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THE MAGISTRATE'S MANUAL.

ustify laying hands on a party to arrest him; but only the necessary force can be justified. Any unnecessary violence may be considered an assault.

II. AGGRAVATED ASSAULTS.-1. Assaults with intent to commit felony. 2. An assault on a peace officer, or other crown officer, in the discharge of his duties.* 3. Assaults committed in pursuance of a conspiracy to raise the rate of wages, as in a laborers' strike. Of this last kind are the disturbances which took place during the late carters' strike at Montreal, in which the truckmen of the Grand Trunk Railway Company were assaulted by the carters.

Summary proceedings in cases of Assault.-" If any person unlawfully assaults or beats any other person, any Justice of the Peace, upon complaint of the party aggrieved praying him to proceed summarily under this Act, may hear and determine such offence."+ (Con. Stat. C. c. 91, s. 37.)

"The offender, upon conviction before such justice, shall forfeit and pay such fine as may to him appear meet, not

"In case of the conviction of any person for assaulting a sheriff or other peace officer in the execution of his duty, the person convicted of any such offence may be sentenced to be imprisoned only, or imprisoned and kept to hard labour, or in solitary confinement, in the common gaol or house of correction, for any period less than two years, or may be imprisoned at hard labour in the Penitentiary for any term not less than two and not exceeding seven years." (Con. Stat. U. C. c. 115, s. 1.)

It has been decided in several cases in sessions, that it must appear upon the face of the conviction that the aggrieved party prayed the justice to proceed summarily; for without the prayer, the justice has no jurisdiction to try the case, and must investigate and send it for trial at the next court of competent The prayer should be in the complaint; and jurisdiction, or dismiss the case. if not there, the justice should not summarily try the case, as it is very doubtful as to whether or not, in the event of an action being brought against him by the defendant, he could show that he had authority.

No other person than the party aggrieved can pray to have the case disposed of summarily; and therefore, in a case where an assault is made upon a child unable to make the complaint, the justice cannot legally summarily proceed.

In a late case of The Queen v. Willoughby, in which application was made to the Queen's Bench to quash the conviction of the justices, upon the grounds that Mr. Campion, the party aggrieved, did not pray to have the case summarily disposed of, it appeared that the defendant had admitted the assault, and asked to have the case disposed of, and that the justices did so, and fined him; that Mr. Campion, the party aggrieved, made a complaint to the government, and that instructions were given to apply to the court to quash the conviction. The conviction was quashed; and at the fall assizes for York and Peel, for 1861, Willoughby was tried and found guilty of an aggravated assault.

exceeding (together with costs, if ordered,) the sum of twenty dollars." (Ib. s. 38.)

"Such fine shall be paid to the treasurer of the municipality in which the offence was committed, and shall make part of the funds thereof; or, if the conviction be had in a place not within any municipality, the fine shall be paid over to such officer, and be applicable to such purposes as other fines and penalties not specially appropriated."* (Ib. s. 39.)

"The evidence of any inhabitant of the municipality or place interested as aforesaid, shall be admitted in proof of the offence." (Ib. s. 40.)

"If the fine awarded by the said justice, together with the costs (if ordered) be not paid, either immediately after the conviction, or within such period as the said justice at the time of the conviction appoints, he may commit the offender to the common gaol or house of correction, there to be imprisoned for any term not exceeding two months, unless such fine and costs be sooner paid." (Ib. s. 41.)

"If the justice, upon the hearing of any such case, deems the offence not proved, or finds the assault or battery justified, or so trifling as not to merit any punishment, he shall dismiss the complaint with or without costs, in his discretion, and shall forthwith make out a certificate under his hand, stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint has been preferred.” (Ib. s.42.)

"If costs be ordered upon such dismissal, and such costs be not paid immediately or within such period as such justice at the time of the dismissal appoints, he shall issue his warrant to levy the amount thereof within a certain time to be in the said warrant expressed, and in case no distress sufficient to satisfy the amount of such warrant can be found, he shall commit the party ordered to pay the costs to the common gaol of the district, county or division, where the offence was alleged to have been committed, there to be imprisoned for any term not exceeding ten days, unless such costs be sooner paid." (Ib. s. 43.)

*The "treasurer" mentioned in this section, is the same treasurer mentioned in Con. Stat. C. c. 102, sec. 51 (see page 45) and is the treasurer of the county.

"If the person against whom such a complaint has been preferred for a common assault or battery, obtains such certificate as aforesaid, or having been convicted, pays the whole amount adjudged to be paid under such conviction, or suffers the imprisonment awarded for non-payment thereof, he shal! be released from all further or other proceedings, civil or criminal, for the same cause." (Ib. s. 44.)

