two shillings], against the form, &c. Sect. 31 , ante, p. Ixxxvi ; second offence, ante, p. cccxvii. On at a certain part of a certain live fence 1 4. there, to wit, five hawthorn trees [or one wooden post then Stealing, &c., a and there set up and used as a fence, describing any of the & c objects enumerated 9 Geo. IV. c. 55, s. 33], of the value of one shilling, then and there being, unlawfully did steal, take, and carry away, [or did cut and break, (cut, break, or throw down), with intent the same then and there unlawfully to steal, take, and carry away], against the form, &c. Ante, p. Ixxxvi ; second offence in the form, ante, p. cccxvii. On at a certain ash tree, [or rail, fyc., naming 15. any of the things enumerated in 9 Geo. IV. c. 55, s. 34], was Suspected per- sons in posses- by virtue of a certain search warrant, heretofore, to wit, on sioa O f w 00( j, at granted by J. P., Esquire, one of her Majesty's, &c., &c. on the oath of a credible witness, that, &c., [as in the search warrant], found in the possession of the said A. B., [or on the premises of the said A. B. at aforesaid, the said ash tree being then and there in the possession of the said A. B. with his knowledge], and the said A. B. being now here carried before me the said J. P., as such justice as aforesaid, doth not satisfy me the said justice that he came lawfully by the said tree, against the form, &c. Sect. 34, ante, p. Ixxxvi. On at twenty apples [describing' any plant, IQ root, fruit, or vegetable production"] of the value of six-pence, Stealing fruit A , P s-t n i ~ j r i ? or vegetables in the property of C. D., in a certain garden [orchard, nursery- a gar j en ground, hot-house, green-house, or conservatory"] of the said E. F. there situate, then and there growing, unlawfully did steal, take, and carry away [or unlawfully did damage (de- Damaging with stroy or damage) with intent the same then and there to intent to steal< steal, take, and carry away], against the form, &c. Ante, p. Ixxxvii. On at ten cultivated plants called cabbages, 17. commonly used for the food of man, [any of the vegetable pro- ^ al ' o ductions mentioned, 9 Geo. IV. c. 55, s. 36], of th& value of garden. 2s cccxxa APPENDIX. , the property of E. F., then and there growing in a certain inclosed \_or open] land of the said^. F. there situate, not being a garden, orchard, or nursery-ground, then and there in the said land unlawfully did steal, take, and carry Damaging with away [or omit the value and say, the property of, &c., un- intent to steal, lawfully did damage (destroy or damage) with intent the same then and there unlawfully to steal, take, and carry away, thereby then and there doing injury to the said E. F. to the amount of ], against the form, &c. Ante, p. Ixxxvii, 2nd offence as ante, p. cccxvii. 18. Receiving. 19. Abettors and accessaries. On at four ash saplings of the value of , then lately before by a certain ill-disposed person unknown, unlawfully stolen, taken, and carried away, [or state any offence of stealing punishable summarily under the Act], unlawfully did receive, he, the said A. B., then and there well knowing the said saplings to have been unlawfully come by, against the form, &c. See sect. 53, ante, p. Ixxxviii. For aiding or abetting the conviction may be in the same form as against a principal offender. For counselling or procuring, after stating the offence of the principal as usual, (both being included in the conviction), say, and for that the said M. N., the accessary, before the said offence was so committed as aforesaid, to wit, on , at afore- said, did unlawfully counsel and procure the said A. B. the offence aforesaid to commit, against the form, &c. Sect. 55, ante, p. Ixxxviii. MALICIOUS INJUKIES. 1. Journeymen, &c., spoiling goods. Summons, fyc., in the forms, ante, p. ccxcix, et seq. ; the conviction (which is the same as under the Larceny Act, ante, p. cviii) in the forms, ante, p. cccxvi-vii; offences may be described as follows : He the said A. B. being a journeyman Shoemaker [name any artificer, workman, jonrney man, apprentice, servant, or labourer] hired and employed by one C. D. in his said trade of a shoemaker on at , five pair of shoes then and there committed to the care and charge of him, the FORMS. CCCXX111 said A. B., did without the consent of the said C. D. by whom MALICIOUS he was then and there so hired and employed as aforesaid, INJURIES. wilfully, unlawfully, and maliciously damage, spoil, and de- stroy, thereby then and there doing injury to the said C. D. to the amount of one pound, against the form, &c. Ante, p. cii. On at between sunrise and sunset, to wit, 2. at the hour of three of the clock in the afternoon, one ash ?**$"* ^ tree [mention the whole or any part of any tree, sapling, shrub, der 5 value. or underwood'], the property of C. D. then and there growing, unlawfully and maliciously did cut and damage, [cut, break, bark, root up, or otherwise destroy or damage], the injury thereby done being under the value of five pounds, against the form, &c. Sect. 1 9, ante, p. cii. On at fifty cabbages, [mention any plant, root, 3. fruit, or vegetable production], the property of E. F., then Destroying L - j r T. j plants, &c., in and there growing m a certain garden, [garden, orchard, nur- gar dens, &c. sery-ground, hot-house, green-house, or conservatory], of the said E. F. there situate, unlawfully and maliciously did de- stroy, [or did damage with intent then and there to destroy the same], thereby doing injury unto the said E. F. to the amount of , against the form, &c. Sect. 21, ante, p. ciii. On at ten cultivated plants called cabbages, 4. commonly used for the food of man, [or for dyeing, &c., naming ro any of those enumerated 9 Geo. IV. c. 56, s. 22], the property ductions not of-E'. F., in a certain enclosed [or open] land of the said r J in S in E. F. there situate, not being a garden, orchard, or nursery- ground, then and there growing, unlawfully and maliciously did destroy, [or did damage with intent then and there to de- stroy the same], thereby then and there doing injury unto the said E. F. to the amount of , against the form, &c. Sect. 22, ante, p. ciii. For a second offence, use the form, ante, p. cccxvii. On at a certain gate [mention any fence of any 5. description, or any wall, style, or gate, or any part thereof] the a * a8 J D f S n es CCCXX1V APPENDIX. MALICIOUS INJURIES. 6. Notice to stay dilapidation. 7. Any wilful da- mage not be- fore provided for. property of E. F. then and there being, unlawfully and mali- ciously did break, throw down, and destroy, [cut, break, throw down, or in anywise destroy], thereby doing injury to the said JK. F. to the amount of , against the form, &c. Sect. 23, ante, p. civ. For a second offence see the form, ante, p. cccxvii. County of to wit. WHEREAS information on oath has been this day made before me, J. P., Esquire, one of her Majesty's Justices of the Peace in and for the said county, that you A. B. of , being the occupier of [or acting under and by the authority of, and in collusion with one M. N. the occupier of, as the case may be] a certain dwelling-house [or other building] situate at , in the said county of , do intend and are about to commit wilful and fraudulent waste by [stating the vcaste intended as in the affidavit] contrary to the Statute in that case made and provided. I do therefore hereby caution and admonish you, and all persons whomsoever, not to proceed to pull down or destroy, or otherwise injure such dwelling-house, or any part thereof, until special leave, license, and authority in writing for that purpose shall be given by me, the said jus- tice. Given under my hand this day of , at, &c. To .A B. and all persons whomsoever. Ante, p. cv. On at , a certain cart [naming real or personal property, public or private, for which no remedy or punishment is before provided] of E.F., then and there being, unlawfully and maliciously did damage and injure, against the form, &c., and I, the said justice, do therefore adjudge the said A.B. for his said offence to forfeit and pay the sum of the said sum of appearing to me to be a reasonable com- pensation for the damage committed as aforesaid, and I, &c. Sec. 30, ante, p. cvi. MASTERS AND APPRENTICES. County of "^ WHEREAS complaint and application ,. to wit. _Jhath been made to us, J. P. and M. A". Discharge of two of her Majesty's Justices of the Peace in and for the said FORMS. CCCXXV county, by C. />.,an apprentice to one A. B., Carpenter, upon MASTERS AND , , . ,. ,, . , p APPRENTICES. whose binding out no larger sura than was paid, for that the said A. B. on at , [describe the ill- un d er 25 Geo. treatment complained of~\ and the said A. B. having on this IL c - 8 > s< 3 - day, at appeared before us in obedience to a summons in that behalf duly served upon him, [or, and the said A. B. not having appeared before us in obedience to a summons in that behalf proved on oath to have been duly served upon him], we the said justices have examined into the matter of the said complaint ; and proof thereof having been now made before us upon the oath of , it manifestly appears to us, the said justices, that the said A. B. is guilty of the premises so charged upon him as aforesaid. WE DO therefore order and adjudge that the said C. D. be forthwith discharged from his said apprenticeship to the said A. B., and from the inden- tures in that behalf between them, and we the said justices do by this our warrant discharge him, the said C. D., accord- ingly, and do hereby certify the same in pursuance of the Sta- tute in such case made and provided. Given under our hands and seals this day of Ante, pp. cxiv, cxv. It may be by one J. P., ante, p. cxv. Conviction in the general form, ante, p. ccci, describing the offence as follows : On at did, [here describe the ill-usage complained o/J] he the said C. D. being then and there an apprentice to the Conviction of said A. B. [in his said trade and business of a carpenter], Q^^^ 9 and not more than the sum of having been paid upon f or ill-using an' the said binding of the said C. D. as aforesaid, against the apprentice, form, &c. Ante, p. cxx. Direction as usual, ante, p. cccvii. Whereas complaint has been made to me, J. P., one of 3 her Majesty's Justices of the Peace in and for the said county, Commitment of by C. D., Carpenter, on the oath of , that A. B. an apprentice to the said C. D., and upon whose binding out no larger sum than was paid, to wit, the sum of only was paid, did on at , [state the misconduct complained of,~] and the said parties having appeared before me CCCXXV1 APPENDIX. MASTERS AND on at , I the said justice have heard and ex- amined the matter of the said complaint, and it manifestly ap- pearing to me that the said A. B. is guilty of the premises so charged against him as aforesaid, I do* adjudge him the said A. B. to be imprisoned in the House of Correction, at , there to remain and be corrected and held to hard labour for the space of . THESE are therefore to command you the said constable to take and convey the said A. B. to the said House of Correction at , and to deliver him to the said keeper thereof, together with this warrant ; and I do hereby command you the said keeper to receive the said A. B. into your custody in the said House of Correction, there to remain and be corrected and kept to hard labour for the space of from the date hereof. Given under my hand and seal this day of ,184 . Ante, p. cxv. On whose oath, ante, p. 554, n. (b) ; cor- rection, 632. 4. Discharge in the like case. As before to the *, do order and adjudge that the said ap- prentice C. D. be forthwith discharged, &c., to the end, in the same words as the form of discharge in No. 1, supra. PUBLIC HOUSES. 