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32X

V -

THE

MAGISTRATE'S ACTS

OF 1869

-A.NN OX AXED

FOR THE USE OF MAGISTRATES

WITH

FORMS, PRECEDENTS AND AN INTRODUCTION
TO THE LAW OF EVIDENCE.

BY WM. H. KERR, ESQ.

BAUH19TER-AT-LAW.

<*»■ —

DAWSON BROTHERS, PUBLISHERS.

1871

BiBLfOTHEQUE

UNIVERSITE D£ SHFRBRCOKE

i^ntorcd according; to Act of the Parliament of Canada, in the year
1870, by Dawsox Brothers, in the Office of the Minister
of Agriculture.

LOUIS PERRAULT & CO., PRINTERS, 232 ST. JAMES ST

CIIiVI?X.P:S J. COURSOL. Esq..

JUDGE OF THE SESSIONS OF THK PEACE FOR THE CITY OF MONTRBAL,

THIS VOLUME IS INSCRIBED,

AS- A TOKEN OP RESPECT FOR HIS KNOWLEDGE OF CRIMINAL LAW,

'IWiiMlilPHi ' I

PREFACE.

The difficulty experienced by Magistratos in the country
parts of the Dominion, in obtaining any work treating specially
of their duties, has long been known to the members of the
Bar. Within the past thirty years, a few books have been
published with the idea of obviating the difficulty, but so
many alterations have been made by recent statutes in the
law as it existed at the time of such publications, that but
little apology is needed for the appearance of this work.

In annotating the sections of the different statutes now in
force, the writer has striven to collect from the English works
every thing that seemed likely to be of use, and he has not
hesitated to embody in this volume, the observations of the
different authors, when they seemed to him appropriate to
th2 treatment of the subject under consideration. He has t
largely made use of" The Practice of Magistrates' Courts," by
T. W. Saunders, Esq., "The Magisterial Synopsis," and
" The Magisterial Formulist," by George C. Okc, Esq. To
the latter gentleman's works he has been greatly indebted, and
trusts that he will be pardoned for having brought Mr. Okc
;is an authority of great weight before the Canadian Public.

After that portion of the work treating of Summary Con-
victions and orders had gone through the press, an Act in
amendment of the law as it then existed, was passed by the
Dominion Parliament and it became necessary to note tl c
changes thereby made. The amending Act will be found in

TT"

PREFACE.

the Addenda pp. 381-388. The changes thereby effected
are chiefly with regard to appeals and are commented on at
pp. 387, 388.

In the Addenda will also be found the clauses of the
Statutes of the different Provinces, having reference to the
duties of Magistrates, saved from repeal by Schedule B of
32 & 33 Vic. c. 36.

To furnish the law as it exists, with the necessary forms,
and such simple instructions as will prevent Magistrates from
doing injustice to others and from bringing themselves into
difficulty, has been the object of the writer. He trusts that
he has at least succeeded in producing a work which may be
of some benefit to those for whom it was specially written.

TABLE OF CONTENTS.

Justices of the Peace and how appointed. . 1-7

Nature OF TiiETR DUTIES 7-8

Jurisdiction AS to locality, interest, &c.... 8-14

Evidence before Justices of the Peace 14-36

Jurisdiction of the Quarter Sessions 36-53

*' An Act (32 & 33 Vic, c, 30) respecting the
duties of Justices of the Peace out of
Sessions in relation to persons charged

WITH indictable OEFENCES," WITH NOTES

AND FORMS , 52-142

"An Act (32 d- 33 Vic, c. 31) respecting the
DUTIES OF Justices of the Peace out of
Sessions, in relation to summary con-
victions AND ORDERS," WITH NOTES AND
FORJis 143-293

" An Act (32 & 33 Vic c 32) respecting the

PR03IPT AND SUMMARY ADMINISTRATION OF

Criminal Justice IN CERTAIN cases," with

NOTES 194-314

" An Act (32 & 33 Vic 33) respecting the

TRIAL AND PUNISHMENT OF JUVENILE OF-
FENDERS," with notes and forms 315-330

" An Act (32 & 33 Vic, c. 34) respecting Ju-
venile offenders within the Province
of Quebec" 331-335

Vlll

TAULE OF CONTENTS.

{'■

" An Act (32 k 33 Vic. c. 35) for the more

SPEEDY TRIAL, IN CERTAIN CASES, OF PER-
SONS CHARGED WITH FKLONIES AND MISDE-
MEANORS, IN THE Provinces of Ontario
AND Quebec," with notes and forms 33G-34()

" An Act (32 k 33 Vie. c. 3(5) rkspectino the
Criminal Law, and to repeal certain
enactments therein contained" 347-3G8

ADDENDA.

Sections OF Statutes preserved from repeal

BY Schedule B. 32 c^ 33 Vic. c. 30 3Gl>-380

Consolidated Statutes of Canada 309-37(5

Revised Statutes of Nova Scoiia 377

Revised Statutes of New Bhunswick 378-379

Statutes OF New Brunswick 370-380

'' An Act (33 Vic. c. 27 iTO a.mendthe Act res-
pecting the duties of Justices of the
Peace out of Session.s in relation to
Summary Convictions and Orders," with
Notes 381-388

INDEX OF CASES.

AcUioyd, Dott /• 200

Atl'lis, exj'iirtf -17

Adtlisdii, L;il)!ilm()ii(U('rc, v. 152

A. ti. V. SlihU'}' 1H8

Ali-ion V. Furnival 29

Al!i.-'(in cxjKirte 18."»

Allrn, l{..t' 200, 235

Askew, K, (• 192

Anstcii. 11. ;■ 187

JiailvV i\: ill., re 235

Uarnanl o. GosliiiLr 195

IJarkci, U. t' 200

liarkfr Uiiiii'huad i 20, 21

Bartk'tt, II. v 18

Banu'S v. White 210

IJasten V. Cai-ew 200

Beare, K. v 191

r.ell, Peacock v 14

Bedder's case 19

Bell, H. V 191

I'.ellamy, 11. y 146

r.eiuiiiiKi'uld, Dowell ,: 146

Berkeley, B. v 235

Bessell v. Wilson 157

Blackburn, Mayor of, Par-
kinson V 152

P.leasdale, ll.v 190

Bolton, Pi. i- IG, 235

Borron, U. v 243

Borrow, II. »• 83

Boultbee, \\. v 235

Bott i>. Ackroyd 200

Boycs, Pi. /'.. 18

Braciy'.s case; 11

Pireaeii, Sanilinian, y : 149

IWiekliall, 11. V 15.'-)

lirooke, Kin<r v 226

I?rook, (|. t. V. Milligan 194, 196

P.rown, 11. V 90

Brown, Diikenson, v 217

P.rown, Morgan v 197

Bryan, K. i\ 192

Burgess, Williiinis (' 146

P.urnal.y, li. c 12, 187, 190

Burrough, 11. t- 190

Buttlcr, Enimett v 18

Butl r, Lak<'. v 09

Butt'-rlield, II. V 18

Caldwell's case 216

Callhrop, Fletcher r 189

Carew, Basten n 200

Catenagli, Maden i' 20

Catherall, 11. v 14, 190

Cattell i>. Ireson 18

Caudle y. Seymour 148

Ciiandler, 11. v 152, 187

Ciiandler y Horn 181

Chanev v. Payne 188, 200

ChaneV, 11 V 200

Charter v. Graem & al.. 187, 200

Chayeney, R. c 188

Cheere, \\. r 188, 189

Clark k al., K. /• 195

Clarke, K. c 192

Clenison, Taylor v 153

Cohen ?■. Morgan 77

Cole v. Coulton )4S

Coleridge, Cox v 83

INDEX OF CASES.

:it

if!

Collier v. Hicks 83

Collins 0 Hopwood 195

Colt, Dalton v 20

Gomrs. Cheltenham, R. v.... 235

Constable, R. r., , 148

Cook V. Nethercofcc 181

Cook V. Swift 192

Cookson & al., Gmy v.. 150, 200

Corben, R. v 14

Coster y. Nilson 16

Coulton, Cole v 148

Cox V. Coleridge 83

Cripps V. Burden 1,51, 194

Crisp, R, V 186

Crofts, R. V 149

Cropper v Hortoc 77

Ci'oss, exparte 216

Cross, R. v 186

Cruse, R. v 149

CutlMish, R. V 219

Dalton V. Colt 20

Daman, R, y 188

Darton, J. J., R. v 148

Davis, R. V 16

Day V. King 212

Deace, R, v 196

Dickinson v Brown 217

Dimes v. Grand June. Canal. 1 1

Dodson, R. v 13

Dove,R. V 190

Dowcll «. Benningfuld 146

Drake, R. v 185,136

Diiignan v. Walker ... 69

Duncan, R. v 187

Dunn V. Penkwood 181

Durdon, Cripps v 151, 194

Earnslmw, R. y 191

Edlcston V, Francis 152

Edwards, R. V 187

Ellis, Rawlins v 69

Elsee v Smith 65

Emmett w. Butler 18

Empsey, Louch v 147

Eutrehman's case 21

Everett, R. v 190

Farewell, R, v 235

Field V. Jones 147

Fitzroy, Linford v 8, 98, 100

Fletchers. Calthrop 189

Fletcher, 3 o^hwo., ezparte 102

Ford, R. V 192

Forster, Mitchell i; 147

Foster, Mitchell v 153

Francis, Edleston v ,.. 152

Eraser's case 19

Freeman y. R(;id 147

Frosc, Labalmondiero v 200

Fuller, R. y 188

Furnival, Alison v 29

Galliard v. Laxton 217

Garland, Lester I' 146, 147

Gartham, VVithnall, v 225

Gee, Onley v 155

George, R. v 19

Geswood, re 192

Gil)bs,R. y 37,190

Gilliam's case 20

Gill y Scrivens 191

Gilyard, R. y 235

Goodrich, R. v 153

Gosling, Barnard y 195

Gossett y. Howard I4

Graem & al., Charter v 187

Grand June. Canal, Dimes v. U
Gray v. Cookson & al.. 150, 200

Greav Marlow,R. v 173

Green, Parker v 15

Green & al, R. v I4

Grittin, R. v 173

Grissell, Stokes 69

INDEX OF CASES.

Hall, R. V 185, 192

Hammond, R. v 149

Handley, R. v 150

Hardy v. Ryle 147

Hardyman v. Whittaker 195

Hare &al.,R.j; 196

Harrison I?. Leaper 150

Hawkins, exparte 188, 189

Hawkins, R. u 191

Haynes, R, V „ 36

Hazell, R. v 187

Helps, R. t; . .... 216

Hereford, Mayor of, case of 11

Herefordshire, J. J., R. t; 225

Hicks, Collier i; 83

Higgon, Yonng v , 147

Hoffman, Peppercorn v 213

Holmes, Latless v 147

Hope V. Hope 226

Hopwood, Collins v 195

Hopwood, ezf-irte 153

Horn, Chandler v 181

Horton, Cropper V 77

Hoseason, R. v 11

How, R. V 188

Howard, Gossett V 14

Howland in re 77

Hudson V, Macrae 13

Hiiggins, R. V 186

Humphreys, R. v 79

Huntingdon, J. J., R, v 200

Ireson, Cattcll v 18

.James, R. v.

189

Johnson, Masscy y.. 200

Jodes, Field v 147

Jones V. Johnson 212

Jones, Rice, exparte 153

Jukes, R. V 187, 188, 190

Keir D. Leeraan 183

Kendall i;. Wilkinson 226

King v Brooke 226

King, Day v 212

King, R. V 196

Kinnersley v Orpe 12

Labalmondifre v Addison... 152

Labalmondiferc v Frost 200

Lake u Butler 69

Lard, R. v 150

Latless v. Holmes 147

Laxton, Galliard v 217

Lee, Lindsay v , 20O

Leaper, Harrison v 150

Leeman, Keir u 183

Lester r. Garland 146, 147

Lindsay v Lee 200

Linford v Fitzroy 8, 98, lOa

Little, R. V 190

Llewellyn, R. d 188

Lloyd, R. V 190

London, Lord Mayor of, R. u. 102

Lopez, R. V 59

Louch i>. Enipscy 147

McDonnell, cj^a^/g 216

Macrae, Hudson v 13

Madt II V. Catanagh 20

.Jarvis, R. w 188,192 Marriott, R. y 192

.Jefferics, il. t; ,.. 185 Marriott u. Shaw 151

Jervis, R. u 189 Marsh, R. v 188

Johnson, «x/jflr/e 206,225 Marshall, R. r 190

Johnson y. Reid 212 Martin y. Pridgeon 155

Johnson, .Jones u 212 Massey y. .Johnson 200^

Xll-

INDEX OF CASES.

MastfiN, re.. _ 215

MaltlicwSjU. V 151

Maulden, II. v 14

Mayht^w y. WardUy 197

Mec V. Roid 21

Mc'IvilloK, Lord, casL- 15

Middlcliurst, R. v 188

Middlesex J. J., K. v 225

Mildranc's case 21

Milligan, Brook q. t. v 194

Mirehousi.', Somervillc v 152

Mitchellt'. Forster 147

Moore, R. y 18

.Morehouse re 152

]Morgan, Cohen v 77

Morgan v. Brown 107

Xash. R.i' 214

N!iyh)r, Partridf^e v 195

Nethercote, Cook v 181

Neville, R. v 192

Newman, larrv v 235

Niehi, R. v. ...1 188, 189

Nilson, Coster u IG

North, H. V 188

OCJrady, R. v 12

Omiohund v. Barker 20, 21

Unley V. Gee 155

Orpe, Kiunershy v 12

Oxfordshire, J. J., R. v 225

Pain. R. r 188

Paliu, Wright v 18

Palmer, R. v 191

Parker v. Green 18

Parker, Speercs v 191

Parkinson, Ratt r 206

Parry c. Newman 235

Partridge I'. Navhn- 195

Patchett, R V .". 193

Payne, Chaney t) 188,200

Peacock v. Bell 14

Peerless re 10 187, 212

Pellew, I'. M. of Walford 14G

Pcnkwood, Dunn v 181

Peppercorn v Hoflinan 213

Pcrelre, R. v 187

Perham, exparfe 188, 189

Pinney, R. v 243

Popplcweil, R. V 188

Post Mast. Gen., Shepherd v. 155
Post Mast. Gen., Turner v... 155

Powell, R. V 190

Pratten, R. v 101

Preston, R. v 153

Price, R. v.. 181

Pridgeon, Martin v 155

Prince i'. Samo 25

Queen's case 25

Queen, The, Spehnan v 180

Ratt t'. Parkinson 206

Rawlins V. Ellis 69

Reason, R. v 16

Reed, Freeman v 147

Reid, Johnson v 212

Reid, Mee v 21

Revel, R. v 247

Reynolds, Scarle o 150

Richards, R. y 216

Ridgway, R. v 189

Rispal, R. V 36

Robinson, R V 14

Rodenham, R. v 235

Rogers, R. v 216

Rowed, R. V 188

Rose, R. V 235

Rowton, R^ V 24

Russell, R. V 173

Ryle, Hardy v 147

INDEX OP CASES.

Xlll

Saddler, K. v 187

Saflron, Wiildon, 11. v 69

Sainsbury, R. o 173

Salomons, 11. o 193

Same, Prince v 25

Sandiman v. Broach 149

Sansomo, K. v 82

Sattlcr, R. v 59

Scrivcns, Gill v 191

Searle v. Reynolds 150

Seymour, Daudle u 148

Shaw. Marriott!) 151

Shawj R. V 153

Sheffield Railway Co., R. v.. 235
Shepherd v. Post Mas. Gen. 155

Shirley, A. G. v 188

Shropshire, J. J., R. v 147

Sills, n.v 18

Simpson, R. v 186

Smith, Elseei; 65

Smith, exparte I(j5, 216

Smith, Zohrab, v 153

Soden v. Gray 20

Somerville v. Mirehouse 152

Spailing, R. v 188, 189, 190

Speed, R. Vu 12, 188

Speeres y. Parker 191

Spelman v. The Queen ,... 189
Staffordshire, J.J., R. v.. '83, 197

Stewart, Wilson t) 150,165

Stokes V. Grissell 69

Stokes y. Byron 181

Storkers' case 188

Stripp, R. V 28, 83

Suffolk, J. J., R. V 12

Sutton, R. V 150

Swift, Cook V 192

Taylor r. Clemson 153

Taylor, R. v 190

Thexton & al , R. v. 13

Thompson, R. y 18

Tolley, R. v 14*)

Trelewnev, R. v 187

Tumor v. Post Mas, Gen 155

Turnr, re 192

Turner R. v 187

Van Heubeck, R. v 190

Wailbrd, M. of, Pellew v.... 146

Walker, Duignan y 69

Ward, R. v 153

Wardley, Mayhew v 197

Warwickshall, R, y 83

Warwickshire, J. J., R. v.... 223

Watson, R. v 15

Watts, R. V 79

White, Barnes v 216

Whittaker, Hardvman v 195

Wilkes, R. v \ 219

Wilkins V. Wright 195

Wilkinson, Kendall y 226

Williams y. Burgess 141

Williams, R. v..\ 149, 212

Williams, re 153

Wilson y. Stewart 150, 165

Withnall y. Gartham 225

Wiightv. Palin 18

Wright, Wilkins y...., 14

Wyatt, R. y 213

Yarrington, R. v 36,37

Young y. Higgon 147

Zohrab u. Smith 153

ERRATA.

Tagc 35, line 26 ft. "be " read "are."
" 70, line 22 ciise "that."
" 147, line 4 read « 31 Vict. o. 1. s. 7. subs. 14,)" for " (Viet. 3.

c. 1. s. 7.)"
" 150, lines 6 and 15 for " Okes Sjn. iii)" read ('<Okes Syn.
p.m.)"
153, lines 4 and 5 for «5 D & L." road « 5 D & R."
187, line 21 for "Hutton" read "Hulton."

187, line 31 for "Charier vs. Greene et al." read "Charter
vs. Graem et al."

188, line 30 for "(M. L.)" read "(M. C.)"

189, line 5 for " R. James Cald." read " R. v. James Cald."
192, line 9 for " Hutton" read " Hulton."
216, line 28 for '' 2 H. & H." road " 2 H. & N. 354."
230, line 31 for " be " read " is."
331, line 4 for "Aesontcd" read "Assented."
347, line 9 for "divers A.ct" read "divers Acts."
388, line 13 for " after tlie making" read " from the making

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INTRODUCTION.

Before entering upon the consideration of the Statutes of
Canada, having reference to the duties of Justices of the Peace,
with respect to indictable offences and summary convictions,
it is necessary to make some preliminary observations upon,

1. Justices of the Peace and how appointed.

2. The nature of the duties of Justices.

3. Jurisdiction of Justices as to Locality, interest, &e.

4. Evidence before Justices.

JUSTICES OF THE PEACE AND HOW APPOINTED.

For a long time previous to the Statute 1 Edw. 3. st. 2.
c. 16, there were peculiar officers at common law charged with
the maintenance of the public peace. Of these some had this
power annexed to other offices which they held ; others had
it merely by itself and were thence named custodes or con-
iervatores pads. The custodes or conscrvatores pacis are now
superseded by the modern justices. (2 Stephens Com. p. 648 ;
Stone's P. S. pp. 1 & 2 ; Paley on Con. p. 2). The custodes
or conscrvatores pacis were chosen by the freeholders at large;
agreeably to that principle of popular election in the choice of
magistrates which pervaded the Anglo Saxon institutions, and
seems from the earliest times to have characterized the policy
of all those northern nations from which they emanated (Paley
on Con. p. 2 ; 2. Stephens Cora. p. 649). By the Statute of 1
Edw. 3, already referred to, it was ordained in parliament that
for the better maintaining and keeping of the peace in every
county, good men and lawful, which were no maintainers of

I 1
I

l»f

■ :

2 APPOINTMENT OF JLSTICJiy,

evil or barrators in the county, should be assigned to keep the
peace. In this way the election of the conscrvatorcs pacts was
taken away from the people and given to the King ; this as-
signment being construed to be by the kings commission
(2. Stephens Com. 649 ; Stone, 2.). But they were still called
but conservators, wardens, or keepers of the peace, till the Sta-
tute 34 Edw. 3, c. 1, gave them the power of trying felonies,
when they acquired the more honorable appellation of justices
of the peace.

For many years however after the passing ol' the 1 Edw. 3.
their powers and duty were restricted simply to guarding and
taking security for the preservation of the peace. In process
of time however the power of hearing and determining offen-
ces was conferred upon them, which enabled them according to
die course of the common law to proceed in all such cases by
the method of inquisition and verdict — the justices were there-
fore under the necessity of holding sessions and assembling
jurors for the trial of even minor oftences. But the inconve-
nience attendant upon the system, forced upon the Legisla-
ture a conviction of the necessity of vesting in justices of the
peace authority to try summarily without the intervention of
a jury, and to sentence persons guilty of minor (jftences. The
earliest statutes granting such powers are the 12 Bic. 2. c. 2,
in the case of forcible entry, the 13 Ilcn. 4. c. 7, in case of riot,
and the 2 Hen. 5. s 1. c. 4, by which on the confession of the
party charged, the justice could punish as if convict by inquest.
The 17 Edw. 4. c. 4, would also seem to grant the power of
summary conviction in cases of fraud in making tiles. The 1 1
Hen. 7. c. 3, is the first statute which gave general powers of
summary conviction upon information (for the king) of all
offences, short of felony against any statute then in being.
The last mentioned statute was liowcvcr repealed by the 1.
Hem. 8, c. 6.

APPOINTMENT OF JUSTICES. 3

The earliest statute upon which a summary conviction by
a justice is on record, or of which a precedent is found in the
book«, is that of 33 Ilcn. 8. c. (5, agaiust the practice of carry-
iuf^ dap:p;s or short jruns (Paley p. 10).

Previous to tlie reign of James I — the power of summary
conviction by a justice did not exist in more than four or five
cases, but in that reign great additions were made to their
powers, and now a days in a great variety of cases, both in
England and Canada, Justices of the Peace exercise a very
cxten<l('d jurisdiction, not only over minor offences punishable
on siininiary conviction, and preliminary investigations into the
gravest crimes, but also, with the consent of the accused, over
crimes of a deep dye which by recent statutes they have power
to try in a summary manner.

Appointment of Justices.

Justices of the Peace in England are appointed by special
commission under the Great Seal, the form of which was settled
by all the judges A. T). 1 500 and continues with little ultera-
lion to this day. (I)

(1) " V'icTORiA, by the grace of God, &c., to greeting («).

" Know ye, that we have assigned yon jointly and severally and
every one of you our justices to keej) our peace In our county ot

; and to keep and cause to be kept all the ordinances and

statutes for the good of our peace, and for preservation of the same,
and for the (|uiet rule and government of our people made, in all
and singular their articles, in our said county (as well within
liberties as without), according to the force, form, and effect of
the same ; — and to chastise and punish all persons that offend
against the form of those ordinances or statutes, or any one of them.
In the aforesaid county, as it ought to be done, according to the

(«) If any gentleman is afterwards added to the commission,
which is done by appointment from the Lord Chancellor, the clerk
of the peace sends the commission to London to the Crown Office
at Westminster, where the iiame is inserted, and the commission
r<'soaled.

It f

APPOINTMExVT OF JUSTICES.

£ 1

f n.

i hi

,1'

ill

form of those ordinances and statutos ; — and to cause to come be-
fore you, or any of you, all those who, to any one or more of our
people concerning their bodies or the firing of their houses, have
used threats, to find sufficient security for tlie peace or their good
behaviour, towards us and our peaple ; and if they shall refustj to
hud such security, tlien them in our prisons until they whall find
such security to cause to be safely kept.

" We have also assigned to you, and every two or more of you
(of whom any one of you the aforesaid A. B., C. 1)., Ac, we will
sliall be one) our justices to inquire the truth more fully, by th(!
oath of good and lawful men of the aforesaid county, by whom the
ttuth of the matter shall be the better known, of all and all man-
ner of felonies, poysonings, inchantmcnts, sorceries, art magick,
trespasses, forestallings, regratiugs, ingrossings (i) and extortinos
whatsoever; — and of all and singular other crimes and offences,
of which the justices of our peace may or ought lawfully to inqui-
re, by whomsoever and after what manner soever in the said coun-
ty done or perpetrated, or which shall happen to be there done or
attempted ; — and also of all those who in tlie aforesaid counties in
companies against our peace, in disturbance o^ 'Uir people, with
armed force have gone or rode, or hereafter shah prtciume to go or
ride ; — and also of all those who havd there lain in wait, or herc-
nfter shall presume to lie in wait, to maim or cut or kill our peo-
ple ; and also of all victuallers, and all and singular other persons,
who in the abuse of weights and measures, or in selling victuals,
against the form of the ordinances and statutes or any one of them
tlierefore made for the common benefit of England, and our people
thereof, have offended or attempted, or hereafter shall presume in
the said county to ottend or attempt; — and also of all sheriffs,
bailiffs, stewards, constables, keepers of gaols, and other officers,
who in the execution of their offices about the premises or any of
them, have unduly behaved themselves, or hereafter shall presu-
me to behave themselves unduly, or have been or shall happen
liereafter to be careless, remi>:S, or negligent in our aforesaid coun-
ty ; — and of all and singular articles and circumstances, and all
otlicr thingK whatsoever, tliat concern the premises or any of
tlicm by whomsoever and after what manner soever in our afore-
said county done or perpetrated. Or which hereafter shall there
happen to be done or attempted in what manner soever ; — and to
inspect all indictments whatsoever so before you or any of you
taken or to be taken, or before others late our justices of the peace
in the aforesaid county made or taken, and not yet determined ;
— and to make and continue processes thereupon against all and

(6) The offences of forestalling, regrating, and ingrossing wer»^
abolished by the 7 & 8 Vict. c. 24.

APPOINTMENT OF JUSTICES.

singular the persons so indie tod, or who hefore you heroaftor shall
liappen to be indicted, untill they ean he taken, suryender them-
HelveH, or he outlawed ; — and to hear and determine all and 8in-
gular the felonies, poysonings, ineliantinents, sorceries, art magick,
trespaf ses, forestallings, regratings, ingrossings, extortions, unlaw-
ful assenil)lie8,. Indictments aforesaicl, and all and singular other
tile jiremises, according to the laws and statutes of England, as in
the like case it has been accustomed, or ought to be done ; — ani^
the same offenders and every one of them for their offences by
fines, ransoms, amerciaments, forfeitures, and other means, as ac-
cording to the law and custom of England, or form of the ordi-
nances and statutes aforesaid, it has been accustomed, or ought
to be done, to chastise and punish.

** Provided always, that if a case of difficulty upon the determi-
nation of any of the premises before you or any two or more of
you shall happen to arise, then let judgment in nowise be given
thereon before you or any two or more of you, unless in the pre-
sence of one of our justices of the one or other bench, or of one
of our justices appointed to hold the assizes in the aforet?aid
county.

" And therefore we command you and every of you, that to
keeping the peace, ordinances, statutes, and all and singular other
the premises, you diligently apply yourselves ; and tliat at certain
days and places which you or any such two or more of you as is
aforesaid shall appoint for these purposes, into the premises ye
make inquiries ; and all and singular tlie premises hear and de-
termine, and perform and fulfil them in the aforesaid form, doing
therein what to justice appartains, according to the law and ciis-
tom of England ; saving to us the amerciaments and other things
to us therefrom belonging.

" And we command by the tenor of these prc^sents our sherifVs

of the said county of , that at certain days and places, which

you or any such two or more of you as is aforesaid shall make-
known to him, he cause to come before you or such two or more
of you as is aforesaid, so many and such good and lawful men ot
his bailiwick (as well within liberties as without), by whom the
truth of the matter in the premises shall be the better known and
inquired into.

" Lastly, we have assigned you the aforesaid A. B. keeper of th<;
rolls of our peace in our said county; and therefore you shall
cause to be brought before you and your said fellows, at the days
and places aforesaid, the writs, precepts, processes, and indict-
ments aforesaid, that they may be inspected, and by a due course
determined as is aforesaid."

" In witness whereof we have caused these our letters to be made
patent. Witness ourself at Westminster, &c.

1 1

^11

APPOINTMENT OF .TlTHTlCES.

Dalton defines Justices of the Peace as " Judges of Record
*' appointed by the Kinj:- to be Justices within certain limits
" for the conservation of the peace ; and for the execution of
" divers thinj^s comprehended within their commission, and
" witliin divers statutes committed to their clifjrL'c." Djilton
p. G.

BdHig of Poircrs.

The power, office, and duty, of a Justice of the Peace depend
on his commission, and on the several statutes which have
created objects of his jurisdiction. His commission first em-
powers liim sin^rly to conserve the peace, and thereby j;ives
him all the power of the ancient conservators at the connnoii
law, in suppressing- riots and affrays, in taking securities for
the peace, and in apprehending and committing felons and
other inferior criminals. (2 Stephens Com. p. G54).

It is to be remarked that in the heretofore Province of Cana-
da, the practice has been, not to mention in commissions of
the Peace the powers thereby conferred on Justices of the
Peace. The commission being simply addressed to the per-
sons assigned by nanic, and then containing the following :
*' Know ye &c., we have assigned you jointly and severally
" and every one of you to keep our IVace in our District of
" Montreal, in that part of the Province of Canada called
" Lower Canada, with all and every the powers, authority.
" privileges, and advantages to the Office of Justice of the
*' Peace of right and by law appertaining. And we do here-
" by revoke and make void all former contmisilons."

It may be a question whether under such a commission as
the one in use heretofore in Canada, Justices of the Peace
derive any power from their commission, it merely making
them officers to carry out the provisions of statutes, creating
duties for and granting powers to. Justices of the Peace.

DUTIES OF .Il-STICES. 7

111 the several Provinces of the Dominion the dignity of
Justice of the Peace can nlonc 1)0 ronferrod. it appears, by the
Local Goverinncnt. ( 1 )

(^iiiih'jirnfion.

Tlie subject of property qualification is one now governed
l)y the local law of the Province, within which the Justice
of the Peace holds his commission, and the oath or oaths to
})C taken before actinp; are also prescribed by local laws.

K.i'-off'u'io Jiisfirrs.

The diurnity of Justice of the Peace is also attached to cer-
tain offices : Judjics of the Superior Courts of law, Recorders.
Mayors, Judges of Sessions are in many instances, by virtue
of their offices, -tXusticcs of the Peace for certain localities.

Tt is to be remembered that this work does not treat of the
duties of Justices of the Peace under acts of Local Lej.;isla-
tures. but is confined solely to a consideration of their duties
and powers under the acts of the l*av1iament of Canada,

II.

THE NATURE OF THE DUTIES OF .lUSTlCES OF THE PEACE.

Acts ministcrld/ or jvd'u'ini,

Miiiisterial acts.

Judicial acts.

The acts of Justices of the Peace in the discharge of their
duty are either ministerial ov judicial. Receiving information:*
or complaints for indictable cftences, and also for offiinces or
matters determinable in a summary way ; causing the party
charged to appear and answer either by summons or by war-

(1) Tlie Local Governnitnts posf^css apparently the right of
nomination ; l)ut vide Paloy p. 48, being specially officers of th«
criminal law it M-onld seem that the right to appoint them should
vest in the Doniinion GovcrunR'iit.

[

JURISDICTION OF JUSTICES.

Itl' <

•k
I HI'

liii::

rant; causing, in the case of summary convictions or orders,
Hucli conviction or order to be executed by warrant of distress
or of commitment, are ministerial acts. Taking the exami-
nations and bail, or committing for trial on charges for indic-
table oifenees (Linford vs. Fitzroy 3. N. S. C. pp. 443, 444 ;
contra Okes Syn, p. 5), the trial of offenders, the hearing and
.•Kljudicatioii. upon informations for summary offences, and
upon complaints for non payment of money underacts giving
them summary jurisdiction, and in fact all acts by them done
whereby they decide between rival claims, are judicial acts,

III.

JUlUb'DICTION OF JUSTICE AS TO LOCALITY, INTEREST, 4C.

fiiisLt of Jurisdiction.

The juristliction of Justices whether for Districts, Counties,
Cities, kc, in particular matters is derived from their com-
n)is!^ion (2) and numerous .statutes (Okes Syn. p. 7 ; Dicken-
sons Guide to the Q. S. 59.)

By the 32 k 33 Vic. c. 30, the authority of Justices of the
Peace with respect to the preliminary examination into in
dictable offence.-^ of all kinds is defined (Vide post).

By the 32 & 53 \'ic. c. 31. general rules and orders for
their guidance in .'nummary informations and complaints, over
tlie subject matter of which the Parliament of Canada has
jurisdiction, are laid down (Vide post).

By the 32 & 33 Vic. c. 32 &33, extensive powers are con-
ferred in Ontario and Quebec, upon Recorders, Judges of
(\.)unty Courts being Justices of the Peace, Commissioners of
Police, Judges of the Sessions of the Peace, Police Magistrates,
District ^Magistrates nnd other functionaries or tribunals in-
vested on the 22nd. June 18G9 with the powers vested in a

(2) See ante p. 6.

JURISDICTION OF JUSTICES.

Recorder by cap. 105 of the Consolidated Statutes of Canada,
and any functionary or tribunal with power *o do alone such
acts as are usually required to be done by two or more .Justi-
ces, and in Nova Scotia & New Brunswick upon Commissioners
of Police, and any functionary, tribunal or person invested
with power to do alone what is usually required to be done by
two Justices to insure the prompt and summ'>ry administration
of criminal justice in certain cases. (Vide p,,st).

By the 32 & 33 Vic. c. 35, still more extended powers arc
f2:ranted to any County Judge, Junior or Deputy Judge au-
thorised to act as Chairman of the General Sessions of the
Peace in Ontario, and to Judges of Sessions, District Magis-
trates in Districts wherein there are no Judges of Sessions,
and Sheriffs of Districts wherein there are neither Judges
of Sessions nor District Magistrates. (Vide post).

It is to be remembered that the provisions of the last men-
tioned act apply only to the Provinces of Ontario and Quebec.

JSummari/ Convictions,

Nnmher of Justices required to hear and deto'mine.

Power of one Justice to receive information and to issue
varrant of distress.

Power quoad indictahh offences.

In summary convictions, the jurisdiction of Justices is
wholly given to them by Statute. (Paley p. 15; Okes Syn.
p. 7.) If by the Act or Law upon which the complaint or
information is framed it be provided that it shall be heard
and determined by two or more Justices, then it must be
heard by the number, at least, of Justices therein specified.
(Vide 32 ct 33 Vic. cap. 31. sec. 27. and post). But if there
be no such provision in such Act or Law then it can be heard
and determined by one Justice (Vide 32 & 33 Vic, cap. 31.
sec. 28 post). Where power is given to one justice to do

4URISDICTI0N OF JUSTICES.

ail act, two or more can join in doin^' it. One Justice can re-
ceive an information and complaint and enforce any summary
conviction or order made by another or other Justices (32 &
33 Vic. cap. 31. sec. 85 k 86 post), and can do every act
out of sessions rehitive to any indictable oft'ence, save admitt-
injr, after liearinp^ the witnesses, a person accused of felony, to
bail for his appearance for trial. (32 i^. 33 Vic. cap. 30 sec).

Prlmarij jurindlctioii.

1)1 indictah/e oJfen(y\s.

Ill sumnwri/ convicUons a ml urdrrs.

The primary jurisdiction of Justices extended solely over
offences, conmiitted in the Division for which they were ap-
pointed. In indictable offences, now a days a Justice has juris-
diction to take the preliminary examination when the offence
has been committed in the Division for which lie has been
appointed, or when the party accused is therein or is suspect-
ed jto be therein (32 k 33 Vic. cap. 30. sec. 1 post.) In
summary convictions and orders it would appear as if the
offence or act complained of need not luive been committed
or done within the Division for which the Justice has been
appointed, so loni;- as the person accused is within such Divi-
sion, (but vide 32 i\: 33 Vic. c. 31 s. 1 <fc observations thereon
post).

Xt'Xt Just ICC.

Where a statute refers the nuitter to the next Justice or
any two Justices, no other but those answerini;' that descrip-
tion or those having' express jurisdiction by Act of Parlia-
ment can take cognizance of the matter, (Sanders case 1,
Saund. 2G3 ; Ke, Deerless 12. Q. B. 043.)

Place where mitlioritij can he exercised.

Oat of his Division.

Generally speakimz. the j)lace where thcvJustices can exer-

JURISDICTION OP JUSTICES.

else their authority must be within the territorial Division
for which they are appointed to act. (Dalt. c. 6.) It is very
doubtful whether a justice can out of his Division receive
an intormation to found a subsequent proceeding before him-
self of a penal nature, and it is clear that any coercive or judi-
cial act would be altogether invalid unless done within the
Division. (Dalt c. 25, 2 Hawk c. 8. s. 44. Paley p. 18).

JUSTICES INTERESTED IN THE TASE.

Ill f crest rcHifrrs Justice incompetent.

Lidhle to attacliment for acting.

No Justice of the Peace can act judicially in a case where-
in he is himself a party, or wherein he has any direct, or pecu-
niary interest however small. That no one can be a judge in
liis own case is a principle pervading every branch of law.
(Co. Lit. 141. a; Dalt. c. 173; Dimes vs. Grand Junction
('anal Co. ?>. fl. of L. Cases 759, 785). Every proceeding
which bears this objection upon its fiico is absolutely void,
if it do not so appear it is merely voidable. (Dimes vs. Grand
Junction Canal Co. supra). A Justice acting when interest-
ed, is liable to punishment by attachment. (The Mayor of
Herefords c.se 2 Ld. Kaym. 7G6; 1 Salk. 201. 390; II v.
Iloseason 14 East GOG).

Dnty of Justices when interested in matter at isitur.

Justices should refrain from taking part in any matters in
which thoy individually have a personal interest ; such as
where they are members of a company, or stockholders in a
bank, complaining or complained against. Where a Justice
upon the trial of a parish appeal, he being a rated inhabi-
tant of the appellant parish was on the bench during the
hearing, though he did not vote or give any opinion upon
the question or influence the decision, the order of sessions was

PKonHPm

HMDi

JURISDICTION OF JUSTICES.

held to be invalid by reason of his presence and interference.
K V. Justices of Suffolk 21. L. J (N. 8) M. C 169 ; Reg. v.
O'Grady 7 Cox C. 0. 247.)

ExcejHion .

Sometimes however a Justice of the Peace is expressly
empowered by statute to adjudicate, although to a certain
extent interested in the result of the decision. But great
care must be exercised by a Justice interested in a case, ere act-
ing therein as a magistrate, to assure himself that he is so
expressly empowered.

Officers 2)f'ohlhited from acting as Justices.

Certain officers are occasionally prohibited from acting as
Justices of the Peace. But as the prohibition is one lying
within the power of the Local Legislatures, it does not come
within the scope of the present work.

' ?'

OUSTER OF JUSTICES JURISDICTION.

Odster of jurisdiction on questions of property and title
and claim of right to do the act complained of

Where property or title is in question, the jurisdiction of
justices to hear and determine in the cases regulated by 32
& 33 Vic. c. 31 and other cases of the same class of summa-
ry matters is ousted, and their hands tied from interfering,
though the facts be .-sucli as they have otherwise authority to
take cognizance of. (II v. Burnaby 2 Ld. Bay. 900 ; 1 Salk.
181 ; B. V. Speed 1 Ld Baym. 583 ; Kiunersley v. Orpe
Doug. 499). This principle is not founded upon any legisla-
tive provision, but is a qualification whiv?h the law itself raises
in the execution of penal statutes and is always implied in
their construction.

The jurisdiction however is not to be ousted by a mere
fictitious pretence of title, or even by the honflfide claim of

it:'

JURISDICTION OF .irSTICES.

a right which cannot exist at law. (R v. Doelson 9 Ad & El.
704; Hudson v. Macrae 33 L. J. (N. S) M. C. 95; Okes
Syu. 31; Paley 117-122). •

ProhUntloii issnahle in certain cases.

It is said that upon a suggestion of title the Court of Queen's
l?ench in England, at any time while the conviction remains
below, and has not been removed by certiorari, will grant a
prohibition after conviction to stay the justice from proceed-
ing upon it. (Per Holt C. J. 2 Ld Raym. 901 ; Paley 122
cS: note (n) ) - '

. Acts of servant. .

The acts of a person's servants under his guidance in assert-
ing a right, would not render them liable to conviction if he
be not so liable. (Reg. v. Th^xton & al 23 J. P. 323).

GENERAL INGREDIENTS TO GIVE JUSTICES JURISDICTION.

The principal requisites or ingredients in general necessary
to give justices jurisdiction to exercise their authority are
therefore the following :

Jurisdiction as to j^/r/cc where offence was committed,
matter arose or where accused then is or is suspected to be.

Jurisdiction as to j?(f«ce of exercising their authority.

Jurisdiction not to be exercised where Justice is a party,
or interested ; ^ ,

^Yhen Justices are prohibited by Statute from exercising.

When Justices are disqualified from acting within their
jurisdiction by other causes than interest ;

When their jurisdiction (in all other respects complete) is
ousted by a question of property or title.

In addition to these there must be,

Jurisdiction over the subject matter within the strict mean-
ing of the commission, or the particular Statute, taking into
account all exceptions and exemptions allowable ;

^f i

1 1

! i!

.ILRlSDICTiON OF JL'STICES.

Jurisdiction in respect of the Justices description where
the authority is delegated to particular justices ;

Jurisdiction as to the time of offence or matter being pro-
secuted within the period limited by statute or otherwise ;

Jurisdiction as to the iiumhcr required to hear and deter-
mine ;

Jurisdiction as to the amount of forfeiture or penalty com-
pensation and its nature, and costs adjudged to be paid, and
the mode of their recovery by distress or otherwise, but ap-
propriate to the offence and the Statute;

Jurisdiction as to the term of imprisonment adjudged
neither for too short nor too long a period, and the proper
condition of its termination.

Jurisdiction sliould be (ippitrcDt on if rittcn proceediugs of
Justices.

It is not sufficient that Justices have the jurisdiction in
evciy respect ; upon all their written proceedings, especially in
those records of their judgments which are final, i. e. convictions
and orders returned to the Sessions, as the bad part cannot
be severed from the good (Wilkins v. AVright 2 C. k 31,
191 ; Braceys case 1 Salk 349 ; R. v. Corben 4 Burr. 2218 ; 11
v. Catherall 2 Str. 900 ; 1 T. 11. 249) in the case of convic-
tions, though orders may be (juashed in part if sufficiently di-
visible (H. v. Mauldon 1 M. k B. 31. C. 385; B. v. Bobin-
son 17 Q. B. 4GG, 471 ; B. v. Green k al. 20 L. J. (N. S.)
31. C. 168 k cases therein cited), every essential ingredient
and every material fact necessary to give jurisdiction should
appear. (Okes Syn. p. 33; Paloy 140, 141, 148; Gossett vs.
Howard 10. Q. B. 411, 452 ; Peacock, v. Bell 1 Saund. 74).

EVIDENCE BEFORE JUSTICES.

It is not intended here to enter into a consideration of the
whole law of evidence, a very succinct view of the law as to

I r m

EVIDENCE BEt'URE JUSTICES.

the coiupcteiicy and exaniination of witnesses, and the general
rules as to oral and other evidence will only be presented,
taken in great part from Mr. Okes exceedingly useful work
The jMagisterial Synopsis. This chapter is divided into three
parts.

1. The conipctency and examination of witnesses.

2. General rules as to oral and other evidence.
8. Documentary evidence.

JinJes of evidence oppfirahk as well to rieil r/.s rrimi)ial
cases.

ExccpiioHs.

According to the principles of English law it may be said,
that thcrc'is no difference in the rules of evidence applicable
to civil and criminal cases, and that what may be received in
one case may be received in the other, and what is rejected in
the one ought to be rejected in the other (Abbott J. in K v.
Watson 2 Star N. P. C. 155), and that a fact must be esta-
blished ])y the same evidence, whether it is to be followed by
criminal or civil consequences (IjordOIelville's case 29 How.
St. T. 763), yet the amount of proof to be exacted by justi-
ces varies with the nature of the proceedings before them. If
it be a preliminary inquiry into an indictable offence, the evi-
dence must raise a strong presumption of the guilt of the
party charged to justify the justice in committing him for
trial (see 32 & 33 Vic. cap. 30. s 52), In summary penal
proceedings the proof of guilt must be full ajul convincing,
while in matters of civil jurisdiction, a mere preponderance of
proof will suffice to establish the case. In sunjmary proceed-
ings, the justices arc placed in the position of a jnry, and the
degree of credit to be attached to the evidence, provided it
be legally admissible, is exclusively in their consideration and
judgment, the defendant being entitled io the benefit of any

EVIDENCE BEFORE .TT'STICES.

n &.

ipi ' ii<i> 1

rli !

iff
I if

I I

j! ;
i

V doubt which exists in their minds ; and therefore, whatever
the Court of Queens Bench upon an inspection of the pro-
ceedings, would deem sufficient to be left to a jury on a trial,
when the evidence was set out on the face of the conviction,
, was con'^idered by them adequate to sustain the conclusion
.' drawn by the convicting magistrates. Beyond that, the Court
would not exercise a judgment upon the credit or weight due
to the facts, from which the conclusion was drawn (R. v.
Davis 6. T. 11. 177, & sec Coster v. Nilson 3 31. & W. 411 ;
R. V. Reason 1 T. R. 375; R. v. Bolton 1 Q. B. 66; Saun-
ders. Prac. M. C. 3. Ed. p. (JG).

1. — THE COMPETENCY AND EXAMINATION OF WITNESSES.

Ohjcctluii to credihllitjj not to conqyetciin/.

It may be considered to be the general and established
principle of evidence that objection may be taken to the cre-
dibility, but not to the competency, of witnesses ; but this
rule is subject to some exceptions. Formerly a witness might
be objected to on many grounds, as being a party interested
in the result of a case ; but without mentioning prior acts of
the Provincial Parliaments, the Dominion act 32 & 33 Vic.
cap. 29, s. 62 provides :

General rule.

"No person offered as a witness shall, by reason of any
alleged incapacity from crime or interest, be excluded from
giving evidence on the trial of any criminal case, or in any
proceeding relating or incidental to such case.' '

63 " Every person so offered shall be admitted and be com-
pellable to give evidence on oath, or solemn affirmation,
where an affirmation is receivable, notwithstanding that
such person has, or may have, an interest in the matter
in question, or in the event of the trial in which he is offered

EVIDENCE BE FORK JlSTlCES.

as a witness, or of any proccediup; relating or inciileutal to
such case, and notwitlistandinp: tliat such person so oft'ered as a
witness has been previously convicted of fi crime or offence. "

Husband tt' wife.

It may be taken for prranted that under these two clauses
all persons gifted with reason who believe in a Supreme Being,
who will punish them cither in tlie present, or in the i'uture,
life for perjury. (Powell 10, 21) (save the accused and his
wife, on a charge of an indictable offence not committed by
him on her person, and the defendant and his wife in the
case of a summary prosecution not Ibunded upon a personal
injury to her), are competent witnesses,

In England the 14 & 15 Vic. c. 09 s. 2 & 3 rendered all
parties to any suit or proceeding in any Court of Justice, or
before any person having authority to liear, receive, and exa-
mine evidence, competent witnesses, 3ave the party charged
in any criminal proceeding. (.Summary convictions being
therein included). It was thereby moreover expressly pro-
vided, that nothing in the said act contained, should render
a person compellable to answer any (juestion tending to cri-
minate liimself or lierself, or should in any criminal ])roccod-
ing, render any husband competent or compellable to give
evidence for, or against his wife, or any wife competent or
compellable to give evidence for, or against her husband.

In cases of liigh treason and personal injury committed by
one upon the other, husband and wife are not excluded from
giving evidence for or against each other. (Okes Syn. GG k
note 82).

Wife o/ one accused competent iritnesH ii> cerf/iui rases
against other accused.

The wife of one of several persons accused of a joint offence
can. under certain circumstances, be examined as a witness

EVIDE.VCE BEFORE JUSTICES.

1 !

i I'iii.

Cor tl»e other persons accused. (11. v. Bartlett & al 8. J. P.
:}20 ; K. V. Moore 1 Cox C. C. 50 ; R. v. Sills 1 C. & K. 494).

Wliere two prip^ners were tried for a joint offence, and one
pleaded guilty, the wife of the one so pleading was admitted
us evidence a<;ainst the other prisoner. (Reg. v. Thompson 3
F. & F. 824).

Qnestlons tending to subject icitncss to 2)€naltt/ or jiunish-
ment.

A person can not be compelled to answer any question,
tending to subject him to .some penalty or punishment (Reg.
V. Boyes 1 B. & S. 311), but if he chooses he is competent to
do so. In the recent case of Reg. v. Butterfield 11 Law T.
N. S. 448, it was held that a witness was not obliged to ans-
wer a question tending to the forfeiture of a lease. (See Tay-
lor on Ev. 4th Ed. pp. 12.3G— 1248).

The proceeding to obtain a summary conviction by which
the defendant may be punished by fine or imprisonment is a
proceeding in a criminal case (Cattell vs. Ircson 27 L, J.
(N. S.) M. C. 167; Parker v. Green 2. B. & S. 299.) The
proceedings to obtain merely orders for the payment of money
are civil proceedings. (Cattell vs. Iresou supra).

Acquittal of one of accused renders him comjyetent to give
evidence.

One of the accused pleading guilty competent witness.

Independently of the 32 & 33 Vic. c. 29 which removes a
person's incapacity from crime, the law is, that where several
offenders are charged and the cases are heard at one time,
after all the evidence on both sides has been heard, if there
be no evidence against one of them he is then entitled to de-
mand an acquittal. (Wright vs. Palin R. & M. C. C. 128,)
but he is not entitled to a verdict in the midst of the inquiry,
(Emmett vs. Butler 7 Taunt 599) although the Court may

■ii'ii

EVIDENCE BEFORE JL'STICES.

In its discretion allow of his ncrjuittal at any staj^c of the trial
before the reply, in oraer that he may be examined as a wit-
ness (Bedders case 1 Sid. 237; 2 Hawk. P. C. c. 4G. s. 98).
When acquitted he is competent (Frasers easel Mac-NalEv.
55; R. V. George, Car. k Mar. Ill) ; also where one of seve-
ral defendants pleads guilty, he may be called as a witness
for the other defendants before sentence, unless he lias an
interest, as in conspiracy in obtaining their discharge. (R. v.
George, Car&;M.lll; See Taylor on E v. 4th Ed. pp. 1155,
115G.)

Poiccr and duty of Justices to administer oath to vitnesses.

It may be laid down as a general rule, that wherever Jus-
tices are authorised by Act of Parliament to hear and deter-
mine, or examine witnesses, they have incidentally a power to
take the examinations on oath or solemn affirmation as the
ca.se may be, and in fact examinations not on oath or solemn
affirmation, with one exception hereafter to be noticed, are
not evidence.

The oath is generally in the following form.

Form of oath.

" The evidence you shall give touching this information
" (or complaint or the present charge or the application or as
" the case may he) wherein is informant (or com-

" plainant or as the case may he) and is Defendant

" (or as the case may he) shall be the truth, the whole truth,
" and nothing but the truth. So help you God." the New
Testament should be, during the administration of the oath,
held in the witness' ricrht hand and at its conclusion he should
kiss it.

Quaker.

If the witness is a Quaker or other person allowed by law
to affirm instead of swearing in civil cases, or solemnly declar-

1 !

1 -^

! i

I ^^'

ii !

i! 1 '''■

I :li

EVIDENCE JJKI'UUE .ir.STlCES.

ing that the takiiiu; of any oath i.s aceortliii'^ to his i'cli<:iou.s
belief unlawful, he is |)(Mniitto4 so make lii.s solemn affirma-
tion or declaration of the farts he affirms to, commencing it
with the words •• Ii. A. B. do solemnly, sincerely and truly
" declare and affirm that kc" (:]2 &; 'S'd Vic. c. 20. s. 61.)
Foi'))i f>/i)(if/i to he (ircomodiifcd to rcfigioKS hrlirf of u'lt-

1ICSH.

The form of oaths under which (Jdd is invoked as a wit-
ness, or as an avenger of perjury, is tn 1k' accomodated to the
religious persuasion which the swearer entertains of God. and
to be administered in such form as is binding ou the witness'
conscience; it being vain to compel a mau to swear by a God
in whom he does not believe, and whom he does not therefore
reverence.

Infidels.

But if a person says he has no belief in a God, or iu a fu-
ture state, he cannot be sworn, and his evidence cannot be
received (Maden v. Catanagh 2i;. J. P. 248 ; Powell ; 22
Taylor on E v. p. 1251).

A Jew is sworn upon the Pentatench with his head covered
(2 Hale. P. C. 279 ; Omiehund v. Barker, Willes 543), but a
Jew who stated that he professed Christianity, but had never
been baptized, nor ever formally renounced the Jewish faith,
was allowed to be .sworn on the New Testament (Gilhams
case 1 Esp. 285). Where a witness refused to be sworn in
the usual way, but desired to be sworn by having the book
laid open before him, and holding up his right hand he was
sworn accordingly (Dalton v. Colt 2. Sid. G, AVilles 553).

Scotch.

The Scotch oath is thus admiuistered ; holding up his right
hand uncovered, the witness repeats after the Clerk (who ought

KVIDENCE BEFollK Jl'STKES.

to atliuiuistev the oatli with soloiunity and reverence, stauding) ;
•' I swear by Ahnii,'hty God, and as I shall answer to God at
the great day of jiulijcuient, that I will tell the truth, the
whole truth, and nothing l)ut the truth, in so far as I know
and shall be asked in this cause '' (Vide with slight alterations
forms in ]Mildrancs case 1 Leach 412 ; iS: Mee. v. Ecid, Peakc
N. P. C. 23).

Jf((Itoniffaiis,
I\n'Sf('ft.

A Mahometan is sworn on the Koran, placing one hand
on the book, the other on his forehead, he brings the top of
his forehead down to tin book, touches it with his head, and
then looks for some time upon it (Koscoc Cr. Ev. 3 Ed. p.
331 ). A I'arsee swears in a similar mode, except that instead
of the Koran' he swears on the prayer book used by the Par-
sees. A Peer must be sworn if examined as a witness (Arch-
bold P. cV: Ev. Civ. Act 480).

(teutons.

(liiucsc

!)('((/ ami dumb pci'so}is lonl/oiriyiin's.

Oath of interpreter.

The deposition of a Gcntoo has been received, who touched
with his hand the foot of a Brahmin (Omichuud v. Barker 1.
Atk. 21). A Chinese on entering the box kneels down, and
a china saucer being placed in his hand lie breaks it against
the box — the clerk then administers the oath to him in these
words " you shall tell the truth and the whole truth ; the
saucer is cracked, and if you do not tell the truth, your soul
will be cracked like the saucer (I^^ntrehmans case 1, Car &
M. 248). Deaf and dumb witnesses, as well as others who do
not speak the language spoken by the justice, should be sworn

EVIDENTE BEFOIIE JUSTICES.

througli the lucdium of another person duly qualified to in-
terpret them, the interpreter being first sworn faithfully to
interpret what the witness may say. The interpreters oath
may be in the following form.

" You shall truly and faithfully interpret the evidence
about to be given, and all other matters and things touching
the present charge {or information as the case may be) and
the (French or as the case may be) language into the English
language, and the English language into the (French or a«
the case may he) language, according to the best of your skill
and ability — So help you God,

[II 'i

■1'

MODE OF EXAMINATION OF WITNESSES.

E.camuiation in chief.

On an examination in chief a witness must not be asked
leading questions, i. e. questions in such a form as to suggest
tlie answers desired. There are several exceptions to this
rule : lo. With the permission of the Court, when the wit-
ness is hostile to the party by whom he is examined, 2o.
Where a witness has apparently forgotcn a circumstance, by
inspections of a memorandum to refresh his memory (Powell
376, 379) ; 3o. Where the object is to contradict another
witness as to a certain fact, 4o. Where the object is to iden-
tify persons. 5o. Where the (juestion is merely introductory
to another. A witness must be asked only questions of fact
which are relevant and pertinent to the issue ; and he cannot
be asked irrelevant questions, or questions as to his own in-
ferences from a personal opinion of fact.

General rule.

By the 32 & 33 Vic. cap. 29 it is provided that :

SI. 68 " A party producing a witness shall not be allowed to
" impeach his credit by general evidence of bad character, but

' .111

KVIDENCE BEFORE JUSTICES.

" in case the witness in the opinion of the Court, proves ad-
" verse, such party may contradict him by other evidence, or
'' by leave of the Court, may prove that the witness made at
"other times a statement inconsistent with his present testi-
" mony ; but before such last mentioned proof can be given,
"the circumstances of the supposed staten^ent, sufficient ti>
" designate the particular occasion, must be mentioned to the
" witness, and he must be asked whether or not he did make
" such statement."

E.rceptions.

It is further provided by the same Statute that :

s. G6 " It shall not be necessary to prove by the attesting
" witness any instrument to the validity of which attestation
" is not requisite, and such instrument may be proved by nd-
" mission or otherwise, as if there had been' no attestinu wif-
" ness thereto.

s. 07 " Comparison of a disputed writing with any writing
" proved to the satisftiction of the Court to be genuine, shall
" be permitted to be made by witnesses ; and such writings and
" the evidence of witnesses respecting the same, may be sub-
" mitted tc the Court and Jury, as evidence of the genuine-
" ness or otherwise of the writing in dispute.

( ^ross-cxam in a t io n .

On cross examination, a witness may be asked leading
questions; but where the witness appears to be favorable to
the party cross-examining, the Court will sometimes not suffer
him to lead his opponent's witness (Powell 381).

The 32 k 33 Vic. cap. 21) contains the following provi-
sions :

s. 64 " Upon any trial, a witness may be cross-examined as to
" previous statements made by him in writing, or reduced into
" writing, relative to the subject matter of the case, witiiout

EVIDENCE BEFORE JUSTICE^!.

ill

' 11

■Is

'•' such wrltiiifr beini;- .shown to him ; but if it is iuteuded to
•^ contradict the witness by the writing', his attention must be-
'' fore such contradictory proof can be given, be called to those
'' parts of the writing which are to be used for the purposes of
'' so contradicting him ; and the Judge at any time during the
'* trial, may require the production of the writing for his ins-
"• poet ion, and he may thereupon make such use of it for the
•• purposes of the trial as the thinks fit.

s. 85 " A witness may bo questioned as to whether he has been
" Convicted of any felony or misdemeanor, and upon being so

• (juestioned. if he either denies the fact or refuses to answer,
•• the opposite party luny prove such conviction, and a certi-
•' ficate, as provided in sectioii twenty-six, shall, upon proof
•' of the identity ol' the witness as such convict, be suificient
•• evidence of his conviction, without proof of the signature
•• or the oihcial character of the peri^on appearing to have
•• signed the certificate.

s. 69 " If a witness, ujtou cross-examination as to a former
•■ statement made by him, relative to the subject matter of the
•• case, and inconsjstent with his present testimony, does not
•• distinctly adn)it that he did Ujake such statement, proof
•• may be given that he did in fact make it ; but before such
•' proof can be given, the circumstani^es of the supposed s'^atc-
•• ment, sufficient to designate the particular occasion, must
•' be mentioned to the witne.'ss, and he must be asked whetlier

• or not he did n^ake such statement.

Witness as to character.

AVhere a prisoner calls witnesses as to character only, it is
not usual to cross-examine them, although the strict right so
to do exists (ViJe as to general reputation and evidence in
reply to evidence of character lleg. vs. Rowton 1 Lrig'. &
Cave C. (\ 520), uor is a person to be cross-examined who is
merely called to produce a deed or other instrumeujt.

EVIDENCE BEFORE JUSTICES.

Re-exam inat ion.

The office of are-examination ivS to be confined to showing
the true color and bearinpj of the matter elicited by cross-exa-
mination; and new facts or new statements not tendint*- to
explain the witness' previous answers, arc not to be admitted
(Prince vs. Samo 7 Ad. & E. G27 ; Quec^n's Case 2. B. k B.
207 ; Powell 390).

OENERAL RULES AS TO ORAL AND OTHER EVIDENCE.

Generctl Kules.

Best evidence. -

Originals accounted/or ere secondari/ evidence given.

Notice to 2)roduce.

Snhpcena duces tecum.

Xotice to produce unnecessarij in certain cases.

From various decisions and authorities the following' rules
have been extracted :

1. — One witness is sufficient if he can prove the necessary
facts, except where any statute declares there must be two
witnesses as in High Treason, and in cases of perjury.

2. — The evidence offered must correspond with the allc«ra- •
tions and be confined to the points in issue (Taylor sec. 172).

3. — The best evidence of which the nature of the case is \
apable must be given, and this rule relates not to the measure/
quantity of evidence, but to the quality. (Powell 3G).

4. — The law presumes innocence until the contrary bo
proved. (Powell 45).

5. — Hearsay evidence is inadmissible. (Powell 70.) (3)

(3. — The issue must be proved by the party wlio states an
affirmative; not by the party who states a negative. (Po-
well 167. Vide 32 & 33 Vic. c. 31 s. 43 post).

(3) Vide post nos, 24, 25.

/ '

/ capi
/ and

EVIDENCE BEFORE JUSTICES.

' I!

li:

7. — The issue must be proved by the party who states the
affirmative in substance, and not merely the affirmative in
form. (Powell 168).

8. — In every case the onus probandi lies on the person
who wishes to support his case by a particular fact, which
lies more peculiarly within his knowledge, or of which he is
supposed to be cognizant. (Powell 170).

9. — It is enough if only the substance of the issue be
proved. (Powell 172).

10. — Where two persons are charged jointly, the confes-
sion, or statements of one will not be evidence against the
other. (Powell 164).

11. — On trials for conspiracy, where the conspiracy has
been proved, the acts of one conspirator are evidence against
the other conspirators. (Powell 164).

12. — Conversations which have taken place out of the
hearing of the party to be affected cannot be given in evi-
dence.

13. — That the evidence of an accomplice is admissible,
but ought not to be fully relied upon, unless it be corrobo-
rated by some collateral proof. (Powell 24.)

14. — That where positive evidence of the facts cannot be
supplied, circumstantial or presumptive evidence is admissi-
ble ; and that circumstantial evidence should be such as to
produce nearly the same degree of certainty as that which
arises from direct testimony, and to exclude a rational pro-
bability of innocence.'(l Starkie on Ev. 3. Ed. pp. 571, 575).

15. — The law presume?? in criminal matters, that every
person intends the probable consequences of an act which
may be highly injurious. (Powell 46).

16. — It is a general presumption of law that a person acting
in a public capacity is duly authorized to do so. (Powell 48).

EVIDENCE BEFORE JUSTICES.

17. — If a man by his owu wrongful act withold the evidence
by which the nature of his case would be manifested, every
presumption to his disadvantage will be adopted. (Powell 49).

18. — The law presumes in favour of the continuance of
life. (Powell 50).

19. — A tenant cannot dispute his landlord's title. (Po-
well 52).

20, — A witness must only state facts ; and his mere personal
opinion is not evidence. (Powell 54, see exception No. 21).

21. — The opinions of skilled or scientific witnesses are ad-
missible evidence to elucidate matters which are of a strictly
professional or scientific character. (Powell 55).

22. — Counsel, solicitors and attorneys cannot be compell-
ed to disclose communications which have been made to them
in professional confidence by their clients. (Powell 60). Nor
can Priests and Ministers be compelled to disclose secrets con-
fided to them in confession made under the regulations of
their respective churches or persuasions.

23. — A witness cannot be compelled and will not be allow-
ed to state facts, the disclosure pf which may be prejudicial
to any public interest. (Powell QG).

24. — In matters of public or general interest, popular re-
putation or opinion, or the declaration of deceased witnesses,
if made before the litigated point has become the subject of
controversy, and without reasonable suspicion of undue par-
tiality or collusion, will be received as competent and credible
evidence, (Powell 78).

25. — The declarations of deceased persons are not admis-
sible as reputation, unless they have been made before the
issue has become, or appeared likely to become, a subject of
judicial controversy. (Powell 87).

26. — Ancient documents purporting to be part of the trans-
action to which they relate, and not a mere narrative of them.

EVIDENCE BEFORE JUSTICES.

1 I

I m

arc leceivablc in evidence tliat those transactious actually
occurred, provided they be produced from proper custody.
(Powell 89).

27. — III murder or homicide, the declarations of the de-
ceased, concerniuu' the cause and circumstances of the mortal
wound, if made with a full consciousness of approaching
death and religious responsibility, are admissible in evidence
for or against a prisoner who is charged with the crime.
(Powell 107).

28. — The admission of a partner is evidence against his
copartner in civil proceedings (Powell 142, 15G); under
which rule is included admissions by persons acting in the
character of agents or attorneys.

29. — Voluntary statements or observations made by a pri-
soner before the examining magistrate are strictly admissible
against him, whether reduced into writing or not. (1 Phill.
422 ; Reg. v. Stripp. 1 Dears. C. C. G48; 1 Lea. 309).

DOCUMENTARY EVIDENCE.

(1.) As to private documents,
(2.) As to public documents,*
(3.) Foreign and colonial laws,

1. AS TO PRIVATE DOCUMENTS.

According to the rule, that the best evidence must be given
^ (ante rule 3, p. 25), and that secondary evidence is inad-
I missiblc until the absence of primary evidence is explained
I satisfactorily, a party who relies upon a written document,
'■ i.nust either produce it, or show that he has made every rea-
sonable effort to produce it. In the latter case, if he has been
unsuccessful, ho may prove the original document, either by
a copy, or any other authentic kind of secondary parol evi-
dence. (Powell, 295)

EVIDENCE BEFORE JUSTICES.

The rule is. that all originals iiiiist be acoouuted for, be-
fore secondary evidence can be given of any one. (Parke, B.
Alison V. Fumival, 1 C. ^\. k K. 31)2).

It must first be proved that the original is in the hands of
the adverse party, and that a notice to produce has been
served on such a party a reasonable time beibre the hearing ;
but where the document is in the hands of a third party, a
subpoena duces tecum must be obtained from the crown office,
justices having no power in any case to summon a witness
and require him to produce documents before them. A notice
to produce is, however, unnecessary in these cases. (Powell
299, 301).

1. — Where a party holds a duplicate original or counter
part of the adversary's document ;

2. — Where the nature of the case and proceedings inform
the adverse party sufficiently, that he will be required to
produce the document ;

3. — A notice to produce a notice is not required, e. g. a,
notice to quit, a notice of action, notice of dishonour of a
bill, notice to produce a signed attorney's bill in an action on it ;

4. — If a party or his attorney be shown to have an original
with him in court, and refuses to produce it, secondary evi-
dence will be received, notwithstanding the want of a notice
to produce ;

5. — Notice will not be required when the adverse party
has admitted the loss of the original or where it is in the
nature of an irremovable fixture;

(). — Merchant seamen are permitted to prove orally an
agreement with the master of a ship, without producing the
original or giving notice to produce it, (17 & 18 Vic. c. 104.
s. 1G5).

EVIDENCE BEFORE JUSTICES,

i -I

Proof of handwriting how made.

Common law exception, to ride of calling attesting witness.

Documents to refresh memory of witness.
■ The proof of signatures or handwriting is the essential part
of the proof of private writings; there arc various admissible
kinds of such proof:

1. — Handwriting may be proved by a witness who actually
saw the party write or sign, which is the most sjitisfactory
evidence ;

2. — By a witness who has seen the party write on other
occasions, even if it be but once only ;

3. — By a witness who has seen documents purporting to
be written by the same party, and which, by subsequent com-
munications with such party, he has reason to believe the
authentic writings of such party ;

4.— By 32 & 33 Vic. c. 29 s. 67 (applicable to all Courts
and proceedings of a criminal nature) ''comparison of a dis-
puted handwriting with any writing proved to the satisfac-
tion of the Judge to be genuine shall be permitted to be made
by witnesses; and such writings and the evidence of wit-
nesses respecting the same, may be submitted to the Court
and Jury as evidence of the genuineness or otherwise of the
writing in dispute."

Should there be an attesting witness to the writing he must
in certain cases be called ; but by 32 & 33 Vic. c. 29, s. GQ,
in all cases, it is not now "necessary to prove by the attest-
ing witness any instrument, to the validity of which attesta-
tion is not requisite, and such instrument may be proved as
if there had been no attesting witness thereto." To this re-
servation there are several common law exceptions. Thus it
is a rule that — an attesting witness need not be called to prove
an instrument which is more than thirty years old ; or when

! (

EVIDENCE BEFORE JUSTICES.

the original is held by an adverse party, who refuses to pro-
duce it after notice (Okes Syn. p. 84), or when the adverse
party, in producing it, after notice, claims an interest under
it ; or when the adverse party has recognized the authenticity
of the instrument by acts in the nature of an estoppel in a
judicial proceeding (Okes Syn. p. 84), or when the attesting
witness is proved to be dead, insane, beyond the juris-
diction of the Court, or otherwise not producible after due
endeavours to bring him before the Court.

It will be suflBcient generally to prove in these cases the
handwriting of the attesting witness (Powell, 307). Docu-
ments will often be admissible to refresh the memory of a
witness, and the witness may give oral evidence accordingly
after a perusal of their contents : —

1. — When the writing actually revives in his mind a re-
collection of the facts to which it refers ;

2. When although it fail to revive such a recollection, it
creates a knowledge or belief in the witness that, at the time
when the writing was made, he knew or believed it to contain
an accurate statement of such facts ;

3. — When although the writing revives neither a recollec-
tion of the facts, nor of a former conviction of its accuracy,
the witness is satisfied that the writing would not have been
made, unless the facts, which it purports to describe, had ac-
curred accordingly (Powell, 309).

The following are established rules as to the admission of
oral evidence to vary or explain written documents: —

1. — Extrinsic evidence is inadmissible to contradict, add
to, subtract from, or vary the terms of a written instrument.

2. — Extrinsic oral evidence is inadmissible to prove that
another contract not under seal has been discharged, either
before, or after breach.

.']2

EVIDENCE BEFORE JUSTICES.

!]. — A written iustruuicnt cannot be released or avoided by
evidence of an intrinsically inferior nature.

4. — Extrinsic evidence is admissible to explain written evi-
dence. (Powell, 331, 35G).

2. PUBLIC DOCUMENTS.

Justices of the Peace take judicial notice of numerous facts
without proof, as the public Statutes of the Imperial Par-
liament ; the Statutes of the Dominion of Canada ; their own
course of procedure and practice ; the maritime law of nations ;
the great and privy seals of the realm ; royal proclamations ;
the divisions of the year ; Territorial Divisions of the Domi-
nion of Canada ; the Canada Gazette ; but they will not no-
tice the laws or customs of foreign States, and such laws
must be proved by skilled witnesses. So also must local laws
of the Provinces other than the one for a Division of which
the Justice has been appointed. (Vide Powell 242. Taylor,
sec. 7; Okes Syn. p. 85.)

Other documents are proved as follows ; Judgments of
Courts of Record by certified copy under Seal of Court ;

Assignments in insolvency before a Notary passed in the
Province of Quebec by copy certified by the Notary before
whom original deed was executed. (32 & 33 Vic. c. 16 s, 115).

By the Cons. Stat, of Ciinada cap. 80 the following provi-
^<ions were made with respect to the admission of evidence
of foreign judgments and certain official and other documents.

1. Any judgment, decree or other judicial proceeding,
recovered, made, had or taken in any of the Superior Courts
of Law, Equity or Bankruptcy, in England, Ireland or
Scotland, or in any Court of Record in Lower Canada, or
in any State of the United States of America, may be proved
in any suit, action or proceeding, either at Law or Equity in

EVIDENCE BEFORE JUtiTlCES.

• Tpper Canada, in which }>root' of any ruiu-h jiulirnu'nt. de-
•' cree or judicial proceeding may be necessary or rctjuiivd,
•' by an exemplification of the wimc under the Seal of (he

• said CourtH respectively, without any proof of the authen-

• ticity of Huch Seal, or other proof whatever, in the siime
■ manner Uf* any judgment, decree or similar judiciiil pn»-

• ceeding of any of the Superior Courts of Common Law or
•• E((uity in Upper Canada may be proved by an exeni))liti-
•' cation thereof in any judicial or other proceedings in the

• said last mentioned' Courts respectively.'

s, 2 " A notarial copy of any notarial act or instrument

• in writing made in Lower Canada, before a )iotary (tr

• notaries, filed, enrolled or enregistered by such notaiy or

• notaries, shall be received in evidence in any judicial or

• other proceeding, either at Law or Equity in I'pper Ca-

• nada, in the place and stead of the original, and shall
" have the same force and eifect as the original would hfive
•' if produced and proved."

s. 3 " Such notarial copy may be rebutted or set aside by
'• proof that there is no such original, or that the notarial
•' copy is not a true copy of the original in some material
''particular, or that the original is not an instrument of
•' such nature as may by the law of Lower Canada be taken
" before a notary or notaries, or be filed, enrolled or enregis-
'• tered by a notary or notaries in Lower Canada.''

s. 4 " Any judgment, decree, or other judicial proceeding

• of any Court of Record in Upper Canada, may be proved
•' in any suit, action or proceeding, in any Court in Lower
" Canada, by the production of an exemplification of such
'judgment, decree, or other judicial proceeding, under the

• Seal of such Court of Record, without any proof of the
' authenticity of the Seal, or other proof whatever.'

EVIDENCE BEFORK JUhTICES.

I ■; li

! !

f '

H. 5 " In every case io which the origiuul record could be
' received iu evidence, a copy of any oflScial or public docu-
' ment in this Province, purportiuf:; to be certified under the

• hand of the proper ofl&cer or person in \\\\ohc custody fcuch

• official or public documents may be placed, or a copy oi'

• any document, by-law, rule, regulation or proceeding, or a

• copy of any entry in any llegister or other book of any

• Corporation, created by charter or statute in this province,
' purporting to be certitied under the Seal oi' such Corpo-

• ration, and the hand of tlie presiding officer or secretary

• thereof, shall be receiveable in evidence of any particular
' in any Court of Justice, or before any legal tribunal, or
' the Legislative Council or Assembly, or any committee

• thereof respectively, or in any judicial proceeding, without
' any proof of tlie Seal of such Corporation, or of the signa-

• ture, or of the official character of the person or person.**

• appearing to liavo signed the same, and without any further

• proof thereof.'

s. 0 " All Courts, Judges, Justices, Masters in Chancery,
'' Clerks of Courts, Prothonotaries. Cominissioners, ,,udicially
" acting, and other judicial officers in this Province, shall
■' take judicial notice of the signature of any of the Judges
••of the Superior, Circuit, or County Courts of Law or
•• Equity in Upper or in Lower Canada, provided such
'' signature be appended or attached to any decree, order,
•' certificate, affidavit or other judicial or official document.'

In Quebec, besides the act just in part recited, it is pro-
vided by the Con. Stat, of Lower Canada, cap. 00, s. 5.
that the exein])lification of any judgment, decree, or other
judicial i)rocceding of any Court in the world, under its
seal or under the signature of the Prothonotary, Clerk or
(.^istodier of tlie Record, constitutes primil J'arif evidence

EVIDENCE BEFOnK JISTirEfe!.

juld be
13 docu-
tU-r the
ly >^uch
copy oi'
ng, or a
of ftuy
)roviuce,

I Corpo-
;ccrctary
articular
bunal, or
3nimittec
, -without
he higua-
v perj40U!*
ly further

of jiueh jud^Mieut. decree, &c., unles.M proof to vhe contrary
be rnnde. 8. 0 provider an to tho re<'eption of the exemplifi-
fication>4 of wills, cxetiitod in any country under tliC seal of
tin' Court where the will is of record, or under the signature
uf the Judge. .Surrogate or Clerk of such Court, or of the
Custodier of such will. »f< pi imd facie evidence of the execu-
tion of such will ; and also providei^ that the Probate of
such will under the seal of a Court of competent jurisdiction
shall be received as primfl facie evidence of its contents,
and also of the death of tlie testator, unless proof to the
contrary he made S. \) provides that a copy of Probate of
a will granted hy a Foreign Court may be recorded in the
• tffice of the Prntlntnotary of the Su}>erior Court, who tlien
can grant lupif.- ihenof having the same force and effect as
the original cxcuijilitication. S, 7 provides that certificates
of marriage, hirth .hmI biirijii. gninted by the priest, minister,
clergyman who uthciated thereat, or of the public officer
before whom such tnarriapi' was contracted, or an extract
from any register kept for the legistration of any such mar-
riage. Ijaptism or burial. certiti»'d h\ ihe legal Custodier
thereof, shall l»c taken and rcceiNcd as '"//////</'»> evidence
of its Contents.

The seaU. sijiiialures. aitd authority of the officer certify-
ing, need not be proved urdess expressly denied in writing
l>y any party to the suit or {)roceediug in which such docu-
ujeiits wi signed, scaled or ccrtiti«'(l 1m' pnxluccd. (s. 8 and

The seal tif any I'Vuvign State and tlic certilicute of any
• •fits Secretaries of State, when ottered in evidence to esta-
hlish the existence and com)>ctency of any Court, corporate
hody, dergymau, priest or minister, office or officer, its or
liis identity in relation to any jmhlie document, or any other

lH : I

f !

.TCRISDICTION OF THE QUARTER SESSIONS.

I ■■'

matter shall be deemed authentic without proof tiiereof, and
shall be taken and received as prinid facie evidence of the
fact intended to be established thereby (s. 10), subject to
denial as mentioned in the preceding paragraph.

The 80 cap. Con. Stat, of Canada applies to the Provinces
of Quebec and Ontario. The 90 cap. Con. Stat, of Lower
Canada applies solely to the Province of Quebec.

In any of the other Provinces in which no acts to the like
effect were passed previous to the creation of the Dominion,
the rules of the Common Law must bo followed as to the
proof of foreign judgment^, decrees, &c.

.lURlSDlCTlON OF THE QUARTER SESSIONS.

By their commission (when properly drawn), Justices in
session arc directed to hear and determine all felonies, poi-
sonings, enchantments, sorceries, arts, magic, trespasses, &c.,
and all other crimes and ofFenceSj of which such Justices may
or ought lawfully to inquire. (^Ayite p. 3 n. 1.)

Under the term felonies they had originally power to try
all capital felonies, e. g. murder, although not specially
named (Hawk. b. 2, c. 8, § 33) ; but they have been held
to have no jurisdiction in forgery (Id. ^ 38, and Reg. vg.
Yarrington, Salkeld 406).

They had no jurisdiction to hear and determine treacfon.
misprision of treason or praemunire (2 Hawk. c. 8, § 59).

Under the term trespas.ses they had authority to try all
misdemeanors which either involved a breach of the peace,
or had a tendency to produce it ; among which latter class
(ionspiracies have been included (R. vs. Rispal, 3 Burr. R.
1320). It has indeed been held that they have no power to
try perjury when prosecuted at Common Law (2 Hawk., c.
8, §38, R. vs. Hayues, R. k M. N. P. C. 298; Reg. vs.

JURISDICTION Of THK QUARTER SESSIONS.

Yarrington 1, Salkeld 406; R. vs. Oibbs 1, East 173);
though if that ofifence was indicted under 5 E., c. 9, (which
rarely happens) they have jurisdiction over it by the express
words of the act.

It seems to be now clear, that where an oftencc is created
and declared a misdemeanor by a statute passed since the
institution of the office of a Justice of the Peace, it may be
tried by a Court of Quarter Sessions, unless there is some
speciil direction that it shall be heard and determined by
another Court (Dickenson's Prac. Guide to the Quarter
Session, 4th Ed. p. 129, and vide cases contra in note (h)
same page).

Where a statute creates a new offence and limits it to be
tried before a Superior Court having criminal jurisdiction,
the Quarter Sessions cannot try it. (Vide 32 tS: 33 Vic, c.
29, § 12).

By the 32 & 33 Vic, c 29, ^ 12, it is provided that—

•' No Court of Grcneral or Quarter Sessions, or Recorder's
•• Court, nor any Court but a Superior Court having crimi-
" nal jurisdiction, shall have power to try any treason, or
" any felony punishable with death, or any libel."

By the 32 d- 33 Vic, c 21. § 70-92. it is provided as
follows : —

Agent, banker, dc, embezzling money or selling securi-
ties, &c., intrusted to him : or goods, dr.. intrusted to him
for safe custody.

Punishraent.

2sot to bankers, <i"C., receiving money due on securities ; or
disposing of securities on which they have a lien.

s. 76 " Whosoever, having been intrusted, either solely or

'jointly with any other person, as a banker, merchant, broker,

■' attorney or other agent, with any money or security for

JtTRISDICTlON OF THE QUARTER SESSIONS.

I ■

" the payment of money, with any direction in writing; to
'' apply, pay or deliver .sucli money or s<»curity <>r any part
'' thereof respectively, or the proceeds, or any part of the
'' proeceds of such security for any purpose, or to any person
"specified in such direction, in violation of oood faith, and
"contrary to the terms of .«uch direction, in anywise con-
" verts to his own use or ])enefit, or the us(^ or benefit of any
" person other than the person by whom he ha^ been so
'■ intrusted, such money, security, or proceeds, or any part
" thereof respectively, and whosoever, having been intrusted.
'' either solely or jointly with any other j^rson, as a banker.
" merchant, broker, attorney, or other agent, with any chattel
'or valuable security, or any power of attorney for the sale
'• or transfer of any share or inteiest in any public stock or
"fund, whether of the United Kingdom, or any part thereof.
• or of this Dominion of Canada, or any Province thereof, or
" of any British Colony or PossesHion. or of any foreign state.
" or in any stock oi- fund of any body corporate, company or
" society, for safe cu.><tody or fru- any special purpos*' without
" any authority to sell, negotiate, transfer or pledge, in viola-
" tion of good faith, and contrary to the object or purjM>se
" for which such chattel, security, or power ol' attorney has
"been intrusU^d to him. sells, iiegociates, transfers, pledges.
" or in any manner converts to his own use or benefit, or the
•• use or benefit of any ])erson other than the p<M-son V>y whom
" he has been so intrusted, such chattel, or security, or the
" proceeds of the same, or any part thereof, or the share or
" interest in the stock or fund to which such ])ower of attor-
'• ney relates, or aiiy part theieof. is guilty of a misdemeanor.
'' and shall be liable to l>e imprisoned in the Penitentiary for
"any term not exceeding seven years and not lesis than two
" years, or to be imprisoned in any otlier paol or jilac* of

JURISDJCTION (tF THE QUARTER .SESSIONS.

•• CHiitiuemeiit for any term less than two years, with or
'• without hard labour, and with or without solitary confine-
'• ment ; but nothing in this section contained relating to
*• agents .shall affect any trustee in or under any instrument
" whatsoever, o)- any mortgagee of any property, real or
'• personal, in respect to any Act done l)y such trustee or
'• mortgagee in relation to the property comprised in or
" affected by any such trust or mortgage : nor shall restrain
'• any bunker, merchant, broker, attorney or other agent from
'• receiving any money due or to become actually due and
'• payable upon (tr by virtue of any valuable security.
'• according to the tenor and effect thereof, in such manner
'• as he might have done if this Act had not been passed ;
'• nor from selling, transferring, or otherwise disposing of
" any securities or effects in his possession. u])on which he
'• has any lien, claim, or demand, entitling him by law so to
'• do, unless such sale, transfer or other disposal extends to a
*' greater number or part of such securities or effects than
•'■ are requisite for ^jatisfying such lien, claim or demand.''

BanJcers, d'c, frdvdxhntbf scVlng, (Src ptoperh/ intrusfed
fit their care. ^

s. 77 '• Whosoever, being a banker, merchant, broker.
" attorney, or agent, and being intrusted, either solely, or
''jointly with any other person, with the property of any
" other person for safe custody, with intend to defraud, sells,
• negociates, transfers, pledges, or in any other manner con-
'• verts or appropriates the same or part thereof, to or for liis
•• own use or benefit, or the use or lienefit of any person
'• other than the person by whom he was so intrusted, is
•guilty of a misdemeanor, and shall be liable to any of tlie
'' punishments which the Court may award as hereinbefore
■• last mentioned."

JURISDICTION OP THE QUARTER SESSIONS

I'erso/is under jwivers of attorney fraudulently selling
property.

a. 78 " Whosoever, being intrusted, either solely or jointly
'* with any other person, with any power of Attorney, for
'' the sa'e or transfer of any property, fraudulently sells or
'• transfers, or otherwise converts the same or any part
'' thereof to his own use or benefit, or the use or benefit of
'' any person other than the person by whom he was so
'' intrusted, is guilty of a misdemeanor, and shall be liable to
" any of the punishments which the Court may award as
'' liereinbefore last mentioned."

Factors ohtaining adoances on the property of their prin-
(ipals.

i'lerks wilfully assisting.

Prot'iso, as to cases excepted when the pledge does not
erveed the amount of their lien.

s. 70 ' Whosoever, being a factor or agept intrusted, either
•• solely or jointly with any other person, for the purpose of
■ sale or otherwise, with the possession of any goods, or of
•• any document of title to goods, contrary to or without the
'• authority of his principal in that behalf, for his own use or
'' benefit, or tlic use or benefit of any person, other than
•• the f)erson by whom he was so intrusted, and in violati(>n
" of good faith, makes any consignment, deposit, transfer or
'• delivery of any goods or document of title so intrusted

• to li'un as in this section before mentioned, as and by way
"of a pledge, lien or .security of any money or valuable
•* security, borrowed or received by such factor or agent at or
•' before the time of making such consignment, deposit, transfer
" or delivery, or intended to be thereafter borrowed or

• received, or contrary to, or without such authority, for his
" own use or benefit, or tlio use or benefit of any person

JUR18DI0TION OP THE QUAKTER SESSIONS.