"In case the Justice finds the assault or battery complained of to have been accompanied by any attempt to commit felony or is of opinion that the same is, from any other circumstance, a fit subject for a prosecution by indictment, he shall abstain from any adjudication thereupon, and shall deal with the case in all respects in the same manner as he would have done had no such summary jurisdiction been conferred upon him." (Ib. s. 45.)

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Nothing in the last section contained shall authorize any justice of the peace to hear and determine any case of assault or battery in which any question arises as to the title to any lands, tenements or hereditaments, or any interest therein, or accruing therefrom, or as to any bankruptcy or insolvency, or as to any execution under the process of any court of justice." (Ib. s. 46.)

Assaults on Persons apprehending Offenders by night.— "If any person found committing an indictable offence in the night and apprehended thereon, assaults or offers any violence to any person by law authorized to apprehend or detain him, or to any person acting in the aid or assistance of the person so authorized, such offender shall be guilty of a misdemeanor, and shall be imprisoned with or without hard labour for any term not exceeding two years.” (Ib. s. 36.)

Assaulting Seamen, and Persons dealing in Grain.— "Any person who unlawfully and with force-1. Hinders

*When the justice finds that the blow was struck upon the head or some other vital part, or with some deadly weapon; or that the assault was made by an able-bodied person upon a person who, from age or other cause, was not his equal, the case should not summarily be disposed of, but the prisoner should be sent to prison, or required to give sufficient sureties for his appearance to take his trial at the next sessions.

any seaman from working at or exercising his lawful trade, business or occupation, or beats, wounds, or uses any other violence to him with intent to deter or hinder him from working at or exercising the same; 2. Beats, wounds, or uses any other violence to any person, with intent to deter or hinder him from selling or buying any wheat or other grain, flour, meal or malt, in any market or other place; 3. Beats, wounds, or uses any other violence to any person having the care or charge of any wheat or other grain, flour, meal, or malt, whilst on its way to or from any city, market-town, or other place, with intent to stop the conveyance of the same: may be convicted thereof before two justices of the peace, and imprisoned and kept to hard labor in the common gaol or house of correction for any term not exceeding three months." (Ib. s. 33.)

"No person having been punished for any such offence by virtue of the foregoing provision, shall be punished for the same offence by virtue of any other law whatsoever." (Пb. s. 34.)

"Any person who upon any

Assaulting a Clergyman. civil process arrests any clergyman or minister of the gospel while he is performing divine service, or who so arrests him while he is going to perform the same, or while he is returning from the performance thereof, knowing that he is so going or returning, shall be guilty of a misdemeanour, and shall suffer such punishment by fine or imprisonment, or by both, as the court shall award." (Ib. s. 35.)

Impeding Shipwrecked Persons, &c.--" Any person who by force prevents or impedes any person endeavouring to save his life from any ship or vessel in distress, or wrecked, stranded, or cast on shore (whether he be on board of or has quitted the same), shall be guilty of felony, and shall be imprisoned in the Penitentiary for the term of his natural life, or for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." (Ib. s. 31.)

"Any person who assaults and strikes or wounds any magistrate, officer, or other person lawfully authorized, on account of the exercise of his duty in or concerning the preserva

tion of any vessel in distress, or of any vessel, goods, or effects wrecked, stranded, or cast on shore, or lying under water, shall be guilty of felony, and be imprisoned in the Penitentiary for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." (Ib. s. 32.)

Assault with intent to commit Rape, &c.-"Any person who commits an assault with intent to commit rape, or an assault with intent to commit the abominable crime of buggery either with mankind or with any animal, shall be imprisoned in the Penitentiary for any term not exceeding three nor less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." (Ib. s. 23.)

Assault with intent to Rob.-"Any person who assaults any other person with intent to rob, shall be guilty of felony, and (except in cases where a greater punishment is provided by this act) shall be imprisoned in the Penitentiary for any term. not exceeding three years nor less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." (Ib. c. 92, s. 3.)

"Any person who with menaces or by force, demands any chattel, money, or valuable security, of any other person, with intent to steal the same, shall be guilty of felony, and shall be imprisoned in the Penitentiary for any term not exceeding three years, or in any other prison or place of confinement for any term less than two years." (Ib. s. 4.)

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'Any person who being armed with any offensive weapon or instrument, robs, or assaults with intent to rob any person, or together with one or more person or persons robs, or assaults with intent to rob any person, or robs any person, and at the time of or immediately before or immediately after such robbery, beats, strikes or uses any other personal violence to any person, shall be guilty of felony, and shall be imprisoned in the Penitentiary for the term of his natural life, or for any term not less than two years, or be imprisoned in any other

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