1. County of Notice of infor- mation. to wit. Information and summons in the form, ante, p. ccxcix, &c. ; conviction in the summary form, ante, p. clxii ; see sect. 8, p. clxiii. 1 You are hereby required to take notice, J that I did on , (being within one week of the date hereof) , exhibit an information in due form of law before J. P., Esquire, one of her Majesty's Justices of the Peace in and for the said county, [if so, add, at Petty Sessions, in the said county], for that you [describe the offence as in the information^, contrary to the form, &c. Dated this day of C. D. [Informant's Signature.] To , [the defendant.] 3 & 4 Will. IV. c. 68, s. 23 ; ante, p. cliii. FORMS. CCCXXV11 The following are fur offences under these Acts : PUBLIC On, &c., at, &c., did obtain a license in due form of law 2 under an Act of Parliament passed in the third and fourth Licensed per- years of the reign of his late Majesty King William the Fourth, J^* *" entitled, " An Act to amend the laws relating to the sale of with the Clerk wine, spirits, beer, and cider, by retail in Ireland," to sell of tbe Peace - spirits, beer, and cider by retail, to be consumed in his said house where sold, and the said A. B. being so licensed did not within six days next after he so obtained such license, deliver, or cause to be delivered, to the Clerk of the Peace for the said county of , a note in writing under the hand of him the said A. B., or under the hand of any person by him authorized in that behalf, specifying, setting forth, or inserting the Christian and surname, and place of abode of him the said A. B., and the description of the house and premises in which spirits, beer, and cider were so licensed to be sold by the said A. B., and the place where such house and premises are situated, together with the Christian and sur- name, and the occupation or profession, and actual residence of each of the persons who became sureties for him the said A. B. 9 as such licensed person, upon his obtaining such license as aforesaid, contrary to the Statute, &c. 3 & 4 Will. IV. c. 68, s. 10; ante, p. cl. A. B. being a person selling, and licensed to sell, beer 3. and spirits, [beer or cider, spirits or wine], by retail, to be ^saie^n^ro- drank and consumed on the premises, to wit, at did hibited hours at aforesaid, on , [if in an information, add, and on w within two calendar months next before the exhibiting of this information], keep his house and place of sale, situate at aforesaid, open for the sale of spirits, wine, and beer, to per- sons not being travellers, inmates, or lodgers, in the said house and place of sale hereinbefore mentioned, between the hours of eleven of the clock in the night of the said day and seven of the clock in the morning of the day next following, to wit, at the hour of , contrary to the form, &c. Sect. 14; ante, p. cli; selling at prohibited hours may be in nearly the same form ; see No. 5, post. CCCXXV111 APPENDIX. PUBLIC HOUSES. 4. Open before two on Sun- days, &c. 5. Selling before nine on Mon- day. 6. Keeping tents at fairs, &c., open at prohi- bited hours. The penalty is for keeping open for sale generally, and it need not therefore be averred, that the sale was by retail, or to be drunk on the premises. R. v. Drumgoole, 1 J. & Sy. 179. A. B. being a person licensed, &c., as in No. 3, did, at aforesaid, on the said day being Sunday, [or as the case may be], keep his said house and place of sale situa- ted at aforesaid, open for the sale of spirits, wine, and beer, to persons not being travellers, inmates, or lodgers, in said house and place of sale before the hour of two of the clock in the afternoon of the said day, to wit, at the hour of on the said day so being Sunday as aforesaid, contrary to the form, &c. See 3 & 4 Will. IV. c. 68, s. 14 ; ante, p. cli. A. B. being a person licensed, &c., as in No. 3, did, at aforesaid, on the said day being Sunday, sell a certain quantity, to wit, one quart, of beer to one M. N., in and at the house and place of sale of him the said A. B., at aforesaid, (the same not then and there being a booth or tent, at any lawful or accustomed fair, or at any public races), between the hours of nine of the clock in the night of the said being Sunday as aforesaid, and nine of the clock in the morning of Monday then next following, to wit, at the hour of , the said M. N. not being then and there a traveller, or lodger, or inmate of such house and place of sale hereinbefore mentioned, contrary to the form, &c. 6 & 7 Will. IV. c. 38, s. 4; ante, p. clvii. If there be more than one sale, describe each sale separately as a separate A. B. being a person licensed to sell by retail, did, at a certain time between the first day of April and the first day of the following month of October, that is to say, on the day of instant, at , have and keep a certain booth, (not being a house duly licensed for the sale of spirits), at a certain lawful and accustomed fair, to wit, the fair of , open for the sale of spirits, wine, and beer, between the hours of six of the clock in the afternoon of the said day and nine of the clock on the morning following, to wit, at the hour of on the said , contrary to the form, &c. FORMS. CCCXxix If the offence be selling, instead of have and keep, &c., say, PUBLIC on at in and at a certain booth, &c., (not being, HOUSES - \ 4 c TIT Ar Selling the.ein. &c.), at a certain, &c., sell to one M. N. a certain quantity, to wit, one quart of , between the hours, &c., as before, stating each sale as a separate offence. See 6 & 7 Will. IV. c. 38, s. 5; ante, p. clviii. On at A. B. of being a person selling, and licensed to sell, wine, spirits, and beer by retail, to be ho^seTwhere drunk and consumed on the premises, at divers persons, persons are to wit, M. N. and N. O. were found in the house and place of [ t sale of the said A, B. situate at aforesaid, at an hour hours. and time during which the sale of spirits and beer is pro- hibited by an Act made and passed in the third and fourth years of the reign of his late Majesty King William the Fourth, to amend the laws relating to the sale of wine, spirits, beer, and cider by retail in Ireland, that is to say, between the hours of of the clock in the night of and of the clock in the morning of then next following, to wit, at the hour of which said persons then and there were and recently had been drinking, tippling, [and gaming] therein, the said per- sons not being then and there travellers, or lodgers, or inmates of such house or place of sale, against the form, &c. See 3 & 4 Will. IV. c. 68, s. 19; ante, p. cliii. If it be within hours prohibited by 6 & 7 Will. IV. c. 38, s. 12, ante, p. clix, alter the title of the Act accordingly. On at was found drunk in a certain public 8- road, [street, square, lane, road-way, or other public thorough- 4*^ in fare or place'], there situate, called , against the form, &c. He street, &c. Ante, p. clix. On, at, he the said A. B. not being a person 9. duly licensed to sell beer, cider, or spirits, did then and there U lic ensed per- sell a certain quantity of beer, to wit, one quart of beer to one M. N., against the form, &c. Sect. 19, ante, p. clxi. On at he the said A. B. not being, &c., as in O r keeping for No. 9, did keep for sale a certain quantity of spirits, to wit, sale< one puncheon of spirits, against the form, &c. 2 & 3 Viet. c. 79, s. 2, ante, p. clxiii. eccxxx APPENDIX. PUBLIC HOUSES. 10. Commitment for being found County of to wit. To the keeper of You are hereby required to detain in your custody the dVinklngVn'un" body of A. B. for the space of twenty-four hours, to be com- licensed pre- puted from the hour of o'clock in the forenoon of this day (unless the penalty or forfeiture hereinafter mentioned shall be sooner paid) ; who was this day convicted before me ./. P., Esquire, one of her Majesty's Justices of the Peace in and for the said county, upon oath, for having been found on at in certain unlicensed premises, to wit, in the house of one M. JV. at , at or over the outer door of which house no sign or notice is posted or written, importing that the owner or occupier thereof is licensed to sell spirits, said house being unlicensed, and in which spirits were then kept for sale, and for having been then recently before drinking and tippling there, contrary to the form of the Statute in that case made and provided, and which said A. B. was thereupon adjudged by me, to have .forfeited the sum of five shillings, which penalty hath not since been paid although demanded. Therefore the said A. B. you are in safe custody to keep for the said period, or until the said sum be paid. And for so doing, this shall be your sufficient warrant. Given under, &c. 2 & 3 Viet. c. 76, s. 4, ante, p. 296. FRIENDLY SOCIETIES. 1. Frauds. See the General Forms, ante, p. ccci, &c. ; describing the justices before whom the proceedings are, as justices in and for and residing in the said county ; ante, p. 557 ; describe the fraud as follows : For that he the said C. D. \tlie complainant} is an officer of a certain Friendly Society called , held at in the said county, and duly appointed by the said society for the making of this complaint, and that the said society was and is established and held by virtue of and according to the Statutes in that case made and provided, and respectively made and passed in the tenth year of the reign of his late Majesty King George the Fourth, and in the fifth year of the reign of his late Majesty King William the Fourth, and that the rules, FORMS. CCCXXX1 orders, and regulations of the said society were and are duly FRIENDLY confirmed and filed according to the said Statutes, and that SOC1ET1E>; - on at one A. B. [the defendant] of being [or representing himself to be] a member [or an officer, &c., see the persons enumerated 10 Geo. IV. c. 56, s. 25, ante, p. clxviii], * did then and there by a certain false representation and imposition, to wit, by [describe how~] y fraudulently obtain possession from of the sum of , part of the monies of the said society ; whereas [here negative the truth of the representations used]', for which said offence there is no especial provision made in the rules of the said society ; contrary to the form, &c. */ls before to the * having then and there in his possession 2> a certain sum of money, to wit, the sum of , belonging m0 n e . C to the said society, did then and there fraudulently withhold the same ; for which said offence, Sac. Use the general forms, ante, p. ccci, et seq. ; describe the offence as follows : upon the Lord's Day, and within ten days now last Working on past, to wit, on at , being then and there of the age Sunda >' 8 - of fourteen years and upwards, and being then and there a tradesman, to wit, a carpenter, did do and exercise certain worldly labour, business, and work of his ordinary calling as such carpenter as aforesaid, the same not being a work of ne- cessity or charity ; that is to say, that he the said A. B. did then and there, [stating- some act in the way of his business], contrary to the form, &c. Ante, p. cxci. County of ^ WHEREAS complaint and information WAGES. to wit. Jhas been made before me /. P., Esq., 1. one, &c., by C. D. of , Labourer, that he the said C. D., [state the nature of the hiring or work for which the wages are due], and that the sum of is now justly due and owing by you the said A. B. to him the said C> D. for such his [work and labour] as aforesaid, but that he the said C. D. has been refused payment of and cannot receive his said CCCXXX11 APPENDIX. WAGES. wages. These are therefore to require you the said A. B. personally to be and appear before me at on at the hour of , then and there to answer the said com- plainant and information. Ante, p. ccvii. See the other forms of summons, ante, p. ccxlvi, &c. County of ^ WHEREAS information and complaint Order for pay- ment of wages. to wit. J hath been made before [me] J. P. Esq., one