'other than the person by whom he was so intrusted, and
'' in violation of good faith, accepts any advance of any
•• money or valuable security on the faith of any contract or
'' agreement to consign, deposit, transfer or delivery of any
'' such goods, or document of title, is guilty of a misde-
'• meanor, and shall be liable to any of the punishments
" which the Court may award as hereinbefore last men-
•' tioned ; and every clerk or other person who knowingly
" and wilfully acts and assists in making any such consign-

• ment, deposit, transfer or delivery, or in accepting or
•' procuring such advance as aforesaid, is guilty of a misde-

• meanor, and shall be liable to any of the same punish-

• ments ; Provided that no such factor or agent shall be
•liable to any prosecution for consigning, depositing, trans-

• ferring or delivering any such goods, or documents of title,

• in case the same are not made a security for, or subject

• to the payment of any greater sum of money than the

• amount, which at the time of such consignment, deposit.
•' trau.sfer, or delivery, was justly due and owing to such

• agent from his principal, together with the amount of any
•' bill of exchange drawn by or on account of such principal,
•' and accepted by such factor or agent.'

Dcjiiiltions of terms : {^trusted, pledge, possessed, loan
ui- (idcance, contract or agreement, advance.
Possession to be evidence of intrusting.
s. 80 '' Any factor or agent intrusted as aforesaid, and

• possessed of any such document of title, whether derived

• immediately from the owner of such goods, or obtained by

• reason of such factor or agent having been intrusted with

■ the possession of the goods, or of any other document of
title thereto, shall be deemed to have been intrusted with

■ the possession of the goods represented by such document

■ *■

! !

* im

! •

. i I

1 't.

! ;!i

JfRlSDlCTION OF THK QUARTER SESSIONS.

'• of title ; aud every coutract plcdgiug or giving u lien upon
" Huch document of title as aforesaid, shall be deemed to be
" a pledge of and lien upon the goodn to which the same
'relates; and suchj factor or ngent shall be deemed to be
" possessed of such goods or document, whether the Bame
'• are in his actual custody or held by any other person Hub-
'• ject to his control, or for him, or on his behalf; and where
" any loan or advance is houci fide, made to any factor or
'- agent intrusted with and in possession of any such goods
'• or document of title ; on the faith of any contract or agroe-
'• ment in writing to consign, deposit, transfer or deliver such
'' goods or document (»f title, and such goods or document
•'' of title is or are actually received ))y the person making
'• such l<tau or advance, without notice that such factor or
'' agent was not authorized to make such pledge or security,
" every such loan or advance shall be deemed to be a loan or
'• advance on the security of such goods or document of
" title, within the meaning of the last preceding section,
" though such goods or document of title arc not actually
'* received by the pcrr.ou making such loan or advance till a
'• period subsequent thereto; and any contract or agreement
'' whether made direct with such factor or agent, or with
*'■ any clerk or other person on his behalf, shall be deemed
'• a contract or agreement with such factor or agent ; and
" any payment made, whether by money or bill of exchange
'• or other negotiable security, shall be deemed to be an
*• advance within the meaning of the last preceding section ;
" and a factor or agent in possession, as aforesaid, of such
" goods or document, shall be taken for the purpose of the
" last preceding section, to have been intrusted therewith by
'• the owner thereof, unless the contrary be shown in evi-
'• denco."

I i'

jrRlSDICTION OF THE QUARTER SE8810NS.

Trustees fraudHlentli/ disposing of property guilty of <i
misdemeanor.

Xo prosecution shall he c/jmmcnccd iriffum/ f/ir sanrfion
of some judge or the Attorney General.

.s. 81 " Whosoever, being a trustee of any propeity lor
" the use or benefit, either wholly or partially, of some other
•• person, or for any public or charitable purpose, with intent
'• to defraud, converts or appropriates the same, or any part
'• thereof, to or for his own use or benefit, or the use or
■ benefit of any person other than su^h person as aforesaid,

• or for any purpose other than such public or charitable

• purpose as aforesaid or otherwise disposes of or destroys
'• such property or any part thereof, is guilty of a niisde-
" mcanor, and shall be liable to any of the punishments

• which tlic Court may award as hereinbefore last men-

• tioned ; Provided that no proceeding or prosecution for
•• any oflFence included in this section shall be commenced

• without the sanction of the Attorney General, or Solicitor
•• General for that Province in which the same is to be insti-
•' tuted ; Provided also, that when any civil proceeding has
•• been taken against any person to whom the provisions of
'• this section may apply, no person who has taken such civil

• proceeding shall commence any prosecution under this sec-
" tion without the sanction of the Court or Judge before

• whom such civil proceeding has been had or is pending."
Directors, c&c, of any body corporate or ^^uhlic company

fraudulently ajyprojmating ptrojicrty.

s. 82 " Whosoever, being a director, member, manager or
'• public officer of any body corporate or public company,
" fraudulently takes or applies for his own use or benefit, or
'• for any use or purposes other than the use or purposes of
'• such body corporate or public company, any of the pro-

JURISDICTION OP THE QUARTER 8E8SI0Nfi.

!l Si

((

perty of such body corporate or public company, is guilty
of a misdemeanor, and shall be liable to any of the punish-
ments which the Court may award as hereinbefore last
mentioned."

Or fraudulently keeping false accounts, or books.

8. 83 " Whosoever, being a director, member, manager, or
public officer of any body corporate or public company,
as such receives or possesses himself of any of the property
of such body corporate or public company, otherwise than
in payment of a just debt or demand, and, with intent to
defraud, omits to make, or to cause or direct to be made,
a full and true entry thereof in the books and accounts
of such body corporate or public company, is guilty of a
misdemeanor, and shall be liable to any of the punish-
ments which the Court may award as hereinbefore last
mentioned."

Or wUfullij destroying or falsifying hooks or papers, dhc.

s. 84 " Whosoever, being a director, manager, public
officer, or member of any body corporate or public com-
pany, with intent to defraud, destroys, alters, mutilates or
falsifies any book, paper, writing or valuable security
belonging to the body corporate or public company, or
makes or concurs in the making of any false entry, or
omits, or concurs in omitting any material particular in
any book of account or document, is guilty of a misde-
meanor, and shall be liable to any of the punishments which
the Court may award as hereinbefore last mentioned."

Or fraudulently jntblishing false statements or accounts.

8. 85 '' Whosoever, being a director, manager, or public
officer, or member of any body corporate or public com-
pany, makes, circulates or publishes, or concurs in making,
circulating or publishing any written statement or account

i; ;i;!'

JURISDICTION OF TUE QLARTER SESSIONS.

•' which he knows to be false in any material particular, with
" intent to deceive or defraud any member. Hhareholder, or
'• creditor of such corporate or public company, or with

' intent to induce any person to become a shareholder or
" partner therein, or to intrust or advance any property to
" puch body corporate or public company, or to enter into

• any security for the benefit thereof, is guilty of a misde-

' meanor, and shall be liable to any of the punishmentt'
•' which the Court may award as hereinbefore last men-
•' tioned.'"

Xo person to he exempt from answeritiy questions in any
court ; but no person making a disclosure in any eompul-
iory proceeding to he liable to prosecution .

s. 86 '' Nothing in any of the last ten preceding sections
•' of this Act contained shall enable or entitle any person to
'' refuse to make a full and complete di.scovery by answer to
" any bill in equity, or to answer any question or interroga

' tory in any civil proceeding in any Court, or upon the
" hearing of any matter in bankruptcy or insolvency ; and
" no person shall be liable to be convicted of any of the mis

' demeanors in the said sections mentioned by any eviuence
'' whatever, in respect of any act done by him, if, at any
" time previously to his being charged with such oflfence, he
" has first disclosed such act on oath, in consequence of any
" compulsory process of any Court of Law or Equity, in any
'' action, suit or proceeding, bond fide instituted by any
" party aggrieved, or if he has first disclosed the same in any
■'compulsory examination or deposition before any Court.
" upon the hearing of any matter in bankruptcy or insol-
" vency.'

JURISDICTION or THE QUARTER SESSIONS.

No remedy at law or in equity to he affected.
Convictions not to he received in evidence in civil suits.
H, 87 " Nothing in the last eleven preceding sections of
this Act contained, nor any proceeding, conviction or judg-
ment to be had or taken thereon against any person under
any of the said sections shall prevent, lessen, or impeach
any remedy at law or in equity, which any party aggrieved
by any offence against any of the said sections might have
had if this Act had not been passed ; but no conviction of
any such ofifender shall be received in evidence in any
action at law or suit in equity against him; and nothing in
the said sections contained shall affect or prejudice any
agreement entered into, or security given by any trustee,
having for its object the restoration or repayment of any
trust property misappropriated."
Keepers of warehouses, (&c., giving false receipts.
Persons knowingly using false receipts.
!«. 88 '' If the keeper of any warehouse, or any forwarder,
common carrier, agent, clerk, or other person employed in
or about any warehouse, or if any other factor or agent,
or any clerk or other person employed in or about the
business of such factor or agent, knowingly and wilfully
gives to any person a writing purporting to be a receipt
for, or an acknowledgment of any goods or other property
as having been received in his warehouse, or in the ware-
house in or about which he is employed, or in any other
manner received })y him or by the person in or about
whose business he is employed, before the goods or other
property named in such receipt or acknowledgment have
been actually delivered lo him as aforesaid, with intent to
mislead, deceive, injure or defraud any person or persons
whomsoever, although such person or persons may be then

JURISDICTION OV THE QUARTER SESSIONS.

agent, H

• '

it the H

ilfally H

eceipt H

3perty ^m

ware- ^1

other H

about H

other H

have H

i^nt to ^1

ersons ^M

• '

Q then H

(•'

unknown, — or if any person knowingly and wilfully accepts
or transmits or uses any such false receipt or acknowledg-
ment, the person giviofj and the person accepting, tranc-
raitting or using such receipt or acknowledgment, are
severally guilty of a misdemeanor, and shall be liable to
be imprisoned in the Penitentiary for any term not excee-
ding three years, and not less than two years, or to be
imprisoned in any other gaol or place of confinement for
any term less than two years, but not Ict^s than one year."

Owners selling after advance hy consignees.

Proviso : if consignee s advances he paid.

s. 89 " If any merchandise has, in the name of the owner
or of any other person, been shipped or delivered to the
keeper of any warehouse or to any other factor, agent or
carrier, to be shipped or carried, and the consignee after-
wards advances any moneys or gives any negotiable security
to such owner or other person, then, if after any such
advance the said owner or other person for his own benefit
and in violation of good faith, and without the consent of
such consignee first had and obtained, makes any disposi-
tion of such merchandise different from and inconsistent
with the agreement made in that behalf between such
owner or other person aforesaid and such consignee at the
time of or before such money being so advanced or such
negotiable security being so given, with the intent to
deceive, defraud or injure such consignee, the owner or
other person aforesaid, and each and every other person
knowingly and wilfully acting and assisting in making
such disposition for the purpose of deceiving, defrauding
or injuring such consignee, is or are guilty of a misde-
meanor, and shall be liable to be imprisoned in the Peni-
tentiary for any term not exceeding three years, and not

.n'RlSDICTION OF THK QCARTKR SESSIONS.

;

f:i:

" lesH than two yearn, or to be imprisoned in any other gaol
" or place of eontinemeut for any term Ichh than two years
'' but not less than one year ; but no person shall be subject
" to prosecution under this section, who had, before making
" a disposition of the merchandise aforesaid, paid or tendered
" to the consignee the full amount of any advance made
" thereon. "

Ah'llers, Juctors, tic. (jliitnj irrtififs for yoods, (did not
delivering the smne (rccordingly.

Proviso.

s. 90 '' Any miller, warehouseman, factor, agent, or <jther
'* person, who, ai'ter having given, or after any clerk or pcr-
•' son in his employ has to his knowledge given, as having
" been received by him, in any mill, \^arehouse, vessel, cove.
•' or other place, any receipt, certificate or acknowledgment,
'• for grain, timber, or other goods or property, which can be
" used for any of the purposes mentioned in the Act passed
" in the thirty-first year of Her Majesty's reign, and inti-
" tuled : • An Act respecting Banks.' or any person, who,
" after having obtained any such receipt, certificate, or
" acknowledgment, and after having endorsed or assigned it
" to any bank, or person, afterwards and without the consent
'' of the holder, or endorsee in writing, or the production
" and delivery of the receipt, certificate, or acknowledgment,
'■ wilfully alienates, or parts with, or does not deliver to
'* such holder, or endorsee, of such receipt, certificate or
" acknowledgment, the grain, timber, goods, or property
*' therein mentioned, is guilty of a misdemeanor, and shall
" be liable to be imprisoned in the Penitentiary for any
" term not exceeding three years, or in any other gaol oi-
" place of confinement for any term less than two years, ^ •'♦♦
•not lees [than one year; Provided that nothing in

: i

Jl'HISDICTION OP THE Ql'ARTEU 8EPMI0NK.

•• Hectiou shall prevent tlie ofieuder from being indicted and
" punished for larceny, in5»tead of niisdenioannr, if. as ho'w^

• a bailee, his oflfence amounts to larcenv.

Ah /o jj'o7/k'/-s.

f<. 91 '• If any oflfence in the lawt three |)receding neetions
•• mentioned be committed by the doing of any thing in the
•• name of any firm, company or copartuer.>*hip of persons, the
" person by >Yhom 8uch thing i.s actually done, or who con-
" nives at the doing thereof, ^hall be deemed guilty of the

• offence, and not any other person."

Ccvtain misdcmmnors not triahh at tSessiuns.

s. 92 '• No misdemeanor against any of the sixteen lust
'• preceding sections of this Act .'<hall be prosecuted or tried
'• at any Court of General or Quarter Sessions of the Peace ;

• and if upon the trial of any person under any of the said
'• sections, it appears that the oflfence proved amounts to
'• larceny, he shall not by reason thereof be entitled to })e

• acquitted of a misdeiiieanor under the said sections."

Thus, none of the offences .specified in the foregoing sec-
tions can be prosecuted or tried at any Court of General or
Quarter Sessions of the Peace, uor can they be summarily
tried with the consent of the prisoner or accused under the
provisions of the 32 & 33 Vic, c. 35, which however only
applies to the Provinces of Quebec and Ontario.

By the 32 & 33 Vic, c 20, it is provided :—

Cmtsing hodily injury hij gunpov'dcr. d'c,

s. 27 '* Whosoever unlawfully and maliciously, by the

• explosion of gunpowder or other explosive substance, burns,
•m''''us, disfigures, disables or does any grievcTlis bodily

m to any person, is guilty of felony, and shall be liable

oe imprisoned in the Penitentiary for life, or for any

•' I'm not less than two years, or to be imprisoned in any

I '

I ■<

.II'M!*1>1(T10N Op THE QUARTER SESSIONS.

•• other ira(»l or place of eoutiuement for any term less than
•• two veins, with or witliout hard labour and with or without
•• ."iolit.'irv continenient."

('tfiisiiuf (fiDtpowdfr to explode, or sending to ani/ peraon
an rrp/oslre substance, or throwing corrosive fluid on a
person vit.h intent to do grievous bodily harm.

.«^. 2H '• Whosoever unlawfully and maliciously causes any
•• ji;un]»owder or other explosive substance to explode, or send.s
'• or delivers to, or causes to be taken or received by any
- person, any explosive substance, or any other dangerous or
• iKtxiou.s thing, or puts or lays at any place, or casts or
•• throws at or upon, or otherwise applies to any person, any
'• corrosive fluid, or any destructive or explosive substance,
'' with intent in any of the cases aforesaid, to burn, maim.
*• disfigure or disable any person, or to do some grievous
"' bodily harm to any person, whether any bodily harm be
*' effected or not, is guilty of felony, and shall be liable to be
•' imprisoned in the Penitentiary for life, or for any term
" not less than two years, or to be imprisoned in any other
" gaol or place of confinement, for any term less than two
" years, with or without liard labour, and with or without
*' solitary confinement."

Placing gmqwwder near a building, with intent to do
bodily harm to any person,

s. 29 " Whosoever unlawfully and maliciously places or
•' throws in, into, upon, against or near any building, ship
" or vessel, any gimpowd(;r or other explosive susbtance.
" with intent to do any bodily injury, to any person, whether
" or not any explosion takes place, and whether or not any
• bodily injury is effected, is guilty of felony, and shall be
*' liable to be imprisoned in the Penitentiary for any term
'• not exceeding fourteen years and not less than two years.

JURISDICTION UF THE QUARTER RESilONS.

"or to be imprisoned in any other gaol or plate of confiue-
'ment for any term less than two year**, with or without

• hard labour, and with or without solitary confinement,"

Court of Q. S. not to try certain offencca.
8. 48 '* Neither the Justices of the Peace actinj:^ in and
" for any District, County, Division, City or }>lacc, nor any

• Judge of the Sessions of the Peace, nor the Recorder of
•' any City, shall, at any Session of the I'eace, or at any
" adjournment thereof, try any person for any oft'oncc under

• the twenty-eighth, or twenty-ninth Sections of this Act."

Vide Observations on sections of 32 & 313 Vic. c. 21,
(I lite p. 40.

Justices in admitting parties to bail or in committing
them for trial, should bear in mind the foregoing exceptions
to the jurisdiction of the Quarter Sessions, and in all the
oases mentioned as excepted commit, or bind over, the
jiccuscd for trial before a Superior Court luiving jurisdic-
tion.^'

• It is impossible to account for the selection by the TiCjcisla-
liiro of a great number of the crimes and offt-nces dt'chirod not to
lie triable at Quarter Sessions, or to assign any valid reason for
excepting from the jurisdiction of that Court the fraud of a ware-
liouseman, whilst the heinous crime of removing a rail belonging
to a railway off a railway track, or obstructing a railway by
placing across it any wood, stone, or other thing, with intent to
throw II train ofll' the track, can be tbere iiicd.

•^ I

JUSTICES ACT,

CAP. XXX.

An Act respecting the duties of Justices of the
Peace, out of Sessions, in relation to persons
charged with Indictable Offences."

" [Assented to 22nd June, 18fi9.] "

WHEREA8 it in expedient to assimilate,
amend and consolidate the Statute Lawfs
of the several Provinces of Quebec, Ontario,
Nova Scotia and New Brunswick, respecting the
duties of Justices of the Peace out of sessions
in relation to persons charged within dictable
olfences, and to extend the same as so conso-
Udated to all Canada : Therefore, Iler Majesty. |
by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as
follows : "

The effect of this Statute and ol' 82 k 33 Vict., c. 36, is
to repeal the Statute Liiw.'^of theseveriil Provinces of Quebec.
Ontario, Nova Scotia and N(W Brunswick, rcspeetiug tho
duties of Justices of the Peace out of sessions, in relation
to persons charged with indictal)lo offences, and to substitute
in the room and place (»f those Statute Laws, the provisions
of this Act.

1. '* In all cases where a charge or complaint
(A) is made before any one or more of Her
Majesty's Justices of the Peace for any Terri-
torial Division in Canada, that anv person has

•■^IWJIW"

JUSTICES ACT.

committed, or is suspected to have committed,
any treason or felony, or any indictable misde-
meanor or oH'ence within the limits of the
jurisdiction oi' sucli Justice or Justices of the
Peace, or that any person g'uilty or suspected to
be guilt^^ of haA'inii committed any such crime
or ofl'ence else\vh(Me out of the jurisdiction of
such Justice or .lustices, is residiu;^ or being, or
is suspected to residi* or he within the limits of
the Jurisdiction of such Jiistice or Justices, then,
and in every such case, if the person charged
or complained against is not in custody, such
Justice or Justices of the Peace may issue his
oY their Warrant (H) to apprehend such person,
and to cause him to 1)0 brovight before such
Justice or Justices, or any other Justice or Jus-
tices for the same Territorial Division."

This «octif;a i aliiuist a copy word for word of the first
j.art of ^ 1 of tlie Imperial Statute 11 & 12 Vic, c. 42.

Any Justice of tlio i*»>a((> fi»r any Territorial Division in
Canada hsi.s, under tiiis section, power on a charge or com-
plaint in writin*!; (according to the Form A in the Appen-
ilix). on the oath or affirmation of any credible person being
made before him. that any )n.'rson has committed or is sus-
l>octed to have committed any treason, felony, or indictable
iiii^lcmeanor or oftenee within the Territorial Division for
wliioh sueh Ju.stice of the Peace has been appointed to issue
lii.^ warrant (in the Form B in the Ap^wndix). to apprehend
.inrl to cause to be brought Ijcfore him or any other Justice
<»r Justices for the same Territorial Division, such perBons.
and in all c«ses where mc\\ charge or complaint is made

JUSTICES ACT.

I
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i : .

. ; ii

M-'

heforo a Justice of the Peace, that any person guilty or
suspected to be guilty of having committed any such crime
or offence elf^where out of the Territorial Division for which
such Justice of the Peace has been appointed, but within
the Dominion of Canada, is residing or being, or is suspected
to reside or be, within such Territorial Division, such Justice
may issue his w^arraiit (in the Form (B) in the Appendix).

In the former case the Justice of the Peace can issue his
warrant, tliough the party charged may have left the limits
of his Territorial Divi'uou, in the latter case he can issue his
warrant, although the offence charged may have been com-
mitted in a Territorial Division of Canada, other than that
for which he has been appointed.

In both cases the warrant i.ssues .^olely in the event of the
party charged or complained against not being already in
custody.

In irh'ff CitHrs the jnnti/ may he sutnuioned instead of
issuiug a warrant in the first instance.
Warrant if summons is disohryed.
Proviso.

2. lu all cases the Justice or Justices, to whom
the charge or complaint is preferred, instead of
issuing in the first instance his or thtir Warrant
to apprehend the person charged or complained
against, may, if he or they think fit, issue his or
their Summons (C) directed to such person, requir-
ing him to appear before the Justice or Justices,
at the time and place to be therein mentioned, or
before such other Justice or Justices of the same
Territorial Division as may then be there, and if,
after being served \vith the Summons in manner

i 1

Jl'STICES ACT.

hereinatter mentioned, he fails to appear at such
time and place, in obedience to such Summons.
the Justice or Justices, or any other Justice or
Justices of the Peace, for the same Territorial
Division, may issue his or their Warrant (D) to
apprehend the person so charged or complained
against, and cause such person to be brought
before him or them, or before some other Justice
or Justices of the Peace for the same Territorial
Division, to answer to the charge or complaint,
and to be further dealt with according to law ;
But any Justice or Justices of the Peace may, if
he or thev see lit, issue the Warrant hereinbefore
ih'st mentioned, at any time before or after the
time mentioned in the Summons for the appear-
ance of the accused party.

Ill all cases the Justice or Justices to whom is preferred
the chari»e or complaint has the option of issuing a summons
to appear or a warrant to apprehend, but in no serious case
should the summons be issued, as thereby an opportunity of
I'vading justice is af!brded to the party charged.

A summons can only issue upon an information or com-
plaint in writing sworn to or affirmed either by the informant
or complainant, or by some witness or witnesses in that
behalf, except only in cases where by some act or law it is
specially provided that the information may be by parole
merely, and without any oath or affirmation to support or
substantiate the same;* but even in those excepted cases

• In England it is not neccBRury, where it is intended to isaue
n summons in the firnt instance, that the information or eom-
|)laint should he in writing, or be sworn to or affirmed. \'ifie 1 1
i- I'i Vic, e. 42,8. 8.

JUSTICES ACT.

^i!

tlir .Iiistiee or Juistices may require that the infurmation
.shall be in writing if they deem it expedient. (Vide s. 19.)

The summon.s so i.«sued must be directed to the party
charged or complained again.st, should state in a summary
way the matter of such charge or complaint, and should
require the party to whom it is directed to be and appear
at a certain time and place therein mentioned, before the
Justice who issues the sunmions, or before such otlicr Justice
or Justices of the Peace for the same Territorial Division as
may then be tlicrc, to answer to the said charge, and to be
further dealt with according to law, (Vide Form (C).

The summons must be in writing, and must be signed
by the Justice or Justices issuing it. and sealed by him or
them. (T7(/rs. 13.)

A constable or peace officer alone can serve such suumioiif?,
the service is effected in such case by the constable or peace
officer delivering to the party j)ersonally the original writ of
summons, or if the said party cannot be conveniently met
with, by lenving the same for him with some person at his
last or usual place of abode. It is to be remarked that
where the service is not personal, but is at the last or usual
place of abode of the party summoned, care must be exercised
by the constable or peace officer serving, not to leave the
summons with a child of tender years, or with a person un-
likely to deliver it to the party to whom it is directed.*
(]7(/<>s. 14.)

If after due service of such .summons, the party to whom
it is directed docs not appear at the time and place for his
appearance therein mentioned, the Justice or Justices then
and there being, may cause the constable or peace officer

• Glem> Jervis Aci», p. 18.

JC8TICKS ACT.

who made the service, to depose before him or them as to
the mode in which it was effected (vide s. 15), and there-
upon may issue his or their warrant to apprehend the party
charged in the Form (B), and bring liini betbre liim or them
or before some other Justice or Justices of the Peace for the
!<ame Territorial Division to answer tlie charge in the com-
plaint or information mentioned and to be further dealt with
according to law. (Vule s. 10.)

But at all times, either before or after the time mentioned
iu the summons for the appearance of the accused, the Jus-
tice or Justices may issue a warrant in The Form (A) for his
apprehension. This provision is intended to facilitate the
apprehension of offenders who may make preparations to
evade justice after a summons has i.s.<<ued against tliem."'^

In all cases where the .summons has issued upon a parole,
information or complaint, a wan-ant in the Form (D) may
if».sue after proof of service of summons, on the default of the
person to whom such summons i.s directed to appear ; but if
it is decided to issue the Warrant (B) after the issue of a
summons on a parole information or complaint allowed by
some particular statute, it is necessary that an information
or complaint in writing, supported or substantiated, aa
directed by s. 9 should be laid before the Justice or Justices
required to issue the warrant.

Any number of persons may be included m n warrant or
summons.

• In Entrland, as already nicutioncd, a suinnions issning on a
purole information without being snpponod by oath or affirma-
iion, it was necesHary ere the Warrant (A) couM issue tiiat an
information iu writing under oatli or nflirniation should be exhi-
bited.

JUSTICES ACT.

As to indictable offences committed on the high seas, dec.

3. Ill all cases of indictable offences committed
on the high seas, or in any creek, harbour, haven
or other place, in which the Admiralty of England
have or claim to have jurisdiction, and in all cases
of offences committed on land, beyond the seas
lor which an indictment may be preferred or the
offender may be arrested in Canada, any one or
more Justice or Justices for any Territorial Divi-
sion in which any person charged with having
committed, or being suspected to have committed
any such offence, shall be or be suspected to be,
may issue his or their "Warrant (D 2) to apprehend
such person, to he dealt with as therein and
hereby directed.

The jurisdiction of the Admirahy, according to the juris-
prudence of England, extends over the high seas and the
harbours, creeks and havens of foreign countries, but not to
the harbours, creeks and havens of its own dominion 3 pos-
sessing Courts having ordinary jurisdiction ; in the latter
case the ordinary common law courts have exclusive juris-
diction.

By the act to amend the Merchant Shipping Act of 1854,
the 18 & 19 Vic, c. 91, s. 21, it is provided that '' if any
'' person being a British subject charged with having com-
" mitted any crime or offence, on board any British ship on
'' the high seas, or in a foreign port or harbour, or if any
" person not being a British subject charged with having
'' committed any crime or offence on board any British ship
" on the high seas, is found within the jurisdiction of any
'' Court of Justice in Her Majesty's Dominions, which would

lit ■ v. '

JUSTICES ACT.

■ have had cognizance of such crime or offence, if committed

• within the limits of its ordinary jurisdiction, such Court

• shall have jurisdiction to hear and try the case, as if such
■crime or offence had been committed within such limits;

" provided that nothing contained in this section shall be
•• construed to alter or intei-fere with the act of the thirteenth
•year of Her present Majesty, chapter ninety-six. ' and by
the 30 & 31 Vic, (j. 124, s. 11, it is provided that •• if any
'* British subject commits any crime or offence on board any
" British ship, or on board any foreign ship to which he
■' does not belong, any Court of Justice in Her Majesty's
'' Dominions which would have had cognizance of such crime
•' or offence, if committed on board a British ship within
" the limits of the ordinary jurisdiction of such Court, shall

• have jurisdiction to hear and determine the case, as if the
" crime or offence had been committed as last aforesaid."

If a foreigner be taken on board a British ship and
therein detained against his will, and whilst there commits
an offence against British law, he is amenable to that law,
if the act constituting the offence was not done in order to
effect his escape from illegal custody.

A person is found within the jurisdiction of a Court of
Justice within the meaning of the foregoing cited section,
when he is actually present there, whether he has come
within such jurisdiction voluntarily, or has been brought
there against his will. (Reg. vs. Lopez and Rv. Battler 1
Dears & B. C. C. 525).

Warrant to apprehend parti/ against whom an indict-
ment is found.

4. In case an indictment be found bv the Grand
Jury in any Court of Criminal Jurisdiction, against
any person then at large, and ^vhother such per-

.irSTICES ACT.

SOU has been bound by any Recognizance to
appear to answer to any such charge or not, and
in case such person has not appeared and pleaded
to the indictment, the person who acts as Clerk
of the Crown or Chief Clerk of such Court shall,
at any time at the end of the term or sittings of
the Court, at which the indictment has been
found, upon application of the Prosecutor, or of
any person on his behalf, and on payment of a
fee of twenty cents, grant to such Prosecutor or
person a certilicate (F) of such indictment having
been found ; and upon production of such Certifi-
cate to any Justice or Justices of the Peace for
the Territorial Division in which the ofience is in
the indictment alleged to have been committed,
or in which the person indicted resides, or is sup-
posed or suspected to reside or be, such Justice
or Justices shall issue his or their AVarrant (G) to
apprehend the person so indicted, and to cause
him to be brought before such Justice or Justices
or any other Justice or Justices for the same Ter-
ritorial Division, to be dealt with according to law.
Commifnicnt, or hail,

5. If the i^erson be thereupon apprehended and
brought before any such Justice or Justices, such
Justice or Justices, upon its being proved upon
oath or affirmation before him or them, that the
person so apprehended is the person charged and
named in the indictment, shall, without further
inquiry or examination, commit (H) him for trial

JUSTICES ACT.

or admit him io bail in manner hereinafter men-
tioned.

Under this clause the Juxtice or Justices before whom the
party is brought after apprehension on the warrant, may
either commit him for trial, or admit him to bail in the
manner afterwards mentioned in the statute; but unfor-
tunately the 52 & 56 sections only apply to those cases appa-
rently where the Justice or Justices presided at the adduction
of the evidence against the person arrested, and it is only"
wlien tliat evidence does not furnish such a strong presump-
tion of guilt as to warrant his committal for trial, that two
Justices can admit him to bail in certain cases of felony ;
in all cases of misdemeanor one Justice who has heard the
evidence can and in fact must admit to bail ; but in the
case of a party apprehended under the preceding clause, the
Justice has merely before him the certificate granted by the
officer of the Court in which the indictment was found, and
consequently has no evidence before him whereon to form
an opinion of the guilt or innocence of the party appre-
hended, 80 that in all cases of felony or suspicion of felony,
it is better to commit, leaving the party to his remedy by
habeas corpus or application under section 01. In mis-
demeanors, on the other hand, the Justice may admit to
bail, requiring heavy or light security, according to the class'
of the misdemeanor charjjred,

ff ji^rson indicted he cd ready in prison for some other
ojfence. a Justice may order him to he detained until removed
by writ of " habeas corpus " or otherwise, or discharged,

6. If the person so indicted is confined in any
gaol or prison for any other offence than that
charged in the indictment at" the time of such

JLHTiCE» ACT.

application and production of such Certificate to
the .lustice or Justices, such Justice or Justices,
upon its being proved before him or them upon
oath or allirmation. that the person so indicted
and the person so confined in prison are one and
the same person, shall issue his or their Warrant
(I) directed to the Gaoler or Keeper of the gaol
or prison in which the person so indicted is then
confined, commanding him to detain such person
in his custody, until, by Her Majesty's Writ of
Habeas Corjms, or by order of the proper Court he
be removed therefrom for the purpose of being
tried upon the said indictment, or until he be
otherwise removed or discharged out of his cus-
tody by due course of law •
Xof to jyrevent Bench Warrants.

7, Nothing in this Act contained shall prevent
the issuing or execution of Bench Warrants, when-
ever any Court of competent jurisdiction thinks
proper to order the issuing of any such Warrant.

Warrant may he issued on Sunday.

8. Any Justice or Justices of the Peace may
grant or issue any Warrant as aforesaid, or any
^Search Warrant, on a Sunday as well as on any
other day.

A J ustice cannot insue a Summons on a Sunday. Of course,
the Justice liaviug the right to issue a Warrant or a Search
Warrant, has also the power of receiving informations or
complaints in such cases, and of swearing the informants or
complainants thereto on Sundays.

jrsTicEa Art.

9. In all canes when a charfa^e or complaint
lor an indictable offence is made before any
Justice or Justices, if it be intended to issue a
Warrant in the first instance against the party
charged, an information and complaint thereof
(A) in writing* on the oath or affirmation of the
informant, or of some witness or witnesses in
that behalf, shall be laid before such Justice or
Justices.

Vide observations on s. 1.

And 80 in case of SunniKms, tdiies,^ otherwise provided.

10. When it is intended to issue a Summons
instead of a Warrant in the first instance, the
information and complaint shall also be in
writing, and be sworn to or affirmed in manner
aforesaid, except only in cases where by some
Act or Law it is specially provided that the
information and complaint may be by parole
merely, and without any oath or affirmation to
support or substantiate the same.

Vide observations on s. 2.

No objection allowed for alleged defect.

11. No objection shall be taken or allowed to
any information and complaint for any alleged

/ defect therein in substance or in form, or for
any variance betwenit and the evidence adduced

• on the part of the prosecution, before the .Fus-
tice or Justices who take the examination of the

/ witnesses in that behalf.

The provisions of this clause do away with the possibiUt '

JUSTICES ACT.

Hi |!

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mi " :

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I 1

|i;

t ; if!*-

I 1*

/ oftoclmical objections being taken, either to the inforn^ation
or complaint or to the case, as made out after the clo.se of

/ the evidence for the prosecution. The information or com-
plaint in charges of indictable offences is taken, not for the
purpose of being a record in the case, but to enable the Jus-
' t7ce to judge whether or no^ he should interfere, and to
gUide his discretion as to the propriety of issuing a Sum-
mons or a Warrant, (Saunders, p. 12; Glen, p. 17; Stone.

; 229), so that jiftor the Summons or AVarrant issues, the
information or complaijit ceases to be of any importance.
Such being the case, it necessarily follows, that if the evi-
dencij taken before the Justice reveal.-; an indictable offence,
conmiitted by the party summoned or apprehended, though
it may not be the s.'.me oflcnce as the one charged in the
information or complaint, he is bound to adjudicate upon
the evidence, and to discharge, bind over, or commit the
accused, as pointed <»ut by s. 52. 56 and 47.

/n ii:}( * rtfses Jiindce ntai/ yrnni a Warrant to starch
ihreHin() lifHises, d'c,

12. li" a V rediblo \vitnes.s proves upon oath
(E 1) before a Justice of the Peace, that there is
reasonable cause to suspect that any property
whatsoever, on or with respect to which any
Iprceny or felony has been committed, is in any
dwelling house, outhouse, garden, yard, croft
or other place or places, the Justice may grant
a Warrai'.t (E 2) to search such dwelling house,
garden, yard, croft or other place or places, for
such property, and if the' same, or any part
thereof be then found, to bring the same and
the person or persons in whose possession such

JLSTIOE.S ACT.

(>5

house or other phico then is. heiore the Jiistiee
iiTanthig the Avnrraiit or some other Justiee tor
the same Territorial Division.

Ill many ciiscs. by means of a Scaicli Wairant. lUdnl' of
the <iuilt <»f a person reeeivinj; stolen uoods. tor instanee. is
satisfactorily made l>y the discovery of the j^oods in liis
jMiSKession. and tlje warrant itselT contaiiiini: tlie nuthoritv
to arrest the possessor, it is a mn'-h ))etter mo<le of proeeed-
in"' wijere tliere is a likelihood of lin<1ipii' sneli sioods. than a
warrant to apprehend tin' sns|X'eted party. I^nt care shonid
he exereised en issninj.: a Seai'ch Warrant, as the search of
a person's premises is a strong nieasnrc whicli. if .sncccssfid.
ran always be justitied. hnt wliich. il' iinsuceessfiil ;iiid ini-
dertakcn withont reasonahh; cansc. exjtoscs the person pro-
I'urinj.' the Searcli AVarrant to heavy damaijjes. ;ind if.
I'.nfor'nnately. it he drawn in. an illcLial form. an«l a search
hv' made under it. the .histiee who siirned it would he liable.
as w«'ll as the )»arties who )>ut it in force, to .-ni aetion ol
damaj^'cs, ( Klsee is. Smith. L' Chit. .'5(1 1.)

In all cases where a Search Warrant issues, the pnisecntor
or som(! other per.son who can identify tlie piods specitied in
the warrant, slnndd accompany the constable m.-ikinj.; the
>ear<dK

f iKiK I'Diii jilmnt . ./ustur iii'ii/ issiii siitii iiKiits iif iiiirrnnf
for ttpiK'tirrtiict of [Kii'tji cli<nifi(i.

13. Upon inrormation and eoniphiint as afore-
said, the .Iiistice or Justices receivinii' tiie same
may, if h«' or they think tit. issue his or their
Summons or Warrant as herein])elbn' dir«M.'te(l.
to cause the person cliarged to he and appear
as therein mul tlierehy directed : nnd every

(>G

.ILbTlCEt? ACT.

Siil

Summons (V) shall ])o directed to the party so
chariiod by the iiii'ormation, and shall state
sliorily the matter oi* snch inlbrmation, and shall
locjuire the party to \vhom. it is directed to be
and appear at a certain time and place therein
mentioned, beibre the Justice ^vho issues the
Summons, or before such other Justice or Justices
()[' the Peace lor the same Territorial Division
as may then be there, to answer to the charge,
and to be further dealt with accordini? to law."'
JIow Sinnmoiis to he scri'cd.

14. Every such Summons shall l)e served
by a C\)nstable or other peace olficer upon the
l>erson to whom it is directed, by delivering the
same to the party personally, or if he cannot
conveniently be met with, then by leaving the
same for him with some person at his last or
usual place of abode."

16. The Constable or other peace officer who
serves the same shall attend at the time and
place, and before the Justice or Justices in the
Summons mentioned, to depose, if necessary, to
the service of the Summons."

fj' piii'fi/ sionmoufd ihits not oftouf, Jitstlcr, juoj/ tssnr o
n'lirroitf.

16. If the per.-«on served does not appear
b»»fore the .Justice or Justices, at the time and
place mentioned in the Summons, in. obedience
to th* same, the Justice or Justices may issue

.irsTICEs' ACT.

Ills or (heir AVarraiit (D) lor apprehending I lie
party so summoned, and ))riiigini^' him beibre
him or them, or before some other Justiee or
Justices ibr the same Territorial Division, to
answer the charge in the information and com-
plaint mentioned, and to be I'urllnM- dealt with
accordinii;' to law."

Vide observations on s. 2. mifr p. 'u.

Wnrrauf to apprchfiid jKtrt'nti fo />« innh r IIk /minf itmJ
sfiiJ n/ tlnsticr : and tn }rho)a (iddrrssrd. dr.

17. Every "VVarranl (B) hereafter issued by
any Justice or Justices of the peace to apprehentl
any person charged with any indictable ollence.
shall be under the hand and seal, or hands and
seals, of the Justice or Justices issuing the
same, and may be directed to all or any of the
Constaldes or other jioace oflicers of the Terri-
torial Division Avithin which the same is to be
executed, or to any such Constaldo and all other
Constables or peace officers in thi- Territorial
Division within which the Justice or Justices
issuing the same has jurisdiction, or generally
to all the Constables or Peace Oificers within such
last mentio]ied Territorial Division; and it shall
state shortly the ollence on which it is founded,
and shall name or otherwise d«\scribe the oIleiKhM*.
and it shall order tlit* persons or persons to whom
it is directed to apprehend the olfender. and bring
him beibre the Justice or Justices ihsuing the
Warrant, or l)elbre some other Justice or Justices

fiS

.ir«TirEs ACT.

\l I

(>! Ihr rt'iU'p lor Ihc sain*^ Territorial Division, to
Miiswcr to the charge coiitaiuecl in tiio information.
iUid to 1)0 I'urihor dealt wilh according- to law.

Wtiniiiif iiiiiii rvm'iln in fi)i-<( until ci'mitrt/.

18. 1 1 siia 1 1 not bo nocossary to make the warrant
rotiirnM])le at any particular time, but the same
may remain in lorco un<il oxocutod.

Tlu' form liivcn in the !ip|K'M<lix ( IV) i?s Lreiio.ul in its .lulJresjs
'• To Jill or any of the. l'ons\:i]»loH or other Feaco Officers in
the Distrirt (o/' County. Initod Counties, or^tn fhrraxe mai/
///') of •• .nifl should jilways be followi'd. tf directed

lo any <-on>talile by nani«- it can only he executed hy him.
hut il' thf direction he u<MH'ral. all constables and l*ea»'e
Odiccr- wi'liin \\\v Territorial Division may and in fact are
bound to execute it. ( \'ith' s. 20.;

A ( •ou'^table a])|»rclu'ndinLi the |iers(»n char<red cannot dis-
charge hiui^ii'lf of his j>risoner save by takinur him before a
a inaLiistratc. ('1 Hawk c. III. s. 7.)

//iiir mill irln r< o >: iiiritiif Di'fJ/ /"' ixii'Htiil,

19. Such Warrant may bo executed by appro-
hendino- iho olleiider at any j>lace in the Territo-
rial nivisiou within wliiehthe .Tu.stice or Justices
is.siuno tlu' same have jurisdiction, or in case of
fresh ])ursuit, at any i)lac(^ in the next adjoininj^'
Territorial Division, and \yithin seven miles of
the border of thelirst mentioned Territorial Divi-
sion, without havinii" tlio A\'nrranl l)acked,as hero-
inailer mentioned.

'I'iifce is no necessity. ..u|))x>sin;^ the person <"hargcd has
»'«ic:n»ed into an adjoinini: Territorial Division, to have the
Wai'rant backed \^\■ to placv it in the hands of ;i constable of

JL'STK'KS ACT.

G()

the Divif^ioii into wliuli lu' has so oscajtcd wlioii tlio place
wlioreiii ho n*. lies within tlio <llstance of seven miles of the
Itonlcr of the TtM-ritorial Division, witiiin which the warrant

issne(

The seven iniU's will he nieasnred. not hy the nearest prae-
ticahle road, hut by a strai^^ht line from point to point as the
••row Hies ( I.ake vs. Butler. -H I.. .). U. (N. S.) Q. B. '2i:\:
Stokes vs. <;ri.Hsrll :>:\ L. .1. l{. (N. S.) (\ IV 1 H ; U.-. vs.
SaftVon W'aMoii. \) {^. \\. 7<1 ; l>ui'..inaii v. WalktT 7) .lur. (N.
S.) OTO).

.\11 Warrants lor indictable otl'eiu-es can be exe<uted on
Sunday ( Kawlins vs. Kllis 1(1. M. ,\: \V. 172).

(/ii ii'litff tnnilitiniin rtnixfttftfes. dr,, itioi/ t niiifi iruiiimt .

20. Ill ^iis^* iUiy Wavviml bo dircclt'd to all
Coiisiablos or other Teaco Ollicor.s in Ihf Torriht-
rial Division within which the .lu.'^lioc or .lustitM's
liav<> iiirisdiction. aiiv Constable or other Peace
Oilicer lor any phxce within .sncli Territorial Divi-
sion may execute the Warrant at any place within
the jurisdiction ibr which the Justice or Justices
acted when he or they granttnl such Warrant, in
like manner as ii' tlie "Warrant had been directed
sjiecially to such Constable byname, and notwith-
standing" the place within which such Warrant is
executed be n(?t within the place ibr which he is
Constable or I'eacc' Oihct'r.

!'«'(/« (d)Hervations on s. IS.

l<i

IK »■

21, No ;)bj»!Ction shall be taken or allowed to
any Summons or AV arrant lor any delect therein

Jl'STirES' ACT.

in substance ov in ibrm, or for any variance
b<4woen it and the ovidenco adduced on the irdvi
ol' the prosecution, ])erore the Justice or Justices
who takes the examination of the AVitness in that
belialf as hereinafter mentioned.

// nin'diicc niqicdis unpoi'ttlnf. f/ir Jusfivr.s iii'ij/ <tt/j'fiiiil
tlir ntsr,

22. Ihit if it appears to the .Justice or Justices
(hilt th«' party charged has been deceived or
niisl(»d by any such variance, such Justice or Jus-
tices, at the request of the party char;^'ed, may
adjourn tho hearini;' of th(» case to some future
(hiy, and in the meantime may remand the party,
Ol' admit him to l)ail as hereinafter mentioned.

^'. 21 cvidi'iitly is iiioaiit to li.ivo tlic .siino ;i)i{)li('ati<»n
MS s. 1 I tliouuh il' uc'itlu'r tlio inf'onnation, ouiiiphiint.
simniioiisor warrant diseld.scs jiii indictable of^'eiicc. it islianlly
just tliat tlic party charged sliouKl ])0 foivod to submit to an
(•xaniinati(tn ; but tlio idea socius to lu; that wlion a person is
bntuirlit bclbrc a Justice of the Peace on a suninions or a
w.irrant. tlioULih no indictable offence be thereirj di.sclo.scd.
tha> lie sliouM ^in on with the examination of witnesses and
it' an indictable ofi'enee be thereby discU)sed, he may, ii' the
[>arty charged in his opinion lias been deceived or misled, on
the re(|uest ol" the party so charii,ed. adjourn the case to some
luture day. and remand the pirty or admit him to bail a^^
mentioned in ss. H . 42. II. *

Ri (fiil(it'n)iis (Is fo till' htirkimi /*/' ii'/iri'ints.

I\(}\rt i)f' siii/i /mr/iiiii/.

23. If the person against whom any Warrant
has been issued, cannot be found within the juris-

Jl'STICES APT.

diction of th«^ .lusiico or Justicos ])y whom the
same was issued, or if ho escapes into, or is sup-
posed or suspected to be, in any ])iac(^ within
Canada, out oi' the Jurisdiction oi' the Justice or
Justices issuing the Warrant, any Justice of th*»
Teaco within the Jurisdiction oi' whom the person
so escapes, or in which he is or is suspected to bo,
upon proof alone being* made on oath or afRrma-
lion of the handwriting of the Justice wlio issued
the same, without any security l)eing given, sliall
make an endorsement (K) on the Warrant, signed
with his nami', authorizing the cx<H;ution of th«'
Warrant within the Jurisdiction of th»* .Justice
uuiking the endors<'ment. and such endorsement
shall be suflicient authority to the i)erson l)ringing
such Warrant, and to all other iH»rsons to whom
I ho same was originally diri^'tod, and also to all
Constables and other IVace Ollicers of the Terri-
torial Division wlu're the A\ arrant has be^Mi m>
endorsed, to execute the same in such other Try-
ritorial Division, and to carry the person agaiiisl
whom the AVarrant issued, when apprehended,
before the Justice or Justices of the IVace who
lirst issued the Warrant, or before some other
Justi(!e or Justices of the Peac(^ for the samt* Ter-
ritorial Division, oi beibre some Justice or Justices
of th(5 Territorial Division, in which the ollence
mentioned in the Warrant a])pears therein to have
been committed.

The oiulorsoiiiont |)invi<l('<l fur liy \Wis ilauM- is ((tuniMmly

.) (STICKS ACT.

■ ::5

tNillt'd backiii;:. AlU'i' heiii;^ bjickcd tlu' wuir.iiit ciiu 1k'
t'xecutod not only hy its oriuinal boaicr hut also ))y all cons-
l.iMcs and pcaiM! otHccrs as well of tiic Territorial I)lvisi»»M
whcnco it issued as of that wherein it was hacked. It eaii
moreover he hackt<l in every |)i\ision in Canada, and it" the
nlVcndcr jcturn to llie hivision whence it issued, he (an still
lie arrested untler it there.

NV'hen the .Justice who issued the warrant is aiMt ;i Justici'
I'nr the Territorial Division within which the jx-rsun (diaru;«'<l
is sus|»e<-ted to have taken reiuiic. he can cn«lorse thereu|H»n
an authority to arrol in sui h la>t mentioned Division the
]K'rs«in so (diariicd.

/>////

// "/ rniistidilf III iiisr iif ilfiisf.

24. I r tin* Prosccutov or any oi" Ilic w iliu'sse.s lor
ilh' prosL'Cutioji !)(» ihon in the 'I'cvritorial Division
wiu^rt* such ])crsuii hns hccii j\]>pivluMitU'(l, the.
Coiistahlo, or otlicr person or persons Avho have
nppreheuded him may, il' so directed by Ihe.liistice
l)a<d;iim' the Avarraiil. lake him before \]ui Jiistiee
who batdxcd llie warraul. oi' before some other
.iiislice or .liisliees lor the same Territorial J)ivi-
sion or ])lace ; and ihe said .Justice or .Justices may
thereupon lake the examination of sucli prosecu-
lor or witnesses, and proceed in every respect in
manner hereinafter directed with respect to per-
sons chariied befon^ a .lustice or .fustices of the
Peace, with an olfence allei>ed to have been com-
mitted in another Territorial Division than that
in which such i)ersons have been apprehendid.

The person so arrested cannot he l»rou_uht before the .J us-
tii-i' who hacked the warrant or anv other .lustiei- of the

.IISTU'ES ArT.

".]

Division witliiii wliieh Midi warrant was hacked, iinloss
tlio warrant be specially indorsed re(|iiirini; the constable
In brin*; the ))arty liefbre the .In.stiee indorsinjr. The
mndc of ]>roceedini: in case Mich person apprehended h(>
brought betbre a .Justi,.t' kI' ih<' Division within which the
warrant oj' ;ipprchcn>inii li;i> been backed i- pninicd out l>y
V Kl. s. 17.

l*(nrti tn ./ifsfiiis fn an iii IlK.ii fifiuss fn ntfrntl. mnl (flip.
I I nil III r.

25. 11' ii be uuule to a])peav to any .lustiec cd'
llu' IVmkjc, l)y the oath or uliirination ol' any crecli-
la]>l(' person, that any ])orson within the Dominion
is likidy to oiyo material eviden(u» for the proseeii-
lion and ^vill not vohintarily appear lor the i)ur-
l)u.se of heini»' examined as a, ^vitness at the time
nnd [>laee appointed lor liu' examination ol' th»'
witnesses aL»ains1 the accused, sucdi Justice shall
issue his summons (1. 1) to such person, requirinu-
iiim lo he and appmir at a tinu; and place therein
menlioned, before tln^ said Justice, or ])erore such
other Justice or Justices of the Peace for the same
Territorial Division as may then ])e there, to testily
what lu^ knows concerninu- the ehariie made
against the accused party.

// yiini niniis In not n/iti/ii/. irnrrniit 111111/ In issinil fit riiili-
jul iiff{.'iii/<i in'i .

26. 11 any person so summoned neglects or
refuses to ai)pear at the Hme and place appointed
by the Summons, and no just excuse be offered for
such neglect or refusal, (after proof upon oath or
affirmation of the smnmons havinii' b(»en serv(Ml

.M STICKS Af;T.

upon .such ptM-.soii, either personally or lel'l wilh
some person lor him at his last or usual place oT
abode,) the Justice or Justices before whom svich
person should have appeared, may issue a Warrant
(L 2), to bring- such person, at a time and place to be
therein mentioned belbre the Justice who issued
the Summons, or belbre such other Justice or Jus-
tices ol' the Peace lor the same Territorial Division
as may then be there, to testily as albresaid, and
the said Warrant may it' necessary, be backed as
herein belbre mentioned, in order to its being
executed out ol' the Jurisdiction ol' lh(^ Justice
who issued the same.

A Justice (if the Peace ere issuiuji; a suljKL'iia re(|uirinji'
tlic attendance of a witness, must be satisfied hy tlie oath or
alVirniation of some credible person: 1. that tlie witness is
within tlie Dominion of Canada : 2 that he is likely to ^ive
material evidence for the pro.secution : 'A. that he will not
voluntarily apjM^ar I'or the purpose of being examined as a
witness at the time and place appointed for the examination
of witncs.scs against the accused.

A witness for the accu.sed cannot be sub{)aMiaed.

Tlic subpaMia or summons to a witness .should be addressed
to him by his name and description, the day on which he is
thereby ordered to apjicar should be stated as well as the
]ilace, giving- snch a designation or description thereof as
that he can easily find it if in a city. town, village or parish.
It should also be dated signed and sealed by the Justice.

in the event of the person served with a subp(cna neglect-
ing or refusing to aji])ear. the Ju.^tice can issue a warrant for
his apprehension, the formalities to lu- obi«erved ere such

»i

J I ST ICES ACT.

ivc

lot
a

is
the

us
•ish.

loft-
t for

warrant can \)v. isfsucd arc the sanu* a.s J»rc^4cribcd by s. "J
Id precede the issue of the warrant where a f)er«on lias failed
after service to appear on an ordinary siunnionM (n\fe obser-
vations on s. 2) ; and such warrant can be backed as provid-
ed by s. 23 [ride observations on s. 23.)

/ii rrrtiiin cases inirvmtt m<if/ insui' in firsf 'nixtniwv.

27. li the .lustico he satisUed by ovideiico
upon oath or ailirmatioii that it is probable th(»
person will not attend to give evidence unless
compelled so to do, then, instead of issuing such
Summons, the Justice may issue his Warrant
(L o) in the lirst instance, and the Warrant, if
necessary, may be backed as aforesaid.

The affidavit or affirmation in this case must be stron;:;cr
than the one refjuired under s. 25 ; it must show that it is
pro})ablc that the perscMi whose evidence is ref|uired will not
attend to <^ive evidence unless minptlhif to do h). in all other
lespeets it should be similai-.

A witness cannot refuse to attend upon bcinu' served with
a summons or a subptrna until his expenses are paid (\\. vs.
.lames I. V.k V. 322.

l*ri'sou!< (ippiuiriiuj on HHiuuumnnml reJ'nsuKj to hetxniniiuil
iii'ijl he ro)nmiff('<l.

28. li' on the appearance of the person so sum-
moned, either in obedience to the Summons or by
virtue of the Warrant, he relu.ses to be examined
iij^on oath or alHrmation concerning the premises,
or refuses to take such oath or allirmation, or
havhiii' taken such oath or allirmation, refuses to
answer the questions concerning the i)remises
then put to him without giving jiny just excuse

IMAGE EVALUATION
TEST TARGET (MT-3)

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'■ lU 112,2

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Photographic

Sciences
Corporation

23 WEST MAIN STREET

WEBSTER, NY. 14580

(716) 872-4503

.TL'STICES ACT.

lor sucb. reUisal, any Justice of the Peace then
present and there having jurisdiction, may, by
Warrant (L 4), commit the person so refusing to
the Common Goal or other place ofconfinement,ibr
the Territorial Division where the person so relu-
shig then is, there to remain and be imprisoned
for any time not exceeding ten days, unless he in
the meantime consents to be examined and to
answer concerning the premises.

The ([uestiou of just excuses, offered by a person suiiiiiioiie«l
as a witness or brought up by virtue of the Virarrants provid-
ed for by s. 20. s, 27 for refusing to be examined upon oath
or affirmation, or to take sucli oath or affirmation, or to answer
(justions put to him pending his examination requires some
attention : 1. The husband cannot give evidence for or
against liis wife ; the wife canuot give evidence for or against
licr husband ; so that if either husband or wife be the party
charged with an indictable offence the other conjoint cannot
be examined as a witness in the proceeding, save and except
in those cases where tlie ofl'ence is committed on the
person of th- one by the other spouse; 2. Idiots and
children of such tender years as to be ignorant of the obli-
gations of an oath canuot be examined as witnesses ; 3. A
person canuot be compelled to answer ariy question tending
to criminate himself or herself, (ride ante p. 20. Confession
Privileged Com. Attys Gov. Secrets).

4 A priest cannot be forced to reveal the secrets of the
confessional ; this is especially true of priests of the lloman
Catholic faith, but many cases can be cited where judges
have refused to force Protestant clergymen to reveal secrets
confided to them by penitents in confession as recognized by

JUSTICE!? ACT

the Cliurcli to which the miiiif<tci> belonjiod (rldr T.-iylor on
p]v. Powell on Ev. for other caj<e.« — Attorney Counsel —
(jrovernment Officers 011(1' p. 20.) It is doubtful whether
!i witness who attends voluntarily (not upon a summons or
warrant) and refuses to be sworn or to jiive evidence, or to
answer pertinent questions cau be committed (Cohen vs.
Morgan 6 D & R. 8), but it is submitted that such power
exists vuk Cropper vs. Horton 4 1). & 11. M. C. 42; & D. &.
11. 166. In re Rowland 1 Dowl. N. S. 835. In the event
of the Justice determining^ on committing such witness for
any such refusal the warrant may be in the form (No. 24).

It is to be remembered that if the (question put to the
witness be not pertinent to the matter tlun under investiga-
tion, he cannot be committed for refusing to answer it.

Examiiinfion of irlfifcss to he in the prvavnco offjir ornistt/.

29. Ill all cases where any person appears or is
brought before ^ny Justice or Justices of the Peace
charged with a.iy r/: licLu.ble offence, w^hether com-
mitted in Canada or iiponthe high seas, or on land
beyond the sea, and whether such person appears
voluntarily upon Summons or has been appre-
hended, with or without Warrant, or is in custody
for the same or any other offence, such Justice or
Justices before he or they commit such accused
perfi'on to prison i'or trial, or before he or they
ndmit him to bail, shall, in the presence of the
accused i)erson, (who shall be at liberty to put
questions to any witness produced against him,)
take the stptement (M) on oath or affirmation of
those who know the facts and circumstances of the

(

JUSTICES ACT.

case, and shall put the same in \\ ritmg, and such
depositions shall be read over to and signed res-
pectively by the witnesses so examined, and shall
be signed also by the Justice or Justices taking
the same.

Under tliis clause the mode oi' cxamiuing witnesses is the
snme in all preliminary investigations into charges of indictable
oflfences whether they be treasons, felonies, or misdemeanors,
and wherever they may have been committed.

The witness previous to his examination being taken sliould
swear or affirm in presence of the Justice to speak the truth,
the whole truth and nothing but the truth in answer to the
questions put to him touching the offence then under inves-
gation, the Justice should then in presence of the accused
person take the statement of the witness reducing it to writ-
ing as he proceeds, and at the close thereof putting any
questions, answers to which in his opinion would tend to
throw lic-ht on the facts and circumstances of the case ; the
accused person should then be asked by the Justice if he has
any questions in cross-examination to put to the witness, if
lie declares that he does not wish to cross examine, that fact
should be noted in the deposition, but if he declares that he
desires to cross-examine, his questions when pertinent to the
matter in issue must be answered by the witness and must be
reduced to writing by the Justice together with the answers
of the witness thereto. The general practice in the Province
of Quebec is to take down both questions and answers in cross-
examination in writing. Care must be taken to distinguish
between the examination and cross examination of the witness ;
if necessary the witness can be re-examined, the deposition
must then be read over to and signed by the witness and by

JUSTICES ACT.

'!)

the Ju.stice taking the saiiic, all in the presence of tlie accused
(Reg. YS. Watts 0 L. T. (X. S.) 453).

The Justice is bound to examine all the parties who know
the facts and circumstances of the case. The depositions of
the witnesses should be taken carefully, as far as possible the
very words made use of should be preserved. It is not how-
ever necessary to take down all that a witness may state,
since that which is clearly irrelevant or not admissible as
evidence ought not to be admitted. If however any doubt
should arise as to its inadmissibility, the better plan will be
to take it and leave it to annthor tribunal to decide whether
it shall be used or not.

" There is no duty devolving upon Justices of greater
" practical importance than that of .seeing that the depositions
'' of the witnesses upon whose evidence they commit a party
'• to trial are carefully impartially and formally taken. By
'• a neglect of this duty, the crudest injustice may be done
" and the innocent may be involved in the punislm ...' due
'' alone to the guilty. Those who are at all familiar with the
'' practice of the criminal law are aware that the deposition.s-
'• taken by the committing Justices may in the event of the
" subsequent death or absence through illness of the witnesses
•' be read upon the trial as evidence against the prisoner, and
'' that here even in a capital case an accused may be convicted
" entirely upon the proof contained in the depositions alone.'
(:39 L. T. 173).

Justice to admhiistcr oath or affirmation.

Depositions o/j^crsons dying, absent, dr.. how to he used.

30. The Justice or Justices shall, before any
witness is examined, administer to such witness
the usual oath or affirmation, which such Justice
or Justices are hereby empowered to do ; and if

.ir.STICEy ACT.

upon the trial oi" the person accused, it be proveil
upon the oath or affirmation ol' any credible wit-
'ness, that any person whose deposition has been
taken as ai'oresaid. is dead, or is so ill as not to be
able to travel, or is absent from Canada, and if it
be also x^roved that such deposition was taken in
presence of the person accused, and that he, his
Counsel or Attorney, had a full opportunity of
cross-examining' the witness, then if the deposition
purports to be sig-ned by the Justice by or before
whom the same purports to have been taken, it
shall be read as evidence in the prosecution with-
out further proof thereof, unless it be proved that
such deposition was not in fact signed by the
Justice purporting to have signed the same
yUlr observations on s. 2^.

After fhr r.crnvuKih'oii of the tircusx/. Justice to vcfi(l
(fepositioiiiy token a(ji(i'thsf liiin. (iik/ cunt inn hiiti an tn (im/
stftteuient he iiintj inrtJce.

31. After the examination of all the witnesses
for the prosecution have been completed, the Jus-
tice, or one of the Justices by or before whom the
examinations have been completed, shall, without
requiring the attendance of the witnesses, read or
cause to ])e read to the accused, the depositions
taken against him, and say to him these words, or
words to the like effect : " Having heard the evi-
" dence, do you wish to say any thing in answer
" to the charge ? You are not obliged to say any
" thing unless you desire to do so, but whatever

.x^

JUSTICES ACT.

" you say will be taken down in WTiting, and may
" be given in evidence against you upon your
" trial ; " and whatever the prisoner then says in
answer thereto shall be taken dowm in writing (N)
and read over to him, and shall be signed by the
Justices or Justices, and kept with the depositions
of the witnesses, and shall be transmitted w^tli
them as hereinafter mentioned. -^

Explanations to be made to the accnsfd partji.

32. The Justice or Justices shall, before the
accused person makes any statement, state to him
and give him clearly to understand that he has
nothing to hope from any promise of favor, and
nothing to fear from any threat which may have
been held out to him to induce him to make any
admission or confession of his guilt, but that
w^hatever he then says may be given in evidence
against him upon his trial, notwithstanding such
promise or threat.

Not to prevent giving in evidence confession, (£v\

33. Nothing herein contained shall prevent any
prosecutor from giving in evidence any admission
or confession, or other statement made at any time
by the person accused or charged, which by law
w^ould be admissible as evidence against him.

Examinations maij he given in evidence.

34. Upon the trial of the accused person, the
examinations may if necessary be given in evi-
dence against him without further proof thereof,
unless it ])e proved that the Justice or Justices

JUSTICES ACT.

purporting to haA'e signed the same, did not in fact
sign the same.

The object of tliene clauseH Ih to insure, tin- the inf'orniution
itf the jury at the trial, a candid and truthful statement from
tlie prisoner of the facts of tlie case ; but in order to o}»tain
."^uch statement it is necessary to do away with any impres-
sion previously produced upon the prisoners mind by threats
or promises; it is also necessary to inform him thut he is at
jK'rfect liberty to make any statement he pleases in answer t(»
the charge, or to refiain from sayin;^ anythiuj; and to warn
him that anything he may say shall betaken down in writing,
and may be given in evidence against him at the trial.

lu all cases the additional caution contained in s. 'A2 should
be given, as in the event of a previous confession made, after
a promis<' or threat, being then reiterated without that addi-
tional caution having been given, the i-onfession would in all
probability be held inadmissible on the trial (Keg. vs.
Sa.iscmie 1 Den. C. V. 545).

Any statements of the aecu.sed amounting to an admission
or confession of any <>f the facts constitutinu the charge
against him made spontaneously without threat, promise, or
imUicemeut from any person in authority or person directly
injured by the crime, are admissible; so are confessions nu»de
to ft person not in authority, under the influence of such
promise, threat, or inducement, madi' or held out liy any
jierson not in authority.

A constable, a master or mistress whose chattels for instan-
ce have been stolen, a magistrate are all persons in authority
(Oke's 3lagisterial Syn. p. 81. S and note l(i; Stones Petty
Sess. 12:i).

Any statement made by the accused before the magistrate
during the ii»vestigation and examination ami previous to tlie

JUSTICES ACT.

cloHC of the latter, unless induced by promises or threats
made by person, in authority, can be given in evidence. (Keg.
vs. Stripp. 1 Dears. CC. p. (U8).

Any fact discovered in consecjuence of information obtained
by a promise, threat, or inducement may be given in evidence.
(Rex. vs. Warwickshall 1 Leach 2G3).

Place of examutatloii nut mi ojxit (.'oinfy oml no pt rxon
to renw'in vithoiit permission.

35. The room or building- in which the .Fustiee
or Justices take the examination and statement
shall not be deemed an open Court lor that pur-
pose ; and the Justice or Justices, in his or their
discretion, may order that no person, shall have
access to or be or remain in such room or buildinji'
without the consent or permission ol such Justice
or Justices, if it appear to him or them that the
ends of justice will be best answered by so doing.

This clause is based upon the idea that preliniii»ary inves-
tigations are but ministerial acts of the Justice. No excej)-
tion is made in favor of the Counsel or Attorney of the
accused who can be excluded if the Justices see lit ((!ox vs.
Coleridge 2 I), k U. 80 ; Hex vs. Borrow 11 B. i\: A. 432;
Rex. vs. Staffordshire J J. 1 Chitty 218; Collier vs. Tlicks
2 B. & Ad. 063). On this point the observations of 31r. Saun-
ders are so much to the purpose that they are hero reproduced.

*• Under the provisions of this clause, therelbre. theJu.stices
■' have power to conduct their proceedings in private, and to
•• exclude all persons even including the professional advisers
'• of cither of the })artit's. The section seems certainly to

• contemplate that the exclusion will only take place when it

• shall appear that the ends of Justice will be best answered

JUSTICES ACT.

" by it, but it is difficult to conceive any pof^siblc case in which
" the ends of justice can best be answered by refusinp; an
'* accused party the aasist.ince of a legal adviser.

•' As the lav/ now stands the depositions of the witnesses
' taken by the nia!j!;istrate are receivable in evidence on the trial
'* in the event of the death of such witnesses, or their bein<;
'• too ill to travel, the importance therefore to the accused of
'• being enabled to cross-examine through the agency of a
" legal adviser, is as obvious as it is great. Common Justice
•• declares that at a time of such peril as that of the exanii.ia-
'• tion oi' the witnesses by the connnitting justice, the accused
•• i«irty ought not to be deprived of legal professional assistance.
•* There is really only one argument of any apparent weight that
" can be advanced in opposition to the permission suggested,
•• and that consists in the possibility of the professional advi.ser
•' taking advantage of what may transpire in the justice room
'■ to warn others not yet in custody, or otherwise to defeat the
<* ultimate ends of Justice. This argument however, becomes
" puerile in the extreme, when it is remembered that counsel
"• and attorneys are members of a honourable profession, and

are directly amenable, in cases of professional obliquity to
'' the all powerful censure of the superior courts, and would
•• therefore scarcely lend tliemselves to a proceeding which must
■' necessarily result in their disgrace and ruin- But whether
'• or not the interests of the public might be endangered is a
" consideration of trivial importance, when the sacred cause of
•'justice to an accused is involved, indeed it may well be
" questitfiied if justice to the public can ever be promoted by
" doing injustice to any one of its members. It would seem
•• however that the omission of the Legislature in the 11 and
" 12 Vict. c. 42, to make an exception in favour of the legal
'' advisers of the accused, was more accidental than intentional,

jrSTIPES APT.

- forupon attention hc'iw^ ilr.iwn to tliis omission in the statute.
•- the Legi.«,lature in the corro>;pon<linj: net for Ireland. pa.HHed
•■in the followinrir year (12 and IIJ Viet. e. tiS.) whilst sinii-
•• larly cnaetin^' byscetinn I'J for power to exelude the piihlie.
-expressly re.serves the ripjht of the eonn.«el or attorney of any
•• person then being in sueh eourt as a pri.'^oner to be present.
*• So that upon this point without there being any motive ibr
•• such a distinction, a distinetion clearly exists, but one never-
•• thele!>s which is to be attributed to inadvertency since there
•• cannot be any possible reason for giving to a prisoner in Ire-
"land a right which is debarred to a pri.sone; in England.

•• In practice it rarely occurs that citlier the prosecutor or the
-• prisoner is prohibited from having the assistance of a profes-
•* ^onal adviser, and wlien the pressing reasons f«n- permitting
*• the assistance coupled with the partial recognition of the
*• practice as contained in the 17th section, which section direct-
•• ly refers to the cross-examination of the witnesses by the
"C-ounsel or attorney of the accused are taken into considera-
^' tion it is hoped that no bench of nigistrates will ever refuse
••an application of the kind."

Poicer to hind over the 2^i'OiiC('ntors (did vifncsscs.

36. Any Justice or Justices, before -whom any
witness is examined, may bind by Recognizance
(O 1) the Prosecutor, and every such witness,
(except married women and infants) =^ who shall

•The words "except married woman and infants who hIi.'iII
find sfecnrity for their appearance! " shouhl it is sid>mitted form
the jKirenthesis not merely the words " except married womtii
find infant-s" ; it is to .say tlie least of it very douhtful wliothcr
the persional recognizance of a married woman or an infant is
valid and therefore if the words relative to security be considered
as applicable solely to minors and married women, the first por-
tion of s. 36 becomes intelligible, otherwise construed itisconfu.sed.

JL'fSTICEs ACT.

liiid .security lor thoir appearance, if the Justice
or Justices see lit, to appear at the next Court of
competent Criminal Jurisdiction m which the
accused is to ))e tried, then and there to prosecute,
or prosecute and qive evidence, or to give eviden-
ce, as the case may be, against the party accused,
which Recognizance shall particularly specify the
place of residence and the addition or occupation
ol' each person entering into the same.

Iki rrig)i!r:fnirfs tn In siiltsrrihfd to luf Jiisficrs. dr.

37, The liecog)iizance, being duly acknow-
ledged by the person entering into the same, shall
l)e subscribed ])y the Justice or Justices before
whom the same is acknowledged, and a notice
(O 2) thereof, signed by the said Justice or Justi-
ces, shall at the same time be s'iven to the person
bound thereby.

Ill fdnutZ'Hircs to Itr trunxiii i(fO(? fn f/ii (/ntnf in irjn'rji thr
fii'i/ is to ht: Ik 1(1.

38. The several Recognizances so taken, toge-
ther with the written information (if any), the
depositions, the statement of the accused, and the
Recognizance of Bail, (if any) shall be delivered
])y the said Justice or Justices, or he or they shall
cause the same lo be delivered to the proper Offi-
cer of the Court in which the trial is to be had,
})efore or at the opening of the Court on the first
day of the sitting thereof, or at such other time as
the Judge, Justice or person who is to jireside at
such Court, or at the trial orders and appoints.

\\'Stsss£s:!iVss.

.ir.sTICK.S ACT.

The witiit'ssps MIC to 1h' Ixmiul over )>v tlu' roco^niziiiiot's
to jip))oar iit tlu! uoxt Court of (•(unpotciit Oriininal Jiirisdi*--
tion at wliicli tho acciiscd is tn Ix' tiicfl. I7J» (»l)sorvati(»n.»<
on s. 52 and s. .')(!.

The rct'oiiiiizanccs inti'ii<l(Ml aiv tlio personal rooo<ruizanc»'s
of tho persons so l»ouiul over, the praetical mode of takinu
the reeouiiizanees is the I'oUowin*: : the .lustiee, or his clerk
in the .lustice's presence states to the party hound (and to his
sureties it' there are any) the stihstanee of the recognizance,
the parties l>ound assent to lint do not sign the recognizances,
the Justice alone affixing his signature thereto, and the notice
is tlien given in the form (() 2) to the prosecutor or witnesses ;
t-are must l)e taken to suit the recognizance to the situation oi'
the party houml according to the variations of the form(() 1 ).

in Quehec as all pr(.>secutions are conducted hy (lovern-
nient, hinding over the so called prosecutor to prosecute is
in almost every case an onpty forni.

n ifufn.s r'jKfiinfi /o riitir infn ficiKjiirji iK'i s nnii/ In faiii'
m It ted.

39. [1' any witness voluses to onter into Jlocogni-
zance, the .luslice or Justices of the Peace by his
or their AVarrant (P ],) may commii him to the
common Gaol lor the Territorial Division in which
the accused paity is to be tried, there to be impri-
soned and sal'ely kept until alter the trial ol' such
accused party, unless in the meantime such witness
duly enters into Kecognizance belbre some one
Justice of the Peace lor the Territorial Division
in which such Goal is situate.

Dlsrhnrgr /or n'tnif o/' cridriivf. dc

40. It' afterwards, for want of suilicient evidence

5J8

JCSTICES ACT.

in that behali' or other cause, the Justice or Justi-
ces before Avhom the acccused party has been
brought, do not commit him or hold him to bail
for the offence charged, such Justice or Justices
or any other Justice or Justices for the same Ter-
ritorial Division, by his or their Order (P 2) in that
behalf, may order and direct the Keeper of the
gaol where the witness is in custody, to discharge
him from the same, and such Keeper shall there-
upon forthwith discharge hhn accordingly,

In the event of a witness so committed notifying any Jus-
tice for the Territorial Division within which he is impriso-
ned of liis willingness to enter into the Recognizance provid-
ed by s. 3G, it is the duty of such Justice to receive such
Recognizance.

Power to Justice to remand the accused from time to time
not exceeding eight dai/s bi/ warrant.

41, If from the absence of the witnesses, or
from any other reasonable cause, it becomes neces-
sary or advisable to defer the examination or fur-
ther examination of the witnesses for any time,
tiie Justice or Justices before whom the accused
appears or has been brought, may, by his or their
Warrant (Q 1) from time to time, remand the
party accused for such time as by such Justice or
Justices in his or their discretion may be deemed
reasonable, not exceeding eight cleqr days at any
one time, to the common gaol in the Territorial
Division for which such Justice or Justices are
then actinor

'f -^-ju^'iijlfco-fttil <■>*

J r ST ICES ACT.

Or for thrcr dai/s hij verbal order.

42. If the remand be for a time not exceeding-
three clear days, the Justice or Justices may ver-
bally order the Constable or other person in whose
custody the accused party may then be, or any
other Constable or person to be named by the
Justice or Justices in that behalf to keep the accu-
sed party in his custody, and to bring him before
the same or such other Justice or Justices as may
be there acting, at the time appointed for continu-
ing the examination.

But accused may he hrougJit up at an earlier daij.

43. Any such Justice or Justices may order the
accused party to l)e brought before him or them,
or before any other Justice or .Justices of the
Peace for the same Territorial Division, at ony time
before the expiration of the time for which such
party has been remanded, and the Gaoler or Offi-
cer in wiiose custody he then is, shall duly obey
order. - "

The Justice making the remand alone can order, before
tlic expiration of the time for which the accused has been
remanded that lie be broujiht before him or some other
Justice.

Pttrfi/ accused mai/ he admitted to hail on rceognizances.

44. Instead of detaining the accused party in
custody during the period for w^hich he has been
so remanded, any one .Justice of the Peace before
whom such party has appeared or been brought,
may discharge him. upon his entering into a I?eco-

JUSTICES ACT.

li'iiizance (Q 2, •),) with or Avitlioui a surety or
saireties, at the discretion of the Justice, condition-
ed for his appearance at the time and place appoint-
ed for the continuance of the examination.

IJy tlic terms of this enactment it is entirely in the Justi-
ces' discretion in every case whetlier he will allow the accused
to jz;*) on bail during; an adjournnient of the liearintr. Tt is
otherwise when the Justice has coniph'ted the examination
and committed for trial, for then (as will he seen by s. 52. 5(1)
tlic accused is in cases of misdemeanor entitled to bail, but in
felonies lie is not m entitled. As a gi'ncral rule it may be
said that in practice it is not usual on a remand (especially
where the ])i'ecise natui'e or extent of the chavire is undevelop-
ed) for magistrates to admit to bail in tlioses cases in which
an accused is not entitled to be l)ailed after comnuttal. unless
the amount of property invc>lved is very small; inr»ther case.s
it is (in great part from Oke's Syn.p. 80(1. n. '{).

// fill' arciisiiJ iI(t(S imt (inncar itiwoi'ili iXj (o'liis iirnqnj-
r.itiirr.'-i.

45. If <hc accused party does not afterwards
appear at the time and place mentionod in the
Recognizance, the said Justice or any other Jus-
tice of the Peace who may then, and there be
present, having certiiied (Q 4) upon the back of
the Recognizance the non-appearance of such
accused party, may transmit the* i-ecognizance to
the Clerk of the Court where the accused person
is to be tried, or the proper oflicer appointed l^y
law,to be proceeded upon in like manner as other
Recognizancerv, and such Certihcate shall be
deemed sufficient primd facie evidence of the non-
appearance of the accused ]iarty.

JUSTICES ACT.

The accused party should be called to appear l)y a Justice
at the time and place ineulioued in tlie Uecognizance and ou
his default the Justice sliould fl»llowout the course presc,ril)ed
Ity til is clause.

ff a person lir iij)j,nilt(ii(h(l ill oiir </irisi(iil J(H (ill offrlU'r
ffrnumffi'd in (inotlnr. lir majj he iXinrilii ' iit //h JorDHr.
<nid coinmitf.cd in flir /tiffrr.

46. Whenever a person appears or is ])roni>"ht
before a Justice or Justices of the Peace in the
Territorial Division wherein such Justice or Jus-
tices have jurisdiction, charged with an oftence
alleged to have been committed l>y him within
any Territorial Division in Canada wherein such
Justice or Justices have not jurisdiction, such
Justice or Justices shall examine snch witnesses
and receive such evidence in proof ol' the charge
as may be produced before him or them within
his or their jurisdiction ; and if in his or their
opinion, such testimony and evidence l)e suflicient
proof of the charge made against the accused
party, the Justice or Justices shall thi'reupon com-
mit him to the Common Groal for the Territorial
Division where the ofl'ence is alle"'ed to have been
committed, or shall admit him to bail as herein-
after mentioned, and shall bind over the prosecu-
tor (if he has appeared before him or them) and
the witnesses, by recognizances ns hereinafter
mentioned.

In all cases where the prosecutor and witnesses are in
attendance, the Justice before whom the accused appears or is
brouiiht. althouuli the crime of which he is accused may have

I
I

justices' act.

been committed iu another Territorial Division wherein the
Justice has no jurisdiction, can proceed with the investigation
and commit or bail the accused in the same way as if the
oflbnce had been committed in the Territorial Division in which
lie has jurisdiction ; save that the committal must be to the
Common Goal for the Territorial Division within which the
offence was committed, and the bail be to appear before a Court
having jurisdiction over such last mentioned Division, (cide
s. 24.) The Justice before whom the accused should have
appeared may also issue his warrant for his apprehension as if
no previous hearing of the case had taken place, (ante s. 1.)

And if evidence he not deemed sufficient, it majj he trans-
mitted to the j)roper division, d-c.

Wheir he maij he committed for trial or he haih'd.

47. If the testimony and evidence be not, in
the opinion of the Justice or Justices, sufficient
to put the accused party upon his trial for the
offence with which he is charged, then the Justi-
ce or Justices shall, by recognizance, bind over
the witness or witnesses whom he has examined
to give evidence as hereinbefore mentioned ; and
such Justice or Justices shall, by "Warrant (R 1),
order the accused party to be taken before some
Justice or Justices of the Peace in and for the
Territorial Division where the offence is alleged
io have been committed, and shall at the same
time deliver up the information and complaint,
and also the depositions and recognizances so
taken by him or them to the Constable who has
the execution of the last mentioned "Warrant, to
be bv him delivered to the Justice or Justices

JUSTICES ACT.

;ti-
er

lie

iO
IS

before whom he takes the accused, in obedience
to the Warrant, and the depositions and recogni-
zances shall be deemed to be taken in the case,
and shall be treated to all intents and purposes as
it' they had been taken by or before the last men-
tioned Justice or Justices, and shall, together with
the depositions and recognizances taken by the
last mentioned Justice or Justices in the matter of
the charge against the accused party, be transmit-
ted to the Clerk of the Court or other proper Offi-
cer where the accused party ought to be tried, in
the manner and at the time hereinbefore mention-
ed, if the accused party should be committed for
trial upon the charge, or be admitted to bail.

If the testimony and evidence be not sufficient to put tlic
Mccused party upon his trial, the Justice cannot discharge him
])ut must order him to be taken before some Justice or Justi-
ces in and for the Territorial Division within which the offence
is alleged to have been committed, sending all the papers and
depositions forming the case before him, by the Constable in
charge of the Warrant, to be delivered to the Justice or Jus-
tices in such other Territorial Division before whom the accu-
sed may be brought.

On the prisoner being brought before a Justice of the Ter-
ritorial Division within which the offence is alleged to have
been committed, such Justice must regard all such papers and
depositions as having been taken and produced before him.

Expenses of constnhJe conveying the accused to he repaid
him.

48. In case such accused party be taken before
the Justice or Justices last aforesaid, by virtue of

JUSTICES ACT.

said last mentioned "Warrant, the Constable or
ether person or persons to whom the said Warrant
is directed, and who has conveyed such accused
party before such last mentioned Justice or Justi-
ces, shall upon producing the said accused party
before such Justice or Justices and delivering him
into the custody of such person as the said Justice
or Justices direct or name in that behalf, be entitled
to be paid his costs and expenses of conveying the
said accused party before the said Justice or
Justices.

Justice to J'li/iii.sh itjimfoblc irifh n rccclj^tt ur a rtijicatij
d'c.

49. Upon the C'uiislable delivering to the ,Ius-
tice or Justices the Warrant, information (if any),
depositions and recognizances, and proving on
oath or affirmation the hand-writing of the Justi-
ce or Justices who has subscribed the same, such
Justice or Justices before whom the accused party
is produced, shall thereupon furnish such Consta-
ble with a Receipt or CertiHcate (II 2), of his or
their having received from him the body of the
accused party, together with the Warrant, infor-
mation (if any), depositions and recognizances, and
of his having proved to him or them, upon oath,
or affirmation the hand-writing of the Justice who
issued the AV arrant.

(j)ast(ilih' fo (jc jKilJ 1/1/ projii.r oj^h'rr. ' -

50. The said Constable, on producing such
receipt or certilicat(i to the proper Officer for paying

JUSTICES ACT.

such charges, shiul be entitled to be paid all his
reasonable charges, costs and expenses oi convey-
ing such accused party into such other Territorial
Division, and of returning from the same.

RcrrninizanccH In rcrfctn r<(S(s.

51. If such Justice or Justices do not commit
the accused party for trial, or hold him to bail,
then the recognizances taken l^efore the iirst men-
lioned Justice or Justices shall be A'oid.

Vidt' 7i. 47.

J'oicer to uiiji tii'n ,/iisfi'i<s fn hml jx rsons c/ninjiil nitli
fi hiitjj, not rdpifdf. <lv.

/it rase of inUdi'hii'ntin-. mu- Jiisfin moii hoil.
Jiisflfu'(ffion (if boil . J *

62. When any person appears before any Jus-
tice of the Peace charged with a felony, or suspi-
cion of felony, other than treason or felony punish-
able with death, or lelony under the Act for tht»
better protection of the Crown and of the (Jovern-
ment, and the cA'idence adduced is in the opinion
of such Justice, sufficient to put such accused
party on his trial, but does not furnish such a
strong presumption of guilt as to warrant his
committal for trial, the Justice, jointly with some
other Justici^ of the Peace, may admit such person
to bail upon his procuring and [)roducing such
surety or suretit^s as in the o})inion of the two
Justices will be sulliciiMit to ensure the ai)peaTanc«»
of the pers(>n charg'ed, at the time and place when
and where he ought to l)e tried for the otience ; and

JUSTICES ACT.

ihereux)on the two Justices shall take tlie Reco-
gnizances (S 1, 2,) of the accused person and his
sureties, conditioned for his appearance at the time
and place of trial, and that he will then surrender
and take his trial and not depart the ('ourt with-
out leave ; and when the offence committed or
suspected to have been committed is a misdemea-
nor, any one Justice before whom the accused
party appears may admit to bail in manner afore-
said ; — And such Justice may in his discretion
require such bail to justify upon oath as to their
sufficiency, which oath the said Justice may admi-
nister, and in default of such i^erson procuring
sufficient bail, then such Justice may commit him
to prison, there to be kept until delivered accord-
ing to law. ( Vifle ante as to proper Court for trial
pp. 36-51).

