Issue and proof of service of judg ment summons. Time of ser vice. Adjournment of hearing of judgment summons. Witnesses on judgment summons. 11 & 12 Vict. c. 43. Where impri sonment only is 21. "A judgment summons may issue although no distress warrant has been applied for, and its service, where made out of the jurisdiction of the court, may be proved by affidavit or solemn declaration. 22. "A judgment summons shall be served not less than two clear days before the day on which the judgment debtor is required to appear. 23. "The hearing of a judgment summons may be adjourned from time to time. 24. "Any witness may be summoned to prove the means of the judgment debtor, in the same manner as witnesses are summoned to give evidence on the hearing of a complaint." 11 & 12 Vict. c. 43, s. 24, as will be seen ante, p. 222, equally applies to "where an order is not for the payment of money, but for the doing of some other act, and directs that in case "of the defendant's neglect or refusal to do such act, he shall "be imprisoned, or imprisoned and kept to hard labour, and "the defendant neglects or refuses to do such act;" a commitment issues, and also a distress warrant for the costs, as under a conviction. 42 & 43 Vict. c. 49. Sect. 34. Summary orders. FORMS. [P 2, 4, 5, Oke's Formulist, 6th ed. pp. 56, 58.] Enforcing Summary Orders. The Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), s. 34, contains some additional provisions relative to enforcing summary orders, thus 34. (1.) "Where a power is given by any future act to a court of summary jurisdiction of requiring any person to do or abstain from doing any act or thing other than the payment of money, or of requiring any act or thing to be done or left undone other than the payment of money, and no mode is prescribed of enforcing such requisition, the court may exercise such power by an order or orders, and may annex to any such order any conditions as to time or mode of action which the court may think just, and may suspend or rescind any such order on such undertaking being given or condition being performed as the court may think just, and generally may make such arrangement for carrying into effect such power as to the court seems meet. (2.) "A person making default in complying with an order of a court of summary jurisdiction in relation to any matter arising under any future act other than the payment of money shall be punished in the prescribed manner, or if no punishment is prescribed, may in the discretion of the court be ordered to pay a sum (to be enforced as a civil debt recoverable summarily under this act) not exceeding one pound for every day during which he is in default, or to be imprisoned until he has remedied his default: "Provided that a person shall not, for non-compliance with the requisition of a court of summary jurisdiction, whether made by one or more orders, to do or abstain from doing any act or thing, be liable under this section to imprisonment for a period or periods amounting in the aggregate to more than two months, or to the payment of any sums exceeding in the aggregate twenty pounds. 11 & 12 Vict. c. 43, s. 23. Where impri 11 & 12 Vict. c. 43, s. 23, as will be seen ante, p. 224, applies also to " an order for the payment of money," where the statute under which it is made makes no provision for such sum being sonment in levied by distress; a commitment issues, which includes the default of costs, as upon a conviction. payment of a sum. Sect. 23. FORM. [O 2, Oke's "Formulist," 6th ed. p. 58.] 11 & 12 Vict. c. 43. Where the sum is to be levied by distress. 11 & 12 Vict. c. 43, s. 19, as will be seen ante, pp. 225, 226, applies equally to cases "where an order requires the payment "of a sum of money; " and by the statute authorizing such order such sum is to be levied by distress ;-a warrant of distress (N 2) should issue in the usual manner, and the pro- Sect. 19. ceedings throughout would be the same as on a conviction, and the observations thereon, ante, pp. 228, 229, as to the manner of levying the distress, &c. would be applicable here. FORM. [N 2, and Commitment, &c., Oke's "Formulist," 6th ed. pp. 58, 59.] Where no remedy given in default of distress, or where there is no remedy for enforcing payment. 42 & 43 Vict. c. 49. Sect. 43. As to cases where there is no remedy given in default of distress upon an order for payment "of a sum of money," sect. 22, and 21 & 22 Vict. c. 73, s. 5, ante, pp. 228, 229, on convictions, will also apply to such orders. The Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), by sect. 43 establishes a code of rules and procedure relative to the execution of warrants of distress. Thus : 43. "The following regulations shall be enacted with respect to Procedure on warrants of distress issued by a court of summary jurisdiction: the execution of distress warrants. (1.) "A warrant of distress shall be executed by or under the direction of a constable; and (2.) "Save so far as the person against whom the distress is levied otherwise consents in writing, the distress shall be sold by public auction, and five clear days at the least shall intervene between the making of the distress and the sale, and where written consent is so given as aforesaid the sale may be made in accordance with such consent; and (3.) "Subject as aforesaid, the distress shall be sold within the period fixed by the warrant, and if no period is so fixed