of her Majesty's Justices of the Peace in and for the said county, by C. D. of , that he the said C. D. was on at hired by A. B. of residing at in the said county, to for the term of for the wages of ; and that he the said C. D., hath duly performed the said service, [stating the hiring, c., for which the wages are claimed according to the fact], and that the sum of is now justly due and owing by the said A. B. to him the said C. D. for and on account of his said service, but that he the said C. D. hath been refused pay- ment thereof; and the said A. B. having been duly summoned to appear before hath appeared according to such summons. Now, therefore, I [_or t hath neglected and refused to appear according to the said summons. Now, therefore, it having been now proved on oath of that the said sum- mons, in writing, was, on at . delivered to the said C.D., or mention any of the modes of service allowed, I] the said justice have examined into the matter of the said complaint on the oath of , and upon due consideration had thereof, DO HEREBY determine, order, and adjudge, that the said A. B. shall forthwith [or on or before the day of, naming a day, within ten days'], pay to the said C. D. the sum of for his wages, aforesaid. Given under, &c. Ante, p. ccvii. See fully, ante, p. 638. If a sum for de- tention from home, Sfc., under s. 5, be awarded, the addition may readily be made to the above form. Dishes! war- County f 1 T M N -> [sub-inspector], of, &c. rant thereupon. to w ^' _} WHEREAS complaint and information hath been made before me, J. P., Esquire, one of her Majes- FORMS. ty's Justices of the Peace in and for the said county, by C. D., of , Labourer, that he hath been refused pay- ment of certain wages due to him for by A. B. of , Gentleman, residing at in the said county. And whereas the said C. D. having been duly summoned to appear before , hath appeared according to such summons [or state a refusal to appear and proof of service as in No. 2], and I the said justice having examined into the matter of the said complaint on the oath of , upon due consideration had thereof, did determine, order, and adjudge that \stating the judgment as in the order], and whereas the said A. B. did not on the said , pay the said sum so adjudged to be due to the said C. D., nor hath he yet paid the same or any part thereof, but on the contrary, therein hath made default ; and whereas the said C. D. hath thereupon now required of me, the said justice to issue my warrant for the levy of the same. THESE are therefore to command you the said constable to make distress of the goods and chattels of the said*/^. B., and if within the space of next after such distress by you made, the said sum of be not paid, that then you do sell the said goods and chattels so by you distrained, and out of the money arising by the sale thereof that you pay the said sum of to the said C. D., rendering the overplus, if any there be, to the said A. B. Given under my hand and seal this, &c. Ante, p. ccviii; see fully ante, p. 657, &c. cccxxxm WA<;LS. Whereas in order to adjudge the quantum of gratuities to Adjudication be paid to the several persons who acted in saving and pre- serving the cargo and materials of the ship Victoria of Lon- don, whereof J. S. is Master, stranded [or in danger of being stranded, &c., as the case may be] near , in the county of , on , a meeting of us, J. P. and M. JV., Esquires, two neighbouring Justices of the Peace, was on the day and year hereunder written duly held at , pursu- ant to notice to us for that purpose given as well by the said master of the said vessel [or owner of the goods, Sfc.] as by E. F., Collector of Customs of the port of CCCXXX1V APPENDIX. SALVAGE. Be it remembered that we the said justices having fully considered the particulars of the claims, charges, and demands charged to be paid and expended by, and due to, the said several persons respectively, amounting in the whole to do hereby in pursuance of the Statutes in that case made and the power to us thereby given, declare and adjudge that the several and respective sums of money contained in the annexed account are justly due and payable to the several persons re- spectively to whose names the said several sums are annexed, clear of all deductions, for their trouble and services in saving and preserving the said cargo and materials, [or ship and cargo, or goods, as the case may be], and the quantum of the money so due to the said several persons for salvage of the same is hereby settled and adjusted at the said sum of In testimony whereof we the said justices have hereunto set our hands and seals this day of , at , aforesaid. [Seals.] M. N. J. P. Subjoin a list oftlie claimants andoftlie sums awarded to each ; Towns. 69. See ante, p. ccxxxvii, et seq. Commitment of County of ^ To the gaoler of the county gaol at a dangerous lunatic. to w *t- j in the said county. WHEREAS it appears to us J. P. and L. M. y Esquires, two of her Majesty's Justices of the Peace in and for the said county, by the information on oath of C. D. of , that A. B., late of was on at discovered and apprehended under circumstances denoting a derangement of mind and a purpose of committing a crime, for which if com- mitted the said A. B. would be liable to be indicted, that is to say, [stating what A. B. did] ; and the said A. B. hath been thereupon brought before us the said justices. And whereas we, the said justices, having called to our assistance JV. O., a surgeon legally qualified for that purpose, upon his advice and opinion, and upon view and examination of the said A. /?., and upon the informatian of C. D. aforesaid, are satisfied that the said A. B. is a dangerous lunatic. THESE are therefore in her FORMS. CCCXXXV Majesty's name, to charge and command you to detain in LUNATICS. your custody, in the said , the body of the said A. B., and him there to keep in strict custody until or unless he shall be discharged by order of two Justices of the Peace, one whereof to be one of us, the said justices, or by the Assistant Barrister presiding at the General Quarter Sessions for the said county, or by one of the judges of her Majesty's superior courts in Dublin, or by the Lord Chancellor, or Lords Com- missioners of the Great Seal, or until the said A. B. shall be removed to the proper lunatic asylum, by order of the Lord Lieutenant, or other chief governor or governors of Ireland, or otherwise legally discharged ; and for so doing this shall be your warrant. Given under our hands and seals this day of , &c. See ante, pp. 706, 707. County of "1 WE two of her Majesty's Jus- DESERTED to wit. I tices of the Peace for the said county, j having been called upon by , and at his request having Certificate of premises being together gone to and viewed all that part of the lands of , deserted. situate, lying, and being in the parish of and barony of and county of in the possession of as tenant thereof, containing acres roods and perches, or thereabouts, on the day of , between the hours of ten o'clock in the forenoon and four o'clock in the afternoon of the said day, do certify that the premises aforesaid then ap- peared to us to be deserted and left unoccupied by the said , and that there is not any distress on the same suffi- cient to countervail the arrear of rent, being one-half year's rent, ascertained by the affidavit of A. B., the landlord thereof, [or the bailiff of the landlord thereof, as the case may be], now due thereout after all just and fair allowances. Given under our hands and seals this day of To the Assistant Barrister for the county of Witness present, [Seat], CCCXXXV1 APPENDIX. ? County of ~) , Landlord, [or bailiff to the land- ^ J enable the Js. _ to wit. J lord], of the lands and tenements herein- P. to grant the a ft er mentioned, maketh oath and saith, that of in the above. county of is justly and fairly indebted to in the sum of , being for one- half year's rent of his holding, [describing it as in the civil bill], under due and ending the day of last, after all just and fair allowances. And deponent saith, that the said sum or any part thereof hath not been tendered or paid to by the said or by any person or persons on his behalf. Sworn before me this day of These forms are prescribed by 58 Geo. III. c. 39; see ante, pp. 710,711. INDEX, ABDUCTION, when a felony, 402; form for commitment, cclxviii ; of an heiress, 440; form, ccxc; any girl under sixteen, 441. Kidnapping, 441. ABETTOR in misdemeanors, 441 ; in felony, see Accessaries ; if present, are prin- cipals, 429; for offences punishable summarily, 551; in particular offences, see the head required. ABORTION, procuring, 402 ; form, cclxviii ; surety of good behaviour, 525. ABSCONDING tenant, proceeding against, 710 ; forms, cccxxxv. Absconding from Poor-House, &c., ccxxxvii ; apprentices absconding, cxv. ABUSIVE language to a J. P., 67 ; by coachmen, clxxxvii. ACCEPTANCE, forging, 413 ; form for, cclxxiv. ACCESSARIES in felony, 402, 403; none in misdemeanors, 441 ; or in treason, 439, and see Abettors, supra ; receivers under Post-Office Acts, 428 ; generally, 431 ; jurisdiction over accessaries in different counties, 55 ; in homicides abroad, 58; forms for describing offences of accessaries, cclxviii. ACCOMPLICES, evidence of, receiving, 315,316; practice, after accomplice is admitted by the J. P., 316, n. (a); pretended accomplices, 316, n. (a) ; duty of J. P. before receiving, 316; cannot promise pardon, 317; claim to pardon conditional, 317; when express promise given, 319-20; convictions after pro- mise by J. P., 318, n. (a) ; accomplices charged with other felonies, 319 ; com- mitting accomplices, 319; form of commitment, cclxi. ACCOUNTS by clerk of Petty Sessions, 683, 94; form of return, cclxv; of fines and penalties by constabulary, 653, 655, &c. ; penalty for neglect, 651, n. (a) ; accounting for penalties under Larceny and Malicious Injuries Acts, Ixxxix, cviii ; by pawnbrokers, cxxix. ACCUSING of infamous crime to extort, 434 ; accusing to extort money gene- rally, 438 ; form for, cclxxxviii. ACKNOWLEDGING recognizance, &c., in another's name, 403. ACQUITTAL without entering on the defence, 606; not questioned by B. R., 606, n. (c); certificate of, a defence in assaults, 608, ii, iv; form of, cccxii; CCCXXXV111 INDEX. ACQUITTAL continued. defence under Unlawful Societies' Acts, clxxx ; evidence must be set out in record of acquittal, 611, 627, n. (a). Form of, ccciv. ADJOINING counties, constabulary in, 27, 28; special constables for, 39, 40; Petty Sessions districts in, 85 ; Js. P. acting for, 51 ; under Customs Acts, 59; execution of warrant of J. P. for, 196 ; conveying prisoners, 224 ; capital of- fences in local jurisdictions, trial in, 486, n. (a) ; trying offence in county of a city or town in, n. (d), 517, 518; offences under Coal Act, xxxiv ; Harbour Act, Ixxxii ; compensation for malicious injuries on verge of, 735. ADJOURNMENT of hearing in summary proceedings, 593, 594, 606 ; to be stated in record, 629 ; of Presentment Sessions, 724 ; what to be done at adjourned sessions, 726 ; new summons under Wages Act, ccviii; of arbitration under Act as to workmen's disputes, ccxxv, and see ccxxviii ; and for provisions under particular Statutes, see the head required. ADJUDICATION, see Judgment. ADMIRALTY, jurisdiction of Js. P. over offences cognizable by, 54, 57; what offences in its jurisdiction, 57, and ib. n. (a) ; how punishable and where tried, 427, 517, n. (a); commitment for offences in jurisdiction of, 489; bail for, 396; proceedings, how returned, 516, 517, n. (a) ; condition of recogni- zances for, 517, n. (a); advocates and proctors exempt from being jurors, 716, in note. ADVERTISING like bank notes, a misdemeanor, 444-5 ; "no questions asked," 448; for tenders for county works, 724; if expense exceeds 100, 725; if