Superior or i.^onnty JnJye iJi Ills discretion maij Order a
[Ktrty commit ted for trial to be admitted to hail.

53. In all cases of felony, or suspicion of felony
other than treason or felony punishable with death
or felony under the Act for the better protection
of the Crown and of the Grovernment, and in all
cases of misdemeanor, where the i)arty accused
has been finally committed as hereinafter provided,
any Judge of any Superior or County Court,
having jurisdiction in the District or County,
within the limits of which such accused party is
confined, may, in his discretion, on application
made to him for that purpose, order such accused

JUSTICES ACT.

party or person to be admitted to bail on entering
into Kecognizance with sufficient sureties before
two Justices of the Peace, in such amount as the
Judge directs, and thereupon the Justices shall
issue a warrant of deliverance (S 3,) as hereinafter
provided, and shall attach thereto the order of the
Judge directing the admitting of such party to
bail.

Certain offences nnt hailahle except hi/ Judge s ordtr.

54. No Justices of the Peace, or County Judge
shall admit any person to bail accused of treason
or felony punishable with death, or felony under
the Act for the better protection of the Crown and
of the Grovernment, nor shall any such person be
admitted to bail, except by order of a Superior
Court of Criminal Jurisdiction for the Province
in which the accused person stands committed, or
of one of the Judges thereof, or in the Province
of Quebec, by order of a Judge of the Court of
Queen's Bench or Superior Court; and nothing
herein contained, shall prevent such Courts or
Judges admitting any person accused of misde-
meanor or felony to bail when they may think it
right so to do. :

No Justice of the Peace cun admit to bail ou the clo«e of
oxamination any person charged before him with treason,
lelony punishable with death or felony under the Act for the
better protection of the Crown and of the Government when
in his opinion the evidence taken is suflScient to put the per-
son accused upon his trial, A Justice of the Pence cnn

justices' act.

fODJoiutly with auother Justice of the Peace, when in their
opinion the evidence given is sufficient to put the accused
upon hiB trial, but does not furnish sucli a strong presump-
tion of guilt as to warrant his committal for trial, admit him
to bail in any charge of felony, save those above mentioned.
A Justice can in all cases of misdemeanor admit the accused
to bail. A Justice is bound in cases of misdemeanor to
bail, if he refuse bail in such case he is guilty of misdemea-
nor, (2 Hawk, e, 15. s. 13), he may also be punished if he
admit a person to bail who is not bailable ; but vide Linford
vs. Fitzroy 13, Q. B. 240, 3 N. S. C. 444, in which the
taking or rejecting of bail was declared to be a judicial act.

A Judge of any Superior or County Court, possessing
civil jurisdiction in the District or County within which the
accused party is confined on final commitment, can order him
to be admitted to bail, application being made to him for
that purpose, on entering into Recognizance as directed by
«. 53, in all cases save treason, felony punishable with death,
or felony under the act for the better protection of the Crown
and of the Government,

All Superior Courts of Criminal Jurisdiction, the iudivi.
dual Judges thereof and the Judges of the Superior Court
in the Province of Quebec, can admit to bail in the respective
Provinces in which they have jurisdiction all persons finally
committed therein on charges of treason, felony and misde-
meanor without any exception.

Justice bailing after committal to issue a wurmnt of
deliverance,

55. In all cases where a Justice or Justices of
the Peace admit to bail any person who is then in
any prison charged with the oftence for which he
is so admitted to bail, the Justice or Justices shall

JUSTICES ACT.

send to or cause to be lodged with the keeper of
Kuch Prison, a Warrant of Deliverance (S 3,) under
his or their hand and seal or hands and seals,
requiring the said Keeper to discharge the person
so admitted to bail if he be detained for no other
offence, and upon such Warrant of Deliverance
being delivered to or lodged with such Keeper, he
shall forthwith obey the same.

7/ sufficient, to he hailed or committed, Ac

Proviso :

56. When all the evidence ottered upon the part
of the prosecution against the accused party has
been heard, if the Justice or Justices of the Peace
then present are of opinion that it is not sufficient
to put the accused party upon his trial for any
indictable offence, such Justice or Justices shall
forthwith order the accused party, if in custody,
to be discharged as to the Information then under
inquiry ; but if in the opinion of such Justice or
Justices the evidence is sufficient to put the accu-
sed party upon his trial lor an indictable offence,
although it may not raise such a strong presump-
tion of guilt as would induce them to commit the
accused for trial without bail, or if the offence with
Avhich the party is accused is a misdemeanor, then
the Justices shall admit the party to bail as herein-
before provided, but if the offence be a felony, and
the evidence given is such as to rais(» w strong
presumption of guilt, then the Justice or Justices
shall by his or their warrant (T 1,) commit him to

100

JUSTICES ACT.

the Common Gaol for the Territorial Division to
which he may by Law be committed, or in the
case of an indictable olfence committed on the
high seas or on land beyond the sea, to the Com-
mon Graol of the Territorial Division within which
such Justice or Justices have jurisdiction, to be
there safely kept until delivered by due course of
law ; Provided that in cases of misdemeanor the
Justice or Justices who have committed the ofl'en-
der for trial, may, at any time before the lirst day
of the sitting of the Court at which he is to be
})e tried, bail such ofiender in manner aforesaid,
or may certify on the back of the AV arrant of com-
mittal the amount of bail to be required, in which
case any other Justice of the Peace for the same
Territorial Division may admit such person to bail
in such amount, at any time before such first day
of the sitting of the Court aforesaid.

It litis been pretended that Justices act but ministerially
in preliminary investigations into indictable oifences, but it
is clear that under this section they act judicially in deciding-
upon the propriety of discharging- or committing the accu-
sed or binding him over for trial (Linford vs. Fitzroy 3 N.
S. C. 444).

Justices ought not to balance the evidence and decide
according as it preponderates, for this would in fact be taking
upon themselves the functions of the petty jury and be try-
ing; the case : but thev should consider whether or not the
evidence makes out a strong or probable or conflicting case of
guilt ; in the first case they sliould commit, in the second
and third they should admit to bail, if however from

justices' act.

101

the Hleuder nature of tho ovidoiice. the uinvovtliincHvS of the
witnesses, or tlio conclusive proof of innocence produced on
the part of the accused hy \\i\y of confession and avoidance,
tliey feel that tlie case is not sustained and tliat if they send
it for trial lie must be acquitted, they should discharge tl\e
accused.

The power to admit to bail under this section it must be
remembered is limited by i^ 52. 54.

Provisions touching the conveyance o/prisonci'S to gttof.

57. The Constable or any of the Constables, or
other persons to whom any Warrant ot Comipit-
ment authorized by this or any other Act or law
is directed, shall convey the accused person there-
in named or described to the gaol or other prison
mentioned in such warrant, and there deliver him
together with the Warrant, to the Keeper of such
gaol or prison, who shall thereupon give the Cons-
table or other person delivering the prisoner into
his custody a Receipt (T 2,) for the prisoner, setting
forth the state and condition of the prisoner when
delivered into his custody.

What and hoir dcfcndnnt mm/ h*> entitled to <i copy of
depositions.

58. At any time after all the examinations have
been completed, and before the first sitting of the
Court at which any person so committed to prison
or admitted to bail is to be tried, such person may
require and shall be entitled to have, from the
Officer or person having the custody of the same,
copies of the depositions on which he has been
committed or bailed, on payment of a reasonable

102

' JUSTICES ACT.

sum lor the same, not exceeding the rate of five
cents for each folio of one hundred words.

The riglit to copies under this section does not attach
until the accused is held to bail or committed to prison for
trial (Exparte Joshua Fletcher l:j L. J. (N. S.) M. C. 67 ;
Ue<,^ vs. Jjord Mayor of Loudon 5 Q. B. 555). Nor is he
entitled to such copies when the charge against him is dis-
missed (Reg. vs, Humphreys 4 N. S. 0. 79).

Cei'tai)! .Uffgtsfratcs may act alone under this Art.

59. Any Judge of the Sessions of the Peace for
the City of Quebec or for the City of Montreal, or
any Police Magistrate, District Magistrate or Sti-
pendiary Magistrate, appointed for any Territorial
Division, or any Magistrate authorized by the law
of the Province in which he acts, to perform acts
usually required to be done by two or more Jus-
tices of the Peace, may do alone whatever is autho-
rized by this Act to be done by any two or more
Justices of the Peace, and the several forms in this
Act contained may be varied so far as necessary to
render them applicable to such case.

Any Judge of the Sessions for instance can admit a per-
son accused [of felony to bail under the provisions of s. 52
which refjuire two Justices to act jointly in such matter.

Diifi/ of Coroner, in cases of murder or manshiyghter.

Recognizances to he sent to proper officer.

60. Every Coroner, upon any inquisition taken
before him, whereby any person is indicted for
manslaughter or murder, or as an accessory to
murder before the fact, shall, in presence of the
party accused, if he can be apprehended, put in

JUSTICES ACT.

103

writing the evidence given to the jury be 'ore him.
or as much thereof as may be material, giving the
party accused full opportunity of cross-examina-
tion ; and the Coroner shall have authority to
bind by recognizance all such persons as know
or declare anything material touching the man-
slaughter or murder, or the offence of being acces-
sory to murder, to appear at the Court of Oyer
and Terminer, or Gaol Delivery, or other Court or
term or sitting of a Court, at which the trial is to
be, then and there to prosecute or give evidence
against the party charged ; and every such Coro-
ner shall certify and subscribe the evidence, and all
recognizances, and also the inquisition before him
taken, and shall deliver the same to the proper
Officer of the Court at the time and in the manner
specified in the thirty-eighth section of this Act.

Formerly it was a question whether the Coroner had not
the power of excluding the pu))lic generally and even those
suspected of committing the cr me then under investigation,
from the place where the inquest was held. (Jervis on Coro-
ners 2 Ed. p. 266.)

The accused at that time had no right to cross examine
the witnesses and he consequently could not transfer to his
Attorney or Counsel a right he himself did not possess.
But under this clause such right is vested in the accused if
apprehended and consequently his Counsel can cross-examine
the witnesses. The inquiry in fact before the Coroner in
such case is placed very much upon the same footing as that
before Justi'^es into indictable offences so that the remarks
upon 8. 29j 5. 30 may be looked upon, so far us the right of

104

JUHTICES ACT.

cross-examination is concerned, as applicable to Coroner's
Inquests.

When parti/ committed wishes to be bailed, Justices on
notice thereof to forward all information to Clerh of the
Crown, or other proper officeis.

'61. When any person has been commitfced for
trial by any Justice or Justices, or Coroner, the
Prisoner, his Counsel, Attorney or Agent, may
notify the committing Justice or Justices, or
Coroner, that he will so soon as counsel can be
heard, move one of Her Majesty's Courts of Supe-
rior Criminal jurisdiction for the Province in which
such person stands committed, or one of the
Judges thereof, or in the Province of Quebec, a
Judge of the Court of Queen's Bench, or of the
Superior Court, or in the Provinces of Ontario or
New Brunswick, the Judge of the County Court
if it is intended to apply to such Judge under the
fifty-third section of this Act, for an order to the
Justices of the Peace, or Coroner for the Territo-
rial Division where such Prisoner is confined, to
admit such Prisoner to bail, whereupon such com-
mitting Justice or Justices, or Coroner, shall, with
all convenient expedition, transmit to the office of
the Clerk of the Crown, or the Chief Clerk of the
Court, or the Clerk of the County Court or other
proper officer (as the case may be,) close under
the hand and seal of one of them, a certified copy
of all informations, examinations, and other evi-
dences, touching the offence wherewith the Pri-

JUSTICES ACT,

105

soner has been charged, together with a copy of
the warrant of commitment and inquest, if any
such there be, and the packet containing the same
shall be handed to the person applying therefor,
in order to its transmisssion, and it shall be certi-
fied on the outside thereof to contain the informa-
tion touching the case in question.

Same order to he made as upon Habeas Corpus.

62. Upon such application to any such Court or
Judge as in the last preceding section mentioned,
the same order touching the prisoner being bailed
or continued in custody, shall be made as if the
party were brought up upon a Habeas Corpus.

Penalti/ on Justices and Coroners dlsohcylng this Act.

63. If any Justice or Coroner neglects or offends
in any thing contrary to the true intent and mean-
of any of the provisions of the sixtieth and follow-
ing sections of this Act, the Court to whose Offi-
cer any such examination, information, evidence,
bailment, recognizance, or inquisition ought to
have been delivered, shall, upon examination and
proof of the offence, in a summary manner, set
such fine upon every such .Justice or Coroner as
the Court thinks meet. '

Provisions to apply to all Justices and Coroners.

64. The provisions of this Act relating to Jus-
tices and Coroners, shall apply to the Justices and
Coroners not only of Districts and Counties at
large, but also of all other Territorial Divisions and
Jurisdictions.

l>fWm'«^iiq«i.

lOG

JUSTICES ACT.

Interpretation.

65. The words " Territorial Division," when-
ever used in this Act shall mean County, Union
of Counties, City, Town, Parish or other Juridical
Division or place to which the context may apply.

Forms.

66. The several forms in the Schedule to this
Act contained, or forms to the like effect, shall be
good, valid and sufficient in law.

This section has only the eflfect of legalizing the particu-
lar forms contained in the Schedule* to the Act. The justi-
<'es may if they think fit adopt any other forms, but so long
as the form given in the Schedule is applicable to the case,
it would be in the highest degree unwise to depart from it.

Commencement of Act.

67. This Act shall commence and take effect on
the first day of January, in the year of our Lord,
one thousand eight hundred and seventy.

SCHEDULES.

RKFERRKD TO IN PRICIEDIXO ACT.

(A) Vide S8, 1 and 9.

(1) INFORMATION AND COMPLAINT FOR AN INDICTABLE

OFFENCE.

(-anada,
Province of ,

District (or County,
United Counties, or
ax the en fie mai/ be,)
of

Tlie information and complaint of C. D. of
{j/eoman), talcen day of , in tiie

year of our Lord , before the undersigned,

{one) of Her Majesty's Justices of the Peace, in and for the said
District {or County, or as the case may be,) of (a) who saith that

(b) * (tj'c, stating the offence.)

Sworn {or affirmed) before (me) the day and year first above
nientionoti, at

J. s.

(a) If a Judge of Sessions, Police Magistrate or Stipendiary
Magistrate proper title to be given.

(b) If the offender is merely suspected to have committed the
offence, and the informant did not see him commit it, insert here :

, •' he hath just cause to believe and suspect,'and doth believe and
suspect, that" then insert the name of the offender,

address, &c., if known, or if unknown, his description as in the
note (c) post, which is allowable by s. 17, and then set out th«^
offence.

If the offence be committed out of the jurisdiction of the justice
receiving' the information, but the offender be residing within it,
add, after the description of the offence : " And that the said
A. B. is now residing or being (or is supposed and suspected to
be residing or to be) at the parisn of , in the said

(county), and within my jurisdiction."

108

justices' act. — SCHEDULES.

(2) INFORMATION AGAINST AN ACCESSORY AFTER THE
FACT TO A FELONY WITH THE PRINCIPAL (not ill

Statute, Okes For. p. 487. No. 2.)

Proceed as in JVo. I supra, and after describing the offence of t/tf
principal, state thus : — and that E. L. of «" :., well knowing the said
A. B. to have committed the felony aforesaid, afterwards, to Avit,
on the day of instant, at the

Parish of aforesaid, feloniously did receive, harbor

and maintain the said A, B.

(3) THE LIKE WITHOUT THE PRINCIPAL OR WHERE PRIN-
CIPAL UNKNOWN, (not in Statute, Okes For. p. 487.
No. 3.1

Proceed as in No. 1 supra, to the asterisk*, then thus: — that one
A. B. of &c., {or some person or persons whose name or names is
or are imknown), on the day of , at the

Parish of , &c., feloniously did {describe the offence

of the ^Hncipal:) — And that E. P. of &c., Avell knowing the said
A. B., (or person unknown) to have committed the felony afor«'-
said, afterwards to wit, on the day of ,

iit the Parish of aforesaid, feloniously did receive,

liarhor and maintain the said A. B. (or person unkno\^n.)

11.

(4) DYING DECLARATION BEFORE A JUSTICE IN CASE OF
PERSONAL INJURIES TO THE DECLARANT (not in

Statute, Okes For. p. 487. No. 5.)

No particular form of this declaration is necessary ; but it may
be as Avell to state in this place that its principal ingredients, in
order to its admissibility in evidence against a prisoner, are ; —

1. The cause of the death of the declarant must be the subject

of the inquiry.

2. The circumstances of the death the subject of the declara-

tion.

3. Tt must appear to have been made at a time when the decla-

rant (the deceased) was perfectly aware of his danger
and entertained no hope of recovery.
Tf the accused can be brought into the presence of the person
injured, the examination should be taken in the usual form ; but

JUSTICES ACT. — SCHEDULES.

109

if otherwise, the declaration, not on oath, should be taken bj a
Justice in somewhat like the following form : —
" I, C. D. of ' in the (county) of do

hereby solemnly and sincerely declare that (here set out the state-
ment in the very words used.)

Taken before me, nt

this

day of

in the [countif) of ,

, 18G8.

J. s.

One of Her Majesty's Justicofj
of the Peace for the said
(county) of

OF
in

)joct
ara-
3chi-

rson
but

(B) Sec fi». 1,17.

(5) WARRANT TO APPREHEND A PERSON CHARGED WITH

AN OFFENCE.

Canada,
Province of ,

District (or County,
United Counties, or
a.t the case may be,)
of

To all or any of the Constablen or other Peace Officers in the

District (or County, United Counties, or as the case may be,)

of : Whereas A. B., of (laborer,) (c)

hath this day , been charged upon oath before

the undersigned, (one) of Her Majesty's Justices of the Peace in

and for the said District (or County, United Counties, or as the

case may be,) of , for that he, on ,

(c) If the offender's name is unknown s. 17 allows his descrip-
tion to be given in a warrant, which may be as follows : —

Whereas a certain man (an Italian, or as the case may be, if a

Description. foreigner,) tchose name is not knoicn, but

Height the description of whose person is stated in

Colour ot Hair the margin hereof, hath this day, «|*c, (Pro-
Colour of Eyes reed as in the usual form : but wher-

Age, apparently over the name of the defendant occurs,

Complexion say, " the said ryian unknown."

Distinctive marks ....
Dress

110

justices' act. — SCHEDULES.

at , did {Jfc, stating shortly tht offence), (di These

are therefore to command you, in Her Majesty's name, forthwith
to apprehend the said A. B., and to bring him before [me) or some
other of Her Majesty's Justices of the Peace in and for the said
District [or County, United Counties, or as the case may be,) of

, to answer unto the said charge, and to be further
dealt with according to law.

Given under {my) Hand and Seal, thiH day Qf

, at , in the District [County y cf-c, aforesaid.

J. S. [L. •.]

(6)

SUMMONS TO A PERSON CHARGED WITH AN INDICTABLE

OFFENCE.

Canada,
Province of ,

District {or County,

United Counties, or

as the case may be,)

of
To A. B. of , (laborer :)

Whereas you have this day been charged before the undersigned
(one) of Her Majesty's Justices of the Peace in and for the said
District (or County, United Counties, or as the case may be,) of

for that you on , at ,

(<j-c., stating shortly the offence ;) (c) Tliese arc therefore to command
you, in Her Majesty's name, to be and appear before (me) on

, at o'clock in the (fore) noon,

at , or before such other Justice or Justices of the

Peace of the same District [or County, United Counties, or as the

rase may be,) of

, as may then be there, to answer

to the said charge, and to be further dealt with according to law.
Herein fail not.

Given under (/«//) Hand and Seal, this day

of in the vear of our Lord ,

at , in this District (or Coimty, ijv.) aforesaid.

" J. S. [l. s.]

(d) If the offence were committed out of the Justice's Juris-
diction, but the offender be within it, add here the Avords as
directed in note (b), ante.

(e) The offence or matter of complaint may be stated much
jihorter in the summons than in a warrant, ov in the conviction.

justices' act. — SCHEDULES.

Ill

(7) DEPOSITION OF THE CONSTABLE OF THE SERVICE OF

THE SUMMONS. (Not in Statute, Okes For. No. 9.

p. 11).

Canada,
Province of ,

District {or County, .
United Counties, or '
as the case may be,)
of

The deposition of J. N. constable of tlie Parish of C, in the
8aid {county^) taken upon oath before me the undersigned, one of
Her Majesty's Justices of the Peace for the said {county) of C, at
N., in the same {county), this day of

18 , who saith that he served A. B., mentioned in tlie annexed
{or within) summons, with a duplicate ihercof, on the
day of last personally {or " by leaving the same

with N. O. a grown person it the said A. B's usual or last place
of abode at N., in the county S.")

Before me J. S.

J.N.

(D) ,See ss. 2, 16.

(8) WARRANT WHEN THE SUMMONS IS DISOBEYED.

Canada,
Province of ,

District {or County,
United Counties, or
cs the case may be,)
of

To all or any of the Constablos, or other Peace Officers in the

said District {or County, United Counties, or an the case may

bCf) of

Whereas on the day of (instant

or last past) A. B. of the , was charged before {me

or us,) the undersigned, or name (he Magistrate or Magistrates, or ax

I he case may be (one) of Her Majesty's Justices of the Peace in and

for the said District (or County, United Counties, as the case mui/

be,) of for that M'c, as in the Summons ;) And whereas

(I, Of he, (he said Justice of (he Peace^ or wo or they, (he said Jusdces

■i

;

112

justices' act. — SCHEDULES.

r\f the Peace) did then isBue (my, our^ his, or their) Summons to the
Kaid A. B., commanding him, in Her Majesty's name, to be and
appear before (we) on , at , o'clock in

the (fore) noon, at , or before such other Justice or other

Justices of the Peace as should then be there, to answer to the
said charge, and to be further dealt with according to law ; And
whereas the said A. B., hath neglected to be or appear at the time
aed place appointed in and by the said Summons, although it
liath now been proved to (me) upon oath, that the said Summons
was duly served upon the said A. B. ; These are therefore to com-
mand you in Her Majesty's name, forthwith to apprehend the said
A. B., and to bring him before (me) or some other of Her Majesty's
Justices of the Peace in and for the said District (or County,
United Coimties, or as the case may be), of , to

answer the said charge, and to be further dealt with according to
law.

Given imder (my) Hand and Seal, this day

of , in the year of our Lord , in the

DistrictJ(or County, &c.,) of aforcscUl.

J. S. [l. s.]

(D 2) See s. 3. '

(9) WARRANT TO APPREHEND A PERSON CHARGED WITH
AN INDICTABLE OFFENCE C03IMITTED ON THE HIGH
SEAS OR ABROAD.

For offences committed on the high seas the warrant may be the
same as in ordinary cases, but describing the offence to have been
committed " on the high seas, out of the body of any District or
County of Canada and within the jurisdiction of the Admiralty
of England."

For offences committed abroad, for which the parties may be indicted
iti Canada, the warrant also may be the same as in ordinary cases, but
describing the offence to have been committed " on land out of
Canada, to wit : at , in the Kingdom of ,

or at , in the Island of , in the West

Indies, or at , in the East Indies," or^s the case maif

be.

J L'SXICIi.S ACT. — «(.1IEDLLE«.

113

(K 1) See 8. \'2.

(10) INFORMATION TO OBTAIN A SEAKcri WAURANT.

Canada,
rrovinee of ,

District (or County.
I'nited Conntics. or
HM th^ rmp //(</// ltc.\
of

The intorniution of A. 15.. of tlic . of ,

in thr said District {oi- County, ijc.) (i/foman), taken this
day of . in the year of Ota- Lord

. before me, W. S., Esquire, one of Her Majesty .s
-Instkes of tlie Peace, in and for tlie District (or County. United
i'onnties. or as thi" ritsc mat/ he.) of . who saitli tliiit

»»n the day of (i>>xfrt the, dpisrriptioii of

'irtieifn ftnhn) of the pfoods and t liattels of Deponent. %vere
feloniously stolen, taken and carried away, frojn and out of the
( DtreUing JIovsp. life..) of this Deponent, at the (Townsfup. <j'\.)
aforesaid, by (some person or persons unknown, or nuine the
li^rton,) and that he haih just and reasonable cause to suspect,
and doth suspect that the said goods and chattelK. or some part
«»f them, are concealed in the (DweUinff Ifovxr. ,(jv.. of ('. /).)
«f , in the said District, (nr County.) /if re add the

r,in»^f of .fnifpicton. whatever thei/ maji be ,) Wherefore, (^he) prays
that a Search Warrant may be granted to him to search (the
hveltmg Houxes, .^o.) of the said C. D. as aforesaid, for the said
;roods and chattels so feloniously stolen, taken and carried away
H* aforesaid.

Sworn [or atfirmed) before me the day and year fust above
mentioned, at in the said District, lor Countv)

w. s.
J. 1\

(11)

JUSTICES ACT.— SOnEDv'LEi.

lE 2) See s. 12.

SEARCH WARRANT.

Canada. ,
rrovince of ,

DiBtrict {or County,
llniU'd Counties, or
an the case may be,)
of

To all or any of the ConRtables, or other Peace Officers, in the
District {or County, United Counties, or as the case may be,)
of

Whereas A. B. of the , of , in the

Kaid District, (or County, &c.,) hath this day made oath before
me the undersigned, one of Her Majesty's Justices of the Peace,
in and for the said District, {or County, United Counties, or as
the case may be,) of , tliat on the day of

, copy information as far as place of supposed
concealpient ;) These are therefore in the name of our Sovereign
Lady the Queen, to authorise and require you, and each and
every of you, with necessary and proper assistance, to enter in
the day time into the said {Dwelling House, ^c.,) of the said <J*c.,
and there diligently search for the said goods and chattels, and
if the same, or any part thereof, shall be found upon such
search, that you bring the goods so found, and also the body of
the said C. D. before me, or some other Justice of the Peace, in
and for the said District {or County, United Counties, or as the
case may be,) of , to be disposed of and dealt with

according to Law.

Given under my Hand and Seal, at in the said

District {or County, Sfc.,) this day of , in

the year of our Lord, one thousand eight hundred and

W. S., J. P. [Seal]

(F) See s. 4.

(12) CERTIFICATE OP INDICTMENT BEING POUND.

I hereby certify that at a Court of (Oyer and Terminer, or
General Gaol Delivery, or General Sessions of the Peace) boldeu

justices' Arr.— SCHEDrLES.

115

ill and for liic District (or County, United CounticK, or tm Ihf cnnf
mnji be,] of , ftt in tlie Knid District,

((.'ountv, i\c.,) on , ii Bill of Indiitnicnt wns

found liy the (Jrand .Jury against A. 15., tiu'rein dt'K( rilx^l as A. 15..
Iat<! of . (Inhorer) for that he (t!JY., stalintf Kfiort/i/

/ f/ie ofence) and that th<' said A. 13. liatli not appcarcil or plcajicd
to the said Indictnu'nt.

Dated this . day of . ''nf thousand

eijjlit liun<lrod and

Clerk of the (,'rown, or l)e|>uty Cleriv of tlie Cnuvn for ti)e
[district [or County. United Counties, or as the rtme wnj/ /»'),

or
Clerk of the Peace of and for the said District (or County,
United Counties, or as the cnnc moij t>r.)

(13) WARRANT TO APPREHEND A PERSON TNDTCTET).

..1

Canada,
Province of

District (or County, .
Unit'^d Counties, or (
OK the case ???(/»/ be,
of J

To all or any of the Constables, or other Peace Officers in the
said District (or County, United Counties, or as the case may be)
of : '

Whereas it hath been duly certified by J. D., Clerk of the
Crown of (name the Court) (or E. G., Deputy Clerk of the Crown,
or Clerk of the Peace, as the case may be) in and for the District
{or County, United Counties, or as the case may be) of
that (^c, stating the certificate ;) These are therefore to command
you in Her Majestys name forthwith to apprehend the said A. P.,
and to bring him before (me) or some other Justice or Justices of
the Peace in and for the said District (or County, Unitetl
Counties or as the case may be,) to be dealt witli according to Law,

Given under my Hand and Seal, this dny of

, in the year of Our Lord , at

in the District (or County, ^-c.,) aforesaid.

J.'S. [l. 8.]

lir,

jr:sTic'E« Ar-T. — sniEniLEs.

iii

(1 ^) DKI'OSITION THAT THE PERSON A ITllEIIENDED fS

THE SAME WHO IS ]NJ)irTEl>. (Not ill f^tututo, Okes
For. p. 401. No. 1().)

Ji <;

( 'iUiada,

Province of ,

Distrift {or Coniity.

I'liiti'd (Jonntios, or

ii.s llie case may he.)

'V\\v. deposition of .1. N. of liif Piirisii of

till- [Conntii) of

coustfilde taken njion oatli Ix'fore

nic, tlic niidersi^ucd, one of Tier ]\faiestv's .Tiistiees of the P
for tile said (0'"»///) of

e.'ice

this

day of

in <he same (Count f/.)

A. i). IS

^\'ho saitli. r well know A. Ik. of ki\, d<'S( rilied in \\\>'
( iitilieate of .1. D.. Clerk of the Crown ol

('*/• Clerk of the Peace of ias the cri.sr )iifi>/ In) ^

HOW i-rodiiced liy lue : that I never heaid mention ol any (ftlier
prison of the same name as the said A. P>., livinj^- at or near the
parish of* o/' us ihr rase may he;] that A. P>. ajiprehended <hy me)
and now here present, is the same person who is charu'ed in the
indielmeiit referred to in the said cerliticate.

Taken and sworn before me. tin
day and yrai' ;ind at the place ahovt

)

J. N

mentioned,

J. s.

I'. %

(H) Srr s. f).

(15) WARRANT OF COMMITMENT (it^ A PERSON INDICTEl).

Canada.
IM'oviiut' <if

District ("/• Connlw
Tinted Connties. or
lis tlif nisf )ii(iy hr,)
of

To all or any oi' the ConstaMes. or oilier Peace ()flicers in the
sfud District (o/' County, c\y..) ol and the Keejier

of i\\o Cmnnion (Jaol, at ,'in the .said District

[or County. Tnited Counties, or oi^ the cane may he) of ;

Wlicrcfts liv a Warrpnt under the Hand and Seal of

JUSTICES ACT. — SCHEDULES.

117

(0/(1?) of Her Majesty's .Insticcs of tho I't-ait' in and tor tlic said
District (or County, United Counties, or i/s tin: case nxiy be) 51'
under Haiul and Se.il dated

, after reciting' tliat it liad Iteeu certitietl liy .1. D.
(.jr.. Its in (he certificate,) I ) the .said .lustice of tlie Peace

commanded all or any ot the Con.stables, in Her Majesty's name,
forthwith to apprehend the said A. B. and to i';'n<;- iiini before
(//*/«) the said .Justice of the Peace in and for tne said District
(or County, United Counties, or as the case man hi) of
or before some other .Justice or Justices in and for the sai<i
District (or County, United Counties, or as (he ease mai/ hr.) to be
dealt witli accordin;.? to hvw ; And whereas the said A. 15. hatli
been apprehended under and by virtue of the .said Warrant, and
being now brouf^ht before (nu) it is hereupon duly proved to (}ni)
upon oath that the said A. 15. is the same i)erson who is named
and charged by , in the said indictment ; These

are io command you the said Constables and I'eace Otlieers. or
any of you, in Her Majesty's namt', fortliwith to taiie and convey
the said A. B. to tho said C'ommon Gaol at , in tlie

said District (or County, United Counties, or as the case may be,
of . and there to deliver him to the Keeper thereof,

together with the Precept ; and (/) hereby command you the said
Keeper to receive the said A. B. into your custody in the said
(iaol, and him there safely to keep until \\r shall tiirucr be
delivered by due course of law.

Given under (»M/) Hand and Seal, this da\ o!

in the year of om- Loid
in the Distric"" ((//■ County, A.yc..) aforesaid.

ill ti

,ftt

m 1

.l.S. [i.. s.].

ilGi DEPOsrnoN that the peh^son [ndicted is the same

WHO IS IN CUSTODY FOR SOME (/Til EH (>F FENCE.

(Not ill Statute, Okes For. p. 102. No. 18.)

(Proceed as in the form Sv. 1 1 to the a.sterisjv*, tin n thu.> : —
that A. B. now confined in the (^common <joal) at ,

in the (coiiii(i/) of , is the same persoti who is

indicted and referred to in the said certitiiate.

.'■ it.

118

JUSTICES ACT. — SCHEDULES.

* i

(I) See g. 6.

(17) WARRANT TO DETAIN A PERSON INDICTED WHO IS
ALREADY IN CUSTODY FOR ANOTHER OFFENCE.

Cc'i'iada, \

Province of ,

District (o/' Couuty, I ♦ * -

United Counties, o/- ( - •

lis the caxe iiiai/ hc)^ I
of ■ - J

'I'u the Keeper of tlie Common Goal at in tlie said

District {or County, United Counties, di- «in ihe case viay be,)
of ' :

Whereas it liatli been auly certilied ny J. D., Clerk of the Crown
of (inline (lie Court) or Deputy Clerk of the Crown, or Clerk of th«'
J'cace of and for the District (or County, United Counties, or as
the case may be.) of that (<.^c., statitiy the Certificate ;)

And whereas (/ am) infornunl that the said A. B. is in your custody
in the said Common Coal at aforesaid, charged

with some olfence, or other matter ; anil it bi'inj:: now duly i)roA'ed
upon oath Itefore (me) that the said A. B. so indicted as aforesaid,
and the said A. B., in your custody as aforesaid, are one and th(!.
same ))erson ; These are therefore to command you, in Her
.Majesty's name, to detain the said A. B., in your custody in the
Common Uonl aforesaid, until by Her Majesty's Writ of Jlabeas
Corpus he shall bu removed therefrom for the purpose of being
tried upon the said indictment, or until he shall otherwise be
rmioved or discharged out of your custody by due course of law.
Given under (my) Hand and Seal, this day

t)t

in the year of our Lord

iit

in the District (or County, &c..) aforesaid.

J.S. [l. S.]

(18)

(K) ^V-^'^s. 23.

ENDORSEMENT IN BACKING A WARRANT

Canada,
Province of

District (or County, .
United Counties, or \

lis the (v^1c may be),

Wliereas proof upon oath hath this day been made before nie,

JUSTICES ACT. — SCHEDl'LES.

119

one of Her Maje^tyn Justices of the Peace in and for the saiil
District (or County, United Counties, or as (he case may be,) of

that the name of J. S., to the witliin Warrant
subHcribed, is of the hamlwritinj,' of the Justice of the Peace
within mentioned ; I do therefore hereby authorise W. T. who
bringeth to me this Warrant and all other persons to whom this
warrant was originally directed, or by whom it may be lawfully
executed, and also all Constables and other Peace OUicers of the
said District (or County, United Counties, or as the case may he)
of , to execute the same within the said last

mentioned District (or County, United Counties, or at the case may
be.)

Given under my Hand, this day of ,

in the year of our Lord , at , in the

District (or County, <jc.,) aforesaid,

J. L.

(19) DEPOSITION THAT A PERSON IS A MATERIAL WITNESS.

(Not in Statute, Okes For. p. 14. No. 19.)

Canada,
Province of ,

District (or County,
United Counties, or
(IS the case may be),
of

The deposition of J. N., of the parish of C, in the said County
(fanner), taken on oath before me the undersigned, ont^ of Her
Majesty s Justices of the Peace in and for the said County of ('.,
at N., in the said County, this tiay of

18 , who saith that E. F. of the parish of C, aforesaitl (grocer)
is likely to give material evidence on behalf of the prosecutioj),
in this behalf, touching the matter of the annexed (o/- " within")
information (or " complaint ") ; And that tliis deponent verily
believes that the said E. F. will not appear voluntarily for the
purpose of being examined as a witness (or if a warrant hf
y ranted in the first instance, " without being compelled so to do.')

Before me, J. 8.

J. N.

Il i^l i

120

JUSTICES ACT. — iJCHEDULES.

(20)

(L 1 ) ,Vw .s. 25.

SI'.MMONS TO A WITNESS.

(.'anatUi, •

Province of ,

District [or County,

Fnitcd C'oiintiois. or j

(IS (he case mai/ /vf).

of 'I

'I'o E. F. of . [laburer) :

Whereas infurination liatii been laid lieforc the undersigned,
one of Her Majesty's .Justices of tlu; Peace in and ftir tlie sani
District (or County, United (,'ounties, or <is (/a- caxe mail Ip^] of

, tl)at A. B. (4v'., (it^ ill Uie SutniiiOiis or Warrant
thjaiiiiit the avcased.) and it liatli been made to apj)ear to nn; upon
(oat ft,) that you are lilcely to give Uiaterial evidence for
(jiroseculioii) ; 'J'hcsc luc therefore to recjuire you to be and ap])eai-
liefore nie on ne.xt. at oelock in tlie

{/ore) noon at . or before sueli other .Fustice or

•fustices of tlie Peace of tlie sanu- Distrii t {or County, United
Counties, or as the case iinnj be) of as nuiy then

be there to testify wliat you shall know concerning tlie saio
charge so maile against the said A. J5. as aforesaid. Herein fail
not.

(ii\en under my Hand and Seal, this da} of

in tile year of our Lord , at ,

in tin- District (m- Couiit\ . <\'r..) aforesaid.

. 2i

(Scr S. Jt).

(21) warrant when a witness has not oljevel) the

sl:.\i.mons.

( auada,
I'ldv incc of ,

District [or County.
I'nitt'd Counties, or
ita the rase inai/ be),
of

To ill I or any of the Constables or otiier Peace (.Uticers, in the
siiid District {or CoUTity, United Cotuities, or as the ra.fe mmj /;'■
of :

JUSTICES ACT. — SrflEDlLES.

121

WluTcfts inloimation havinff b'.iii laid Itolure ^one) of Hit
Majesty's Justices of the rcaco, in and for the District (or
County, &c.,) of . tliat A. B.. (.jr., as in the Suminons ;)

And it liaving been made to appear to (me) upon oath tiuvt? E. F.
of , [laborer,) was likely to trive material e\ idenct-

for the i)roHecutioii, (/) ditl duly issue ('/'.'/) summons to the said
I"). F., riMjuirinu liim to be and appear before (me) on
at . or l)efore such other Justice or Justices of tlic

I'crtce for the same District (<//• County, I'nited Counties or o.s- (hr
rase may U,) as might theif be there, to testify what he should
know res))ecting the said charg*- so made against the sai<l A. 15.
as aforesaid ; Anil whereas i)roof has this day been made upon
oath before (inc) of s\ich summons' having been duly served upon
tlu' .said E. F. ; and whereas the said E. F. hath neglected to
jippear at tlie time and place appointed by the said Summons.
;ind no just excuse has ln-i-n offered for such neglect : Tlicse arc
therefore to command vou t<i briny and iiave t!u' said E. F.

iM'forc ()iif') on
(.fore) noon, at

at o'l lock in the

. or before such other Justice or
Justices for the same District (or (.'ounty. I'nited Counties, or ax
the rase inai/ be.) as mey then l»e there, to testify what he shall
know concerning the said tharge s(» made against tiu' said A. !'..
as aforesaid.

(Jiven undiT (mi/) Hand and Seal, this da\

ol' in tlio year of Our Lord

in tlif jiistrict (or County. <V''..) aforesaid.

[,,. ..]

i .)| >Sc/- s. J< .

(22) WARRANT For A WITNESS IN THK FIRST INSTANCE.

(anada. "X

Province of . [ .

District \or County, i
I'nited CouutTes. or j
(t.s I be rusf imiii he.i
of ' I

To all or any ot the Constables, or othei' I'cacc Ctlners in I In-
said Distriit lo/- County. Cnited Counties, or ax the cane m<iii be)
of " : '

Whereas information has been laid before the undersigned.
'oiie] of Her Majesty's .Justices of the Peace, in anil for the said
J)iBtrict (or County, Tnited Counties, or as the rase may be.)
of that .\v',. iix in ihe summon'* : (and it having lieeii

I! !'*■

122

JUSTICES ACT. — SCHEDULES.

niadu to api)(ar to me) upon oath, that E. F. ot ,

(laborer,) is likely to give material evidence for the prosecution,
and that it is probable that the said E. F. %vill not attend to give
evidence unless compelled to do so. These are therefore to
<'ommaiul you to bring and have the said E. F. before (me)
<»ii at o'clock in tlie (fore) noon,

at , or before such other Justice or Justices of the

Peace lor the same District (or County, United Counties, or ax
the case may be,) as may then be there, to testify what he shall
know concerning the said charge so i5ade against the said A. B.
as aforesaid.

Given under my Hand and Seal, this (Jmy of

in the year of Our Lord , at in

the District (or County, i^c.,) aforesaid

. . J. S. [I.. S.]

(L4) SeeH.2S

(23) WARRANT OF COMMITMENT OF A WITNESS FOR
REFUSING TO BE SWORN, OR TO GIVE EVIDENCE.

Canada,
Trovince of ,

District (or County,
United Counties, or \
lift the case vHii/ be.) \ i

of "J

To all or any ol' the Constables, or other Peace Officers, in the

District (o/- County, United Counties, or as the case may be)

of , and to the keeper of the Common Gaol

at , in tiie said District [or County, United

( 'ounties, or as the case may be) of ,

Whereas A. B. was lately charged before • (o-ne) of

Her Majesty's Justices of the Peace in and for the said District

I or County, United Counties, or as the case may be) of ,

for that (<JT., rts nn the Summons); And it having been made to

appear to {me) upon oath that E. F. of was likely

to give material evidence for the prosecution, (/) duly issued

imy) Summons to the said E. F. requiring him to be and appear

before me on , at , or before such

Mther Justices of the Peace for tlue same District (or County,

Ignited Counties, or as the case may he.) as should then be there, to

JUSTICES ACT. — SCHEDl'LES.

123

testily what ho ishould know concerning the said charge so nuuh*
against the said A. IJ. as aforesaid; And tlie said E. F. now
appearing before (»ic) (or heing bronglit before (nif) by virtue of
ii Warrant in tliat belialf, to testify as aforesaid,) and l)eing
rofniired to nialve oatli or athrmation as a witness in that belialf,
batli now refused so to do, (or being duly sworn as a witness
doth now refuse to answer certain ciuestions (.oncerning the
premises which are now here put to him, and more particularly
the following) without offering any just excuse

for such refusal ; These are therefore to command you, the said
Constables, Peace Officers, or any of you, to taki' the said E. F.
and him safely convey to the Common CJaol at
in the District (or County, &c.) afcucsaid, and there to deliver
him to the Keeper thereof, together with this Precept; And (J)
do hereby command you, the said Keeper of the said Common
(laol to receive tlu^ said E. F. into your custody in the said
Common C»aol, and him there saieiy keep for the space of
days, for his said contempt, unless he shall in the meantime
consent to be examined, and to answer concerning the premises ;
and for your so doing, tliis shall be your sufficient Warrant.

Given under (mi/) Hand and Seal, this day of

in the year of Our Lord , at , in the

District (Counlv. .Ir,,) aforesaid.

. • J. S. [b. 8.]

(24) WARRANT OF COMMITMENT OF A WITNESS FOR
REFUSING TO BE SWORN OR TO GIVE EVIDENCE WHO

ATTENDS WITHOUT A SUMMONS. (Not in Statute,
p. 400. No. 41.) •

Okes For
Canada,

[

Province ot
District (or County,
United Counties, or
• (IS (he case may be,)

«'f

To all or any of the Constables, or other Peace officers, in the
District {or County, United Counties, or </.t (he ease may be.)
of and to the Keeper of the Comnion Goal

at , in the said District (or County, United-

Counties, or as (he case may be) of :

Whereas A. B. was this day brought before me, the undersigned,
(one) of Her Majesty's Justices of the Peace in and for the said
[C'lvnidj) of ' . for that he the snid A. P. on &c.. at

124

JUSTICES ACT. — SCHEDULES.

&c.. \lip.rr stole the charge its in the Summons^ warrant or caption of thfi
ib'fiositions ) And whorciis one E. F. of &c., here iu the iJiesencv
of tlic said A V>. now under examination ])efore nic tli(! .said Jus-
tice on tile cluuf^e aforesaid, now voluntarily a})i)('ars as a witness
for tlie jiroseeution in that beiialf, and the said E. F. appearing;
to lue. upon oatii, liliciy to j^ivc material evidence for tlie prose-
cution, but beinu ri-cpiired to make oath or alHrujation as a witness
in that behalf, hath now refused so to do, {or being didy sworn as
a witness, doth now refuse to answer certain questions coneerii-
_\nic the premises, wliich are here put to him,i without olferiiiK
anv just cause for such his refusal : These are therefore to eon)-
mand you the said constable to take the said K. F. and him safely
to convey to the (Common (}oal) at , iu the \ Count'/)

aforesaid and there deliver him to the said Keeper thereof,
with this precept, and I do hereby eounnand you the said Keeper
of the said (Connouii Goat) to receive the said K. F. into yom-
custody in the said (( 'ommon Goal), and him tlurt- safely keep,* (f i
for the s[)ace of . days for his said contempt, unless

he shall in the meantime consent to be examined and to answer
concerning the premises ; and for your so doing tiiis shall In- your
sullicient warrant.

(Jiven under my Hand and Seal, tlii^

(it

in tin: (^(.'oiinfi/) aforesaid.

in the vear of our Lord

(lay

!>!) See s. 21).

(25) DEPOSITION (W WITNESSES, (-i
|». 501.

Canada, |

Province of

.1.^^. [,..s.]

Okes For. Note (i:i

District (or County. '
United Counties, or ^
as the case man ^^j)
of

, \farni'i], i\n*\

The examination of C. AV. ol
E. F. of , (laborer), taken on [oath; this

day of , iu the year of our Lord ,

at , iu the District (oy County, <jc, or as the case

(f) The period of imprisonment cannot be greater than ten
days.

(g) It is reeommeiuled that the cai»tion and de])ositions be
written on foolseajt p;ipor, the caj)tiou on a half sheet, and each

.jryncEfs act. — ^riiEuiLKs.

2.".

iii'iji /if,), atort'sjiid Itctorc tlir niult'isi;^n<'(l. (out) ot Ihi iMiijt'stv's
.liisticcs of the PoiU'c for tin' Siiid District [or County. Cliitcil
( 'oiintics, or an t/ip rnsp mtiif hr,) in tin- presence and liearinK of A. I'..
who is ( luirycd tin's dav licroic ■im-] for that lie, the said A. 15.

at . • (.V''., th-xi-nhr I /if OlVfnrf us in //*/•

Wiiriutnt nj Comiiii/inn}t.\ ill)

Tills Deponent. ('. 1)., upon his (««///o saitli as follows: (<^v..
shiliDfj t/if f/r/iosi/ioiis of t/ir iriliii'-^.s (is iif(fr/i/ IIS fiosm/t/r in f/if n'on/.i /ir
nsf.t. ]V/ifin /lis dpfiosilinn /> cc.inpletei/, /ft /tim xif/n it.) (i)

.And this de])onent. E. V. npon his (o^///() saitli as follows: (.^r.i
The aliove depositions ot ('. 1). and K. F. were taken an<l
(sH'oni) before me. at . on the day an<l year tirst

aliove nietitiolied,

J. s.

witness eoninienci'iir with a fresh sheet, written on one side only
and instead of the witness's address being in the ea[)tion, insert-
iii.n it at the ( (inunencen^ent of his statement, as, '• I am a farmer
residinu at , n/, I earry on business at as a

and have one partner, or as <tc." or ns liif rn.^r niny />r.

(h) ^Vhel•e the accused is charged with the commission (^f two
or more felonies (u* misilemeanors committed within tlie same
Jurisdiction in respect of the same or dilVerent |)r(xse( ntors. the
otfences may. if convenient, be imdmh'd in one set of (le])ositions
(See Okes ''Synopsis,' loth ed.i the sCcotid offence luing stated
iis. — 1. And (i/ so for that he tlu' saiil A. I'l. on «fec.. at kv., (stating
the offence) ; — '.\. Ancl also for that k'\ (plaiini; each otVence in
a separate ]»a)agrai)h with a number.)

(i) AVlure the accused interposes an observation durinj^- the
(•xamination of a witness, insert it in this manner : The prisoner
here voluntarily says (pnt /lis vfrji irords.") or •• the jirisoner at
this sta,ij:e of the proceedin;;s said he desired to make a state-
ment, and having been given clearly to understand that he was
not olilined to say nnythinj;' now but whatever he did say would
lie taken down in writinu' and might be used in evidence ajjraijist
him, voluntarily saith as follows : << ; "

or the jirisoner lieing asked whetluM' he wished to put anv (jUestion
to the witness voluntarily says ; •• The cross-

examination should likewise be taken down as ''Cross-examined
liv the prisoner (or by I\li. Wontiu'r, attorney, or Mr. (Jiftard.
( ounsid for the ]nisoner ",. And when the accused himself cross-
examines the witness, the answer as well as the question ?««?/ /jr
taken down if desirable. Tiie re-examination by the i)rosecutors
attorney, or by the magistrate, should also be distinguished, as-^
'• Re-examined l\v Mr. Humphreys, attorney for the prosecution,"
or "by the magistrate.'

12t-)

.TU8TICES ACT. — SClIEDl'LES.

(26) DEPOSITIONS OF THE WITNESSES ON TIIK REMANI)

r>AV. (Not in Statute.)

This will he on Ihe like c<fjifion 'is No. 2;"), bid inskail o/ re/ifi<ifiii</
Ihr offence. MJI from Ihe osferis/c* : witli llic felony inr inisdcliicanort
Ix'foic mciitioiu'd.'

'The jurat xcill be an follows: — Tlic nliovc depositions of F. (}., &('.,
wiTc taken and sworn before me at , on the

day of • 18 . the depositions of ('. D., and E. F.,

taken ou the day of 1« . (and the

depositions of C. IT. and L. M. taken on the day

of ]8 ,) being at the same time severally read over

and resworn in tlie presenee and hcarinj; of the before-named
prisoner. ' - <

J. y. ■

Where the same justice hears the further etndcnce on Ihe remand dai/,
fliere would be no nccessidj for the former depositions to be resworn, and
consequentli/ no allusion to it in the jurat.

If on the remand day there is a committal fur trial bi/ tinolher justice
without any additional evidence, place the followiny jurat : '■ Tlic fore-
fxoinfi: deposition.s of ('. D. and K. F. taken on &c. (and the depo-
sitions of F. (i., &c., taken on &c.,) were severally read over and
re-sworn before me at , on the day

of 18 , in the presence and hearing of the before-

named ]irisoner.

J. L.

(N) aSVc s. 31.

(27) .STATEMENT OE THE ACCUSED. (./)

Canada,
Province of ,

District (or (-ounty,
Ignited Counties, or
as the case may be.)
of

A. B. stands charged before the undersigned, (^one) of Her
Majesty ".s Justices of the Peace, in and for the Di.strict (or

(j) A separate statement need not be used for each accused
person, ■where more than one concerned in the same ofience ;
biit all the names stated at the top, and after giving the state-
ment made by the first, say for the second prisoner, — " thereupon
the said E. F. saith as follows:'' and so on with each of them.

JUSTICES ACT. — SCHEDl'LES.

127

(.'ountr, I'nitcd Countii'K, or nx (he case may bf) afoiosaid, this

day of . in tho year of Our Lord ,

for that the said A. M., on . at . iVr.,

at in the captions nf tho deposit ions ;) And the said charge heing
read to the said A. B., anil the witnesses for the prosecution.
C. D. and E. F., being severally examined in liis i)resen(<', the
said A. B. is now addressed by nie as follows; ••Having heard
" the evidence, do you wish to say anything in answer to the
'•charge? You are iiot obliged to say anything, unless you
" desire to do so ; but whatever you say will be taken down in
" writing, and may be given in evidence against you at your
" trial." Whereupon the said A. B. .saith as follows; (^Ilero state
whatever the prisoner may say, and in hi" vry words as varh/ as
}to$tible. Get him to siyn it if he wi/f.)

A. B.
Taken before me^at. . at the day and year lirst

above mentioned.

(28) MEMORANDUM TO IJE WRITTEN ON DOCUMENTS PRO-
DUCED IN EVIDENCE. (Not in Statute. Oke's For. p.
502. No. 44.)

This is the plan (or as the case may be) produced to me, the
tmdersigned, (^one) of Her Majesty's Justices of the Peace for tin*
(county) of , on the examination of A. B., charged

with arson, (forgery, &c.,) and referred to in the examination of
C. D. touching the said charge, taken before me this
day of 18.

J. S.

(0 1) Sees. 30.

(29) RECOGNIZANCE TO PROSECUTE OR OIVE EVIDENCE.

Canada, I ,

Proyince of ,1

District (or County, '. ■

United Counties, or
as the case may be,)
of

Be it remembered, That on the day of

in the vear of our Lord , C. D. of

in the

in the ( Township) of

128

JIXTICEW ACT. — srilEDlLES.

ill tin,' said District (nr ('(unity, ,{>•..) t\( , ( hinni-r),

|tcrsonally rami' Itcfoif inc. one <»| Her .Majesty s .liisticcs of tiie
I'eacc in and lor tlic said District (or County, IJnitfd CounticK, or
It!* the rnxfi iiifn/ fip) «»l , and acknowjcdtfcfl iiimsclt to

ou-e to Our Surercij;ii i.,idy the (^luen. Her Heirs and SnccesHors.
the sum of ol good and lawful current money of

Canada, to l)e made and levied of Ids goods and cliattels, lands,
and tenements, to the nsc of our said Sovereign Lady the <^ueen.
Her Heirs and S'lccessors. if tlie said C. [>. >«hali fail in tlie <ondi-
tion endorse*!.

'I'aken and acknowledged the day and vear firnt a1tf>ve mentioned,
at befure me.

.1. s.

CftNDJTION TO rR<iSECT;TK.

TIk.' condition of the within {or ahove) written recognizance is
such that whereas one A. H. was this day charged before me, 1.
S.. .Justice of the peace within mentioned, for that (.^r., ns in t/f
riijition of Ihf (iejjosifioiis ;) if therefore, hi- tiie said C. D. siuill'
appear at the n(!.xt Court of Oyer and Terminer or Ocneral (foal
Delivery, (or at the next Ct)Uit of (Jeneral or <,)uarter Sessions of
the Peace) to be holden in and for the District ('j/- County, United
Counties, or an thp rase viaif he,) of * , and there

prefer or cause to be preferred a l?ill of Indictment for the otfence
aforesaid, against the said A. H. and there also duly ju'o, ecute
such indictment, then the said Ivec(>gnizance to be v(tid or else to
stan«l in full force and virtue.

CONDITION TO PROSECUTE AND (ilVE EVIDENCE. ^
(SdiiiP. (IS the Idst fonii. In the ax/er/sk.* onrl then thiin:) — '-And
•• tnere prefer or cause to lie ])referrefl a Bill of Indictment against
'• the said A. B. for the offence aforesaid, and duly prosecute such
'• Indictment, and give evidence thereon, as well to the .Turors
" who shall then enquire into the said offence, as also to them
'• who shall ]»ass upon tlu^ trial ot the said A. B.. then the said
'■ Recognizance to Ite void, or else to stand in full force and virtue."

CONDITION TO (JIVE EVIDENCE.

(Snnf iiK Ihr last form hiif one. to the fi$terisk* nnd then thus: —
•• And there give such evidence as he knoweth upon a Bill of
'• Indictment to be then and there preferred against the said
" A. B. for the ollence aforesaid, as well to the .Turors who shall
• there enquire of the said oflfence, as also to the .Turors who
'• shall pass upon the trial of the said A. B. if the .said Bill shall
" be found a True Bill, then the .said Recognizance to be void,
" otherwise to remain in full force and virtue.'

jrSTK'ES' ACT. — SCHEDULES.

120

(0 2 ) See s. 37.

(30) NOTICK «>i-' TIIK SAID RECOUMZANCE TO IJK (IIVEN
TO THE PROSECUTOR AND HIS WITNESSES.

Canada,
rroviiui' of ,

District {or County,
United Counties, or
(IS the cifse mai/ br,)
of

Tuko notice tiiut you C. D. of , are liound in ilif

«uni of to appear at tlie next Court of Oyer and

T«nininer and (reneral (Jaol Delivery, (or at the next (Vmrt of
(leneral Quarter Sessions of tlie Peace, in and lor tlie District {or
County, United Counties, or an the case mai/ hr,) of to

h(> holden at , in the said District (County, <|r..)

and tlien and tlu're (prosecute and) giv(! evidence afj;ainst A. 13.,
and unless you then appear tliere, (prosecute and) pivc evidencf
accordinpjly, the Recognizance entered by you will be forthwith
levied on you.

Dated this day of • one thousand

eight hinidred iind

J. S.

Ill il

(31) THE LIKE WITH VARIATION WHEN THERE IS A

SURETY FOR A WITNESS. (Not ill Statute. Okce For.
p. 501. No. 58.)

Take notice, that you C. D. of &c,, arc bound in

the sum of poiinds to apjiear (or for the ai)pearance

of L. M., of (fee, a minor or the wife of J. M. of Ac, as the case
via.ti be) at the next Court of (Jeneral Quarter Sessions of the Peac e,
[or Oyer and Terminer and General Gaol Delivery) in and for the
said (Count}/) of , and then and there to (prosecute

and) give evidence against A. B. for (felony), and unless yon (ho)
then appear (appears and prosecutes) and give evidence according-
ly, the Recognizance entered into Ity you will be forthwith levied
on you.

Dated this • day of ,18

J. S., the Justice of the Peace for the said

{Count!/) of

before whom

the Recognizance was entered into.

130

JUSTICES ACT. — SCHEDULES.

(IM) See s. 3;).

(o2) COMMITMENT OF A WITNESS FOR REFUSING TO

ENTER INTO THE RECOGNIZANCE.

(.'anada,
I'lovincc of ,

District (or Count j,
United Counties, or
fis (he case may Oc)
vt

To all or any of the Constables or other Peace Utticers in the naid
District {or County, &c.,) of , and to the Keeper

of the Common Goal of the said District, (or (.'ounty, J^c, or
fix the case may be,) at , in the said District (or

County, ^T., or as the case //«<// be, of :

Whereas A. U. was lately chargecl before the undersigned, (or
name oj Justice of the Peace) (one) of Her Majesty's Justices of tlie
i*eace in and for the said District (or County, Ac.,) of ,

for that (tf'i'., <M hi the Summons to the Witness,) and it having bet-n
made to appear to (vie) upon oath that E. F., of
was likely to give material evidence for the prosecution, (J) duly
issued (mr/) Summons to the said E. F. requiring him to be and
appear before (me) on , at or before such other

Justice or Justices of the Peace as should then be there, to testily
what he should know concerning the said charge so made against
the said A. B. as aforesaid ; and the said E. F. now api)earing
before (me) (or being brought before (me) by virtue of a Warrant
in that behalf to testify as aforesaid,) hath been now examineil
liefore (me) touching the premises, but being by (me) required to
enter into a Recognizance conditioned to give evidence against
the said A. B., hath new refused so to do ; These are therefore to
lommand you the said Constables or Peace Officers, or any one of
you, to take the said E. F. and him safely convey to the Common
(ioal at , in the District (or County, .f-c.,) aforesaid,

and the.e deliver hitn to the said Keeper thereof, together with
this Precept ; and I do hereby command you, the said Keeper of
said Common Goal, to receive the said E. F. into your custody in
the said Common Gaol, there to imprison and safely keep him
until after the trial of the said A. B. for the offence aforesaid,
unless in the meantime the said E. F. shall duly enter into such
Recognizance as aforesaid, in the sum of , before

some one Justice of the Peace for the said District, (or County,
United Counties, or as the case may be,) londitioned in the usual
form to appear at the next Court of (Oyer and Terminer, or Gene-
jftl Gaol Delivery, or General or Quarter Sessions of the Peace,)

JUSTICES ACT. — SCHEDULES.

131

to be holdcn in and for tlie said , and there to give

evidence before the Grand .Inry upon any Bill of Indictment
which may then and there be preferred against the said A. B. for
the offence aforesaid, and also to give evidence upon the trial el
the said A. B. for the said olfence, if a True Bill should be found
against him for the same.

Givcji under my Hand -"nd iSeal, tiiis , day

of , in the year of Our Lord , at

in the District (or County, .je.,) aforesaid.

J. .S.

',■11

Ih
of
in
ni

(P. 2) Sec s. 40.

(33) SUBSEQUENT ORDER TO DISCHARGE THE WITNESS.

Canada,
Province of ,

District (or County,
United Counties, or
oi* the case mdi/ bf,)
of

'i'o the Keeper of the Common Gaol, at .in the

District (or County, &c.,) of afonsaitl :

Whereas by (mi/) order dated the day of (inftant)

reciting that A. B. was lately before then charged Ix lore (mc) for
a certain oftence therein mentioned, and tliat E. F. having
appeared before (me,) and being examined as a witness for the
prosecution on that behalf, refused to enter into Ilecognizance to
give evidence against the said A. B., and 1 tlierefore thereby
committed the said E. F- to your custody, and lequired you safely
to keep him until after the trial of the isaid A. B. for tlie offence
aforesaid, unless in the meantime he should enter into such Reco-
gnizance as aforesaid ; and whereas for want of sufficient evidence
against the said A. B., the said A. B. has not been committed oi'
holden to bail for the said oflence, but on the contrary thereof
lias been since discharged, and it is therefore not aectssaiy that
the said E. F. should be detained longer in your custody : These
are therefore to order and direct you the said Keeper to discharge
tb" said E. F. out of your custody, as to the said commitment,
and suffer him to go at large.

Given under my Hand and Seal, this diiy of

in the year of Our Lord . at , in the

|)i.stri(( ((>/• County, >.[<■.) aforesaid.

J. f!?. [L. S.]

132

(34)

justices' act. — SCHEDULES.

(Q 1) Sec s. 41,

WARRAxNT IVEMANDING A nHSONER.

Canada,

Province of ,

District (o/' County,
United Counties,) or
ait the case may be,)
of

To all or any of tlie Constables and other l\ac(! Ollicers in ilio
said District (or County, United Counties, or as (he case inay
be,) of , and to the Keeper of the {Common Gaol

or Lock-up Home) , in the said District or

County, ^'c.,) of " :

Whereas A. 13. was this day ehargctl la-fore the undersigned
<onc) of Her Majesty's Justices of the reace in and for the said
District {or County, United Counties, or as the case rr.aii he,) of

for that (<jr., as in the Warra)it to apprehend) and it appears
to {me) to be necessary to remand the said A. B. ; These are
therefore to command yon, in Her Majesty's name, forthwith to
convey the said A. B. to the {Common Gaol or Lock-up House,)
at , in the said District {or County, ijc.,) and there to

deliver him to the Keeper thereof, together with this Precept ;
and I hereby command you the said Keeper to receive the said A.
B. into your custody in the said {Comman Gaol or Lock-up House,)
and there safely keep him until the day of

, {ins(anf) when I hereby command you to have him
at* , at o'clock in the (/ore) noon of

the same day before {.-ne) or before some other Justice or Justices
of the Peace for the said District {or County, United Counties,
or as the case vuiii be,) as may then be there, to answer further to
the said charge, and to be further dealt with according to law,
unless you shall be otherwise ordered in the meantime.

(liven under my Hand and (Seal, this day of

in the year of our Lord , at in the

District {or County, 4'c.,) of aforesaid.

J. S. [l. S.]

"WW

JUSTICES ACT. — SCHEDULES,

133

(35) ORDER TO BRING UP ACCUSED BEFORE EXPIRATION

OF THE REMAND. (Xot in Statute, Oke's For. p. 496,
No. 31.)

To tlie Kft'per of the {Common (innl) at in the

said {Count If) of

' ■> Wheiras A. I'., (lu'ivinat'tcr ciilltd tlie '-accused " (ii
to wit pvas on tlic <lay ot

committed (l)y me) to yonr custody in the sai<l {Common Gaol),
charged for that {^c. as in the icarront remanding the prisoner), and V)y
the warrant in that luhaU'* you were commanded to have him
at on the day of now

(next), at o'clock in the forenoon, before such Justice or

Ju.stices of the Peace for the .said (Countif) as might then l)e there,
to an.swer furtJier to the said charge, and to he further dealt with
according to law.

{or shortlji, from the astprisk,* <• lie was remanded to the
day of next'), unless you should be otherwise ordered

in the meantime : And whereas it appears to me, the undersigned,
one of Her aiajestys .Justices of the Peace in and for the said
(Count}/) oi , (or me the .said Justice), to be expedient

the said accused should be further examined before the expiration
of the said remand : These are therefore to ortler you in Her
Majesty's name to bring and have the said accused at (<fr., follow
from the asterisk in thejorm No, 34 suira to the end.)

(Q 2) ;SVv3 s. 44.

(3G) RECOGNIZANCE OF BAIL INSTEAD OP REMAND ON AN
ADJOURNMENT OF EXAMINATION.

Canada, |

Province of ,

District (or County,
United Counties, or '
OH the case vvnj lie), \
of J

P>e it remembered, That on tin
in the year of our Lord

(lav of
A. P>. of

>
(laborer) L. M. of {grocer), ».nd N. O. of ,

(butcher) personally came before me, (owi?) of Her Majesty's Justices

(i) In order to prevent repetition of names, especially where
there are several, it is now become usual to say here " hereinafter
the accused"; afterwards referring to him or them as 'the said
accused," merely.

134

.TUSTICES' ACT. — SOTIEDULES.

of the IVHce lor tlio is^Ui Dihtiict (0/ County, United Counties, ot (tn
the case maji hi^). and Kcvcrally acknowledged themselves to owe to
our Sovereign Lady th(> Queen, Her Heirs and Snccefisor8, the
Heveral s\nns roll()win<i-, that is to say : the said A. B. the sum of
and the said L. M. and N. 0. the sum of
each, of sold and lawful current money of Canada, to bo
mtule j.iul levied of their several floods and chattels, lands and
tenements respectively, to the use of our said Lady the Queen, Her
Keirs and Successors, if he. the said A. P... fail in the condition
endorse<l.

Taken and acknowledged the day and year first above mentioned,

Jicfore me.

J. s.

CONDITION.

The condition of the within written recognizance is such, that
whereas the within bounden A. B. was this day (or on
last past) chaiged before me for that (i|t., as in the Warrant:) And
whereas the examination of the Witnesses for the prosecution in
this behalf is adjomned until the day of

{instant :) If therefore the .said A. B. shall appear before me on
the said day of (instant), at

o'clock in the (/ore) noon, or before such other
•lustice or .lustices of the Peace for the said District (or County or
United Counties, of or as the case may be), as may then

l>e there, to answer [further) to the said charge, and to be further
dealt with according to law, the said recognizance to be void, or
else to stand in full force and virtue.

(Q 3) Sec s. 44.

(37) NOTICE OP RECOGNIZANCE TO BE GIVEN TO THE
ACCU.SED AND III.S .SURETIES.

Camida. 1

Province of ,1

' District [or County, /

. United Counties, or

as the ease ma if />p.)

Take notice that you A. B. of , are bound in the

sum of , and your Sureties, L. M. and N. O. in the

sum of , each, that you A. B. appear before me .1. S.

one of Her Majesty's Justices of the Peace for the District (or
County. United Comities, or ax tht case may be), of '

justices' act.— SCriEDl'LE^.

135

iKi , the ilrtv ot'

o'clock in the {/ore) noon, ut
.Justice or .Justicos of the same District,
or as the caup vunj he) us may then he
the charge made against yon ])y C. D.
according to hiw ; and unless you A. B.
gly, the Recognizance entered into by
forthwith levied on you and them.

Dat«I this (lav ol

f'ight hundred and

(ifisfantA at

, or before such other

(or County, United Counties,

there, to answer (^further) to

and to he further dealt witii

personally appear according-

yourself and Sureties will i»«'

. one thousand

.1. s.

(Q 4) ^'^'' !^- 45.

(38) CERTIFICATE OF NON-APPEARANCE TO BE ENDORSED
ON THE RECOGNIZANCE.

r hereby certify that the said A. B. hath not appeared at the time
and place, in the above condition mentioned, but therein hath maile
default, by reason whereof tlie within written Kecognizance ib
forfeited. ,

J. «.

(R 1) ASVr s. 47.

(39) WARRANT TO CONVEY THE ACCUSED BEFORE A JUS-
TICE IN THE COUNTY IN WHICH THE OFFENCE WAS
COMMITTED.

Canada.
Province of

District (o;- County,
United Coiuitics. or |
fi.^ (fie rime nitiy he), |
of J

To all or any of the Constables, or other Poaie (officers in the said
District (or County, United Counties, or tis the case maif be)
of :

Whereas A. B. of * (/nhnrer), hath this day been

cliarged before the undersigne<l (one) of Her Majesty's Justices of
the Peace in and for the said District (or County, United Counties.
(*/• as the case /naif be) of , for that (^'c. as in the War-

rant to (iiijirehenj) : And wjiercas (/) have taken the deposition of

i I

! I

130

JL'STICES ACT. — SCHEDULES.

r. n. a wilncHs (.•xmuiiicd by (mc) in (his belinU. but inasnuali as
(/| um informed that the principal v.itnesKes to jirove the said
I til ence against tlie jsaid A. 15. reside in the District (or County,
I'nited Counties, or as the casr inaji be), of where the

.said offence is alleged to liave l»een committed : Tliese are therefore
to command you, in Her Majestys name, forthwith to take and
convey the said A. B. to the said District {or County, Unit«'d
Counties, or m the case majf he) of and tliere carry him

bfifore some Justice or Justices of the Peace in and for that District
{or County, United Counties, or an the case maij be,) and near unto
tiie {Township of ) where the offence is alleged to

have been committed, to answer further to the .said charg(; before
him or them, and to be further dealt with accordinji to law ; and
(/) hereby further command you to delivi-r to the .said Justice or
.lustices tlie information in this behalf, and also the said deposition
of C. D, now given into your possession for that purpose, together
with this Precept.

(liven under Hand and Seal, this day of , in

the year of our Lord , at . in the District

(or County, cjo.,) of aforesaid.

? J. S. ]l. S.]

(R 2) >S'.

i'C s.

40.

(40) RECEIPT TO IJE GIVEN TO THE CONST.^HLE IIY TIIE
.lUSTICE FOR THE COINTV IN WHICH THE OFFENCE
WAS COMMITTED.

Canada,
Province of ,

District (or County,
United Counties, or
(iJ< the case mail be),
of

1, J. P. one of Her Majesty's .Tnstices of the Peace, in and for
t'le District (or County, ^r.) of , hereby certify that

W. T. Constable, or Peace Officer, of the District (or County, United
C'ountiee, or as the c<(se vun/ be) of , lias on this

day of , one thousand eight hundred and ,

V>y virtue of and in obedience to a Wariant of J. S., Fs(]uire, one
of Her Majesty's Justices of the Peace in and for the District (or
County, United Counties, or as the case vuty be) of ,

produced before me, one A. B. charged before! the .said J. S. with
iiaving (cjr., statiny short/}/ the offucc.) and deliverect*him into the

JUSTICES APT. — SniEDFLES.

i:j7

(Mistcxiv <»t I'V my tlircttioii, lo answer to (he saiU i lijii;;(',

and further to Ik* (U-alt with nccordiiij; to hiw, and has also deli v<'rt<i
unto me the naid warrant, together with tlic intbrniation ('/ini/) in
that hehalf, and the (U'position (.v) of ('. D. {n/id of ) in the

said warrant mentioned, and that he has also inoved to nie upon
oath, the hand-writinp of tlie said J, S. snhscrihed to the same.

Dated the day and year iirst ahove mentioned, at , in

the said i;>istriet (or (.'oimtv. ,'jr. of

J. P.

b m

(^1)

(S 1) See s. 52.
nECor.Niz.\Nr.E OF n.\ir.

Canada,
I'rovince of ,

District (or County,
United Counties, or
on the Ciiife nun/ /><•),
of

Bo it rememhered, tliat on tlie

, A.B. of

day of in the

, (laborer), L. M. of

year of our Lord

(f/rocer,) and N. O. of , (hutchcr), i)ersonalIy came hefore

(us) the undersigned, (two) of Her Majesty's Justices of tlie Peace
for the District (or County, United Comities, or as the case man U,)
of and severally acknowledged thems<dves to owe

to our Sovereign Latly the Queen, Her Heirs and Succes.sors, the
several sums following, that is to say : the said A. B. the sum of
, and the said L. M. and N. O. the sum of ^ ,

each, of good and lawful current money of Canada, to he' made
and levietl of iheh several goods and chattels, lands and tenements
respectively, to the use of Our said Sovereign Lady the Queen, Her
Heirs and Successors, if he, the said A. B., fail in the condition
endorsed.

Taken and acknowledged the day and y( ar Iirst ahove mentioned".
at hefore us.

J. s.

J. N.

CONDITION.

The condition of the within written Iiccognizance is such, that
whereas the said A. B. was this day charged hefore us [us,) tiie Jus-
tices within mentioned for that (I'jr.. as in the Warrant) ; if there
fore the said A. B. will appear at the next Coint of Oyer and

i:j8

J IJSTICES ACT. — hiCH EDf LES.

Tuniiiiicr (o/ GtMieral (Ja<»| Dolivnv {or (Omt of (irm'inl or
^•nrtrtcr Sessions of tlio IN'Mcc) to ])o hoKlcn in and for the District
{(h County, Unitod Counties, nr nx the rufe. inaij hr) of
and then! snrremler himself into the cuHtody of th«' Keeper of the
('o)nmon Oaof or Loc/c-iiji f/nunf) there, and plead to such indict-
ment us may he found apninst him hy (lie thand Jury, for and in
resjiect to tlie charge aforesaid, and take his trial upon the same,
and not depart the said Court without leave, then the wiid Recoj;-
nizance to l»e void, or else to stand in full force and virtui'.

(S 2) ,SVt s. 52.

NOTICK Of THK S.\ID UECOCIMZANCE TO HE (WVEN TO THE

ACnrSED AND HIS HAH..

Take notice that you A. D., of , are l>ound in the sum

of , and your sureties (L. M. and N. O.) in the sum

of , each, that you A. B. appear (.jr., as in I he condition

oj the. Recognizance,) and not tlepart the said Court without leavi' :
and unless you, the said A. 13., personally api)ear and plead, and
take your trial accordingly, the Recognizance entered into hy you
and your Sureties .shall he forthwith and levi«'d on you and them.

Dated this day of , one thousand eight

hundred and

J. S.

(S 3) ss, 53, 55.

\\i) WARRANT OF DELIVERANCE ON RAIL HEINO GIVEN
FOR A PRISONER ALREADY r.O>f MITTED.
Canada,
Province of

District (<>/• County,
United Counties, or
an the caKe mail be],
of ■ J

To the Keeper of the Common CJaol of the District {or County,

(Tnitcd Coimties, or as the case may he) of at ,

in the Staid District (or County, Uniti'd Counties, or as the cate

may be)

Whereas A. B. late of , {laborer,) hath before {us) {two)

of Her Majesty's Justices of the Peace in and for the said Distrii t

{or County. United Counties, or as the case may be) of

JUSTICES ACT. — SCHEDULES.

130

rntcii'd into his own Uccogiiizaiuc, mtkI tuuiid sutticioiit suirtics
lor his appcnianci! at the next Court of Oyer nnd Tciniincr <»i
(it'iicral (.Jaol Dtlivtiv (or Couit of ficncral nr Quarter Sessions c.»t
tiie Peace) to l)e holden in and lor (he District {or County, United
( 'ountics, or ok the rai^p tmn/ he) ot . to answer Onr

Sovereign Lady the (^ueen, tor that (djv., "•"' hi (If ronnnitmrnt), for
for whieli he was taken and conunitted to your said Common Ciaol :
These are theref<»re to romniand you. in Her said Majesty's name,
that if th(^ said A. I>. <lo remain in your eustcxly in the said Com-
mon Gaol for the said cause, and for no other, you shall forthwith
suffer him to ,[,'o at large.

Given under our Hands and Seals, tliis
in the year of our Lord . at

(.'ounty. Ac.) aforesaid.

day of ,

in tiie District (or

J. s.

J. N.

[L. S.]
[L. S.]

(T 1) Sre s. 50.

WARn.\NT OF COMMITMENT.

(4:i)

Canada, "|

Province of , j

District (or County, (
United Counties, or
(lit the rase vinii fif),
of

To all or any of the Constables, or other Peace Officer.*, in the Dujtrict

(or County, United Counties, or as the case may he) of ' \y^. ,

and to the Keeper of the Common Gaol of the District (oc^tP

County, United Counties, or as the case man ^') 'it ,;^^^- . in

the said District (or County, &c.,) of ^^^

Whereas A, B. w.as this day charged before (me) J. S. (one) of

Her Majesty'.s Justices of the Peace in and for the .said District (or

County, United Counties, or as the case imnf he) of

on the oath of C. D., of (farmer,) and others, for

that, (^'c.^ stating shortly the offence) -^ The.se are therefore to com-

man<l you the said Constables or Peace Officers, or any of you, to

take the sai<l A. B., and him safely convey to the Common Gaol

at aforesaid, and there deliver him to the Keeper

thereof, together with this Precept ; And I do hereby command

you the said Keeper of the .said Common Gaol to receive the said

A. B. into vour custodv in the said Common Gaol, and tiiere safely

1=
f

JUSTICES ACT. — SCHEDULES.

to kec-p liiiii iiiilil he chilli l)i' (lifucc dclivi-ird \>y thw < oniso ol
law.

Uivcii iiiulcr my Ilaiul and Seul. this day of ,

ill tlic year of (rfir Lord , at , in the District

(or {.'onntv, &c..) of aforesaid.

J. S. [L. S.]

(T 2) See s. 57.
(Uj r.AOLicns' iucckipt to the constahle for the

^ PRISONER.

I heiL'lty certify that I have received from W. T. CoiiKtabk', of
the District {or County, &c.,) of , tlie body of A. 15.,

tof^etlier with a Warrant under the Hand and Seal of J. S.,
Ks(|uire, one of Her Majesty'.s Justices of tlie Peace for the said
District (or County, United Counties, or as the case mai/ be,) of
, and tliat tlie said A. li. was (sober, or as the case
may be,) at the time he was delivered into my custody.

P. K.

Keeper of the Common Gaol of the said District (or Countv,

APPENDIX.

(45) COMPLAINT OF BAIL FOR A PERSON CHARGED WITH AN
INDICTABLE OFFENCE IN ORDER THAT HE MIGHT BE
COMMITTED IN DISCHARGE OF THEIR RECOGNIZANCES.

(Not in Statute. Okc's For. p. 514, No. 70.)

Proceed an in form No. Qy. 1, a)ite to the asterisk *alterinp it to tim
com^ilaints if there be more than one surety, then thus : that they tii«'
sai(i C. D. and E. F. were on the day of

now last past, severally and respectively duly bound by recognizance
before J. P., Esquire, one of Her Majesty's Justices of the Peace
for the said (county) of , in the sinn of

each upon condition that one A, 13., of &c., should appear at the
next term of the Court of Queen's Bench (Crown Side) for the
District of (or Court of Oyer and Terminer and

(ieneral CJaol Delivery, or Court of General Quarter Sessions of
the Peace), to l>e holden in and for the (Coww/.v) of

, and there suiTcnder himself into the custody of the
Ki'cper of the (Common Gaol) there, and plead to such indictment
as might be found agaijif^t him l)y the grand jury for or in

JUSTICES ACT. — SrilEDULES.

141

respect r»f the charf^o of (stutinj; the chniKe shortly), and take his
trial upon th«^ same and not depart the said Court witliout leave ;
and that these coniphiinants have reason to suspeet ami believe and
do verily suspect and bilieve, that the wiid A. D. is al»out to depart
from tliis part of the country ; and therefore they jiray of ine tiie
said Justice that 1 would issue my warrant of apprehension of tin-
said A. n. in order that lie may be surrendered to prison in dis-
charge of them his said bail.
Before me, J. P,

V. p.

(40) WAHHANT TO APPHEHEND THE nCFliJON CHAlir.ED.

(Not in Statute, (k) Okc's p. 514, No. 71. Venue
should be as in No. 43.)

To all or any of the Constables and other IN ace CHlicers in tlir

said District (or County, United Countit-s, or as the cme mat/ hr)

of and to C. D. .and E. F. sevendly and respectrvely.

■» Whereas yon the said C. D. .ind E. F. have this day

to wit J made complaint to me the nn»h'rsipfned, one of Ikr

Majesty's Justices of the Peace in and for the said {Count;/) of

that yon the said C. D. and E. F. were &c., {us in ihr
romplainf, No. (45), supra., to the end) : These are therefore to author!/ •
yon the said C\ D. and E. F., and also to command you the said
(Constable or other Peace Officer), in Her Majesty's name forthwith
to apprehend the said A. B. and to brinf? him iitfon- me or sonn-
Jtistice or Justices of the Peace in and for the said (Count;/), to the
intent that he may be committed to the (Common (rao/) in and for
the said (Count;/) until the next Court of (Oyer and Terminer and
General Gaol Delivery [or Court of General Quarter Sessions of
the Peace to be holden in and for the said (Count;/) of ,

or <j*<*. ((s the case may be, unless he (ind new and sntiicicnt sureties to
became bound for him in such recop:nizan(e as aforesaid.

(Jiven under my Hand and Seal, this day of ,

in the year of our Lord , at in the

(CoM/j///) aforesai<l.

. *' J. S. [L. S.]

(k) The bail may apprehend their i)rincii)al without warrant
(1 Hales Sum. 9G ; Saunders Prac. p. 187) and therefore this warrant
is not indispensably requisite but it may prevent a breach of the
peace.

! !

142

justices' act. — SCIIEDCLES.

(47) COMMITMENT OF THE PERSON nHAlKiEI) ON SLRREN-
DER OF HIS HAIL AFTER APPREHENSION UNDER A

WARRANT. (Not ill Statute. Okc's For. p. 515, No.
72.)

To Jill or any of tin- ('oiistaltk's, or other I'ciK »• (Hlictrs in tli»'
Distritt {or County, United Ooiuitifs, or ttx the v<ii>i- may be) of

, and to th(! Kocjr'i- of tlir Coninion (Jjvol of tli«'
District {or County, United Counties, or as the cane may be),
Hi , in tiie said Distri( t {or County, &c..) of

I Wlioreas on the day of instant

to wit j eoniplaint was made to nie the undersi^iued

{or .J. S.) one of Her Majesty's .JustieVs of the Peiuje in and foi- tl»e
said (County) of , l.y C. D. and E. F., of Ac., that

{as in the complaud No. (4.")), xiijira to the end), I {or the said Justice)
tiiercupon issued my warrant autliori/inj,' tlie said ('. D. and E. F.
and also eommandiuK the said Constables of and all

other Peace Officers in the said {Counfy) of , in Her

Majesty's namt; forthwith to apprehend the said i\. 1!., an«l to brinf;
him {foUow to end of ivarrant, "So. (40), nufira) ; and whereas the said
A. B. luith l)een apprehended under and by virtue of the said
Warrant, and being now brought before me the said .Justie<; (or me
the undersigned, one &o..) and surrendered by the said C. D. and
E. F. his said Sureties, in discharge of their said Recognizances.
1 have required the said A. I>. to find new and suilicient sureties to
become bound for him in such Recognizance .as aforesaid, but tlie
said A. B. hath now n:fused so to do : These are therefore to com-
nuuid you the saitl Constables {or other Peace Officers) in Her
Majesty's name, forthwith to take antl safely to convey the said
A. B, to the wild {Common Gaol) at , in the said

{Counti/) and there deliver him t(i the Keeper tlu-reof, together with
this precept ; and 1 hereby command you tlie said Keeper to receive
the .said A. B. into your custixly in tlie said (Common Gaol) and
him there safely to keep until the next Court of Oyer and Terminer
and General (iaol Delivery {or Court of (jfeneral Quarter Sessions
of the Peace) to be holden in and for the said {County) of
unless in the meantime the said A. B. shall find new and sutiicient
Sureties to become bound for him in such recognizance as aforesaid.
Given &c., (as form No. -itl, supra.)

CAP. XXXI

All Act refipectiiig the duties of Justices ol' the
Peace out of Sessions, in relation to snnnnary
convictions and orders.

" Assented to 'I'lnd June, 1H61>."
I'l'aiinblf.

WHEREAS it is expedient to assimihite, umeud
and consohdate the statute law of the seve-
ral Provinces of Quebec, Ontario, Nova Scotia and
New Brunswick, respecting the duties of Justices
of the Peace out of Sessions in relation to sum-
mary eonvictionis and orders, and to extend the
same as so amended to all Canada : Therefore, Her
Majesty, by and with the advice and consent of
the Senate and House of Commons of Canada,
enacts as follows :

When ait uijurnuitioii is laid^ ttv., Ijtj'orr a Jastire oj tin.
Peace, dx., such Justices niaij issue a su)nmo)ts to tJte jKitf'/
accused.

Form of tSuninioii.s.

1. In all cases where an information is laid
before one or more of Her Majesty's Justices of
the Peace for any Territorial Division of Canada,
that any person, being within the jurisdiction of
such Justice or Justices, has committed or is
suspected to have committed any offence or act

144

Sr.MMARY CONVICTIONS.

over which the Parliament ol' Canada has juris-
diction, and for w^hich he is hable by law^, upon a
Summary Conviction Ibi the same before a Justice
or Justices of the Peace, to be imprisoned or fined,
or otherw^ise punished, and also in all cases where
a complaint is made to any such Justice or Justices
in relation to any matter over which the Parlia-
ment of Canada has jurisdiction, and upon which
he or they have authority by law to make any
order for the payment of money or otherwise, such
Justice or Justices of the Peace may issue his or
their Summons (A), directed to such person, stating
shortly the matter of the information or complaint
and requiring him to appear at a certain time and
place, before the same Justice or Justices, or before
such (?Eher"Xustice or Justices of the same Terri-
torial Division as may then be there, to answer to
the said information or complaint and to be further
dealt with according to law.