then within the period of fourteen days from the date of the making of the distress, unless the sum for which the warrant was issued, and also the charges of taking and keeping the said distress, are sooner paid; and (4.) "Subject to any directions to the contrary given by the warrant of distress, where the distress is levied on household goods the goods shall not, except with the consent in writing of the person against whom the distress is levied, be removed from the house until the day of sale, but so much of the goods shall be impounded as are in the opinion of the person executing the warrant sufficient to satisfy the distress, by affixing to the articles impounded a conspicuous mark; and any person removing any goods so marked, or defacing or removing the said mark, shall on summary conviction be liable to a fine not exceeding five pounds; and (5.) "Where a person charged with the execution of a warrant of distress wilfully retains from the produce of any goods sold to satisfy the distress, or otherwise exacts, any greater costs and charges than those to which he is for the time being entitled by law, or makes any improper charge, he shall be liable on summary conviction to a fine not exceeding five pounds; and (6.) A "written account of the costs and charges incurred in respect of the execution of any warrant of distress shall be sent by the constable charged with the execution of (7.) "A constable charged with the execution of a warrant of (8.) "Where a person pays or tenders to the constable charged with the execution of a warrant of distress the sum mentioned in such warrant, or produces the receipt for the same of the clerk of the court of summary jurisdiction issuing the warrant, and also pays the amount of the costs and charges of such distress up to the time of such payment or tender, the constable shall not execute the warrant." 4. Enforcing Costs on Dismissal of Information or Complaint. missal. It will be seen, ante, pp. 195, 196, that the costs on the dis- Costs on dismissal of an information or complaint are recovered by distress, and, in default thereof, the complainant may be imprisoned for not exceeding one calendar month, with or without hard labour (11 & 12 Vict. c. 43, ss. 18, 26). 5. Enforcing Costs of Conveyance to Gaol. In the 11 & 12 Vict. c. 43, there are contained, in reference Expenses of to every kind of determination of justices, a provision autho- conveying to gaol. rizing the costs of conveying the defendant to prison, to be adjudged payable by him (see ss. 21, 22, 23, 24 and 26), and these provisions are usually acted upon. However, by the 3 Jac. 1, c. 10, s. 1, which with the 27 Geo. 2, c. 3, remains By distress on offender's goods. If no goods, order on county trea surer. Defendant suffering im prisonment in cases where costs ordered by the commitment. unrepealed 32 (but is not usually put in operation since the establishment of a county constabulary force), it is provided, that if the party committed be of sufficient ability to pay the expenses of his being conveyed to prison and the charges of such as may be appointed to guard him thither, he shall do so; or, if he refuse, the justice committing him may, by his warrant, command the constable where the offender dwells, or from whence he shall be committed, or where he shall have goods within the county or liberty, to sell so much of the same as in the discretion of the said justice shall be sufficient to pay such charges and expenses, the goods to be appraised by four honest inhabitants of the parish where such goods shall be, and the overplus (if any) delivered to the party. 33 The 27 Geo. 2, c. 3, s. 1, provides that where the party has no sufficient goods or money for such purpose (i. e. to repay the charges and expenses of conveying him to prison, then, upon application of the constable who conveyed him, the justice after examining and ascertaining the reasonable expense, shall, by warrant under his hand and seal, order the treasurer of the county or place (or, in Middlesex, the overseers of the parish where the offender was apprehended) to pay the same. 34 If the defendant suffers the imprisonment in those cases in which he has been adjudged by the commitment under the 11 & 12 Vict. c. 43, to pay the costs of his conveyance to prison, the 3 Jac. 1, c. 10, supra, could not be resorted to in order to levy a distress on the defendant's goods for those expenses, as the justice will have exercised the whole of his functions over him, and it is questionable whether an order could then be made under 27 Geo. 2, c. 3, on the county treasurer for the amount; for the latter statute applies only to cases where the party has no goods, and which the justices 32 See Loverick v. Mercer, 22 L. J. (N. S.) M. C. 81. 33 Vide Form of Distress Warrant, Oke's “ Formulist," 6th ed. No. 114, p. 60. 34 Vide Form of Order, Oke's "Formulist," 6th ed. No. 119, p. 62. In some districts the keeper of the gaol gives the constable, on receiving a prisoner, a similar receipt to that used in indictable offences, who hands it to the clerk to the justices, and if the constable is other than a county police constable, the clerk prepares this order (if the defendant has no goods) for the committing magistrate's signature, either immediately or at the expiration of the defendant's imprisonment, at the latter period when the costs of conveyance to prison are included in the commitment. |