the proper warrant for the execution of the same, as if no appeal had been brought (k). If the court of appeal has varied the original order, the warrant is to be forthwith issued for the execution of the order made by the court of quarter sessions (?). But if the warrant has been issued before, and suspended by the appeal, it is better, after the decision of the appeal, to apply to the magistrate in order that a legal warrant may be issued, in conformity with the amended order made upon appeal. Levying costs.] As before mentioned (m), in every case where magistrates award any penal or other sum to be paid, they may order the goods of the person to be distrained for such sum, and also for the costs of the distress (n). If no costs are adjudged by the conviction, the issuing a warrant to distrain for costs would be such an excess of jurisdiction as would render the magistrate liable to an action for exceeding his jurisdiction (o). Magistrates may enforce payment of costs awarded upon appeal, in like manner as any costs awarded by the original order (p). A demand not necessary.] From the wording of the statute referred to, it will be seen that no demand is necessary before the issuing of the warrant to distrain (q); but it will often occur that where a fine is imposed, which in default of payment is to be levied by distress, and the defendant is a respectable person, its immediate payment (particularly if large) is not forthwith required. In such a case, if it be not paid within the time fixed, the fairer course is to apply to the justice for a summons, calling upon the defendant to shew cause why a distress warrant should not issue to enforce payment of the amount ordered, which should be done before the next court day after the time fixed for the payment (r). Form of warrant.] The form of the warrant to distrain is (k) See Wootton v. Harvey, 6 East, 75; Kendall v. Wilkinson, 4 El. & Bl. 680. (1) 14 & 15 Vic. c. 93, s. 24, cl. 7. (m) Ante, p. 163. (n) 14 & 15 Vic. c. 93, s. 22, cl. 2. (0) Leary v. Patrick, 15 Q. B. 266, where the justice detained the defendant until the warrant of distress was executed, it was held that he was liable to an action for false imprisonment. (p) 14 & 15 Vic. c. 93, s. 24. (9) See also Barnes v. White, 1 C. B. 192, 205, 210; Arnold v. Dimsdale, 2 El. & Bl. 580; Ely v. Moule, 5 Exch. 918. (r) 14 & 15 Vic. c. 93, s. 23. 1851 (s), and should This warrant recites given in the Petty Sessions (Ireland) Act, be followed in all cases within the act (t). the complaint, the order of the justice, the non-payment of the penalty and costs, as the case may be, and commands the officer to whom it is directed to levy the amount directed. A warrant of distress, founded upon and reciting a defective order or conviction, is bad (u). It should be warranted by the conviction (v), and all those facts must appear upon the face of it which are necessary to give jurisdiction to the justices over the subject matter (w). It was held to be no objection to a warrant of distress, that, after setting out the conviction, it ordered the money levied to be paid to the justices, in order that they might dispose of the same as directed by the conviction (x). By whom issued.] This warrant may be issued by the justice or justices who made the conviction, or by any justice of the same county or place (y), and it must be signed by the justice issuing it (z). To whom directed.] All warrants of distress in proceedings punishable upon summary conviction which shall be issued in any petty sessions district, shall be addressed to the sub-inspector or head-constable of constabulary who shall act for the place where the petty sessions for such district shall be held; and all warrants of distress in other cases shall be addressed either to the sub-inspector or head-constable of constabulary in manner aforesaid, or to such other person or persons (not being the complainant or a party interested), as the justices issuing the same shall see fit (a). See schedule, form E. (t) See re Geswood, 2 El. & Bl. 952; re Bailey, 3 id. 607; re Hyde, 2 El. & Bl. 952; re Allison, 10 Ex. 561. (u) Day v. King, A. & E. 359. (v) R. v. Wyatt, 2 Lord Raym. 1189; Rogers v. Jones, 3 B. & C. 409; Daniel v. Philips, 5 Tyr. 293. (w) Paley Conv. 257; Day v. King, 5 A. & E. 359; Johnson v. Reid, 6 M. & W. 124; re Peerless, 1 Q. B. 143; see Harris v. Stuart, 7 C. & P. 779. By whom executed.] If