The Imperial Act 11 and 12 Vic. c. 43 introduced great
changes into the law relating to summary convictions and
orders. 'Previous to the passing of that statute ample field
was afforded for raising technical objections, and there can
be no doubt that the objects of Parliament in pjissing it, were
to simplify the duties of Justices of the Peace in such mat-
ters, to do away in great measure Avith the technicalities
which beset and embarrassed them, and to define their duties
in a clear and positive manner.

The Parliament of the old Province of (janada soon
recognized the benefits resulting I'rom a uniform system, and
with but few alterations introduced the urcater number of

SUM3IARY CONVICTIONS.

145

the provisious of the Impcri*.! Act 11 and 12 Vic. c. 43 int<»
the Provincial Act 14 and 15 Vict. c. 95.

From those two acts, with but few changes, haa been com-
piled the 32 and 33 Vic. c. 31, now under consideration.

Information.

In this Statute the distinction between an '' information "
and a ''complaint" should always be borne in mind. An
information is laid against a party charged with tho commis-
sion of, or who is suspected to have committed, any oflfence
or act over which the Parliament of Canada has jurisdiction,
and for which he is liable by law, upon a summary conviction,
to be imprisoned or fined, or othei'wi.se punished.

(^oniplaint.

A complaint is made when the person is liable by law, to
have an order made upon him by Justices, to pay money,
or to do some act which he has refused or neglected to do,
contrary to law. ^

information requisites of

It is requisite in all summary proceedings of a penal
nature, that there should be an information or complaint,
which is the basis of all the subsequent proceedings, and
without which the Justice is not justified in intermeddling,
except where he is empowered to convict on view as by 8 Hen.
«. c. 9 forcible detainer. (Paley p. 54.)

A sufficient information, by competent persons, relating to
u matter within the magistrate's cognizance, gives him
jurisdiction irrespective of the truth of the facts contained
in it. (Paley 55. i

When the information muH be receired.

Mandamus in case of refusah

As it is the duty of Justices to enforce the acts, the
execution of which is referred to them, they cannot properly

146

SUMMARY CONVICTIONS.

refuse to receive an information regularly brought before
them. If they should refuse the Court having power to issue
a mandamus will either issue that writ or grant a rule to
compel them to receive such information. (Palcy p. 56.)

When it should he laid.

The information must be laid, or complaint made within
the time limited by the particular statute on which it is
founded ; if no period is fixed by the statute it must be
within thrcb months from the time when the matter of the
complaint or information arose, except in that part of the
County of Saguenay in the Province of Quebec which
extends eastward from Portneuf as far as the limits of Canada
inclnding all the Islands adjoining {sic) thereto, wherein the
limit is extended to twelve months from the time when the
matter of the complaint or information arose (s. 26 post).
Care must be taken that it is not laid prematurely as occa-
sionally by statute an interval must elapse before any prose-
cution. [Vide Imp. Act 19 Geo. 3. s. 2. — Paley 57.)

If the statute creating the oflFence provide that the party
accused be *' convicted" within a certain time, the laying of
the information merely will not sufl&ce. (Dowell vs. Benning-
fuld 1. Car & Mar. 9; Rex vs. Bellamy 1. B. & C. 500;
R. vs. Tolley 3. East 467; Okes' Syn. 106).

In almost every case in which an act is to be done within
a certain time after the happening of an event, the Courts
have adopted as a rule, that the day on which the event
happened (e. g. the commission of the offence, or the time
when the matter of complaint arose) is to be excluded, and
that on which the act is done (e. g. the preferring the infor-
mation or complaint) is to be included. (Pellew vs. Inhabi-
tants of Wonford 9. B. & C. 134; Lester vs. Garland 16
Vesey 248; Williams vs. Burgess 12 A. & E. 635; Freeman

SUMMARY CONVICTIONS

147

VS. Reed 32 L. J. (N. S.) iM. C. 22G). If the time be
expressed by tlie year or an ali«jUot part, as a half, a quarter
&c., of a year, the computation is by calendar months of
twelve to the year (Vic. 3, c. 1, s. 7). In the compu-
tation of the month's notice of action to a Justice rc-
([uired by Statute, the day of givinj; the notice and the
day of suing out the writ arc both excluded (Younj; vs.
Higgon 6 M. & W. 40, 52). The same mode of computation
has always been adopted where the Statute uses the words
"clear days' or so many "days at least." (Mitchell vs.
Forster 12 A. & E. 472; E. vs. Justices of Shropshire 8
A. & E. 173 ; Louch vs. Empsey 4 B. & Aid. 522 ; Paley
p. 45).

Fractions of a day are not taken any notice of in law.
(Lester vs. Garland supra ; Hardy vs. Ryle 9 B. & C. G63 ;
Field vs. Jones 9 East 154; Latlcss vs. Holmes 4 T. II.
GGO; Freeman vs. Reed supra).

Every complaint or information (whether by a party
aggrieved or an informer may be laid or made by the com-
I)lainant or informant in person, or by his counsel or attorney
or other person authorized in that behalf (s. 25 post). It is
conceived however that this provision will not apply to those
cases where a particular person is required by the statute to
lay the information or make the complaint. (0'';es' Syn. 107).

Where the offence is an individual grievance, and the dis-
charge or conviction on the Summary proceeding is a bar to
all other proceedings, as in cases of assault under the 43, 44
and 45 sections of 32 and 33 Vic. cap. 20, the party aggriev-
ed alone can be the informant, and where by the Statute u
particular person is re(iuired to lay the information or make
th'2 complaint, no other can institute the proceeding. In all
other cases where the offence is a matter of public policy and

148

SU3IMARY CONVICTIONS.

utility and concerns the public niorali*, any person has a
i^cneral power to sue for the penalties (per Cockburn C. J.
in Cole vs. Coulton 29 L. J. (N. S.) ?.i. C. 125).

Although the 32 and 33 Vic. c. 31 docs not expressly
require the information to be in writing it evidently contem-
plates that it should be so taken (ride ss. 5, 20 and 21 by
which it is provided that it shall not be necessary that a
complaint be in writing, unless required by some particular
Act or Law on which such complaint is framed).

The information or complaint need not be on oath in the
first instance unless required by some particular Statute save
in the case where the Justice issues his warrant on the exhibi-
tion of the information in which case the matter of the
information must always be substantiated by the oath or
affirmation of the informant, or of some witness on his behalf
before the warrant is issued. Whenever in other cases, the
information or complaint is taken on oath, the Justices must
be careful to administer the oath before lie takes the infor-
mation or deposition of the party or his witness. (R. vs.
Kiddy 4 D. & R. 734). Sometimes the Statute though it
does not require the information to be on the oath of the
informant, in the first instance, yet requires the charge
contained in it to be substantiated on the oa+h of some other
person being a credible witness before any proceedings are
taken upon it. The deposition in all such cases should be
made in tlu* prestmce (tf the magistrate ; and where it was
taken in his absence by his clerk, it was held irregular, and
to be no justification for proceedings founded upon it.
(Caudle vs. Seymour 1 Q. 13. 880; R. vs. Constable, id.
894 n. (a); R. vs. Justices o<* Darton 12 A. and E. 78).

Several offences.

Formerly several offences might have been included in one

SLMMARY CONVICTIONS.

149

information and several matters of complaint in one complaint,
but now the information or complaint should be for one
offence or one matter of complaint only (Vide s. 25). This
however does not prevent a principal and an abettor from
being charged in the same information. (Vide s. 15).

JVcgativ ing exceptions.

The important rules which relate to the negativing of
exceptions in the description of the offence are fully treated
of under the head of Conviction post.

Description of Defendant in certain eases. ,

If the Statute under which proceedings are taken extends
only to persons of a particular class, office or situation of
life, the Defendant should be shewn to come within the
description of such persons, bearing in mind the broad rule
for construing Statutes as laid down by Lord Tenterden that
" where general words follow particular ones, the rule is to
construe them as applicable to persons ejusdeni generis"
(Sandiman vs. Breach 7 B. & C. 100 upon the words "or
other person whatsoever "). By the s. 8 of thi.s Act the
Defendant may be named or otherwise described in the wavrant
to the constable to apprehend.

i^Iarried women if they have committed an offence without
the coercion, actual or implied of their husbands are cfjually
liable to be proceeded against as other persons fll. vs. Orofts
2 Str. 1120; R. vs. Hammond 2 Lea. 499; R. vs. Williams
10 Mod. 335; R. vh. Cruse 8 C. k P. 541 ; Paley 59 and
GO ; Stone 05 1.

Husband and wife may also be jointly convicted and
punished for any offence of which they have been jointly
guilty.

Females, Infant x.

Female offenders o:in be convicted of any offejue punisli-

150

SUMMAIIV CONVICTIONS.

able on summary conviction as well as male. Infants above
seven years of age may be prosecuted for penalties in respect
of any injuries committed by them if sufficiently doli capaccs
to incur responsibility (Gray vs. Cookson ct al. 16. East.
13, 27, 28 ; 11. vs. Sutton 3 A. & E. 597 ; 11. vs. Lard 12,
Q. B. 757, 7G1 ; Paley 60 n. (x) ; Okes Syn. iii ; Stone 65).

In some cases a man may be brought within a penal statute
by the acts of his agents or servants, according to the maxim
qinfacifjycr alium/acif per se, when the persons doing the act
are proved to be such agents or servants. The employment
of an agent in the defendant's usual course of business is
sufficient evidence in such cases, whence the magistrates may,
if they think fit, presume that such an agent was authorised
to do the prohibited act with which it is sought to charge
the principal (Okes Syn. iii). But if the illegal act is not
done in the usual course of the employers business, but out-
side thereof, evidence must be given to fasten upon the
employer the guilt of the act complained of as having been
by him authorized. (Harrison vs. Leaper 5 L. T. N. S. 640;
Reg. vs. Handley 9 L. T. N. S. 827; Wilson vs. Stewart 8
L. T. N. S. 277 ; Searle vs. Reynolds 14 L. T. N. S. 518).

Joint offenders.

The prosecutor may prosecute all or any of the parties,
and the omission of n part ice px criminis aumot, as in cases
of joint contracts in civil actions, be taken advantage of by
those who are prosecuted.

Where several persons have taken part in committing the
the same offence at the same time and place, they can all be
joined in the same information. (Paley 61 ; Okes Syn. 113 ;
Saunders 89).

Sf<ttfmcnt of offence.

If distinct and complete acts are committed on different

SUMMARY CONVICTIONS.

161

days, the oflfcuocs are distinct and subject to separate penalties
(R. vs. Matthews 10 Mod. 27) ; but ambiguity arises upon a
repetition of similar acts in pursuance of one object on the
same day. No general rule can be laid down applicable to such
cases, which mubt be decided chiefly by the wording of the
Statute creating the offence. (Paley 219; Marriott vs. Shaw
Cowp. 278 ; R. vs. Lovell 7 T. R. 152; Cripps vs. Burden
Cowp. 640).

Vide post statement of offence in the conviction, for ins-
tructions as to setting out offence.

It is to be regretted that the old phraseology of the 14
and 15 Vic. c. 95, s. 1 has not been preserved in the section
now under consideration ; the words " within the jurisdiction
of such Justice or Justices" in the former Statute clearly
applied to the place where the offence was committed as the
basis of the jurisdiction of the Justice, but from the wording
of this clause, it might be imagined that the presence of
the party charged in a Territorial Division vested in a Jus-
tice for that Division the right to hear and determine a case,
no matter where the ofl'ence was committed, or the subject of
the complaint arose, but applying the rules of construction
to the ambiguous portion of the clause and construing together
the 1 and 28 sections no doubt can be entertained but that
the intention of the Legislature was to make the place where
the matter of the complaint or information arose the basis
of the jurisdiction of the Justice, as in the Imperial and
old Canadian Statute.

AS TO (COMPLAINTS, ^Vc.

ijomputation of time.

In the case of complaints for non-payment of money, the
time will commence to run from the time of notice of the
sum due being received by the defendant, or the first demand

152

SU31MARY rONVlCTIONS.

for applioatiou for payment beiug made upon the defendant,
or from the period when the payment is by law required to
be made, for there is no liability or default by the defendant
till after such demand or application has been properly made
and such period has arrived, although a demand may not bo
expressly re(|uired in that behalf. The (h/milt in payment
does not arise till then, and that is the nuitter of the com-
plaint. ( Vidr Parkinson vs. Mayor &.c. of Blackburn 22.
J. P. 418; Labalmondierc vs. Addison 28 1.. .). (N. S.) M.
C. 25; Re Morehouse L. J. N. S. 32; Edlcston vs. Francis
3 L. J. N. H. 270; Somerville vs. Mirehou.se .1 J.. T. N. S.
294; Oke's 8yn. p. 120 n. (51)). and n'llr observations on
Summons in Indictable cases ris to ro(juisit»'s <nitr p. 55.)

Service of tStDuiiojiis.

2. Every such Summons shall be served by a
Constable or other Peace Ofiicer, or other person
to whom the same may be delivered, upon the
person to whom it is directed, by dtlivering the
same to the party personally, or by leaving it with
some person for him at his last or most usual place
of abode.

A Summons under this Act may be .served by any per-son
to whom it is delivered, cveii the informant or complainaht.
either by deliverinij it to the defendant j)ers<jnally or leaving
it with some grown person on the ])remises known as his last
or most usual place of abode, the j)erson to whom it is deliv-
ered must apparently reside at place of .service (K. vs.
Chandler 14 East 2(J7 ; Okes Syu. 122). The Summons
should be signed in duplicate, mid one of them retained by
the party serving (Oke's Syn, 122. u. (1)). The service
where no time is limit^^d by the particular statute should be

SUMMARY roNVICTIONS.

153

made a reasonable time before the period appointed therein
tor appearance ; the suflSciency of the service is a question
for the Justices to decide (Re Williams 16 Jur. 1060 ;
Exparte Hopwood 15 Q. B. 121 ; Zohrab vs. Smith 5 D. &
L. 635), and the Court will not interfere with their decision
unless it clearly appear that there was in fact no service
(Ex pte Rice Jones 19 L. J. (N. S.) M. C. 151), or that the
defendant was not allowed the interval fixed by the particu-
lar statute between the service and the time limited for
appearance (Mitchell vs. Foster), or that the Justices have
mistaken the law as to the kind of service required, and
have therefore declined to entertain the matter (R. vs.
Goodrich et al 10. L. J. (N. S.) Q. B. 415 ; Paley 72).

Where the defendant actually appears and pleads there is
110 longer any ((uestion upon the sufficiency or regularity of
the summons. (1 Str. 261 ; Taylor vs. Clemson 11 CI. & Fin.
610, 642 ; R. vs. Preston 12 Q. B. 825 ; R. vs. Ward 3 Cox.
C. C. 579; Paley 73; Reg. vs. Shaw 11 L. J. (N. S. )470 ;
Glen. p. 122. note).

I'lottf of Strvlcf.

3. The Constable, Peace Officer, or person who
serves the same, shall attend at the time and place,
and before the Justice or Justices in the Summons
mentioned, to dopose, if necessary, to the service
thereof.

l*i'oriso (IS to *\i' jKirte oises.

4. But nothing hereinbefore contained shall
oblige any Justice or Justices of the Peace to
issue any such Summons in any case where the
application for any order of Justices is by law to
)>e made ex parif.

154

SUMMARY CONVICTIONS.

No objection allowed on account of defect or variance,
'roviso.

6. No objection shall be allowed to any infor-
mation, complaint or summons, lor any alleged
defect therein, in substance or in form, or for any
variance between such information, complaint or
summons, and the evidence adduced on the part
of the informant or complamant at the hearing of
such information or complaint ; but if any such
variance appears to theJTustice or Justices present
and^ acting at such hearing to be such, thaFlHe
person summoiied and appearing has been thereby
deceived or misled, such Justice or Justices, may,
upon such terms as he or they think fit, adjourn
the hearing of the case to a future day.

Th<' words of this section certaiuly appear to be very com-
prehensive ; in the tirst place it is provided, that uo defect,
in substance or in form, in an information, complaint or
summons shall constitute matter of objection ; in other words
that however defective in substance or in form an informa-
tion, complaint, or summons may be, still that to the two
first the defendant must plead to the merits, and to the last
urge no objection.

With reference to the summons, the provision is a good
one, for on the appearance of the defendant before the Justice,
the summons ceases to be of any use, the defendant pleading,
not to the charge therein, but to that contained in the infor-
mation.

Many of the English writers on the 11 and 12th Vic. c.
42, are of opinion that the similar clause of that act grants
almost unlimited power to the informant or complainant, in

sr.MMARV CONVICTIONS.

155

framiuj:; his information or complaint. (iSaunders 2nd Ed. 18 ;
Stone 7th Ed. 68 ; Palcy 3rd Ed. ()3i.

But now-a-days it seems to be admitted that the powers
of amendment do not extend to tlie substitution of one
offence for another, or to the dealini; with a case under
another statute than the one upon which the information
was laid. (Martin vs. Pridgeon 28 L. J. M. C. 179 ; Soden
vs. Gray 7 L. T. N. S. 324 ; Reg. vs. Brickhall 23 L. J. M.
C. 15G; Saunders Ith Ed. 18 and ID; Glenn [)[) notes;
Paley 5th Ed. pp. 70, 77).

Where however upon the appearance of the defe'idaut, the
informant before he enters into the case declares his inten-
tion of establishing by the facts a charge different from the
one upon which the defendant has been summoned, to which
course the defendant does not object, he cannot afterwards
set up a want of jurisdiction in the Justices to hear the ca.sc.
(Turner App. vs. The Posmaster General llcsp. 10 L. J. 31.
C. 10; Shepherd vs. The Postmaster General 11 L. T. N.
S. 3G9).

Where the inf^-mation charges the defendant with having
committed an offence on a day certain, as for instance the
5th October and on divers other days and times between the
said 5th Oct. and the laying of the information (KJth Nov.)
the Justices may convict him of committing the offence on
any day between the 5th October and 16th Nov. (Onley vs.
Gee 30 L. J. M. C. 222).

A greater latitude might, without any doubt, be indulged
in so far as disregarding defects in the information is con-
cerned, thau seems now to be admitted, without being pro-
ductive of any harm. , ^

156

SUMMAUV CONVICTIONS.

If the snnimoHs having been duly scned, d'c..^ U not obeyed,
the Jiixticc may issue his warrant.

Warrant may issue in the first instance on information
supported by oath, rfv.

Proviso :

Copy of warrant to be served on dtfandant.

6. It' the person served with a Summons does
not appear before the Justice or Justices at the
time and place mentioned in the Summons, and
it be made to appear to the Justice or Justices, by
oath or affirmation, that the Summons was duly
served what the Justice or Justices deem a
reasonable term before the time therein appointed
for appearing to the s'ame, then the Justice or Jus-
tices, upon oath or information being made before
him or them, substantiating the matter of the
information or complaint to his or their satisfaction ,
may, if he or they think iit, issue his or their
Warrant (B) to apprehend the party so summoned,
and to bring him before the same J ustice or Jus-
tices or before some other Justice or Justices of
the Peace in and for the same Territorial Divi-
sion, to answer to the said information or com-
plaint, and to be further dealt with according to
law ; or the Justice or Justices before w^hom any
such information is laid, for any such offence as
aforesaid, punishable on conviction, upon oath or
affirmation being made before him or them subs-
., tantiating the matter of the information to his or
• their satisfaction, may, if he or they think fit,
instead of issuing a Summons, issue in the fiifst

SUMMARY rONVICTlONs,

157

iustaiice his or their Warrant (C) lor approheiidiu
the person against whom the inlbrmationhas been
laid, and bringing him bel'ore the same Justice or
Justices, or before some other Justice or Justices
of the Peace in and for the same Territorial Divi-
sion, to answer to the information and to be
further dealt with according to law ; Provided
that where a warrant is issued in the iirst instance,
the Justice issuing it shall furnish a copy or copies
thereof, and cause a copy to be ser^'ed on each
party arrested at the time of such arrest.

The appearance may be by the defendant personally or by
his counsel or attorney (Beasell vs. WilHon 1. E. & B. 489 ;
Paley 70; Glen 120 not is; Saunders 4th Ed. 40; Oke's
Syn. 139 n. (10) ; s. 30 post ; contra Stone 207 1.

The person to make the affidavit of service upon the
defendant is the Constable, Peace Officer or other person to
whom it was delivered and by whom it was served. By s, .'I
he is required to attend at its return in order to prove the
service, his affidavit may ])e in the form (No. 2) in the
Schedule.

The Magistrate or his clerk should keep a minute of the
proceedings in each case, in which should be entered every
step taken therein, such as calling the defendant, his appea-
rance in person or by Counsel, his default drc.

The time which should elapse between the service and
return of the summons has been already noticed, (ante.)

On the default of the defendant to appear cither in person
or by his counsel or attorney, the Justice may, the matter
of the information or complaint on which the summons issued
being substantiated under oath or affirmation as pointed out

158

Hf.MMARY CONVICTIONS.

by Ibrii) No. (3) in the schedule, issue his warrant to appre-
hend the defendant.

In all cases of informations when they are substantiated
by the oatli of the Informant or a witness the Justice may
in his discretion if sue his Warrant (C) to apprehend the
Defendant ; but such a course sliould not be adopted save
where the Justice if of opinion that the defendant wiil, il'
not apprehended, evade Justice. In such case moreover the
Justice must cause to be served on each of the parties arrested,
at the timo of his arrest, a copy of the warrant under i
which he is arrested.

Vide ante pp. 148, 151 for instructions as to filling up the
forma (B and C) and post ss. 8 and 9.

Justice may proceed ex jxirte, if siimmou$ duly served h
not ohei/ed, i{'c.

7. It' where a summons has been issued, and
iipon the day and at the place therein appointed
for the appearance of the party summoned, the
party fails to appear in obedience to the Summons
then, if it be proved upon oath or affirmation to
the Justice or Justices present, that a Summons
was duly served upon the party a reasonable time
before the time appointed for his appearance, the
Justice or Justices of the Peace may proceed e.r
parte to the hearing of the information or com-
plaint, and adjudicate thereon, as fully and effec-
tually to all intents and purposes as if the party
had personally appeared before him or them in
obedience to the Summons.

If the Justice in the exercise of his discretion believes
that the issue of a warrant unJor the preceedinj; section is

JjUMMARY CONVICTIONS.

15U

]

unnecessary after service of the 8uuuuons and the failure of
the defendant to appear, on proof upon oath or affirmation
to the Justice present (who need not l>c the Justice sii^ijing
the Summons) of the service, the informant may be allowed
to prove his case in the absence of the defendant, and the
Justice may give his judgment either convicting the defendant
or making an order upon him, or dismissing the complaint or
information with or without cost« as if the defendant had
appeared, save that on dismissal in such case, the defendatit
can have no costs.

• Warrant to he under hand and »cal : to irhom directed
and ichat to contain.

8. EI very "Warrant to apprehend a Defendant
that he may answer to an information or complaint
shall be under the hand and seal or hands and
seals of the Justice or Justices issuing the same,
and may be directed to any one or more or to all
of the Constables (or other Peace Officers), of the
Territorial Division within which it is to be exe-
cuted, or to such Constable and all other Consta-
bles in the Territorial Division within which the
Justice or Justices who issued the "Warrant hath
or have Jurisdiction, or generally to all the Cons-
tables (or Peace Officers) within such Territorial
Division, and it shall state shortly the matter of
information or complaint on which it is founded,
and shall name or otherwise describe the person
against whom it has been issued, and it shall ordc*r
the Constables (or other Peace Officers) to whom
it is directed, to apprehend the Defendant, and to
bring him before one or more Justice or Justices

160

SUM3IARY CONVICTIONS.

ol' the Peace, of <he same Territorial Division, as
the case may require, to answer to the informa-
tion or complaint and to be further dealt with
according to law.

Vide 32 and 33 Vic. c. .36. s. 4. hs to the effectV want of
seal, post.

Duration of warrant, and how to he executed.

9. It shall not be necessary to make the War-
rant returnable at any particular time, but the
same may remain in full force until executed ; and
the Warrant may be executed by apprehending
the Defendant at any place in the Territorial Divi-
sion within which the Justices who issued the
same have jurisdiction, or, in case of fresh pursuit,
at any place in the next adjoining Territorial Divi-
sion, within seven miles of the border of the first
mentioned Territorial Division without having
the Warrant backed as hereinafter mentioned.

Vide observations on 32 and 33 Vic. c. 30 8. 19 ante p. (>8.
What officer may execute if, and where.

10. Ill all cases where the Warrant is directed
to all Constables or Peace Officers in the Territo-
rial Division within which the Justice or Justices
who issued the same have jurisdiction, any Cons-
stable or Peace Officer for any place within the
limits of the jurisdiction may execute the Warrant
iu like manner qh if the Warrant was directed
specially to him by name, and notwithstanding
that the place in which the Warrant is executed
be not within the place for which he is a Cons-
table or Peace Officer.

SUMMARY CONVICTIONS.

161

Vuk observations on 32 and 33 Vic. c. 30. s. 20 ante p. 69.

Backing the Warniuf in tinothcr Juristlirtinn : its effect.

11. If any person against whom any Warrant
has been issued he not lonnd within the jurisdic-
tion of the Justice or Justices by whom it was
issued, or, if he escapes into, or is, or is suspected
to be in any place within Canada, out of the juris-
diction of the Justice or Justices who issued the
Warrant, any Justice of the Peace, within whose
jurisdiction such person may be or be suspected
to be, upon proof upon oath or affirniation of the
handwriting of the Justice or Justices issuing
the Warrant, may make an endorsemtMit upon it,
signed with his name, authorizing the execution
of the Warrant within his jurisdiction ; and such
endorsement shall be a sufficient authority to the
person bringing the Warrant, and to all other per-
sons to whom it was originally directed, and to all
Constables or other Ptnice Olhcers of the Territo-
rial Division wherein the endorsement has been
made, to execute the same in any place w ithin the
jurisdiction of the Justice of the Peace cMidorsing
the same, and to carry the ollender, when appre-
hended, before the Justice or Justices who lirst
issued the Warrant or some other Justice having
the same jurisdiction.

The instruct ioiiM for the endorsement of a Warrant to
arrest a person olianji'd witli an indictable offence will apply
to ti»o backin}^ of a Warrant under this Section. Tiie party
must be brouirht however before uJust ice of the i)ivi.siou
whence the Warrant issued.

\f2

SUMMARY CONVICTIONS.

■ 1

lil

Vide observations on 32 and 33 Vic. c. 30 s, 23 ante pp. 71
and 72.

iVo ohjecfion (dloircd/or want of form : hut adjournment
t». certain, cases; and on what condition.

12« No objoctioii shall bo taken or allowed to
any Warrant isssued as aforesaid, lor any alleged
delect therein in substance or in form, or ibr any
variance Ijeivvecn it and the evidence adduced on
the part ol' the Informant or Complainant, but if
it appears to the Justice or Justices present and
actin<»- at the hearing, that the party iipprehended
under the Warrant has 1>ee"n deceived or misled by
any such variancie, such Justice or Justices may,
upon such terms as he or they think lit, adjourn
the hearing of the case to some liiture day, and
in the meantime commit (1)) the Del'endant to the
Commoii Uaol, or other prison, or place oi' security
within the Territorial Division or place wherein
the Jusiici? or Justices may be acting, or to such
other custody as the Justice or Justices think lit,
or may discharge him upon his entering into a
lleco^nizance (E),with or without surety or sure-
ties,-ut the discretion oi' the .Justice or Justices,
/conditioned for his appearance at the time and ^
place to which the hearing is so adjourned.

Vide ob.^ervation.s as to dci'ectw in .summons ante p. 154 and
08 to eonnnitntont or di.scharge upon bail of defendant 32 and
33 Vie. e. 30 s. 44 ante p. 90.

Where a defuuhint is discharged on recognizance and
fails to iipjnar, dr.

13, In all cases where a Defendant is discharged

SUiMMARY CONVICTIONS.

li)3

id
id

upon Recognizance and docs not alterwardy appear
at the time and place in the Kecognizance men-
tioned, the Justice who took the Recognizance, or
any Justice or Justices who may then be present,
having certified (F) upon the back of the Reco-
gnizance the non-appearance of the Defendant,
may transmit such Recognizance to the proper
Officer in the Province appointed by law to receive
the same, to be proceeded upon in like manner as
other Recognizances, and such Certificate shall be
deemed sniUciont jfrimd facie evidence of the non-
appearance of the said Defendant, and the Justice
or Justices may issue his or their Warrant for the
apprehension of the Defendant on the information
or complaint.

Vt'de as to forfeiture of llecoirnizancc 32 and 3.3 Vic. e.
!i() 8. 45 (intr p. 90 and as to transmission of Uccojrnizance
32 and 33 A'ic. c. 3G. s. G. post.

The Justice, in all c?ises where tli«' Defendant fails to
appear after entering into a Recognizance, should issue his
Warrant to apprehend him ; but even if the warrant is not
issued, or if the Defendant is not apprehended, the Justice can
proceed with tlie case and adjudicate upon it either ex jmrtf
or otherwise.

Dtiicriptioit of jnopcrti) o/ jHirt tiers, mnniclpal corpora-
tiong, d'C.y til ill) J iii/nniKffi'oii f>r comphiiiit^ or jii'f'^ccduigs
thfreon.

14. In any information or complaint or proceed-
ings thereon, in which it is necessary to state the
ownership of any property ])elonging to or in pos-
session of partners, joint tenants, parceners or

104

SUMMARY CONVICTIONS.

teiiaiilK ill coiniiion, or jku' imlii'ls, it shall be suffi-
cient to name one ol' such persons, and to state
the property to belong' to tlie person so named and
another, or others, as the case may be ; and when-
ever in any iniormatiou or complaint or the pro-
ceedings thereon, it is necessary to mention, lor
any purpose whatsoever, any partners, joint
tenants, parceners or tenants in common, or par
iudivis, it shall be sufficient to describe them in
the manner ai'oresaid ; and whenever in any
information or complaint, or the proceedings
thereon, it is necessary to describe the ownership
of any work or building made, maintained or
repaired at the expense ol" the Corporation or
inhabitants of any Territorial Division or place,
or ot* any materials lor the making, ahering or
repairing the same, they may he therein described
as the property of the inhabitants of such Terri-
torial Division or ph\ce.

Vidr obscrvutious on s. 1 jiute p. 151.

AUln's and abcttois of nfrnre* pnii'ishnUr on sinmiutrjj
voviicfion, how h'aHc.

15. Every persoix who aids, abets, counsels or
procures the commission of any oflence which is
punishable on summary conviction, shall be lial)l«?
to ])e proceeded against and convicted for the
same, either together with the principal offender,
or ])efore or after his conviction, and shall l)e
liable, on conviction, to the some forfeiture and
punishment as the prin('ii)al otl'ender, and may be

SUMMARY CONVICTIONS.

165

proceeded against and convicted either in the
Territorial Division or place where the principal
offender may be convicted, or in that in which
the offence of aiding, abetting, counselling or
procuring was committed.

A conviction cannot be procured under this section unless
the principal offence lias been conimitted, though there may
be accessories after the fact in regard to felonies, there can be
none such in the case of an offence punishable on summary
conviction, as the above section only applies to aiding, &c.
the commission of any offence. The ofiender may be charged
with " aiding, abetting, counselling imd procuring the com-
mission of the of!encc, as these words constitute but one
offence. (Expte Smith 27. L. J. (N. S.) M. C. 180; GUmi
108 ;/o/; Oke'sSyn. 114 n. (.%).

A warrant of commitment, in the case of Smitli suprn,
for aiding, abetting, counselling and procuring a person to
commit an offence was held good where the offence of the
accessory was described by reference to the offence of the
principal, which was correctly stated.

Where the keeper of a place of public resort instructs his
servant to manage it in a such u way as to be a violation of
a law declaring such management an offence punishable on
summary conviction, and the servant docs so, the master is
guilty of an offence within the act and the servant is guilty
as aiding and abetting him within the Imp. Stat. 11 and 12
Vic. c. 43. s..r). (Wilson Appelt. vs. Stewart Kcspdt. :j B. &
S. 913).

Summons to /trrsons lihcly fo givr moteridl evidence,
16. If it be made to appear to any Justice of
the Peace, by the oath or affirmation of any ere-

166

SUMMARY CONVICTIONS.

Is '

dible person, that any person within the jurisdic-
tion of such Justice is likely to give material evi-
dence on behalf of the Prosecutor or complainant
or Defendant, and will not voluntarily appear as
a witness at the time and place appointed for the.
hearing of the information or complaint, the Jus-
tice shall issue his Summons (G 1) to such person,
requiring him to be and appear at a time and
place mentioned in the summons, ])efore the said
Justice, or any other .lustice or Justices of the
Peace for the Territorial Division, who may then
be there, to testify what he know^s concerning the
information or complaint.

The Justice under this Act can is^uc lus Suiumona to
witnesses for the Informant, complainant or Defendant,
whilst under the 32 k 33 Vic. c. 30 he can only summon
witnesses for the prosecution, {vide ante p. 74); but tlic
person so to be summoned must, Uy the oath or affirmation
of the person whose deposition supports the application, be
shewn to be within the jurisdiction, i. o. the Territorial
Division, of the Justice to whom it is made ; whilst under
the 32 and 33 Vic. c. 30 he can summon any one within tlie
limits of Canada {vide ante p. 74>.

Wdi'i'toit if such person fails to <tppvni\

Jfai/ he backed.

17, If iiiiy person so summoned neglects or
refuses to appear at the time and place appointed
by the Summons, and no just excuse be offered
for such neglect or refusal, then (ai'tei* proof upon
oath or affirmation of the Summons having been
served upon him, cither personally or by leavino-

SIMMARY CONVICTIONS.

167

the same lor him with some porsoii at his last or
most usual place of abode) the Justice or Justices
before whom such person should have appeared
may issue a Warrant (Cr 2) to brini^ and have such
person, at atii.ie and place to be therein mentioned,
before the Justice \vho issued the Summons, or
before any other Justice or Justices of the Peace
for the same Territorial Division who may be then
there, to testify as aforesaid, and the said Warrant
may, if necessary, be backed as hereinbefore men-
tioned, in order to its beini^ executed out of the
jurisdiction of the Justice who issued the same, w

The Bcrvico of a siiiinnoiis on a witness, should he made
in the same manner as tliat of u summons to a defendant
(vide H. 2 ante p. 152) ; the proof of such service shouhl also
be made in the same manner as that of summons to a Defen-
dant (tHiIc 8. 0 ante p. lod).

If the Hunimons has been served and the Defendant makes
default to appear, on proof of service, the Justice then pre-
sent may issue his Warrant to apprehend such witness ; and
under that warrant the witness may be apprehended not only
in the Territorial Divisit)n in which it issued, but if backed
in any other Division in which the witness may be found.

( VUlc 8. 1 1 ante p. 2;i and .'{2 and 'S,\ Vic. c. iJO s. 23 p.
71 as to formalities of backiiiL^. I

Wnn'oiit in the first instHnrt',

18. If the Justice is satislied, by evidence upon
oath or affirmation, that it is probable that the
person will not attend to give evidence without
being compelled so to do, then instead of issuing
:i Summons he may issue his Warrant (G 3) in

a,ii.u . ..J HI,

108

SUMMARY CONVICTIONS.

the lirst instance, and the warrant may if neces-
sary, be backed as aforesaid.

(Jommifmcnf t'nr rcfnxtil to give irulmcr.

19. If on the appearance of the person no sum-
moned before the last mentioned Justice or Justi-
ces, either in o))edience to the Summons, or upon
being brought before him or them, })y virtue of
the Warrant, such person refuses to be examined
upon oath or alhrmation concerning the premises,
or refuses to take an oath or affirmation, or having
taken the oath or affirmation r(»fuses to answer
such questions concerning the premises as are
then put to him, without offering any just excuse
for his refusal, any Justice of the Peace then pre-
sent and having jurisdiction, may, by Warrant
(Gr 4), commit the person so refusing to the Com-
mon Cxaol or other prison for the Territorial Divi-
sion where the person then is, there to remain
and be imprisoned for any time not exceeding ten
days, unless in the meantime, he consents to be
examined and to answer concerning the premises.

Vide observations on li- and '.V.i Vic. c. 30 s. 28 ante pp.

< t>, < t), t i.

Certain roinj)/(iiii(.s nved not be in ivritiiig, dr.

20. fu all cases of complaint upon which a
Justice or Justices of the Peace may make an
order for the payment of money or otherwise, it
shall not be necessary that such a complaint be in
writing unless it be required to be so by some
particular Act or Law upon which such complaint
is framed.

sr.MMARY roNVlPTlONf*.

U>9

Ccrtuiii I'iirianveH as to time ami plnre, Icticccn injorma-
tion and en'ih iicf not matcriaf.

21. Ill all cases ol* informations lor olloiicos or
acts punisha})h' upon summary conviction, any
variance between the information and the evidence
adduced in support thereof as to the time at which
such offence or act is alleged to have been com-
mitted, shall not he deemed material, if it be
proved that such information was in fact laid with-
in the time limited by law for laying the same ;
and any variance between the information and
the evidence adduced in support thereof, as to the
place in which the oH'ence or act is alleged to
have been committed, shall not be deemed mate-
rial, if the offence or act be proved to have been*
committed within the jurisdiction of the Justice
or Justices by whom the uiformation is heard and
determined. •

But if the DeJiHihint has heeu misled, Justice lanif adjouiu
the case ; and on what conditions.

22. If any such variance, or any other variance
between the information and evidence adduced in
support thereof, appears to the .lustice or Justices
present, and acting at the hearing, to be such that
the party charged l>y the information has been
thereby deceived or misled, the Justice or Justices
upon such terms as he or they think lit, may
adjoumjtjie hearing of the case to some future
day, and iiTthe meantime commit (D) the Defen-
dant to the Common Goal, or other prison, or to

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WEBSTER, N.Y. 14580

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170

SUMMARY CONVICTIONS.

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such other custody as the Justice or Justices think
fit, or may discharge him upon his entering into
a Kecognizance (E), with or without Surety or
Sureties, at the discretion ol' the Justice or Justi-
/ces, conditioned for his appearance at the time and 1
place to which the hearing is adjourned. /

Vide observations ou s. 12 ante p. 1G2

Defendant hailed and not appearing at proper time.

23. In all cases where a Defendant has been
discharged upon Kecognizance as aforesaid, and
does not afterwards appear at the time and place in
the Recognizance mentioned, the Justice who took
the Recognizance, or any other Justice or Justices
who may then be there present, having certified
(F) upon the back of the Recognizance the non-
appearance of the Defendant, may transmit the
Recognizance to the j)roper Officer in the Province
appointed by law'to receive the same, to be pro-
ceeded upon in like manner as other Recognizan-
ces, and the Certificate shall be deemed sufficient
prima facie evidence of the non-appearance of the
Defendant.

This section is not quite so full as s. 13. which see
ante p. 162

Complaints^ (tc, need not he on oath, unless speeially so
provided.

24. AH complaints upon which a Justice or
.Justices of the Peace are authorized by law to
make an order, and all informations for any oftence
or act punishable upon summary conviction, unless

srJLMARY CONVICTIONS.

171

some particular Act or Law otherwise requires,
and except in cases wherein it is herein otherwise
provided, may respectively be made or laid with-
out any oath or affirmation as to the truth thereof.

Vide 8. 1 ante p. 148.

Except irhcre irarrant is issiuid in the firgi instaiicr.

(Complaint or infomiotion to he for one mntter onh/ : uioji
he made by nttorney.

25. But ia all cases of informations, w^herc the
•lustice or Justices receiving the same, thereupon
issue his or their Warrant in the first instance, to
apprehend the Defendant, and in every case
where the Justice or Justices issue his or their
Warrant in the first instance, the matter of the
information shall be substantiated by the oath or
affirmation of the informant, or by some witness
or witnesse ' n hi? behalf, before the Warrant
shall be issued ; *. id every complaint shall be for
one matter of complaint only and not for two or
more matters of complaint, and every information
shall be for one oflfence only, and not for two or
more offences, and every complaint or information
may be laid or made by the complainant or infor-
mant in person, or by his Counsel or Attorney, or
other person authorized in that behalf.

Vide 8. 1 ante p. 148.

When no time is limited for information or complaint .

Exceptions as to part of County of Sagncnay.

26. In all cases where no time is specially limit-
ed for making any complaint or laying any infor"
mation in the Act or Law relating to the particu-

172

SUMMARY CONVICTIONS.

lar case, the complaint shall be made and the
information shall be laid within three months
from the time when the matter of the complaint
or information arose, except in that part of the
county of Saguenay which extends from Portnenf
in the said county, to the eastward as far as the
limits of Canada, including all the Islands adjoin-
ing thereto, w^here the time within which such
complaint shall be made, or such information shall
be laid, shall be extended to twelve months from
the time when the matter of the complaint or
information arose.

Vide s. 1 ante p. 14G.

As to the hearing of com2)hunts and information.

27. Every complaint and information shall be
heard, tried, determined and adjudged by one
Justice or two or more Justices of the Peace, as
may be directed by the Act or Law upon which
the complaint or information is framed, or by any
other Act or Law in that behalf

Jf there be no direction in the Act.

28t If there be no such direction in any Act or
Law, then the complaint or information may be
heard, tried, determined and adjudged by any
one Justice for the Territorial Division where the
matter of the complaint or information arose.

These sections refer merely to hearing and determining
informations and complaints, as by s. 85, one Justice may
receive the information and complaint, grant a summons or
warrant thereon, and generally do all acts and matters ncces-

SUMMART^ CONVICTIONS.

173

sary prelimiuary to the hearing even in cases where, by the
Statute in that behalf, the information or complaint must be
heard and determined by two Justices ; but it is conceived
that where the Statute under which the information is laid /
or the complaint made, requires cxpressfi/ that it shall be'
laid or made before two Justices s. 85 does not apply. (K. vs.
Griffin 9. Q. B. 155; R. vs. llussell 13 Q. B. 237l.

It is also to be remembered, that it is not necessary that
the Justice who acts before the hearing should be the Justi-
ce, or one of the Justices, by whom the case is to be deter-
mined, (s. 87 post).

It is proper here to mention that though alt the Justices
of each Division are equal in authority, it would be contrary
to the public interest, as well as indecent, that there should
be a contest between different Justices. It is therefore
agreed that the jurisdiction in any particular case attaches
in the first set of magistrates, duly authorized ~'io have
possession and cognizance of the fact, to the exclusion nf
the separate jurisdiction of all others. So that the acts of
any other, except in conjunction with the first, are not only
void, but such a breach of the law as subjects him to indict-
ment. (R. vs. Sainsbury 4. T. R. 456; R. vs Great Marlow
2 East, 244; Paley p. 40).

Wherever the concurrence of two Justices is requisite for
any judicial act, they must be present and acting together
during the whole of the hearing and determination of the
case, (Paley p. 31 and note (z) ).

In the event of the ease being heard before two Justices
and of their being divided in opinion, they cannot call in a
third Justice, submit the notes of the evidence to him, and
thereupon with him determine the case, he being a party to
the conviction or order as one of the Justices having heard
the case.

rlfflT

I !

II i>

174

bM M .M AR Y CO W VICTIONS.

Tu he deoned an open Court.

29. The room or place in which the Justice or
Justices sit to hear and try any complaint or infor-
mation shall be deemed an open and public Court
to which the public generally may have access, so
far as the same can conveniently contain them.

Defendant may make full defence, and produce witnesse».

30. The party against whom the complaint is
made or information laid, shall be admitted to
make his full answer and defence thereto, and to
have the witnesses examined and cross-examined
by Counsel or Attorney on his behalf.

Prosecutor may he heard hy Counsel or Attorney.

31. Every Complainant or Informant in any
such case shall be at liberty to conduct the com-
plaint or information, and to have the witnesses
examined and cross-examined by Counsel or
Attorney on his behalf.

Vide s. G ante p. 157.

In case the Defendant does not apptear.
Proceeding ex p>arte, or warrant and adjournment.

32. If on the day and at the place appointed by
the summons for hearing and determining the
complaint or information, the Defendant against
whom the same has been made or laid does not
appear when called, the Constable, or other person
who served him with the summons, shall declare
upon oath in what manner he served the sum-
mons 3 snd if it appear to the satisfaction of the
Justice or Justices that he duly served the sum-

SUMMARY CONVICTIONS. 175

mons, then the .Tustico or Justicos may proceed
to hear and determine the case in the absence of
the Defendant, or the Justice or Justices, upon
the non-appearance of the Defendant, may, if he
or they think fit, issue his or their warrant in the
manner hereinbefore directed, and shall adjourn
the hearing of the complaint or information until
the Defendant is apprehended.

If tlie Justice tliiuks tit in lieu of issuiug his warrant
under s. G nute p. If)!) lie may on the service of the summons
being- proved as there pohitcd out proceed to hear and deter
mine the case in the absence of the Defendant ex parte.

When Defendant has heen <t2i})rc]iended^ &c.

Proviso.

33. When the Defendant has been apprehended
under the warrant, he shall be brought before the
same Justice or Justices, or some other Justice or
Justices of the Peace, for the same Territorial
Division, who shall thereupon, either by his or
their warrant (H) commit the Defendant to the
Common Goal, or other prison, or if he or they
think fit, verbally to the custody of the Constable
or other person .who aj)prehended him, or to such
other safe custody as he or they deem fit, and may
order the Defendant to be brought up at a certain
time and place before him or them, ofjAdiich order
the Complainant or Informant shall haye_ due
notice, but no committal under this section shall
befoFmore than one week.

The power of verbal commitment for a week granted to
the Justice under tills section is not to be found in the

Str

■■

ffi

K i

1 i\

,t 1!

176

SUMMARY CONVICTIONS.

English Statute nor in that of the heretofore Province of
Canada. Under the 32 and 33 Vic. c. 30 s. 42 the Justice
can commit verbally on remand hut for a period of three
days, and no valid reason can be assigned for giving Justices
greater powers in summary cases than in indictable offences.
The case ceases to be summary when ere conviction, at the
will of a Justice, a man may bo committed, to any safe cus-
tody the f) ustice may deem fit, for a week.

If Defendant ((jipecws, <tc., (Uid the romjilainaiit docs not,
discharge, or adjournment on recognizance.

34. If upon the day and at the place so appoint-
ed, the Defendant appears voluntarily in obedience
10 the summons in that behalf served upon him,
or is brought before the Justice or Justices by-
virtue of a warrant, then, if the Complainant or
Informant, having had due notice, does not appear
by himself, his Counsel or Attorney, the Justice
or Justices may commit (1)) the Defendant in the
meantime to the Common Graol, or othxjr prison,
or to such other custody as he or they think fit,
or may discharge him upon his entering into a
recognizance (E) with or 'without surety or sure-
ties, at the discretion of the Justice or Justices,^
conditioned for his appearance at the time andf

^ place to which such hearing may be adjourned. /
Due notice of the time and place fixed by the Justice for
the bringing up the Defendant by him cammitted under
8. 33 should be given to the Complainant or Informant.
If' Defendant afterwards fails to appear, &c.

35. If the Defendant does not afterwards appear
at the time and place mentioned in his Recogni-

SUMMARY rONVICTIONS.

\71

tor
ler

lar
lii-

zance, then the Justice who took the Ivecognizaii-
ce, or any Justice or Justices then and there pre-
sent, having certified (F) on the back of the
recognizance the non-appearance of the Defendant
may transmit the recognizance to the proper officer
appointed to receive the same, to be proceeded
upon in like manner as other recognizances, and
such certificate shall be deemed sufficient jmmd
facie evidence of the non-appearance of the Defen-
dant.

Vide s. 13 autc p. 1(33.
If both parties appear.

36. If both parties appear, either personally or
by their respective Counsel or Attorneys, before
the Justice or Justices who are to hear and deter-
mine the complaint or information, then the said
Justice or Justices shall proceed to hear and deter-
mine the same.

Proceeding oil the hearing.

37. In case the Defendant be present at the
hearing, the substance of the information or com-
plaint shall be stated to him, and he shall be asked
if he has any cause to shew why he should not be
convicted, or why an order should not be made
against him, as the case may be.

Justice may convict , (fr., if Defendant admits the truth.

38. If be thereupon admits the truth of the
information or complaint, and shews no sufficient
cause "why he should not be convicted, or w^hy an
order should not bo made against him, as the case

u —

178

SIIMMAIIV CONVICTIONH.

may be, the Justice or Justices present at the
hearing, shall convict him or make an order against
him accordingly.

//' he docs not ndinit the truth. tCr., ^jtamination of wit'
licssscs, d'c.

39. II* ho does not admit the truth of the infor-
mation or complaint, the Justice or Justices shall
proceed to hear the Prosecutoi or Complainant
and such witnesses as he may examine, and such
other evidence as he may adduce in support of his
information or complaint, and shall also hear the
Defendant and such witnesses as he may examine,
and such other evidence as he may adduce in his
defence, and also hear such witnesses as the Pro-
secutor or Complahiant may examine in reply, if
such Defendant has exammed any witnesses or
given any evidence other than as to his (the
Defendant's) general character.

As to observations hi/ cither parti/.

40. The Prosecutor or Complainant shall not
be entitled to make any observations in reply,
upon the evidence given by the Defendant, nor
shall the Defendant be entitled to make any obser-
vations in reply upon the evidence given by the
Prosecutor or Complainant in reply.

Decision of the case.

41. The Justice or Justices, having heard what
each party has to say, and the witnesses and evi-
dence adduced, shall consider the whole matter
and, unless otherwise provided, determine the

SUMMARY OONVirTIONS.

179

what

Id evi-
Latter

le the

panic, aiid convict or make ah Order upon tho
Defendant, or dismiss the information or complaint
as the case may he.

As the above sections contain the general rules concerning
the hearing and determining summary cases under this
Statute, it is expedient to draw attention, whilst considering
their provisions, to the other sections of the Statute whicli
bear upon the proceedings during the hearing.

Care must be taken in the first place that where the
Statute under which the proceeding is taken requires that
the case should be heard before two or more Justices, that
the requisite number of Justices bo actually present and
take part in the hearing. If, however, there be no sucli
requirement in the Statute, one Justice can hear the case.
(s. 27 and 28, ante pp. 172, 173).

On the Justice taking his seat, the case should be called,
and the Prosecutor or Complainant and the Defendant
should also be called ; in the event of both parties, either
personally or by Counsel or Attorney, appearing, the Justice
or his Clerk should read the information or complaint over
to the Defendant or to his Counsel or Attorney in his
absence ; and then a.sk him or his Counsel in his absence,
whether he admits tlie charge or complaint, in other words
whether he is guilty or not guilty. If the Defendant pleads
guilty to the charge, or admits the trutli of the complaint,
there is no necessity for any other proof and the Defendant
may then and there be convicted, or the proper order may be
made upon him ; but in all cases where the Defendant i.s
without legal assistance the Justice, ere receiving the plea of
guilty, should explain to the Defendant the legal definition
and quality of the oftence, lest from ignorance or misappre-
hension he may be induced to plead guilty to a charge, witli
the legal merits of which he may be totally unacquainted

J*- ^A.w^'-.^V'"-"*"--*-- ■

180

SUMMARY CONVICTIONS,

Tlic Delcndant may perliaps have (dijections ^'oin^ cither
to the form or substance of the information or complaint, in
Huch case they should be made immediately on his bcin^
asked if he admits the truth of the charge. If lie pleads
to the merits, his objections are considered waived. As
already mentioned in the observations on s. 5 ante p. IT)! no
^reat favor is shewn to technicalities, in ordinary cases all
that he can obtain by his objections being delay, (vide a. 5
snj)t'(t).

Adjoui'itnuiit.

If the Defendant pleads not guilty or denies the truth of
the complaint, his plea should be entered by the Justice in
his minutes ; the case being then ready for the examination
of witnesses, the Informant or Complainant should proceed
with his proof, but if either of the parties be not ready to
proceed through the default of witnesses, or from being
unable to procure documentary evidence essential to the
maintainance of his case, or from any other good reason, the
Justice, upon satisfactory proof of such fact, and of dili-
gence of the party making the application, should adjourn
the hearing to some other day, the certain time and place
being there and there appointed and stated in the presence
and hearing of the parties, or of their respective Attorneys
or Agents then present, and in the meantime the Justice may

suffer the Defendant to go at large or may commit him or
discharge him upon his recognizance with or without sure-
ties {Vlde^. 4Gpost).

If both parties arc ready to proceed, the Informant or
Complainant states his case to the Justice, calls his witnesses
and makes his proof in the way he deems most conducive to
the elucidation of the foots. If he be a witness himself, he
should not be permitted to address the Justice except upon

HCMMAnV rONVimoNS.

181

it or

ICSSCS

Ive to

[if, he

upon

oath, anil then strictly to the lads; and tins-will apply even
to his Attorney, who, if lie he aNo a witness*, ou«;lit not to he
permitted to address tlu; .lustice otherwise than upon oatli
as a witness (Stones vs. Byron 1(1 L. J. Q. H. .'i2 ; !>unii vs.
IVnkwof.d 1 IJail Conrt Hop. :n2; \Wx. vs. Price 2 B. and
Aid. CAHV).

For the mode of administerinj:; the oath to the witnesses,
who mnst all be sworn, or must affirm, to the truth of what
they are to say vltlc ante pp. ID, 20, 21, 22. As to the rules
j.50vernin<i; examination in chief, cross-examination and re-
examination, ride ante pp. 22-25,

The Justice can, on application of either of the parties,
ere the examination of the witnes.ses is commenced, o; ler the
witnesses on both sides out of Court, so that they may not
hear the evidence as it is jiiven. Medical witnesses and the
Attorneys of the parties are however always excepted from
the operation of the order. Should any of the witnesses in
defiance of the order remain in, or return to the Court whilst
the evidence is being taken, the Justice has no ri«;ht to
exclude their testimony, though snch conduct will naturally
weaken the strength of their evidence, (Cook vs, Nethercote
0 C. k P. 741 ; Chandler vs. Horn 2 Mo. k Rob. 423).

It is to be remembered that, the Justice or his Clerk
should carefully take down the whole of the evidence, so far
as it has any relevancy to the issue joined between the
parties.

On the conclusion of the Informant's or Complainant's evi-
dence, the Justice will decide if a pn'md /(trie case has been
established ; if he comes to the conclusion that no such case
has been established, he will at once dismiss the information
or complaint without calling upon the Defendant for his
defence. If on the contrary, he is of opinion that such a

'fl

182

SUMMARY CONVICTIONS.

case has been established, he will then proceed to hear the
Defendant, who, as before seen, has a right to address the
Justice, either in person or by liis Counsel or Attorney.
Having so addressed the Justice and commented upon the
insufficiency of the case for the Informant or Complainant,
or made kiiowu his line of defence to be er.tablished by his
witnesses, he will call his witnesses and establish his defence
in as perfect a manner as he can, and precisely the «ame rules
will apply to the course of proceeding relative to his evidence
as to that of tlic Informant or Complainant. The Infor-
mant or Complainant may adduce evidence in reply to that
adduced by the Defendant, but he cannot prove again the
same facts as those established or attempted to be established
by liim on the opening of his case. (Taylor on P]v, ridf on
the subject of examination ante pp. 22-25).

Should any of the witnesses refuse to be sworn or examined
or to answer legal questions put to them, ample powers are
given by s. 19 to the Justice to reduce them to obedience.
When a witness so refuses and is committed the case should
be adjourned.

If on the hearing, the Justice perceives that there is on
the part of the Defendant a bona fide assertion of a claim of
right, or of property, or title, (for a definition of which see
ante p. 12) the Justice should dismiss the case, leaving the
complaining party to such other recourse as the law may
have provided (Saunders p. 70. Paley 5 Ed. p. 137 ; Oke's
Syn. p. 34!.

In all cases in which the public are hot involved it is
possible for the parties to compromise, but it is clear that if
the oflfence is of a public nature no agreement can be valid
that is framed on the consideration of stifling a prosecution
for it. But common assaults, disputes betwen master and

SUMMARY CONVICTIONS.-

18 on
im of
Hi see
the
may
)ke's

lit is

lat if

[valid

lution

and

servant, treapnsses and the like, in which the mischief is
confined to the Complainant and does not involve the interests
of the public or compromise the public peace, may lawfully
be compromised. Riots, assaults upon Officers in the execu-
tion of their duty cannot (Keir vs. Leeman G. Q. B. 308 ; 9
Q. B. 577; Saunders 77; Paley 5 Ed. 47 ; Oke's Syn. 140).
The proper mode of disposing of the case in the event of a
compromise being effected ere the Informant has established his
case, is an order of a dismissal, if on the contrary he has
proved the allegations of his information the Defendant
should be convicted in a small penalty in either case with or
without costs as may be determined by tliO parties (T7(/^
Oke's Syn. 140 and Saunders 70 for variety of opinion on
this point).

The Informant or Complainant and the Defendant can
not make any observations in reply, their right to address the
Justice exists only at the opening of their respective cases.

The general rule is that if the charge is substantiated and
no valid defence proved, the duty of the Justice is to convict,
whilst if the case for the prosecution fail, or a valid defence
is shewn, it becomes his duty to dismiss the charge. Certain
exceptional provisions are however sometimes contained in
the Statute relating to the offence. Thus 32 and 33 Vic. c.
20 s. 44 provides that on certain charges of assault, the
Justice may, iu the event of his finding the assault or battery
to have been justified, or so trifling as not to merit any
punishment, dismiss the complaint. But in all other cases,
save those in which such exception exists in the Statute
relative to the offence, the general rule applies, and where no
reasonable doubt exists in the mind of the Justice, after
hearing the evidence on both sides, of the guilt of the Defen-
dant, there should be a conviction or an order; if on the

■1,1

184

SUMMARY CONVICTIONS.

contrary such reasonable doubt exists, the Defendant should
have the benefit and the information or complaint be dismissed.

Justices should not supply any deficiency in the proof of
either the Prosecutor or Defendant by their personal know-
ledge of the facts of the case, their duty is to determine on
the evidence given before them.

Minute of conviction to ho made.

42. If he or they convict or make an order
against the Defendant, a minute or memorandum
thereof shall then be made, for w^hich no fee shall
be paid, and the conviction (I 1, 2, 3) or order
(K 1, 2, 3) shall afterwards be drawn up by the
Justice or Justices in proper form, under his or
their hand and seal or hands and seals.

THE CONVICTION.

Previous to the passing in England of the Statute 11 and
12 Vic. c. 43, the drawing up of a conviction, save in those
eases where by special statute a short form was given, pre-
sented many points of difficulty to Justices of the Peace.

The general form previously in use under 3. Geo. 4. c. 23
consisted of the following parts: 1st The information, 2nd
The summons and appearance or default of the Defendant,
with his confession or denial and defence, 3rd The evidence,
4th The adjudication.

The conviction therefore under that Statute was in the
nature of a Record of all the proceedings in the case; under
the 11 and 12 Vict. c. 43, the necessity for setting out the
information, the summons and appearance, or default of the
Defendant with his confession or denial and defence and the
evidence is done away with, and in lieu thereof a short form
more in the nature of a judgment, is given, the blanks of

KI'MMARY CONVICTIONS.

185

which are to bo lillcfl up so :is to luoct the f:>cts of each indi-
vidual case.

Previous to Confederation tlie EngUsh Act 11 and 12 Vic.
c, 43. had with very fi\i*rht aherations, been adopted by tlie
Parliament of Canada, and had passed ini law by virtue of
14 and 15 Vic. c. 95, afterwards forming- a portion of Cap.
103 Consolidated Statutes of Canada.

Reqiiislff's of informotiou. Acrunta/ In sfufing the
ojfi'iice. Forms appUaibb' fo previous Sfttfnfts. Ptn'firuhti-
form hji aiihaeqvcnt Sffitntcx.

In the use of the fornix of conviction given by the 32 and
33 Vic. >. 31 it must be remembered, that though doubtless
the task imposed upjn Justices of the Peace of drawing up
convictions is much easier of performance now-a-days than
it was forty years ago. yet 1" that the same accuracy is
required in the stating an offence in the conviction, now as
then, the only change being that formerly the accuracy in
that part of the conviction wherein the information was set out
was required, whilst now-a-days it is required in what then
would have been called tlie adjudication. 2'^ The forms
given by the 32 and 33 Vict. c. 31, are applicable to all pre-
vious penal Statutes, whether they contain particular form.^
of convictions or orders or not, and to all subsequent Statu-
tes not containing particular forms of convictions or orders,
(Exparte Allison 10 Exch. 551; 24 L. T. 117). 3" if by
any subsequent statute a particular form be prescribed as
indispensably necessary, such provision must be strictly com-
plied with (R. vs. Jefferies 4 T. K. 1G9). Any defect in the
manner of setting out that which in itself is surplusage, and
which might be omitte<l altogether, does not vitiate the rest
which is sound (R. vs. Hall 1 T. R. 320 ; R. vs. DraRe 2
Show. 4811). An impos.sible or incongruous date, if the con-

HiiilMfiiM

186

StJMMARY CONVICTIONS.

:! I!

^!i:

( 11

victiou be complete without it, may be rejected as surplusage
(R. vs. Crisp 7 East 389).

Mode to he adopted in filluig np hlanks in form of con-
viction.

The blanks of the form of a conviction for a penalty and
costs to be levied by distress, and in default of sufficient
distress by imprisonment, are to be filled up as follows :

1" The names of the Province and Territorial Division
within which the conviction was rendered.

2*^ The date of the conviction giving the day, month, and
year in full, without using figures.

3'> The place where the conviction was so rendered, show-
ing also the Territorial Division within which the said place
is situate.

4'> The name, residence, and occupation of each of the
Defendants.

5'> The number of the Justices convicting.

Go The statement of the offence ; this is the most difficult
portion of the conviction to draw, and great attention must
be paid to the following points :

(a) The time and place of the commission of the offence.

The precise day need not be given, it is sufficiently certain
if the fact be alleged to have happened between such a day
and such a day, provided both the days speciiied be within
the time limited by statute for bringing the information
(Paley on Con. p. 155, he saying that it is only necessary
that the last of the days specified be within the limited time ;
R. vs. Chandler 1 Salk 378).

It is however more regular and safer, when practicable, to
fix the charge to a day certain (Paley p. 156 ; Hutton on
Con.* p. 22 ; R. vs. Crop 7. East. 389 ; R. vs. Huggins
3 C. & P. G02; R. vs. Simpson 10 Mod. 248; Saunders
■praC 14).

SUMMARY CONVICTIONS.

187

to
on

ler's

As the conviction must expressly shew that the Justice had
jurisdiction over the offence, it must be clearly and distinctly
stated that it was committed within the Territorial Division,
over which the convicting Justice had jurisdiction (R. vs.
Austen 8 Mod. 209: R. vs. Hazell 13 East 139; In re
Peerless 1 Q. B. 143). Where a place has been once men-
tioned, as B. in tha District of M. it will be sufficient to
allege the offence to have been committed at B. aforesaid.
(R. vs. Burnaby Ld. Raym. 901).

Where by a special statute, jurisdiction is given to Justi-
ces of the Territorial Division within which an offender is
found, the offence having been by him committed in another
Territorial Division, in addition to setting out the place
where the offence is committed, it is necessary to set out the
fict of his having been found at some place within the Terri-
torial Division of the convicting Justice (Re Peerless 1. Q.
B. 143).

No presumption from the manner of describing the facts,
can supply the omission of a direct averment of their having
occured within the jurisdiction of the convicting Justice
(R. vs. Edwards 1 East 279 ; Paley p. 159 ; Hutton p. 24 ;
R. vs. Chandler 14 East 274.

<b) — Acts rommltted, certauiti/ of (lescription, guilty know-
ledge.

The description of the offence must include in express
terms, every ingredient required by the Statute to con-
stitute the offence, nothing being left to intendment, infer-
ence, or argument. (R. vs. Turner 4 B. & Aid. 510 ;
R. vs. Duncan 1 Ch. R. 152; R. vs. Jukes 8 T. R.
536 ; R. vs. Trelawny 1 T. R. 222 ; R. vs. Pereire 2.
Ad. & E. 375; Charier vs. Greene & al. 13 Q. B. 21G;

R. vs. Saddler 2 Chit.
791).

R. 519; R. vs. Moore Ld. Raym.

: -li

I lii
Mi!

188

SUMMARY rONVirTTONS.

The facts eonstitutiiiiz; tlio ottencc must be stated in a direct
and positive manner, tlie offence cannot be charged disjunc-
tively or in the alternative (R. vs. North G D. & K. 143;
Paley p. 140 ; Storkcr case 1 Salk. 342; 11. vs. Pain 5 B.
& C. 251 ; A. G. vs. Shirley 1 Y. A: J. 221 ; llulton p. 38;
R. vs. Middlehurst 1 Burr. 399 1.

AVhere knowledge is made a material component in the
offence it must be distinctly alleged (R. vs. Jukes 8 T. R.
530 ; R. V. Llewellyn 1 Show, 48 ; R. vs. Marsh 2 B. & C.
717; Chaney vs. Payne 2 Q. B. 712; cxparte Hawkins 2
B. & C. 31). When the statute under which the informa-
tion is laid, in describing the offence contains the words
maliciously, wilfully, knowingly, or words of similar import,
the defendant should be stated in the description of the
offence, to have committed it maliciously, &c,, as the case
may be. (Paley, p. 143).

It is not sufficient to state as the offence, that which is
only the legal result of certain facts; but the facts them-
selves must be specified, that the Court may judge when
they amount in law to the offence (Paley 174; Saunders
page IG; R. vs. Sparling Str. 497; R. vs. Daman 1 Chit.
Rep. 147; R. vs. Rowed 3 Q, B. 180; R. vs. Popplewell
1 Str. G8G; R. vs. Chaveney 2 Ld. Raym. 1368; R. vs.
Jarvis 1 Bur. 154, Hulton, p. 34 ; R. vs. Cheere 7 D. & R.
4G1 ; R. vs. How, 2 Str. G99; R. vs. Nield C East 417).

In general when it is perfectly immaterial by what means
the particular prohibited act has been effected, it will be
sufficient to describe the offence in the precise words of the
statute creating it (R. vs. Speed 1 Ld. Raym. 583 ; R. vs.
Fuller East P. C. 92 ; Kqmrte Perham 29 L. J. (M.L.) 31).

But on the other hand, when circumstances explanatory of
the words of the statute are necessary to be shown, in order

SUMMARY CONVICTIONS.

189

ins
be

Ihc

rs.

of
ler

to brinjT; the ca.sc witlii.j the statute, such circuinstauccs must
be plainly and distinctly averred (K. vs. Jervis 1 East (543
n ; R. vs. Nicld 6 East 417 ; R. vs. Ridgway 5 B. & Aid.
527 ; Fletcher vs. Calthrop 6 Q. B., 880 ; Expartc Perhani
29 L. J. (M. C.) 31 ; Paley 170, R. James Caid. 458).

When words constitute the offence complained of, the
older cases require that the words thein.selves must be set
out; thus where a conviction under the 7 W. 3 c. 11.
stated that the defendant did profanely swear fifty oaths,
and profanely swear one hundred and sixty curses, it was
held bad, for not setting out the oaths and curses, that the
Court might sec whether they were oaths and curses or not
(R. vs. Sparling Str. 497). The same principle was main-
tained in the case of R. vs. How Str. 699. Where an in-
dictment charged that tiic defendant did unlawfully, and
with threats and menaces, prevent and hinder the burial of
a corpse, it was held bad as it did not state what the
threats and menaces were, as it might be that the threats
were not illegal ; because if a stranger attempted to bury a
corpse, a threat of spiritual prosecution would not be illegal

(R. vs. Chcere 7 D. & R. 4G1). (a)

be committed by a person filling a particular situation, it

must be distinctly alleged, that a party charged with having

committed the offence filled that situation [cxparte Hawkins

2 B. & C. 31). So when a penalty is affixed on persons

filling one character, and a higher penalty on persons filling

another character who have been guilty of an offence, it

(ai Rut it would seem that Courts at the jn-osont day where the
ofi'encc is described in the words of the statute would not recjuire
the particular threats to be set out. (Ln. re rerhaui ."i, H. & N. 30,
2 K. & E. 383 ; Spelmun vs. The gueen in error— Q. B. Mon-
treal, 18G8, Mss. note W. H. K.)

I.li

190

SUMMARY roNVI0TI0N8.

f fr

must be distinctly alleged to which of the different ola^pes
tlic defendant belongs (R. vs. Sparling 1 Str. 397). All the
terms imposed by the statute, as to the character of the
person* charged, must be strictly averred (R. vs. Little 1
Burr. G13 ; R. vs. Taylor 7 D. & R. G23 ; R. vs. Brown 8
T. R. 26). And where the offence can only be committed
when other persons, filling a particular character arc con-
cerned, it must be alleged that those persons filled that
character at the time (R. vs. Dove 3 B. k Aid. 596). Where
the offence consists in causing or endeavouring to cause any
person filling a particular situation to violate his duty, it
must be distinctly alleged that the person filled such situa-
tion at the time, and that it was his duty to do that which
the defendant prevented or endeavoured to prevent his doing
(R. vs. Everett 8 B. & C. 115).

(d) — Sums and Quantities. — When the (|uestion turns
upon sums and quantities, they must be particularized (R.
vs. Van Heubeck 2 Lew. 38 ; R. vs. Catherall Str. 897 ;
R. vs. Marshall 2 Keblc 594; R. vs. Gibbs Str. 49):
especially in those cases, in which the justices are empowered
to award compensation according to the amount of damage
(R. vs. Gibbs 1 Str, 497 ; R. vs. Burnaby 2 Ld. Baym.
900).

(e) — Written Instruments. — Where written instruments
ibrni the gist of the offence, tht? conviction must set them
out, that it may clearly appear that the instrument is one of
the description contemplated by the statute (R. vs. Lloyd
2 East P. C. 1123 ; R. vs. Burrough 1 Ventr. 305 ; R. vs.
Powell 2 East P. C. 976). In some cases it will be suffi-
ciently certain if the writing be set out according to the
tenor following ; but if it be to the effect following it will be
bad, beciuse those words do not import that the language

SUMMARY rONVICTIONS.

101

nil

Ivs.

Iffi-

Ihc
I be
hire

ptated was the specific language used in the writing (II. vs.
Bcarc, Ld. Rayra. 414).

(f) — Ownership Partners. — When it becomes necessary to
state the ownership of any article belonging to partners,
joint tenants, partners, or tenants in common, it is sufficient
to state that the property belongs to one of the said partners,
naming him, and another or others as the case may be, and
whenever it becomes necessary to state the ownership of any
work or building, made, maintained, or repaired, at the
expense of any Territorial division or place, or of any
materials for the making, altering, or repairing the same,
they may be therein described as the property of the
inhabitants of such Territorial division or place ; if belong-
ing to a Corporation or Municipality, care should be taken
that the proper corporate name of such Corporation or
Municipality be given, (vide s. 14).

(g) — Exceptions and Provisos Negativing. — All circum-
stances of exemption and modification, whether applying to
the oiFence or to the person, that are cither originally
introduced into, or incorporated by reference with, the
enacting clause must be distinctly enumerated and nega-
tived ; and it is immaterial whether the said circumstances
of exemption and modification be in another section, or in
another act of Parliament, if distinctly referred to and
engrafted into the enacting clause ; but such matters of
excuse as are given by provisos, or other distinct clauses
not referred to and engrafted into the enacting clause, need
not be specifically set out or negatived (Paley, pp. 193, 194 ;
R. V3. Jukes 8, T. 1\. 542; R. vs. Bell, Post Cr. L. 439;
Speeics vs. Parker 1, T. R. 141 ; Gill vs. Scrivens 7, T. R.
27; R. vs. Hawkins 2, B. & C. 31 ; R. vs. Palmer 1, Leach
120; R. vs. Pratten (J, T. R. 559; R. vs. Earnshaw 15,

i'l

192

RUM MARY CONVICTIONS.

Sit?

East 45G; l\. vs. Clarke Cowp lib, R. v.s. JIall 1, T. 1{.
320; K. vs. Neville 1, B. & Ad. 489; K. vs. Bryan 8tr.
101; II. vs. Ford Str. 55i; (Saunders 16, 17, Okes. Hyn.
118.) A general allegation that defendant i.s not qualified
is insuflScient (R. vs. Jarvis 1, Burr 148; R. vs. Mar-
riott 1, Str. GG), but yet in some cawcs where the words
of the statute have been followed, a general denial of such
exemption lias been held sufficient. (Cook vs. Swift 14,
31. & W. 2:J5 vide Palcy 204-211. Hutton 28-32,
Saunders lG-17). It has however been held in some
cases, that where the offence cliargcd i.-* of such a nature
that its existence depends upon the act complained of being
done without any legal excuse, it mu.-jt be alleged that
such act was done without such letral excuse, although
no such condition, or <|ualification is referred to in the
statute {In re Turner 15, L. J, 140, M. C; R. vs. Askew
20, L.J. (N. S.) M. C. 241 ; Re. Geswood 2, E. kB. 952).

7'> The AdJudicatio7i,\i&-c — Immediately after the statement
of the offence in form I. 1, comes the adjudication of punish-
ment, being the penalty and compensation, if any, a"Hjudged
and ordered by the justice to be forfeited and paid by the
defendant.

By certain statutes the amount of the penalty is fixed, in
others the justices have the right, within certain limits, of
fixing the amounts of the penalty and compensation, if any,
which must appear in the adjudication.

In the adjudication, the justice mu^-t measure the penalty
he inflicts, by his authority under the statute inflicting the
penalty for the offence of which he convicts the defendant.
If the penalty is a sum certain, the defendant should be
adjudged to forfeit and pay that sum certain.

If on the other hand the statute in such cases gives the

SUMMARY CONVICTIONS.

193

:;c(l
the

1, in

ts, of

ualty
cv the
dant.
id be

Is the

Justice the power of inflicting a pcnahy of not more, for
instance, than five pounds, and not less than one pound, the
Justice, if he convicts, must impose a penalty of either of
those sums, or of any sum between them. But if he
imposes a penalty either greater than the higher or less
than the lower limit, the conviction is bad (R. vs. Pat-
chett, 5 East 341 R. vs. Salomons, 1 T. R. 249). In all
cases the clause of the statute fixing the penalty should be
carefully and strictly pursued. (Okes. Syn. 146.)

Conviction for one offence only. — By the 25th clause of the
statute now under consideration, it is enacted, that every
complaint shall be for one matter of complaint only, and not
for two or more matters of complaint, and every information
shall be for one ofience only, and not for two or more offences.

The enactment with reference to the information, controls
the conviction which must in all cases, save where the con-
trary is provided by a subsequent statute, be for one offence ;
it becomes necessary then to consider what acts, in the eye of
the law, constitute but one offence.

Where several acts are charged to have been committed, it
depends upon the construction of the statute applicable to
such acts, whether they in fact form but one offence, for
which one penalty alone can be imposed, or whether each act
is an offence by itself punishable in a penalty.

If distinct and complete acts are committed on different
days, such as killing one head of game on each day, it is clear
that the killing on each day is an offence subject to a penalty ;
but the difficulty arises upon a repetition of similar acts, inc
pursuance of one object on the same day. With regard to
cases of this description no general rule can be laid down, but
the law in each case must be determined by the nature of the
offence, and the manner in which the particular statute

194

SUMMARY CONVICTIONS.

applicable to it is worded. The 29 Car. 2, c. 7, made any
workman exercising any work of his ordinary calling on the
Lord's Day, liable to a penalty of five pounds ; but in a pro-
secution instituted thereunder, it was held that a baker was
only liable to one penalty for selling three loaves, though the
sales were distinct, and Lord Mansfield then made use of the
following words : "On the construction of the Act of Parlia-
ment the oflFender is exercising his ordinary trade on the
Lord's Day, and that without any fraction of a day, hours, or
minutes. It is but one entire offence, whether longer or
shorter in point of duration, or whether it consists of one or a
number of particular acts. There can be but one and entire
offence on one and the same day."

Repeated offences are not the object which the legislature
had in view in making the statute, but singly to punish a
man for exercising his ordinary trade on a Sunday (Cripps vs.
Durden, Cowp. 640).

But where 12 Geo. 2, c. 36, made it unlawful for " Any
person to bring into this kingdom for sale, any book or books,
first composed and printed, and published in this kingdom,
and reprinted in any other country," and declares " that if
any person shall import, or shall sell, publish or expose to sale
any such book, knowing them to have been so reprinted,
every such offender beside forfeiting the said book or books,
shall forfeit the sum of five pounds, and double the value of
every book which he shall so knowingly sell." In an action
for penalties under this Act, it was held that two penalties
were recoverable for selling two books on the same day,
provided the sales were distinct (Brook q. t., vs. Milligan 3,
T. R. 509).

In all cases then, the wording of the statute is to be care-
fully considered, in order to determine whether distinct

SUMMARY CONVICTIONS.

195

Ian 3,

penalties arc incurred for each of sevcra! acts charged, or
whether they form but on a a<;prep:ate offence, and require
but one penalty (vide R. vs. Mathews 10 Mod. 27 ;
Collins vs. Hopwood 15 M. & W. 459; Paley 218-221,
Hutton, p. 41).

Several offenders — Though several offenders may be includ-
ed in one conviction for an offence jointly committed, it
depends upon the wording of the particular statute appli-
cable, and the quality of the offence, whether each person is
liable to a distinct penalty, or all collectively to but one.

The words of the section 4, of 5 Anne, c. 14, are as
follows : —

" If any person or persons not qualified, &c., shall keep or
use greyhounds, setting dogs, hayes, lurchers, tunnels, or any
other engines to kill and destroy the game, and shall thereof
be convicted, &c., the person or persons so convicted shall
forfeit the sum of £5." On a prosecution under the said
clause, it was held that two persons could not be convicted
in separate penalties for using a greyhound on the same
occasion together (R. vs. Bleasdale 4 T. R. 809 ; vide also
analogous cases of Hardyman vs. Whittaker 2 East 573 ;
Partridge vs. Nay lor, Croke, Eliz. 480 ; Barnard vs. Gosling
2 East 569).

Lord Mansfield in the case of R. vs. Clark & al, Cowp. 610,
wherein a verdict had been obtained against three defend-
ants for £40 each, in giving judgment on the rule to show
cause why the judgment should not be arrested, on the
ground that the offence of assaulting and resisting Custom
House ofl&cers in the execution of their duty, and rescuing
goods which had been seized, was, no matter how many
persons took part in such resistance, an entire offence,
for which but one penalty could be inflicted; the statute

; i

196

SUMMARY CONVICTIONS.

providing that if any person or persons shall assault, &c., the
party or parties shall for every such offence forfeit £40, said,
there is no cause of greater ambiguity than arguing from
- cases without distinguishing accurately the grounds upon
which they arc determined. The true reason of the cases
which have been cited in support of the motion and the
distinction between these cases and the present is this,
when the oflfence is in its nature single and cannot be severed,
there the penalty shall be only single, because though several
persons may join in committing it, still it constitues but one
offence ; but where _tho offence is in its nature several, and
where every person concerned may be separately guilty of it,
. tb'^re each offender is separately liable to the penalty ;
because the crime of each is distinct from the oflfence of
/ the other and each is punishable for his own crime. If
/ partridges are netted by night, two, three or more may
draw the net, but still it constitutes but one offence. (a) But
this statute relates to an oflfence in its nature several, it is a
several oflfence at common law, and the statute adds a further
sanction against that which each man must commit severally.
One may resist, another molest, another run away with the
goods ; all these are distinct acts, and every one's oflfence
entire and complete in its nature, therefore each person is
lii'.ble to a penalty for his separate oflfence [vicle R. vs. Bleas
dale 4 T. R. 809; R. vs. Hare&al, 5 T. R. 542; R. vs. Deace
12 M. &. W. 39; R. vs. King 1 Salk 182 ; R. vs. Drake 2
Show 489).
But whether the oflfence is in its nature single or joint, a

(a) (Qy. vide Lord Campbell's observations in expte. Smith &
Till, to this eftect : " Poachers now use nets a mile long, which
roqniie a hundred men to set them. Would such a case as that
amount only to one offence," 22, .J. P. 383).

SUMMARY CONVICTIONS.

197

lith &
iwhich
Is that

joint award of one fine ao^ainst several defendants is erroneous ;
for it ought to be several against each defendant, otherwise
one who had paid his fine might be continued in prison till
all the others had paid theirs, which would be in effect to
punish him for the offence of another. (Paley 224 ; I' rgau
vs. Brown 5 A. & E. 515; Saunders p. 74-75).

But of late years the distinction formerly recognized as
existing between joint, and several offencee has been done
away with, and Courts treat all persons committing an
offence togethrr as liable each to the full penalty imposed by
the statute on the person committing such offence, so that in
all such cases it is the better plan to have an information
and summary case for each person charged. (R. vs. Justices
of Staffordshire 32 L. J. 105; Mayhew vs. Wardley 14 C.
B.(N.S.) 550; Oke's Syn. p. 112 (N. p. 33 & 151.) The
same care should be taken with respect to the compensation
awarded as with respect to the penalty ; the clause of the
statute on which it is founded should be consulted, and the
same attention paid to its provisions as in the case of the
penalty. *

The prosecutoi being entitled to his costs of prosecution the
defendant should be udjudged to pay him by name the amount
of the costs which to the Justice convicting seems reasonable,
the s-'^me not being inconsisteni with the fees established by
law in such case, the amount of the said costs being specified
in the said conviction.

In all cases where no particular mode of raising or levying
the penalty compensation, or sum of money by the act or law
creating, or having reference to the offence is provided, and
in all cases where by the act or law authorising the convic-
tion it is provided that the penalty, compensation, or sum of
money is to be levied upon tlie goods and chattels of the

198

SUMMARY CONVICTIONS.

defendant by distress, and the sale thereof, the justice
must in his conviction order that, in default of immediate
payment of the several sums mentioned in his conviction,
including costs, or within a certain delay to be therein named
as in the form (1 1) the said several sums shall be levied by dis-
tress and sale of defendant's goods and chattels, and in default
of sufficient distress that the defendant be imprisoned in the
common gaol of the Territorial Division within which the
conviction was made (if the statute on which the conviction
is founded requires that he should be kept at hard labor, he
should be condemned to such hard labor), for and during
such time as is provided by the act or law on which the con-
viction is founded.

Term of Imprisonment. — Care should be taken as in the
case of the penalty, that the imprisonment awarded be not
longer or shorter than that awarded by the statute to the
person committing the offence charged. (^Ante p. 192.) (b)

Statute creating the offence, if no provision for Ievij>''i9
tl\c penalty . Vide s. 57, Post p. 207.

Statute creating the offence, jJi'oviding impr><'^^^i^'^^^^i ^'*
default of payment of penalty, &c. Vide s- ^^^ Post p. 204.

Date and Signature. — The place ^Ji^^rc the conviction
was rendered should be specified as being in the Territorial
Division for which the Justice was appointed, and the Justice
should at the foot of the conviction sign his name, and affix
his seal. If two or more Justices render the conviction, the
closing should be under " our hands and seals, &c.," and it
should be signed and sealed by each of the Justices con-
victing.

(b) If tho act or law on which tlie information or complaint is
founded does not specify any term of imprisonment, the Justice
shall order him to be imprisoned for any period, not exceeding
three months. ( Vide sec. 62. Post p. 2] 1 )

I !

SUMMARY CONVICTIONS.

199

Variations from this general form of conviction must be
made :

1. When under s. 59, the Justice deems fit, instead of
issuing a warrant of distress, to commit the defendant,

the portion of the conviction ordering the distress is to be
left out, and the following substituted "in as much as it
hath now been made to appear to me, (or us, as the case
ynay be,) that the issuing of a warrant of distress in this
behalf would be ruinous to the said A. B., (the defendant)
or his family," (or that the said A. B,, hath no goods or
chattels, whereon the levy the said sums by distress). I
adjudge &c., putting the condemnation to imprisonment in the
manner directed by the statute, in the words of the latter
part of the form (II).

2. Where by the statute creating the oflfence, imprisonment
in default of payment of the penalty is ordered, the form of
conviction (I 2) is to be followed, regard being had to the
instructions hereinbefore given, leaving out all reference to
the levying of the penalty and costs by distress.

3. Where the punishment is by imprisonment the form
(I 3) is to be followed, fiUiiig up the blanks therein according
to the foregoing instructions, leaving out all mention of any
penalty. In this case a warrant of distress must be ordered
to levy the costs, unless it be made to appear to the Justice
that the issuing of such warrant would be ruinous to the
defendant and his family, or that he has no goods or chattels
whereon to levy the costs by distress, when imprisonment in
addition to that ordered as the punishment of the offence may
be adjudged against him, determinable however on payment
of such costs. {Vide form No. 18.)

Orders. — In filling up the fonns, K 1, K 2, K 3, the
instructions hereinbefore given with respect to the forms of

200

SUMMARY CONVICTIONS.

If l! !

convictions should be borne in mind, and it would be also
better that in any order made under this Act the Justice
should expressly adjudicate the complaint to be true, as the
Court of Queen's Bench in England decided in the case of
Labalmondiere vs. Frost 28 L. J. (N. S.), M. C. 155, that
an order therein referred to, although drawn according to the
form K. 3, was bad on its face for not adjudging the com-
plaint to be true.