exceeding 50,728; duty of secretary of Grand Jury, 725-6; adulterations by bakers, millers, &c., viii, x. AFFIRMATION by Quakers, &c., 6, n. (c), 161 ; false, punishable as perjury, 441-2 ; at elections, 451 ; forms of affirmations, ccxlvii. AFFRAY, special constables in cases of, 37, &c. ; what it is, 118; distinguished from riot, &c., ib. ; from assault, 119; words will not make, ib. ; interpo- sition of constable, and arrests for, 124, 128; powers of J. P. 130; breaking outer doors for, 199; flight or resistance to arrest for, 206, et seq. ; detaining prisoners arrested for, 218 ; or suffering them to go at large, 218-19; Bail for, 379, 380; surety of peace for, 520; is a misdemeanor, 442; fo/m for, ccxc. AGENTS of masters not to act as Js. P. under Act for Arbitration of Disputes, 67, ccxxv ; may be treated as principals, when, ccxxvi ; statements in informa- tions for embezzlement by, 171 ; misapplying, pledging, &c., goods or money, 452 ; forms for, ccxcii, ccxciii. AGREEMENTS, when and how set out in convictions, &c., 571-2. ALDERMEN exempt from being constables, 46 ; Js. P. for Dublin, 2. ALE HOUSES, see Public Houses. ALIENS, when competent to be on juries, 716, note. ALLEGIANCE, seducing from, 403 ; where triable, 397, n. () INDEX. CCCXXX1X ALTERNATIVE statement, when bad in convictions, &c., 567, and n. (c); alilcr in orders, 339; bad in commitment in execution, 672. AMENDMENT of convictions before returning them, 643 and note ; not allowed of orders, 644 ; of commitments, 679. AMMUNITION Act, regulating the importation, removal, and sale of, 265, etscq ; see fully, Arms; selling or possessing soldier's, 286; ANATOMY, offences as to, misdemeanors, 442. ANIMALS, how described in informations, 170 ; how disposed of when taken un- der search warrant, 253 ; keeping dangerous, 461 ; injuring or stealing animals ordinarily confined, Ixxxv; being found in possession of, ib. ; restoring to owner, ib. ; forms, cccxx ; cruelty to, xlii, et seq., see Cruelty ; tresspassing, or damage feasant, cxcvii, &c., see Trespass; impounding when wandering on roads, Ixxv ; in towns, &c., ccxliii. ANNUITIES, forgeries connected with Government, 414. APOTHECARIES exempt from being jurors, 716, note ; weight when to be used, ccxiii. APPEAL in general. Fee for, 96, and see 87 ; action if J. P. does not return the conviction, 645 ; against rate, effect of, as to distress, 658, and n. (/) ; sus- pending enforcing of execution, 651, 664 ; defendant committed cannot be discharged on, 681 ; fresh evidence on, 690, and n. (a); when the right of appeal exists, 689-90 ; effect of excepting commitment, 690, n. (a) ; how more extensive than relief by certiorari, 690 ; of informing the party of his right to appeal, ib. ; of notice of appeal, ib., et seq. ; reasonable notice, 691 ; when to be in writing, ib ; by the party aggrieved, ib. and n. (c) ; stating grounds of appeal, ib. ; "clear days" and time exclusive or inclusive, ib. ; immediate notice, 691, 692; to whom notice to be given, 692; recognizance of ap- peal, ib. ; amount, condition, ib. ; to what sessions, 693 ; " next'' sessions, ib. and n. (a) ; from what the time is to be counted, 693 ; when from judgment, ib. ; when from execution, 694 ; " three months, first giving notice," 695 ; if no period limited, 694. Form of notice, cccx ; of recognizance, ib. Appeal under particular Acts. Arms Acts, 258 ; under Bread and Flour Act, xvii ; Bricks, xx ; Burning Land Acts, xxvii, xxviii; Chimney Sweep Act, xxxiii; Combination Act, xl ; Cruelty to Animal's Act, xlviii ; Game convictions, Ixiv ; under Harbour Act, Ixxiii ; under Larceny Act, xcii ; Malicious Injuries' Act, cviii ; from discharging apprentices, cxiii; under Acts relating to masters and servants, &c., cxv ; for punishing workmen, cxviii ; Poor Law Act, cxl ; Act for regulating pounds, cxlv ; Public-House Acts, cliii, cliv ; Act as to toll boards, cxcv; under Act relating to trespass, and meares and fences, cci, ccvi ; Act for recovery of wages, ccix ; Act as to the sale of corn, ccx ; Weights' and Measures' Act, ccxix ; under the Salvage Acts, ccxxxvii. APPEARANCE, time to be allowed for, 582; and for provisions in particular Acts, see the head required ; day for, must be correctly stated, 582-3, 624 ; CCCX1 INDEX. APPEARANCE continued, cures defects in summons when, 583, and n. (/), 594, and n. (d); may be by attorney, when, 594 ; should be stated in conviction, ib., 624 n. (c) ; proceed- ing in default of, 586, and as to the evidence, 611, 612 ; appearance or non- appearance, how stated in conviction, 624. APPLICATIONS for presentments, 721, &c., see fully Presentment Sessions. APPRAISER, pawnbroker's appointment of, and sales by, cxxviii, cxxx; in Dub- lin, cxxxiii ; of damage by cattle trespassing, cci, &c., see fully Trespass. APPRENTICES to chimney sweeps, discharging, xxxi ; when indentures cease, ib. ; limiting number of, (combination), xxxvii ; banting or fowling, lix, Ix ; wilfully damaging goods or work, cii ; turning over, on death or failure of masters, cxiii ; where binding is under 5 may have relief from Js. P., cxiv, cxv ; punishment or discharge on complaint of, cxv ; need not be on oath of the master, 554, n. (&) ; convictions must state the amount of bind- ing, 562; meaning of correction, 632; appeal, cxv; proceedings maybe before one J. P., ib. ; apprentices to trades running away or refusing to work, cxv, cxvi; masters or mistresses ill using apprentices, cxix, cxx. Forms. Discharge on complaint of master, cccxxiv ; of apprentice, cccxxvi; conviction of master for ill usage, cecxxv ; commitment of apprentice for misconduct, ib. ; conviction for injuring work, cccxxii. APPROVEMENT, ancient practice of, 318, n. (a), 319, n. (c), see Accomplice. AQUEDUCT, injuring, 404 ; form for, cclix, ARBITRATION of friendly societies' disputes, clxx ; if society do not appoint arbitrators, or they do not act, clxxiii j of damage by cattle trespassing, &c., cxcvii, see Trespass ; repair of fences, cxcix, cciv, see Fences ; of workmen's disputes, ccxix, seeWorkmen ; of damage by tenants cutting trees, 7 10, n. (a). ARMS, offences connected with ; unlawful possession of arms of constabulary, 25 ; of soldiers, and search warrant for, 286 ; of special constables, 41 ; giving in cases of riot, 131 ; training meetings to, unlawful when, 144-45 ; armed meetings, how dispersed, 144; armed parties, 145-46; ancient Acts, 145, and n. (a) ; supplying for riotous purposes, 433 ; used in processions, 143 ; in meetings at public-houses, 293 ; smuggling by armed parties, 437 ; or robbing, 434 ; societies for purchasing, 472, clxxxii, see Unlawful Societies; forcibly taking, (whiteboy), 147, 474; armed parties, (whiteboy), 473; arms used in offences to be kept for the trial, 173. Forms for whiteboy offences, ccxcvi; robbery by armed persons, cclxxxvi. Registration of arms, notice and affidavit, 256-7, see s. 2, p. 258 ; licenses, 257 ; time for registering, 259 ; registry by Clerk of the Peace, ib. ; to be open for inspection of J. P., ib. ; appeal on refusal to grant license, 258 ; no fee to Clerk of the Peace, ib. ; certificate when party licensed cnanges residence, ib. ; penalty for having unregistered arms, 258, 259; INDEX. CCCXli ARMS continued. levy and application, 264-5 ; proviso as to soldiers and militia, 262 ; remission or mitigation of penalty, 259 ; forfeiture of unregistered arms, ib. ; or arms kept after license withdrawn, 261 ; not enforced in certain cases, if notice given, 259 ; delivering inventory, 260 ; withdrawing license, ib. ; delivering up arms, 261 ; licensing blacksmiths, ib., et seq. ; making arms without license, 403 ; having in possession improperly, 403, 442 ; search for formerly, 262; for pikes, &c., 263; how now made, on suspicion of Js. P., ib. ; when information on oath is given, 264 ; powers in making search, 262 ; arms seized how disposed of, 264 ; account for Lord Lieute- nant, ib. ; return to sessions, 265. Manufacture, sale, &c., of arms and ammunition ; none to be imported with- out license, 265 ; except for personal defence, ib., 266 ; seizure and arrest of offenders, penalty, ib. ; no gunpowder to be manufactured, or cannon or gunpowder kept without license, ib. ; penalty, seizure, forfeiture, 267; annual license for sale of gunpowder, ib. ; or it may be seized, ib. ; sus- pending or cancelling licenses, 268 ; penalty and seizure for selling during sus- pension, ib. ; regulations .as to the sale of gunpowder, 268, 269; arms and ammunition not to be removed without a license, search, and seizure, 269 ; except arms for defence, &c., ib. ; gunpowder not to be kept by persons un- authorized to have arms, 270 ; makers in Dublin and Cork, 270 ; removal of gunpowder, notice to J. P., and his duty thereon, 270; verifying returns, 271 ; removal under a manifest only, ib. ; to be removed in casks or liable to seizure, ib. ; annual license for making or repairing arms, 271-2 ; seizure of arms made without, 272 ; accounts verified before J. P., ib. ; search war- rant for arms or ammunition had contrary to this Act, ib. ; recovery of penal- ties, ib. ; mitigation or remission, ib. ; duration of Arms Acts, 272-3. ARMY, officers in, exempt as jurors, 716; forgery and personation as to pay and pension, 416 ; frauds connected with, 462; exorbitant sale of commis- sion, 461 ; soldiers or officers killing game, Ivii, Iviii. ARRESTS, generally no privilege from, in criminal cases, 97 and n. (6) ; and may be at any time, 98 ; what arrests may be on Sundays, ib. and n. (a), and 680 n. (g) ; at night, inconvenient, 98 ; words cannot constitute an arrest, ib. ; may sometimes be without touching, 99 ; but advisable to touch the person, ib., 195 ; degree of force, 99 ; giving a blow, 128 ; where doors may be broken, 198, et seq., see fully Breaking Doors; when a house pro- tects from, 203-5 ; officer may break out, 205 ; distinction as to powers in arrests for felony and misdemeanor, and in cases of flight and resistance, 206; power to summon assistance, 207 ; as to aid of military, 207-8 ; pursuit beyond the county, 208-9; incases of flight, 209; resistance, 210 ; what cccxlii INDEX. ARRESTS continued. necessary lo justify extreme measures, 211 ; old process of hue aud cry, 212, &c. Arrest without warrant by constable generally advisable to have a warrant, 101; but it is imperative on constable to arrest without warrant ib. ; for felony, 101-2; on charge or suspicion, 102-3; party accompanying con- stable, 103 ; suspected persons at night, 104 ; " reasonable" suspicion, 104-5 ; not to arrest in expectation of a charge, 113 and n. (a) ; arrest to prevent a felony, 105 and n. (c) ; or other crime, 105; when dangerous wound has been given, ib. ; generally not for misdemeanor, except breach of the peace, 106; or perhaps public scandal, 107 n. (a); for attempted rescue, 232; for offences under Statutes, Malicious Injuries' and Larceny Act, 107-8 ; Pawnbroker's Act, 108; what required to justify such arrests, 108-9; arrest for signalling smugglers, 109 ; for quitting quarantine, ib. ; of de- serters, 110 and n. (a); defaulters in militia, 110; under Public House Acts, 110,296, &c., see fully Public Houses; of persons illicitly distilling, 285 ; for cruelty to animals, 111, xlv ; of persons refusing to produce game certifi- cate or giving false names, Ixviii ; riding or driving on wrong side of road, without owner's name, without reins, &c., Ixxii, Ixxiii ; conveying spirits into gaols, cxlvii ; of railway servants drunk, negligent, &c., clxv ; persons obstructing railway officers or trespassing on railways, clxvi ; transient of- fenders under Act for improving rivers, ccxlii ; disorderly persons under the Town Act, ccxliii ; for breach of the peace, 124 ; in constable's presence, ib. ; companions of offender, 124-5 ; to prevent violence, 125 ; where threats or