The formal conviction may be drawn up even after a
distress and warrant of commitment have issued upon it.
(Paley 5 Ed. 292, note i-m). And where by mistake, and
without any intention to mislead or defraud, a copy be
delivered to the party misstating the name of the informer,
or any other fact, and a more correct one be returned to the
Sessions, that Court can only take notice of the latter. (R. vs.
Allen 15 East 333, 346.) Indeed, it is allowed that the
formal conviction may be drawn up at any time before it is
acted upon (Per Erie J. in Bott vs. Ackroyd 28 L. J.
(M. C.) 208, or before the return of the certiorari, although
after a commitment (Massey vs. Johnson 12 East 82), or
after the penalty has been levied by distress (R. ''s. Barker 1
East 186), or after action brought against the Magistrate
^Lindsey vs. Lee, 11 Q. B. 455 ; Massey vs. Johnson, su2)ra ;
Gray vs. Cookson 16 East 13), or as it seems, even after the
conviction has been returned to the Sessions (see Basten vs.
Carew 5 D. & R. 558; R. vs. J. J. Huntingdon 5 D. k R,
558 ; R. vs. Allen, supra). But it must bo drawn up before
the former one has been quashed for informality (Chancy vs.
Payne 12 B. 712; R. vs. Chaney 6 Dowl, 281), or the
defendant has been discharged for such cause, even although
the conviction may not have been removed or quashed
Charter vs. Grtcme 13 Q. B. 216).

SUMMARY CONVICTIONS.

201

. it.
and
be
mcr,
) tlie
I. vs.
i the

it IS

. J.

), or
er 1
strate

ten vs.

. & K.
before

^ley vs.

or tlic

tliougb

luusbed

Certificate If he dismiss the compluinty dc.

43. If the Justice or Justices dismiss the infor-
mation or complaint, he or they may, when
required so to do, make an order of dismissal of
the same (L), and shall give the defendant a Certi-
ficate thereof (M), which certificate upon being*
afterwards produced, shall without further prool,
be a bar to any subsequent information or com-
plaint for the same matter, against the same i)arty.

Care should be taken in making- out the certificate, that
the subject matter of the information or complaint be pro-
perly set out therein. The form (INI) is in the foUowint;
words, "for that (or as in the snmmons),^^ so that care must
be taken, if there be any variance between the subject matter,
as set out in the information or complaint, and the evidence
given, that the certificate show the true subject matter which
was contested between the parties.

In filling up the form (L.), reference should be made to
those portions of the instructions relating to, convictions
applicable thereto. [Ante p. 187-193).

If information or complaint negatives any exemj^tion, dr.

44. If the information or complaint in any case
negatives any exemption, exception, proviso, or
condition in the Statute on which the same is
framed, it shall not be necessary for the Prosecutor
or Complainant to prove such negative, but the
Defendant may i)rove the affirmative thereof in
his defence, if he would have advantage of the
same.

(T7c?c Ante p. 191)

202

SUMMARY CONVICTIONS.

Prosecutors and complainants in certain cases to he com-
petent witnesses y and examined upon oath, dhc.
Proviso,

46. Every prosecutor of any information not
having any pecuniary interest in the result, and
every complainant in any complaint whatever his
interest may be in the result of the same, shall
be a competent witness to support such informa-
tion or complaint ; and every witness at any hear-
ing shall be examined upon oath or affirmation,
and the Justice or Justices before whom any
witness appears for the purpose of being examin-
ed, shall have full power and authority to admin-
ister to every witness the usual oath or affirmation ;
provided that no prosecutor shall be deemed
incompetent as a witness on the ground only that
he may be liable to costs.

A difference is here created between summary convictions
and orders. In seeking to obtain a conviction, the infor-
mant if he has no pecuniary interest, can be a witness, but if
he seeks thereby compensation for a wrong he cannot testify,
the same rule applies to the informant's wife. On the other
hand a complainant seeking an order, whatever his interest
may be, is a competent witness, and his wife is also com-
petent. ?

Possible liability for costs is no disqualification.

Justices may adjourn hearing of any case and commit
defendant or suffer him to go at large on recognizance.

roviso

46. Before or during the hearing of any infor-
mation or complaint, any one Justice or the

SUMMARY CONVICTIONS.

203

Justices present, may in his or th**''^ discretion,
adjourn the hearing of the same ^ a certain time
and place to be then appointed and stated in the
presence and hearing of th^ party or parties, or of
their respective Attorn *^ys or Agents then present,
and in the meantim- the Justice or Justices may
suffer the Defendant to go at large or may com-
mit (D) him ^^ the Common Graol or other prison,
within ^^^ Territorial Division for which the
Just^^^e or Justices are then acting, or to such
rtlier safe custody as the Justice or Justices think
fit, or may discharge the Defendant upon his
recognizance (E), with or without sureties, at the
discretion of the Justice or Justices, conditioned
for his appearance at the time and place to which
such hearing or further hearing is adjourned, but
no such adjournment shall be for more than one
week.
■""T^tf^e Ante p. 90)

If defendant or prosecutor do not appear, the case may
nevertheless be heard.

47. If, at the time and place to which the
hearing or further hearing has been adjourned,
either or both of the parties do not appear, per-
sonally or by his or their Counsel or Attorneys
respectively, before the Justice or Justices or
such other Justice or Justices as may then be
there, the Justice or Justices then there present
may proceed to the hearing or further hearing
as if the party or parties were present.

(

iiii !

204

NUMMARY CONVICTIONS.

1/ the j)i'Oscch^^ty Joes not appear.

48. If the Pi^secutor or Complainant do not
appear, the Justict or Justices may dismiss the
information with or \uthout costs, as to him or
them seems fit.

If defendant fail to reappear, cK.

49. In all cases when a Defenaca^t is discharged
upon his recognizance, and does no*;, afterwards
appear at the time and place mentioned in the
recognizance, the Justice or Justices who toot the
recognizance, or any other Justice or Justict«
who may then be there present, having certified
(F) on the back of the recognizance the non-
appearance of the accused party, may transmit
such recognizance to the proper officer appointed
to receive the same by the laws of the Province
in which the recognizance was taken, to be pro-
ceeded upon in like manner as other recognizantes,
and such certificate shall be deemed sufficient
prima facie evidence of the non-appearance of the
Defendant.

Form of convictions mat/ he as in schedule where no form
is given in aniifnlijix Mtatute.

50- In all cases of conviction where no parti-
cular form of conviction is given by the Act or
Law creating the offence or regulating the prose-
cution for the same, and in all cases of conviction
uppjiActs or Laws /hitherto passed,^ whether any
particular form of conviction has been therein
given or not, the Justice or Justices who convict,

-m

SUMMARY CONVICTIONS. 205

^may draw/up his or their conviction, on parch-
ment or on paper, in^such one of the forms of
conviction (I 1, 2, 3)^s may be applicable to the
case, or to the like effect.

Vide 9. 35 S 13, Ante, pp. 176 ct 162

Where no special form of order is so given, form in
schedule may he adopted.

61. In case an order be made, and no particular
form of order is given by the Act or Law^ giving
authority to make such order, and in all cases of
orders made under the authority of any Acts or
Laws hitherto passed, whether any particular
form of order is therein given or not, the Justice
or Justices by whom the order is made, may draw
up the same in such one of the forms of orders
(K 1, 2, 3) as may be applicable to the case, or to
the like effect.

Vide Ante, s. 42, and observations thereon, p. 199.
Defendant to he served with cop)y of the minute hefore
distress or commitment.

52. In all cases when by any Act or Law
authority is given to commit a person to prison,
or to levy any sum upon his goods or chattels by
distress, for not obeying an order of a Justice or
Justices, the Defendant shall be served with a
copy of the Minute of the Order before any
warrant of commitment or distress is issued in
that behalf, and the Order or Minute shall not
form any part of the warrant of commitmant or
of distress.

■:'! '%':-

206

SUMMARY CONVICTIONS.

i'
5!

A distinction is hereby made between convictions and
orders ; in the case of a conviction there is no necessity for
serving the defendant with a copy of the minute ; but, ere a
commitment or warrant of distress can issue in the case of an
order, the defendant must be served with a copy of its minute.
The service thereof should be made in the same way as that
of a summons. (Ante p. 152.) The formalorder need not be
drawn up before the warrant issues (Ratt vs. Parkinson, & al
20 L. J. M. C. 208, 210; Expte. Johnson 3 B. & S. 947).

Justices may award costs not inconsisttnt with the fees
established by law.

53. In all cases of Summary Connction, or of
Orders made by a Justice or Justices of the Peace,
the Justice or Justices making the same, may in
his or their discretion, award and order in and by
the conviction or order, that the Defendant shall
pay to the Prosecutor or Complainant such costs
as to the said Justice or Justices seem reasonable
in that behalf, and not inconsistent with the fees
established by law to be taken on proceeding had
by and before Justices of the Peace.

Costs may be awarded to defendant when the case ii
dismissed.

54- In cases where the Justice or Justices,
instead of convicting or making an order, dismiss
the information or complaint, he or they, in his or
their discretion, may, in and by his or their order
of dismissal, award and order that the Prosecutor
or Complainant shall pay to the Defendant such
costs as to the said Justice or Justices seem
reasonable and consistent with law.

SUMMARY CONVICTIONS.

207

Costs so alio wed shall be spccijied.

55. The sums so allowed for costs ^hf^ iii all
cases be specified in the conviction v>r order, or
order of dismissal, and the same st«*ll be recover-
able in the same manner an<3 under the same
Warrants as any penalty a^J'^dged to be paid by
the conviction or order ^ to be recovered.

And may he recoveret^ by distress.

56. In cases where there is no such penalty to
be recovered, such costs shall be recoverable by
distress and sale of the goods and chattels of the
party, and in default of distress, by imprisonment,
with or without hard labour, for any time not
exceeding one month, unless the costs be sooner
paid.

Vide s. 42, ante p. 198 ; s. 56 refers to orders of dismissal
alone, vide s. 64, post p. 219.

Justice may issue warrant of distress in cases where a
pecuniary jyenalty, t&c, has been, adjudged.

57- Where a conviction adjudges a pecuniary
penalty or compensation to be paid, or where an
order requires the payment of a sum of money,
and by the Act or Law authorizing such convic-
tion or order, the penalty, compensation, or sum
of money is to be levied upon the goods and
chattels of the Defendant, by distress and sale
thereof ^nd also in cases where, by the Act or /
Law in that behalf, no mode of ra,ising or levying )
the penalty, compensation or sum of money, or of
enforcing the payment of the same, is stated or
provided, the Justice or any one of the Justices

208

SUMMARY CONVICTIONS.

( TnaK^ig such conviction or order, or any Justice
J of the Peace for the same Territorial Division,
jf may issue i^is Warrant of Distress (N 1, 2) for the
4 purpose of levying the same, v^^hich Warrant of
^ Distress shall be ir. writing, under the hand and
•/ seal of the Justice maVing the same.
Vide 8. 42, ante p. 197.

Jn certain cases xmrrant may tx hachcdfoi' execution ui
another jnrisdict ion.

68. If, after delivery of the warrant of distress
to the Constable or Constables to whom the same
has been directed to be executed, sufficient distress
cannot be found within the limits of the jurisdic-
tion of the Justice granting the warrant, then
upon proof being made upon oath or affirmation
of the handwriting of the Justice granting the
warrant, before any Justice of any other Terri-
torial Division, such Justice shall thereupon make
an endorsement (N 3) on the warrant, signed with
his hand, authorizing the execution of the w^arrant
within the limits of his jurisdiction, by virtue of
which warrant and endorsement the penalty or
sum, and costs, or so much thereof as may not
have been before levied or paid, shall be levied
by the person bringing the warrant, or by the
person or persons to whom the warrant was
originally directed, or by any Constable or other
Peace Officer of the last mentioned Territorial
Division, by distress and sale of the goods and
chattels of the Defendant therein.
Vide s. 11, ante pp. 161 and 162.

SUMMARY CONVICTIONS.

208

\Vhr)i the issuing of a warrant ironld he ruinouH to
ih'/cndant, or thrrc are no goods. Justice may mmmit him.

69. Whenever it appears to any Justice of the
Peace to whom application is made for any war-
rant of distress|that the issuing thereof would be
ruinous to the Defendant and his family, or when-
ever it appears to the Justice, JjyiJiie confession '
of the Defendant or otherwise, that he hath no
goods and chattels whereon to levy such distress,
then the Justice, if he deems it fit, instead of
issuing a warrant of distress, may (O 1, 2) commi^
the Defendant to the Common G-aol, or other
prison in the Territorial Division, there to be
imprisoned with or without hard labour, for the
time and in the manner the Defendant could by
)law_bjB committed in case such warrant of distress
had issued, and no goods or chattels had been
found whereon to levy the penalty or sum and
costs.

Vide s. 42, ante, p. 199 s. 62, post p. 211.

When distress is issued, defendant may he hailed or
detained until it it returned.

60. Ill all cases where a Justice of the Peace
issues any warrant of distress, he may suffer the
Defendant to go at large, or verbally, or by a
written warrant in that behalf, may order the
Defendant to be kept and detained in safe custody,
until return has been made to the warrant of
distress, unless the Defendant gives sufficient
security, by recognizance or otherwise, to the

210

SUMMARY CONVICTIONS.

■' i;i

satisfaction of the Justice, for his appearance
before him at the time and place appointed for
the return of the warrant of distress, or before
such other Justice or Justices for the same Terri-
torial Division, as may then be there.

1/ defendant docs not afterwards appear, the recognizance
to he certified and transmitted to the proper officer.

fl, In all such '^ases where a Defendant gives
security by recognizance, and does not afterwards
appear at the time and place in the said recog-
nizance mentioned, the Justice who hath the same,
or any Justice or Justices who may then be there
present, upon certifying (F) on the back of the
recognizance the non-appearance of the Defendant,
may transmit the recognizance to the proper
officer appointed by law to receive the same, to
be proceeded upon in like manner as other recog-
nizances, and such certificate shall be deemed
sufficient pritna facie evidence of the non-appear-
ance of the Defendant.

Vide ss. 13, 35 & 49, ante.

In default of sufficient distress, Justice may commit defend-
ant to i^rison. '
Iroviso: Term limited.

, 62 If at the time and place appointed for the
return of any warrant of distress, the Constable,
who has had execution of the same returns (N 4)
that he could find no goods or chattels whereon
he could levy the sum or sums therein mentioned,
together with the costs of, or occasioned by the

SUMMARY CONVICTIONS.

211

-fend-

Ir the
liable,
(N4)
lereon
[oned,
)y the

levy of the same, the Justice of the Peace before
whom the same is returned may issue his warrant
of commitment (N 5) directed to the same or any
other Constable, reciting the conviction or order
shortly, the issuing ol the warrant of distress, and
the return thereto, and requiring the Constable to
convey the Defendant to the Common Gaol, or
other prison of the Territorial Division for which
the Justice is then acting, and there to deliver
him to the Keeper thereof, and requiring the
Keeper to receive the Defendant into such gaol or
prison, and there to imprison him, or to imprison
him and keep him to hard labor, in the manner
and for the time directed by the Act or Law on
which the conviction or order mentioned in the
warrant of distress is founded, unless the sum or
sums adjudged ^o be paid, and all costs and
charges of the d^otress, and also the costs and
charges of the commitment and conveying of the
Defendant to prison, if such Justice thinks lit so
to order (the amount thereof being ascertained
and stated in such commitment,) be sooner paid ;
/ but if no term of imprisonment be specified in the
[ AcTo'r Law, the period for which the Justice shall
order theT)efendant to be so imprisoiiect shall not
exceed three months.

Warrant of Distress, Form of. — The proper mode of
proccedin2; after conviction, where in the first instance the
penalty, sum of money, compensation or costs is to be levied
by distress, is, if immediate payment be enjoined by the

212

SUMMARY CONVICTIONS.

statute, or otherwise at the expiration of a limited time, for
the Justice to make a warrant, in the form (N), in the case
of a conviction, or in the foru (N 2), in the case of an order,
in writing under his hand and seal, reciting the offence, con-
viction and adjudication as in the conviction men-tioned, or
the complaint order and adjudication, as in the order set out.
Then a statement of non-payment of the sums so specified,
and an order to the officers to levy them. The blank in the
form left for the number of days granted to the defendant
for payment should be filled up in such a manner as to give
him sufficient time to procure the means of payment (Jones
vs. Johnson 5 Exch. 862, 876 ; S. C, in error 7 Exch.
452; R. vs. Williams 19, L. J. M. C. 126); and it is
submitted that at least four, and not more than eight
days should elapse between the distress and the sale. (Paley
308).

Femme Covert — Partners, — If the offender be a femme cov-
ert subject, to this species of conviction, [ante p. 149) the goods
of the husband are not liable to be distrained for the penalty.
If the penalty be recoverable by distress against ofibnders
who are partners, the constable may it is conceived seize
both the joint and separate efiects, or either, as on a hxy or
seizure by the Sheriff, each party being answerable for the
whole, and not merely for a proportionate part. (Oke's Mag.
Syn. 176).

Defective order or conviction, — A warrant of distress
founded upon and reciting a defective order or conviction, is
bad (Day vs. King 5 A. & E* 359). It should be warranted
by the conviction, and all those facts must appear upon its
face, which are necessary to give jurisdiction to the Justices
over the subject matter (Johnson vs. Reid, 6 M. & W. 124 ;
Re Peerless 1 Q. B. 143 ; Paley 308).

SUMMARY CONVICTIONS.

213

DefendiUit not to suffer hy distress and imprisonment on
one conviction. — Where an offender is convicted in one
penalty, under a statute providing a corporal punishment on
failure of sufl&cient distress, and has effects sufficient only to
satisfy part, it has been held the goods ought not to be taken
but the corporal punishment should be resorted to. if, how-
ever, the same person be separately convicted in two penalties,
and his goods are sufficient to satisfy one only, they ought to
be levied under one conviction, and the corporal punishment
should be inflicted under the other ; but the law never intended
that a man should suffer Vx>th punishments for one convic-
tion (Okes Mag. Syn 176 ; R. vs. Wyatt 2 Ld. Raym. 1195).

Duty of Constable. — It is laid down by Mr. Sergeant
Hawkins that, upon the warrant of a Justice for levying a
forfeiture, where the whole or any part thereof belongs to the
Queen, the officer is justified in br'^aking open outer doors
for the execution of the warrant ; but there seems to be no
such power in other cases, where no part of the penalty is
vested in the Crown ; but under sec. 93 post, any Judge
of Sessions, Police Magistrate, or Stipendiary Ma zistrate, in
all cases where resistance is offere<l to the execution of any
summons, warrant of execution or other process issued by
him, may enforce the due execution of the same by the means
provided by the law for enforcing the execution of the process
of other Courts in like cases, so that in Quebec, on a return
that outer doors had been closed, and proof being made
thereof, the officials above named can give authority to break
open such doors ; but no such power exists in ordinary
Justices of the Peace. The constable distraining has no
power to impound the goods on the premises, and ought not
to remain longer than a reasonable time for the purpose of
removing them (Peppercorn vs. Hoffman, 9 M. & W. 618 ;

'-3; "

214

SUMMARY CONVICTIONS.

Paley 303). If the party against whom a warrant of distress
issues pay or tender to the constable having the execution of
it the sums mentioned in the warrant, together with the
expenses of the distress, the constable should cease to execute
the warrant. If the constable sell under the warrant, or
receive the sums mentioned therein, or be prevented from
distraining in any way, he should make his return to the
Justice within a reasonable time. If he refuse to certify
what he has done, or if he has levied or received the pendty,
and refuse to pay it over, he may be proceeded against by
indictment or information ; or, it seems, the Justice before
whom the warrant was returnable may fine him. (R. vs.
Nash; 2 Lord Raym. 990. Paley 306, 309). Should the
constable be unable to find goods, from the sale of which all
the sums mentioned in the distress warrant will not in his
opinion be realized, he should make his return in the form
(N 4). Vide as to indorsation in the event of defendant's
eflfects being in another Division, s. 58, ante p. 208.

Warrant of Commitment. — On the return (N 4) being
made the Justice should make out his warrant of commit-
ment (N 5), filling up the blanks therein according to the
directions therein contained from the distress warrant, and
in the latter part thereof, to wit, the order to the gaoler, care
must be taken that the time and manner of imprisonment are
the same as in the conviction and warrant of distress ; the
cost and charges of the distress, and of the conveying of the
defendant to Gaol must also be ascertained, and the blank
existing therefor in the form must be filled up with a sum
certain. The commitment must be properly dated and
signed, and sealed by the Justice. (As to sealing Vide 32
& 33 Vic. c. 36, s. 4 post.)

Justiae committing not Justice convicting. — Should the

SUiMMARY CONVICTIONS.

215

are

the

iank

Isum

and

the

Justice who issues either the distress warrart, or the warrant
of committal be not one of the convicting Justices, care must
be taken in both warrants to fill up the blanks left for the
name or names of the convicting Justices properly.

Proper Gaoler. — The warrant must be directed to the
proper gaoler, and is bad if it only orders in general terms
that the defendant be carried to prison (see He Masters 33
L. J. Q. B. 146 ; Paley 319).

Time of Imprisonment. — The period of imprisonment will
be reckoned from the time of defendant being taken into
custody by the constable, and not from the date of his receipt
at the gaol ; and the constable, where a day or more elapses
between the arrest of the defendant and his delivery to the
gaoler, should indorse upon the warrant, for the gaoler's
guidance, " I apprehended the within named defendant
under this warrant on the day of

187 . H. J. Constable of

(Oke's Mag. Syn. 168, n. (10.)
Paley 320.)

Several defendants. — In cases where two or more defend-
ants are convicted by one conviction, it is far better that
separate commitments should be made for each, for if all are
included in one, it is almost impossible so to draw it as to be
impregnable to the attacks of counsel.

Certainty required. — It is necessary that the warrant show
a good conviction, and that the oflFence for which the commit-
ment is made be described with certainty {vide ante p. 187).
In England, previous to the passing of the 11 & 12 Vic, c.
43, the Court of Queen's Bench would not criticise a warrant
of commitment with the strictness to which a conviction was
subjected, if there were reasonable ground for presuming that
the conviction (on which the commitment was founded) was

V ..

216

SUM3IARY CONVICTIONS.

free from objection (R. vs. Rogers, 1 D. & R. 156 ; R. vs.
Helps ; 3 M. & G. 331 ; Paley 325). If the conviction and
warrant substantially agreed it was then considered sufficient
(Barnes vs. White, 1 C. B. 192, 211). Nowadays it may
be laid down that the offence of which the defendant has
been convicted must be substantially set out in the commit-
ment, and the nearer the statement thereof in the commit-
ment approaches]to that in the conviction the better it is. The
forms Nl, N2, N5, 01, 02, all require the offence, or subject
matter of the complaint to be set out as in the conviction or
order, as the case may be ; and no safer rule can be followed
than to copy in the commitment the statement of the offence,
or subject matter of the complaint found in the conviction or
order on which it is based.

The directions given as to the period of imprisonment in
drawing the conviction (ante p. 198) should be consulted, and
the commitment should in all cases follow the conviction, or
order on which it is founded.

Second Commitment. — In the event of a defect existing
in the commitment under which the defendant has been
lodged in gaol, the Justice who signed it can substitute
therefor a commitment in which such defect does not exist.
It must be borne in mind, however, that the second commit-
ment be sustained by the conviction. Such second commit-
ment can be substituted at any time previous to the quashing
of the conviction on which it is founded, or the discharge
of the defendant on Habeas Corpus (Reg. vs. Richards,
5 Ad. & E. (N. S.) 9?G ; Exparte Cross, 2 H. & H. ;
Exparte Smith, 27 L. J. (N. S.) M. C. 186 ; Exparte
McDonnell, Badgley[& Monk, J. J. Montreal, 1870, and
Caldwell's case, Badgley & Monk, J. J., 1870, mss. notes,
W. H. K.) It would seem, however, that the Justice substitut-

SUMMARY CONVICTIONS.

217

»g

lit-

ing .should so cflfect the substitution as to show the gaoler
that the second commitment is given to him in lieu of the
first.

Discharge. — In all cases where a party is committed in
default of payment, he is entitled to his liberty on paying
into the hands of the gaoler the different sums specified in
the commitment. (Sec. 84, post).

Commitment had in part. — If a commitment be bad in
part, it is in most instances bad in toto. Where a party
was committed until he paid two several sums of money, one
of which was not due, the Court quashed the commitment
altogether (Exparte Addis, 2 D. & R. 167 ; Paley 333).

Warrant in force until returned. — The warrant of com-
mitment, unless it is expressly made returnable at a particular
time, remains in force till it be fully executed, whatever
length of time that may be, so long as the magistrate con-
tinues in office. At his death the warrant lapses. If the
offender be apprehended and suffered to go at large upon i n
offer to find security, which is not fulfilled, it seems that he
may be apprehended again upon the same warrant (Dickenson
vs. Brown, Peake, N. P. C, 234 ; Paley, 339.

The officer, at the time of the arrest, should have the
warrant ready to be produced, if its production should be
required by the party arrested (Galliard vs. Laxton, 2 B. «&
S., 363 i Paley, 336). Should the person against whom
the warrant of commitment issues be not found within the
jurisdiction of the Justice signing the same, or if he escapes
into, or is suspected to be in any place within Canada, out of
such jurisdiction, it is submitted that the warrant of com-
mitment can b3 indorsed under s. 11 (ante p. 161^, and the
defendant arrested in any other Division and conveyed to the
Division within which the commitment was signed. The

'■1'

218

SUMMARY CONVICTIONS.

'%■

(1. -ii.

11 & 12 Vic, c. 43, s. 3, expressly extends iadorsation to
warrants of commitment, whilst our Aet makes use of the
word " any warrant ;" but the 24 Geo. 2, c. 55 (Imperial
Act), provides generally for indorsation of all warrants
issued by Justices (Paley 33G ; Glen 104).

Inijvisonment for a subsequent offence to commence at
expiration of that for a previous offence.

63. Where a Justice or Justices of the Peace,
upon any information or complaint adjudges or
adjudge the Defendant to be imprisoned, and the
Defendant is then in prison undergoing imprison-
ment upon conviction for any other offence, the
warrant of commitment for the subsequent offence
shall be forthwith delivered to the gaoler or other
Officer to whom it is directed, and the Justice or
Justices who issued the same, if he or they think
fit, may award and order therein, that the imprison-
ment for the subsequent offence shall commence
at the expiration of the imprisonment to which
the Defendant was previously sentenced.

This section refers solely to those cases in which the
defendant is already in the gaol of the Territorial Division
for which the magistrate acts. Should the defendant be
imprisoned, however, in another Division, on another con-
viction, this section does not apply, and on his liberation
therefrom he should be arrested on the commitment indorsed
as before mentioned (ante p. 217), and committed to the
custody of the gaoler of the Division within which the con-
viction or order was made.

Where a Justice convicts a defendant on the same day of
two or more offences, the conviction and commitment in on e

SUMMARY CONVICTIONS.

219

of the cases should adjudge and order the imprisonment to
commence at the expiration of the imprisonment adjudged
and ordered in the other case. (Form of conviction
from Oke, suitable to such a case, will be found in the
Appendix to this Act No. 25.) See 11. vs. Wilkes, 4 Burr.
2577 ; Wilkes vs. Rex (in error), 4 Bro. P. C. 367 ;
Oke's Mag. Syn. 147 and note (39); Reg. vs. Cutbush, 2 L.
R. Q. B. 379.)

If information he dismissed, costs may he recovered h;j
distress on j)ros€Cutor.

64. When any information or complaint is dis-
missed with costs, the sum awarded foi; costs in
the Order for Dismissal may be levied by distress
[ Q 1 ] on the goods and chattels of the Prosecutor
or Complainant in the manner aforesaid ; and in
default of distress or payment, the Prosecutor or
Complainant may be committed [ Q 2 ] to the
common gaol or other prison, in manner afore-
said, for any time not exceeding one month,
unless such sum, and all costs and charges of the
distress, and of the commitment and conveying
of the prosecutor or complainant to prison (the
amount thereof being ascertained and stated in
the commitment), be sooner paid.

Vide general observations on filling up blanks in forms of
warrants of distress and commitment, ante pp. 21 1 -218. In
no case of dismissal in default of distress can an informant or
complainant be committed for a longer period than one month,
such imprisonment to cease on payment to the gaoler of the
sums mentioned in the commitment. -

i * ■ ''I

220

SUMMARY CONVICTIONS.

I ii;

i»

■ M

It '■

Parties aggrieved may appeal in certain cases to the
Court of General or Quarter ^S€S8ion8, <tc.

Proviso ; Appellant to give security or hail. Or deposit
such sum of money as will cover amount of judgment and
costs.

Court to determine the matter : and may order payment^
Ac.

In case conviction or order is quashed, the Court to order
repayment of dejwsit to appellant, and a memorandum to
It endorsed on the conviction or order.

65- In all cases where the sura adjudged to be
paid on any summary conviction or order exceeds
ten dollars, or the imprisonment adjudged exceeds
one month, or the conviction has taken place
before, or the order has been made by one Jus-
tice only, (unless it be otherwise provided in the
special Act under which the conriction takes
place) any person who thinks himself aggrieved
by any such conviction or order, may appeal in
the Province of Quebec or Ontario, to the next
Court of Greneral or Quarter Sessions of the
Peace, which shall be holden not less than
twelve days after the day of such con-viction
or order, for the district, county or place wherein
the cause of the complaint has arisen, or, in the
Province of Quebec, to any other Court for the
time being discharging the functions of such
Court of General or Quarter Sessions, in and for
such district, in the Province of Nova Scotia to
the next term or sitting of the Supreme Court in
the County, and in the Province of New Bruns-

SUMMARY CONVICTIONS.

221

tch

for

ins-

wick to a Judge of the Supreme Court or of the
County Court of the County where the caiise of
the information or complaint has arisen ; Pro-
vided that such person shall give to the pro-
secutor or complainant a notice in writing of
such appeal, and of the cause and matter thereof,
within four days after such conviction or order,
and eight days, at the least, before the holding of
such Court, and shall also either remain in
custody until the holding of the Court, or shall
enter into a recognizance, with two sufficient
sureties, before a Justice or Justices of the Peace,
conditioned personally to appear at the said Court
and to try such appeal, and to abide the judg-
ment of the Court thereupon, and to i)ay such
costs as shall be by the Court awarded ; or if such
api^eal is against any conviction or order whereby
only a penalty or sum of money is adjudged to be
paid, shall deposit with the Justice or Justices
convicting or making the order such a sum of
money as such Justice or Justices deem to be
sufficient to cover the sum so adjudged to be
paid, together with the costs of the conviction or
order and the costs of the appeal ; and upon such
notice being given and such recognizance being
entered into, or such deposit being made, the
Justice or Justices before whom such recogniz-
ance is entered into, or such deposit has been
made, shall liberate such person, if in custody ;
and the said Court shall hear and determine the

222

SUMMARY CONVICTIONS.

matter oi' the appeal, and shall make such order
therein, with or without costs to either party, as
to the Court seems meet ; and in case of the dis-
missal of the appeal, or the affirmance of the con-
viction or order, shall order and adjudge the
offender to be punished according to the con-
viction, or the defendant to pay the amount
adjudged by the said order and to pay such costs
as may be awarded, and shall, if necessary, issue
process for enforcing such judgement ; and in
any case where, after any such deposit has been
made as aforesaid, the conviction or order is
affirmed, the Court may order the sum thereby
adjudged to be paid, together with the costs of
the conviction or order and the cost of the
appeal, to be paid out of the money deposited,
and the residue thereof, if any, to be repaid to the
defendant ; and in any case where, after any
such deposit, the conviction or order is quashed,
the Court shall order the money deposited to be
repaid to the defendant, and in every case where
any conviction or order is quashed on appeal as
aforesaid, the Clerk of the Peace or other proper
officer shall forthwith endorse on the conviction
or order a memorandum that the same has been
quashed ; and whenever any copy or certificate
of such conviction or order is made, a copy of
such memorandum shall be added thereto, and
shall be sufficient evidence that the conviction or
order has been quashed in every case where such

hUMMARY CONVICTIONS.

22a

copy or certificate would be sufficient evidence of
such conviction or order.

This section applies to all convictions and orders founded
upon statutes which do not give an appeal either to the
Prosecutor or to the defendant. It does not apply to any
conviction or order founded upon a statute by which the
rii^ht of appeal from such conviction or order is denied. It

28 not apply to any conviction or order founded upon a
statute by which special provisions, differing from those in
the present section contained, have been or may be made
regulating appeals from convictions or orders made under it.

In all cases where by the statute on which is based the
conviction or order no provision has been made for an appeal
therefrom, an appeal may be taken under this section in any
one of the following cases :

1. ^V^lere the sum adjudged to be paid exceeds ten dollars.

2. Where the imprisonment exceeds one month.

3. Where the conviction has taken place before, or the
'er has been made by one Justice only.

^um adjudged. — The different sums specific Hy adjudged
to be paid by the conviction or order can alone oe taken into
consideration in forming the amount of ten dollars, thus the
probable costs of the distress, of the commitment and con-
veying to gaol cannot be looked upon as forming portions of
the said sum, and it is very questionable whether even the
costs specified in the conviction form a portion of the ten
dollars (Reg. vs. J. J. Warwicksh. G E. & B. 837).

Imjivisoninent adjudged. — No difficulty can be experienced
in this case, the term or terms of imprisonment in the con-
viction specified exceeding one month, an appeal lies.

(Jonvlction hefore one Justice only. — Where the defendant
is convicted before a Judge of Sessions of the Peace,

224

SUMMARY CONVICTIONS.

Recorder, Police Magistrate, District Magistrate, or Stipea-
iliary Magistrate, appointed for any District, County, City,
Borough, Town, or place, and sitting at a Police Court or
other place appointed in that behalf, and the sum adjudged
to be paid does not exceed ten dollars, or the imprisonment
adjudged does not exceed one month, there is no appeal, for
those officials have full power to do alone what can by this
Act be done by two or more Justices, and as such a convic-
tion before two Justices is not appealable it necessarily
follows that a conviction before a Judge of Sessions for
instance is not a conviction before one Justice of the Peace.
{Vide s. 91, post).

Court of Appeal. — Ontario and Quebec. In Ontario the
appeal lies to the next Court of General or Quarter Sessions
of the Peace, held for the District, County or place wherein
the cause of complaint has arisen, not less than twelve days
after the day on which the conviction or order appealed from
is made.

In Quebec, in the Districts wherein Courts of General or
Quarter Sessions are held, the appeal lies to them generally
as in Ontario ; but in those districts wherein no such Courts
of General and Quarter Sessions are in existence the appeal
lies at present to the next term of the Court of Queen's
Bench, Crown side, held in the District within which the
cause of complaint arose, not less than twelve days after the
day on which the order or conviction is made.

Nova Scotia. — The appeal lies to the next term of the
Supreme Court in the County where the cause of the infor-
mation or complaint has arisen.

New Brunswick. — The Appeal lies to a Judge of the
Supreme Court, or of the County Court of the County
wherein the cause of information or complaint has arison.

!i m

SUMMARY CONVICTIONS.

225

Jourts
ippeal

leen's
Ih the

3r the

k the
linfor-

)f the
lounty
lea.

Notice — delay to give service. — The notice of Appeal
should be in the form (No. 49) in the Appendix to this Act,
and should be signed by the party appealing or his Attorney.
It should be served upon the prosecutor or complainant or
the person in whose favor the ordei for costs has been gi^'en,
in the same manner as a summons ; the notice itself being
in duplicate or triplicate, as the case may require, if more
than one person be respondent. It should be so served
within four days after the verbal conviction or order has
been made, and not from the time the formal order or con-
viction is drawn up and signed (Exparte Johnson, 3 B. & S.
9-47,) and eight days at least before the holding of the Court
appealed to, and in this lattor delay neither the day of giving
the notice nor the day of holding the Sessions can be com-
puted (R. vs. JJ. Herefordsh. 3 B. & Aid, 581.) If the last
of the four days limited for notice fall on a Sunday, notice
given on the Monday following is too late, it should be given
on the Saturday preceding (R. vs. JJ. Middlesex, 2 Dowl.
N. S. 719). Where there are several appellants they may
cither join in one notice, or each of them may give a separate
notice. (R. vs. JJ. Oxfordsh. 4 Q. B. 177; Withnall vs.
Gartham, 6 T. R. 398.)

Remaining in custody — recognizance — t?t^wst7.— The
person so appealing, it is provided by the present section,
shall not only give notice of appeal, but shall also remain in
custody until the holding of the Court appealed to, or give
a recognizance with two sufficient sureties ^before a Justice
or Justices of ♦he Peace, conditioned personally to appear at
the said Court 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 ; but if the conviction or
order be one whereby only a penalty or sum of money is

226

SUMMARY CONVICTIONS.

adjudged to be paid, the person so appealing may, in lieu of
remaining in custody, or giving a recognizance, deposit in the
hands of the Justice or Justices convicting^or making the
order such sum of money as to them shall seem requisite to
cover the sum so adjudged to be paid, with the costs of
conviction or order, and the costs of the appeal.

If therefore the party aggrieved by the conviction or order
gives notice of his intention to appeal, and at the same time
notifies his option of remaining in custody until the holding
of the Court to which he has appealed, the question arises
as to how the Justice convicting should act. It becomes
necessary therefore to inquire whether the notice of appeal
and the remaining in custody suspend the execution of the
conviction or order until the appeal be determined, or
whether the remaining in custody is to be looked upon as
part of the punishment inflicted by the conviction and suffered
thereunder.

Effect of A2>pcal at Common Laic. — At Common Law
an appeal is no stay of execution, without a special order for
that purpose. A writ of error, even when allowed and
returnable, is no supersedeas of execution in criminal cases
where there has been sentence and imprisonment. If the
party convicted was in prison under his sentence when the
writ of error was sued out, he continued in prison pending the
writ of error, and if he was not, he might still be taken and
imprisoned pending the writ of error {Vide Kendall vs.,
Wilkinson, 4 E & B. G80 , Hope vs. Hope, 23 L. J. (N. S.)
Chanc. 682 ; King vs. Brooke, 2 T. 11. 196). There can
be no doubt that where the notice of appeal and the recog-
nizance are duly given, execution is suspended, for the Justice,
in the section now under consideration, is directed to liberate
the Appellant if in cu.stody in such case, and the same effect

«H^jj

SUMMARY CONVICTIONS.

227

is given to the making of the deposit after notice of appeal ;
but the section is singularly barren of any provision to meet
the circumstances when the would be Appellant elects to
remain in custody in lieu of giving a recognizance or making
a deposit. There is in fact no provision as to the suspension
of execution in such case, and taking for instance a convic-
tion by which a defendant is oondemn3d in a penalty of
fifteen dollars, and in default of suflScient distress is ordered
to be imprisoned siix weeks, the Court to which he appeals
does not sit for ten weeks, is he to remain in prison until the
Court so sits a space of ten weeks, in order to enable him
to reverse a conviction or order condemning him to six weeks
incarceration ? and if he fails in his appeal is he to be
imprisoned for another term of six weeks under the convic-
tion ? Or is his detainer in custody to be considered as in
execution of the conviction or order ? and is he to be dis-
charged at the expiration of the six weeks, and not detained
in custody until the Court to which he has appealed sits ?
What should the Justice of the Peace do in the event of the
Appellant declaring his option to remain in custody, at the
same time asserting that his chattels are sufl&cient to satisfy
the conviction, without injury to himself or his family ?

It would be far better were some amendments made by
which, on .service of notice of appeal, and a signification to
the convicting Justice of the Appellant's willingness that the
conviction or order should be executed, that the Appellant
might have his appeal, and the conviction be executed
according to its tenor and efiect. provision being made in the
event of the amount of penalty and costs being levied under
the distress for its being returned to the Appellant in the
event of his succeeding on his appeal.

The recognizance should be in' the form (No. 50) in the
Appendix to this Act, and can be received by any Justice.

228

SU3IMARY CONVICTIONS.

Where only a penalty or sum of money and costs arc
adjudged to be paid, as already mentioned, the Appellant
may deposit with the Justice such sum of money as the
Justice shall deem mfficient to cover the sums adjudged by
the conviction or order and the costs of appeal. This deposit
can only be received by the Justice or Justices convicting,
and on his or their refusal to fix or receive the deposit, it is
submitted that a Mandamus could issue to force them to per-
form their said duties ; care should also be taken that the
sum fixed for the deposit be not exorbitant.

The order for liberation of the Appellant from custody, on
his complying with the conditions of notice, and recognizance
or deposit should be served on the gaoler.

Hearing and determining Appeal. — Under s. 72, post
p. 236, every Justice of the Peace, before whom any person
.shall be summarily convictod of any offence by virtue of this
Act, shall transmit the conviction to the proper Court or
Judge in Appeal before the time when an appeal from such
conviction could be heard, there to be kept by the proper
officer among the records of the Court ; but, strange to say,
there is no similar provision with respect to orders. There
can be no doubt, however, that the intention of the Legisla-
ture was to assimilate the proceedings on convictions and
orders, as both by the Imp. Act, c. 43, s. 14, and the old
Canadian Act, C. S. C. c. 153, s. 42, it is provided that
all convictions and orders shall be " lodged with the Clerk of
" the Peace, to be by him fyled among the Records of the
" General or Quarter Sessions of the Peace." The Justice,
therefore, should follow the same course of proceeding in the
matter of orders as in that of convictions.

On the hearing of appeals, the first step after the appeal is
called on is, that the Appellant should prove his notice, unless

« i-ri

r!i!

SUMMARY CONVICTIONS.

229

[at
lot'
ihe

3C,

the
is

it be admitted. As soon as the notice of appeal has been
proved or admitted the Clerk of the Court proceeds to read
the conviction which has been returned by the convicting
Justices. If any objections arise on the face of the convic-
tion, the Appellant usually begins ; and if he does so he is
bound to state all his objections thereto at once, in order
that they may be met on the other side. No objection can
be made in appeal, unless it has been taken before the Justice,
and no variance can be taken advantage of unless it be shewn
that the Justice refused to adjourn the hearing, the person
summoned having been deceived or misled thereby {Vide s.
G7, post p. 231). But it is also provided that in all cases
of Appeal, the Court or Judge to which the Appeal is taken
shall hear and determine the original charge or complaint on
its merits, notwithstanding any defect of form or otherwise
in such conviction or order ; and if the person charged or
complained against is found guilty, the conviction or order
shall be affirmed, and the Court shall amend the same if
necessary ( Vide s. 68, post p. 232). Though the two clauses
may be slightly contradictory, yet it may be laid down as the
governing principle in matters of appeal, that the case must
be heard on the merits, if the charge or complaint disclose
an oflFence punishable on summary conviction, or a subject
matter on which an order can be made. The observations
on«. 5 and s. 12, ante p. 154 apply to appeals. If no objections
to the conviction or order be made, cither of the parties,
Appellant or Respondent, may request that a jury be
empanelled to try the facts of the case, and thereupon the
Court must empanel such jury. There can be no challenge
in such case except for cause (Vide as to oath to jurymen,
s. G6, post p. 231). On the finding of the jury, the Court
shall give such judgment as the law requires, that is to suy if

230

SUMMARY CONVICTIONS.

the verdict be for the Appellant, the conviction should be
quashed, and if a deposit has been made, that it should be
returned to the Appellant, if on the contrary the verdict be
in favor of the Respondent, the appeal should be dismissed,
and the conviction or order be aflfirmed, the defendant should
be ordered to be punished according to the conviction, or to
pay the amount adjudged by the order, and such costs as
may be awarded ; and in the event of a deposit, it may be,
decreed that the sums ordered to be paid by the conviction
or order, together with the costs below and in appeal should be
paid out of it, and the remainder returned to the Appellant.

No special provision is made on the subject of awarding
costs to the Appellant in the event of success ; but s. 74
seems to vest in the Court a di^retion to be exercised in the
matter of costs with respect to both Appellant and Respon-
dent.

In the event of the appeal being dismissed, the Court to
which the appeal has been taken can issue its own process to
enforce its judgment by this section ; but by s. 75, provision
is made for the recovery of costs ordered to be paid by any
party who has not been bound by recognizance conditioned
to pay the same by warrant of distress, and in default of
sufficient distress the party may be imprisoned for any time
not exceeding two months.

Quashing conviction or order, entry of. — When any fton-
viction or order is quashed by the Court of Appeal, an
entry thereof should be made by the Clerk of the Peace or
other proper officer, on the back of such conviction or order,
and whenever a copy of such conviction or order be mnde, a
copy of such entry should always be added thereto, forming
sufficient evidence of the conviction or order having been
quashed.

SUMMARY CONVICTIONS.

231

Court appealed to maij empanel a Jim/ to try the case.

66. When an appeal has been lodged m due
form and in compliance with the requirements of
this Act, against any summary conviction or
decision, the Court of G-eneral or Quarter Ses-
sions of the Peace or Court appealed to, may at
the request of either appellant or respondent,
empanel a Jury to try the facts of the case, and
shall administer to such Jury the follow^ing oath :

Oath of Juror.

"You shall well and truly try the facts in
dispute in the matter of A. B., (the informant)
against C D., (the defendant), and a true verdict
give according to the evidence: So help you
God."

Judgment.

Proviso ; as to evidence.

And the Court, on the finding of the Jury, shall
give such judgment as the law requires ; and if a
Jury be not so demanded, the Court shall try and
he the absolute judges as well of the fact as of the
law in respect to such conviction or decision ; but
no witness shall in either case be examined who
was not examined before the Justice or Justices
at the hearing of the case.

Ajypeal not to he based on alleged defect in form or
substance, wdess the same was objected to before the Jus-
tice, and he refused to adjourn the case, (i'c.

67. No judgment shall be given in favor of the
appellant if the appeal is based on an objection to

232

SUMMARY CONVICTIONS.

any inlormation, complaint or summons, or to any
warrant to apprehend a defendant, issued upon
any such information, complaint or summons, for
any alleged defect therein in substance or in
form, or for any variance between such infor-
mation, complaint, summons or warrant and the
evidence adduced in supi)ort thereof at the hear-
i^ig of such information or complaint, — unless it
shall be proved before the Court hearing the
appeal that such objection was made before the
Justice or Justices of the Peace before whom the
case was tried and by whom such conviction,
judgment or decision was given — nor unless it is
proved that notwithstanding it was shewn to
such Justice or Justices of the Peace that by such
variance the person summoned and appearing or
apprehended, had been deceived or misled, such
Justice or Justices refused to adjourn the hearing
of the case to some further day, as provided by
this Act.

Decision to he given on the merits, notwithstanding defect
of form in conviction, which may he aynended.

68. In all cases of appeal from any summary
conviction or order had or made before any Jus-
tice or Justices of the Peace, the Court to which
such appeal is made shall hear and determine the
charge or complaint on which such conviction or
order has been had or made upon the merits, not-
withstanding any defect of form or otherwise in
such conviction or order ; and if the person

SUMMARY CONVICTIONS.

233

charged or complained against is found guilty
the conviction or order shall be affirmed and
the Court shall amend the same if necessary,
and any conviction or order so affirmed or
affirmed and amended shall be enforced in the
same manner as convictions or orders affirmed
in appeal.

If aiiptal is abandoned, after notice given, costs to be
recovered.

69. And for the more effectual prevention of
frivolous appeals, the Court of General or Quarter
Sessions of the Peace or other Court or Judge to
whom an appeal is made, upon proof of notice of
the appeal to such Court having been given to
the person entitled to receive the same, though
such appeal v^^as not afterwards prosecuted or
entered, may, if snch ai)peal has not been aban-
daned according to law, at the same Court for
which such notice was given, order to the party
or parties receiving the same such costs and
charges as by the said Court or Judge may be
thought reasonable and just, to be paid by the
party or parties giving such notice, such costs to
be recoverable in the manner provided by this
Act for the recovery of costs upon an appeal
against an order or conviction.

Proceedings after Appeal.

70. In case an appeal against any conviction
or order be decided in favor of the Respondents,
the Justice or Justices who made the conviction

■ ifcifcirn 111

234

SUMMARY CONVICTIONS.

or order, or any other Justice of the Peace for the
same Territorial Division, may issue the warrant
of distress or commitment for execution of the
same, as if no Appeal had been brought.

No certiorari, <Cr.

71. No conviction, or order or adjudication
made in appeal therefrom, shall be quashed for
want of form, or be removed by certiorari into
any of Her Majesty's Superior Courts of record ;
and no warrant of commitment shall be held
void by reason of any defect therein, provided
it be therein alleged that the party has been con-
victed and there be a good and valid conviction
to sustain the same.

It requires no special law to authorize the writ of cer-
tiorari ; for it is a consequence of all inferior jurisdictions of
record to have their proceedings removable for the purpose
of being examined by the Court of Queen's Bench, or the
Court occupying the revisory position of that Court. In
this respect the proceeding by certiorari differs from the
right of appeal; for whereas the latter does not exist,
unless created by express provision, the other lies of course
unless expressly taken away by statute iper Holt C.J. 1 Ld.
Raym 469, Paley 403).

Such was the law before the passing of the Act now under
consideration ; but s. G6, by which the right to appeal from
summary convictions and orders is very much extended,
having enlarged the remedy open to any person considering
himself aggrieved by any such conviction or order, the
Legislature determined on abolishing as far as possible the
other remedy of certiorari.

SUMMARY CONVICTIONS.

235

This clause, however, it is submitted, does not prevent the
issuing of the writ at the suit of the prosecutor. In Eng-
land it has been held that even where a statute in express
terms declares that the proceedings shall not be removed by
certiorari, this does not prevent its issuing at the suit of the
prosecution (R. vs. Allen 15 East, 333, 341, 342; see. 2
Chit. Rep. 186). This privilege is extended to any private
person prosecuting, though he may have become nominally
the defendant in a subsequent stage of the proceedings, as if
the conviction has been quashed at the Sessions, with costs
to be paid by the prosecutor, and he afterwards seeks to
quash the order of Sessions (R. vs. Farewell, 1 East 305;
R. vs. Berkeley, 1 Ken. 70; R. vs. Rodenham, 1 Cowp. 78;
R. vs. Boultbee, 4 A. & E. 498 ; Paley 409, 410). Where
there is a want or excess of jurisdiction, the present section
will not have the eiFect of taking away the certiorari.
(R. vs. The Sheffield Railway Co., 11 A.kE. 194, R. vs.
Rose, 1 Jur. (N. S.) 802 ; R. vs. Boultbee, 4 A. & E.
498; Paley 410, note (o). Such want or excess of juris-
diction may be shewn by affidavit, although the convic-
tion may be good in facie [R. vs. Bolton 1 Q. B. QO, Re
Bailey ct al., 3 E. & B. 607), or where the Court has been
illegally constituted (R. vs. Cheltenham Commissioners, 1
Q. B. 467), or the conviction has been obtained by fraud.
(R. vs. Gillyard, 12 Q. B., 527 ; Parry vs. Newman, 15 M.
&W. 653; Paley 410.)

(Cojnmitnicnt).

Justice convicting to retnyn the conviction. And the
deposit money, if any. Certificate of conviction.

72. Every Justice of the Peace before whom
any person shall be summarily convicted of any
offence by virtue of this Act, shall transmit the

236

SUMMARY CONVICTIONS.

conviction to the Court of General or Quarter
Sessions or to the Court discharging the functions
of the Court of Greneral or Quarter Sessions as
aforesaid, or to any other Court or Judge to
which the right to appeal is given by section
sixty-hve of this Act, as the case may be, in and
for the District, County or place whereni the
offence has been committed, before the time
when an appeal from such conviction could be
heard, there to be kept by the proper officer
among the records of the Court ; and if such
conviction has been appealed against, and a
dei)osit of money made, shall return the deposit
into the said Court ; and upon any indictment or
information against any i:>erson for a subsequent
offence, a copy of such conviction, certified by the
projier officer of the Court, or proved to be a true
copy, shall be sufficient evidence to prove a con-
viction for the former offence, and the conviction
shall be i>resumed to have been unappealed
against, until the contrary be shown.

Vide s. 65, ante p. 228.

Effect of conviction if no appeal.

73. In all cases where it appears by the con-
viction, that the defendant has api)eared and
l^leaded, and the merits have been tried, and
that the defendant has not api:)ealed against the
conviction where an appeal is allowed, or if
appealed agamst, the conviction has been affirmed,
such conviction shall not afterwards be set aside,

SUMMARY CONVICTIONS.

237

or vacated in consequence of any detect of form
whatever, but the construction shall be such a
fair and liberal construction as will be agreeable
to the justice of the case.

To whom rosfs to he pai/tihlp,

74. If upon any Appeal the Court trying the
Appeal orders either party to pay costs, the order
shall direct the costs to be paid to the Clerk of the
Peace or other proper officers of the Court, to be
by him paid over to the party entitled to the
same, and shall state within what time the costs
shall be paid.

Vide s. G5, ante p. 230.

This clause should have required the costs in all cases to
be paid to the Clerk of tlie Court, or of the Judge sitting in
Appeal, and should also state within what time the costs in
all cases should be paid. It is requisite, under this clause?
that the order to pay costs within a certain specified time to the
proper officer sliould be incorporated in the order dismissing
th2 appeal, or quashing the conviction.

75. If the same be not paid within the time so
limited, and the party ordered to pay the same
has not been bound by any recognizance condi-
tioned to pay such costs, the Clerk of the Peace or
his Deputy, on application of the party entitled to
the costs, or of any person on his behalf and on
pavmeiit of any fee to which he may be entitled,

ant to the party so applying, a Certificate

I the costs have not been paid, and upon

odivotion of the Certificate to any Justice or

238

SMMMARY CONVICTIONS.

J'ustices of the Peace for the same Territorial
Division, he or they may enforce the payment of
the costs by "Warrant of Distress [S 1] in manner
aforesaid, and in default of distress he or they may
commit [S 2] the party against whom the warrant
has issued in manner hereinbefore mentioned, for
any time not exceeding two months, unless the
amount of the costs and all costs and charges of
the distress and also the costs of the commitment
and conveying of the party to prison, if the Justice
or Justices think fit so to order (the amount
thereof being ascertained and stated in the com-
mitment), be sooner paid.

Vide ante, s. 65, p. 230.

76. Every Justice of the Peace, shall make a
return in writing under his hand of all convictions
made by him to the next ensuing General or
Quarter Sessions of the Peace, or to the next term
or sitting of any Court having jurisdiction in
appeal as hereinbefore provided, at which, in
either case, the appeal can be heard, for the
District or County or place in w^hich such convic-
tion takes place, and of the receipt and application
' by him of the moneys received from the Defend-
ants (and in the case of any convictions before
two or more Justices, such Justices, being present
and joining therein, shall make a joint Return
thereof,) in the following form : —

8UMMART CONVICTIONS.

239

Return of Convictions made by me {or us, as the
case may be) in the month of

O .

s ^
S5

^
u

■♦J

■•i^

■^

ti G

a S

r-TS

iz;

c
o

o ce
o a

"2 ^

^ -5

If not paiJ, why not, and
general observation!* if
any.

A. B., Convicting Justice,
or

A. B. and C. D., Convicting Justices, (an the case
may he.)

Return of subsequent receipts, d'c.

77. And any Justice or Justices to whom any
such moneys may be afterwards paid, shall make
a Return of the receipts and application thereof,
to the next General or Quarter Sessions of the
Peace, or other Court as aforesaid, which return
shall be filed by the Clerk of the Peace, with the
records of his office.

^xO

SUMMARY CONVICTIONS.

Penalty on Justices of the Peace neglecting to comply
icith the provisions of this Act as to returns, &c.

78. In case the Justice or Justices, before whom
any such conviction takes place or who receives
any such moneys, neglect or refuse to make such
return thereof, or in case any such Justice or
Justices wilfully make a false, partial or incorrect
return, or wilfully receive a larger amount of fees
than by law they arc authorized to receive, such
Justice or Justices, so neglecting, or refusing, or
wilfully making such false, partial or incorrect
return, or wilfully receiving a larger amount of
fees as aforesaid, shall forfeit and pay the sum of
eighty dollars, together with full costs of suit, to
be recovered by any person suing for the same by
action of debt or information in any Court of
Record in the Province in which such Return
ought to have been or is made, one moiety whereof
shall be paid to the party suing, and the other
moiety into the hands of Her Majesty's Receiver
General to and for the public uses of the Dominion.

Actions for such penalties limited to six months after
cause.

79. All prosecutions for penalties arising under
the provisions of the next preceding section shall
be commenced within six months next after the
cause of action accrues, and the same shall be tried
in the District, County or place wherein such
penalties have been incurred, and if a verdict or
judgment passes for the Defendant, or the Plaintiff

BUM MART CONVICTIONS.

24t

becomes non-suit, or discontinues the action after
issue joined, or if upon demurrer, or otherwise,
judgment be given against the Plaintiflf, the De-
fendant shall recover his full costs of suit, a&
between Attorney and Client, and shall have the
like remedy for the same, as any Defendant hath*
by law in other cases.

Clerk of the Peace, due, to puhliih and post up the
returns so made.

80. The Clerk of the Peace of the District or
County in vrhich any such returns are made or
the proper officer, other than Clerk of the Peace
to whom such returns are made shall, within
seven days after the adjournment of the next
ensuing G-eneral or Quarter Sessions, or of the
term or sitting of r.uch other Court, as aforesaid,
cause the said returns to be published in one
public newspaper, in the District or County, or
if there be no such newspaper, then in a news-
paper of an adjoining District or County, and
shall also fix up in the Court House of the District
or County and also in a conspicuous place, in the
Office of such Clerk of the Peace, for public
inspection, a Schedule of the returns so made by
such Justices ; and the same shall continue to be
so fixed up, and exhibited until the end of the
next ensuing General or Quarter Sessions of the
Peace or of the term or sitting of such other
Court as aforesaid, and for every Schedule so
made and exhibited by the said Clerk of the>

242

SUMMARY CONVICTIONS.

Peace, he shall be allowed the expense of public-
ation, and such fee as may be fixed by competent
authority.

Copy of returns to be sent to Minister of Finance.

81- The Clerk of the Peace or other officer
as last aforesaid of each District or County,
within twenty days after the end of each General
or Quarter Sessions of the Peace, or the sitting of
such Court as aforesaid, shall transmit to the
Minister of Finance a true copy of all such
returns made within his District or County.

Not to prevent prosecution of a Justice in default.

82. Nothing in the six next preceding sections
shall have the effect of preventing any person
aggrieved, from j^rosecuting by indictment, a
Justice of the Peace, for any offence, the com-
mission of which would subject him to indictment
at the time of the coming into force of this Act

If the misconduct of magistrates, besides being productive
of private injury, be such as to call for punishment on public
grounds, as where it proceeds not from error, bnt from
private interest or resentment, the Court of Queen's Beach
or the Court in the Province occupying the position in
criminal matters of the Court of Queen's Bench in England,
will direct an information to be filed by the officer of the
Court, upon a proper application, supported by affidavits ;
but an information is never granted for an irregularity aris-
ing merely from ignorance or mistake (R. vs. Cozens, Doug.
426; R. vs. Fielding, 2 Burr, 720; R. \ Allington, 1 Str.
678; R. vs. Badger, 4 Q. B. 468; R. vs. Lovet, 7 T. R.
152; Paley 482, 483).

SUMMARY CONVICTIONS.

243

An indictment will lie in all cases in which a criminal
information may be granted. So in the case of R. vs. Borron,
3 B. & Aid, 434, which was an application for an informa-
tion against a magistrate and refu.sed, Abbott, C. J. in
delivering the judgment of the Court said, '• They (the
Justices) are, indeed, like every subject of this kingdom,
answerable to the law for the faithful and upright discharge
of their trust and duties. But whenever they have been
challenged upon this head, either by way of indictment or
application to this Court for a criminal information, the
question has always been, not whether the Act done might,
upon full and mature investigation, be found strictly right,
but from what motive it had proceeded ; whether from a
dishonest, oppressive or corrupt motive, under which descrip-
tion fear and favor may generally be included, or from
mistake or error. In the former case alone, they have
become the objects of punishment. To punish as a criminal
any person who, in the gratuitous exercise of a public trust,
may have fallen into error or mistake, belongs only to the
despotic ruler of an enslaved people, and is wholly abhorrent
from the jurisprudence of this kingdom."

In cases, however, where the public safety is at stake, a
magistrate is punishable for gross neglect in the performance
of his duties (R. vs. Pinney, 3 B. & Ad. 1)47 ; Paley 484).

In case of tender or payment of the amount of distress.

83- In all cases where a warrant of Distress
has issued against any person, and such person
pays or tenders to the Constable having the
execution of the same, the sum or sums in the
w^arrant mentioned, together with the amount oi
the expenses of the distress up to the time of

244

SUMMARY CONVICTIONS.

payment or tender, the Constable shall cease to
execute the same.
Vide, ante p. 214.

Payment may he made to the keeper of the prison.

84. In all cases in which any person is im-
prisoned for non-payment of any penalty or other
sum, he may pay or cause to be paid to the keeper
of the prison in which he is imprisoned, the sum
in the warrant of Commitment mentioned, toget-
her with the amount of the costs, charges and
expenses (if any) therein also mentioned, and the
keeper shall receive the same, and shall thereupon
discharge the person, if he be in his custody for
nq other matter.

In what case one Justice may act.

85* In all cases of summary procedings before
a Justice or Justices of the Peace out of Sessions,
upon any information or complaint, one Justice
may receive the information or complaint, and
grant a summons or warrant thereon, and issue
his summons or warrant to compel the attendance
of any witnesses for either party, and do all other
acts and matters necessary, preliminary to the

hearing, even in cases where by the statute in
that behalf the information or complaint must be
heard and determined by two or more Justices.

After hearing, &c.

86. After a case has been heard and determined,
one Justice may issue all warrants of distress or
commitment thereon.

SUMMARY CONVICTIONS.

245

in
be

led,
or

Proceedings after judgment.

87. It shall not be necessary that the Justice
who acts before or after the hearing, be the Justice
or one of the Justices by whom the case is or was
heard and determined.

In cast two Justices arc required.

88. In all cases where by any Act or Law it is
required that an information or complaint shall
be heard and determined by two or more Justices,
or that a conviction or order shall be made by
two or more Justices, such Justices must be
present and acting together during the whole of
the hearing and determination of the case.

Amount to be paid to party aggrieved limited.

89. When several persons join in the commission
of the same offence and upon conviction thereof,
each is adjudged to forfeit a sum equivalent to
the value of the property, or to* the amount of the ,
injury done, no further sum shall be paid to the
party aggrieved than the amount forfeited by one
of such oflfenders only, and the corresponding
sum, forfeited by the other offender, shall be
applied in the same manner as other penalties
imposed by a Justice or J ustices of the Peace are
directed to be applied.

Vide ant. p. 193-197, as to joint oflfence.

Party aggrieved and certain others m>ay he witnesses.

90. The evidence of the party aggrieved and
ako the evidence of any inhabitant of the District,
County or place in which any offence has been

246

SUMMARY CONVICTIONS.

committed, shall be admitted in proof of the
offence notwithstanding that any forfeiture or
penalty incured by the offence, may be payable to
any public fund of such District, County or place.

Certain magistrates to have the powers of two Justices.

91. Any one Judge of Sessions of the Pegfbe,
Recorder, Police Magistrate, District Magistrate,
or Stipendiary Magistrate, appointed for any
District, County, City, Borough, Town, or Place
and sitting at a Police Court or other place
appointed in that behalf, shall have full power to
do alone whatever is authorized by this Act to be
done by two or more Justices of the Peace ; and
the several forms hereinafter contained may be
varied so far as it may be necessary to render
them applicable to Police Courts, or to the Court
or other place of sitting of such functionary as
aforesaid.

Power to preserve order, dx.

92. Any Judge of Sessi(»ns of the Peace, Police
Magistrate, District Magistrate or Stipendiary
Magistrate, sitting at any Police Court or other
place appointed in that behalf, shall have such and
like powers and authority to preserve order in the
said Courts during the holding thereof, and by the
like w5ys and means as now by law are or may
be exercised and used in like cases and for the
like purposes by any Courts of Law in Canada,
or by the Judges thereof respectively, during the
fittings thereof.

SUMMARY CONVICTIONS.

247

The question of contempt of Court is one on which a very
great difference of opinion exists on the bench and at the bar.
The oflficers mentioned in this clause where sitting as therein
mentioned have apparently all the powers of any of the
Superior Courts of Law in Canada, whilst the Justice of the
Peace is left with the powers of preserving order granted to
him by the Common Law.

The safe rule to follow in all cases of breach of order,
during the hearing of a case, is for the Justice to commit
in writing the offender for a contempt, but the punishment
should follow immediately on the commission of the offence
{vide R. vs. Revel, 1 Str. 420; Starkic on Slander by
Folkard, 622, 624, 636).

Where the defendant was indicted for saying to a justice
of the Peace in the execution of his offi^ce, you are a rogue
and a liar, it was held that an indictment lay (R. vs. Revel,
supra).

Power to punish resistance to process, &c.

93. Any Judge of the Sessions of the Peace,
Police Magistrate, District Magistrate, or Stipen-
diary Magistrate, in all cases where any resistance
is offered to the execution of any Summons,
"Warrant of Execution or other process issued by
him, may enforce the due execution of the same
by the means provided by the law for enforcing
the execution of the Process of other Courts in

like cases.

Interpretation of certain words.

94. The expression " Territorial Division "
whenever used in this Act, shall mean— District,
County, Union of Counties, Township, City,

248

SUMMARY CONVICTIONS.

Town, Parish or other judicial division or place
to which the context may apply ; and the words
'* District or County " shall include any territorial
or judicial division or place, in and for which
there is such Judge, Justice, Justice's Court,
officer or prison, as is mentioned in the context
and to which^the context may apply.

The same.

96. The words "Common Gaol" or *' Prison,'
whenever they occur in this Act, shall be held to
mean any place other a Penitentiary where
parties charged,with offences against the law are
usually kept and detained in custody.

Forms.

96. The several forms in the Schedule to this
Act contained, varied to suit the case, or forms to
the like effect, shall be deemed good, valid and
sufficient in law.

■Commencement of Act.

97. This Act shall commence and take effect on
the first day of January, in the year of our Lord,
one thousand eight hundred and seventy.

SCHEDULE.

(A) See 8. 1.

(I) SUMMONS TO THE DEFENDANT UPON AN INFORMATION

OR COMPLAINT.

Canada,
Province of ,

Di§trict (or County,

United Counties, or

as the case may be,)

of
To A. B., of (laborer).

Whereas information hatli this day been laid (or complaint liatii
this day been mmie) before the undersifjned, (one) of Her Majesty's
Justices of the Peace in and for the said District (or County, United
Counties, City, Town, Ac, as the ease may be] of , for

that you (here state shortly the matter of the information or complaint):
These are therefore to command you, in Her Majesty's name, to hr
and appear on , at o'clock

in the forenoon, at , before me, or such Justice or

Jtistices of the Peace for the said District (or County, United
Counties, or as the case may ie,) as may then be there, to answer to
the said information (or complaint), and to be further dealt with
according to law.

Given under (my) hand and seal, this
in the year of our Lord , at

County, or as the case may be) aforesaid.

day of ,

, in the District [or

J. s.

[L. 8.]

(2) DEPOSITION OF CONSTABLE OR OTHER PERSON OF

SERVICE OF SUMMONS (Okes Mag. For. No. 9, p. 11.)

The deposition of J. N,, constable of the Parish of C, in the said
(County), taken upon oath before me the undersigned, one of Htr
Majesty's Justices of the Peace for the said (County) of C, at N., in
the same (County), this day of 187 .

who saith, that he served A. B., mentioned in tlu! annexed (or

250

SUMMARY CONVICTIONS. — SCHEDULES.

within) smnmons, with a duplicate thereof, on the
dny (»f IttHt personally {or "by having the Rame

« with N. 0.. at the wiid A. 138 usual or last place of abode at N.,
in the county of S."

J. N.
Before me, J. S.

(B) See 6. C.
(3) WARRANT WHEN TUE SUMMONS IS DISOBEYED.

Canada,
Province of ,

District {or County,
United Counties, or
as the case may be,)
of

To all or any of the ConHtables or other Peace Officers in the
District [or County, United Counties, or as the case ma\j be) of
Whereas on last past, information was laid {or

complaint was made) before , (one) of Her Majesty's

Justices of the Peace in and for the said District [or County,
United Counties, or as the case may be,) of , for that A. B,

(&c., as in the Summons) : And whereas (I) the said Justice of the
Peace then issued (my) Summons unto the said A. B., commanding
him, in Her Majesty's name, to be and appear on , at

o'clock in the (fore) noon, at , before (me)

or such Justice or Justices of the Peace as might then be there, to
answer unto the said information (or complaint), and to be further
dealt witli according to law : And whereas the said A. B. hath
neglected to be and appear at the time and place so appointed in
and by the said Summons, although it hath now been proved to me
upon oath that the said Summons hath been duly served upon the
said A. B. : These are therefore to command you, in Her Majesty's
name, forthwith to apprehend the said A. B., and to bring him
before (me) or some one or more of Iler Majesty's Justices of the
Peace in and for the said District (or County, United Counties, or as
the case may be,) to answer to the said information {or complaint) ;
an<l to be further dealt with according to law.

Given under my hand and seal, this day of ,

in the year of our Lord at , in the District

(or County, United Counties, or as the case may be) aforesaid.

J. s.

[L. 8.]

Sl'MMARV CONVICTIONS. — SCHEDL'LE!'.

251

(4) WARRANT IN THE FIRST INSTANCE.

Canada,

Province of ,

District (or County,

United Counties, or

as the case may be,)

To all or any of the ConstabloR or other Piaco Ulhnr.x in the wiid
District (or County, United Counties, or as the case may be,)
of

VV'horoas inf(»rmation Lath this <lay been laid heforc the und<r-
sipnod, (one) of Her Maj<;Kty'K .JusticcK of the Peaee in and for the
wiid Distriet (or County, Unit<^'d Counties, or a.i the rd-v may be,)
of for that A. 15. (^here state shortly the matter of information) ;

and oath beinj; now made before rue substautiatinp the matter of
sueh information: These are therefore to commanci you, in Her
Majesty's name, forthwith to apjtrehend the said A. 15. ami to
brini; him before (me) or some one or more of Her Maiesty's
Ju.'^tioes of the Peaec in and for the said District (or County, United
C<»unti''s, or ax the cane may be,) to answer to the said information,
and to be furtlier d'-alt with accordint? to law.

Given under my Hand and Seal, this
year of onr Lord . at

ae the case may be) aforesaid.

dav of

in the

in the District (Comity, Ac,
J. S. [L. S.]

(D) See ss. 12, 22, 34, 40.

(5) WARRANT OF COMMITTAL
AN ADJOURNMENT

FOR SAFE CrSTODY DURING
OF THE IIEARINd.

Canada,
Province of ,

District lor County,
United Counties, or
as the case may be,)
of

To all or any of the Con.stables or Peace Officers in th;- District (or
County, Unitijd Counties, or as the rn^c may be) of
and to the Keeper of the Common (ilaol (or Lock-up House) at
Whereas on lust past, information was laid

[or complaint made) before , (one) of Her Majesty's

SUMMARY CONVICTIONS. — SCHEDULES.

Justices <jf th« Peace iu and for the kuuI District (or County, L'nit mI
Counties, or as the case tfai/ be) of , for that (ifc, as m

the Summons) ; And wlicrcas the liearing of the same is adjourn>'d
to the of {instant,) At o'clock in th--

(/ore) ni,r»i), at , and it is uecessary that the said A. B.

shuuld in iiy meantime be kept in safe cusUxiy : Tht-se are ther»'-
fore to command you, or any one of tlie sjxid Constables or Peu'-f
OfUcers, in Her Majesty's name, forthwith to convey the said A. 15.
to the Comnuai (iaol (or Lmk-up House,) at , and tiiere

deliver him into the c)»fit«Kly of the Keeper thereof. t(»<;ether with
this J'rerept ; And 1 hereby require you, the said Keeper, to
receive tlu; sjiid A. 15. into your custody in the wild Common (Jaol
{or Lock-up He .se) and there K;ifely keep him until the
day of , (iniit(int) when you an; her(;by re(juirt!d to

convey and have him, the said A. 15., at the time and place to
which the sjiid hearing is so adjourned as aforesaid, before such
Justices of the I'eac'e for the said District {or County, Cniti-d Coun-
ties, as the case may bo) as may then be there, t<» answer further tu
the siii(i information (<)/• c(»iuplaint(, and to bo further dealt with
acc(»rdii.;ir to law.

(liven under my hand and seal, this
in the year of our Lord , at

(or County, &c . us the casr may be) aforesjiid.

day of
, in the Distric t

J. S. [l. S.]

(E) See 8. 12, 22, 34, 46.

(6) RECOGNIZANCE KOR TUE APPEARANCE OF THE DE
FENDANT WHEN THE CASE IS ADJOURNED,
OR NOT AT ONCE PROCEEDED WITH.

Canada,

Province of ,

District (^or County,

United Counties, or

as the case may be),

Re it remem>)ered, That on , A. B. of {laborer,)

and L. M. of , (i/rocar,) and (). P. of (i/eoma'i,)

personally came and appeared before the undersi^^ned, [onc} of
Ifer Majesty's .lusiiees of the Peace in and for the said District \or
County, United Counties, or as the cann may be) oi
and severally ai'knowle<h;cd thenihelves to owe to our Soverei|u;n
Lutl} the Qu'>en tin- several sums following, that is t«» say ; the

SUMMARY CONVICTIONS — SCHEDULES. 253

/
said A. B. tlie sum of and the said L. M. and O. ?. the

pum of , eath, of good and lawful ourrent money of

Canada, to be made and h'vied of their several goods and
(battels, lan<l8 and tenements respectively, to the use of our said
Lady the Queen, Her Heirs and Successors, if he the said A. B.
shall fail in the condition endorsed (or hereunder written.).

Taken and acknowledged the day and year first above men-
tioned at before me.

' J. S. [l. S.]

The condition of the within (or the abovo) written recogniz-
ance is such that if the said A. B. shall personally appear on the
day of , (instant,) at o'clock in the (^fore)

ntKin, at , before me or such Justices of the Peace for

the said I)is<.,rict (or County, United Counties, or os the case may
he) as may chcn be there, to answer further to the information (or
<om[)luint) of C. D. exhibited agjiinst th«' said A. B, and to be
furthtT dealt with according to law, then th<' said recognizance to
be void oi* else to stand in full force and virtue.

NOTICE OF RT'CH RECOGNIZANCE TO BE GIVEN TO THE

I DEFENDANT AND HIS SURETIES.

/ Take notice that you, A. B., are bound in the sum of
iind you L. M. and o. P., in the sum of , each; that

• *you, A. B., ai>pear personally on at oclock

/ in the (fore) noon at , before me or such .Jnstic«s of the

I' E'l'uce for the District (or County, United Counties, or as the rase
fiat/ he) of as shall then be there, to answtr further to

a c(!rtain information (or compiaint) of C I), the further hearing
I <»f wliich was adjourned to tlu' said time and pliwe, and imless
.1 you appear accordingly, the recognizance entered into by you,
A. B., and by L. M. and O. P. as vour sureties, will f(»rthvvith be
levied on y(tu and them.
' I)ated tliifi (lay of , one thousand eight

hundred and .,

J. S. [L. S.]

«,)
of

(F) ^SVess. 13, 23, 35, 49. 61,

CERTIFIfATE OF NON-APrEARANCE TO RE ENDORSED ON
THE DEFENDANTS RECOGNIZANCE.

I hereby certify, that the said A. TV hath not appeared at the
time and place in the sai 1 condition mt titioned, but (hert iri hath
made default, by reason whereof the within written recognizanc*
is forfeited.

J. S. [L. S.].

254

SUMMARY CONVICTIONS — SCHEDULES.

(Gil Sees.lQ.)

{8) SUMMONS TO A WITNESS.

Canada,
Provinct' of ,

District (or County,

United Countit-B, or

at the case viay be,)

of
To E. F. of , in the said District (or County, United

Counties, or as the case may be) of

Whereas information was laid (or complaint was ma<le| before
(one) of Her Majesty's .Justices of the P«'ace in and for the
saiil District (or County, United Counti<'s, or as the case may be) of
, for that (&c.. as in the sttmmom,) and it hath been
made to appear to me upon [oath) that you are likely to f^ive
material evidence on l>fhalf of the Prosecutor (or Complainant or
Defendant, in this behalf; These are therefore to refjuire you to be
and a])pear (.>n , at o'clock in the (/ore) noon,

at before me or such Justice or .Justices of th«

Peace for the said District (or County, United Counties, or as the
case may be) as may then'be there, to ttstify what you shall know
concerning' tln' matter of the s;iid information [or complaint).

Given undtr my hand and seal, this day of

in the year of our Lord , at in the District (or

County, or as (he case may be) aforesaid.

J. S. [l. s.]

(9) DEPOSITION TUAT A PERSON IS A MATERIAL WITNESS.

(Not in Act. Okos Maji. For. No. 19, p. 14.)

The deposition of J. N., of the parish oi C, in tin; said County
(farmer), taken on oath before me the undersii^ned, one of Her
Majesty's Justices of the Peace, in and for th<' said County of C, at
N., in th' .said Tounty, this day of

187 , who Siiith that E. F., of the parish of C. aforesaid (grocer),
is likely to trive mat^'riai evidence on behalf of the prosecution, in
this 1»> haP touchiriLT the mnttrv »t the ann<>xed \or '' within")
information (or comphiint' ; :.ud tluit this de[)on<nt verily believes
that the said E. F. will not appe.ir volunUirily for the purpose of
beinir )'xamiii< <l as .i -utn' ss (<>;• tf' a warrant be yranled in the first
inatauce, without being conip H.-d so to do|.

J. N.
Before me, .1. vS.

SUMMARY CONVICTIONS. — SCHEDLT.ES.

255

lvt'8

IftVif

(10) DEPOSITION OF CONSTABLE OR OTHER PERSON OF
SERVICE OF SfltMONS (NOT IN ACT).

Oke's For. p. 15 No. 21.

( Procerd as in form, Xo. 2, ante. p. 249. addinfj at thf conclusion ;
I' and at the saiUvi timt' t<'nden-d {or paid) to the Kai<l A. B. the
isum of , for hig costb and exi)cnse8 in that behalf.)'

G2 Sees. 11.

(11)

WARRANT WHERE A WITNESS HAS NOT OBEYED
A SIMMONS.

Canada,
Province of

District (or C'ltiinty,
Cnitt'd CoiintifK, or
a^ the case may be.)
of

To all or any of the CoiiHtaM^-s and othor Peaoe oflu frs in the
said District or Couutv, United Counties, or as the case may be)
of

Whereas information was laid (or complaint was made) before
(orf) of Ih-r Majesty's Ju«tif»'8 of the Peace, in and for the
8aid District (or County. United Counties, or as the case m.j// he)
of for that (&c., as in the Summons) urA it having been ina<le

to api)ear to (me) upon oath, that K. V .. of iu the

Bai(i District {or County, Unit*.-<1 Countien. or as the case viay be,
(laborer) was likely to give niat^Tial evidence on behalf of the
(prosecutor or a^ the case may hf) (I) did duly issiw' (my) Stinimons
to the said E. F., rciinirin? him to be and appear on ,

at o'clock in the fore n<Kjn of the same day. at

, before me or such .Justice or .Justices ot tlu; Peace for
the said District (or County, Unit»'d Countii-s, or as the case may
be) as mijifht then be there, to testify what he should know ron-
cernin'' tlie said A. P.. or th*' raatt«'r «>f thi- said information (or
complaint:) And when'as j)roof hath this day been mad'- before
me, upon oath, of such Summons havini; been duly si-rveii upon
the said K. F. ; And whereas the said E. F. hath n< fleeted to
appear at the time and place appointed by thi- said Summons,
and no just cx( use has bei-n ofl'T.-fl for sui h n<'gb'ct ; Tliesi; are
therefore to command you Ut take th'- said E. F.. and to bring
atul have him on , at o'clock in thf

n<jon, at before me or such Justice or .Justices of the

256

SUMMAl.Y CONVICTIONS. — SCHEDULES.

Peace for tl)C District {or County, United CountioB, or as the ca»e
may be) as may then be there to testify what he shall know con-
cerninf? the said information (or complaint).

Given under my hand and seal, this day of

in the year of our Lord , at in the District {or

County, or as tite cate may be) aforesaid.

J. S. [l. S.]

(G 3) .S'ces. 18.

(12) WARRANT FOR A WITNESS IN THE FIRST INSTANCl.

Canada,
Province of ,

District (or County,
United Counties, or
a$ (he cate may be,)
of

'I'o fill or any of the ConRtnbloK, or other Peace ofticers in the said
Dibtrict [or County, United Counties, or us (he case may be)
of

Whereas information was luid (or complaint was made) before
the undersigned (oup) of Her Majesty's Justices of the Peace in
and for the said District (or County, United CouutieK. or as ihe
case may be) of , for that (Ac, as in the Summons,) and it

being made to appear before me upon oath, that E. F., of

(laborer,) is lik'ly to give material evidence on behalf of
the (prosecutor, or as the case may he) in this matter, and it is
probable that the said E. F., wilJ not attend to givy evidence
without b(!ing compelled so to do ; These are thereiforp to com-
mand you to bring and have the said K. F., on ,
at o'clock in the (fore) noon, at , before
me or such other Justice or Justices of tiie Peace, for the District
(or County, United Counties, or as the case may be) us may then
be there, to testify what he shail know concerning the matter of
the said information (or complaint).

Ciiv'en nnder (m.v) hand and seal, this <lay of ,

in the year of (nn Lord , at , in the District

(or County, or as ihe case vuiy be.) aforesnid.

J. S. fb. e.]

SUMMAHY CONVICTIONS — SCHEDULES.

257

Jore

\\vi

it'n

ict

iG4) Scca.VJ.

(13) C0MMIT31ENT OP A WITNESS FOR REFUSINU TO BE
SWORN OR (ilVE EVIDENCE.

Canada,

I'rovinci! of ,

District (or Couuty,
I'nited Counties, or
a$ ihe case may be,

To iiJl or any ot the ConstultJt'S or other Piace (>fti(cris in the
said District (or County, Tnitcd Counties, or as the case mat/ be)
of ana to the Kfcper of the Common (Jaoi of tlie said

district (or County. United Comities, or (M the case may be)
at

Whereas inlormation was laid (or complaint was made) before
(me) {out) of Her Majesty's Justices of tlie Peace, in and

for tile said District (or County, United Counties, ur aa the case
may he) of for that (^c, as in the Summons^) and one E. F.,

!iow appearing ])efore me such Justice as aforesaid, on , at

, and beiiig retpiired i»y me to make oath (wr atitirmation) an
a witness in that behalf, hath now refused so to do, (or being
now here duly sworn as a witness in the matter of the said
information c- complaint) doth refuse to answer a certain (jues-
tion concerning th«; premises which is now here i)Ut to him, and
more particularly the following (juestion (here insert the exact
irorih of the question), withotit offering any jtist excuse for such
ids refusal : These are therefore to command you, or any one of
the said Confital)les or Peace otlicers to take the said E. F., and
him saf(dy to convey to the Common (raol at
aforesaid, and thor« «leliver him to the said keeper thereof,
totrether with this precept; and I do hereby command you the
►<aid Keeper of tlie said Common Gaol, to receive the said E. F,,
into your custody in the said Common CJaol and there imprison
him for such his contempt for the space of tlays,

unless he shall in the meantime consent to be examine<l and to
answer concerning the premises, and for so doing, this shall be
your KUtticient warrant.

Given under my han<l and seal, this
in the year of our Lord. , at

County, or r.s the rase may b&) aforesaid.

»lay of
in the District (or

J. 8.

[L.8.]

t--^

253

SUMMARY CONVICTIONS. — SCHEDULES.

(H) See a. 33.

(U)

WARRANT TO REMAND A DEFENDANT WHEN
APPREHENDED.

Canada,
Province of ,

District lor County,
United Counties, or
at the cote may be,)
Of

To all or any of the ConstaMeis, or otlicr Peace oiU'crs in the said
District {or County, United Counties, or as the case viiy be)
of , and to the Keeper of the Conanon Gaol (or

Lock-up House) at

Whereas information was laid (or complaint was made) l)ef<>rc

(one) of Her Majesty's Justices of the Peae^
in and for tlie District [or County, United Counties, or as the case
may be) of , for that [^'c, as in the summons

or warrant) ; And whereas the said A. B. hath been apprelieuded
under and by virtue of a warrant, upon such information lor com-
plaint) and is now brought before me as such Justice as aforesaid :
These arc therefore to command you, or any one of the said Con-
stables, or Peace officers, in Her Majesty's name, forthwitli to
convey the said A. B. to the Common Gaol {or Lock-up House) at
, and there to deliver him to the said Keeper thereof,
together with tliis Precept ; And I do hereby command you the
said Keeper to receive the said A. B. into your custody in tiie said
Common Gaol (or Lock-up House,) and there safely keep him
until next, the day of (instant), when

you are hereby commanded to convey and have him at
at o'clock in the noon of the same day

befor« mo, or such Justice or Justices of the Peace of the said
District (or County, United Counties, or as the case may be) as may
then be there, to answer to the said information (or complaint,)
.and to be further dealt with accordin<' to law.

Given under my hand and seal, this
in the year of our Lord, . at

County, as the case may be) aforesaid.

day of ,

. in the district (or

J. s.

(L. S.)

SUMMARY CONVICTIONS. — SCHEDULES.

239

(15) MINUTES OF PROCEEDINGS AT THE IIEARIN(>

WITH ADJUDICATION (Not in Act. Okos Maix. For.

No. 13, p. 18.)

C. D. a;;ainst A. B.

4th day of 187 , at N

Befon- .J. T. B., clerk, nnd .J. D. Esq.. .J. I'..
Th'' Di'tViiflant appi-ari'il on a (warrant) ;rraiit«'(J liy V. D. M.,
Esiiuire, J. 1'., (.haririiitr liirn with assaulting and bi.'ating at L.,
on the in.stant. one C. D.

Defendant, on hcini,' asked what hr lias to say, jdeads ijiiilty or
not guilty as the case may he or '■ complainant being sworn, say.-*,
or E. F., of , laborer, being sworn, say«,

or "complainant does not appear, and defendant attends with his
witnesses."

Adjudications.] I. On dismissal. — Dismissed with costs, viz :
Fees for summonses to two wiHiesses, 4s. ; two witnesses'
attendanc*', 5s. — 9s. to be paid (J'orthwit/i) or levied by distress,
or in default imprisonment for fourteen days, unless costs ot
distress and conveying to pri.son be paid.

2. Where imprisonment only. Convicted: To be imprisoned
M'ith hard laVK)ur or not as the case mui/ be. for two calendar months.
Costs, 14s. Gd., .to be paid forthwith, levied by distress, and in
default imprisonment for fourteen days additional, and to pay
costs of commitment and conveyance to prison, 18s. Gd.

3. Where a penalty. Convicted: To pay penalty, 5s., damage
(or " value") Is. and costs, 148. (Clerk's fees, 10s. fjd.. Constable,
3s. 6d.), forthwith (or "on or before the IJth instant,") <o be
recovered by distress, and in default one calendar months' imprison-
ment with hard laliour. or unless sooner paid, with costs of distress
and conveyance to gaol.

620

SUMMARY CONVICTIONS — SCHEULLES.

(II) Seess.42,50.

(16) CONVICTION FOR A PENALTY TO BE LEVIED BY

DISTRESS, AND IN DEFAULT OF SUFFICIENT DISTRESS,

BY IMPRISONMENT.

Canada,
Province of ,

District (or Comity,
United Coxinties, or
as the case may be),
of

Be it remembered, That on the day of

in the year of our Lord, , at , in the said District

{or County, United Counties, or <ia the cone may he), A. B. is
convieted before the undersiKned, (one) of Her Majesty's Justices
of tlie Peace for the sai(i District (or County, United Cotinties, or
at the ciise may be,) for that the said A. B., («j"c., stating the offence,
and the time and place, when and where committed,) and I adjudgt the
said A, B. for Jus said ottence to forfeit and pay the sinn of
(statiny the penalty, and also the compensation, i/ any.)
to be paid and apj)lied accordinj^ to law, and also to i)ay to tlic
said C. D. the sum of , for his costs in this behalf; and

if the said several sums be not paid forthwith or on or before tlie
of next,) • I order that the same b<-

levied by distress and sale of the goods and chattels of the said
A. Ji., and in default of sutticient distress, • I juljudge the said
A. B., to be imprisoned in the Common (Jaol of the said Distrit t
(or County, United Counties, or as the cn»e may he,) at
in the said District (or County) of (there to be

kept at hard labour, if such be the sentence,) for the space of

imless the said several smns and all costs and charKes of
the said distress (and of the commitment and < onveying of tin-
said A. B. to the said (Jaol) be sooner pai<l.

Ciiven under (n\y) hand an«l seal, tl\e day and year first above
mentioned, at in the District (or County, Unit«'d Counties,

or as the case mai/ he) aforesaid.

J. S. [L. S.]

• Or when the issuiny of a Distress Warrant would be ruinous to tht
Defendant or his/amily, or it a}q^ears he has no yoods whereon to levy
a distress, then instead of the words between the asterisks * * say,
" inasmuch as it hath now been made to appear to me that th(
issuing of a Warrant of Distress in this bt half would be ruinoup
to the said A. B. or Ins family," {or, " that the; said A. B. hath no
k'oods or chattels wliereon to levy the said stuns Ity distress.") I
adjudge, kc, (^a» above, to the end.)

SUMMAUY CONVICTIONS. — SCHEDULES.

261

(I 2) »SVc83. 42,50.

^17) CONVICTION FOR A PENALTY, AND IN DEFAILT OK
PAYMENT, IMPRISONMENT.

C'linadii,
I'roviiitf of ,

District (or County,
I'uitctl Couiitii's, or
OS the case may be,
of

Be it rtincmhcrod, Tlmt on the dixy of , in

the year ot our Lord, , at , in the said District, (or

County. United Counties, or aa the cane nimj be), A. 15., is con-
victed hcforo the und«Tsi^'ne(i, (one) of Her Majesty's .Justices of
the Peace for the said District {or County, United Counties, or ait
the cast may be), for that he the said A. B., (ij-c, atatiwj the
offence, and the time and jdace when and where it was committed,)
and I Hdiudtre the said A. IV, for his said oflence to forfeit jind
pay the sum of '^utatinij the jtennlty and the compensation, ij

any), to be paid and applied according to law ; and also to pay to
the saia C. D., the sum of for his costs in this heiialf;

.'\nd if the said several stuns lie not paid forthwith (<;r, on or
before ne.vt). I adjudge the said A. B., to i»e im-

prisoned in the Conunon Gaol of the said District (or County,
I'neted Counties, or as thi case may be,) at in the said

District (^or County) of (and there to be kf/'t at hard

labour) for the fij>ace of , uidess the said sums and the

costs and charges of conveying the said A. B. to the said Cumnjon
CJaol, shall he sooner paid.

Given under my hand and seal, the day and year first ahove
mentioned, at in the District (or County, United Couutica,

or as the case may be.) aforesaid.

J. S. [L.S.]

> '

2C2

SUMMARY CONVICTIONS. — SCHEDULES.

(I 3) See 81?. 42, 50.

(18) CONVICTION WHEN THE PUNISHMENT IS BY IMPRISON-

MENT. &C.

Cftuada,
Provinci' of ,

DiKtrict (or County,
United Count iin, or
09 the cute mat/ le,j
of

Be it rcmomlu'rod, That on the day of , in

the year of our Lord , in the said District (or County,

United Counties, or as the ea»e may be., A. B., is convicted before
the undersif,'ned [orie) of Her Majesty'r* Justices of tlie Peace in
and for the said District (o/- County, United Counties, or as the
rase may be), f(»r that lie tlie said A. B., uJT., stattny the offence and
the time and place when and where it was committed) ; and I adjud^'ir
the eaid A. h., for liis said offence to V»e imprisoned in the Com-
mon Ciaol of the said District (or County, United Countien, or as
the case may be,] at in the Coimty o*" land there

to be kept at luird labour i for the space of ; and I

also adjudge the said A. B., to j^ay to the said C. D., the sum of
for his costs in this behalf, ami if the said sum for
copts be not paid forthwith, (or on or l^cfore next,]

then • 1 order that the said stim be levied by distress an<l sale of^
the goods and chattels of the sai<i A. B. ; and in default of suth-
< ient distress in that behalf, • I adjudge the said A. B., to be im-
prisoned in the said Common Gaol, (and kept there at hard
labour) for the space of , to commence at and from

the term of his imprisonment aforesaid, unless the said stun for
costs shall be sooner paid.

(liven under my hand and seal, the day and year first above
mentioned at in the District \or County, United

Counties, or as the case may be] aforesai«l.

J. S. [l. S.]

♦ Or, when the issuing of a distress warrant would be ruinous to the
Defendant and his family, or it appears that he has no goods whereon to
levy a distress, thtn, instead of the words between ihe asterisks • • say,
•'inasmuch as it hath now been made to apjiear to me that tht!
isguing of a warrant of distress in this b«half would be ruinous to
the said A. B.. and his family,"' {or, -'that the said A. B., hath no
goods or c hatti Is whereon to levy the Paid sum for cOhts by dis-
tress)" I adjudge, kc.

SUMMARY CONTICTIONS. — JiCllEDULES.

263

thf

\n to

hhi'

Is t(^

Klis-

(19) CONVICTION ON VIEW OF A JUSTICE.— (Not ill Act,

Oke's Mag. For. No. 43, p. 25.1

Cnnndft, "l

Provinco ol , |

District (or County,
United Uountit'R, or
as the case may bf,)
c.f J

Be it rinumborod, tlmt on the dny of

in the ytar of our Lord one thousand tight liundred and Hcvonty,
I. (}. H., Es(|uiri', one of H»r Majesty's JusticeB of the IVnee, in
and for the said (Count y) of , personally saw A. B., of

the (/'<im/«)of * , in the same (County) (here state the

ofince seen committed), contrary, Ac. Whereupon it is considered
and adjudged by (me) the said justici', tlmt the fiai<l A. B., be
( onvieted, and he is l>y me accordingly hereby convicted of his
said otfence upon my own view as aforesaid, according to the form
of the Statute aforewud in that case made and provided ; and I
mljudge the said A. B. for liis said otfence, Ac, iKfJuiltcalwH as in
form So. 18.

(•20l ADJUDICATION FOR A JOINT OFFENCE WHERE THE
PENALTY IS SEVERED AMONG THE DEFENDANTS.

(Not in Act. Okes' Mag. For. No. 44, p. 25.)

And I adjudge the Paid A. B., E. F., and G. H , for their said
oftriue to forfeit and pay the sum of , to be paid

and api>lied according to law, and also to pay to the said (J. D.
the sum of for nis costs in this l>«half, in the follow-

ing proportions, that is to say, the said A.B. for his said otfence
the sum of , and the sum of for costs ;

and the said E. F., for liis said otfence the sum of ,

and the sum of for costs ; an«l the said (". II. for hi8

said ottViKe the sum of , and the sum of

for costs ; and if the said several apportioned sums he not paid
forthwith [or "on or before next,") by the said A. B.

E. F. and (J. H. respectively, I adjudge < ach of them, the said
A. B., E. F. and G. H., who shall make default in that behalf,
sevendly to be imprisoned in the at

in the sai<l (County) of (and there to be kept to hard

labor) for the space of (Or if imprisonment be different

to each, say : I adjudge the Paid A. B., E. F. and G. H. to bo

IMAGE EVALUATION
TEST TARGET (MT-3)

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1.25

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2.2

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1.8

L4 i 1.6

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--^

Photographic

Sciences

Corporation

23 WEST MAIN STREET

WEBSTER, N.Y. 14580

(716) 872-4503

fc' CP,

Q-

264

SUMMARY CONVICTIONS. — SCHEDULES.

severally imprisoned in the at , iu the

said County of , and there severally to be kept to hard

labour, for the following periods respectively, that is to say, tlie
said A.B. for the space of , the said E, F., for the

space of , and the said G. H. for the ^pacc of ,

unless the said several sums so adjudged to be paid by the person
so making default (^and the costs and charges of conveying such jyersou
to the common gaol) respectively, shall be sooner paid, (but not so
as that either of them shall be imprisoned or kept in prison for
the default of the othrr or others of them).

(21) ADJUDICATION UPON SEVERAL DEFENDANTS FOR A
SEVERAL OFFENCE IN ONE CONVICTION, WHERE THE
PENALTY IS THE SAME TO EACH. (Not ill Act.

Oke's Mag. For. No. 45, p. 26.)

And I adjudge each of them, the said A. B., E. F. and 0. H.,
for his said offence, severally to forfeit and pay the sum of

, and each of them also to pay to C. D. the sum of
for his costs in this behalf; and if the said several sums so to be
paid by each of them aforesaid, be not paid by the said A. B., E.,
F. and G. H. respectively forthwith [or "on or before
next,") I adjudge each of them, the said A. B., E. F. and G. H.,
who shall make default in that behalf, severallj' to be imprisoned
in the at in the said (County) of

(and thi". to be kept to hard labour) for the space of , unless

the said several sums so adjudged to be paid by tlie person so
making default (and the costs and charges of conveying such per-
son to the common gaol) respectively, shall be sooner paid, (but
not so as that either of them the said A B., E. F. and G. H. shall
be imprisoned or kept in prison for the default of the other orothcrh
of them).

SUMMARY CONVICTIONS. — SCHEDULES.

265

(22) THE LIKE, A LONGER FORM RECOMMENDED TO BE USED
WHEN THE PENALTY IMPOSED ON EAG'i DEFENDANT IS

DIFFERENT IN AMOUNT. (Not in Act, Oke's Mag.
For. No. 46, p. 26).

Canada,
Province of ,

District {or County,
United Counties, or

as the case may be,)
of

Be it remembered, tliat on the day of , iu tlie

year of our Lord , at iu tlie said

(county), A. B., E. F. and G. H. are and eacliof them is severally
convicted before the undersigned, (tvo) of Her Majesty's Justices of
the Peace for the said {county), for tlmt they the said A. B., E. F.
add G. H. unlawfully did (&c., stating the offence) ; And we adjudge
the said A. B., for his said offence, to forfeit and pay the sum of
, to be (respectively) paid and applied according to law,
and also to pay to C. D. the sum of for his costs in res-

pect of the said A. B. in this behalf; and if the said several sums
be not paid forthwith {or "on or before the day of "),

we adjudg ' the said A. B. to be imprisoned in the common gaol at
n :'■: -alJ [county) of (there to be kept at hard

labour) for the . ■ e of , unless the said several sums (and

the costs and charges of the commitment and conveying of the said
A. B. to the said common gaol) shall be sooner paid : And we ad-
judge the said E. F, for his said offence also to forfeit and pay
(^c, as above, repeating the like adjudication against each defendant
convicted.

N.B. — Where the punishment is by imprisonment and not by penalty,
and the same punishment is assigned to each offender, the adjudi-
cation in the form No. 21 may adjudge all the defendants,
'■'•for their said offence to be severally imprisoned in the,^' Jfc,
but the adjudication of costs in that case must, if they are ordered,
be separate.

(23) ADJUDICATION UPON SEVERAL DEFENDANTS FOR A SEVE-
RAL OFFENCE WHERE THE PENALTY IS DIFFERENT ON

EACH. (Not in Act, Oke's Mag. For. No. 47, p. 27.)

This will be precisely the same form as the one immediately
preceding.

^.JOIU

Sanson

266

SUMMARY CONVICTIONS. — SCHEDULES.

(24) CONVICTION FOR A SECOND OR SUBSEQUENT OFFENCE.

(Not in Act, Oke's Mag. For. No. 48, p. 27.)

(This will be in either of the foregoing forms of conviction, adding
before the first adjudication the following averment of the previous
conviction) :

And whereas it is now duly proved |before us the said Justices
that the said A. B. was heretofore, to wit, on the day of

, in the year of Our Lord , duly convicted be-

fore J. L., Esq.. one of Her Majesty's Justices of the Peace in and
for the said county of , for that he the said A. B. did on the

day of , at the parish of , in the said

county {ftate the offence as in the former conviction), and the said A.
B. was thereupon adjudged for his last mentioned offence to (state
the adjudication correctly) : And we adjudge the said A, B. for his
said (second or third) offence, of which he has been e-^ convicted
this day as aforesaid, to forfeit, «fec., {proceeding to the end as in the
ordinary way.)

(25) ADJUDICATION OF CONSECUTIVE IMPRISONMENT. (Not

in Act, Oke's Mag. For. No. 49, p. 27.)

And I adjudge the said A. B. for his said off'ence, to forfeit &c. ,
(or to be imprisoned &c.,) for the space of , which I hereby

award and order shall commence at the expiration of a certain
other term of imprisonment to which the said A. B. has been pre-
viously duly adjudged and sentenced {by ine\ for another offence
upon the conviction in that behalf, (and if in actual prison or present,
add and is now undergoing in the said common gaol), (unless the
saici several sums shall be sooner paid {if a penalty adjudged.)

SUxMMARY CONVICTIONS. — SCHEDULES.

267

(K 1) .S'ee ss. 42, 51 .

(2G) ORDER FOR PAYMENT OF MONEY TO BE LEVIED BY DIS-
TRESS, AND IN DEFAULT OF DISTRESS, IMPRISONMENT.

Canada,
Province of ,

District (or County,
United Counties,) or
as the case may be,)
Of

Be it remembered. That on complaint was made before

the undersigned, (ojie) of Her Majesty's Justices of the Peace in
and for the said Di:jtrict {or County, United Counties, or as the case
nuxy be) of for that [stating the facts entitling the Com-

plainant to the order, with the time and place when and where theg
occurred,) and now at this day, to wit, on , at ,

the parties aforesaid appear before me the said Justice, (or, the
said C. D. appears before me the said Justice, but the said A. B.
although duly called, doth not appear by himse'f. his Counsel or
Attorney, and it is now satisfactorily proved tj me on oath that
the said A. B. has been duly served with the Summons in this
behalf, which rec^uired hirn to be and appear here on this day before
me or such Justice or Justices of the Petice for the said District lor
County, United Counties, or as the case may be) as should now oe
here, to answer the said complaint, and to be further dealt with
according to law) ; and now having heard the matter of the said
complaint, I do adjudge (•) the said A. B. (to pay to the said C. D.
the said sum of '^ forthwith, {or on or before next,

or as the Act or Law may require) and also pay to the said C, D.
the sum of for his costs in this behalf; and if the said

several sums be not paid forthwith (or on or before next)

then,* I hereby order that the same oe levied by distress, and sale
of the goods and chattcds of the said A. B.) and in default of suffi-
cient distress in that behalf,* I atljudge the said A. B. to be impri-
soned in the Common Gaol of the said District {or County, United
Counties, or as the case may be) at in the said District

)or County) of , )and there kept to hard labour) for the

space of unless the said several sums and all costs and

charges of the said distress (and of the commitment and conveying
of the said A. B. to the said Common Gaol) shall be sooner pai 1.

(•) It would be better here to introduce the words "the said
complaint to be true and I adjudge " vide Lal>almondi^re vs. Frosto,
25 L. J. (N.S)M.C. 155.

268

SUMMARY CONVICTIONS. — SCHEDULES.

Given under my hand and seal, this day of in the

year of our Lord , at in the District (or County, or

as the case may be,) aforesaid.

Or, when the issuing of a distress warrant would be ruinous to
the Defendant or his family or it appears he has no goods whereon to
levy a distress, then, instead of the words between the asterisks * * say,
inasmucli as it hatii now been made to appear to me that the
issuing of a warrant of distress in this behalf would be ruinous to
the said A, B. and his family," [or, "that the said A. B. hath no
goods or chattels whereon to levy the said sums by distress." ~

J. S. [l. S.]

(K 2 ) See ss. 42, 51.

(27) ORDER FOR PAYMENT OF MONEY, AND IN DEFAULT OF
PAYMENT, IMPRISONMENT.

Canada,
Province of ,

District (or County,
United Counties, or
as the case may be),
of

Be it remembered. That on complaint was made

before the undersigned, (one) of Her Majesty's Justices of the
Peace in and for the said District {or County, United Counties, or
(IS the case may be,) of , for -that [stating the facts

entitling the complainant to the order, with the time and place tchen
and where they occurred, ) and now on this day, to wit, on

J at , the parties aforesaid appear before me the said

Justice, (or the said C. D. appears before me the said Justice, but
the said A. B. although duly called doth not appear by himself,
his Counsel or Attorney, and it is now satisfactorily proved to me
upon oath that the said A. B. has been duly served with the sum-
mons in this behalf, which required him to be and appear here this
day before me, or such Justice or Justices of the Peace for the said
District (or County, United Counties, or as the case may be,) as
should now be here, to answer to the said complaint, and to be
further dealt with according to law,) and now having heard the
matter of the said complaint. I do adjudge (t) the said A. B. (to

pay to the said C. D. the sum of

forthwith, (or on or

(t) nde ante No. 26.

SUMMARY CONVICTIONS. — SCHEDULES.

269

before next, or as the Act or Law may require,)

and also to pay to the said C, D. the sum of for his costs

in this behalf ; and if the said several sums be not paid forthwith,
{or on or before next), then I adjudge the said A. B. to be

imprisoned in the Common Gaol of the said District (or County,
United Counties, or us the case may be,) at , in the said

District (or County of (th re to be kept at hard

labour if the Act or Law authorize this) for the space of

, unless the said several sums (and costs an<l charges
of commitment and conveying the said A. B. to the said Common
Gaol) shall be sooner paid.

Given under (my) hand and seal, this day of

, m the year of our Lord , at

in the District [or County, United Counties, or as the case may
be) aforesaid.

J. S. [L. S.]

(K 3) ss. 42, 51.

(28) ORDER FOR ANY OTHER MATTER WHERE THE DISOBEY-
ING OF IT IS PUNISHABLE WITH IMPRISONMENT.

Canada,
Province of ,

District (or County,
United Counties, or
as th^ case may be),
of

Be it remembered. That on

complaint was nuuie before

the undersigned, (one) of Her Majesty's Justices of the Peace in
and for the said District (or County, United Counties, or as the
case may be,) of , for that (stating the facts entitling

the Complainant to the Order, with the time and place where and
when they occurred,) and now on this day, to wit, on ,

at , the parties aforesaid appear before me the said

Justice, (ar the said C. D. appears before me the said Justice, but
the said A. B. although duly called doth not appear by himself,
his Counsel or Attorney, and it is now satisfactorily proved to me
upon oath that the said A. B. has been duly served with the Sum-
mons in this behalf, which required him to be and appear here this
day before me, or such Justice or Justices of the Peace for the said
District (or County, United Counties, or as the case may be,) as
should now be here, to answer to the said complaint, and to be
further dealt with according to law,) and now having heard the

•:ii

270

SUMMARY CONVICTIONS. — SCHEDULES.

matter of tht; said complaint, I do therefore adjud;^e (•) tlie
said A. B. to (^here state the matter required to be done), and
if upon a copy of the Minute of this Order being served upon
the «aid A. B, either personally or by leaving the same for him at
his last or most usual place of abo<le, he shall neglect or refuse to
obey the same, in that case I adjudge the said A. B. for such his
disobedience to be imprisoned in the Common Gaol of the said
District (or County, United Counties, or as the case mny be,) at
in the said County of (there to be kept at hard labour

if the Statute authorize this) for the space of unless

the said order be sooner obeyed, and I do also adjudge the said
A. B. to pay to the said C. D. the sum of for his costs

in this behalf, and if the said sum for costs ])e not paid fortliwitli,
or on or before next,) I order the same to be levied

by distress and sale of the goods and chattels of the said A. B.,
and in default of sufficient distress in that behalf, I adjudge the
said A. B, to be imprisoned in the said Common Gaol (there to be
kept at hard labour) for the space of to commence at

and from the termination ofhis imprisonment aforesaid, unless the
said sum for costs shall be sooner paid.

Given under [mi/) hand and seal, this day of ,

in the year of our Lord , at , in the

District (or County, United Counties, or as the case ma>/ be,
aforesaid. '

J.S. [l. S.]

(L) See s. 43.

(20) ORDER OF DISMISSAL OF AN INFORMATION OR COMPLAINT.

Canada, "j

Province of , I

District (or County, '
United Counties, or
as the case may be,)
of

Be it remembered, that on information was laid (or

complaint was made) before the undersigned, {one) of Her Majes-
ty's Justices of the Peace in and for the said District [or County,
United Counties, or as the case may be) of , for thai

/<J'c., as in the Summons to the Defendant,^ and now at this day,

o wit, on

both the said parties appear

(*) Vide ante No. 26.

SUMMARY COXVICTIONS. — SCHEDULES.

271

Ik fore me in order that I should hear and determiiu' the said
information (or complaint) (^or the said A. B. appeareth before me,
but the said C, D. although duly called doth not appear,*) where-
upon the matter of the said information {or complaint) being by
me duly considered ^it manifestly appears to me that the !»aid
information (or complaint) is not proved,) I do therefore dismiss
the same, and do adjudge that the said C. D. do pay to the said
A. B. the sum of for his costs incurred by him in his

defence in this behalf: and if the said sum for costs be not paid

forthwith, (or on or before

,) I order that tlie same be

levied by distress and sale of the goods and chattels of the said
C. D., and in default of sufficient distress in that behalf, I adjudge
the Kaid C. D. to be imprisoned in the Common Gaol of the said
District (or County. United Counties, or as the case inay be) at
in the said County of (and there to be kept at

hard labour) for the space of , unless the said sum for

costs and all costs and charges of the said distress (and of the
commitment of the said C. D. to the siiid Common Gaol,) shall
be sooner paid.

Given under mv hand and Seal, this dav of

in the year of our Lord , at .in the

Dirtrict {or County, United Counties, or as the case may be)
aforesaid. J. S. [l. a.]

* I/the Informant (or Corned ainant) do not appear, these uords may
be omitted.

(M) See s. 43.

(30)

CERTIFICATE OF DISiMISSAL.

I hereby certify that an information {or complaint preferred by
C. D. against A. B. for that {or as in the summons,) was this day
considered by me, one of Her Majesty's Justices of the Peace
in and for the District (or County, United Counties, or as the case
may be) of , and was by (me) dismissed (vnth costs.)

Dated this day of , one thousand eight

hundred and

J. S. [L. S.]

272

SUMMARY CONVICTIONS. — SCHEDULES.

(31) MINUTE OF ORDER OF DISMISSAL FOR SERVICE UNDER

SECT. 54. (Not in Act, Oke's Mag. For. No. 34, p. 20.)

Venue as in (L.) No. (29) At a potty Sessions of Her Majesty's
.Justices of the Peace for the said County, holden at N. in and tor
the said Division, the 4th day of January, 187 .

C. D., Complainant
aji^ainst
A. B., Defendant.

It is adjudged and ordered, that the information (or « com-
plaint") in this case for (state shortly the charge), be dismissed
with costs, the complainant not appearing {or '< t^e said infor-
mation") (or "complaint not being proved') ; and that the com-
plainant shall forthwith (or » on or before the day of
next") pay to the defendant the sum of nine shillings
for his costs incurred in his defence, to be recovered by distress,
and in default the complainant to be imprisoned for ,
unless sooner paid (with the costs of distress and of conveyance to
f^'aol).

I. and B.,
Clerks to the Justices of the said Division.

(N 1) See s. 57.

(32) WARRANT OF DISTRESS UPON A CONVICTION FOR A

PENALTY.

Canada,
Province of ,

District {or County,
United Counties, or
as the case mai/ be,)
ot

To all or any of the Constables, or other Peace Ofiicers in the
said District [or County, United Counties, or as the case may be)
of

Whereas A. B., late of , {labourer) was on this day

{or on last past) duly convicted before {one)

of Her Majesty's Justices of the Peace, in and for the said District
(or County, United Counties, or as the case may be) of
for that {stating the offence as in the conviction) and it was thereby
adjudged that the said A. B., should for such his offence forfeit
and pay, (<jt,, as in the conviction), and should also pay to the said

SUMMARY CONVICTIONS. — SCHEDULES.

273

'!!;■

C. D. the sum of for his costh in that bthalf ; and it wa«

thereby ordered that if the said several sums should not be paid
(forthwith) the same should be levied by distress and sale of the
p;ood8 and chattels of the said A. B. ; and it was thereby
ordered that if the said several sums should not be paid (forth-
with) the same should be levied by distress and sale of the goods
and chattels of the said A. B. ; and it was thereby also
.'uljudged that the said A. B., in default of sufficient distress, should
be imprisoned in the Common Gaol of the said District (or County,
United Counties, or at the cme may be) aX in the said

County of (and there to be kept a< hard labour) for the

space of unless the said several sums and all costs

and charges of the said distress, and of the commitment and con-
veying of the said A. B., to the said Common CJaol should be
sooner paid; "And whereas the said A. B., being so convicted as
aforesaid, and being [now) required to pay the said sums of

and hath not paid the same or any part

thereof, but therein hath made defaults ; These are therefore to
command you, in Her Majesty's name, forthwith to make distress
of the goods and chattels of the said A. B. ; and if within

days next after the making of such distress, the said sums,
together with the reasonable charges of taking and keeping the
distress, shall not be paid, then you do sell the said goods and
chattels so by you distrained, and do pay the money arising from
such sale unto me {the convicting Justice or one of the convicting
Justices) that I may pay and apply the same as by law is directed,
and may render the overplus, if any, on demand, to the said A.
B. ; and if no such distress can be found, then, that yon certify
the same unto me, to the end that such further proceedings may
be had thereon as to law doth appertain.

Given under my hand and seal, this day of

in the year of our Lord , at in the District (or

County, or as the case may be) aforesaid.

J. S. [L. 8.]

274

SUMMARY CONVICTIONS. — SCHEDULES.

* • (N 2) See s. 57.

(33) WARRANT OF DISTRESS UPON AN OilDER FOR THE PAY-
MENT OF MONEY.

Canada,
Province of ,

Dihtrict (or County,

United Countit'K, or

as the case may U),

of
To all or any of the ConstuMes, or other Peace Officers, in the

said District (or Countv, United Counties, or as the case may be)
, of

Whereas on last past, a complaint was made before

{onr) of Her Majesty's Justices of the Peace in an'!
for the said District (or County, United Counties, or as the caf
may he) for that (Jj-c, as in the order,) and afterwards, to wit, on
, at , the said parties ai)peared before

)as in the order,) and thereupon the matter of the said
complaint having been considered, the said A. B. was adjudged
(to pay to the said C. D. the sum of on or before

then next,) and also to pay to th6 said C. D. the sum
of for his costs in that bahalf ; and it was ordered

that if the said several sums should not be paid on or before
the said then next, the same should be levied by dis-

tress and sale of the goods and chattels of the said A, B. ; and it
was adjudged that in default of sufficient distress in that behalf,
the said A. B., should be imprisoned in the Common Gaol of the
said District (or County, or United Counties, or as the case may
be) at , in the said County cf (and there kept

at hard labour) for the space of , unless the said

several sums and all costs and charges of the distress (and of the
commitment and conveying of the said A. B. to the said Com-
mon Gaol) should be sooner paid ;* And whereas the time in and
by the said order appointed for the payment of the said several
sums of and hath elapsed, but the said A. B.

hath not paid the same, or any part thereof, but herein hath made
default ; These are therefore to command you, in Her Majesty's
name, forthwith to make distress of the goods and chattels of the
said A. B. ; and if within the space of days after the

making of such distress, the said L-^st mentioned sums, together
with the reasonable charges of taking and keeping the said dis-
tress, shall not be paid, that then you do sell the said goods and
chattels so by you distrained, and do pay the money arising from

SUMMARY CONVICTIONS. — SCHEDULES.

275

such aalc unto me, (or tome other of the convicting Juxticex, as the
case mai/ be) that I {or he) mny pay and apply tho same an by hiw
directed, and may render the overplus, if any, ou demand to the
naid A. B. ; and if no such distress can be found, then that you
certify the same unto me, to the end that such proceedings may
be had therein, as to law doth appertain.

Given under my hand and seal, this day of

in the year of our Lord

(or County, or as the case may be-) aforesaid.

in tho District

J. S. [l. S.]

*i '■ '

(N 3) See s. 58.

(3i) ENDORSEMENT IN BACKING A WARRANT OF DISTRESS.

Canada,
Province of ,

District (or County,
United Counties, or
an the case may be,)
of

Whereas proof upon oath hath this day been made before me,
one of Her Majesty's Justices of the Peace in and for the saitl
District (or County, United Counties, or as the case may be) that
the name of J. 8. to the within Warrant subscribed, is of the hand-
writing of the Justices of the Peace within mentioned, I do there-
fore authorize U. T. who bringeth me this warrant, and all other
persons to whom this Warrant was originally directed, or by
whom the same may be lawfully executed, and also all Con-
stables and other Peace Officers in the said District (or County,
United Counties, or as the case may be,) of to execute the

same within the said District [or County, United Counties, or as
the case may be)

Given under my hand, this ^ day of , one thousand

eight hundred and ' 0. K.

(N 4) See s. 62.

(35) CONSTABLES RETURN TO A WARRANT OF DIS-
TRESS.

I, W. T., Constable of , in the District (or County,

United Counties, o, as the case may be) of hereby certify

to J. S., Esquire, one of Her Majesty's Justices of the Peace for

'n[t

;

S!<»,

ill'

276

8UMMARY CONVICTIONS. — SCHEDULES.

the District (or County, United Counties, wr as the case may be)
that by virtue of this warrant, I have uiade diligent search for the
goods and chattels of the within mentioned A. B., and that I
can find no suflBciert goods or chattels of the said A. B. whereon
to levy the sums within mentioned.

Witness my hand, this day of

eight hundred and

J. S. [l. s.]

one thousand

(N 5) See s. 62.

(36) WARRANT OF COMMITMENT FOR WANT OF DISTRESS.

Canada,
Province of ,

District {or County,
United Counties, or
as the case may be),
of

To all or any of the Constables and other Peace Officers in the
District^ {or County, United Counties, or as the case may be,) of
, and to the Keeper of the Common Gaol of the said Dis-
trict, {or County, United Counties, or as the case may be,) of ,
at , in the said District (or County) of :

Whereas (^c, as in either of the foregoing distress warrants, N. I, 2,
to the asterisks, * and then thus) : And whereas afterwards on the
day of , in the year aforesaid, I, the said

Justice, issued a warrant to all or any of the Constables or
other Peace Officers of the District (or County, United Counties,
or as the case may he,) of commanding them, or any

of them, to levy the said sums of and by dis-

tress and sale of the goods and chattels of the said A. B. ; And
whereas it appears to me, as well by the return to the said warrant
of distress, by the Constable who had the execution of the same,
as otherwise, that the said Constable hath made diligent search
for the goods and chattels of the said A. B., but that no suffi-
cient distress whereon to levy the sums above mentioned could be
found : These are therefore to command you, the said Constables
or Peace Officers, or any one of you, to l?ke the said A. B., and
him safely to convey to the Common Gaol at aforesaid, and

there deliver him to the said Keeper, together with this Precept ;
and I do hereby command you, the said Keep*9r of the said Com-
mon Gaol, to receive the said A. B. into your custody, in the said
Common Gaol, there to imprison him (and keep him at hard

SUMMARY CONVICTIONS.— SCHEDULES.

277

labour) for the space of , unless the said several sums, and

all the costs and charges of the said distress, (and of the commit-
ment and conveying of the said A. B. to the said Common Gaol)
Amounting to the further sum of , shall be sooner paid

unto you, the said Keeper ; and for so doing, this shall be your
sufficient warrant.

Given under my hand and seal, this day of , in

the year of our Lord , at in the District (jrr County,

or as the case may be) aforesaid.

J. S. [L. S.]

(d
Id

d
Id

(0 1) See 8. 59.

(37) WARRANT OF COMMITMENT UPON A CONVICTION FOR A
PENALTY IN THE FIRST INSTANCE.

Canada,
Province of ,

District (or County,
United Counties, or
as (he case may be),
of

To all or any of the Constables and other Peace Officers in the
said District {or County, United Counties, or as the case may
be,) of , and to the Keeper of the Common Goal of

the said District [or County, United Counties, or as the case may
be,) of , at in the said District {or County of :

Whereas A. B. late of {labourer,) was on this day

convicted before the undersigned, (one) of Her Majesty's Justices
of the Peace, in and for the said District (or County, United
Counties, or as the case may be) for that (stating the offence as in
the conviction,) and it was thereby adjudged that the said A. B.,
for his oflfence* should forfeit and pay the sum of (^c,

as in the conviction,) and should pay to the said C. D. the sum of
for his costs in that behalf; and it was thereby further
adjudged that If the said several sums should not be paid (forth-
with) the said A. B.* should be imprisoned in the Common Gaol
of the said District (or County, United Counties, or as the case
may be) at in the said District {or County) of and

there kept at hard labour) for the space of ^ unless the

said several sums and the costs and charges of conveying the said
A. B. to the said Common Gaol) should he sooner paid ; And
whereas the time in and by the said conviction appointed for the
payment of the said several sums hath elapsed, but the said A.

mmmmmm

278

8UMHABT CONVICTIONS. — SCHEDULES.

B. hath not paid the same or any part thereof, but therein hath
made default ^ ; These are therefore to command you, the said
Constables or Peace OfScers, or any one of you, to take the said A.
B,, and him safely to convey to the Common Gaol at afore-

said, and there to deliver him to the said Keeper thereof, together
with this Precept; and I do hereby command you, the isaid
Keeper of the said Common Gaol, to receive the said A, B. into
your custody in the said Common Gaol, there to imprison him
(and keep him at hard labour) for the space of , (t) unless
the said several sums (and costs find charges of carrying him to
the said Common Gaol, amounting to the further sum of ),

shall be sooner paid unto you, the said Keeperf ; anf^ for your so
doing, this shall be your sufficient warrant.

Given under (my) hand and seal, this day of '

in the year of our Lord , at in the

District {or County, or as the case may be) aforesaid.

J. S. [l. S.]

(38) COMMITMENT OF A DEFENDANT FOR A CONSECUTIVE
PERIOD, WHERE CONVICTED THE SAME DAY OF TWO OR
MORE OFFENCES, ADAPTED TO WHERE A PENALTY OR
IMPRISONMENT ADJUDGED, AND WHETHER THE DEFEN-
DANT IS IN PRISON OR IS PRESENT AT THE TIME OF CON-
VICTION. (Not in Act, Oke's Mag For. No. 68, p. 39.)

(Proceed as in form 0, to the * where if imprison-

ment alone has been adjudged leave out the icords between
the * {asterisks) ; in the event of a penalty compensation
and costs or any of them being adjudged leave them in. In
the case of a penalty <fcc., being adjudged retain the words
between ^. <Sc^, then proceed) which said term of imprison-
ment I thereby awarded and ordered should commence at
the expiration of a certain other imprisonment to which the
said A. B. had been previously duly adjudged and sentenced
(by me) for another offence upon the conviction in that
behalf, {and if in actual prison or present at conviction add,
and is now undergoing,) § unless the said several sums should
be sooner paid ; And whereas the time in and by the said
first mentioned conviction appointed for the payment of the
said several sums hath elapsed and the said A. B. being
now reqUi-.'ed to pay the same, hath not paid the same or

8UMMARY CONVICTIONS. — SCHEDULES.

279

any part thereof, but therein hath made default ; § {the pre-
ceeding portion between %% to he omitted where imprisati-
ent alone 18 adjudged by the conviction, then as in form 0 1
from ^ to $) which I hereby award and order shall commence
at the expiration of the said other term of imprisonment above
mentioned {if not in Gaol add) and t^ which he t now stands
committed under a certain other w -rant delivered to you
herewith marked with the letter A (placing in the case of
more than two commitments the letters marked on the next
previous one ; but if in actual prison say in lieu of the
foregoing from %) was committed to your custody by a certain
warrant of J. S. Esquire bearing date the day of

last {then as in the form 01, from (t) to the end.)

(0 2) See s. 59.

(39) WARRANT OF COMMITMENT ON AN ORDER IN THE FIRST

INSTANCE.
Canada,
Province of ,

District (or Comity,
United Counties, or
as the case may be),
of

To all or any of the Constables and other Peace Officers in the

said District, (or County, United Counties, or as the case may

be) of , and to the Keeper of the Common Gaol of

the District, (or County, United Counties, or as the case may be)

of at in the said District {or Connty) of

Whereas on last past, complaint was made before the

undersigned, [ojie) of Her Majesty's Justices of the Peace in and

for the said District, (or County, United Counties, or as the case

may be) of for that (^c, as in the order), and afterwards, to

wit, on the day of , at the parties

appeared before me, the said Justice {or as it may be in the order),

and thereupon having considered the matter of the complaint, I

adjudged the said A. B. to pay to the said C. D. the sum of

on or before the day of then next, and

also to pay to the said C. D. the sum of for his costs in

that behalf; and I also thereby adjudged that if the said several

«unis should not be paid on or before the day of

. 280

SUMMARY CONVICTIONS.— 3CHEDULES.

then next, the said A. B. should be imprisoned in the
Common Gaol of the District (or County, United Counties, or as
the case may be)oi at in the said County of

(and there be kept at hard labour) for the space of
unless the said several sums (and the costs and charges of convey-
ing, the said A, B. to the said Common Gaol, {as the case may
be) should be sooner paid ; And whereas the time in and by the
said order appointed for the payment of the said several sums of
money hath elapsed but the said A, B. hath not paid the same
or any part thereof, but therein hath made default ; These are
therefore to command you, the said Constables and Peace Officers,
or any of you, to take the said A. B. aud him safely to convey
to the said Common Gaol, at aforesaid, and there to

deliver him to the Keeper thereof, together with this Precept ; and
I do hereby command you, the said Keeper of the said Common
Gaol, to receive the said A. B. into your custody in the said Com-
mon Gaol, there to imprison him (and keep him at hard labour)
for the space of , unless the said several sums (and the

costs and charges of conveying him to the said Common Gaol,
amounting to the further sum of ) , shall be sooner paid

unto you the said Keeper; and for your so doing, this shall bo
your sufficient Warrant.

Given under my hand and seal, this
in the year of our Lord at

(or County, or as the cafe may be) aforesaid.

day of
in the Distrit t

[L. 8.]

(Q 2| See s. 64.

(40) WARRANT OF DISTRESS FOR COSTS UPON AN ORDER

FOR DISMISSAL OF AN INFORMATION OR COVPLAINT.

Canada,
Pro\ ince of

District (or County,
United Counties,
as the case may
Of

To all or any of the Constables or other Peace Officers, in the
said District (or County, United Counties, or as the case may
be,) of

Whereas on last past, information was laid (or com-

plaint was made) before (one) of Her Majesty's Justices

of the Peace in and for the said District {or County, United

inty, I
5, or f
be,)

SUMMARY CONVICTIONS. — BCHEDULES.

281

Counties, or as the case may he) of for that (cj-c, as in

the order of dismissal,) and afterwards, to wit, on at

, botli parties appearing' before in order

that (/) should hear and determine the same, and the several
proofs adduced to (vie) in that behalf being by (me) duly heard
and considered, and it manifestly appearing to (me) that the said
information (or complaint) was not proved, (J) therefore dismis-
sed the same and adjudged that the said C. D. should pay to the
said A. B. the sum of for his costs incurred by him

in hisdefenr;; in that behalf; and (I) ordered that if the said sum
for costs should not be paid {forthwith) the same should be levied
on tuu goods and chattels of the said CD, and (/) adjudged
that in default of sufficient distress in that b.ehalf the said C. D.
should be imprisoned in the Common Gaoi of the said District
(or County, United Counties, or cs the case may be) of
at in the said District or County of (and

there kept at hard labour) for the space of , unless

the said sum for costs, and all costs and charges of the said dis-
tress, and of the commitment and conveying of the said A. B. to
the said Common Gaol should be sooner paid ; * And whereas the
said C. D. being now required to pay to the said A. B. the said
sum for costs, hath not paid the same, or any part thereof, but
therein hath made default : These are therefore to command you,
in Her Majesty's name, forthwith, to make distress of the goods
and chattels of the said C. D,, and if within the space of
days next after the making of such distress, the said last men-
tioned sum, together with the reasonable charges of taking and
keeping the said distress, shall not be paid, then that you do sell
the said goods and chattels so by you distrained, and do pay the
money arising from such sale to me {the Justice who made such order
or dismissal as the case may be) that (7) may pay and apply the
same as by law directed, and may render the overplus (if any) on
demand to the said C. D., and if no such distress can be found,
then that you certify the same unto me, (or any other Justice of
the Peace for the same District (or County, United Counties, or as
the case may be) to the end that such proceedings may be had
therein as to law doth appertain.

Given under (my) hand and seal, this
in the year of our Lord , at

County, or as the case may be) aforesaid.

day of ,

in the District (or

J. s.

[L. S.]

282

SUMMARY CONVICTIONS. — SCHEDULES,

(Q 2) See s. 64.

(41) warhant for commitment for want of distress in

the last case.

Canada, ")

Province of ,

District (or County,

United Counties, or

. .as the ca$e may be,)

To all or any of the Constables or Peace Officers in the said Dis-
trict (or County, United Counties, or an the case may be) of ,
and to the Keeper oi the Common Gaol of the said Dis-
trict [or County, United Counties, or as the case may be) of
at in the said District (or County) of

Whereas (^c, as in the last form, to the asterisk, * and then thus :)
And whereas afterwards, on the day of

, in the year aforesaid, I, the said Justice, issued a warrant
to all or any of the said Constables or other Peace Officers of the
8aid District (or County, United Counties, or as the case may be)
commanding them, or any of them to levy the said sum of

for costs, by distress and sale of the goods and chattels of
tho said C, D. ; knd whereas it appears to me, as well by the
return to the said warrant of distress of the Constable (or Peace
Officer) charged with the execution of the same, as otherwise,
that the said Constable hath made diligent search for the goods
and chattels of the said C. D. but that no sufficient distress
whereon to levy the sum above mentioned could be found ; These
are therefore to command you, the said Constables and Peace
Officers, or any one of you, to take the said C, D. and him safely
convey to the Common Gaol of the said District (or County. Uni-
ted Counties, or as the case may be,) at aforesaid, and
there deliver him to the Keeper thereof, together with this Pre-
cept ; and I hereby command you, the said Keeper of the said
*Common Gaol, to receive the said C. D. into your custody in the
said Common Gaol, there to imprison him (and keep him at hard
labour) for the space of unless the said sum, and all the
costs and charges of the saia distress (and of the commitment and
conveying of the said C. D. to the said Common Gaol amount-
ing to the further sum of ,) shall be sooner paid up unto
you the said Keeper ; and for your so doing, this shall be your
sufficient warrant.

Given under my hand and seal, this day of , in the

year of our Lord , at

as the case may be) aforesaid.

, in the District (or County, or
J. S. [.LS.]

SUMMARY CONVICTIONS. — SCHEDULES.

283

>ie-
said
[the
lard
J the
land
mt-
mto
rour

(42) JUDGMEM OF AFFIRMANCE OP THE SESSIONS ON AN

APPEAL FROM A CONVICTION. (Not ill Statute, Vide
Paley on Con. 5 Ed. p. 546.)

Canada,
Province of ,

District (or County,

United Counties, or

as the case may be,)

At a General Quarter Sessions of the Peace of our Sovereifjn
Lady the Queen heid by Proclamation at in and for

the District (or County, &e., as the case may be) of on the

day of in the year of Our Lord 187 before

Esquire, Judge of the Sessions of the Peace in and for the
City of (or as the case may be) ; and afterwards by

atljournnient (if adjourned) at aforesaid on the

day of in the year aforesaid.

At the same Court so held at aforesaid, on the day

and year, first (or last as the case may be) aforesaid, J. W. of

in the District of (farmer,) entered his appeal to and

against fe conviction under the hand and seal of C. D. Esquire, one
of Her Majesty's Justices of the Peace for the District aforesaid,
dated and made the day of 187 (here state

the offence as in the conviction) and by which said conviction he the
said C. D. did adjudge that the said J. W. should for the said offence
forfeit (here state the adjudication as in the conviction).

Now therefore at the said Court so holden as aforesaid, by
adjournment at as aforesaid, upon hearing of the said

appeal, it is now here ordered and adjudged by the said Court that
the said conviction be and the same is hereby ♦in all things
affirmed ; and it also now here by the same Court further ordered
and adjudged that the said J. W. be dealt with and punished
according to the said conviction and also that the said J. W. do
and shall pay to the Clerk of the Peace in and for the said District
of within days of the date of the present

judgment, to be by him paid to the said Informant the Respon-
dent in the said Appeal, the sum of the amount of costs
sustained by the said Respondent and by him incurred by reason
of the said Appeal, and now by the said Court here adjudged to be
paid to him by the said J. W. according to the Statute in such
case made and provided.

[the
or

284

SUMMARY CONVICTIONS. — SCHEDULES.

(43) JUDGMENT OF SESSIONS ON APPEAL QUASHING CONVIC-
TION.

Aa in form preceding No. 42 to * then quashed and set aside with
costs (where deposit has been made) and that the deposit made by the
said Appellant be repaid to him by J. S. Esquire, with whom the
same was made and further that the said D. E. th'i Respondent in
the said Appeal, shall pay to the Clerk of the Peace in and for the
said District of within days of the date of the

present judgment to be by him paid to the said Appellant the
sum of the amount of costs sustained by the caid

Appellant and by him incurred by reason of the said Appeal and
now by the said Court here adjudged to be paid to him by the said
D. E., according to the Statute in such case made and provided.

(R) See s. 75.

(44) CERTIFICATE OF CLERK OF THE PEACE THAT THE

COSTS OF AN APPEAL ARE NOT PAID.
Office of the Clerk of the Peace for the District {or County, United
Counties, or aa the case may be) of

TITLES OF THE APPEAL.

I hereby certify, that at a Court of General or Quarter Sessions
of the Peace (or other Court discharging the functions of the Court of
General or Quarter Sessions, as the case may be) holden at ,

in and for the said District (or County, United Counties, or aa the
case may be} on last past, an appeal by A. B. against

a conviction {or order) of J. S. Esquire, one of Her Majesty's
Justices of the Peace in and for the said District {or County, Uni-
ted Counties, or as the case may be) came on to be tried, and wat.
there heard and determined, and the said Court of General or
Quarter Sessions (or other Court, as the case may be), thereupon
ordered that the said conviction (or order) should be confirmed {or
quashed) and that the said (Appellant) should pay to the said
(Respondent) the sum of for his costs incurred by him in

the said appeal, and which sum was thereby ordered to be paid to
the Clerk of the Peace for the said District (or County, United
Counties, or as the case may be) on or before the day

of instant, to be by him handed over to the said

{Respondent), and I further certify that the said sum for costs has
not, nor has any part thereof, been paid in obedience to the said
order.

Dated this day of , one thousand eight

hundred and . G. H.

• Clerk of the Peace.

SUMMARY CONVICTIONS. — SCHEDULES.

(S 1) See 8. 75.)

285

(45) WARRANT OF DISTRESS FOR COSTS OF AN APPEAL
AGAINST A CONVICTION OR ORDER.

Canada,
Province of ,

District [or County,

United Counties, or

as the case may be,)

of
To all or any of the Constables or other Peace Officers in the said

District (or County, United Counties, or as the case may be) of

Whereas (^c, as in the warrants oj distress, N I, 2, ante, and to the
end of the Statement af the Conviction or Order, and then thus): And
whereas the said A. B. appealed to the Court of General Quarter
Sessions of the Peace {or other Court discharging the functions of the
Court of General or Quarter Sessions, as the case may be) for the said
District (or County, United Counties, or as the case may be) against
the said Conviction or Order, in which appeal the said A. B, was
Appellant, and the said C. D., {or J. S. Esquire, the Justice of the
Peace who made the said Conviction or Order) was the Respondent,
and which said appeal came on to be tried and was heard and
determined at the last General Quarter Sessions of the Peace {or
other Court, as the case may be) for the said District {or County,
United Counties, or as the case may be) holden at , on

, and the said Court thereupon ordered that the said
Conviction {or Order) should be confirmed {or quashed) and that
the said {Appellant) should pay to the said (Respondent) the sum of

for his costs incurred by him in the said appeal,
which said sum was to be paid to the Clerk of the Peace tor the
said District (or County, United Counties, or as the case may be)
on or before the day of , one thousand eight hundred

and , to be by him handed over to the said C. D. ; and

whereas the Clerk of the Peace of the said District (or County.
United Counties, or as the case may be) hath, on the
day of instant, duly certified, that the said sum for

costs had not been paid ; • These are therefore to command you,
in Her Majesty's name, forthwith to make distress of the goods
and chattels of the said A. B., and if within the space of
days next after the making oT such distress, the said last men-
tioned sum, together with the reasonable charges of taking and
keeping the said distress, shall not be paid, that then you do sell
the said goods and chattels so by you distrained, and do pay the
money arising from stich sale to the Clerk of the Peace for the

286

SUMMARY CONVICTIONS. — SCHEDULES.

said District (or County, United Counties, or aa the eate may be) of
, tiiat he may pay and apply thie 8amc as by law
directed ; and if no such distress can be found, then that you
certify the same unto mc or any other Justice of the Peace for the
same District (or County, United Counties, or as the case viay be)
to the end that such proceedings may be had therein, as to law
doth appertain.

Given under my iiand and seal, this day of

, in the year of our Lord , at , in the

District (or County or at the ante may he) aforesaid.

0. K. [l. 8.]

(S 2) See s. 75.

(4G) WARRANT OF COMMITMENT FOR WANT OF DISTRESS

IN THE LAST CASE.

Canada,

Province of ,

District [or County,
United Counties, or
at the case may be,)
ol

To all or any of the Constables, or other Peace Oflficers, in the said
District (or County, United Counties, or as the case may be) of
and to the Keeper of the Common Gaol of the said Dis-
trict {or County, United Counties, oras the case may be) of ,

in the said County of

Whereas (tjj'c, as in the last form, to the asterisk,* and then thus):
And whereas, afterwards, on the day of ,

in the year aforesaid, I, the undersigned, issued a warrant to all
or any of the Constables and other Peace Officers in the said
District (or County, United Counties, or as the case may be) of

, commanding them or any of them, to levy the said sum of
, for costs, by distress and sale of the goods and chattels
of the said A. B. ; And whereas it appears to me, as well by
the return to the said Warrant of Distress to the Constable (or
Peace Officer), who was charged with the execution of the
same, as otherwise, that the said Constable hath made diligent
search for the goods and chattels of the said A. B., but that no
sufficient distress whereon to levy the said sum above mentioned
could be found ; These are therefore to command you, the said
Constables or Peace Officers, or any one of you, to take the said
A. B.J and him safely to convey to the Common Gaol of the said

SUMMARY CONVICTIONS. — SCHEDULES.

287

District (or County, United Counties of at the ea$e may

be,) at oforesaid, and tliere deliver him to the said

Iveeper thereof, together with this Precept ; and I do hereby
command you, the eaid Keeper of the said Common Gaol, to re-
ceive the said A. B. into your custotiy in the said Common Gaol,
there to imprison him (aud keep him at hard labour) for tlie space of
,) unless the same sum and all costs and charges of
the said distress (and for the commitment and conveying of tlie
fciaid A. B. to the said Common Gaol, amounting to the further
Rtmi of ,) shall be sooner paid unto you, the said Keeper,

and for so doing, this shall be your sufficient Warrant.

Given under my hand and seal, this day of ,

in the year of our Lord , at , in the District

(County, United Counties, or as the case may be) aforesaid.

J. N. [l. s.]

(47) GENERAL FORM OF INFORMATION OR OF COMPLAINT

ON OATH.

Canada,
Province of ,

District (or County,
United Counties, or
at the case may be,)
of

The information {or complaint) of C. D., of the township of
in the said District (or County, United Counties, or at the
case may be,) of {laborer). [If preferred by an Attorney or

Agent, say :) "D. E.) his duly authorized Agent (or Attorney), in
this behalf, taken upon oath, before me, the undersigned, one of
Her Majesty's Justices of the Peace, in and for the said District [or
County, United Counties, or at the case may be) of ,

at N., in the said District, County, or as the case may be) of

this day of , in the year of our

Lord, one thousand eight hundred and , who saith* that

he hath just cause to suspect and believe, and doth suspect and
believe that) A. B., of the [totonship) of , in the said

District [or County, as the case may be) of ,^^^ , within the

space of , the time xcithin which the information (or

complaint) must be laid,) last past, to wit, on the day ot

instant, at the (toivnshij)) of in the District

[County, or at the case may be) aforesaid, did (here set out the offence,

288

SUMMARY CONVICTIONS. — SCHEDULES.

^e.,) contrary to the form of Statute in such case made and provi-
ded.

C. D. (or D. E.)

Taken and sworn before me, the day and year and at the place
al)ove mentioned, J. S.

(48) FORM OP ORDER OF DISMISSAL OP AN INFORMATION OR

COMPLAINT.
Canada,
Province of ,

District (or County,
United Counties, or
aa the cate may be,)
of
Be it remembered, that on

information was hiid

(or complaint was made) before the undersigned, (o«c) of Her
Majesty's Justices of the Peace in and for the said District (or
County, United Counties, or aa the eaae may be) of , for

that (^c, aa in the Summona of the defendant) and now at

this day, to wit, on , at , (tf any adjournment

inaert here : «' To which day the hearing of this case hath been
duly adjourned, of which the said C. D, had due notice," both the
said parties appear before me in order that I should hear and
determine the said information, (or complaint) (or the said A. B.
appeareth before me, but the said C. D., although duly called, doth
not appear) ; whereupon the matter of the said information (or
complaint) being by me duly considered, (it manifestly appeals
to me that the said information (or complaint) is not proved, and
(If the Informant (or Complainant) do not appear these worda may be
omitted) I do therefore dismiss the same, (and do adjudge that the
said C. D. do pay to the said A. B. the sum of for his

costs incurred by him in defence in his behalf ; and if the said

sum for costs be not paid forthwith, (or on or before

).I

order that the same be levied by distress and sale of tbe goods and
chattels of the said C. D. and in default of sufficient distress in
that behalf, I adjudge the said C. D. to be imprisoned in the
Common Gaol of the said District (or County, United Counties,
a* the caae may be) of at in the said

(County) of (and there kept at hard labour for the space

, unless the said sum for costs, ana all costs and charges
of the said distress I'and of the commitment and conveying of the
said C. D. to the said Common Gaol) shall be sooner paid.

Given under my hand and seal, this day of

in the year of our Lord, at in the District (or

County, or aa the caae may be) aforesaid.

J. S. [L. 8.]

8UMMABT CONVICTIONS. — SOHBDULES.

289

(48) FORM OP CERTIFIJATE OP DISMISSAL.

I hereby certify, that an information {or complaint) protorrcd
by D. D. againMt A. B. for that (<j*c., as in the Summons) was this
day considered by me, one of Her Majesty's Justices of tlie Pemoe
in and for the said District (or County, United Counties, or <u the
cate may be) of , and was by me dismissed (with costs),

Dated this day of , one thousand

■ (49) GENERAL FORM OP NOTICE OP APPEAL AGAINST A

CONVICTION OR ORDER.

To C. D. of, Ac, and [the names and additions of the

parties to whom the notice of appeal is required to be given.)
Take notice, that I, the undersized A. B., of do intend to
enter and prosecute an appeal at the next General Quarter 8e»-
Bions of the Peace {or other Court as the case may be,) to bo
holden at , in and for the District (or County, United

Counties, or as the case may be,) , against a certain

conviction [or order) bearing date on or about the
day of instant, and made by (you) C. D., Esquire,

(one) of Her Majesty's Justices of the Peace for the said District
(or County, United Counties, or as the case may be,) of ,

whereby the said A. B., was convicted of having {or was ordered
to pay) , (here state the offence as in the conviction, in/ar-

mation or summons or the amount adjudged to be paid as correctly as
possible.)

Dated this day of , one thousand eight

hundred and

A. B.

Mem. — If this notice be given by several of Dej^ndants, or by an
Attorney, it can easily be adapted to the special case.

(50) FORM OP RECOGNIZANCE TO TRY THE APPEAL, &0,

Be it remembered, that on

B., of

{labourer,)
and L. M., of (grocer) and N. O., of (yeoman,)

personally came before the undersigned, {one) of Her Majesty's
Justices of the Peace in and for the said District (or County Uni-
ted Counties, or as the case may be,) of , and severally
acknowledged themselves to owe to our Sovereign Lady the

"^•■W'S^^WTBWWiPPi"

mmmmmmmmmm

290

SUMMART CONVICTIONS. — SCHEDULES.

Queen, the several sumg following, that is to say, the said A. B,
the sum of , and the said L. M. and N. O. the sum of

, each, of good and lawful money of Canada, to be
made and levied of their several goods and chattels, lands and
tenements respectively, to the use of our said Lady the Queen,
Her Heirs and Successors, if he the said A. B. shall fail in the
condition endorsed.

Taken and acknowledged the day and year first above mentioned
at , before me.

J. s.

The condition of the within written Recognizance is such, that
if the said A, B. shall, at the (next) General or Quarter Sessions of
the Peace, (or other Court discharging the functions of the Court of
General or Quarter Sessions, as the case mag be) to be holden at

, on the day of next, in and for

the said District (or County, United Counties, or as the case rmy be,)
of , enter and prosecute an appeal against a certain

conviction bearing date the day of instant,

and made by (me) the said Justice, whereby he the said A. B. was
convicted, for that he the said A. B. did on the day of

, at the township of , in the said District or

County, United Counties, or as the case may be,) of , (here

set out the offence as stated in the conviction ;) And further, that if the
said A. B. shall abide by and duly perform the order of the Court
to be made upon the trial of such appeal, then the said Recog-
nizance to be void, or else to remain in full force and virtue.

(51) FORM OP NOTICE OF SUCH RECOGNIZANCE TO BE

GIVEN TO DEFENDANT (APPELLANT) AND HIS SURETIES.

Take notice, that you. A, B.. are bound in the sum of ,

and you, L. M, and N. 0. in the sum of each, that you

the said A, B, at the next General or Quarter Sessions of the

Peace to be holden at

in and for the said District

{or County, United Counties, or as the case mag be, ) of ,

enter and proaecute an Appeal against a conviction (or order)
dated the day of (instant,) whereby you,

A. B. were convicted of (or ordered &c.,) (stating offence or the sub'
ject of the order shortly), and abide by and perform tha Order of the
Court to be made upon the trial of such Appeal ; and unless you
the said A. B. prosecute 3uch Appeal accordingly, the Recog-
nizance entered into by you will forthwith be levied on you, and
each of you.

Dated this day ot - one thousand

cigh hnndred and

SUMMARY CONVICTIONS. — SCHEDXTLIS.

291

SURETIES.

(52) COMPLAINT BY THE PARTY THREATENED, FOR
SURETIES FOR THE PEACE.

Proceed as in the form (T) to the asterisk *, then : that A. B. of the
{Toumship') of , in the DiBtrict (County, or as the case

may 6c,) of , did, on the day of

(instants or last past, as the case may be), thr< ^^en the said C. D. in
the woras or to the eflfect following, that ib to say, (««< them out,
with the circmnstance under which they were used :) and that from the
above and other threats used by the said A. B. towards the said
C. D., he the said G. D. is afraid that the said A. B. will do him
some bodily injury, and therefore prays that the said A. B. may
be required to find sufficient Sureties to keep the peace and be of
good behaviour towards him the said G. D. ; and the said G. D.
also soith that he doth not make this complaint against nor
require such Sureties from the said A. B. from any malice or ill-
will, but merely for the preservation of his person from injury.

(53)

Be it remembered, that on the
in the year of our Lord

FORM OF RECOGNIZANCE FOR THE SESSIONS.

day of
B. of

{labourer),
L. M. of {grocer), and N. 0. of (butcher),

personally came before (us) the undersigned, {two) of Her Majes-
ty's Justices of the Peace f jr the said District (or County, United
Counties, or as th£ case may be,) of and severally

acknowledged themselves to owe to our Lady the Queen the
several sums following, that is to say ; the said A. B. the sum o^
, and the said L. M. and N. O. the sum of
, each, of good and lawful money of Canada, to be made and
levied of their goods and chattels, lands and tenements respec-
tively, to the use of our said Lady the Queen, Her Heirs and
Successors, if he the said A. B. fail in the condition endorsed.

Taken and acknowledged the day and year first above men-
tioned, at , before us.

J. s.

J. T.

The condition of the within written Recognizance is such, that if
the within boimded A.B. {of, &c.) shall appear at the next Court of
General or Quarter Sessions of the Peace (or other Court discharge
ing the Junctions of the Court of General or Quarter Sessions, as th«

292

BUMMABT CONVICTIONS. — SCHEDULES.

COM may be,) to be holden in and for the said District (or County,
United Counties, or as the cote may be) of

, to do and receive what shall be then and
there enjoined him by the Court, and in the meantime shall keep
the peace and be of good behaviour towards Her Majesty and all
Her liege people, and especially towards C. D. (of &c.) for the
term of now next ensuing, then the said Recognizance

to be void, or else to stand in full force and virtue.

(54) FORM OF COMMITMENT IN DEFAULT OF SURETIES.

Canada,
Province of ,

District (or County,
United Counties, or
aa the cote may be),
of

To all or any of the Constables or other Peace Officers
in the District (or County) (or one of the United Counties, or a»
the case may be) of and to the Keeper of the Common

Gaol of the said District, (County or United Counties, or as tfie
case mav be) at , in the said District (or County, &c.,

)
Whereas on the day of instant, complaint

on oath was made before the undersigned (or J. L., Esquire, {one)

of Her Majesty's Justices of the Peace in and for the said District

dor County, United Counties, or as the case may be) of ,

by C. D. of the township of , in the said District

^County, or as the case may be) (labourer,) that A. B. of, &c., on the

day of , at the township of aforesaid,

did threaten (^c., follow to end of complaint, as in form above, in the

past tense, then) : And whereas the said A. B. was this day brought

and appeared before the said Justice {or J. L,, Esquire, one of Her

Majesty's Justices of the Peace in and for the said District (or

County, United Counties, or as the case may be) of ,

to answer unto the said complaint : And* having been required by

me to enter into his own Recognizance in the sum of

with two sufficient sureties in the sum of each, as well

for his appearance at tht next General or Quarter Sessions of the

Peace, (or other Court discharging the functions of the Court of General

or Quarter Sessions of the Peace as the case may be,) to be held in and

for the suid District (or County, United Counties, or as the case

may be,) of , to do what shall be then and there enjoined

him by the Court', as also in the meantime to keep the Peace and

SUMMARY CONVICTIONS. — SCHEDULES.

293

be of good behaviour towards Her Majesty ^and Her liege people
and especially towards the said G. D., hath refused and neglected
and still refuses and neglects to find such sureties) ; These are
therefore to command you and each of you to take the said A. B.,
and him saloly to convey to the (Common Gaol) at
aforesaid, and there to deliver him to the Keeper thereof, together
with this Precept ; And I do hereby command you the said
Keeper of the [Common Oaol to receive the said A. B. into your
custody, in the said [Common Oaol), there to imprison him until
the said next General or Quarter Sessions of the Peace (or the
next term or sitting, the said Court discharging the functions of the Court
of General or Quarter Sessions, as the case may be,) unless he, in the
meantime, find sufficient sureties as well for his appearance at
the said Sessions {or Court), as in the meantime to keep the
peace as aforesaid.

Given under my hand and seal, this
in the year of Our Lord , at

[or County, or as the case may be) aforesaid

day of

in the District

J. S. [l. 8.]

CAP. XXXII.

An Act respecting the prompt and summary
administration of Criminal Justice in cer-
tain cases.

[Assented to 22nd June, 1869.]
Preamble.

HER Majesty, by and with the advice and
consent of the Senate and House of Commons
of Canada, enacts as follows :

Interpretation of words, &c., " A Competent Magistrate^

" Common Gaol, &c J ^

1. In this Act the expression "a Competent
Magistrate" shall as respects the Province of Que-
bec and the Province ol Ontario, mean and include
any Recorder, Judge of a County Court, being
a Justice of the Peace, Commissioner of Police,
Judge of the Sessions of the Peace, Police Magis-
trate, District Magistrate or other functionary or
tribunal invested at the time of the passing of this
Act with the powers vested in a Recorder by
chapter one hundred and five of the Consolidated
Statutes of Canada, intituled : " ilw Act respecting^
the prompt and summary administration of Criminal
Justice in certain cases'^ and acting within the local
limits of his or of its jurisdiction, and any func-
tionary or tribunal invested by the proper leg is

8UMMART ADMINISTRATION.

295

tive authority with power to do alone such acts
as are usually required to be done by two or more
J ustices of the Peace ; and as respects the Pro-
vince of Nova Scotia or the Province of New
Brunswick, the said expression shall mean and
include a Commissioner of Police and any func-
tionary, tribunal or person invested or to be
invested by the proper legislative authority with
power to do alone such acts as are usually requir-
ed to be done by two or more Justices of the
Peace, and the expression " the Magistrate " shall
mean a competent Magistrate as above defined ;

And the expression *' the Common Gaol or other
place of confinement," shall in the case of any
ofiender whose age at the time of his conviction
does not in the opinion of the Magistrate exceed
sixteen years, include any Reformatory Prison
provided for the recaption of juvenile offenders in
the Province in which the conviction referred to
taks place, and to which by the law of that Pro-
vince the offender can be sent.

Power to a competent Magistrate to try certain offenca in
a summary way hy consent 0/ the party accused.

Larceny.

Attempt at larceny.

Assault. '

Assault an females or children.

On Magistrates, <Scc.

Houses 0/ ill-fame and {see Sec. 15) as to cities.

2. Where any person is charged before a com-
petent Magistrate with having committed—

296

SUMMARY ADMINISTRATION.

^«« "*"^

1. Simple larceny, larceny from the person,
embezzlement, or obtaining money or property by
felse pretences, or feloniously receiving stolen
property, and the value of the whole of the pro-
perty alleged to have beeu stolen, embezzled,
obtained, or received does not in the judgment of
the Magistrate exceed ten dollars ; or,

2. With having attempted to commit larceny
from the person or simple larceny, or,

3. With having committed an aggravated as-
sault, by unlawfully and maliciously inflicting
upon any other person, either with or without a
weapon or instrument, any grievous bodily harm,
or by unlawfully and maliciously cutting, stab-
bing' or wounding any other person ; or,

4, With having committed an assault upon any
female whatever, or upon any male child whose
age does not in the opinion of the Magistrate
exceed fourteen years, such assault being of a
nature which cannot in the opinion of the Magis-
trate be sufficiently punished by a summary con-
Tiction before him under any other Act, and such
assault, if upon a female, not amounting in his
opinion to an assault with intent to commit a rape ;
or,

5. With having assaulted obstructed, molested
or hindered any magistrate, bailiff, or constable or
officer of customs or excise or other officer in the
lawful performance of his duty, or with intent to
prevent the performance thereof; or.

flUMMAKT ADMINISTRATION.

297

6. With keeping or being an inmate, or habitual
frequenter of any disorderly house, house of ill-
fame or bawdy house ; —

The Magistrate may, subject to the provisions
hereinafter made, hear and determine the charge
in a summary way.

The Magistrate in all cases mentioned in this section
should proceed with respect to the reception of the charge and
the issue of the summons or warrant, as directed by the 32 &
33 Vic. c. 30, 88. 1 & 2 ante pp. 52-58 and only on the bring-
ing of the person charged, or his appearance before him
should he if he thinks it a proper case for a summary trial
proceed as pointed out in the next section.

Accused to be asked if he consents to he tried summarily.

If he consents, or the Jurisdiction is absolute.

3. Whenever the Magistrate before whom any
person is charged as aforesaid proposes to dispose
of the case summarily under the provisions of this
Act, such Magistrate after ascertaining the nature
and extent of the charge, but before the formal
examination of the witnesses for the prosecution,
and before calling on the party charged for any
statement which he may wish to make, shall state
to such person the substance of the charge against
him, and (if the charge is not one that can be tried
summarily without the consent of the accused)
shall then say to him, these words, or words to
the like effect : " Do you consent that the charge
against you shall be tried by me, or do you desire
that it shall be sent for trial by a jury at the
{naming the Court at which it could soonest he tried) ;

298

SUMMABY ADMINISTRATION.

and if the person charged consents to the charge
being summarily tried and determined as afore-
said, or if the power of the Magistrate to try it
does not depend on the consent of the accused,
the Magistrate shall reduce the charge into writ-
ing, and read the same to such person and shall
then ask him whether he is guilty or not of such
charge.

If lie admits the charge.

If not.

And if he has a, defence.

4. If the person charged confesses the charge
the Magistrate shall then proceed to pass such
sentence upon him as may by law be passed,
(subject to the provisions of this Act,) in respect
to such offence ; but if the person charged says
that he is not guilty, the Magistrate shall then
examine the witnesses for the prosecution, and
when the examination has been completed, the
Magistrate shall inquire of the person charged
whether he has any defence to make to such
charge, and if he states that he has a defence,
the Magistrate shall hear such defence, and shall
then proceed to dispose of the case summarily.

It is not necessary to obtain the consent of the accused.
1st. When the charge against him is of being the keeper,
or an inmate or an habitual frequenter of any disorderly
house, house of ill-fame or bawdy house. 2nd. When he is
a sea-faring person and only transiently in Canada having no
domicile therein and is charged with any of the oflfences

8UMMART ADMINISTRATION.

299

enumerated in the second section aa having been oommittod
either within the City of Quebec as limited for the purpose
of the Police Ordinance, or within the City of Montreal as
so limited, or in any other seaport. City or Town in Canada,
where there is a competent Magistrate. 3rd. When the
complainant in any of the charges enumerated ia the second
section is a sea-faring person only transiently in Canada and
having no domicile therein and whose testimony is essential
to the proof of the oflFence. (Vide s. 16).

Persons who are charged with having committed or having
attempted to commit simple larceny, or any offence punish-
able as simple larceny and whose age at the period pf the
commission or attempted commission of such offence does
not in the opinion of the Justice before wh' »m he is brought,
or appears, to answer such charge exceed the age of sixteen
years cannot be tried under this Act. (Vide s. 31 pos< &
32 & 33 Vic. c. 33, s. 2, post p. 316.)

Sentence in case of conviction of larceny.

5. In the case of larceny, feloniously receiving
stolen property or attempt to commit larceny from
the person, or simple larceny, charged under the
first or second sub-sections of the second section
of this Act, if the Magistrate after hearing the
whole case for the prosecution and for the defence,
finds the charge proved, then he shall convict the
person charged and commit him to the Common
G-aol or other place of confinement, there to be
imprisoned, with or without hard labour, for any
period not exceeding six months.

Offence not proved.

6. If in any case the Magistrate finds the offence

300

SUMMARY ADMINISTRATION.

not proved, he shall dismiss the charge, and make
out and deliver to the person charged a certificate
nnder his hand stating the facts ol such dismissal.
Form of conviction.

7. Every such conviction and certificate respec-
tively may be in the forms A and B, in this Act,
or to the like efiect.

If the accused does not consetit, or the Magistrate thinhs
the case i^roper to he otherwise tried.

8. If (when his consent is necessary) the person
charged does not consent to have the case heard
and determined by the Magistrate, or in any case
if it appears to the Magistrate that the offence is
one "which, owing to a previous conviction of the
person charged, or from any other circumstances,
ought to be made the subject of prosecution by
indictment rather than to be disposed of sum-
marily, such Magistrate shall deal with the case
in all respects as if this Act had not been passed ;
but a previous conviction shall not prevent the
Magistrate from trying the offender summarily, if
he thinks fit so to do.

Discharge in certain cases.

9. If upon the hearing of the charge the Magis-
trate is of opinion that there are circumstances in
the case which render it inexpedient to inflict
any punishment, he may dismiss the person
charged without proceeding to a conviction.

If the value of the property exceeds $10 and the Magis-
trate thinks the case one to he tried summarily.

10. Where any person is charged before a com-

SUMMARY ADMINISTRATION.

301

t I

petent Magistrate with simple larceny, or with
having obtained property by false pretences, or
with having embezzled or having feloniously
received stolen property, or with committing lar-
ceny from the person, or with larceny as a clerk
or servant, and the value of the property stolen,
obtained, embezzled, or received exceeds ten dol-
lars, and the evidence in support of the prose-
cution is in the opinion of the Magistrate sufficient
to put the person on his trial for the offence
charged, such Magistrate, if the case appear to
him to be one which may properly be disposed of in
a summary way, and may be adequately punished
by virtue of the powers of this Act, shall reduce
the charge into writing and shall read it to the
said person, and (unless such person is one who
can be tried summarily without his consent) shall
then put to him the question mentioned in section
three, and shall explain to him that he is not
obliged to plead or answer before such Magistrate
at all, and that if he do not plead or answer before
him, he will be committed for trial in the usual
course.

If the offender consents and pleads guilty.

11. If the person so charged consents to be tried
by the Magistrate, the Magistrate shall then ask
him whether he is guilty or not of the charge,
and if such person says he is guilty, the Magistrate
shall thereupon cause a plea of guilty upon the
proceedings, and shall convict him of the offence,

302

SUMMARY ADMINISTRATION.

and commit him to the Common Gaol or other
place of confinement, there to be imprisoned, with
or without hard labour, for any term not exceed-
ing twelve months, and every such conviction
may be in the form C, or to the like effect.

The tenth and eleventh sections only apply where the party
cannot refuse or consents to be tried and also pleads guilty.
If after he consents to be tried by the Magistrate he pleads
not guilty, the Magistrate under this Act cannot proceed
with the trial but must either commit or bind over the
accused for trial at the Court at which the offence can soonest
be tried.

It is doubtful whether under this clause there is any abso-
lute jurisdiction, the necessity for the consent being done away
with only as regards sea-faring persons, as mentioned ante p.
298, accused of any of the offences mentioned in the second sec-
tion of this Act and persons who have been complained of by
such sea-faring persons (whose evidence moreover is essential to
the proof of the offence) as having committed any of the
offences specified in the said second section.

Full defence allowed,

12. In every case of summary proceedings under
this Act, the person accused shall be allowed to
make his full answer and defence, and to have all
witnesses examined and cross-examined, by coun-
sel or attorney.

The proceedings in all cases under this Act, so far as the
right to be assisted by counsel or attorney is concerned, are
assimilated to those had at the Quarter Sessions in the case
of indictable offences of the same class.

Power to summon and compel attendance of witnesses.

13. The Magistrate before whom any person is

SUMMARY ADMINISTRATION.

303

the

are

lease

charged under this Act, may by summons require
the attendance of any person as a witness upon
tlie hearing of the case at a time and place to be
named in such summons, and such Magistrate
may bind by recognizance all persons whom ho
may consider necessary to be examined touching
the matter of such charge, to attend at the time
and place to be appointed by him, and then and
there to give evidence upon the hearing of such
charge; And in case any person so summoned or
required or bound as aforesaid, neglects or refuses
to attend in pursuance of such summons or recog-
nizance, then upon proof being first made of such
persons having been duly summoned as herein-
after mentioned, or bound by recognizance as
aforesaid, the Magistrate before whom such per-
son ought to have attended may issue a warrant
te compel his appearance as a witness.

There is no provision in this Act requiring an affidavit for
the issue of the summons to a witness, as in the 32 & 33
Vic. c. 30, 8. 25 (vide ante p. 73), nor is there any necessity
for any proof of the person summoned being a material
witness ere issuing a warrant on his default to appear in
pursuance of such summons oi* of the recognizance entered
into by him.

Mode of summoning under this Act.

14. Every summons issued under this Act may
be served by delivering a copy of the summons to
the party summoned, or by delivering a copy of
the summons to some inmate of such party's usual

304

SUMMARY ADMINISTRATION.

! I

place of abode ; and every person so required by
any writing under the hand of any competent
Magistrate to attend and give evidence as afore-*
said, shall be deemed to have been duly sum-
moned.

The mode of service pointed out by this Act diflfers from
that under the 32 & 33 Vic. c. 30, and 32 & 33 Vic. c. 31,
as under those Acts, the service can be either personal or on
some person for the party summoned at his last or most
usual place of abode. (Vide ante pp. 74 & 167.)

Jurisdiction of Magistrate absolute in certain cases.

15- The jurisdiction of the Magistrate in the
case of any person charged within the Police
limits of any city in Canada, with therein keeping
or being an inmate or an habitual frequenter of
any disorderly house, hcfuse of ill-fame or bawdy-
house, shall be absolute, and shall not depend on
the consent of the party charged to be tried by
such Magistrate, nor shall such party be asked
whether he consents to be so tried ; nor shall this
Act afi'ect the absolute summary jurisdiction given
to any Justica or Justices of the Peace in any case,
by any other Act.

And as to certain persons. '

16. The jurisdiction of the Magistrate shall also
be absolute in the case of any person, being a sea-
faring person and only transiently in Canada, and
having no permanent domicile therein, charged,
either within the City of Quebec as limited for
the purpose of the Police Ordinance, or within

SUMMARY ADMINISTRATION.

305

the City of Montreal as so limited, or in any other
Seaport, City or Town in Canada, where there
is a competent Magistrate, with the commission
therein of any of the offences mentioned in the
second section of this Act, an'l also in the case of
any other pcrsou charged with any such offence
on the complaint of any such sea-faring person
whose testimony is essential to the proof of the
offence, and such jurisdiction shall not depend on
4he consent of any such party to be tried by the
Magistrate, nor shall such party be asked whether
he consents to be so tried.

Sentence on parties convicted of certain offences.

Levying any fine imposed.

17. In any case summarily tried under the third,
fourth, fifth, or sixth sub-section of the second
section of this Act, if the Magistrate finds the
charge proved, he may convict the person charged
and commit him to the Common Gaol or other
placL of confinement, there to be imprisoned with
or without hard labour for any period not exceed-
ing six months, or may condemn him to pay a
fine not exceeding, with the costs in the case, one
hundred dollars, or to both fine and imprisonment,
not exceeding the said period and sum ; and such
fine may be levied by warrant of distress under
the hand and seal of the Magistrate, oi the party
convicted may be condemned (in addition to any
other imprisonment on the same conviction) to be
committed to the Common Graol or other place of

• f i

306

SU3IMARY ADMINISTRATION.

i:i

confinement, for a further period not exceedinS
six months, unless such fine be sooner paid.

Forms in cases under this Act.

18. Whenever the nature of the case requires it,
the forms given at the end of this Act shall be
altered by omitting the v^ords stating the consent
of the party to be tried before the Magistrate, and
by adding the requisite w^ords stating the fine
imposed (if any) and the imprisonment (if any) to
which the party convicted is to be subjected if
the fine be not sooner paid.

Persons brought before J. P's mai/ be remanded/or trial
under this Act.

19. Where any person is charged before any
Justice or Justices of the Peace, with any ofience
mentioned in this Act, and in the opinion of such
Justice or Justices, the case is proper to be dis-
posed of by a competent Magistrate, as herein
provided, the Justice or Justices before whom
such person is so charged may, if he or they see
fit, remand such person for further examination
before the nearest competent Magistrate, in like
manner in all respects as a Justice or Justices are
authorized to remand a party accused for trial at
any Court, under any general Act respecting the
duties of Justices of the Peace out of Sessions, in
like cases.

But not into any other Province.
20- No Justice or Justices of the Peace in a:iy
Province, shall so remand any person for further

SUMMARY ADMINISTRATION.

307

exceeding
laid.

'eqtiiTCS it,
ct shall be
he consent
Lstrate, and
ig the fine
t (if any) to
iubjected if

indedfor trial

before any
any ofience
inion of such
>r to be dis-
as herein
'fore whom
or they see
examination

jtrate, in 111^3
Justices are
„ for trial at
,specting the
Sessions, in

'eace in a:>7
for further

examination or trial before any such Magistrate in
any other Province.

Be/ore lohom to he tried.

I 21. Any person so remanded for further exami-
nation before a competent Magistrate in any City,
may be examined and dealt with by any other
competent Magistrate in the same City.
Parti/ not appearing according to his recognizance.

22. If any person suffered to go at large upon
entering into such recognizance as the Justice or
Justices are authorized under any such Act as last
mentioned to take, on the remand of a party
accused, conditioned for his appearance before a
competent Magistrate under the preceding sec-
tions of this Act, does not afterwards appear pur-
suant to such recognizance, then the Magistrate
before whom be ought to have appeared shall
certify (under his hand on the back of the recog-
nizance,( to the Clerk of the Peace of the District,
County or place (as the case may be) the fact of
such non-appearance, and such recognizance shall
be proceeded upon in like manner as other recog-
nizances, and such certificate shall be deemed
sufiicient prima facie evidence of such non-appear-
ance.

Conviction to he transmitted to Q. S., d:c.

23. The Magistrate adjudicating under this Act
shall transmit the conviction, or a duplicate of a
certificate of dismissal, with the written charge,
the depositions of witnesses for the prosecution

( ', I

308

SUMMARY ADMINISTRATION.

I ■

and for the defence, and the statement of the
accused, to the next Court of General or Quarter
Sessions of the Peace, or to the Court discharging
the functions of a Court of Greneral or Quarter
Sessions of the Peace, for the District, County or
Place, there to be kept by the proper Officer
among the Records of the Court.

Proof of conviction or dismissal.

24. A copy of such conviction, or of such certi-
ficate of dismissal, certified by the proper Officer
of the Court, or proved to be a true copy, shall be
sufficient evidence to prove a conviction or dis-
missal for the offiince mentioned therein, in any
legal proceedings whatever.

Restitution of property.

26. The Magistrate, by vrhom any person has
been convicted under this Act, may order restitu-
tion of the property stolen, or taken or obtained
by false pretences, in those cases in which the
Court before whom the person convicted would
have been tried but for this Act, might by law
order restitution.

The 32 & 33 Vic. c. 29, contains the following provisions
on the subject of the restitution of property stolen, em-
bezzled, &c.

g. 113. " If any person, guilty of any such felony or misde-
•'meanor as is mentioned in this Act, in stealing, taking,
*' obtaining, extorting, embezzling, appropriating converting or
" disposing of, or in knowingly receiving any chattel, money,
" valuable security, or other property whatsoever, is indicted
" for such oflfence, by or on behalf of the owner of the pro-

SUMMARY > JMINI8TRATI0N.