disturbance, ib., 126-7 ; upon complaint of another, 125-6 ; not for mere angry words, 126 ; nor for affray, &c., ended, ib. ; unless to prevent renewal or where dangerous wound is given, 127, &c. ; taking charge of those arrested by others, ib. ; caution to constables interposing, 127-8 ; in cases of riot, &c., and caution therein, 128-9, 137; preventing prize fights, 130; arresting offenders under Convention Act, 142 ; or being trained to arms, &c., 144 ; or in parties unduly armed, 145-6; of whiteboy offenders, 148; in other cases of unlawful assembly, &c., 149; summary of cases in which arrest without warrant may be made, ib. Arrest without warrant by J. P., 112 ; where constable may J. P. may, 112, 130, 150, sed quare, 112, n. (a), (6) ; by verbal order of J. P., 112, 130, 133; not to be made in expectation of a charge, 113 and n. (a); or on a mere verbal charge of misdemeanor, 113; arrest of suspected strangers, 114; of beggars, &c., to prevent contagion, ib. ; arrest by or by his command for affray or assaults, 130 ; in cases of riot or tumult, ib. et seq., and see fully Riot ; in dispersing assemblies under Convention Act, 142 ; meetings trained INDEX. cccxliii AR RESTS continued. to arms, 144; or unduly armed, 145-6; warrant subsequently issued will not justify, 151 ; advantages of first issuing a warrant, 150-1. Of arrests under warrant, see fully Warrant. Of cases where an actual arrest cannot be made ; when party is in previous custody, 223, et seq., and see fully Prisoner ; when supersedeas has been is- sued, 138, see fully Supersedeas. When warrant is defective, 241, &c., see fully Warrant. As to offences connected with arrests. Assault to prevent or resist, 443 ; wounding, &G., to prevent, 421, sub calc.; statements proper in informations for resisting, 172-3 ; escape or suffering it when felony, 410-11 ; when mis- demeanor, 452; prison breaking, 429, 466; rescue, 431, 467; rescue by smugglers, felony, 437 ; arresting clergymen, 447 ; preventing arrest or rescuing under Act relating to British spirits, 432. Forms, shooting at, &c., to resist, cclxxviii ; assault, to prevent, cclxxxix. Conduct of constables after arrest. As to carrying prisoner before J. P., 103, 185, 215 ; after arrest for assault or breach of the peace, 124; before what J. P. the prisoner is to be carried, 215-16 and n.(a) ; duty different if arrest after escape, and if after flight, 230 and n. (6); after arrest, under warrant issued in one county and backed in another, 189, 220 ; if issued in Great Britain and backed in Ireland, 191 and n. (a), 221 ; if offender be arrested in a county other than where the offence was committed, 208, 222, 488 ; if arrested under a peace warrant, 531 ; when arrested under a search warrant, 203; restraint to be imposed on the prisoner, 2l5j keeping pri- soners separate, 215-16; constable committing prisoner to gaol, 217, in note ; detaining in constable's custody till next day, 217-18; detaining prisoner arrested for breach of peace, 218 ; to collect evidence, ib. ; detaining pri- soner after commitment, 491-2 ; suffering to go at large to find sureties, 219 ; caution, ib. and 230 ; retaking prisoner after, 229-30 ; searching prisoner, 219 ; taking his money, ib. ; not to promise, threaten, or question the pri- soner, 219, 335, 343 ; transmitting prisoners, and of transmit warrant, 222-3 ; conveying prisoners through adjoining counties, 224 ; expense of conveying prisoners, 224-25 and n. (a) ; presentment for, if arrest in G. B., 731 ; duty in conveying petty officers and seamen, 370-1 ; how long constable is re- sponsible for prisoner, 225, 490 ; constable to keep the warrant, 225 ; re- turn to J. P., 226 ; receipt for prisoner, ib. ; powers of officer in case of escape or rescue, ib. et seq. see Escape, Rescue ; duty of constable receiving confession, 337, 342, see Confession. ARSON, 403 ; forms for felonious burnings, cclxx. ARTICLES of the peace, 519, 534, 536, n. (a) ; 540, n. (e). CCCXliv INDEX. ARTIFICER, see Workman. ASSAULT, distinguished from affray, 119; from battery, 124, n. (a): arrest for, in view of constable, 124 ; to prevent, when threatened, 125-126, n. (a); breaking doors to arrest for, 200-1 ; power in case of night, resistance, &c., 208, 210, &c. ; detaining or suffering party to go at large, 218-19; surety of peace for assaults, 520; J. P. acting in his own case if assaulted, 57. As to indictable assaults, statements proper in informations for, 172-3; fee for, 96, and see 87 ; on excise officers where cognizable, 57 ; bail for wound or death in consequence of, 380 ; bail for violent assaults, 379-80 ; amount of bail after indictment for excise assaults, 385 ; house-breaking ac- companied by assault, 418; assaults connected with illicit distilling, 419 ; infamous crime, ib. ; violent assault accompanying piracy, 427 ; under Act relating to British spirits, 432 ; riotous assaults which are felony, 432-3; assault with or in attempt to rob, 434 ; impeding shipwrecked persons, 436 ; dangerous assaults by smugglers, 437 ; common assault, 442 ; com- bination assaults, 443 ; violent assaults, ib. ; on officers saving wreck, ib. ; on officers, to commit felony, resisting arrest, &c., 433-4 ; for money won at play, 444 ; on officers of fisheries, 454 ; false imprisonment, 444 ; on excise officers, 453 ; on officers, &c. preventing smuggling, 470. Summary jurisdiction for ; binding complainant to prosecute at Petty Sessions, 93 ; though committed by several are separate offences, and incur seve- ral penalties, 617; but joint award bad, 617; improper to require surety of peace after conviction for, 521, n. (/) ; to prevent trade in grain, i; common assaults, summary conviction for, penalty, &c., ib. ; certificate of acquittal, ii ; conviction a bar to other proceeding, ib. ; when offence fit sub- ject for indictment, and when summary jurisdiction should not be exercised, ib. ; summons or warrant, ii, iii ; limitation, iii ; want of form, no certiorari, ib. ; assaults with stones or loaded weapons, iv ; penalty paid to party in- jured, when, ib. ; pardon for nonpayment, ib. ; when justices may dismiss and so certify ib. ; when not for injury being trifling, v ; when the case shall be sent to assizes or sessions, ib. ; when summary jurisdiction not to be exer- cised, ib. ; other provisions as to summary proceedings for, ib. ; duration of Act, ib. Other assaults punishable summarily; on special constables, 41, 42, see Constables, Special ; on Js. P., &c., under Public House Acts, 291, &c. see Public Houses; officers of Board of Health, v ; public works, v, TI ; survey or valuation of lands, ccxliii ; under Prison Act, cxlvi ; gaoler punish- ing petty, cxlvi ; under local Acts, vi ; under Grand Jury Act, Ixxix. Forms. Commitment for assault with intent to rob, cclxxxvi ; other indict- INDEX. CCCxlv A SS A U LTS cont inued. able assaults, ccxc ; conviction under Assault Act, iii j offences, how described in, cccxi ; certificate of acquittal, cccxii. ASSAY marks, forging, 456. ASSEMBLIES, see Processions, Unlawful Assemblies, Public Houses. ASSISTANCE in arresting, 206, 208, see Arrest. ASSISTANT BARRISTERS J. P. for their counties, 2 ; exempt from being jurors, 716, in note ; not to be ex officio guardians, 67, 708. ASSISTING in a felony, if absent, see Accessary, 402 ; if present, principal, 429 ; in a misdemeanor, 441 ; assisting a felon, 402. ASSIZES, J. P. must attend at, 348 ; prisoners for trial, where committed, 484 ; detaining in bridewells, 486 ; prisoners in local jurisdictions, 485 and n. (a) ; when cases should be sent for trial to, 509, et seq., see Trial. ASSOCIATION, unlawful, see Unlawful Society. ATHEIST witness, 162. ATTACHMENT, breaking doors to execute, 202, n. (a). ATTEMPT to maim, 421 ; to murder, or persuade to murder, 425 ; to rob, 434 ; what attempts are assaults, 442 ; attempt to commit any offence a misde- meanor, 444. Form for attempts to murder, cclxxxii, cclxxxiii. ATTORNEY exempt from being constable, 46; from being juror, when, 716, in note ; right of parties to have, at Petty Sessions, 77-8 ; in summary con- victions, 593 ; at examinations for indictable offences, 306-7 ; conduct of, subject to control of Js. P. 307 ; may be bail for his client, 384 ; misapply- ing money entrusted, 452 ; appearing to summary information by, 594 ; so to be stated in conviction, ib. AUCTIONS, pawnbrokers', cxxviii, cxxx ; in Dublin, cxxxiii; selling distress, 656. AVOIRDUPOIS WEIGHT, when to be used, ccxiii; in selling bread, vii ; and as to corn and potatoes, see ccix, ccxi. BACKED WARRANTS, backing warrants to arrest, 189, see fully Warrant; expense of removing prisoners, 225 n. (a), 731 ; bail, under, 390, &c., see Bail; commitment, 490, &c., see Commitment; backing distress warrant, 663, see Distress Warrant; commitments in execution, 680-1 ; warrant to levy under Grand Jury Act, Ixxii ; under Burning Land Acts, xxvi, xxix j summons, xxix. Form of indorsment, warrant, ccl. BAIL, by superior courts, 372-3, n. (a) ; when B. R. will interfere, 273 and n. (6) ; court will look to informations or depositions, 174 and n. (a) ; prac- tice in ordering their return, 373, n. (6) ; if after commitment, see Habeas Corpus; bail for petty misdemeanors in Dublin, 372, n. (a). By Js. P. simplification of the law, 372; in what cases bail may be taken, 373-4, and n. (a), and see 379, n. (6) ; for felony, when to be taken and when not, 375, 2x CCCxlvi INDEX. BAIL continued. and see 376, n. (c) ; must be by iwo Js. P. 375-6 ; law in England, as to, 376, n. (e) ; discretion of J. P., as to, 376-7 ; where there is a doubt, 377 ; persons committed by other magistrates, 377-8 ; mem. sometimes, added to commitment, 483, n. (a) ; where commitment was for want of sufficient se- curity, 378-9; bail for misdemeanor, 379; prison breach, ib. n. (6); for affray or dangerous wound, 379-80; for wounds or death given in resisting certain assaults, 380 ; time of taking, and of discharging the prisoner, 380- 1 ; of sending prisoner to a private prison, 380 ; if left in custody of officer not entitled to copy of warrant, 494 ; bail after committal, 381 ; bail after in- dictment found at sessions, 381, c., notice, supersedeas, form of recogni- zance, 383, and as to supersedeas, see 238 ; after indictment at assizes, 383. Amount of bail ; in excise cases, 385 ; number of bail, 384 ; who may be, ib. ; discretion of J. P., 884-5 ; how to be regulated, 385, and see 398 ; formerly required, 385 ; English practice, ib. ; after indictment, &c., for resistance to excise officers, ib. ; under Illicit Distillation Act, 386 ; disturbing dissent- ing congfegations, ib. ; what to be considered excessive bail, 398 ; as to re- quiring fresh bail where sureties are insufficient, 386-7, and n. (a) ; taking insufficient bail, 398-9. Notice of bail, inquiry as to, after a previous commitment, 379 ; when to be required, and what notice usual, 383-4; when after indictment, 383, 239 f 240, and n. (6). Recognizance of bail, form of, after indictment found, 383 ; manner of tak- ing and swearing sureties, 387-8; what recognizance must contain, 495-6; how sureties are sworn, and form of oath, 496 ; how principals, 497 ; affir- mation instead, 498 ; condition, 387 ; offence should be specified, and why, 388-9 ; signature, 389; infants and femes covertes, ib. ; recognizance in body for body, ib.; special form for malicious injuries to houses, 389-90; for blasphemous or seditious libels, 390. Bail of offenders arrested under backed warrants in another county, 390, &c. ; by what J. P, to be taken, 391 ; how recognizances, &c., should be trans- mitted, ib. ; penalties for neglect, &c., 392 ; if offender is not bailed, ib. , bail of offenders under backed warrant issued in Great Britain, 392, 393 ; recog- nizance in duplicate and how transmitted, &c., 393 ; if offender is not bailed, 394 ; writing, not bailable, on warrant, and effect of omitting it, 395 ; Sem- ble, offender must be bailed, 396; bail in other cases for offences committed out of the county, ib. Bail when prisoner is in previous custody on civil process, 233, &c ; on cri- minal process, 237. When bail should not be taken ; during suspension of Habeas Corpus Act, 374, n. (a) ; approver not to be bailed, 319, and n. (a) , INDEX. cccxlvii BAIL continued. petty officers and seamen, 369, 371 ; as to treason and prison breach, 374, n. (a), 379, n. (fc) ; no bail after commitment in execution, 681. Refusing bail when it ought to be granted, 397 ; requiring excessive, ib. ; what is excessive, 398 ; granting bail improperly, 398 ; taking insuf- ficient, 398-9; prisoner must tender it, 397; discharge of prisoner after bail, 399 ; liberate, ib. ; power of bail, ib. ; how differing from mainprize, ib., n. 0). Forms. Notice of bail, cclxiii ; recognizance, cclxiv ; when party is in prison a feme covert or infant, cclxv. Form to be repeated, when taking 388 ; super- sedeas, ccl ; liberate, cclxvi. Bail, acknowledging in another's name, 403 ; personating, 416. BAKER, see Bread, where master indictable for Servants' Acts 551, n. (a). BALLAST, unlading and casting ashore, Ixxx ; taking from shore, Ixxxi ; tar- paulin to be used with, ib. BANK OF SEA, RIVER, MARSH, &c., malicious mischief to, 404 ; removing piles from, ib. ; form for, cclxix ; compensation for injuries, how obtainable, 733-5. BANK BANKER, how described in informations, 172; banker embezzling, misapplying, or pledging money or goods, 452 ; forms for such offences, ccxcii, ccxciii; forgeries on, felony, 413; form for forging a cheque, cclxxv ; what forgeries are misdemeanors, 455. BANK OF ENGLAND, forgeries on, and forging tools, search warrant for, 273; how executed and goods disposed of, 274 ; forgeries on Bank of England, 414-15. BANK OF IRELAND forgeries, and forging tools, granting and executing search warrant for, 275 ; embezzlement by clerks, Sec., 410; forgeries or per- sonation, falsifying books, &c., 413 ; using instruments for forging, 414 ; purchasing forged notes, ib.; imitating bank (flash) notes, 444-5; deli- vering false dividend, &c., 445 ; form for commitment, for having forged bank notes, cclxxv; forgeries connected with bank stock, 414, or with suitor's money in bank, ib. ; bank tokens, 276 ; lodging penalty, &c. in bank, 654. BANKRUPT, English, seizing goods in Ireland, 276 ; search warrant, 276; seizing goods of Irish bankrupt, 276-7 ; search warrant for, 277 ; to be granted to messenger only, 276 ; form of search warrant, cclii ; frauds by felony, 404 ; Provision in Act as to workmen's disputes, when master be- comes bankrupt, ccxxvi. BANNERS, see Public -house, Processions. BARLEY, see Corn. eccxlviii INDEX. BARN, see Outhouse ; burning. 405 ; form, cclxx. BARONY, see Presentment Sessions. BARRATRY, what, 445; is a misdemeanor, ib. ; surety of peace for 520 ; of good behaviour, 525. BARREL OF CORN, weight of, ccxi, ccxii. BARRISTER, exempt from being constable, 46; right to his assistance at Petty Sessions, 77, 78 ; at examination of prisoner, 206-7 ; at summary trial, 593 ; exempt from being juror, 716, note. BASTARD. Surety of good behaviour, from father, 525-6 ; payment for nursing, 698 ; liability of parents to maintain, under Poor Act, cxxxvi, and sec. 59, cxxxvii. BATTERY, what, 124, n. (a), 442, and see Assault. BAWDY HOUSES, arrest of persons frequenting, 107, and n. (a) ; surety of good behaviour, 523, n. (6), but see 524, n. (6) ; keeping, 445 ; form for describing, ccxci. BAWDY, pictures, &c. ; selling, &c., 461 ; form, ccxcv. BEANS, to be sold by weight only, no allowance or addition, ccix, ccx ; using in bread, vi ; marking loaf, ix. BESTIALITY, 404} infamous crime, 419 ; form to describe, cclxx. BEER, see Public-houses ; brewers not to be publicans, cli. BEGGARS, preventing contagion from, 114, 115 ; old Acts as to, 117 n. (a), 303 ; see Vac/rants. BEHAVIOUR, see Surety ; suspicious, justifying arrest, 104, 114. BENCH WARRANT, 187, 382, and n. (d); superseded* to avoid arrest on, 239. BENEFIT BUILDING SOCIETIES, clxxiii. BIGAMY cognizable in any county, 57 ; what is, 405; form for, cclxix. BILL OF EXCHANGE; seizing under distress warrant, 661; to loan so- cieties how recoverable, clxxiv ; negotiable for less than 20s., summary conviction for, cxxi; included in security, or property, 434-5; forging, 413 ; foreign bills, 455 ; forms for offences, cclxxiv. BIRDS, stealing, Ixxxv ; being fouud in possession of, ib. ; restoring to owner, ib. Form, cccxx ; destroying eggs, Ixi ; see also Game, Cruelty. BIRTH, concealing, 449 ; form, for, ccxcii. BLACKSMITH, registry and license of forge, 261; withdrawing license, ib. ; penalty for having unregistered forge, 261-262 ; levy and application, 264 ; search for pikes, &c., 263, &c., BLANK WARRANTS and Summonses, 81, 88, 156 ; as to constables executing, 241. BLASPHEMOUS LIBELS, a misdemeanor, 459 ; search for and seizure of, INDEX. CCCxlix BLASPHEMOUS LIBEL continued. 285 ; disposal of, 286 ; recognizance of bail for, 390. BLASPHEMY, 445 ; form to describe, ccxci. BLEACH GREENS, statements in informations for stealing from, 170-1 ; as to offences, see 423 ; forms, cclxxix. BLIND PERSONS to be struck out of jury lists, 716-7. BOATS seizure, or search for, under Fishery Acts, 282-3 ; stealing goods from boat, 424 ; form, cclxxx, and see Ship. BODILY FEAR; as to requiring surety of peace, 521, 528; putting in, in house-breaking, 418. Bodily harm, see Wounding. BOOTHS at fairs and races not to be open at certain hours, clviii, or at all on certain days, ib. ; entry, search, and removal, &c., 291; form of warrant, see ccliv ; for describing offences, cccxxviii. BOND, forging, 413; included in security or property, 434-5 ; seizing under dis- tress warrant, 661 j form to describe, cclxxiv. BOUNDARIES of counties, offences on, or near, where cognizable, 55 ; com- pensation for injuries, 735. BREACHES of the peace ; see Peace. BREAD AND FLOUR; former regulations abolished, vi ; of what materials bread may be made, vi ; of any weight or size, ib. ; to be sold by weight only, penalty, vi, viii ; except fancy bread, vii ; by avoirdupoise weight, penalty, vii ; bakers to provide scales, and weigh if required, vii ; penalty for using false, or refusing to weigh, vii ; adulterating bread, penalty, commit- ment, vii, viii ; publishing names, &c. of offenders, viii ; adulterating corn or flour, or any fraud in selling, viii, ix ; penalty, &c., ix ; bread with any other mixtures to be marked, ix ; penalty for neglect, ib. ; as to potato yeast, ix, x ; search warrant for adulterated bread, flour, &c., how granted and executed, 277 ; if any found, how disposed of, 278 ; penalty on bakers, &c., with whom ingredients for adulterating flour or bread are found, x ; subsequent offence, publishing offenders' names, ib. ; obstructing search, x, xi; proceedings for offences occasioned by journeymen and ser- vants, or damage by them, xi, xii ; baking or selling bread or bakings on Sunday, and what bakers may do on, xii ; penalty, costs, compensation for prosecutor, xiii ; distress, commitment, ib. ; at what hour bakings may be delivered on Sunday, ib. ; no miller, baker, &c., to act as J. P. hereunder, ib. ; opposing execution of the Act, penalty, xiii, xiv; proceedings in re- covering penalties under the Act, xiv; costs, distress, detaining till return, commitment in default, application of penalties, xiv ; before what Justice of Peace informations shall be exhibited, xvi ; enforcing attendance andobe- CCcl INDEX. BREAD AND FLOUR continued. dience of witnesses, xvi ; informality, certiorari, irregular distress, tender of amends, xvii ; appeal, execution suspended, recognizance, xvii ; pro- tection of persons executing the Act, xvii, xviii ; limitation of summary proceedings, ib. ; application of penalties, ib., and see xiv, xv. Forms. Of Summons, xv. ; of information, ib. ; of conviction, xvii ; forms for offences under the Act, cccxii, xiii. Sale of unwholesome bread, &c., a misdemeanour, 446-7 ; frauds and adul- teration of corn, see also, Ixix ; flour, &c., to be sold by weight only without allowance or addition, ccix. BREAKING, with intent to steal, see titles referred to Larceny, 421 ; mali- ciously, &c., see titles referred to Malicious Injuries, 421-2; what suf- ficient to constitute house-breaking, 418. BREAKING OPEN OUTER DOORS, previous demand and refusal of admit- tance, 198-9; when maybe in arrest without warrant, 199, 200; in arrests under warrant, 201-2 ; distinction between civil and criminal cases, 202, and n. (a) ; for contempts, 202, n. (a) ; for penalties after summary conviction, 202, 662-3 ; for forcible entry or detainer, 203 ; how far a house protects from arrest, 203, et seq. ; only the outer doors of a dwelling-house, 204; as to houses of third persons, 204-5, n. (a) ; breaking out of a house, 205 ; in case of escape, after arrest, 230, 231 ; in executing search warrants, 202-3, 251 ; in searching for arms, pikes, &c., 262-3 ; for bankrupt's pro- perty, 276-7 ; for cards or dice, 279 ; for deserters, 281-2 ; under Excise Act, 282; Illicit Distillation Act, 284-5; for blasphemous or seditious libels, 286 ; soldiers' necessaries, 286 ; unstamped newspapers, 288; under Pawnbrokers' Act, 289 ; under Stamp Act, 299. BRIBES, giving or taking, a misdemeanor, 445 ; at elections, 451. BRICKS, season when, and materials of which they may be made, xviii, xix; dimensiofis, consistence of clay, and season for burning, xix ; penalties, dis- tress, application, xix, xx ; appeal, xx; how measured, penalty for frauds in selling, xx ; burning on or near roads, Ixxv ; leaving thereon, Ixxv. BRIDEWELL; inspection and management of, see Prisons; sending prisoner to, see Commitment, Prisoner ; abolishing bridewells in certain cases, 485 ; appointment of district bridewells, 485. BRIDGE, injuring, felony, 405; in mines, 425; form cclxix ; doing mis- chief to bridges supported by presentment, Ixxix ; J. P. ordering repairs, of sudden damage, Ixx; notice to surveyor, now unnecessary, Addenda ; applications relating to, at Presentment Sessions, 721, n. (a); contracts for keeping in repair, 725; and see fully Presentment Sessions ; compensation for injury to, how and when obtainable, 734-5 ; contractors raising mate- INDEX. CCCli BRTDGE continued. rials or making drains in adjoining lands, assessing damage, &c., Ixxvii, Ixxviii. BROKER embezzling, pledging, &c., money or goods, 452; forms, ccxcii, ccxciii. BUGGERY, 405; infamous crime, 419 ; accusing of, 434; form for describing, cclxx. BUILDINGS, burning, 405; form, cclxx ; stealing or breaking fixtures, 412; form, cclxxiii, cclxxiv ; breaking and stealing in buildings, 418 ; form, cclxxvii ; riotously burning or injuring, felony, 433 ; breaking into, to injure manufactures, &c. 423 ; form, cclxxix. Obtaining compensation for malicious injuries to, 733-4; preventing frau- dulent waste by tenants, civ, &c. ; form of notice, cccxxiv. Building. Placing timber improperly in walls, xx, xxi ; regulations as to building chimneys, xxxi, xxxii ; building materials, how measured, xx; frauds in selling, xx. BUILDING SOCIETIES, (Benefit), clxxiii. BULL, see Cattle; keeping dangerous, a misdemeanor, 461; punishment for bull-baiting, xliii. BURGLARY, statements in informations for, 173 ; what is, 417. Forms for, cclxxvi, cclxxvii. BURNING houses, mines, stacks, &c., 405 ; crops, plantations, 406 ; forms for describing, cclxx; riotous burnings, 430, 432-3; burning the person, 421; form, cclxxviii ; burning ships, 435-6 ; forms, cclxxxvi-vii ; burning heath, &c., season for, Ivi ; if broken for cultivation, Ix ; obtaining compen- sation for malicious burnings, 733, 735. Burning land, penalty for, recoverable by lessors as herein, xxiii ; from im- mediate