'■^-■n.H.ua, 309

"aforesaid the Court before Z '^ ""'' '" "''» """'O"

"anysuehfolonyor^itjo ir^/""" '^ '"^^ ^-
'• from time to time, writ, of rnJ . . /'''' '^'"'' «» ^''a'-d,

:<" to order the re's^ou "": a" "" "'' P™"^^'?
'•and the Court may also if it I «. """"^ "'»""'«n
"of the pro,«rty taken from 1 ' """''^ '•<='"'««''■'

;'"« fo- theproseeut n Cs^eh fT""""-' "^ ""^ -''
"although the p3r.,on indlj , T^ "' '"'•^demeanor,

•'if "'0 jury declare (fs tke.V r^''''' *^-»';
"P0«y belongs to sueh L ^ ^^ '^'" •*"' «"* pr„^

"ho was u„wf„„rtprCr:r-t*'r'"'^^'' ^-^ ^'^^

"misdemeanor; Provided thaHf -f ''^ ™'"' '''=''"'? or
"or order made, tha any ««''''""" '^'''"' ""^ "-^^
"Me paid or discharged bv 1 '"""^ ^'' ''«'' ''«»<«
"liable to the paymenf 11^ r^" " '"''^ ^^l"-'"
"-uent, has been 4<,„, /^ fi „^"''' " T'""'' '-'™-
" deavery, by some person o bod " '"""""'' ""y '"''»«^' «
" valuable consideration "thonf^ 'P"""'' ''™' » J"^' a-d
" reasonable eanse to sulect th" t? "'T " "'*»"' »?
"or misdemeanor been stolen tal T" '""' ^' '"^ «^'4
" bezzied, converted or d pi of ' '*,""'"''• ''^'»^'^<'' «-
" not award or order th Tesdtu ff T T ""^ ^°"" ^aU
"dod also, that nothin! i, thL r- '^ """""'^ • P™""
"to the case of any pro^s „ L IT"" T""""' "''"" ^1?
"chant, attorney fad v " "'^ ""^ "-""'"o, banker, mer

"with thcpossestnXor„Td„r "'T "^"""' '-'""d'
''-^o^othe::--^--:^e^..s^^

I i

III

:|:

!!!i

310

SUMMARY ADMINISTRATION.

" ding the stealing or unlawfully obtaining any property, and
*' it appears to the Court, by the evidence, that the prisoner
'' sold such property or part of it to any person who had no
*^ knowledge that it was stolen or unlawfully obtained, and
*' that money had been taken from the prisoner on his appre-
'' hension, the Court may, on the application of such pur-
*' chaser and on restitution of the property to its owner, order
^Uhat out of the money so taken from the prisoner, a sum
^' not exceeding the amount of the proceeds of the sale be
''delivered to such purchaser."
Magistrate' s Court to he oj)en,

26. Every Court held by a competent Magis-
trate for the purposes of this Act, shall be an open
public Court, and a written or printed notice of
the day and hour for helding such Court, shall be
posted or affixed by the Clerk of the Court upon
the outside of some conspicuous part of the build-
ing or place where the same is held.

Certain provisions not to apply to cases under this Act.

27- The provisions of the Act respecti?ig- the duties
of Justices of the Peace out of Sessions, in relation
to summary convictions and orders, and the provi-
sions of the Act respecting the duties of Justices of the
Peace out of Sessions in relation to persons charged
with indictable offences, shall not be construed as
applying to any proceeding under this Act except
as mentioned in section nineteen.

Effect of conviction.

28. Every conviction by a competent Magistrate
under this Act shall have the same effect as a con-
viction upon indictment for the same offence

SUMMARY ADMINISTRATION.

311

would have had, save that no conviction under
this Act shall be attended with forfeiture beyond
the penalty (if any) imposed in the case.

And of dismissal.

29. Every person who obtains a certificate of
dismissal or is convicted under this Act, shall be
released from all further or other criminal pro-
ceedings for the same cause.

No conviction to he quashed /or want of form, &c.

30- No conviction, sentence or proceeding under
this Act shall be quashed for want of form ; and
no warrant of commitment upon a con^dction
shall be held void by reason of any defect therein,
if it be therein alleged that the offender has been
convicted, and there be a good and valid convic-
tion to sustain the same.

Act not to affect that for trial of Juvenile Offenders.

31- Nothing in this Act shall affect the provi-
sions of the Act respecting the Trial and Punishment
of Juvenile Offenders ; and this Act shall not extend
to persons punishable under that Act, so far as
regards offences for which such persons may be
punished thereunder.

How fines under this Act shall be applied.

32. Every fine imposed under the authority of
this Act shall be paid to the Magistrate, who has
imposed the same, or to the Clerk of the Court or
Clerk of the l*eace, as the case may be, and shall
be by him paid over to the County Treasurer for
county purposes if it has been imposed in the

I 1 1

ii i

312

SUMMARY ADMINISTRATION.

Province of Ontario — and if it has been imposed
in any new district in the Province of Quebec,
constituted by any Act of the Legislature of the
lale Province of Canada, passed in or after the
year one thousand eight hundred and fifty-seven,
then to the Sheriff of such District as Treasurer of
the Building and Jury Fund for such District to
form part of the said Fund, — and if it has been im-
posed in any other District in the said Pro\rince,
then to the Prothonotary of such District, to be by
him applied under the direction of the Lieutenant
Governor in Council, towards the keeping in
repair of the Court House in such District, or to
be by him added to the moneys and fees collected
by him for the erection of a Court House and
Gaol in such District, so long as such fees shall be
collected to defray the cost of such erection ; And
in the Province r.f Nova Scotia to the County
Treasurer for County purposes, and in the Pro-
vince of New Brunswick to the County Treasurer
for County purposes.

Interpretation of certain icords.

33. In the interpretation of this Act the word
"property" shall be construed to include every-
thing included under the same word or the expres-
sion " valuable security," as used in the Act res-
pecting Larceny and other similar offences ; and in
the case of any "valuable security," the value
thereof shall be reckoned in the manner pres-
cribed in the said Act.

SUMMARY ADMINISTRATION.

313

Con. Stat, Can,, Cap. 105 repealed.
Exception.

34. The Act cited in the first section of this Act
chapter one hundred and five of the Consolidated
Statutes of Canada is hereby repealed, except as
to cases pending under it at the time of the coming
into force of this Act and as to all sentences pro-
nounced and punishments awarded under it, as
regards all which this Act shall be construed as
a re-enactment of the said Act, with amendments,
and not a new law.

Commencement of this Act.

35. This Act shall commence and take effect on
the first day of January, in the year of our Lord
one thousand eight hundred and seventy.

:o-
er

Ird
ry-

FORM (A) Sec s. 7.

CONVICTION.

■}

Province of City or

as the case may be of, to wit :

Be it remonibered that on the ' day of

in the year of our Lord , at . A. B.,

being charged before me the undersigned , of the

said (City,) (and consenting to my deciding upon the charge sum-
marily,) is convicted before me, for tliat he the said A. B., &c.,
[stating the offence, and the time and pla>e when and where committed,)
and I adjudge tne said A. B., for his said offence, to be imprisoned
in the (and there kept to hard labour) for the space

Given under my hand and seal, the day and year first ahovc
mentioned, at aforesaid.

J. S. [L. S.]

314

SUMMARY ADMINISTRATION.

FORM (B) See s. 7.

CERTIFICATE OF DISMISSAL.

}

Frovince of City or

as the case may be of. to wit :

I, the undersigned, , of the City or

as the case may be, of , certify that on the day of

in the year of our Lord , at

aforesaid, A. B., being charged before me (and consenting to my
deciding ujjon the charge summarily), for thai lie the said A. B.,
&c., [statitiy the offence charged^ and the time and place when and where
alleged to have been committed,) I did, after having summarily
adjudicated thereon, dismiss the said charge.

Given under my liand and seal, this
day of , at aforesaid.

[L. S.]

FORM (C) Sec s. 11.

CONVICTION UPON A PLEA OF GUILTY.

■}

A, B.,
, of

Province of City or

as the case may be of, to wit ;

Be it remembered that on the day ot

in the year of our Lord , at

being charged before me the undersigned

the said City, (and consenting to my deciding upon the charge
summarily, for that he the said A. B., &c., (slatiny t/ie offence, and
the time and place when and where committed,) and pleading guilty to
such charge, he is thereupon convicted before me of the said
offence ; and I adjudge him the said A. B. for his said offence, to
be imprisoned in the (and there kept at hard labour) for

the space of

Given under my hand and seal, the day and year first above
mentioned, at aforesaid.

J. S. [L. S.]

i t;

CAP. XXXIII.

An Act respecting the trial and punishment of
Juvenile Offenders.

[Assented to 22nd June, 1369.J

Preamble.

HER Majesty by and with the advice and
consent of the Senate and House of Com-
mons of Canada, enacts as follows :

Interpretation of certain exjjressions.

1. In this Act the expression *' any two or more
Justices," shall as respects the Province of Quebec,
include any two or more Justices of the Peace,
the Sheriff of any District except Montreal and
Quebec, the Deputy Sheriff of Graspe, and any
Recorder, Judge of the Sessions of the Peace,
Police Magistrate, District Magistrate or Stipen-
diary Magistrate acting within the limits of their
respective jurisdictions ; — and as respects the Pro-
vince of Ontario, any Judge of the County Court
being a Justice of the Peace, Police Magistrate or
Stipendiary Magistrate, or any two Justices of the
Peace, acting within their respective jurisdic-
tions;— and as respects the Province of Nova
Scotia or the Province of New Brunswick, the
said expression shall mean and include any func-

316

JUVENILE OFFENDERS.

! I
i i

tionary or tribunal invested or to be invested by
the proper legislative authority with power to do
acts usually required to be done by two or more
Justices of the Peace ; — aud the expression " the
Justices" shall have the same meaning as the
expression " two or more Justices of the Peace" as
above delined ; and the expression " the Common
Gaol or other place of coulinement" shall include
any Reformatory Prison provided for the reception
of juvenile offenders in the Province in which the
conviction referred to takes place, and to which
by the law of that Province the offender can be
sent.

Persons not more than sixteen years of age may he sum-
marlly convicted of certain offences before two Justices.

2. Every person charged with having com-
mitted or having attempted to commit, or having
been an aider, abettor, counsellor or i rocurer ij
the commission of any offence which is simple
larceny, or punishable as simple larceny, and
whose age at the period of the commission or
attempted commission of such offence does not,
in the opinion of the Justice before whom he is
brought or appears as mentioned in section seven,
exceed the age of sixteen years, shall upon con-
viction thereof, in open Court, upon his own
confession or upon proof, before any two or more
Justices, be committed to the Common Graol or
other place of confinement within the jurisdiction
of such Justices, there to be imprisoned with or

JUVENILE OFFENDERS.

317

i by
o do

"the

s the

ce" as

imon

elude

sption

chthe

which

an be

he sum-

CCS.

com-

aving
irer ii
simple
and
lion or

;s not,
li he is

seven,
111 con-

s own
|r more

raol or

Liction
dth or

without hard labour, for any term not exceeding
three months, or, in the discretion of such Justices,
shall forfeit aud pay such sum, not exceeding
twenty dollars, as the said Justices may adjudge.
All persons whose age at the period of the commission or
attempted commission of the offence, shall not in the opinion
of the Justice before whom he is brought or appears, exceed
sixteen years can be tried under this Act for the commission
of the following offences :

1. Simple larceny.

2. Attempt to commit simple larceny.

3- Aiding, abetting, counselling or procuring the commis-
sion of simple larceny.

4. Committing any oflFence delared to be punishable as
simple larceny.

{Vide these offences in note A iufra.)

5. Attempting to commit any offence declared to be punish-
able as simple larceny.

6. Aiding, abetting, counselling or procuring the commis-
sion of any offence declared to r punishable as simple lar-
ceny.

In the Province of Quebec in the event of any person
apparently under the age of sixteen years being convicted
before a Judge of the Sessious of the Peace, Recorder, Dis-
trict or Police Magistrate of any offonce for which he would be

A. Offences re/erred to in No. 4, supra.

Besides the offence of Simple Larceny and those numbered
above 2, 3, 5, the offences referred to in number 4, appear
to be those declared by the 32 & 33 FiC, c. 21, ss. 14, 20, 21j
22 {on third conviction), 20 (on second conviction), 110,
111, to be jmniifhable as Simple Larceny.

I i

Mi
■ ill il

318

JUVENILE OFFENDERS.

liable to imprisonment, he may be sentenced on such convic-
tion to be detained in a certified Keformatory School for any
term not less than two years nor more than five years, or to
such imprisonment in a certified Reformatory School after an
imprisonment under this section in a Common Gaol. (Vide
32*& 33 Vic. c.34, s. 2).

Defendant to be asked if he consents to be so tried.

And if he does not consent.

3. The Justices before whom any person is
charged and proceeded against under this Act,
before such person is asked whether he has any
cause to shew why he should not be convicted,
shall say to the person so charged, these words,
or words to the like affect :

" We shall have to hear what you wish to say
" in answer to the charge against you ; but if you
"wish to be tried by a Jury, you must object now
" to our deciding upon it at once :"

And if such person, or a parent or guardian of
such person, then objects, such person shall be
dealt with as if this Act had not been passed ; but
nothing in this Act shall prevent the summary
conviction of any such person before one or more
Justices of the Peace, for any offence for which
he is liable to be so convicted under any other
Act.

For cases wherein a person can be summarily convicted
without his consent. Vide 32 & 33 Vic. c. 32, ss. 15 i& 16
ante pp. 304, 305 k 298.

JUVENILE OFFENDERS.

319

11 of

Ibnt

[ary

Lore

ich

Iher

Icted
16

Case dismissed if offence is not proved, (S:c.
Form of certificate in such case.

4. If the Justices, upon the hearing of any such
case, deem the offence not proved, or that it is not
expedient to inflict any punishment, they shall
dismiss the party charged, in the latter case on his
finding sureties for his future good behaviour,
aud in the former case without sureties, and then
make out and deliver to the party charged, a cer-
tificate under the hands of such Justices stating
the fact of such dismissal.

Such certificate shall be in the form or to the

effect set forth in the form following :

, ) We , one of Her

To wit: I Majesty's Justices of the Peace

for the , of , (or if a Recorder,

Sfc.,) I, a , of the

of , as the case may be) do hereby

certify, that on the day of ,

in the year of our Lord, , at ,

in the said of , M. N.,

was brought before us the said Justices (or me the
said ) charged with the following

offence, that is to say (here state briefly the particu-
lars of the charge), and that we the said Justices
(or I the said ) thereupon dismissed the

said charge.

G-iven under our hands (or my hand) this
day of

320

JUVENILE OFFENDERS.

Justices may send case to he tried hy a Jury, if they see
fit.

5. If the Justices are of opinion, before the
person charged has made his defence, that the
charge is from any circumstance a fit subject for
prosecution by indictment, or if the person charged
upon being called upon to answer the charge,
objects to the case being summarily disposed of
under the provisions of this Act such Justices
shall, instead ofsummarily adjudicating thereupon
deal with the case in aU respects as if this Act, had
not been passed ; but this shall not prevent his
being afterwards tried summarily by his own
consent by a Judge of a County Court in the Pro-
vince of Ontario, under any Act then in force for
that purpose.

No further prosecution for the same offence.

6. Every person obtaining such certificate of
dismissal as aforesaid, and every person convicted
under the authority of this Act, shall be released
from all further or other criminal proceedings for
the same cause.

Compelling party accused to attend.

7. In case any person whose age is alleged not to
exceed sixteen years be charged with an y otteuce
mentioned in section two, on the oath of a credible
witness before any Justice of the Peace, such Jus-
tice may issue his summons or warrant, to summon
or to apprehend the person so charged, to appear
before any two Justices of the Peace, at a timo and
place to be named in such summons or warrant.

JUVENILE OFFENDERS.

321

Power to remand or take hail.

8. Any Justice or Justices of the Peace, if he or
they think fit, may remand for further exami-
nation or for trial, or sutfer to go at large upon
his finding sufficient sureties, any such person
charged before him or them with any such offence
as aforesaid.

Condition of recognizance.

9. Every such surety shall be bound by racog-
nizance to be conditioned for the appearance of
such person before the same or some other Jus-
tice or Justices of the Peace for further exami-
nation, or for trial before two or more Justices of
the Peace as aforesaid or for trial by indictment
at the proper Court of Criminal Jurisdiction, as
the case may be.

Enlarging or discharging recognizance.

10. Every such recognizance may be enlarged
from time to time by any such Justice or Justices
or Court to such further time as he or they appoint ;
and every such recognizance not so enlarged shall
be discharged without fee or reward when the
the party has api^eared according to the condition
thereof

Summoning witriesses.

11. Any Justice of the Peace may, by summons,
require the attendance of any person as a witness
upon the hearing of any case before two Justices
under the authority of this Act, at a time and place
to be named in such summons.

'I'll

\ 1

322

JUVENILE OFFENDERS.

If i

ji 'f

i \

Binding witnesses over.

12. Any such Justice may require and bind by
recognizance all persons whom he considers neces-
sary to be examined touching the matter of such
charge, to attend at the time and place appointed
by him, and then and there to give evidence upon
the hearing of such charge.

Compelling attendance in case of rejusal.

13. In case any person so summoned or required

or bound as aforesaid, neglects or refuses to attend

in pursuance of such summons or recognizance,

then upon proof being first given of such person

having been duly summoned as hereinal'ter men-
tioned or bound by recognizance as aforesaid,

either of the Justices before w^hom any such person

ought to have attended, may issue a warrant to

compel his appearance as a witness.

Summons to witness how served.

14. Every summons issued under the authority
of this Act, may be served by delivering a copy
thereof to the party, or to some inmate at such
party's usual place of abode, and every person so
required by any writing under the hand or hands
of any Justice or Justices to attend and give evi-
dence as aforesaid, shall be deemed to have been
duly summoned.

Foi'ni of conviction.

16. The Justices before whom any person is
summarily convicted of any such offence as here-
inbefore mentioned, may cause the conviction to

JUVENILE OFFENDERS.

323

be drawn up in the following form, or in any other
form of words to the same eiOfcct, (varying the
wording to suit the case,) that is to say :

, I Be it remembered that on the
To wit : i day of , in the year of our

Lord one thousand eight hundred and , at

, in the District of ,

(County or United Counties. &c., or as the case may
be) A. O. is convicted before us J. P. and J. R.,
two of Her Majesty's Justices of the Peace lor the
said District (or City, &c.,) or me, S. J., Recorder^
&c., , of the of

or as the case may he) for that he the said A. O. did
{specify the offence and the time and place ivhen and
where the same luas committed^ as the case may be, but
without settinfn; forth the evidence), and we the said
J. P. and J. R. (or I the said S. J.) adjudge the
said A. 0. for his said offence to be imprisoned in
the (or to be imprisoned in the

and there kept at hard labour, for the
space of , (or we (or I) adjudge the

said A. O. for his said offence to forfeit and pay

, (here state the penalty actually imposed,)
and in default of immediate payment of the said
sum, to be imprisoned in the (or to

be imprisoned in the , and kept to

hard labour) for the space of , unless

the said sum shall be sooner paid.

Griven under our hands and seals (or my hand
and seal) the day and year first above mentioned

324

JUVENILE OFFENDERS.

i ti'

ii ' '«i>l

11 !

And the conviction shall be good and effectual
to all intents and parposes.

Vide as to Statement of Oflfence under 32 and 33 Vic. c.
31 ante p.p 184-200.

Conviction not void for want of form.

No certiorari.

16. No such conviction shall be quashed for
want of form, or be removed by certiorari or other-
wise, into any of Her Majesty's Superior Courts
of Record , and no warrant of commitment shall
be held void by reason of any defect therein, pro-
yided it be therein alleged that the party has been
convicted, and there is a good and valid conviction
to sustain the same.

Vide ante pp. 234, 235.

Convictions to he sent to the Clerks of the Peace, &c.

17. The Justices before whom any person is
convicted under the provisions of this Act, shall
forthwith transmit the conviction and recognizan-
ces to the Clerk of the Peace for the district, city,
county or union of counties wherein the offence
was committed, there to be kept by the proper
officer among the records of the Court of Greneral
or Quarter Sessions of the Peace, or of any other
Court discharging the functions of a Court of
General or Quarter Sessions of the Peace.

Returns to Secretary of State.

18. Each such Clerk of the Peace shall transmit
to the Secretary of State of Canada, a quarterly
Teturn of the names, offences and punishments

JUVENILE OFFENDERS.

325

mentioned in the convictions, with such other
particulars as may from time to time be required.

No forfeiture, hut restitution nufij he ordered.

19. No conviction under the authority of this
Act shall be attended with any forfeiture, except
such penalty as may be imposed by the sentence,
but whenever any person is adjudged guilty under
the provisions of thitj Act, the presiding Justice
may order restitution of the property in respect
of which the offence was committed, to the owner
thereof or his representatives.

Vide as to Ilcstitution ante.

Or the pot/ men t of value in money.

20. If such property be not then forthcoming,
the Justices, whether they award punishment or
dismiss the complaint, may inquire into and
ascertain the value thereof in money, and if they
think proper, order payment of such sum of
money to the true owner, by the person convicted,
either at one time or by instalments, at such
periods as the Court deems reasonal)le.

Tbi.s section and the nineteenth are contradictory in tlieir
provisions, under the nineteenth it is only when the accused
is adjudged guiUy that restitution can be ordered, but under
this clause if the complaint is dismissed it is impossible that
the accused be considered convicted, and yet when the com-
plaint is dismissed the Justices can order payment of a fcum
representing the property by the person convicted.

Recovery of such value,

21. The party so ordered to pay may be sued

326

JUVENILE OFFENDERS.

for the same as a debt in any Court in which
debts of the like amount may be by law recovered,
with costs of suit, according to the practice of such
Court.
Enforcing payment of penalties.

22. Whenever^the Justices adjudge any offender
to forfeit and pay a pecuniary penalty under the
authority of this Act, and such penalty is not
forthwith paid, they may if they deem it expedient,
appoint some future day for the payment thereof,
and order the offender to be detained in safe cus-
tody until the day so to be appointed, unless such
offender gives security to the satisfaction of the
Justices for his appearance on such day, and the
Justices may take such security by way of reco-
gnizance or otherwise at their discretion.

Committal for non-payment.

23. If at any time so appointed such penalty
has not been paid, the same or any other Justices
of the Peace may, by Warrant under their hands and
seals, commit the offender to the Common Groal
or other place of confinement within their juris-
diction, there to remain for any time not exceed-
ing three months, reckoned from the day of such
adjudication ; such imprisonment to cease on pay-
ment of the said penalty.

Costs of prosecution may he awarded.

24. The Justices before whom any person is
prosecuted or tried for any offence cognizable
under this Act, may, in their discretion, at the

JUVENILE OFFENDERS.

327

In IS

lable
the

request of the prosecutor or of any other person
who appears on recognizance or summons to pro-
secute or give evidence against such person, order
payment to the prosecutor and w^itnesses for the
prosecution, of such sums of money as to them
seem reasonable and sufficient, to reimburse such
prosecutor and witnesses for the expenses they
have severally incurred in attending before them,
and in otherwise carrying on such prosecution,
and also to compensate them for their trouble and
loss of time therein, and may order payment to
the Constables and other Peace Officers for the
apprehension and detention of any person so
charged.

Even ivithout conviction.

25. And although no conviction takes place, the
said Justices may order all or any of the payments
aforesaid, when they are of opinion that the par-
ties or any of them have acted bond fide.

The payment of the monies so ordered,^should be made by
the OflBcer in each Territorial Division to whom fines impo.sed
under the authority of this Act are required to be paid over
in the District, City, County or Union of Counties in which
the offence was committed or is supposed to have been
committed. ( Vide s. 28 post). It is to be remembered how.
ever that the sum total of costs charges and expenses
attending any prosecution cannot exceed eight dollars. { Vide
s. 27 post).

To whom and for what purpose Jine.s shall he paid over.

26. Every fine imposed under the authority of
this Act shall bo paid to the Justices who impose

[ I

328

JUVENILE OFFENDEIW.

the same, or to the Clerk of the Recorder's Court,
or the Clerk of the County Court, or the Clerk of
the Peace, or other proper officer, as the case may
be, and shall be by him or them paid over to the
County Treasurer for County purposes, if the
same was imposed in the Province of Ontario ;
an.d if it was imposed in any new district in the
Province of Quebec, then to the Sheriff of such
district as Treasurer of the Building and Jury
Fund for such district, to form part of the said
Fund, and if it was imposed in any other district
in the Province of Quebec, then to the Prothono-
tary of such district, to be by him applied, under
the direction of the Lieutenant Governor in Coun-
cil, towards the keeping in repair of the Court
House in such district, or to be by him added to
the moneys or fees collected by him, for the erection
of a Court House or Goal in such district, so long
as such fees are collected to defray the cost of
such erection, and if it was imposed in the Pro-
vince of Nova Scotia it shall be paid over to the
County Treasurer, for County purposes, and if it
was imposed in the Province of New Brunswick,
it shall be paid over to the County Treasurer, for
County purposes.

Certificate of expenses.

27. The amount of expenses of attending before
the Justices and the compensation for trouble and
loss of time therein, and the allowances to the
Constables and other Peace Officers for the appre-

JUVENILE OFFENDERS.

329

hension and dotontion of the offendor, and the
allowances to be paid to the prosecutor, witnesses
and constables for attending at the trial or exami-
nation of the offender, shall be ascertained by and
certified under the hands of such Justices, but
the amount of the costs, charges and expenses
attending any such prosecution, to be allowed and
paid as aforesaid, shall not in any one case exceed
the sum of eight dollars.

By whom such expenses ahoH he pnul.

28i Every such order of payment to any prose-
cutor or other person, after the amount thereof has
been certified by the proper Justices of the Peace
as aforesaid, shall be forthwith made out and
delivered by the said Justices or one of them, or
by till? Clerk of the Recorder's Court, Clerk of the
County Court or Clerk of the Peace, as the case
may be, unto such prosecutor or other person,
ui^on such Clerk being ]iaid his lawful fee for the
same, and shall be made upon the ollicer to whom
fines imposed under the authority of this Act are
recjuired to be paid over in the district, city, county
or union of counties in which the offence was
committed, or was supposed to have been commit-
ted, who upon sight of every such order, shall
forthwith pay to the person named therein, or to
any other person duly authorized to receive the
same on his behalf, out of any monies received by
him under this Act, the money in such order
mentioned, and shall be allowed the same in his
accounts of such moneys.

330

JUVENILE OFFENDERS.

Con. Stdt. cap. 106, repealed. Exception.

29. The Act chapter one hundred and six of
the Consohdated Statutes of Canada is hereby
repealed, except as to cases pending under it at
the time of the coming into force of this Act, and
as to all sentences pronounced and punishments
awarded under it, as regards all which this Act
shall be construed as a re-enactment of the said
Act with the amendments hereby made and not
as a new law.

Commencement of this Act.

30 f This Act shall commence and take effect on
the first day of January, in the year of Our Lord
one thousand eight hundred and seventy.

six of
lereby
r it at
3t, aud
imeiits
lis Act
10 said
tud not

iffect on
ur Lord

CAP. XXXIV.

An Act respecting Juvenile Oftenders within
the Province of Quebec.

[Aeaenfed to 22W June, 1869.]

Preamble.

WHEREAS the Legislature of the Province of
Quebec, during its now last Session, passed
an Act making certain provisions lor the establish-
ment of Certified Reformatory Schools, and the
law respecting prisons for yonng offenders requires
to be amended so as to meet the provisions of the
said Act : Therefore, Her Majesty by and wdth
the advice and consent of the Senate and House
of Commons of Canada^ enacts as follows :

Part Cap. 107, of Con. Stat. Can. rqjeakd.

1. In so far as respects the Province of Quebec,
the sections five, six, seven, eight, nine, ten, eleven
and twelve, of the chapter one hundred and seven
of the Consolidated Statutes of Canada, intitled :
An Act respecting' Prisons for young Offenders, are
hereby repealed, except as respects person under
sentence when this Act comes into force.

Offenders under 16 t/car6 mai/ be sent to lie/ormatory
Schools.

2. Whenever after the passing of this Act, any
person apparently under the age of sixteen years

332

JUVENILE OFFENDERS.

is convicted before any Court of Criminal Juris-
diction or before any Judge of the Sessions of the
Peace, Recorder, District or Police Magistrate, of
any offence for which he would be liable to impri-
sonment, he may be sentenced on such conviction,
to be detained in a Certified Keformatory School
for any term not less than two years, nor more
than five years, or he may be sentenced to be first
imprisoned in the Common Goal for a period not
in any case exceeding three months, and at the
expiration of his sentence to be sent to a Certified
Reformatory School, and to be there detained for
a period of not less than two years, and not more
than live years.
I'ou'ir to dischurgc.

3. The Lieuteuant-(iovernor may at any time,
in his discri'tion, order that any olfender detained
in such reformatory school under a summary
conviction be discharii'ed.

Rcniorit/ I if iiicorrigibiAtt.

4. The Lieutenant-Governor may at any time,
on the report of one of the Inspectors of Prisons
for the Province of Quebec, order any offender un-
dergoing sentence in any Certified Reformatory
School, on a conviction for felony, to be removed
as incorrigible ; and in any such case the offender
shall be imprisoned in the Penitentiary for the
remainder of the term of his sentence.

Ihtvntion of olpndtrs undrr lit years previous to tri<if.

5. Any person appiirently under the age o{

JUVENILE Oi-FEiVDERS.

333

line,

SUU3

[ un -
itory
loved
liider
the

sixteen years, arrested on a charge of having
committed any offence not capital, shall not v hile
aw^aiting trial ibr such offence, be detained in any
common Croal, if there be a Certified lloformatory
School within three miles of such Croal, but shall
be detained in such ]ti»formatory School while
awaiting trial ; and if there be more than one such
School within such distance, the person so charged
shall be detained in that one of thorn which is
conducted the most nearly in accordance with
the religious belief to which his parents belong,
or in which he has been educated.

Punishment of persons hreaklug the Rules of Rrfnrnid-
ton/ School s.

6. If any Offender detained in a Certified Tlefor-
matory School, willfully neglects or willfully
refuses to conform to the rules thereof he shall,
upon summary conviction })efore a Justice or
Magistrate having jurisdiction in thi^ place or
district where the school is situate, be imprisoned
with hard labor, for any term not exceeding three
months ; and at the expiration of the term of his
imprisonment, he shall by and at the expiMise of
the managers of the school, be brought back to
the school from which he was taken, there to be
detained during a period equal to so much of his
period of detention as remained unexj)ired at
the time of his being sent to the prison.

Apprehension of offend) rs csaiping from such S'hooL

7. If any offender sentenced to be detained in

334

JUVENILE OFFENDERS.

a Certified Reformatory School, escapes therefrom
he may at any time before the expiration of hie
period of detention, be apprehended without war-
rant, and if the managers of the school think fit,
but not otherwise, may, (any other Act to the
contrary notwithstanding) be then brought before
a Justice or Magistrate having jurisdiction in the
place or district where he is tound, or in the place
or district where the school from which he escaped
is situate ; and he shall thereupon be liable, on
summary conviction before such a Justice or
Magistrate, to be imprisoned with hard labor, for
any term not exceeding three months ; and at the
expiration of such term he shall, by and at the
expense of the managers of the school, be ))rought
back to the school from which he escaped, there
to be detained during a period equal to so much
of his period of detention as remained unexpired at
the time of his escaping.

Punixfnmut oj' persons didiiiy in esnipc^ cfc.
Jlarhour'iiKj persons csaiping.

8. Every person who commits any of the follow-
ing offences, that is to say :

First — Knowingly assists, directly or indirectly,
any offender detained in a Certified Iteformatory
School, to escape from the school ;

Second — Directly or indirectly induces such an
offender to escape from the School ;

Third — Knowingly harbours, conceals or pre-
vents from returning to the school,or assists in har-

JUVENILE OFFENDERS.

335

bouring, concealing or preventing from returning
to the school any offender who has escaped from a
Certified Reformatory School, shall, on summary
conviction before two Justices, or any Judge of
the Sessions of the Peace, Recorder, Police or
District Magistrate, be liable to a penalty not
exceeding eighty dollars, or at the discretion of the
Justices or other functionary before whom he is
convicted, to be imprisoned for any term not
exceeding two months, with or without hard labor.

A certain Rcfonnntory School recognized.

9. The Reformatory School at present in use in
the Province of Quebec, shall, so long as it is used
for that purpose, be held to be a Certified Reforma-
tory School for the purposes of this Act.

h.ct to ojyplij onljj to Quebec, <C'c.

10. This Act shall apply only to the Province
of Quebec, and any Act relating to criminal law
or procedure passed during the present or the
now last Session of Parliament, shall be construed
subject to this Act, and so much thereof as may
be inconsistent with this Act, shall have nc effect
as respects the Province of Quebec.

Ire-
ar-

CAP. XXXV.

An Act for the more speedy trial, in certain
cases, of persons charged Avith felonies and
misdemeanors, in the Provinces of Ontario
and Quebec.

[Assented to 2'2ml June, 18G9.]
Preamhle.

HEU MAJF.STY, by and with the advice and
consent of the Senate and House of Com-
mons, enacts as follows :

Ccrtiihi (tffenders niai/, hi/ their own consent, he tried hy
a Judge on 1 1/.

1, Any person committ«Kl to a jail for trial on a
charge of bein<jf guilty of any oifence for which
he may be tried at a Court of General Sessions of
the ]\^ace, may, with his own consent, of which
consent an entry shall then be made of record,
and subject to the provisions hereinafter made, be
tried out of Sessions, and if convicted, may be
sentenced ])y the Judge.

The provisions of this Statute apply only to the Provinces
of Qiu'bee and Ontario, It is to be regretted that a uniform
flystem of Criminal Liw apj)lieable to the various J*rovinccB
of the whole Dominion has not as yet been introduced. The
object of the Logishitun in framint^ the Statute now under
consideration was nndoubtedly to do away with the hardship
and cruelty of forcing persons accused of crimes, who are

SPiiEUV TIIIAL OF FELONIES, AC.

337

hces
Lrm

llCCB

rrhe

jder
arc

un:ibk' to find b.iil for tlioir ;ijipo:ir.mco, to rem:iin untried in
Goal for niontlis, in ui-iny cases tliU'^ infliotinj^ punislnnont on
innocent persons.

The ritilit to a trial by jury was for many years rcirarded
as the ;^reat bulwark of the liberty of British subjects; but
now a days the confidence of the public in the perfect fairness
of a jury trial is very niucii weakened, and in a ^reat number
of cases persons iruilty of triflini: offences arc. by the actiou
of Parliament, liable to be condemned on summary convic-
tion by Justices of the Peace to fine and im}trisonment.

The present Statute however eff'ets a much jireater change
ill the law than any of those whieh have prececded it cither
in England or Canada. We have in this instance in the
matter of Law reform L:;onc farther than the mother country;
for whilst there Justices of the Petty Sessions may upon the
plea of j-'uilty beinii' put in before them, in cases of larceny
value exceeding as., ste ding from the j)erson. and larceny as
a clerk or servant, sentence the party cliarged with the
offence ; the jdea of not guilty deprives them of their sum
mary jurisdietion and the accused must be sent befitre a
jury ; our Statute j)rovides that in all eases triable at General
Sessions of the Peace, with his own consent the person accused
cm be tried and senteixjed by the ofliei ds authorisi!d by this
Act summarily, v.ithout the iiitervenlion or aid of a jury.

Conimitinont J'tn- triil.

The }»erson cliarg(!d must be fully committed for trial, even
whore the magi^itrate committing is a Ju'lgc of Sessions or
Distriet Magistrate or Sheriff. The conimitnient for trial is in
fact a condition ])reeedent to the summary trial under this Act.

Off'cncrs tiiabli'.

V'ub- ante pp. 3(>-51 .Jurisdietion of the Quarter Sessions
i'or offenecs e.KCCjiied from the jurisdiction of that Court.

338

SPEEDY TRIAL OF FELONIES, AC.

II 'U

U 11 mi

Consent of prisoner.

The consent must be given by the prisoner personally, and
an entry thereof should be mtide on the record of the cause
immediately upon its being given.

Dufi/ of Sheriff having a jtrisoner so triable.

2t It shall be the duty of every Sheriff within
twenty-four hours after any prisoner charged as
aforesaid is committed to jail for trial, to notify the
Judge in writing that such prisoner is so confined
stating his name and the nature of the charge
preferred against him, whereupon with as little
delay as possible, such Judge shall cause the pri-
soner to be brought up before him.

Statement to be made to prisonrr bi/ Jiufgr,
If prisoner objects — or consents.
Jf he pleads gui/ti/.

3. Having obtained the depositions on which
the prisoner was so committed, the Judge shall
state to him, —

1. That he is charged with the oflence, describ-
ing it ;

2. That the prisoner has his option to be forth
with tried before such Judge without the inter-
vention of a Jury, or to remain untried until the
next sittings of such sessions or of a Court of Oyer
and Terminer, or, in Quebec, of any Court having
criminal jurisdiction ;

8. If the prisoner demands a trial by Jury, the
Judge shall remand him to jail ; but if he consents
to be tried bv the Judo'e without a Jurv, the

SPEEDY TRIAL OF FELONIES, AC.

339

lig

[10

County Attorney or Clerk of the Peace shall draw
lip a Record of the proceedings as nearly as may be
in one of the forms in the Schedules A and B to
this Act ; if upon being arraigned upon the charge
the prisoner pleads guilty, such plea shall }>e
entered in the Record, and the Judge shall pass
the sentence of the law on such prisoner, which
shall have the same force and effect as if passed
at any Court of General Sesions of the Peace.

Jf he pleads not guilty.

Trial .1 and cunt' let ion or dimluirgc

4. If the prisoner upon being so arraigned
and consenting as aforesaid pleads not guilty, the
Judge shall appoint an early day, or the same day,
for his trial, and it shall be the duty of the County
Attorney or Clerk of the Peace to subpcena the
witnesses named in the depositions, or such of
them, and such other witnesses as he may think
requisite to prove the charge, to attend at the time
appointed for such trial, and the prisoner being
ready, the Judge shall proceed to try him. and it
he is found guilty, sentence shall be passed as in
the last preceding section mentioned, but if \\o is
found not guilty, the Judge shall immediately
discharge him from custody, so far as respects the
charge in question.

It is to 1)0 ronu'inberi'i I tliat all |iorsons tried uikIci- this
Act are tried for indictable offences and tliat con.secjueutiy
the provisions of 32 and .'{3 Vic. o. 20 s. 45 apply to tlieni
and that thev are entitled after the close of the case for th<

340

SPEEDY TRIAL OF FKLONIES, AC.

prosecution to niako full answer and defcnco tlicrcto by
Counsel learned in the law. So far as the actual pr()eeedin<rs
at the trial are concerned, tlie rules laid down ior the trial
of a summary prosecution under .'J2 and 33 Vic. c. 31, ante
pp. 179-184 arc ap]>licable with the exception that the Crown
has the ri<;ht of rej.ly.— 32 and 33 Vic. c. 29 s. 45.

The rules applicable to trials <ienerally will apply in the
event of the j»risoner declaring" that lie is not ready to proceed
and care should be taken lest by too «rreat haste injustice be
done. A reasonable time if demanded should bo ^'ranted,
and if on the day fixed for the trial, the witnesses for the
defence be not in attendance, on proof of diliirence by the
pri.soncr or of incap;ibility on liis part to procure their atten-
dance the trial should be fixed for another day.

To he (I Court of I u' cord.

5, Tli(» .Tudg'c sitting' on any such trial lor all
the purposes thereof and in'oceedings connected
there^Yith or relating thereto, is herohy constituted
a Court of liecord, and the record in any such
case shall be iiled among the records of the Court
of General Sessions of the Peace, as indictments
are, and as part of such records.

Wituesscn summoned must attend,

6. Any witness, whether on behalf of the
prisoner or against him, duly summoned or sub-
ptenaed to attend and give evidence belbre such
Judge silting on any such trial on the day appoint-
ed for the same shall be bound to atteiul, and
remain in attendance throughout the whole trial,
and in case he fails so to attend, he shall be ludd
gttilty of contempt of Court, and he may be pro-
ceeded agairist therefor accordingl}'.

SPEEDY TRIAL OF FELONIES, AC.

341

the

lib-

Int-
md
(ial,
I'ld

l*i'<n'cr(Ui\fj (igiiinst H'itiifssi's ftiiluuj to uttrnd when
:iinn)noHc<l.

7. Upon proof to the satislactioii of the Judge
of tho service of siibpoeua upon any witness who
fails to attend before him as required by such sub-
poena and such Judge being satisiied that the pre-
sence of such witness before him is indispensable
to the ends ot Justice, he may by his AVarrant cause
the said witness to b»^ apprehended and forthwith
brought before him to give evidence as required
by suchsubxxLMia, and to answer for his disregard
of the same, and such witness may bQ detained on
such warrant before the said.ludge or in the Com-
mon Cfoal with a view to secure his presence as a
witness or in the discretion of the Judge, such
witness may be released on recognizance with or
without sureties conditioned for his appearance
to give evidence as therein mentioned, and to
answer for his default in not attending upon the
said subpa?na as for a contempt ; the Judge may
in a summary manner examine into and dispose
of the charge of contempt against the said witness,
who if found guilty thereof may be lined or
imprisoned or both, such line not to exceed one
hundred dollars, and such imprisonment to be in
the Common Jail, with or without hard hi])our,
and not to exceed the term of ninety days ; the
said Warrant may be in the form " C," and the
conviction for contempt in tho Form " D," to this
Act, and shall be authority to the persons and

342

SPEEDY TRIAL OF FELONIES, AC.

officers therein required to act, to do as therein
they are respectively directed.

By whom the powers given by this Act may be exercised.

8. All the powtrs and duties hereby conferred
and imposed upon the Judge, shall be exercised
and performed in the Province of Ontario by any
County Judge, junior or Deputy Judge, authorized
to act as Chairman of the General Sessions of the
Peace, and in the Province of Quebec, in any
District wherein there is a Judge of the Sessions,
by such Judge of Sessions, and in any District
wherein there is no Judge of Sessions but wherein
there is a District Magistrate, by such District
Magistrate, and in any District wherein there i»
iieitlier a Judge of Sessions nor a District Magis-
trate, by the Sheriif ot such District.

Kctctit of Art.

9. This Act shall api>ly only to the Provinces
of Ontario and Quebec.

The proper course, it i.s submitted where a witness does
not attend in obedience to a summons or su])pccna, is I'or the
party interested in his <2:ivin|j^ liis tesStimony, to exhibit his
information in writin<jj to the Judge sitting at such trial on
oath, detailing the facts and praying lor a warrant to appre-
licnd such witness in order to obtain his testimony and that
he may be punished for his contempt, (Vide appendix form
No. 3, p. 344.

APPENDIX.

SCHEDULE A.

(1) Form of Record when the Prisoner pleads Not Guilty.
Province of "i Be it rcnu'mben'd that A. R. bein^

County or District of I a prisoner in the Jail of the said County
to wit : j or District, committed for trial on a
charge of having on day of 18 , feloniously

stolen, &c., (one cow, the property of C. P., or ax the case may be,
atatiny bri<Hy the ofence), and being brought before me,

{describe the Judge) on the

day

18 , and asked by

me if he consented to be tried before me without the intervention
of a Jury, consented to be so tried ; and that upon the
day of 18 , the said A. B. being again brought before

me for trial, and declaring himself ready, was arraigned upon the
said charge and pleaded not guilty ; nnd after hearing the evidence
adduced as well in support of the said charge as fur the prisoner'n
defence (or ax the cafe may be) I find him to be guilty of tlie offence
with which he is charged as aforesaid, and I accordingly sentence
him to be (here insert such sentence as the law allovs and the Judge
thinks right,) or I find him n(»t guilty of the offence with

which he is charged, and discharge him accordingly. AVitness my
hand at in the Comity (or District) of , this

tlav of 18 . '

0. K.

Signature of Judge.

SCHEDULE B.

(2) Form of Record when the Prisoner pleads (Juilfy,
Province of \ Be it remembered that A. H. being

County [or District) of I a prisoner in the Jail of the said County,
To wit : j (or District), on a charge of having on
the day of 18 , feloniously stolen, Ac, [one cow

the property of, or as the cane may be, stating britjly (he offence) and
being bK)Ught before me (describe the Judge) on the day

of 18 , and asked by me if he consented to be tried

344

APPENDIX.

before rao without tlu; intervention of a jury, eouHented to be so
tried; and that ilie said A. H. hein^ tlien urraii,'ned uj)on the said
charge, he pleaded K"ilty thereof, wlH-reupou I Henteinf the naid
A. H. to he (A^Tf in-tert such sfiUenre at (he law al/uw.i and the Judge
thinks riijht.) WitneHs n»y iiand tliin day of 180 .

0. K.

Signature of Jmh^e.

(3) INFORMATION TO GROUND A WARRANT AGAINST A WIT-
NESS NOT ATTENDING TO GIVE EVIDENCE AFTER BEIN(»
SUMMONED OR SUBPCENAED. (Not ill Act.)

Canada,
Province of
County {or District) {as the
case may be\ of

to wit :

1). of (fjcoman)

in the vear of our Lord

The information and coinjdaint of (
taken tlic day <»f

before liie tinderMJuiicd (^d/'xenba thr .htdfjo ax tho case
mat/ be) Haith that K. K. in the Haiti County {or District

or as (he case maybr) of laborer, was likely to give material

evidence on liehalf of the prosecution (^or defence as the case tnai/
be) on the trial of a ci-rtain «harge of (Jnrccny or as the case may bf)
against A. B. and that the said E. F. was duly subpaMmed {or bound
under recognizances as the case may br) to appear on the
day of 187 , in the said County (or District or as the

case may br) at o'clock iii the noon before me,

to testify what lio should know concerning the saiil charge
against the said A. IV and that the juesence of the said E. F. before
me was and is indispensable to th<' ends of Justice And that
the said E. F. was duly served with the said subj^oMia {or that he
was duly bound in recognizances to appear l»i'foi>; mv as (he cas/^
may be) as aforesaid. Ami hath neglected to api)ear at the trial
and place api)ointed without just excuse.

Sworn (or aiUrmed) befi»re (me) the day and yi-ar first above
montionetl at

0. K.

Judge.

APPENDIX.

345

W HO

10 Hiiid
*> Hiii<l
' Judijc
ISO .

(/gf.

A WIT-
BEINH

mr L(»rd

^ the cane

l>i,strict

naUriftl

ciine may

mny he)

r bouml

or as the
fore mo,
chiirgc
. before
jid that
tluit hr
,s the case
the trial

st above

lulgo.

(4)

(L.S.)

SCIIKDL'LK C.

Ciiiiada,

I'roviini- of

To all or any of the ronstablcsor
other I'lacL- otlicirs in tiie i»aiii
(County (or District) as thf case may
ft,) of "

County (0/- Distrit t| ('/.«( the
case may hi) of
to wit :

WluTcas it having' bitii niadf to a|»[»(ar bffun' nu' that K. K.,
in the said County (or District) (or a.f thr caspmay he,] was liki-ly to
give material evidence on belialf of the prosecution or defence
{as the case may he) on th«' trial of a certain char'-re of
larceny) {or an thr cant' may hi'.\ aj^jiinst A. 15. . and tiiat the said K
wan didy su|)bunae(l uiboun<l under rccoj;ni/>aiicert as the case may
be) to ai)pear on the day of , 18 , at

in the said (County or District) (./.•( the case may he,) at
o'clock (forenoon or afternoon, ^.i //ip case may be,) before ne- to
toHtify what he should know concerning the said charge against
the said K. F.

And whereas proof hath this day been made before me upon
oath of such subpcena havin^'^ been tluly served upon the said H. K.,
or of the said K. K. having hi'vu duly bound in recognizances to
apjx-ar before me) in.t the case may he ;) And when as tiic said K. l"\,
hath neglected to appear at the trial and place appointed and no
just excuse has been olVered for su( h neglect ; 'J'hese are there-
fore to coinnumd you to take the said K. F., and to bring and have
him forthwith before mo, to testify what he shall know concerning
the said charge against tin; said A. I!., and also to answ( r his
contempt for such negleit.

(liven under my hand thi.j ilay of

vear of Our Lord 18 .

in the

0. K.

J u J^e.

(^)

JSCIIEDrj.E D.

Be it remembered that on the
day of in the year of our Lord

18 , in the (County or District as llu-
case Jii'iy h') of E. F. is convicted

said K. F. did not atteiul befor*' me to
give evidence on tin; trial of a certain charge against one A. 15. of
larceny, ('>/• as the case mty ic) although duly subpieiiaetl (or bound

L,8. Canada,
Province of

(County or Distriet)
T(i wit :
before me, for that he th

346

APPENDIX.

by recognizance) to appear and give evidence in that lK'l»alt («m the
eate mat/ be) but made default therein, and hath not shewn beforo
mc any sufficient excuse for such default, and I adjudge the said
E. F for his said offence to be imprisoned in the Common (Jaol of
the (County or District) of at for the space

of there to be kept at hard labor (and in cafe a fine it

alto intended to be imj>oied, then proceed.) And 1 alno adjudge that
the said E. F, do forthwith pay to and for the use of Her Majesty
a fine of dollars, and in default of payment that the said

fine v/ith the costs of collection be levied by diHtress and sale of
the goods and chattels of the said E. F. {or in case a fine clone it
impoted, the rlatite/or imprisonment will be omitted.)

Given nnd» i my hand at in the said (County or District)

of the day and year first above mentioned.

0 K

Judge

CAP. XXXVL

An Act respecting the Criminal Law, and to
repeal certain enactments therein mentioned.

[Assented to 22nd June. 1869.J
Preamble.

WHEREAS by the several Acts of the Tarlia-
ment of Canada, passed in the now last
Session and present Session thereof respectively,
and mentioned in the Schedule A to this Act,
divers Act and parts of Acts^and provisions of
law, heretofore in force in the late Province of Ca-
nada and in the Provinces of Nova Scotia and New
Brunswick, have been assimilated, amended and
consolidated, and it is expedient *o provide for the
repeal thereof, and of so much oi any other Acts
or provisions of law as may be ^contrary to or
superseded by the said Acts mentioned in Sche-
dule A ; Therefore Her Majesty^by and with the
advice and consent of the Senate and House of
Commons of Canada, enacts as follows :

Avfs and vnactments in iSchedidr B. njuaUd.

1. The Acts and parts of Act« nientioiiod in Sche-
dule B hereunto anut^xed, are horchy repealed, as
are also all other Acts and parts of Acts and provi-
sions of law, contrary to or inconsistent with the
Acts mentioned in Scliedule A or any of them,

subject to the following provisions :

348

CRIMINAL LAW — REPEAL.

Exception as to subjecis under control <>/ Locnf LegU-
hit n rex.

Such repeal shiill not extend to matters relatiuij
solely to subjects as to which the Provincial Le-
irislatures have, under the British North America
Act, 18(j7, exclusive powers of leg'islation, or to
any enactment of any such Legislature for en-
forcing l)y fine, penalty or imprisonment any law
in relation to any such subject as last aforesaid, or
to any municipal IJy-law relating to any ollence
within the scope ol the powers of the municipality:

Not t't (ijf'f'.ct certain Acts of the Dominion, or Acts
nia/cimj provision on the S'(me subject as Acts in t^cJicduie
A d'C.

Such repeal shall not extend to any provision
of any Act of (he Parliament of Canada, creating,
or providing for the punishment of any ollence
against such Act, or for the proceedings for en-
forcing such provision, — or to any other Act or
enactment not mentioned as repealed in Schedule
IJ, and not contrary to the Acts mentioned in
Schedule A, or any of them, but making special
provision for the punishment of any ollence, or as
to the proceedings for the prosecution and convic-
tion of t)ie oll'ender, other than that made in the
Acts in Schedule A or any of them for a like pur-
postj : — but in any such case the ollender may be
indicted or otherwise proceeded against, and con-
victed (summarily or otherwise as the case may
be,) and punished, either undt*r any of the Acts

CRIMINAL LAW — IlEPEAL

34i>

mentioned in kSchedule A, or any other Act of the
Parliament of Canada, or under any such Act or
enactment as aforesaid not mentioned as repealed
in Schedule B : —

As to itjfvni't's i'Dinmittcd and thii'ga Jour jtrior to suck
rvjtcaf.

Every offence wholly or partly committed
against any Act or enactment hereby repealed^
prior to such repeal, shall ])e dealt with, inquired
of, tried, determined and punished, and every
penalty in respect of any such offence shall l)e
recovered, in the sanu^ manner as il the said Acts
and enactments had not been repealed : and every
act dulv done, and everv AV'arrant and other instru-
ment duly made or i»ranted before such repeal,
shall continue and be of the same force and effect
asiftlu^said Acts and enactments had not been
repealed; aiul every rii'ht, liabililv, privilege and
protection in respect of any mattr-r or thing com-
mitted or done before such rei>eal, shall continue
and l)e of the same forc<^ and ellect as if the said
Acts and enactments had not been rc])ealed, and
every action, prosr^cution or other ])roceeding
coraiat'iieed before such repeal, or th(n'(>a ft im* com-
menced in respect of any such matter or thing,
may be prosecuted, continued and defended as il
such Acts and enactments had not been repealed.

As t(t crime (tf Jlujli Tt'i'Otun.

2. Nothing in any of the Acts mentioned in
iSchedule A shall aiie<*t th"C •inie, of High Treason,

350

CRIMINAL LAW — REPEAL.

except only as respects cases punishable under
the provisions of the Act for the better security of
Iuk, Croivn and of the Govermnent, mentioned in the
said Schedule.

Special provision (is to prremjttorij rhatlruyrx and war-
rants iu New Brunswick.

3. The provisions in the Act respecting proce-
dure in criminal cases and other matters relating
to criminal law, as to the number of peremptory
challenges allowed to prisoners in criminal cases,
shall not apply to any trial to l^e had in the Pro-
vince of New Brunswick, before the iirst day of
January, in the year of Our Loid one thousand
eight hundred and seventy-one ; and until after
tiie said day, a warrant issued by a Justice of the
Peace in the said Province, may as heretofore be
executed in any part thereof, without being
backed.

And as to scats to wurrantui, there and in olhrr ptnts of
Canada.

4. No provision in any of the Acts mentioned
in the said Schedule A requiring any warrant or
document issued or granted by any Justice of the
Peace, to be under seal, shnll apply to any such
instrument or document issued or granted in the
I*rovince of New llrunswick l)efore the day last
aforesaid ; and if in any such instrument or docu-
ment issued in any Province in Canada at any
time, it is stated, that the same is given under the
hand and seal of any Justice, sig!iing it, such seal

CRIMINAL LAW — REPEAL.

351

•Ai
Ue

111-

lie

shall be presumed to have been affixed by him»
and its absence shall not invalidate the instru-
ment, or such Justice may at any time thereafter
affix such seal with the same ellect as if it had
been affixed when such instrument was signed.

t^fxcitil provision us to imjirisonnicnt in New Brunswick
or No I'd ASi'otid.

5. Notwithstanding any provision in any of the
Acts mentioned in Schedule A, that any term of
imprisonment less than two years shall be in some
gaol or place of confinement other than the Peni-
tentiary, ^ny offender sentenced under any such
act before the day last aforesaid in New Bruns-
wick or Nova Scotia, to imprisonment for a term
less than two years, may in the discretion of the
Court passing such sentence be sentenced to un-
dergo such imprisonment in the Penitentiary of
the Province where the sentence is passed, ins-
tead of beim»' sentenced to uiiderffo ihe same in
any other gaol or place of confinement, and any
such provision as first aforesaid, shall })e construed
subject to this section.

As to tid njficers to whom mogniz'tncoi urr to hi tnint-
miifed in Ontario (ind tlscwhrre.

6- In all cases when a party who has entered
into a recoguizaiUM' under the Act rr^iperh'it^- Ike
dudes of Justices of the Pene out of Sessions, in rela-
tion to suiitmar// eon vie t ions find orders, has failed to
appear according to the condition of such recog-
nizance, and his default lirs been cerlilied by the

352

TRIM IN A r. LAW — REPEAL.

I;
I

trj

Justico or .lustices as thort'iii provided, the pro-
per Ofiieor to whom Iho reconnizaiice and certi-
ficate of default are to bo traiismilted in the
Province of Ontario, sliall l)e the Clerk of the
Peace oi* tlie County lor \vhich such Justice or
Justices are ap])()inted or are acting, and (lie Court
of Cieneral Sessions of the Peace for such Couniy
sliall, at its then next Sitlin;jc, order »11 such re-
coL»-nizances to hi* ibrfeited and estreated, and the
same shall l)e enforced and collected in the same
manner and suhjccl to tin* same conditions as any
lines, Ibrfeitures or amercements im[)osed by or
forfeited before such Court ; and m the otlier
Provinces of Canada, tlit> " proptn- Ollieer" to
whom any such recognizance and certilicate shall
be transmitted, shall l)e (hf Oilicer to whom like
roco^'nizances have bi'en heretofore accustomed
to bo transmitted uiuUm* the law in force before
the coming into force of the said Act, and such
recognizances shall be enforced and collected in
the same mann«'r as like recognizances hav»' liere-
tofore been.

-.I.s to nttinix hji f'n Jnxtias of f/tr Pvitcf.

7. Mo return purporting to l)i« madr by anv
Justice of the Peace; under the Act last above
cited, shall be vitiated by tiie fact of its including,
by mistake, anv convictions or or<h»rs had or made
b;'fore him in anv matter ovi'r which anv Provin-
cial ]jcgislaturi» has t'xclusive juris lictiini, or w4th
r<'spect to which he may have acted under the
authority of any Provinciii! law.

CRIMINAL LAW — REPEAL.

353

v«*

iu-
ilh

Cf.rt'tuL .V<Kjint)'(ttt'n to htive the power of two Justices.

8- Any Judge of the Sessions ol' the Peace or
any District Magistrate, in the Province of Quebec,
shall in all cases have all the powers vested in two
Justices of the Peace by any Act mentioned in
Schedule A, or any other Act relating* to Criminal
law, in force in that Province.

When the rejyeui tlinll take (J\et.

9- The foregoing provisions of this Act, and
the repeal of the Acts and enactments therein
referred to, shall take elfect on and after the lirst
day of January, in the year of our Lord, one
thousand eight hundred and seventy, and not
before, except as to such of the said Acts and
enactments as are contrary to or inconsistent with
the Acts mentioned in Schedule A, as being passed
in the now last Session of the Parliament of
Canada, which shall be lield to have )>een repealed
from the time when the Act or Acts to or with
which they are contrary or inconsistent, came into
force.

II>nr this Act nhnll he eonstnied,

10- This Act shall l)e construed as having been
passed after the Acts of the present Session men-
tioned in Schedule A, and as amending and
explaining them.

SCIIKDULE A.

ACTS OF THE PARLIAMENT OF CANADA.

Acts pasucd in the Session o/lSGT-S, 3\st Victoriit.

CHAPTER.
14
15

02
ijj)

70
71

73
74

TITLE.

An Act to protect the inliabitants of Canada
au'ainst lawless ap;gi'ession.s from subjects of
foreign countries at peace with Her Majesty.

An Act to prevent the unlawful training of per-
sons to tlic use of arms, and the practice of mi-
litary evolutions; and to authorize Justices of
the l*e{ice to seize and vletain arms collected or
kept for purposes dangerous to the public peace.

An Act respecting the manufacture or importation
of copper coins or tokens. .

An Act respecting Ilaroor Police.

An Act for the better security of the Crown and
of the (.iovernment.

An Act respecting Kiots and Riotous Assemblies.

An Act respecting forgery, perjury and intimida-
tion in connection with the Provincial Legisla-
tures and their Acts.

An Act respecting iiccessories to, and abettors of
indictable offences.

An Act respecting Police of Canada.

An Act respecting persons in custody charged
with high treason or felony.

An Act res|)ecting penitentiaries and the Direc-
tors tiicreof and for other purposes.

ACTS OF THE PARLIA3IENT OF CANADA.

355

k-cd

Acts passed ill the pnscnt Session of the Parliament of

Canada.

An Act to remove doubts as to Lojrislation in Canada,
regarding oflfcnces not wholly committed within its limits

An Act respecting offences relating to the Coin.

An Act respecting Forgery.

An Act respecting offences against tlie Person.

An Act respecting Larceny and other similar offences.

An Act respecting malicious injuries to Property.

An Act respecting Perjury.

An Act for the better preservation of peace in the vici-
nity of Public Works.

An Act respectinti certain offences relative to Her Majes-
ty's Army and Navy.

An Act for the better protection of Her Majesty's Mili-
tary and Naval Stores.

An Act respecting Cruelty to Animals.

An Act respecting Vagrants.

An Act respecting Procedure in Criminal Cases and
other matters relating to Criminal Law.

An Act resp<x'ting the duties of Justices of the Peace,
out of sessions, in relation to jx;rsons charged with Indict.'ible
. Ofllenccs.

An Act respecting the duties of Justices of the Peace,
out of sessions, in relation to Summary Convictions and
Orders.

An Act respecting the prompt and summary administra-
tion of criminal justice in certain cases.

An Act respecting the trial and punishment of Juvenile
Offenders.

An Act respecting Juvenile Offenders within the Pro-
vince of Quebec.

An Act for the more speedy trial in certain ca.ses of per-
sons charged with feloni(*s and misdemeanors, in the Pro-
vinces of Ont.irio and Quebec.

irec-

SCIIEDULK 13.

ACT8 OF THE LEdlSLATCUE OF THE LATE rROVINCE OF

CANADA.

Consolldutcd Statu fcs of Cxnaihi.

Reference
to Act.

TITLE OF ACT.

Extent of
Kepeal. *

The whole.

Cli.'ipter !j(l An Act respeetint:; tlie .sale of'

liitoxieatinj^ Li(|unr.s near

Tublie Works.
Chapter 90 An Act respecting OffenccH

j against the State.
Chajjter 01 An Act respecting Oilences

I against the IVr.son.
Chapter 02|Au Act respecting Offences

against IVi^on and Property.
Chapter 03 An Act res])eeting Arscm and

other Malicious Injuriui to

Property.
Chapter 04 An Act respecting Forgery.
Chapter 00 An Act re.sjiecting Cruelty tO:The whole,

! Animals.
Chapter OOAn Act respecting the Procc-The whole, ex-

The whole.
Tiie whole.
The whole.
The whole.

The wliole.

dure in Criminal Cases.

cept sections
eighty-seven,
ninety-seven,
one hundred
and twentv.
and one hun-
dred and
twenty- one.

ACTS OF THE PARLIAMENT OF CANADA.

357

on,
on,
roil

in-

Refercuec
to Act.

TITLE OF ACT.

Extent of
llepeal.

Chapter 102 An Act respecting the Duties otjThe whole, cx-
Ju.stices of the Peace, out of] cept section

SesHJons. ill relation to per-
sons eliarged with Indictable
Oflfeuces.

fifty-nine.

Chapter 103 An Act rospectinp: the Duties ot The whole, ex-
Justices of the Peace, out of cept, sections

Chapter 105

Sessions, in relation to Sum-
mary Convictions and Orders.

seven t3'-four,
sevcnty-tivc,
seventy-six,
seventy-se-
ven, seventy-
eight, seven-
ty-nine,
eighty,
eighty-one,
and eighty-
five.

An Act respecting the prompt The whole, ex-
and summary administration! cept sections
of Criminal Justice in certain thirty-one,

cases.

thirty-two,
and thirty-
three.

Chapter lOG An Act respoctingthe trial and, The whole, ex-
punishment of Juvenile Offen- cept sections

ders.

SIX, seven,
and eight.

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358

ACTS OP THE PARLIAMENT OP CANADA.

Acts passed since the Consolidation of the Statutes.

Reference
to Act.

23 v., c. 37

24 V,, c. 7

24 v., c. 10

24 v., c. 11

24 v., c. 12

TITLE OF ACT.

Extent of
Repeal.

24 v., c. 14

24 v., c. 15

An Act for the further protec-iThe whole,
tion of Growing Timber.

An Act to amend the Law rclat- The whole,
ing to the unlawful Adminis-
tering of Poison.

An Act to prevent vexatious In- The whole,
dictments for certain Misdea-

mcanors.

An Act to amend the Prison
and Asylum Inspection Act

An Act to amend tbe one hun-
dred and eleventh chapter oi,
the Consolidated Statutes of
Canada, intituled : " An Act
respecting the Provincial Pe
nitentiary of Canad?."

iir. Act to abolish the right of
Courts of Quarter Sessions
and Recorders' Courts to try-
Treasons and Capital Felo-
nies

An Act to amend the one hun-
dred and second chapter of the
Consolidated Statutes of Ca-
nada, intituled : " An Act
respecting the duties of Justi-
ces of the Peace, out of Ses-
sions in relation to persons
charged with Indictable OflFen-
ces."

The whole.
The whole.

The whole.

The wliole.

ACTS OF THE PARLIAMENT OF CANADA.

359

Reference
to Act.

24 v., c. 26

27, 28 v., c.
19.

29 v., c. 13

29 v., c. 14

TITLE OF ACT.

Extent of
Repeal.

,29,

30
5

v.,

29, 30 v.,
c. 121

An Act to amend and consoli- Section thirty-
date the Laws respecting the six.
Recorders' Court of the City
of Quebec.

An Act to amend and consoli- The whole,
date the Law lespccting Acces-
sories to and Abettors of In-
dictable Oflcnces, and for other
purposes relative to the Cri-
minal Law,

An Act for abolishing the Punish- The whole,
ment of Death in certain cases.

An Act to provide more fully The whole,
for *he punishment of Offen-
ces i:gainst the Person, in res-
pect to the crime of Kidnap-
ping.

An Act to prevent the unlawful The whole,
training of persons to the use
of arms, and to practice mili-
tary evolutions or exercises ;
and to authorize Justices of
the Peace to seize and detain
arms collected or kept for pur-
poses dangerous to the public
peace.

An Act to incorporate the Canada I
Vine Growers' Association.

Section sixtecD.

mmm

wmm

360

ACTS OF THE PARLIAMENT OF CANADA,

Consolidated Statutes /or Upper Canada.

Referenc3
to Act.

Chapter 13

TITLE OF ACT.

Extent of
Repeal.

Chapter
Chapter

31
32

Chapter 97

An Act respecting the Court or So much as is
Error and Appeal. repealed by

or inconsis-
tent with the
Act of this
Session, res-
pecting Pro-
cedure in
Criminal ca-
ses, and other
matters relat-
ing to Crimi-
nal LaAV.

Sections nine-
ty-nine :.nd
one hundred.

Sections three
and four, as
to Criminal
cases only.

The whole.

An Act respecting Jurors and
Juries.

An Act respecting Witnesses and
Evidence.

An Act

relating to

High

Trea
son, to Tumults and Riotous
Assemblies and to other oflfen-
ces.

Chapter 99 An Act to prevent the unlawful
training of persons in military
evolutions and the use of fire
arms ; and to authorize the
seizure of fire-arms collected
for purposes dangerous to the
public peace.

The whole ex-
cept section
three.

ACTS OP THE PARLIAMENT OF CANADA.

361

Reference
to Act.

TITLE OF ACT.

Chapter 100 An Act for the punishmen' of
any persons who seduce sol-
diers or sailors to desert from
Her Majesty's service.
An Act respecting Forgery and
Perjury in certain cases.

Chapter 101

Chapter
Chapter

108

110

111

113

An Act respecting prosecutions
in cases of Misdemeanor.

An Act to allow to any person
indicted a copy of the indict-
ment.

An Act respecting amendment.'!^
at trial.

An Act respecting new trials and
appeals, and Writsof Error in
Criminal cases in U. Canada.

Extent of
Repeal.

Chapter 115 An Act respecting the punish
iiicnt of certain offences, and
the commuting of sentence of
death in certain cases.

Chapter 116 An Act respecting corruption of
blood.

Chapter 124iAn Act respecting the Return of;
Convictions and Fires by Jus-
tices of the Peace and of Fines
levied by Sheriffs.

The whole.

The whole, ex-
cept^ section
two. 1

Section'three.

The whole.

The whole, ex-
cept sections
five, sixteen
and sev'teen..

The whole.

The whole, ex-
cept section
seven.

Acts passed since the Consolidation of the said Statutes.

29,30 v., c.
41

An Act to amend the Law of
Crown and Criminal Proce-
dure and Evidence at Trial in
Upper Canada.

The whole, so
far as regards
criminal pro-
cedure only.

362

ACTS OF THE PARLIAMENT OF CANADA.

Reference
to Act.

TITLE OF ACT.

Extent of
Repeal.

29, 30 v., c. An Act respecting Persons in

44 custody charged with High

Treason or Felony.

29, 30 v., c.An Act to amend the Law res-

50 pecting Appeals in cases of

Summary Con^ictions, and

Returns thereof by Justices of

the Peace in Upper Canada.

The whole.

Consolidated Statutes for Lower Canada.

Chapter
Chapter
Chapter
Chapter
Chapter

Chapter 105

The whole.

12 An Act respecting the Desertion
of Soldiers.
An Act respecting Arms and

Munitions of War.
An Act respecting the Court of Section sixty-
Queen's Bench,

84An Act respecting the selecting
and summoning of Jurors.

98|An Act respecting Appeals from
the decisions of Justices of the
Peace in Summary Convic
tions.
An Act respecting certain mat-
ters connected with the Ad
ministration of Justice in Cri-
minal Matters.

The whole.

three.

Section thirty-
three.

Sections one
and two.

Sections one,
three, four
and five.

ACTS OP THE LEGISLATURE OF NEW BRUNSWICK 363
Revised Statutes. — Pcwt IV.

Reference
to Act.

TITLE OF ACT.

Extent of
Repeal.

Chapter 138,Of Summary Convielions before The whole ex-
Justices, cept sectibn

twenty-two,
which shall
apply to the
new Summa-
ry Convic-
tions Act.

Chapter 1-17 Of Offences against the Public Sections one,
Peace. , two, three,

four and five.
Chapter 148 Of Ofiences apjainst the Admi-Tlie whole.

nistration of Justice.
Chapter 149 Of Homicide and other OflTenceslThe whole,
against the Person.
Of Offences against the Habita-lThe whole.

tion.
Of Fraudulent Appropriations. The whole.
Of Forgery and Offences relating The whole.

to the Coin.
Of Malicious Injuries to Proper-

ty.

Chapter 150

Chapter 151
Chapter 152

Chapter 153

Chapter 154
Chapter 155

Chapter 156

Of other Felonies.

Of the Definition of Terms and
Explanations.

Of Proceedings before Indict-
ment.

The whole, ex-
cept section
sixteen.

The whole.

The whole, ex-
cept sections
seventeen,
eighteen,
twenty, and
twenty-two.

3G4 ACTS OF THE LEGISLATURE OF NEW BRUNSWICK.

!
I

Reference
to Act

TITLE

ACT

Extent of
Repeal.

Chapter 158

Of ProcccdingF

Indictment,

The whole, ex-

cept sections

three and

twenty-three.

Chapter 159

Of Trial.

The whole, ex-
cept sections
ten, twenty-
two, twenty-
three, twen-
ty-four, twen-
ty-five, twen-
ty-six, and so
much of sec-
tion twenty-
seven as res-
pects the ap-
propriation
of the fine in
cases of com-
mon assault.

Chapter 160

Of Error, Punishment ar

id Ex-

Sections two.

penses*

three, four,
five, six,
seven, and
thirteen.

The Schedu-

The whole, ex-

les to Part

cept Schedule

IV.

Acts passed since the Revision

of the

Statutes.

21 V.,(1858)!An Act in amendment of the

C.22

Criminal Law.

The whole, ex-
cept sections
three and five

ACTS OF THE LEGISLATURE OP NEW BRUNSWICK. 365

|e, ex-
icdule

Reference
to Act.

23V.,fl8G0)
c. 32

23V.,(18G0)
0.33

23V.,(18G0)
c. 34

24V.,(1861)
c. 10

25Y.,(18G2
c. 10

25y.,(18G2)
c. 21

27y.,(18G-l)
e.4

27V.,(1864)
c. 6

Extent of
Kepeal.

An Act relating to Procedure in Sections tlireo

Criminal Cases. | and five.

An Act in amendment of the Law The whole.

relating to Summary Convict-]

tions. I

An Act to amend the Law relat- The whole.

ing to False pretences.
An Act to prevent the carrying The whole.

of Deadly Weapons about the

Person.
An Act to amend the Law relat-The whole.

ing to Offences against the

Person.
An Act for taking away the Pu- The whole.

nishment of Death in certain

cases, and substituting other

Punishments in lieu thereof.
lAn Act further to amend the The whole.

Law relating to Offences

against the Person.
An Act relating to Larceny and.Thc whole.

other similar Offences.

27 V.,(18G4) An Act relating to the issuing Section one.

c. 8

30V.,(1866
c. 9

of Warrants by Justices of the
Peace, and in aid of Police
Officers and Constables in the
execution of of their duties
An Act respecting Offences relat-
ing to the Army and Navy.

The whole.

le, ex-

Ictions

id five

366 ACTS OP THE LEGISLATURE OF NOVA SCOTIA.
Revised Statutes — Third Scries — PdrtH III an d IV

Reference
to Act.

Chapter 136

TITLE OF ACT.

Extent of
Repeal.

Chapter
Chapter

Chapter

15G
157

159

161

Of Juries.

Of Treason.

Of Offences relating to the Army

and Navy.
Of Offences acainst Ileli<;ion.

Section lifty-
one, and sec-
tion fifty-
seven so far as
regards crim-
inal cases.

The .whole.

The whole.

Sections one
and three.
Of Offences against the Law of Sections one

and two.

Chapter 103

Marriage.
lG2 0f Offences against the Public Sections one,
Peace. two, three

and four.
Of Offences against the.Admiuis-|Thc whole,
tration of Justice. |

Chapter 164jOf Offences against the Person. iThe whole.
Chapter 1G6 Of Offences against t)ie Habita-IThe whole.

tion.
Chapter 167jOf Fraudulent Appropriations. iThe whole.
Chapter 1G8 Of Forgery and Offences relating The whole.

to the Coin. I

Chapter lG9|0f Malicious Injuries to Pro- The whole.

I perty.
Chapter 1 70 Of the Definition of Terms in The whole.
I this Title. I

^CTS OF THE tE,„sl.ATUR£ oF NOV. .

________^ ^ *^* ^ovA SCOTIA 36y

Reference
to Act.

TITLJi: OF ACT;

Chapter 171,0f t,. AdnnnistrationT^'iTTT^
I »al Justice in tho ^'m • r ^'^ ^^oie, ex-

' Court. ^'^" ^upenov^ cept sections.

fi%-nine,8ix-
ty, sixty-one,,
sixty-two,
sixty-three,
sixty-four,
sixty-five,
sixty-six, six-
ty-seven,
seventy-five
eighty-six, '
eighty-seven,
eighty-eight,
eighty-nine,
ninety,ninety
one, ninety-
four, ninety-
five, ninety,
six, ninety-
seven, ninety-
eight, ninety-
nine, one
hundred, one
hundred and
one, one hun-
dred and two,
one hundred
and three,
and the sche-
dule to the
said chapter..

368 ACTS OF THE LEOISLATURE OP NOVA SCOTIA.

Reference
to Act.

TITLE OF ACT.

Extent of
Kepeal.

Chapter 172,Of the Duties of Justices of the The whole.
Peace in (h-iminal Matters.

Acts passed since the Revision of the Statutes.

27V.,(18G4)
c. 9

29V.,a8GG)
«. 19

29V.,(18r)G)

c. ;J7 .

29V.,(18GG)
c. 38

30V.,(18G7)
c. 13

An Act in addition to CliapterThe whole.

1()7 of tlic Bill for llevisingi

and Consolidatinj^' tlic General

Statutes of Nova Scotia, '^ Of

Offences ap^ainst the Person."
An Act in addition to, and to The whole.

amend Chapter 1G9 of the

Revised Statutes, " Of 3Iali-

cious Injuries to Property."!
An Act to provide for the seizurc:Tlic whole.

of Arms and Munitions of

War.
An Act for the better security The whole.

of the Crown and the Govern-
ment of Nova Scotia aj^ainst

Treasonable and vSeditious

Practices and Attempts. ]

An Act to amend Chapter 157 The whole.

of the Revised Statutes of

Nova Scotia (third series)

"Of Offences relatinu" to the

Army and Navy."

ADDENDA.

le.

-:o:

The following Sections of the Statutes of thb
OLD Provinces are preserved from repeal by Sche-
dule B OF 32 k :j:J Vic. Cap. 3G.

~» •<

consolidated statutes OF CANADA, CHAPTER 102.

An Act rcspcctiiKj the duties of Justices of the Peace
out of Scsfiious in rehition to persons charged with Indicta-
ble Offences.

59. In all cu.sch in Lower Canada whore such Constable
or other perfAon i.s entitled to his eosts or expenses for con-
veying such person to prison as aforesaid, the justice or jus-
tices who commit the accused party, or any Justice of the
Peace in and for tiie Territorial Division wherein tlic offence
is alledged in the said warrant to have been committed, may
ascertain the sum which ought to be paid to such constable
or other person for arresting and conveying such prisoner to
!«uch gaol or prison, and also the sum which should reasonably
be allowed him for his expenses in returning and thereupon
such justice sliall make an order (T. 2) upon the Sheriff for
the Territorial Division witliin which the offence is alledged
to have been committed, for payment to such Constable or
other person of the sum.s so ascertained to be payable to him
in that behalf and the said Sheriff upon such order being
produced to him shall pay the amount thereof to such Consta-
ble or other person producing the same, or to any person
who produces the same to him for payment. 14, 15 V. c. 90,
s. 18. Latter part.

370

ADDENDA.

CONSOLIDATED STATUTES OF CANADA, CIIArTER 103.

Ail Act respecting the duties of Justices of the Peace out
of Sessions, ii relation to summary convictions and orders.

Regulation as to the j^^'^m^^^t of Clerk's fees.

74. Ill Lower Canada the Fees to wbich any Clerk of the
Special Sessions, or Clerk of the weekly Sessions or Clerk to
any Justice or Justices out of Sessions, is entitled, shall be
ascertained, appointed and re2;ulatcd in manner following,
that is to say : the Justices of the Peace, at their General or
Quarter Sessions for the several Districts, shall, from time to
time, as they sec fit, make Tables of the Fees which in their
opinion should be paid to the Clerks of the special and weekly
sessions, and to the clerks of the Justices of the Peace within
their several jurisdictions, and which said Tables, being
signed by the Chairman of every such Court of General or
Quarter Sessions, shall be laid before the Secretary of this
Province, and such Secretary, if he sees lit, may alter -f^uch
Table or Tables of Fees, and subscribe a certificate or dcicla-
ratiou that the Fees specified in such Table or Tables, as
made by such justices, or as altered by such Secretary, are
proper to be demanded and received by the Clerks of the
Special Sessions and Weekly Sessions and the Clerks of the
several Justices of the Peace respectively throughout Lower
Canada ; and such Secretary shall cause copies of sucli Tables
or set of Tables of Fees to be transmitted to the several Clerks
of the Peace throughout Lower Canada, to bo by them dis-
tributed to the Justices within their several Districts respect-
ively, and to be by the said Justices placed in the hands of
their Clerks respectively. (14, 15 V. c. 95, ss. 20, 18.)

Penalty for Clerics receiving greater fees than entitled to.

75. If after such copy lias been received by any such

ADDENDA

371

out

Icrs.

rthe
•k to
ill be
,ving,
ral or
me to
their
weekly
vithin
being
:ral or

clerk, he dcniatids or receives any otlicr or greater fee or
gratuity for any business or act transacted or done by him
as such clerk than such as is set down in such Table or Set
of Tables, he shall forfeit for every such demand or receipt
the sum of eighty dollars, to be recovered by action of debt
in any court having jurisdiction for that amount by any per-
son who will sue for the same. 14, 15 Vic. c. 95, s. 2G.
What Fees Clerks mai/ thniKuJ.

76. Until such Tables or Set of Tables are framed and
confirmed, and distributed as aforesaid, such Clerk or Clerks
may demand and receive such fees as they are now by rule or
regulation of a Court of General or Quarter Sessions, or other-
wise authorized to demand and receive. 14,15 Vic. c. 95,
S.21.

Rrgiil'tions as to whom Penalities^ tCr., are to he paid.

77. In every Warrant of Distress to be issued as afore-
said in Lower Canada, the constable or other person to whom
the same is directed, shall be thereby ordered to pay the
amount of the sum to be levied thereunder unto the Clerk of
the Peace, Clerk of the Special Sessions, Clerk of the Weekly
Sessions or Clerk of the Justices of the Peace (as the case may
be) for the place wherein the Justice or Justices issued supIi
warrant, and if a person convicted of any penalty, or ordered
by a Justice or Justices of the Peace to pay any sum of money,
pays the same to any constable or other person, such constable
or other person shall forthwith pay the same to such Clerk of
tlic Peace, Clerk of the Special Session.-. Clerk of the Weekly
Sessions, or Clerk of the Justice of the Peace (as the case
may be.) 14, 15 Vic. c. 95, s. 27.

May pay penalty to Gaoler. Gaoler to pay the same to
Clerk.

78. If any person committed to prison in Lower Canada

I
il

i';,'^

372

ADDENDA.

upon any conviction or order as aforcsuid for non-payment of
any penalty or of any sum thereby ordered to be paid, desires
to pay the same and costs before the expiration of the time
for which he has been so ordered to be imprisoned by the war-
rant for his commitment, he shall pay the same to the gaoler or
keeper of the prison in which he is so imprisoned, and such
gaoler or keeper shall forthwith pay the same to the said
Clerk of the Peace, Clerk of the Special Sessions, Clerk of the
Weekly Sessions, or Clerk of the Justice of the Peace (as
the case may be.) 14, 15 V. c. 95, s. 27.
As to whom Clerk is to pay the same.

79. All sums so received by the said Clerk shall forthwith
be paid by him to the party or parties to whom the same res-
pectively are to be paid according to the directions of the
Statute, on which the information or complaint in that behalf
has been framed. 14, 15 V. c. 95, s, 27.

In certain cases Clerk to pay the same to Treasurer, &c.

80. If such Statute contains no such directions for the
payment thereof to any person or persons, then such clerk
shall pay the same to the Treasurer of the District, Munici-
pality, City, Town or Borough in which such per.son has
been so condemned to pay the said sum, and for which such
Treasurer shall give him a receipt. 14, 15 V. c. 95, s. 27.

Said Clerks and Gaolers to keep an ejcact account of
all such moneys received hy them, t£r.

81. Every such Clerk of the Special Sessions, Clerk of the
Weekly Sessions, or Clerk of the Justice of the Pe:ice, and
every such Craolcr or Keeper of a prison, shall keep a true
and exact account of all such moneys by him received, of
whom and when received and to whom and wlien paid and shall
once in every three months, render a fair copy of every such
account to the Clerk of the Peace for the District in which

ADDENDA.

373

.of

ires

Line

var-

ror

such

said

fthe

,Q (as

iiwith
e res-
of the
behalf

the
clerk
unici-
haa
such
27.
ant of

L of the

•c, and

a true

,'od, of

\(\ shall

ry such

I ^Yhich

such payment has been made, who sliall likewise, every three
months, render a similar account to the Justices assembled at
the Quarterly Sessions of tlie Peace for the said District, as
also, once every month to the Justices as.sembled at the Week-
ly Sessions of the Peace. 14, 15 V. c. 95, s. 27.

Clerics of the Peace in L. C. t Act as Clerks of Justices.

85. In all the Citic;!, Towns, and other places in Lower
Canada where General or Quarter Sessions of the Peace are
held, the Clerk or Clerks of the Peace shall act as Clerk or
Clerks of the Justices of the Petsce and of the Inspectors or
Superintendents of Police in such Cities, Towns and other
places, as well at all Special as at all Weekly Sessions of the
Peace held therein. |14. 15 V. c. 05. s. .32.)

CONSOLIDATED STATUTES OF f'ANADA. CUAPTEll 105.

An Act respecting the promjtt and Summary Adminis-
tration of Criminal Justice in certain cases.

Jurisdiction of Recorders extended to Inspectors ef Police
and Police Magistrates.

30. The Inspector and Superintendent of Police for the
City of Quebec, the In.cpector and Superintendent of Police
for the City of Montreal, and the Police Magistrate for any
City in Upper Canada, sitting in open Court, may respec-
tively in the case of persons charged before them, do all acts
by this act authorized to be done by Recorders, and all the
provisions of this act referring to Recorders and Recorders
Courts, and tlie Clerks of the Recorders' Courts, shall be
read and construed also as referring to such Inspectors and
Superintendents of the Police and Police Magistrates and
the Courts and the Clerks of the Courts held by them res-
pectively, and as giving them full power fo do all acts authorized
to be done by Recorders in the case of persons charged
before them respectively. 20 V. c. 27, s. II.

374

ADDENDA.

Powers of Recorders vested in tv:o J. Ps. or in Sheriffs^
cCt., in L. C.

31. All the jurisdiction and powers vested in the
Recorder of any City are hereby conferred upon and vested
in any two or more Justices of the Peace for any District in
Lower Canada wlien present at a chef-lieu .thereof, and
there sitting in open Court, and upon and in the Sheriff of
any District in Lower Canada, (other than the Districts of
Quebec and Montreal,) and upon and in any Deputy-ShentF
in the District of Gasp(5, sittinp; in open Court ; but the
jurisdiction and powers aforesaid shall not be exercised by
any two or more Justices of the Peace or Sheriff in any new
District until such District has been established as such for
all purposes of the administration of Justice in Criminal as
well as civil matters, under a proclamation of the Governor to
that effect. 22 V. c. 27, ss. C, 10.

Sheriff exercising jurisdiction as aforesaid to he attend-
ed hy certain office rs.