lessee, who has his remedy over, xxiv ; no consenting party to reco- ver, xxiii- iv ; consent is only matter of defence, xxxiv ; saving of rights under lease, xxiv ; lessor neglecting, original lessee may proceed, xxvii, and so suc- cessively, xxviii ; option of lessor as to whom penalty is levied against, xxviii, xxix ; remedy over against occupier, ib. ; surveying, and penalty for hinder- ing, ib. ; awarding costs of survey, xxvi, xxviii ; ridges unburned may be measured in, xxiv ; and penalty apportioned, xxv ; penalty increased as herein, xxx; proceedings for penalties, information, summons, warrant, xxxv; distress, xxvi ; backing warrants, &c., ib., and see xxix; sale, commitment, xxvi; appeal, suspending execution, recognizance, xxvii ; enforcing costs of appeal, ib. ; conviction in such case, xxviii ; these provisions still applicable, xxviii ; commitment on proof of conviction, xxix ; corporation may sue, ib. ; proof of title in case of death facilitated, xxx ; form of conviction, xxvi. ccclii INDEX. BURYING body before inquest, 366, in note, 445-6 ; obstructing burial ser- vice, &c., 445 ; taking up, selling, &c., dead bodies, 449 ; form for, ccxcii. BUSHEL, selling by, ccxii. BUTCHER, slaughtering in market a misdemeanor, 461 ; penalty for killing or dressing meat in markets or stalls, xxi ; meat to be properly slaughtered, as herein, and not unduly set off, ib. ; penalty, distress, application, commit- ment, xxi, xxii ; slaughtering for exportation, butchers in Dublin, in towns where Town Act is in force, xxii. BUYING OR SELLING, see Weights and Measures ; counterfeit coin, 408 j forged banknotes, 414; King's stores, 420; offices, 461. CALENDAR, of prisoners for trial, 493, n. (a). CANAL, offences on, where cognizable, 55, and see 57 ; compensation for in- juries to, 734-5 ; injury to works, obstructing navigation of, 404 ; forms for, cclxix ; stealing on, 424 ; form cclxxx. CARDS AND DICE, search warrant for, 279 ; forging, &c., stamps of, 415. CARNAL KNOWLEDGE of girl under ten, 406 ; under twelve, 446; forms for describing, cclxx, cclxxi ; of girl in charter school, 469. CARS, carts, owner's name, Ixxii; tule of the road, ib. ; when to have double reins, Ixxii, Ixxiii ; arresting drivers, Ixxiii ; driving on footway, leaving on roads, or loading improperly, Ixxv. CARRIAGES, public, Act regulating, clxxxv ; see Stage Coaches. CATHOLIC ASSOCIATION, meetings, 444 ; Romish ecclesiastics, 468-9. CATTLE, stealing, what to be stated in informations for, 170; disposal of, seized under a search warrant, 253 ; as to seizing under distress warrant of J. P., 660; obtaining compensation for malicious injuries to, 734-5 ; tolls for, at fairs, &c., cxcii, see Tolls ; as to damage by, cxcvii, &c., see fully Trespass; wandering on roads, Ixxiv ; and for summons to owner, see Ad- denda ; in towns, ccxliii ; as to impounding, generally, cxlii ; see Pounds ; feeding in pound, and cruelty to, xlii, &c., see Cruelty. Offences as to, stealing or killing with intent, 406 ; forms, cclxxi ; maiming or killing, 406; forms, cclxxi; under Whiteboy Act, 474; rescuing from distres, 468. CENSUS, giving false name, &c., clxi ; and see Addenda. CERTIFICATE, of previous conviction, &c., falsely uttering, 406 ; of previous acquittal for assault, 608 ; form of, cccxii ; certificate of deserted premises, 710 ; form of, cccxxxv ; discharge of servants, ex, cxi ; and see Game Cer- tificate. CERTIFYING INFORMATIONS, &c., ancient practice, 348. CERTIORARI, practice (in Ireland) as to returning informations, 373, n. (6) ; poor prisoner ordered to be bailed, 494 ; what it is, 684-5 ; form INDEX. cccliii CERTIORARI continued. of, 684, n. (c) ; right exists of course, what can abridge it, 685 ; for pro- secutor, ib.; to remove summary proceedings on suggestion of title, 609, n. (a); how sued out, 685-6; to whom directed, 686 and n. (6) j when effectual, and how far it suspends proceedings, ib. ; fixing amount of fine after, 686-7 ; selling distress, 687, 665 ; warrants to levy not to issue, 651 ; return, how compelled, 687 and n. (c) ; how made, ib. ; what should be returned, 687-8; though copy given more formal conviction may be re- turned, 643 and n. (e) ; otherwise of orders, 644; if conviction has been sent to Q. Sessions, 688 ; return, how engrossed, 645, 688 ; seal, ib. ; where transmitted, 688-9 ; false return, 689. Form of return, cccix ; effect of clauses helping formal defects, 641 and n. () ; court will not issue ca. sa, 669, n. (a). CESS PAYERS, see Presentment Sessions. CHAIRMAN of Petty Sessions, 82 ; of Presentment Sessions, 718, 721. CHALLENGE, sending or provoking to send, 446 ; for money at play, 444 ; form for commitment, ccxci. CHAMPERTY, what, 426. CHAPEL, see Church. CHARACTER of persons concerned stating in convictions and informations, 560, 562 ; proving, 604-5. CHARGE, what sufficient, in arrest for felony, 102, 105; to justify commit- mentj 478 ; accompanying officer, 103. CHARGING persons already in custody modes of proceeding, 233, et seq. ; in criminal custody, 237. Form of detainer, cclxvii. CHARITY, appropriation of fines at Petty Sessions, 94 ; Board of Inspection of Charities, appointment and duties of, 705, 706 ; as to presentments for, 728, &c. Charitable Societies, see Friendly Societies, Loan Societies. CHARTER, justices, 2 ; when it confers exclusive jurisdiction, 61, 62. CHATTELS, describing and specifying in convictions, &c., 570; in orders, 639 and n. (r), CHEAT, arrest of common, 107; taking informations for cheating, 171; when cheating is a misdemeanor, 446 ; conspiracy to cheat, 449 ; false pretences, 447 ; form for describing, ccxci ; cheating at play, 456. Frauds by bankrupts, 404 ; by insolvents, 457 ; conspiracy to defraud clergy, 471; misapplying, pledging, &c., goods, 452 ; forms, ccxciii ; fraudulent waste by tenants, see Houses ; frauds by public officers, 462 ; to obtain army or navy pay, &c., ib. ; fraudulently keeping letters, 465 ; fraudu- lently taking or obliterating records or certain documents, 367 ; form, CCcllV INDEX. CHEAT continued. ccxcv ; concealing a will, 450 : form, ccxcii ; frauds on Friendly Societies, clxviii ; forms, cccxxx ; Act to prevent frauds in sale of grain, Ixix, and see Bread and Flour ; frauds by butchers, xxi ; in sale of building materials, xx ; in sale of flax or linen, xciv, xcv, xcvii ; in pawnbrokers' sales, cxxix ; selling by unjust weights or measures, ccxiv, ccxv. CHEQUE, forging, 413; included in security, &c., 435; form, cclxxv. CHILDREN, dying declarations of children, 360, n. (6) ; liability to maintain under Poor Law Act, cxxxvi ; liability to maintain parents, cxxxvi, cxxxvii ; Act regulating Labour in Factories, ccxlii ; discharging chimney sweep ap- prentices, xxxi ; excepted in counting stage coach passengers, clxxxv ; pre- sentments for deserted children, 731 ; not after twelve, 731, n. (d). Killing another in defence of one's child, 422. Offences carnal knowledge of female under ten, 406; under twelve, 446; form, cclxx ; enticing or stealing, 407, cclxxi ; concealing birth of, 549; form, ccxcii ; enticing or abusing in Charter Schools, 469 ; forcing to ascend chimneys, 447, xxx. Infants, (minors), not privileged from arrest in criminal cases, 97; recog- nizance of bail for, 389 ; form, cclx* ; as to sureties in recognizance to give evidence, 502 ; whether recognizance binds infants, 502 ; surety of peace and good behaviour by, 527 ; when, may be convicted on penal Sta- tute, 550, and n. (e) ; ago which qualifies for a juror, 715 ; may be mem- bers of Friendly Societies, clxxi ; complainants under Act as to Workmen 's Disputes, ccxxvii. CHIMNEY that may be mistaken for lighthouse, xciii, xciv ; how to be built, xxxi. Chimney sweeping, forcing to ascend a chimney, when a misdemeanor, 447 ; punished summarily, xxx, xxxi ; none under sixteen to be apprenticed to chimney sweep, xxxi ; discharging apprentices, ib. ; when indentures shall cease, ib. ; regulations as to the construction of chimneys, xxxi, xxxii ; proceedings for penalties, costs, application, xxxiii ; when to be paid, com- mitment in default, xxxii, xxxiii ; competency of witnesses, xxxiii ; pro- tecting persons executing the Act, ib. ; appeal, notice, recognizance, ib. ; want of form, certiorari, defective commitment, xxxiii, xxxiv. CHRISTMAS DAY, closing public-houses till two, cli ; booths at fairs, &c. clviii. CHURCH, burning, 405 ; form, cclxx ; breaking or stealing in, 407 ; forms, cclxxi ; riotously injuring, assaulting clergyman, &c., 432-33 ; disturbing worship, 447. CHURCHWARDENS duty in preventing contagion, 115; overseeing public- houses, 290, et seq. INDEX. CCClv CITY OR TOWN, Js. P. for county may act when resident in, 51-2; under Customs Acts, 59 ; when county justices are excluded, and when not, 61-2. CIVIL BILL, seizing under decree at night, 447; process servers not to be publicans, cli ; ejectment, giving certificate of desertion, 710-11 ; form cccxxxv. CIVIL INJURIES, distinguished from indictable offences, 71 ; as to privi- lege from arrest, 97 ; or breaking doors, 202, and n. (a) ; or escape war- rant, 227, and n. (6) ; in retaking, 228, and n. (6) ; attempt to redress by criminal proceedings, 73-4, 358 ; by summary conviction, 608, &c. CIVIL PROCEEDINGS before justices in general, 695, &c. ; how enforced, 695-96, see fully Distress, Commitment; indictment for disobeying order, 696 ; strictly limited by Statute, 696 and note, 697 ; administering oaths in certain cases, 698 and n. (6), 699. For particular duties, see the head required. CIVIL PROCESS, executing against a clergyman, when a misd. 447. Proceeding criminally against a person under ; J. P. attending at prison, 234 ; bringing up prisoner on habeas corpus, 235 ; lodging warrant with gaoler, 236; effect of criminal proceedings, 234, n. (a) ; civil process against prisoner under criminal charge, ib. ; commitment in execution against a person in civil custody, 680 ; form of detainer, cqlxvii. CLERGY, offences without, now punished with death, 401. CLERGYMEN exempt from being constables, 45; or jurors, 716 in note; not to be ex ojficio guardians, 67 ; not privileged from arrest in criminal cases, 97 ; societies for relief of families of, clxxii ; giving possession of ecclesiastical residences, 610, n. (a). Offences arrest of clergyman, when a misd. 447 ; riotously assaulting churches, &c., 432-33; conspiracy to defraud, 471 ; obstructing in burial service, 445 ; disturbing public worship, 447 ; marriage by degraded, when felony, 424 ; refusing to use Common Prayer, 466. CLERK OF THE CROWN, office when open, 95 ; neglect by, a misd., 462 ; not to act at Presentment Session, 718, in note. CLERK OF THE PEACE, office when open, 95; misconduct at elections, 451 ; not to act at Presentment Sessions, 718, in note. CLERK OF PETTY SESSIONS, appointment of, &c., 81 and n. (a), 86 ; fees, 86, 95-6 ; duties in keeping registry, transmitting informations, ac- counts, &c., and penalties for omission, 87 94, see Petty Sessions ; as to notice of application to Presentment Sessions, 723, note j duties as to or- ders of Poor Law Commissioners, cxxxvi ; impropriety of leaving summons or warrants to be issued by. 156, 81, 88; not to be entrusted to take in- formations, 163, 165-66, and see 156, 167. CCClvi INDEX. CLERKS AND SERVANTS, thefts by, 407 ; forms for, celxxii ; embezzle- ment by, 409, celxxii ; in Post- Office, 427 ; in Bank of Ireland, 410 ; state- ments proper in informations, 171. COACHES offences on coaches, &c., where triable, 55; Act regulating, clxxxv, see Stage Coaches, Roads. COALS, repeal of former Acts as to sale of, xxxiv ; affixing label, and what it should state, ib. ; penalty, proceedings for, application, commitment, ib. ; offences where triable, ib. ; saving rights, ib. ; any person may be employed to measure, xxxv ; coals and culm to be