32. The Sheriff of such districts as aforesaid in Lower
Canada, or any Deputy Sheriff in the District of Gaspd,
when sitting or acting under the provisions of this Act, shall
be assisted, attended and obeyed by the Clerk of the Peace,
Bailiffs, Constables and other Officers of such districts res-
pectively, in the same manner as justices of the Peace in and
for the said districts respectively, would be attended, assisted
and obeyed by them respectively, under the same or similar
circumstances ; and the Clerk of the Peace for each such
district shall be and act as the Clerk of the Court of the She-
riff of such district under the provisions of this act and of
the act hereby amended. (22 V. c. 27, s. 7.)

Recorders of Quebec and Montreal declared to he J. Ps.

33. The Recorders of the Cities of Quebec and Montreal

ADDENDA.

375

leal

respectively, have been .and arc, by virtue of their oflScca,
Justices of the Peace for the judicial Districts in which the
said Cities are respectively situate, and vested with all the
powers and authorities, within the limits of their respective
jurisdictions, of any one or two Justices of the Peace, as the
ca«e may require. (22 V. c. 27, s. 9.)

REMARKS.

The offices cf Inspector and Superintendent of Police at
Quebec and Montreal have been abolished. The Juduje of
Sessions in those Cities now exorcisintr the dutie.«i of such
Inspector and Superintendent.

For the jurisdiction reserved by the non repeal of the fore-
going sections vide section 1 of this Act.

CONSOLIDATED STATUTES OF CANADA, CHAPTER 106.

An Act resjyccting the trial and punisliment of Juvenile
Offenders.

Power to J. Ps. to hear and determine.

6. Any two or more Justices of the Peace, for any Dis-
trict in Lower Canada, or for any City, County or Union of
Counties in Upper Canada, sitting in open Court, before
whom any such person, as aforesaid, charged with any offence
made punishable under this Act, is brought or appears, may
hear and determine the case under the provisions of this Act.
20 v., c. 29, s. 3.

Same power to Recorder, dr., and certain other Func-
tionaries.

1. The Recorder, Inspector and Superintendent of Police,
of either of the Cities of Quebec or Montreal, the Sheriff of
any District in Lower Canada, other than the Districts of
of Quebec and Montreal, any Deputy Sheriff in the District

I
\

376

ADDENDA.

of Gasp<5, any Judge of a County Court in Upi)er Canada
being a Justice of the Peace, any Hecorder of a City in
Upper Canada, being a Justice of the Peace, any Police
Magistrate in Upper Canada, and any Stipendiary Magistrate
in Upper Canada, sitting in open Court, and having by law
the power to do acts usually required to be done by two or
more Justices of the Peace, may and shall, within their res-
pective jurisdictions, hear and determine every charge under
this Act, and exercise all the powers herein contained, in
like manner and as fully and cflfectually as two or more
Justices of the Peace can or may do by virtue of this A^t.
20 v., c. 29, s. 3.

Sheriffs when sitting under thi.s Aet to be nttoided by
Clerics of the Peace,

8. The Sheriffs of such Districts as aforesaid respectively,
and any Deputy Sheriff in the District of Gaspe, when sitting
or acting under the provisions of this Act, shall be assisted,
attended and obeyed by the Clerks of the Peace, Bailiffs,
Constables, and other Officers of such Districts respectively, in
the same manner as Justices of the Peace in and for the said
Districts respectively would be assisted, attended and o'beyed
by them respectively, under the same or similar circumstan-
ces; and the Clerk of the Peace of each such District, shall
be, and act as the Clerk of the Court of the Sheriff of such
District, under the provisions of this Act. 20 V., c. 29, s. 4.

REMARKS.

There was no necessity for excepting the foregoing 6 & 7
sections from the repeal of the whole Act, as their provisions
are reproduced in 32 & 33 Vic, c, 35.

ADDENDA.

377

REVISED STATUTES OP NOVA SCOTIA, CHAPTER 171,

Of the Administration of Criminal Justice in the Suprcnie

Court.

Charges of conveying prisoners to Jail to he defrayed by
themselves ichen of ability ; jirocedings to recover the same.

59. Any person that shall hereafter be committed to Jail
for any oflFence or misdemeanor, having means or ability
thereunto, shall bear his own reasonable charges for conveying
or sending him to Jail, and the charges also of such as shall
be appointed to guard him and shall so guard him thither ;
and if any person shall refuse to defray such charges, then
a Justice of the Peace, by writing under his hand and seal,
Bhall give warrant to any constable to sell so much of the goods
and chattels of the said person so to be committed as by the
discretion of the said Justice, shall satisfy and pay the charge
of his conveying and sending to the Jail, the appraisement
to be made by two inhabitants of the town or place where
such goods or chattels shall be, and the overplus of the money
which shall be made thereof to be delivered to the party to
whom such iroods shall belong.

Constables, expenses how allowed and paid.

60. If the person so to be committed shall not have or bo
known to have any goods or chattels which may be sold for
such purpose, then the said Justice, on application by any
Constable or other Officer who so conveyed such person to jail,
shall upon oath examine into and ascertain the reasonable
expenses to be allowed such Constable or other Officer, and
shall forthwith, without fee, by warrant under his hand and
seal, order the Treasurer of the County to pay the same,
which the Treasurer is hereby required to do as soon as he re-
ceives such warrant, and any sum so paid shall be allowed
in his accounts.

'■ is

378

ADDENDA

REVISED STATUTES OF NEW BRUNSWICK, CII AFTER 138.
Of summnrij convictions he/ore Justices.

22. All yums received by any officer under any of the
foregoing proceedings sliull be paid by liiiu to the County
Treasurer for County contingencies, except such p;irt thereof
iis any person may be legally entitled to.

REVISED STATUTES OP NEW BRUNSWICK, CHAPTER 156.

Of proceedings^ before Indictment.

17. The Clerk of the Peace in every County shall advise
and assist any Justice of the County when required by him,
in any proceeding had before him in regard to any person
charged with or suspected of felony or misdemeanor, and shall
attend any examination before such Justice, if the same take
place within forty five miles from the Court House of the
County, for which he shall be paid a reasonable compensation
out of the funds of the County, by order of the Justices in
Sessions.

IVEVISED STATUTES OF NEW BRUNSWICK, CHAPTER 159.

Of Trial

27. All cases of common assault and battery may be dealt
with by any two Justices of the County wherein the offence
may have been committed, and on conviction (v), the offen-
der shall be fined in a sum not exceeding, with costs, five
pounds ; but this shall not prevent any inhabitant of such
County from being a competent witness to prove the offence;
If the fine and costs be not paid, the Justice shall commit the
offender to gaol for any term not exceeding one month, unless
the same be sooner paid. If the Justice deem the offence not
proved, or the assault and battery justified, or so trifling as
not to require punishment, and so dismiss the case, they shall
give the Defendant a certificate thereof.

ADDENDA.

379

REVISED STATL'TES OF NEW BRUNSWICK, CUAPTER IGO.
Of Error, Piutishnifnt, and Expt'nsis.

8. The Justices in Session?*, or at any Special Sessions
when called for the purpose, shall make trt'neral reprulations
for carrying out any sentence to hard luhor. and ior properly
securing and governing the o{fendei*s while at work, which
labor may be performed at any place within the County, The
Justices shall appoint overseers to superintend the offenders ;
and when the labor is to bo performed in the gaol, the con-
currence of the Sheriff' shall be had to such regulations.

9. The proceeds of the works shall be applied by the Se.^
sicns to the support and clothing of the offenders, any over-
plus to be paid to the County Treasurer,

10. The Justices in Sessions, or at any S}>ecial Sessions
called for that purpose, may sentence to .solitary- confinemeat
any person refusing to work, or guilty of misbehavior or
disorderly conduct, for a term not exceeding such offender's
sentence.

11. When it becomes necessary to convey any person
arrested under a criminal charge to or from the gaol of the
County where he was arrested, to the gaol of the County
where the offence was committed, any two Ju.stices of the last
mentioned County may order a rea.sonable sum for the
expense of such conveyance to be paid by the Treasurer of
that County out of any County moneys in his hand.**.

STATUTES OF NEW BRUNSWICK.

21 Vic. c. 22.

An xict In Amendment of the Cruaund Laic.

5. Any person charged with larceny, or of receiving
stolen goods knowing them to be stolen, mny. when the value

lj\

J- ■.f1

I'll

380

ADDENDA,

of the property so taken or received shall not exceed Ave
ponnds, be admitted to bail by any Justice before whom the
charge may be made ; but sliould such person be committed
to Gaol for want of bail, and tliere remain for forty-eight
hours, he may be tried bcioic throe Justices of the County
where the offence was committed, and if convicted, may be
imprisoned in the Common Gaol, or Provinci.d Penitentiary
for a term not exceeding nine months.

PvEMAIlK.S.

The foregoing clauses of Statutes having reference to Jus-
tices of the Peace, Recorders, &c., in force in the Provinces
at the time of the passing of the 32 and 33 Vic. c. 30, were
saved from repeal by Schedule B. to that Statute. Very
grave doubts may be entertained as to the wisdom of the plan
followed. It would have been far better had each Statute of
the Dominion been complete in itself, not needing reference
to Statutes of the different Provinces to fill up voids. Uni-
formity on all points would also have been secured, insteud of
the present mongrel system.

CAP. XXV U.

An Act to amend the Act respecting the Du-
ties of Justices of the Peace out of Sessions
in relation to Sunimarv Convictions and
Orders.

[AsseHfetHo V2th Mui/, 1870.]
PrcnmUr, :i2-:j:i r. c. 31.

WHEREAS, it is expedient to amend Sections
sixty-live and seventy-one of the Act res-
pecting the duties of Justices ot the Peace out of
Sessions in relation to summary convictions and
orders ; Therefore, Her Majesty, by and with the
advice and consent of the Senate and House of
Commons of Canada, enacts as follows :

New Section in place of Section 05.

1, Section sixty-tive of the said Act is hereby
repealed, and the following section substituted :

Appeal given from any cwiviction or order of a Ju»tice
or Justices of the Peace.

" 65. (Inlcss it be otherwise provided in any special Act
•' under which a conviction taken place or an order i.s made
** by a Justice or Justices of the Peace any person who
'* thinks himself aggrieved by any such conviction or order,
" may appeal in the Province of Quebec or Ontario, to the
" next Court of General or Quarter Sessions of tlic Peace;
•' or in the Province of Quibcc, to any other Court for tho

382

ADDENDA.

" time boing discliarginji; the functions of such Court of
" General or Quarter Sesnions of tlie Peace iu and for any
" (liHtrict therein ; in the Province of Nova Scotia, to the
" Supreme Court in the County where the cause of the
" infonuution or complaint has arisen ; and in the Province
" of New Brunswick, to the County Court of the County
" where the cause of the information or complaint has arisen ;
" Such right of appeal shall he su}»j»'ct to the conditions
" following :

6'o // d'tt ion s of oppi'f f.

Timr/or Appeal,

" 1. If the conviction or order be made niore than twelve
" days before the sittings of the court to which the appeal
" is given, such appeal shall bo made to the then next sittings
" of such court ; but if the conviction, or order, be made
"within twelve days of the'sittings of such court then to
" the second sittings next after such conviction or order :

Notice to or for prosecutlo}!.

" 2. The person aggrieved sliall give to the pro.-ccutor or
" complainant, or to the convicting Justice or one of the
" convicting Justices, for him, a notice in writing of such
" appeal, within four days after such conviction or order ;

Persons so appealing to rcinnln In cnsfoil^, or give sccn-
rlti/, or In. certain cases to deposit money as secnrlfi/.

" 3. The person aggrieved shall either remain in custody
" until the holding of the Court to which the appeal is given
" or shall enter into recognizance, with two sufficient sureties,
'* before a Justice or Justices of the Peace, conditioned
" personally to appear at the said Court, 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 ;
" or if the appeal be against any conviction or order, whereby

ADDENDA ,

383

of
any
the

the
ince
inty
Hon ;

wclve
ippcal
t tings
made
icn to
r :

.tor or
fit' the

Mich
lor ;

sccn-

mstody
j^ivcn
Ircties,
Itioned
such
fcupou,
lirded ;
iicreby

" only a penalty or nun of money is udjudjrod to bo paid.
" the person a«r<^ricve<l may, (althoujrh tlie order direct Im-
" prisonment in defauh of payment,) instead of remaining in
" custody as aforesaid, or giving such recognizance as aforc-
" said, deposit witii the Justice oi Justices convicting or
*' making the order such sum of money as such Justice or
" Justices deem suificient to cover the sum so adjudge*! t<>
" be paid, togetlier with the costs of the conviction or order,
" and tlic costs of tlie appeal ; and upon such recognizance
** being given, or such dejiosit made, the Justice or Justices
** before whom such recognizance is entered into, or deposit
'* made, shall liberate such person if in custody ;

Court to hear citiiljletci'inine the (ij)peaf. ff the cainiction
or order Is affirmed.

Jf quashed.

Power to adjourn procrtdings.

" And the Court to which such appeal is made shall
" thereupon hear and determine the matter of appeal, and
" make such order therein, with or without costs to either
" party, including costs of the Court below, as to the Court
" seems meet ; and, in case of the dismissal of the appeal or
'' the affirmance of the conviction or order, shall order and
" adjudge the offender to be punished according to the con-
'' viction, or the Defendant to pay the amount adjudged by
" the said order, and to pay such costs as may be awarded ;
" and shall, if necessary, issue process for enforcing the judg-
*' mcnt of the court ; and in any case where, after any such
" deposit has been made as aforesaid, the conviction or order
" is affirmed, the Court may order the sum thereby adjudged
" to be paid, together with the costs of the conviction or
'' order, and the costs of the appeal, to be paid out of the
" money deposited, and the residue, if any, to be repaid to

384

ADDENDA.

" the Defendant ; and in any case where, after any such
'' deposit, tlic conviction or order is quashed, the Court shall
" order the money to be repaid to the Defendant ; and the
" said court shall have power, if necessary, from time to
*' time, by order endorsed on the conviction or order, to
" adjourn the hearing of the appeal from one sittings to
'' another, or others, of the said Court ;

Memorandum of quashing to he made. Its effect.
" In every case where any conviction or order is quashed
' on appeal as aforesaid, the Clerk of the Peace or other
' proper officer shall forthwith endorse on the conviction or
' order a memorandum that the same has been quashed ; and
' whenever any copy or certificate of such conviction or
' order is made, a copy of such memorandum shall be added
' thereto, and shall, when certified under the hand of the
' Clerk of the Peace, or of the proper officer having the
' custody of the same, be sufficient evidence in all Courts
' and for all purposes, that the conviction or order has been
" quashed."

Section 71 repealed.

2. Section seventy-one of the said Act is repealed
and the following substituted therefor :

No conviction apj^rovedmay he removed hy certiorari, (^c.

"71. No conviction or order affirmed, or affirmed and
•• amended in appeal, shall be quashed for want of form, or
" be removed by certiorari into any of Her Majesty's Supc-
" rior Courts of Record ; and no warrant or comuiitmcnt
** shall be held void by reason of any defect therein, provided
•' it be therein alleged that the party has been convicted,
" and tliero be a goo'l and valid conviction to sustain the
'• s:mio."

ADDENDA.

385

and
^1, or
^iipc-

iicnt

l-iilcd

ictcd,

tlie

Recital.

At what times and to whom the Return., required hy Sec.
76 shall he made.

What cases any such return shall include : how posted
up and published y &c.

Copy to Minister of Finance.
Provisions of Sec. 78 to apply.

3. And whereas, in some of the Provinces of
Canada, the terms or sittings of the General Ses-
sions of the Peace or other Courts to which, under
section seventy-six of the said Act, Justices of
the Peace are required to make E-ef urns of con-
victions had before them, may not be held as often
as once in every three months ; and it is desirable
that such Returns should not be made less fre-
quently: Therefore it is further enacted, that the
Returns required by the said seventy-sixth section
of the Act hereinbefore cited shall be made by
every Justice of the Peace quarterly, on or before
the second Tuesday in each of the months of
March, June, September and December in each,
year, to the Clerk of the Peace or other proper
officer for receiving the same under the said Act,
notwithstanding the Greneral or Quarter Sessions
of the Peace of the County in which such con-
viction was had may not be held in the months
or at the times aforesaid : and every such Return
shall include all convictions and other matters
mentioned in the said section seventy-six, and not
included in some previous Return, and shall, by

386

ADDENDA.

the Clerk of the Peace or other proi)er officer
receiving it, be fixed up and published, and a
copy thereof shall be transmitted to the Minister
of Finance, in the manner required by the eightieth
and eighty-first sections of the said Act ; and the
provisions ,of the seventy- eighth section of the
said Act, and the penalties thereby imposed, and
all the other provisions of the said Act, shall here-
after apply to the Keturns hereby required, and to
any offence or neglect committed with respect to
the making thereof, as if the periods hereby ap-
pointed for making the said Returns had been
mentioned in the said Act in -stead of the periods
thereby appointed for the same.

Ncu'fonn of Notice of Appeal.

4. The Form followuig shall be substituted for
the form of Notice of Appeal against a conviction
or order contained in the Schedule to the said
Act. .

ADDENDA.

387

General Form of Notice of Appeal against a
Conviction or Order.

To C D. of, Ac, and {the navies and additions of the i>ar~

tie-* to whom the notice oj appeal is required to be given.)

Take notice, that I, the undersigned A. B., of do

intend to enter and prosecute an appeal at the next General
(Quarter Sessions of the Peace {or other Court, as the case viai/ be,)
to be holden at , in and for the District (or

County, United Counties, or as the case may be) of
against a certain conviction (or order) bearing date on or about
thk> day of instant and made by (you)

C. 1)., Esquire, (one) of Her Majesty's Justices of the Peace for
tile saitl District {or County, Unit<>d Counties, or as the com may be)
of , whereby the said A. B. was convicted of having

or was ordered to pay (here state the offence as in

the conviction, injorvuitions, or summons, or the amount adjudged to be
paid, as in the order, as correctly as possible. )

Dated this day of

hundred and A. B.

, one thousand eight

MEMonAXDUM. — //" thix notice be given by several Dejendant*, or by
<iu Attorney, it can easily be adapted.

REMARKS.

The amendmcuts made by this Act are the following :
1 . Under s. 65 of 32 & 33 Vie., c. 31, appeals were allowed

(when not otherwise provided in the special Act under which

the conviction was made) only

lo Where the sum adjudaed to be paid, exceeded ten

dollars.

2'J Where the imprisonment exceeded one month,

3*^' Where the conviction took place before, or the order

was made by, one Justice alone.

Under the substituted clause those restrictions have been

swept away, and an appeal is allowed in every case where it is

not otherwise provided by the special Act under which the

conviction takes plnco. or the order i- made.

388

ADDENDA.

Courts of Appeal.

In Ontario and Qucbco no change has been made in the
Court of Appeal.

In Nova Scotia, the Supreme Court, in the County where
the cause of the information or complaint has arisen, has
been substituted for its next term or sitting as such Court
of Appeal ; and in New Brunswick the County Court of such
County replaces a Judge of the Supreme Court or of the
County Court as a tribunal to which such appeals are to be
taken.

In all the Provinces the practice is assimilated, the appeal
being given to the first sitting of the Court of Appeal after
the expiration of twelve days from the making of the con
viction or order appealed from.

Power under the substituted section is given to adjourn
the hearing of the appeal from one sitting to another or
orders of the Court of Appeal.

The form of the notice of appeal is also changed, it can
now be served on one of the convicting Justices for the pro
secutor, and there is no necessity of setting out therein the
grounds of appeal.

The substituted 71st section prohibits the quashing or re-
moval by certiorari of convictions or orders affirmed, or
affirmed or amended in appeal, thereby removing the general
prohibition applying to all convictions and orders under s.
71 repealed, the new section doe^ not apply to convictions or
orders not appealed from.

8. 3 of the new Act does not require any explanation.

INDEX.

n
11

Abhttors. — Accessories and, in indicUible cases 165, acceiforie«
and, in summary cases 164, 1G5.

Abhoad. — Offences, power to apprehend and investigate, 58, 59 ;
" form of warrant to apprehend for, 112.

Absence. — I'toceedings in Defendants, in summary cases, 156, 157.
158.

Abodk. — Place of, for Service of Summons, 56, 66, 73, 74, 152, 166,
167.

Accused. — In indictal)le offv^nces to be cautioned before making
statement, how, 80, 81, 82 ; comnuttal or discharge of, 95,

96, 99, 100, 101, 102 ; admissibility of statement as evi-
dence, 81,

)

82 ; may call witnesses, 79 ; voluntary observa-
tions of, during examination admissible without caution,
82, 83 ; binding over, to answer charge 95, 9G, 99.

Acquittal. — On information or complaint, (See Dismissal) of one
of several co-defendants, he may then ])e examined, 18, 19.

Adjoining. — Counties, arrest within, 68, 69, 160.

Adjournment. — As to indictable offences, rSee Remand) ; in sum-
mary matters betore or during hearing, 154, 102, 169 , 170;

wlu're def.'udant requires time, 162,

180 ; where variance

and def.'udant misled, 154, 169.

Adjudication. — On hearing of information or complaint, 178, 179,
183 ; pronouncing judgment, 178, 179,298,299,301,305,322,
323,339, 360; may alter .same, 200; when a division of opi-
nion, 173; particulars of judgment to be stated and how
fine recovered, 197, 198 ; where a second offence, 218, 219 ;
consecutive periods of imprisonment, 218, 219; penalty
where several offenders, 195, 196, 197, 245 ; (luestionable
whether a joint or a several offence, 195, 197 ; meaning of a
month, 147 ; minute of an adjudication to be made, 184 ;
convictions to be returned, 23S, 239, 307, 308, 324 ; returns,
copy of, to be transmitted to Min. of Finance, 242 ; minutj
of orders to be served, 205, 206 ; dismissal of information
or complaint, 183, 184, 201 ; costs may be adjudged in all

y 'J

390

INDEX.

AaiLDiCATiON — Continued

eases, 206 ; requisites ol convictions and orders, 185-205:
the adjudication, 191 ; several offenders in one conviction,
1 95 ; several defendants in one conviction where offence
several and notMoint 195-197 ; joint penalty severed among
defendants, 196, 197 ; statui jry form not sufficient, in what
cases, 199, 200.

Admiualtv. — Jurisdiction of the, 58, 59 ; Warrant to issue for offen-
ces within the jurisdiction of the. 58 ; proceedings for such
offences 53, 58, 77.

Admissions. — By accused on examination in indictable offcnccfc;^
82, 83 ; value of generally, 28, 82, 83.

Affidavit. — To procure Subpana 73, 1G5, 166 ; to procure warrant
agaiuHt a witness 75 ; forms of, 119, 254.

AKFinuATiON. — [See Oath.)

AfFiRMANCE. — Of Conviction 222, 230, 233; change may bo mr.dc
in conviction by judgment of, 232, 233.

Apter. — Effect of in reckoning time 146, 147.

Agent. — Information or complaint may U« preferred by, 147, 171 ;
banker or Attorney converting or embezzling stock &c.
not triable at Quarter Sessions 49.

AiDKHS. — [See Abettors.)

AiiTERATiONS. — Of ordcr 200.

Ai^TEHNATivE. — Stating an offence in the, l)ad I8S.

Anuiguity. — (^See Certainty.)

Amendment. — Of convictions and orders 200 ; of warrant of ccm-
mitment 216.

Amoi'xt. — Limitation of autliority as to, 192.

« Any Two Justices.'' — Effect of Words 10.

AiM'EAL.— Right of 220, 381-384 ; in whatcases given 220, 224, 381.

382 ; stay of execution in what cases 226, 383 ; notice of
225 ; to whom and how given 225, 387, 388, 382 ; must be
in Avriting 225, 382, 383 ; service of notice of, 225, 382 ;
court of, 220, 224, 381, 382, 388; recognizances, 221, 225,
383; deposit 221, 226, 383 ; tlie hearing of, 228, 231, 232^

383 ; proof of notice, 228 ; selection of a Jury 229, 231 ;
costs on 237 ; enforcing order in, 237, 238, 383 ; forms^
289, 290.

Ari'EAUANCE. — Effect of, in summary convictions 153; default of
complainant 176, 204 ; default of defendant, 156, 158, 174;
non appearance at adjourned hearing 1 70, 1 76 ; appearanco
by Attorney 171 ; irregularity ol summons or service cured
by, 153 ; enforcing, I5G, 174, 175..

INDEX.

391

Appkarance. — !u iinJittaltK^ offence lailuri' uf, a wanunt to issue

66, 67.
Appbarance. — Failure of, on recognizance in summary cases

170, 176 ; in indictable offenccK 90.

Appointment OF Justices. — 1-7.

Apprehension. — {See Warrant.)

Arrest.— (-S'^c Warrant.)

At Least. — Effect of in reckoning tinii 146, 147.

Attendance. — Of witnesses, compelling 73, 75, 165, 167.

Attendance. — Of constable to prove service 56, 66, 153.

Attorney. — May preior informjition or complaint for a party
147, 1 7 1 ; allowed on hearing for complainant and defendant
in summary convictions 174 ; not by Statute in indictable
offences on preliminarv examination, but usually allowed
83—85.

Attorney General. — When re luired to lay information 147.

Authority. — Claim of, 12 ; Competition of between Justices 173.

Averment. — Of a previous summary conviction 266.

1.
of
>e

I of

Ico
led

Backing.— Warrant, 70, 71, 72, 161, 162, 20a, 217, 218.

Bail. — Admitting to, a judicial act, 100; justice refusing to take
bail, 98 ; (in .summary convictions), 162, 169, 170, 176, 209 ;
estreating recognizance, 163, 170, 176, 210, 382, 333 ; "Oath
may be administered to, as to their sufficiency, 96 ; (in in-
dictable offences) discretionary before examination complet-
ed, 89, 90 ; where indictment found and accused apprehend-
ed on justices warrant, 60, 61 ; estreating recognizance, 90,
91 ; after examination concluded in felonies, 95, 96, 101 ;
in misdemeanors, 96, 98 ; justices no right to bail in trea-
son, 97 ; justice may in misdemeanors, on certificate of
committing Justice, 100 ; power of County Judge to, 96, 97,
104 ; of Superior Courts and of their Judges 96, 97, 98, 104 ;
surrender of accused or of defendant bv his bail, forms for,
140,142.

Bemn. — Right to, 178.

Behavior. — Binding over to be of, 291. 293.

Binding over. — Party to prosecute and l)ear witness in indictiible
offences, 85, 86 ; accused, 89, 90, 95, 96, 99, 100, 101.

Bona Fides,— Of claim of title, 12, 13.

392

INDEX.

Boundary. — Execution of warrant beyond, of county wherein is-
sued, 68, 69, 160.

BROKEin. — Embezzlement by, not triable at Quarter Sossionfl, 49.

Cause. — Of complaint 152.

Caution. — To a person accused of an indictable cfllVnce bclorc
making voluntary statement 80-83.

Certainty. — Indispensable in conviction 187, 188; degree of,
required 187..190.

Ceutikicate. — Of non-appearance of Defendant on recognizance,
in summary cases 1G2, 170, 176, 204, 210; in indictable
cases 90, 91, 307

Cbutificatb. — Of dismissal of an information or complaint 201 ;
of indictment being found to autborize is.sue of warrant
59, 60 ; of consent to bail by Justice 100 ; of costs of pro-
secution 329.

CBHTioiiArti. — Taken away 234, 324, 384 ; can still issue in certain
cases 235 ; lies of common rigbt 235.

CiiAHOE — Of an indicttible offence for which a warrant may issue
52, 53.

Charges. — Of commitment sea " Commitmk.n't."

CniKESK. — Witnesses how sworn 21.

Claim. — Of right or title ousts Justices jurisdiction 12, 13.

Clear days. — Effect of, in reckoning time 147.

Clbiik op the Peace. — His duties in Appeal 229, 237, 239, 241,
242 ; returns to be made to, 238, 239, 307, 324.

Co-defendant. — Discharged and giving evidence 18, 19.

ComriTMENT. — Of witnesses refusing to be examined in summary
cases 168, 303, 322, 341 ; the like in indictable cases 75, 76,
77 ; for relusing to enter into recognisance 87.

Commitment. — (on summary convictions) should be several against
each 215 ; where punishment is by imprisonment 215, 216,
instead of issuing a distress warrant 209 ; until return made
to a warrant of distress 209; in default of distress 210, 211 ;
in default of distress for costs where punishment is impri-
sonment only 207 ; in default of distress upon an order ot
dismissal 219 ; of a defendant for a subsequent offence
218 ; for a consecutive period 218, 219; In default of

distress for costs of an appeal 238 ; must be in writing 214 ;
under the hand of the Justice 214 ; may be by one Justice

INDEX.

393

COMMITMBNT — Continued

throui,'h convictiou by two or muri' 214, 215, 244 ; jurisdic-
tion of Justice fihouUl appear in, 214, 215; uncertainty in,
215; in the alternative bad 188, 215, 216; must allege
conviction 215 ; defects in, when cured by good conviction
21G; (hawing up f,'()()d conviction to support commitment
200; time of imprisonment and condition of discharge
215, 217, 244; not until payment of indefinite sum 214;
nor until discharge by due course of law 214 ; hanl labor
214; blanks in 214; how long in force 217; charges
214; execution of 217; not on Sunday 6'2 ; where de-
fendant already in custody 218; backing warrant 217;
liberation on condition fultilled 217, 244 ; amendment 216 ;
substituting good for bad 216; quasliing 217; bad in part
217. FoHMS. — For safe custody during adjournment 251,
252 ; of witness for refusing to be sworn and give evidence
257; on remand 258; for want of distress 270; on con-
dition for penalty in lirst instance 277 ; for consecutive
period where defendant convicted of two or more oflences
on same day 278.

CoM&nTMENTS (Ou Summary orders) — Minute of order to be served
205,200. in default of payment 207 : where sum is to be
levied by distress 207. FoiiMs — 297, 282.

Commitment — Upon conviction, &c., after appeal 230; FoKMs-268.

Commitment. — Not void for defects 234, 235.

Commitment. — (In iiuUctable oflences), for offences at sea or abroad
58, 59; upon an indictment f<)und CO, 01 ; remand 70, 88 ;

after examination 88

for an oftence committed in

another Territorial Division 91, 92, 93; of accused by sur-
render by his bail 142. FoitMs. — Of person indicted 110;
in detainer 118; of witness refusing to be sworn or to
give evidence 123; of witness not summoned who refuses
to be sworn or to give evidence 123; of witness refusing
to enter into recognizance 130; on remand 123: for trial
139; on surrender by bail 142.

Commitment — (Summary administiation Act) On conviction of
larceny, feloniously receiving stolen property, attempt to
commit larceny from the per.son, or simple larceny under
sub sections I an<l 2 of s. 2 of Act, 299 ; not to exceed six
months with or without hard lalior to common gaol 299 ;
where value of property exceeds 510, accu.sed consenting
and pleading guilty niiiy be committed for p term not
exceeding twelve months with or without hard abor 302 ;
person convicted under 3rd, 4th, 5th or Gthsubs. of s. 2 may

1(1
m

.''•1

'H I

394 ,

INDEX.

(!OMMiTii^.N'r— Summary A*Imini8trution Act)— CanUnueJ

be committed for a period not exceeding hIx months with
or without hard labor 305 ; on non payment of fine where
imprisonment forms part of punisliment may be committed
tor further period DOS, 301.

(.'oMMiTMENT (Juveuilc Oft'ender.s). In (Jucl)ec may l)e to Refor-
matory School 318, 332 ; or to imi)risunment in (Common
Gaol in first instance 318, 332 ; may be to hard labor 323.

(Commitment (Speedy Trial). On conviction as provided by law 339,

(.'OMMON Informer — Where information can l)e laid by, 147, 148 ;
can give evidence in his own case 21"), 246.

CoMrANv — Frauds by director Ac, not triabl.,' at Quiuter Sessions
43, 45, 49.

Comparison — Of writing 23.

(.JoMPKTENCV. — Of witnesses 10-19.

Complaint. — See " Infoumation."

Compromise — 132, 183.

Concurrence — Of Magistrates 173 : right of Magistrate lirst seized
of case to hear it 173.

Condition. — Of discharge must be stated in comniitnunt 217, 244.

Confession. — Supplies tlio want of evidtnce 82,33; procured by
threat or promise inadmissible 82,83; in other cases ad-
missible 82, 83:

Consecutive. — Periods of iinprisoninent on summary convictions
218, 219.

Consent. — Of Justice to bail being takm 100; of party charged
ere being summarily tried in certain eases 297, 298, 301,
318, 337, 338 ; not necessary in certain cases 298, 299

304, 305.

Constable. — (Summary convictions ami orders.) Service of .sum-
mons by 152,153, Ibl ; execution of warrants by 210, 213,
212; distress warrants 213, 214; return thereto 210, 215;
to pay over monies levied 214 ; expenses of conveying
defendant to prison 214 ; refusing to return warrant 214.

Constable. — (Indictable offences). Service of .summons by 6G ;
ot subpoenas 74, 75 ; execution of warrants by G9, 71 ;
expenses of conveying accused into another territorial
division 94, 95. Costs of, see costs.

Contempt.— Commitment for, 75, 77, 247, 340, 341, 342.

Contradicting. — Witness 23, 24.

INDEX.

395

CoNVicTiON.--(w2 k a3 Vic. c. 31). PiociHtliugK pnjlimmury to
143, 184 ; 18 mjittiT of record 184; distinction between, and
orders 145 ; general form and qualities of 184, 200 ; Justice*
nhould be together when making conviction jointly 179;.
limited to a ceituin cxUuit by information 155; Must be
eertitied under the hand of Justice 184, 198; seal no
longer necessary 350, 351 ; judgment to be rocordc<l in
present tense 260-271 ; cerUiinty of 187, 189 ; bad, if
disjunctive or alternative 188 ; pursuing words of statute
188, 189; statutory forms of, 185, 260-271; as to provi-
sions in statute declaring it not bad for want of form 234,
235, 311, 324,384; Mhat may be rejected as surplusage
being an entire judgment must l)e good throughout

187; the several parts of

185
217
136
can

; jurisdiction must appear
; venue 180, 187 ; oflcndcrh
be

naniu 186 ; if unknown
described 109; name, Ac, of Justice 198; place

)

of oflfttnce 137 ; description of oflence 182-192 ; pursuing
words of Statute 188, 189 ; when even greater particularity
required 188, 189 ; charging matter of law 188 ; stating
complainant to be owner of property 147 ; specifying parti-
cular sums, &c. 190; written instruments 190, 191 ; owner-
ship 191 ; partners, Ac. 191 ; negativing exemptions 191,
192; in i)receding or subsequent clause of Statute 191 ;
in preceding Statut(! 191; in subsequent Statute 191; in
general, negative not sufficient 192; when 192: what
exemptions need not be negatived 191 ; direct statement
of offence necessary 188 ; adjudication of punishment
192-196 ; several penalties 193, 194 ; restitution ot pro.
perty 308, 309 ; costs 197, 198; conclusion 198: attesta-
tion 198 ; date 198; information, Ac, not stated in, 184;
practice as to drawing up, 200 ; amendment of, 200 ; filing
at Sessions 2:)5, 23<) ; copy delivered, not binding on Jus-
tice 200 ; drawing up formal, 200 , any time before return
to certiorari 200 ; althougli after commitment 200 ; or
<listress 200; or ai-tion against Justice 200; or semblo,
after conviction returned to sessions 200 ; not after com.
mitment quaslied 200 ; not after Defendant discharged
200; appeal from 220-234, 381-388; qiiasliing on appeal
223, 230, 284; affirming, on appeal 223, 230, 383, appeals
from, to what Courts 220, 221, 224, 381, 382, 388. Certio-
rari, removal by, '234 235 384 ; — Fohms op : — For a penalty
to be levied by distress, and in default by imprisonment
260 ; for a penalty, and in default, imprisonment 261 ;
where punishment is by imprisonment 262 ; on view 263 ;
for joint off-nre, p 'ualty severed 303 ; of d'fendunts for

' i

396

liSDKX.

Conviction — Continued

8(!Vi'ral offi;ncos, penalty same to each 2G 1 ; the same where
p.iiialty on cacli, difTennt 215; for Hccond or Hubscquent
ofti'nco 2GG ; where consecutive impriHonment 2GG.

Conviction. — (Summary achninistnition Act) 298,291), 301, 305;
c()j)y oi VitrtilU'd evidi.nc*; in (ill chbch 308 ; Forms of 313,
314. (.Juvenile oflcnders) 316, 317, 322, 323,

CoNviCTio.v. — (i'rovious.) See previous conviction.

CoBTA. — U])on an inforiniition or complaint 20G ; upon dismissal
204, 20G ; remedy for, when; the (>fTenee or matter is
punishable l>y imjirisonment only 207; whore punishable
with a penalty and imj)ri.S()nment in default 207, 208 ;
where penalty recovered by distress 207 ; where no mode
of recovi'rinjjf p(!nalty, <fec. 207, 208 ; statement of, in con-
viction or order 207, 197 ; amount to be therjin ascer.
tained 207 ; in appeal 222, 237, 233, 383 : on nflirmanco
of conviction 222, 237, 38:5 ; on (piii>--hing conviction 237 ;
mode ot levying;, ot appeal 237, 238.

CoaT8, — (In indictable cases). Ot constable in 94, 95 ; of constable
in New IJrunswick 379 ; in Quebec 3G9 ; in Nova Scotia,
party comniittcid to bear costs of conveyance to Jail, 377;
on his refusal, .Justice to isstie warrant of distress and
appraisement to be made 377 ; if no goods 377.

Costs. — (.Juvenile oifenders). .Tu.-itiees may order i)ayment of,
32G, 327.

Counsel. — When iiiformation or comi)laint may be laid or made
by, 171, 147 ; right to assiatunce of, upon summary hearing
174, 179; appearance of parties by, in summary proceed-
ings 174.

Counsel. — (Tn indictable cases). Prisoner no absolute right to
assistance of 83, 84, 85.

(Summary administration act.) Hight of pri.soner to a-ssist-
anc(i of, ;'.02.
(Speedy Trial), llight of prisoner to, 339, 340.

Counselling. — Commission of summary offences 1G4, 1G5 ; com-
mission of indictable offences 105.

Coontv Judge. — (Indictable cases). Power to admit to bail 9G, 97 ;
no power in case's of trea.^on and certain cases of felony
97, 98 ; on apj)lication to, in Ontario or New Brunswick,
can order bail 104.

(Summary administration.) Being J. P. power to act alone
under 294, 295 ; same power under Juvenile (Jifenders Act
315 ; power under Speedy Trial Act 34'L

INDEX.

397

Criminal Inpokmation. — A^aiiiKt Justict s for rcfiiHing to tako bail
wh( n priHont r intitKd to, 98.

Cbobs-Examination. — Uf witncKs upon a Rummary hearing 2.'1, 24,
181 ; of witno8S(;8 upon a charge of un in<liclahlc otfenco
23, 24, 77, 73 ; in other VaHCH 23, 2 J, 302, 339, 340.

of,

to
list-

jm-

LCt

Dbath. — Of witness before trial, liis examination nmy be read
79, 80.

DscLAnATioN.— In lieu of oath 19, 20; dying, how to be iukm
and form 108, 109.

DsrRCTB. — As to informations or complaints 154, 102, 1G9; in
summons or warrant in indictable cases 63, 69, 70. .

DirBNCR. — In summary cases may be by Coimsel or Attorn* y
174,179; in indietablo cases before Justices 33-85; under
summary administration Acts 302, 339, 340.

OsncNDANT. — Name of, information or complaint 287, 107 n, 8);
non-appearance of, upon summary hearing 15G, 158, 163,
174; warrant to apprehend on non-appearance 150, 175;
8ei*vice upon 252, 153; proceeding crparte on non-appear-
ance of, 158, 174, 175; how to be dealt with pending ad-
journment 162, 119, 176, 130; non-appearance of, after
adjournment 163, 169, 177; to be called upon to pleml
177, 179; taking objections to information, &c., 154, 162,
169; address to the Bench 182; proceedings of, at sum-
mary hearing 181, 182; claim of right by, 12, 13, 182;
compromise by, 182, 183; dismissal of information against,
175, 179, 181, 183, 184, 204; when entitled to costs 204,
206; to certificate of dismissal 201; joinder with others
195-198 ; when copy of minute of order to be served upon
205; when he may be committed 207, 209, 210, 211;
apprehension of, on summary conviction 207, 210, 211 ;
imprisonment in default of payment 209 ; levying penalty
by distress 207, 208 ; how to be dealt witli pending <iistres8
209, 210 ; when to be committed in default of distress 210,
211; commitment on confession of no goods, or warrant
ruinous 209 ; release on payment to constable or gaoler
217, 243, 244.

Dblivbrance. — Warrant of, to be issued by Justices on admitting
prisoner to bail on Judge's ord.r 91, 97 ; to be lodged with
Gaoler by Justice admitting to bail 93, 99 ; Forms of 139.

398

INDEX.

DgposiTiONS. — To be takt'U upon oath before granting warrant to
apprehend upon Summary proceedings 156, 157 ; mode of
taking in preliminary investigations into indictable offen-
ces 78, 79; of witnesses dead or ill may be read on trial
79, 80; Forms of, 224, 125.

Detained. — Form of affidavit that person detained is under indict>
ment 117.

Detainbr. — Wan-ant of, for a second indictable offence 61, 62 ;
Form of 118.

Discharge. — Of accused upon an indictable charge 99, 100, 101 :
(Summary Acts) 299, 300, 319, 339 ; in certain cases where in-
expedient to inflict punishment may be discharged 300, 319 ;
under Juvenile Offenders Act in latter case on his finding
sureties 319 ; (Summary Administration) Certificate of 314 ;
(.Juvenile Offenders) 319,

Dismissal. — Form of Order of 270, 271 ; of charge under Summary
Administration Act 314; of charge when inexpedient to
inflict anv punishment 319; effect of certificate of 201,
311,320.'

Dismissal. — (Of complaint or information) as to in, general 181 '
183, 184, 201 ; costs upon 204, 206, 207.

Distress. — Costs of defendant upon dismissal of complaint or
information to be recovered by, 207 where no provision for
paying penalty &c., 207, 208 ; Backing warrant of, 208 ;
provisions where issuing warrant of, would be ruinous, or
that defendant has no goods 209 when warrant of, issued,
defendant, may be bailed 209, 210 ; in default of sufficient,
commitment of defendant 210, 211; instructions on form
of, 211, 212 ; defendant not to suffer by, and imprisonment
on the same conviction 213; duty of Constable charged
with warrant of, 213, 214 ; fofms of warrants of 272, 275 ;
form of endorsement of warrant 275. Documentary Evi-
dence— rules respecting 28, 36; of Constables return to
215, 276.

■Entering Appeal. — Sec Appeal.

Evidence. — As to variances between informations, &c., and, 69, 7t
169 ; of witnesses to be given on oath or affirmation 19-22 -
See witness, Documentary Evidence.

ExPARTF. — Proceedings, 158, 175.

INDXX.

399

Fees.— Of Clerk to Justices 206, 241, 370, 371, 378.

Fi.NK. — Imprisonment in default of payment of, 209, 211 ; to whom

to be paid 217, 238, 243, 244.

Foreign CoUiNXRv. — Apprehension of parties for offences committed
in, 58, 59.

FoROERV. — Not triable at Q. S. 36.

Gaoler. — To release defendant on payment 217, 244 to receive
penalties, &c. 217, 244; to receive prisoner from constabU
215 ; and to give receipt 101 ; form of receipt 140.

Gentoo. — How sworn to give evidence 21, 22.

General Sessions. — See Quarter SessIonsj.

Guilty.— Pleading, 80, 82, 177, 178, 179, 298, .300, 301, 302, 339.

Habeas Corpus. — Putting in amended commitment to return of,
216, 217.

IU:aring. — (Summary convictions and orders.) Before whom and
where 172, 173, 178, 184'; appeamnce and non-appearance
of parties 15(J, 158, 170, 174, 176, 177, 204; Proceeding
exparte 158, 175; the course of proceeding at, 179-184;
adjournment of, 154, 162, 109, 202, 203. •

Hearing. — (Indictable cases.) The Court not an oi)en one 83, 84,
85 ; taking depositions 77-79 ; Adjournment of examination
70, 88 ; examination for an offence committed in another
division 70, 71, 72, 91 92, 93, 9' ; defence of accused and
examining his witnesses 77-79; committal or discharge of
accused 91, 92, 93, 95, 101 ; taking bail for accused 77,
89, 100,

Hearing — (Juvenile offenders.) Proceedings at, 318, 320. Sfe
Justices (Juvenile offenders.)

Hearing, — (Summary administration,) — Statement of cliarge 297,
298; proceedings at 298, 310,

Hearing.- (Speedy trial.) 338-342.

High Seas. — Appreljcnsion of party for offence committed on, 58, 59,

Hi'Sband and Wifk. — S<'e Witnes'E?.

4(0

INDEX.

'Illness. — Of witness, proof of, in order to read depoBition 79, 80.

Impbisonmknt. — Statement of time iind manner of, in warrant of
commitment 214, 215; for Kubsequent ofl'ence, when to
218, 219; when it runs from in general 218,

commence
219.

Indictahi.e Offe.nces. — .TuriBdiction of Justices to hear charges of
8, 52, 106.

iNDonsKMENT. — Backing warrant of approhension in indictable
cases 70, 71, 72 ; in summary matters 161, 217, 218; back-
ing warrant of distress 208.

Informant. — Name of, in information 145 ; non-appearance of,
176, 203, 204; appearance of, at hearing 174, 177, 179;
his address 180; to prove his case in the first instance
180, 181; compromise with defendant 182, 183; when

liable for costs 206 ;
commitment of, 207.

warrant of distress against, 207 ;

Information. — What is an information 145 ; before whom when
and where to be laid 143, 152 ; as to, in general 143, 152 ;
when to be upon oath 148, 171 ; by whom to be laid
171, 147; when to be for one matter otily 171, 148, 149;
as to amendment of, 154, 155; statement of time 186,
187; place 18G, 187; name and style of Justices 186,
260, 270; statement of names of informant and defen-
dant 145, 287, 288; description of offence 145, 149, 287;
statement of sums and quantities 190 ; statement of excep-
tions and provisos 149, 191 ; setting out written instru-
ments 190, 191 ; when it may be for several offences 148,
149. 193; power to amend defects in, 154, 155; conse-
quences of defects in, 154, 155; time for laying, 146, 147,
152, 171, 172; when to bo in writing 148, 156; »when to
be upon oath 148, 171 ; When to be in respect of one thing
only 148, 149, 171; one Justice may receive 244; The
hearing of, 179, 184; taking objt^ctions to, 154, 155; dis-
missal of, 178, 179, 181, 182, 183, 184; certificate of dis-
missal of, 201.

Intendment. — Not allowed to help out a defective return to
Habeas Corpus 215, 216 ; or a defective description of
offence 215, 216.

Interest. — Justices disqualified by, 11, 12; witness not disqnali-
fitd by. 16, 17.

INDEX.

401

Jews. — IIow to be swoni 20.

Joint-Te.vants. — How property of^ to be described 163, 1G4, 191.

Joint Conviction. — On joint information 195, 197; penalty 195,
197.

Joint Offenders. — 150, 195.

Joint Tuial. — Discharge of one defendant so that he may be a

witness 18, 19.

Judge. — Of County Court, powers of, to admit to bail 96, 97, 98,
104, 105, 294, 315, 342 ; of Superior Court 96, 97,98, 104 105 ;
of Ses.sions, powers of two Justices 102, 246, 294, 295 ,315,
342, 353 ; power to preserve order 246.

Judgment — Of Justices upon a summary hearing 179, 184 ; duties
of Justices as to, 179, 184; form of, pronounced by Justi-
ces on summary proceedings 184. See Conviction.

Judicial Act. — What is a, 7, 8.

Jurisdiction. — Of Justices in general 8, 11 ; must be expressly
given by the Statute 8, 9 ; limits of, 10, 11 ; local extent
of 10, 11 ; Justices must appear to be acting in their juris-
diction as well as for it 14 ; qualified as to number and
description of Justices 10; priority of 173; as to ott'ence
10, 11; limitation as to amount 14; as to time 14; must
ai)i)ear on face of proceedings 14 ; ousted l)y chaim of right
or property 12, 13 ; information &c., requiretl to give, 145 ;
practice wliere defendant or accused apprehended in a
different jurisdiction to what in wliich offence committed
71, 72, 91, 92, 93, 94, 95.

Jury. — Trial before Justices originally by, 2 ; Justices in place of,
2; as to effect of evidence 100, 101, 183, 184; appeal,
when tc, 231.

Justices. — Origin and progress of the jurisdiction vested in 1-6 ;
appointment of, 6 ; (Xndictiible offences,) jurisdiction over
indictable offences 52, 53, 58, 72 ; as to granting warrant
53, 55, 57 ; over what offences jurisdiction 52, 53, 58, 72 ;
as to issuing summons in lieu of warrant 54 ; issuing
warrant on non-appearance of party summoned 55 ; service
of summons 56, GG ; information to be supported by oath
ere issuing summons or warrant 55, 63 ; offences on the
high seas 58, 59 , on land beyond the seas 58, 59 ; meaning
of words, found within the jurisdiction of, 59 ; power of,
where person indicted at large 59, 60 ; certificate to be
produced to, in such case 60 ; can commit or bail in such
case 60, 61; may order person indicted in prison to be

402

INDEX.

Justices — Candnued

detained 61, 52 ,

may issue warrants on Sunday 62 j can.

not issue summons on Sunday 62 ; may reetive informa-
tion whereon warrants issue on Sunday 62 ; no objections
allowed to informations or complaints before, 63, 64 ;
granting search warrant 64, 65 ; summons granted by,
contents of, 66 ; service of QQ ; constable, attendance of,
to prove service 66 ; non-appearance of person served 66,
67 ; warrants granted by, contents of 67, 68 ; to remain
in force until executed 68 ; how executed 68, 69 ; in next
adjoining territorial division 68, 69 ; who may execute
wan-ants of, 69 ; no objections to summons or warrants 70 ;
party deceived or misled by variance case may be adjourned
by, 70 ; party accused may be remanded or bailed during
such adjournment 70; backing warrants by, 70, 71,72;
Jiccused arrested on backed warrant may be taken before
Justice backing or some other Justice, if constable so
directed 72, 73 ; summons to witness 73 ; mode of pro-
curing such summons 73 ; warrant against witness ne-
glecting to appear after being summoned 73, 74, 75 ; war-
rant for witnt ss in lieu of summons 75 ; proceedings by, if
witness refuses to be sworn or refuses to answer 75, 76, 77 ;
just excuse by witness 76, 77; to take evidence in pre-
sence of accused 77, 78, 79 ; procedure at examination 77-85 ;
mode of examination of witnesses before, 78, 79 ; bound to
examine all parties who know circumstances ot case 79 ;
to a(iminister oath or affirmation before examination 79,
80 ; if on trial it is proved witness is dead or so ill as not
to be able to travel, or absent, his deposition taken before,
can be read 80 ; mode of taking such examination by, 80 ;
to caution accused 80, 81 ; admissions or confessions may
be given in evidence 81, 32, 83; examination signed by,
admissible on trial 81, 82 ; place of examination by, not an
open Court S3, 84 ; Counsel or Attorney of accused can be
excluded by, 83-85 ; Mr. Saunders' opinion on expediency
of such exclusion 33-85 ; binding over of witnesses by, 85,
86 ; to subscribe recognizance 81 ; transmission of recog.
nizance by, 86, §7 ; witness refusing to enter into recog-
nizance may be committed by, 87 ; discharge of witness so
committed 87, 88 ; on notification of willingness to enter
into recognizance, duty of, to witness committed 88 ; ad-
journment of examination by, 88 ; remand by wanant not
to exceed eight clear days 88 ; verbal remand not to
exceed three days 89 ; may be to custody of constable or
other person named by, 89 ; may bring up person remanded
before expiraticn of remand 89 ; may admit party accused

INDEX.

103

Ian
be

ter
td-

Ito

led

Justices — Continued

to bail instead of remanding him 89 : non-appearance on
recognizance 90 ; offence committed in another territorial
division 91 ; proceedings thereon by, 91-33 ; if evidence
sufficient, to commit or bail 91, 92; if not sufticient to
order accused to be taken before Justice for the division
within which the offence is alleged to have been committed
92 ; depositions before, so ordering, proof before other
Justices 93 ; to furnish constable with certificate 94, 95 ;
accused in certain cases, under certain circumstances may
be admitted to bail by two, acting jointly 95; exception*
to such rule 95, 96 ; nature of recognizance 96 ; bail may
be required to justify by, 96 ; Judge of Superior or County
Court may order person to be aclmitted to bail by recog-
nizance before two, 96, 97 ; not to admit to bail persons
accused of certain crimes, save by order of a Judge or Court

97 ; Courts and Judges empowered to make such order 97,

98 ; bailing to issue warrant of deliverance 98, 99 ; if evi-
dence sufficient, accused to be bailed or committed by, 99 f
if insufficient, to be discharged by, 99 ; always to bail in
cases of misdemeanor 99, 100 ; neglecting or offending,
punishment of, 105 ; Act applicable to all 105.

Justices. — (Summary Convictions) receiving infornmtion or com-
plaint duty of, 143, 144; to issue summons 144; contents
. summons 144; jurisdiction 144, 145; cannot refuse
to receive an information 145, 146 ; time of laying inform-

)

ation before, 146, 147, 171, 172; requisites of information
before 1 45, 1 52 ; Constable to attend before, to prove
service of summons 153 ; in certain cases can make orders
on application exparte 153 ; adjournment by, if defendant
misled 154 ; no objections to information, complaint or
summons to be allowed by, 154, 155, 162 ; if summons duly
.served not obeyed, warrant may be issued by, 156, 157 j
information in such case to be substantiated on oath 156 ;
where warrant issued in the tiiv-t instance copy to be fur-
nished by, and infonnation to be substantiated on oath
157, 158; such copy to be served on each party arrested
157, 158; appearance before, may be by Counsel 157;
minute of proceedings to be kept by, 157; proceeding
exparte before, 158, 159; form of warrant of, 159, 160;
duration of warrant of, and how to be executed 160 ; in
case of fresh pursuit in adjoining division 160 ; service of
warrants of, by whom to be made 1 60 ; backing warrants
161; variance immaterial between warrant and evidence
161 ; defendant deceived by variance adjournment 162;
defendant in such case to be committed or bailed 162 ; failure

404

INDEX.

Justices — Continued

of defendant to appear to be certified on recognizance l»yi
163, 170, 177, 204, 210; aiders and abettors, proceedings
against, before, 164, 165 ; to grant summons for witness
165, 166; oatli necessary in such case 166; warrant of,
when witness fails to appear 166, 167 ; warrant under
certain circumstances may be issued against witness in first
instance by, 167, 168; commitment of witness for refusal
to give evidence 168; certain complaints before, need not
be in writing 168 ; certain variances not material 169 ;
del'endant misled, may adjourn hearing 169 ; on wliat con-
ditions 169, 170 ; informations and complaints may be laid
before, without oath 170, 171 ; exceptions 169, 170; issuing
warrant in first instance information to be on oath 171 ;
to be single 171 ; may be laid by counsel or agent 171 ;
where no direction in act upon which complaint is framed
one Justice may hear 172; one may receive information,
&c., 172, 244; Justice taking information, &c., need not
hear case 173, 245 ; contest, between, 173; first set of, have
exclusive jurisdiction 173; concurrence of two requisite
173, 245; division of opinion between, 173; open Court,
. room where hearing takes place 174 ; defendant's right to
defend by Counsel 174 ; complainant's right to prosecute* by
Counsel 174; proceeding exparte 174, 175; may issue war-
rant on defendant's default to appear at heaiing 174, 175 ;
proceedings before, when defendant apprehended 175; no
committal in such case to be for more tlian one week 175,
176 ; complainant or informant to have notice of day and
place for hearing 170 ; in such case, may if complainant or
informant does not appear, discharge 176 ; or commit hiui
176 ; or bail him 176 ; proceedings before, at hearing 177,
184 ; minute of conviction or order to be made by 184|;
to be afterwards drawn up under hand and seal 184 ; con-
viction by, 184, 200 ; certificate of Dismissal to be given
by, 201 ; witnesses before, to be sworn or to affirm 202 ;
discretion of, to adjourn 202, 203 ; may thereupon commit
defendant or discharge him on recognizance 203 ; if either
or both parties do not appear, may proceed to the hearing
203 ; prosecutor not appearing may dismiss 204 ; with or
without costs 204 ; form of convictions in schedule 204,

205 '■ forms of orders in schedule 205 ; copy of minute of
oraer of, to be served 205, 206 ; may order costs in any case

206 ; to be specified 207 ; how recoverable 207 ; may issue
warrants of distress 207 ; when no mode provided for levy-
ing penalty distress to issue 207, 208 ; backing warrants of
distress 208 ; where warrant would be ruinous, or there are

INDEX.

405

Justices — Conlinuned

no floods, may commit 209 ; may bail or detain dcfonilant
until distress rt'turned 209, 210 ; in default of sufiicieut
distress, may commit defendant to i)rison 210; Avhere no
term specified in act, period of imprisonient not to exceed
three months 211 ; commitment by, for subsequent offence
218 ; costs of dismissal to be recovered by distress 219 ; in
default of distress, commitment for not more than one
month 219; recognizance before in cases of Appeal 221,
225, 226, 382, 383; if Appeal dismissed, may issue warrant
of distress or commitment 234, 383 ; convicting to return
conviction 235, 23G; and deposit money if any 235, 236 ;
on production of certificate of non-payment of costs of
Appeal, may enforce payment by distress 237, 238 ; and in
default of distress may commit 238 ; return of convictions
and moneys received by 238 ; form of return 239 ; penalty
on, neglecting, &c , to make proper returns 240 ; limitation
of prosecutions against, for not making returns 240, 241 ;
schedule of returns made by, to be posted and published
^241, 242; indictment against 242, 243; criminal informa-
tion against 242, 243 ; irregularity arising from ignorance
or mistake never a ground for information t)r indictment 242,
243 ; one can issue warrants of distress and commitment
244 ; amount to be paid to party aggrieved limited 245 ;
certain magistrates to have powers of two, 24G ; such
magistrates power to preserve order 246 ; powers of Justices
to preserve order 247 ; to commit for contempt 247 ; enforce-
ment of process by Police Magistrate, &c., 247.
Justices. — (Juvenile offenders.) Two, have same power as Recor-
ders, 315 ; persons not more than sixteen years in opinion
of, may be summarily convicted before two, 316, 317 ;
offences for which such juvenile offenders may be convic-
ted before two, 316, 317, 318 ; punishment on such convic
tion 316, 317, 318 ; to ask consent of accused to summary
trial 318; accused, or parent or guardian of accused, ob-
jecting, he cannot be tried 318 ; if case not proved, shall
dismiss 319 ; if proved, in their discretion need not inflict
punishnK'nt 310 ; in such case accused to give sureties 419 ;
certificate of dismissal 319 ; if accused does not consent, case
to be sent to a jury 320 ; if charge a fit sid^ject for indictment,
case to be sent to a jury 320 ; if accused afterwards con-
sents he can be tried before Judge of (Jounty Court in
Ontario 320 ; one Justice may issue his warrant or sum-
mons returnable before two, 320 ; charge under oath to be
previously niade before him 320 ; one Justiee may remand
or take bail 21 ; condition of recognizance 321 ; enlarging

406

INDEX.

Justices — Continued

or discharging recognizance 321 ; one Justice may sununon
witnesses 321 ; may bind witnesses over 322 ; may compel
attendance and issue warrant to apprehend 322 ; summons to
witness how served 322 ; form of Convictions by, 322, 323j
certiorari taken away 324 ; convictions and recognizances
to be transmitted to Clerk of the Peace 324 ; restitution
may be ordered on conviction 325 ; or the payment of
value in money in case of conviction or dismissal 325 ;
enforcing payment of penalties 326 ; committal for non
payment 326 ; costs of prosecution may be awarded 326,
even without conviction 327 ; paying officer 327, 324 ; Total
of costs not to exceed $8, 327 ; payment of penalties 327, 328 ;
Certificate of expenses &c. to be certified by, not to exceed
in any one case eight dollars 328, 329.

Justices. — (Juvenile offenders in Quebec.) OflVnders detained in
a certified Reformatory School may be summarily convict<.'d
before one Justice of certain offences 333 ; wilful neglect
or refusal to conform to rules of School 333 ; punishment
by imprisonment with hard labor for term not exceeding
three months 333 ; escaping from School 333, 334 ; must
be previous to expiration of his period of detention 334 ;
may be apprehended without warrant 334 ; Justice wliere
he is found, or from whence he has escaped, can convict
234 ; consent of managers necessary 334 ; punisliment not
to exceed three months imprisonment with hard labor 334 ;
two, can summarily convict persons aiding sucli detained
person to escape, inducing him to escape or harboring him,
&c, 334, 335 ; punishment 335.

Justice's Clerk.— As to, in'general 370, 371, 372, 373, 374, 370, 378.
Juvenile Offenders. — Summary proceedings against 315, 330;
in Quebec 331, 335. See Justice (Juvenile ofienders.^

Larceny. — Summary proceedings in cases of, 294, 313 ; exceptional
jurisdiction in N. B. 379, 380. See Justices (Juvenile oflen-
ders.)

Limitation of time. — For preferring informations or complaints
under summary conviction Act 171, 172 ; for action against
Justice under said Act 240, 241.

Libel. — Q. S. no jurisdiction to try 37.

Limits. — As to locality 8, 11.

INDEX.

407

r8.

Magistrate.— ( Police,) powers of two Justices 102, 246, 294, 295, 315,
353. /District) wht;ro no Judf^e of Sessions, has power to try
offonaers under Speedy Trial Act 324 ; any magistrate au-
thorized to do alone what two Justices authorized to do]
powers of. See Police Magistrate-
Mahometans. — How sworn 24.
Mandamus. — When it will issue to Justice 145, 146.

Married Woman.— How penalty inflicted on, to be levied 202;
how to be bound over to- give evidence 85, 86.

Master. — When liable on summary conviction for act of servant

150.

Memorandum. — Of conviction or order to be made 184.

Minors. — How to be bound over to give evidence 85, 86.

Minute. — Of adjudication in summary convictions and orders to
be made 184 ; of orders to be served before enforced 205.

Misdemeanors. — One Justice may take bail in, 96.

Misprision of Treason. — Quarter Sessions no jurisdiction to try
36, 37.

Money. — Restitution of, stolen embezzled, &c., 308, 309.

Month. — Meaning of month 147.

Motions. — As to making, at Q. S. 229.

Murder. — Q. S. no jurisdiction to try 37.

Next Session. — Meaning of 382.

Non-Appearance. — Of both parties upon summary proceeding*
176, 203 ; of complainant 176, 204; of defendant 158, 159,
163, 174, 175, 204; warrant to apprehend 163,175; case
may be heard ezparte on, of defendant 158, 159, 174, 175,
205 ; in indictable cases on, of accused summoned, warrant
may issue 54, 55. Of witness, see Witness.

Not Guilty Effect of plea of, 180, 178.

Notice. — Of recognizance to be given by Ju.stices 86.

Notice of Appeal. — See Appeal.

Notice to Produce. — When necessary 29.

Oath. — Wlicn information to be under oath 171, 143 ; charge oi
indictable offence to be under, 53, 63.

408

INDEX.

Objections. — To wiirmuts informations, &c., not allowed 63, 04
69, 70, 154, 155, 102.

Offence. — Statement of, in clmrpje O;], 04 ; variance 63, 64, 09, 70 ;
statement of, in information or complaint 150, 151 ; several
offences 148, 195, 108; joint oflences 195, 198 ; conviction
of, 184, 200; commitment for, 214, 218j Btatement of, in
warrant of distresB 212.

ORDEn. — For discharge of a witness committed for refusing to
enter into recognizance to appear 87, 88.

Order of Dismissal. — See Dismissal.

Orders. — As to, in general 145, 151, 152 ; distinction between
orders and convictions 145, 200 ; when minute to be made
by Justices 184 ; minute of to be served ere process issuing
205, 200. See Information, GONVicTiON',DiSTnESS, commitment.

Ownership. — Of property how described in information 103, 104.

Parceners. — Property of, how described in information 103, 164.

Partners. — Property of, how described in information 163, 104 ;
property of, how distrainable 212.

Payment. — Defemlant on distress to be released on, 214, 243, 244 ;
defendant committed to be released on, 217, 244.

Peace.— Sureties for the, 291,292.

Penalty. — Several on each offender 193, 197 ; not to be taken in
part 217, 218 ; imprisonment in default of ])ayment of, 210,
211,198; of levying by distress 197, 198, 207, 214; to
whom to be paid 238 ; on Justices for not making returns
240; statement of penalty in conviction 192, 193.

Plage. — Of commission of offence to be stated in information 187,
151 ; of hearing in indictable cases not open Court 83, 84,
85; of hearing in summary matters open Court 174, 310,
339, 340.

Pleading. — By defendant in summary matters 177, 180, 298, 302,
318.

Police Magistrate. — See Magistrate.

Previous Conviction.— When to be proved 310, 317 (nA)

Prisoner. — Cross-examination of witnesses by, 80 ; no absolute
right to Counsel or Attorney at preliminary investigation
in an indictable offence 83, 85 ; right to cross-examine
witnesses for prosecution 80 ; statements by, before Jus-
tice 81, 82, 83 ; evidence insufficient, to be discharged 99,
100, 101 ; voluntary examination of 80-83 ; caution to be

iil».liriifi"ltiir fciTiiiii'ri

I rii-ZiHrmili I "iim'rxmt jtrm iv

INDEX.

409

Prisoner — Continued

given to, 81-83; wlirn to be ilisc hargod or committotl
09, 101 ; when to be biiib-d 90, 101 ; accnscd of miwde-
mennor cntitlt-d to bo bailed 100, 98 ; when nmy bo bailed
on certitirato of Justice 100; how to apply to bo bailed in
treason, &e.,07, 98 ; as to right to copies of depositions 101,
102 ; mode of proceeding against, when indictment found
59, GO.

Pkoi'Erty. — Scfi OwNEnsnri'. «

PnosEcuTOR. — Duty and rights of, 55 ; as to his costs luider
Juvenile Offenders Act 326, 327, 328, 329.

Public Goi:ut. — Place of hearing under Summary Convictions,
Summary A(hninistration, Jtivenilo Olfenders and Speedy
Trial Acts is a, 174, 310, 339, 340.

Quakers.— Aftirmation of, 19, 20.

Quarter Sessions. — Cases over which jurisdiction is denied to,
3G-51.

Queen's Bench. — Power to admit to bail 97, 98, 104, 105 ; one
Judge of, power to admit to bail 97, 98, 104, 105.

Recognizance. — (Indictable Oftences) of accused on adjournment
70, 89, 90, 30G, 321 ; to ajjpoar and answer indictment GO,
Gl ; of witnesses 85, 8G, 87, 01, 322 ; witness refusing to
enter into, to be committed 87 ; notice of, to be given 86 ;
to be transmitted to proper Court 86, 00, 03, 307 ; to be
given for good behavior by accused when discharged under
.Tuvenile Ollenders Act on ground of inexpediency of inflict-
ing punishment 319 ; (Summary Convictions) of defendant
upon adjournment 102, 1G9, 170, 176, 180, 203; for defen-
dant's aj)pearance on return of distress warrant 200, 210 ;
on appeal 221, 382, 383; transmission of, 1G3, 170, 177,
204, 210.

He-examination. — Of witnesses 25, 78, 70.

Reformatory Schools. — (Quebec) As to sending Juvenile Offenders
to, 331, 332 ; wlion incorrigible maybe sent to Penitentiary
322 ; refusing to conform to rules 333 ; escaping from, 334,
335 ; persons aiding to escape or harboring prisoners in,
334, 335.

410

INDEX.

Remand.— Of accused pondinj; adjomnmont 70, 88, 09, 306, 307,
321 ; not to exceed cortain time 88, 89.

Residence. — Of Justices 10, 11 ; services at, 56, 6G, 152, 303, 322.

Respondent. — Ou Appeal 229, 230.

Restitution.— Of property 308-310

Return. — Of warrant G8, IGO ; of constable to warrant oi distress
210; of conviction to Sessions 238, 239, 335; coi)y to be
• sent to Minister of Finance 242, 386; under Juvenile
Offenders Act 324.

Right.— (Claim of) duty of Justices upon assertion of, 12, 13.

Rules. — 6Ve HEroiiMATORv Schools.

Sale. — Si-veral acts of, in one day, when single offen e 193-197;

when several olfences, 193-197 ; of goods distrained 212.
Sea. — Offence committed at Sea 58, 59.

Seal. — Justice's, to conviction 198, 184 ; to warrant G7, 159 ;
want of does not invalidate 350, 351 ; may be affixed at
any time 350, 351.

Sentence.— Upon accused 298, 299, 301, 302, 305, 310, 316, 322,
323, 332, 333, 334, 335, 339.

Service. — Of summons for indictable offence 56, 60 ; of summons
to witness 75, 167, 303, 322 ; of summons in summary cas
152, 153; proof of 8(;rvice of summons beftre issuing
warrant 157, 153; of minute of order 205, 206; of notice of
appeal 225, 382, 388.

Sessions. — See Quarter Sessions.

Several Defendants. — Several offences 193-197 ; Several penalties
193-197.

Statement of prisoner. — How to be made before Justices 80, 83 ;
cautions to be given to 81-83 ; other statements of, evidence
when made without promise-or inducement 82, 83.

Sudpoena. — To witness in summary matters 165, 166, 302, 303,
321; to witness upon charge of indictable offence 73,
302, 304, 322 ; forms of 120, 254.

SUMMARY CO.NVIGTIONS. — See CONVICTIOXS.

iSu-MMARV Jurisdiction for Larcenies.- 296, 314, 315, 335, 336,
346, 379.

Summons. — To a defendant 144 ; form of 144, 249 ; service of 152,
153; proof of service before granting warrant 156, 158-
proof of service of, before proceeding ezparte 158, 159 •

INDEX.

411

Summons — Continued

to witness, see SunpotNA ; (indictJiMe ollVnccs) for Indictftbh*
offence 54, 56; form of, 56, GO, 110; service of, G6, 5G ;
non-appearance of acciised 55; to witness 73, 120; how
obtained in summary matters 1G5, 166, 302, 303, 321; how
obtained in indictable offences 73.

Sums. — How to be stated in information and conviction 190.

Sunday. — Warrant to apprehend for an indictable offence may be
granted and executed on, G2 ; search warrant may be granted
and executed on, G2.

Time— Of commission of offence to be stated in information and
conviction 14G, 147, 186; for laying information or com-
plaint 146, t47 i mode of computing 146, 147; statement
of imprisonment in warrant of commitment 214, 198, 192,
193 ; for giving notice of appeal 225, 282.

Title. — Claim of, ouster of jurisdiction by, 12, 13.

Treason. — Quarter Sessions no jurisdiction to try, 37 ; Justices
not to admit to bail in, 97.

Treasurer. — To pav constable's fees in certain cases in Nova
Scotia 377.

303,
73,

336,

152,

1158 ;

159:

Variance. — Upon a charge of. n indictnl 1e ofTt-nce G3, 64, 69, 70;
between information aun complaints and evidence 154,
155 ; between warrant and evidence 162.

Warrant. — Form of, for indictable offences 67, 68 ; power to
b\ ck and form of backing 70, 72 ; form of, when summons
disobeyed 54, 57, 111 ; taking objections to, of no avail
69, 70 ; to be in possession of officer at time of execution
217; to remand prisoner pending adjourum'-nt 88 , 132
306, 321.

Warrant of Commit.mknt. — See Commitment.
Warrant of Distress. — See Distress.

Warrant of Deliverance. — To be issued upon bail being given
98, 99 ; form of, on bail being put in 138, 139.

Warrant. — (Search.) When it may be granted 64, 65 ; Method
to o!>tain, 64, 65.

412

INDEX.

Warramt to Apphehe-nd. — In indictable cases.) When to ]»e ob-
tained 52, 54 ; when it may issue in first instance 52, 54,
320 ; objections to, not allowed G9, 70 ; when to issue
52, 50, 60; form of, GG, G8, lO'j, HI, 112, 115; how exc.
cuted 68, 69 ; backing 70, 72 ; practice on backed warrant
70, 73 ; may be granted and executed on Sunday G2 ; for
offences committed on high seas and abroad 58, 59 ; to
apprehend accused indicted 59, 60 ; against a witness for
disobedience to summons 73, 75, 302, 303, 322, 340, 342,
345 ; against a witness in the first instance 75,

Warrant to Apprehend. — (In summary cases) when it may issue
156, 157, 158; on non-appearance of def^endant summoned,
may issue 156, 157 ; proof of service of summons before
issuing 156, 157; deposition on oatli l)efore issuing 156,
158 ; by wliom to be executed 159, 160 ; against witness
simimoncd not attending 166, 167 ; against witness in
first instance 1G7, 168.

Witness. — General rule as to competency of, 16; o1»jection gene-
rally is only to credibility 16 ; interest in subject matter in
question no ground for exclusion of, 16 ; crime no ground of
exclusion of, 16; religious belief necessary 17; idiots
and lunatics are incompetent 17; husband and wife
cannot as a general rule be witness for or against eacli other

1 7 ; exceptions to such rule 1 7 ; party charged incomi)e-
tent 17 ; cannot be compelled to answer questions tending
to subject him to penalty, &c., 18 ; can answer if he chooses

18 ; acquittal of one accused renders him a comixtent wit-
ness for or against those jointly indicted with him 18,19 i
same rule wliere one pleads guilty 19 ; power of Justices to
administer oath to, 19; form of oath 19, 20; affirmation
by Quaker 19, 20 , oatli to be ailministercd in form binding
on conscience of, 20 ; evidence of infidel not to be received
20; Oath of Jew 20; of Covenanter 20, 21; of Maliome-
tans, Parsees, Peers, Gentoos, Ghinese, Deaf and Dumb
persons. Foreigners 21, 22; interpreters 21, 22; examina-
tion in chief of, 22 ; party producing witness cannot give
evidence of his bad character 22, 23 ; may i)rove inconsis-
tent statement of his, 22, 23 ; condition precedent to such
proof 23; evidence ofattrsting witness unnecessary 23;
comparison of handwriting allowed 23 ; mode of cross-
examination 23 ; leading questions generally permissible
23 ; may be cross-examined as to previous statements in
writing without their production 23, 24 ; cannot contradict
his answers about such stat<'mcnts by production of writing
without jiroduction of it to him 24 ; may be asked if he has
bein convicted of felonv or misckmennor 24; if lie (Unies

INDEX

413

Witness — Continued

may be contiadic ted 24 ; denying previous contvadietoiy
statement may bo contmdicted 24; us to character 24;
mode of rc-exu'.niiKition 25 ; new facts or statemi'nts not
tending' to explain jirevious answers, inadmissible 23;
general rules as to evidence of, 25-36.

Witness, — (In indictable cases.) Mode of compelling attendance
of, before .Justices 73, 77 ; summons to, 73 ; reciuisites ot
altiilavit to olitain summons 73,74, 111); if sranmons not
obeyed, warrant against, 73, 74 ; service of summons to be
l)roved ere issuing warraiit 73, 74 ; fonn of summons 74,
120; form of warrant 120,121; warrant can be l^acked
74, 75; if justice satisfied of probaliility that witness will
not attend, can issue Avarrant in first instance 75 ; form
of such warrant 121, 122 ; sucli warrant can be backed 75 ;
non-payment of witness' expenses no ground of cxcu.'^e
for non-attendance 75 ; appearing and refusing to be exa-
mined may be committed 75, 7(J ; for not more than ten
days 70 ; form of such warrant 122, 123; just excuse for not
answering 27, 76, 77 ; husband and wife, idiots, children
priests, ministers 70, 77 ; question must l»e pertinent 77 ;
mode of examination 77, 7t) ; to be sworn before examina-
tion 79 ; dept)sition to be taken 80 ; person accused to
liave full power to cross-examine 80 ; either personally or
by Counsel or Attorney 80 ; deposition available on trial
79, 80 ; to be bound b)' recognizance 85, 80 ; married
women and infants to give security 85, 86 ; form of re-
cognizance 127, 128 ; notice of recognizance to be given
86, 129; refusing to enter into recognizance io be c<uu.
mitted 87 ; form of connnitment 130, 131 ; entering into
recognizance after such commitment, to be discliarged 87 ;
form of order 131 ; if accused discharged, witness so
committed to be discharged 87, 8S ; remantl on account of
absence of, 88, 89; examination of, where accused appro,
hendetl in one division for crime committed in another
91, 92 ; Justice in such case to bind over witness if he
does commit accused 92, 93.

Witness. — (Summary convictions.) Mode of compelling atten-
dance of 165, 168; sinunions to 165, 166; form of 254;
requisites of allidavit to obtain 165, 166 ; prosecutor's or
defendant's witnesses can be compelled to attend 166 ; sum-
moned neglecting to ajipear, warrant may issue 166, 167;
mode of oljtaining sucli warrant 166, 167; form of 255;
may be backed 167 ; warrant may issue in certain cases"
in first instance 167, 168 ; form of 256 ; may be ba( ked

414

INDEX.

Witness — Continued

168 , refusing to give evidence may be committed 163 ;
just excuse 75, 77 ; examination of, by Counsel 174 ; mode
of examination 189, 181; to be SAvorn 181 ; informant, if
a witness, not to address Justice save upon oath 180, 181 ;
same rule applies to his Attorney 181 ; can be ordered out
of Court during trial 181 ; disobedience of such order, con-
sequence of, 181 ; evidence of, to be taken down 181
defendants witnesses examination of, 182 ; prosecutor
having pecuniary interest in result, not a competent, 202
complainants in all cases competent, 202.

Witness. — (Summary Administration) E.xamination of, for prose-
cution and defence 298 ; accused's right to have witnesses
examined and cross-examined by Counsel or Attorney 302 ;
summons to, may be issued 303 ; warrant on proof of ser-
vice of summons and neglect to appear 303 ; affidavit not
required ere issuing summons 303 ; may be Itound by re-
cognizance 303; mode of service of summons 303, 304.

Witness. — (Juvenile Oft'enders) Form of summons of, 321, 120;
may be bound by recognizance 322; on proof of service,
warrant may issue 322 ; may l)e ordered to be paid for his
attendance 327; fee of clerk for making out order 329;
Paying officer for taxation of, 329.

Witness. — (Speedy Trial) Summoning of, sec witness (in indictable
cases:) not attending when summoned guilty of cont<mpt
340, 341 ; proceeding against, for contempt 341, 312 ; form
of information 344; conviction, &c., 345, 346.

Writing. — When complaint or information to be in, 143.

Year.- -How to he ccmputed 147.

INDEX TO FORMS.

Affirmance — (Summary convictions 32 &33Vic. c. 31) — ^judgment
of, of the sessions on an appeal from a conviction 283.

Affidavit — See Deposition

Appeal — (Summary convictions 32&33 Vic. c. 31) — General form
of notice of, against a conviction or order 239, 387.

Arrest — See Warrant of Apprehension.

Backing — See Endorsement.
Bail — See Recognizance.

Certificate — (Indictable oftVnces) ot indictment being found 114;
of non-appearance to be endorsed on recognizance 135;
(Summary convictions 32&33Vic. c. 31) of non-appearance
to be endorsed on Defendant's recognizance 253 ; of dismissal
271, 289 ; Of Clerk of the Peace that costs of an appeal are
not paid 284.

(Summary administration 32 k 33 Vic. c. 33) — Of dismis-
sal 314.

Commitment — See Warrant of Commitment,

Complaint — See Information.

Conviction — (Summary convictions 32 & 33 Vic. c. 31) — for a
l)enalty to be levied by distress and in default of sufficient
distress by imprisonment 260 ; for a penalty and in default
ofpfiyment, imprisonment 261; when punishment is by
imprisonment 362 ; on view 263; adjudication for a joint
offence where penalty is severed among defendants 263 '^
adjudication upon several defendants for a several offence
where the penalty is the same to each 264 ; the like where
penalty on each is different 265 ; for a second or subsequent
offence 266 ; adjudication of consecutive imprisonment 266.

410

lEDEX TO FORMS.

Conviction — Continued

(Summary adiuinistrution 32 & 33 Vic. c. 32) Gt-nural form
of 313 ; where accused pleads guilty 314.
(Juvenile oil'enders 32 .j- 33 Vic. c. 33) General form of 323
(Speedy trial 32 & 33 Vic. c. 34) form of, when i)risoner
jileads not' guilty 343; when prisoner pleads guilty 343,
344 ; against witness for non-attendance 345, 34G.

Deposition — (Indictable offences) — Of constable, of service of
summons 111 ; that person apprehended is same who is
indicted IIG ; that person indicted is same who is in cus-
tody for some other oftewe 117; that a person is a material
witness 110; of witness 124 ; of witness on rcmandary 120.

Deposition — (Summary conviction 32 & 33 Vic. c. 31) deposition of
constable or other person of service of summons 249; that
person is a material witness 254; Ot constable of service
on witness 255.

Discharge — (Indictable olfenccs) — order to, witness 131.

Dying Declaration — Before a Justice in case of personal injuries
to the declarant 108.

Deliverance — Warrant of, on bail being given for a prisoner al-
ready committed 138.

Endorsement — (Indiitable offences) in backing a warrant 118.
(Summary convictions 32 & 33 Vic. c. 31) in backing a
warrant of tlistress 275; in backing a warrant of appre-
hension 118.

Information — (Indictable efiences) and comi)laint for an indict-
able offence lOG ; against an accessary after the fact to a
felony with the principal 108; the like without the prin-
cipal or where princii)al unknown 108 ; to obtain a search
warrant 113; or complaint of bail for a person charged
with an indictabh; offence in order that he may be com-
mitted in discharge of their recognizance 140.
(Speedy trial 32 k 33 Vice. 35) to ground a warrant against
a witness nt)t attending to give evidence after being sum-
moned or subpa'iiaed 344.

»-"iriixi.jj!gB

INDEX TO FORMS.

417

"emce .mder s. 64 272 = "' ""''■'' «' Ji^i Jl for

«J^mrolyuO; ofnx.SL.mv?;;rr ','"^ '''''™ 'h"«

^^ tion of remand 133 ^^ "^ ^""^' "P •^^^^"^^I bofcro oxnira

Q.Asm.o^S,n„mary convictions 30 & 3, ^ " '

of bes.s,ons, conviction 284 " * '' ^'^- ^- ^l) judgment

RECEiPT^^Ind.vtablc offences) to ho •

or the County in Zui tho ^ff'" ^'^ '""■^^''^'^''- ^>v Jn^ice

127; not^..:^;:r^:!':!;:.^'«^--) ^^---te or^.. evidence

127 ; notil-e to 1.,. J ve U of^ *« Prosecute orgive evident

137. See Notice. ^"^^ ' ^^ ''^^^ to appear for trial

(Summary conviction .0 . .. ... ^' '^^

418

INDEX TO FORMS.

Summons — Indictable ofFonces) to a person charged with an indict-
able offence 110 ; to a witness 120.

(Summary convictions 32 & 33 Vic. c. 31) to the defendant
upon an information or complaint 249 ; to a witness 254.

Wakbant — (Indictable offences) of apprehension — to apprehend
a person charged with anollence 109 ; when the summons
is disobeyed 111; to apprehend a person charged with an
indictable offence committed on the high seas or abroad
112; search, 114; to apprehend a person indicted 115;
when a witness has not obeyed the summons 120; for a
witness in the first instance 121 ; to convey the accused
before a Justice in the County in which the offence was
committed 135 ; to apprehend a person charged by his
bail 141.

(Of commitment) of a person indicted 116; to detain a
person indicted who is already in custody for another
offence 118 ; of a witness for refusing to be sworn or to
give evidence 122 ; ot witness in like case wlio attends
without a summons 123; of witness for refusing to enter
into recognizance 130; of commitment 139; of person
charged on surrender of his bail after apprehension under
a warrant 142.

(Of deliverance) on bail tor a person already committed 138.
(Of remand) remanding a prisoner 132.
(Summary convictions 32 & 33 Vic. c. 33) of apprehension
when the summons disobeyed 250 ; in the first instance
251 ; where a witness has not obeyed the summons 255 ;
for witness in the first instance 256.

(Of commitment) of a witness refusing to be sworn or give
evidence 257 ; for want of distress 276 ; upon a conviction
for a penalty in the first instance 277 ; of defendant for
consecutive period where convicted the same day of two
or more offences, adapted to where a penalty or imprison-
ment adjudged, and whether defendant is in prison or pre-
sent at the time of conviction 278 ; on an order in the first
instance 279; for want of distress for costs upon an order
of dismissal 282 ; for want of distress for costs of appeal
against a conviction or order 286 ; in default of sureties to
keep the peace 292.

INDEX TO FORMS.

419

Wabbant of Distress — Upon a conviction for a penalty 272 ;
upon an order for payment of money 274 ; for costs tipon
an order for dismissal of information or complaint 280 ;
for costs of an appeal agaii '<t a conviction or order 285.

Warrant — (Of remand) to remand a defendant during an adjourn-
ment 251 ; to remand a defendant when apprehended 258.

Warrant — (Speedy trial 32 & 33 Vic. c. 35) to apprehend witness
not attending to give evidence after being subpoenaed or
bound by recognizance 345.

138.

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