sold by weight only, penalty, ccxiii ; maliciously setting fire to, 405. COAL MINES, burning, 405 ; form, cclxx ; stealing or severing coal, 424 ; drowning or injuring machinery in, 424-25 ; form for, cclxxx ; riotously injuring, 434. COCK FIGHTING, penalty for, xliii ; form, cccxv. COIN, taking informations for offences as to, 172 ; where triable, 397, n. (a) ; seizing tools and counterfeit coin, 279-80 ; search warrant for, 280 ; how disposed of, ib. ; so of foreign copper coin, 280-81 ; offences as to coin which are felony, 407 9 ; foreign coin, 409 ; which are misdemeanors, 448 ; forms for offences, celxxii, cclxxiii. COLLECTORS OF REVENUE not to act as Js. P. in certain cases, 67 ; of Grand Jury cess, duty as to jury lists, 713-14, n. (a); not to act at Presentment Sessions, 718, in note. COLLIERS, complaints of and by, cxiv, see Workmen. COMBINATION, when indictable, see Conspiracy ; secret societies, see Unlaw- ful Societies ; in convictions for illegal agreements, setting out agree- ment, 571-72. Combination in trade, &c. ; violence or intimidation to coerce workmen or masters as herein enumerated, how punishable, xxxvi, xxxvii ; meetings of workmen which are lawful, xxxvii ; or of masters, xxxviii ; offenders com- pelled to give evidence indemnified, ib. ; limitation, ib. ; proceedings, infor- mation, summons, warrant, &c., xxxviii, xxxix ; enforcing attendance and obedience of witnesses, xxxix, xl ; form to be used, returning convictions, xl ; appeal, recognizance, ib. ; no master to act as J. P., ib. Forms Con- viction and commitment, xl, xli ; commitment of a witness, xli, xlii ; forms for describing offences under the Act, cccxiii, cccxiv. Assaults from combination, 443 ; and for misconduct of workmen, &c., see Workmen. COMMANDING the commission of a felony, (accessary), 402 ; a misdemeanor, 441 ; an offence punishable summarily, 551-52. COMMISSION, justices appointed by, 3; form of, 9, &c. ; in England, 11, 12, in note, 511, n. (/) ; how determined by demise of Crown. 8 : svptr- INDEX. ccclvii COMMISSION continued. sedeas of, ib. ; revival, ib. ; new commission, ib. j two cannot subsist at once, ib. In army, selling exorbitantly, 461. COMMITMENT, various kinds of, distinguished, 475; in execution more strictly construed than for custody, 479, 670 ; directions of Petty Sessions' Acts as to, 87-8, 92 ; as to constables committing, 2 1 7, note ; parol deten- tions, 476, 671. Commitment for safe custody ; of bailing or committing when there is a doubt, 377 ; previous charge on oath, 177, and see 478 ; to be by warrant in writing, &c., 476 ; date and place, ib. ; error in, ib., n. (c) ; to show authority of J. P., 476; if in King's name, ib. ; signature of J. P., 476-77; if at Petty Sessions, 477 ; if elsewhere to be transmitted, ib.; Js. P. being together, ib. ; direction, ib. ; error in, ib., n. (c) ; describing the defen- dant, 478 ; statement of charge being on oath, ib. ; statement of offence, 479 ; to answer generally, illegal, 480 ; where offence is under a Statute, 480-81 ; stating to be felony, 482; specifying term and mode of imprison- ment, 482-83 ; form of conclusion and consequence of defect, 483-84 ; mem. as to returning, 483 ; if commitment for want of bail, ib. n. (a). to what prison to be, 484 ; detention elsewhere than in prison, ib. and n. () ; if witness be on ship or in prison, 590, n. (6) ; witness refusing to answer, 590-91 ; as to indictment, 589, n. (a); to be examined on oath, 596, and n. (g), and see 625; how, 162; must be competent, 597 ; incom- petency from interest in the penalty, ib. ; wife of person interested, ib. ; when interest is uncertain, 597-98 ; when admitted from necessity, 597, n. ; defendant's presence, 598, and (g), and see 626; by whom examined, 598 ; if defendant unassisted, 606, 607 ; cross-examining prosecutor's witnesses, 606 ; defendant's, 610 ; number of witnesses, 525 ; how described in a conviction, 625; when a witness should not be informer, 549, 550. Provisions in particular Statutes enforcing obedience under Bread and Flour Act, xvi; Combination Act, xxxix, xl ; form, xli ; offenders giving evi- dence indemnified, xxxviii ; under Act as to workmen, (rep. combination), cxviii; under Harbour Act, Ixxxiii ; summoning with papers, &c., under Pawnbrokers' Act, cxxx, cxxxv ; summoning under "Weights' and Measures' Act, ccxvii ; enforcing obedience under Act for arbitrating workmen's dis- putes, ccxxiv, ccxxxii ; under Public-house Acts, cliv ; binding in case of appeal thereunder, cliv ; competency thereunder, clxii ; competency under Chimney Sweeps' Act, xxxiii ; under Cruelty Act, xlviii, and see xlv. ; under Larceny Act, Ixxxviii, and sect. 59, Ixxxix ; Malicious Injury Act, cvii ; Poor Law, cxl ; members of friendly societies, clxxiii ; under Loan Society Acts, clxxvi ; under Special Constables' Act, 43 ; witnesses on police inqui- ries, 25. Medical witnesses on coroner's inquests, xxxvi ; presentment for, on inquests before Js. P., 366, in note; compelling appearance at Quarter Sessions, 588, note ; preventing witness giving evidence, 460 ; perjury, 463. Forms. Oath, ccxlvii ; summons (in charge of felony,), civ ; warrant or sum- mons by way of precept, cclvi ; warrant after previous summons, ib ; com- mitment for refusing to answer, cclvii ; or enter into recognizance, ib. ; forms for taking depositions, cclix ; recognizance, cclxi, cclxii ; summons to CCCCXXX11 INDEX. "WITNESS continued. Petty Sessions in summary complaint, ccci ; commitment under Combina- tion Act, xli ; under Workmen's Act, ccxxxii. WOMEN, not privileged from arrest in criminal cases, 97 ; if within Vagrant Acts, 116, n. (a) ; statements as to, proper in informations, 170 ; warrants against, 182 ; suspected of smuggling to be searched by women only, 298 ; not punishable by whipping, 402; may be convicted on penal Statutes, 550 ; see also Married Women. WOOD, burning steer of, 405 ; form, cclxx ; stealing or being found with, Ixxxiv ; form for conviction, cccxxi ; if fresh wrought, may be seized, 302 ; punishment for having, cxcvi ; placing improperly in buildings, xx, xxi ; leaving timber on roads or loading improperly, IXXY ; in towns, ccxliii ; see also Trees. WOODRANGER not to be appointed in constabulary, 19. WOODS AND FORESTS, forgery on commissioners, 415. WOOLLEN, manufactures describing in informations, 190-91 ; malicious inju- ries to, 423 ; stealing, ib. ; forms, ccl.\\i\. WORDS cannot make an arrest, 98 ; or be a breach of the peace, 1 19; justify- ing arrest, 126; when punishable criminally, 470; when surety of peace may be required for, 520, but see 529-30 ; surety of good behaviour, 256 ; when to be set out in convictions, 571 ; how, 572 WORK, workhouse, see Poor, Public Works. WORKMEN, forcing to leave employment, &c., xxxvi, et seq. see Combination ; wilfully damaging goods or work, cii ; complaints for misconduct by mas- ters and by workmen for misusage, how heard and punished, cxiii, cxiv ; by one J. P., cxv ; appeal, ib. ; workmen neglecting to work or hindering others, refusing to work and leaving it unfinished, cxvi, cxvii ; masters hiring workmen before employment is finished, cxvii ; who masters within the Act, summons, hearing, commitment, cxvii, cxviii ; masters not to act as Js. P., cxviii ; compelling attendance and disobedience of witnesses, ib. ; informer competent, returning proceedings, ib. ; appeal, recognizance, ib., cxix ; forms of conviction and commitment, ib. ; for conviction for dama- ging goods, cccxxii. Arbitration of workmen's disputes, ccxix, et seq. ; enumeration of the causes of dispute which may be referred, ccxix ; rate of wages not without consent, ccxx ; reference of disputes by consent to a J. P., ib. ; otherwise com- plaint may be made, summons issued and referees appointed, ccxx, ccxxi ; when the referees neglect or refuse, ccxxi, ccxxii ; effect of second ne- glect, ccxxii; meeting of the referees, appointment and notice thereof, ccxxii ; determination to be within what time, ccxxiii ; time may be extended INDEX. CCCCXXX111 WORKMEN continued. when and how, ccxxviii ; place of meeting of arbitrators, ccxxiii ; when a party does not attend to appoint referees, ccxxiii ; power and duty of the arbitrators in investigating the complaint, ccxxiii, ccxxiv ; award final ccxxiv ; reference to Js. P. when arbitrators cannot agree, ccxxv j within what time to be decided, ib. ; arbitrator refusing to go before Js., ib. ; all disputes may be adjusted by arbitration as agreed on and decision enforced, ccxxv, ccxxvi ; enforcing the attendance and obedience of witnesses, ccxxiv ; commitment, ccxxv, ccxxix ; no master manufacturer or agent to act as J. P., ccxxv; what Js. P. have jurisdiction under the Act, ccxxxv; partners, agents, and stewards may be dealt with as principals, ccxxvi ; masters deputing others to act for them, ib. ; masters becoming bankrupt, ccxxvi, ccxxvii ; when complainant is married woman or infant, ccxxvii ; tickets with work to be evidence, ccxxxii ; duplicate and when evidence, limitation, ccxxxv ; manufacturers receiving articles when barred from com- plaining, ccxxviii ; acknowledgment of fulfilment of award, ib. ; enforcing performance of awards, distress, sale, return, commitment, ccxxviii, ccxxix ; commitment instead of distress, ccxxix ; discharge, ib. ; no appeal or certiorari, want of form, ib. ; fees under the Act, ccxxx ; costs and ex- penses by whom, to whom, and when and how allowed, ccxxx ; no stamp duty, protection of J. P. former Acts, ib. Forms. Order certifying nomination of referees, ccxxii ; second nomination, ccxxiii; form of award to be written on the back, ccxxx, ccxxxi; indorse- ment extending the time, ccxxxi; acknowledgment of fulfilment of award, ib. ; oath to be administered by arbitrators, ib. ; commitment of a witness, ib., ccxxxii; warrant of distress, ccxxxii; constables' return, ccxxxiii ; commitment thereupon, ib. ; commitment when warrant of distress is with- held, ccxxxiv ; title of the Act, ccxxxv. WORKMEN buying liquor on credit, pledges recoverable, clxiii, clxiv; recovery of wages, ccvii, &c., see Wages. WOUND, dangerous, arrest for, 106; breaking doors, 200; other powers of officer, 206, 231. WOUNDING, 231 ; statements in informations for, 172-73; bail after dan- gerous wound, 379-80; wounding in committing burglary, 418; form, cclxxvi ; with intent to murder, 425 ; form, cclxxxii ; wounding in com- mitting piracy, 427 ; with robbery, 434 ; form, cclxxxv ; violent assaults, 443 ; and see Cattle, Grain. WRECK, restoring shipwrecked goods to owner, 254; form of search warrant for, ccli ; form of order to restore, cccxviii ; penalty for possessing, 254 ; form for conviction, cccxvii ; penalty for offering to sale, Ixxxiv ; form, cccxviii ; 3i CCCCXXX1V INDEX. WRECKS continued. false signals or endangering ships, felony, 435 ; injuring or plundering wrecks, 437 ; opposing shipwrecked persons, 436; forms for the foregoing, cclxxxviii j assaults on officers engaged about wrecks, 443 j duty of certain officers in assisting, ccxxxvi, see Salvage; what to be done when no claim- ant for goods appears, ccxxxvii; examination before J. P. as to ships wrecked, ccxxxix. WHITINGS, setting out in informations and convictions, 571 ; how, 572. YARN, described in informations, 170-71 ; malicious injuries or stealing, 423 ; regulations as to, and frauds in selling, xcv, xcvii. YEAR, as to computation of time, 548. THE END. 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN DEPT. RENEWALS ONLY TEL. NO. 642-3405 This book is due on the last date stamped below, or on the date to which renewed. Renewed books are subject to immediate recall. NOV 1 P 1968 7 RFHFIVED Mq\/ c: >pq .0 PM txjv ) no 'V ' '" LUAN utri. LIBMAHf UlSfc OfsiL FEB 1 9 IQRfi 1 " ^^ J. v IJUU CIRCULATfOM DEP T. LD 21 (J401slO)476B General Library University of California Berkeley