the person against whom the warrant has been issued has goods in any place for which the sub-inspector or constable shall act, and to whom the warrant is addressed, it shall be lawful for such constable to execute the same (b). If the warrant has been directed to more than one person, in several, or disjunctive terms, it may be executed by any one; but if to two or more jointly, it seems that they must all execute it (c). When the party named in the warrant employs others to assist him, he should be so near as to be acting in the execution of the warrant at the time of its execution (d). It is provided by the Fines and Penalties Act (e), that no warrant or process shall be issued to any sheriff to levy the amount of any forfeited recognizance, or of any other fine or penalty whatsoever, but only to the constabulary or Dublin metropolitan police, as the case may be. How executed.] It is laid down by Mr. Serjeant Hawkins (ƒ) that, upon the warrant of a justice for the levying of a forfeiture, where the whole or any part belongs to the Queen, the officer is justified in breaking open outer doors for the execution of the warrant; but there seems to be no such power by law in other cases where no part of the penalty is vested in the crown (g). If the offender be a feme covert, and the act of parliament authorize the recovery of the penalty by distress and sale of the offender's goods, the goods of the husband are not liable to be an order made for poor-rate on the complaint of the collector, ought to be given for execution to the collector. The same may be predicated of grand jury cess, as it would appear. The Fines and Penalties' Act, 14 & 15 Vic. c. 90, s. 4, directs that all warrants issued from any court in Ireland, not being the superior courts, and not being within the police district of Dublin metropolis, shall be addressed to the sub-inspector of constabulary, who shall act for the place in which such court shall be situate. (b) 14 & 15 Vic. c. 93, s. 26, cl. 1. For certifying or backing this war rant for execution to some other district or county, see id. ss. 27, 28. (c) White's case, Palm. 52; 1 East, P. C. 320, Yel. 25; Boyd v. Durand, 2 Taunt. 161. (d) Paley Conv. 259. (e) 14 & 15 Vic. c. 90, s. 3. (ƒ) B. 2, c. 14, s. 5; cites 2 Jones, 233, 234; Ryan v. Shilcock, 7 Ex. 72. (g) See Paley Conv. 260; 1 Smith, L. C. notes to Semayne's case; Foss v. Racine, 4 M. & W. 419; Lacenock v. Brown, 2 B. & Ald. 592; Theobald v. Crichimore, 1 B. & A. 227; Parton v. Williams, 2 id. 330. distrained for the penalty (h). The constable distraining has no right to impound the goods on the premises, and ought not to remain longer than a reasonable period for the purpose of removing them (i); and he should not distrain more goods than are sufficient to satisfy the requisites of the warrant. If a distress has been made of the offender's goods, and the amount realized upon sale is not sufficient to satisfy the penalty, it would seem that no second distress should be made (j). Payment, &c. of penalty.] If the party against whom a warrant of distress issues, pay or tender to the constable or person having the execution of it, the sum mentioned in the warrant, together with the expenses of the distress up to the time of such payment or tender, or shall produce the receipt of the officer of the court for the same, the constable or other person should cease to execute the warrant (k). If the party be imprisoned, he may pay to the keeper of the prison the amount of the penalty and costs, and he is then forthwith to be discharged, if he be in custody for no other matter (1). Distress to be sold, &c.] In every case where a distress shall be made, the person charged with the execution of the warrant shall sell the distress within the period specially fixed by the warrant; or if no period shall be fixed, then within three days from the making of the distress, unless the sum for which the warrant was issued and also the reasonable charges of taking and keeping the distress shall be sooner paid; and in every case the person selling the distress shall render to the owner the surplus, if any (m). The officer who sells ought to sell for ready money, for if he sells upon credit he is immediately responsible for the same (n). (h) 11 Co. 61 b.; see also R. v. Johnson, 5 Q. B. 335; Paley Conv. 260; see ante, p. 123, in case of an infant. (i) Peppercorn v. Hofman, 9 M. & W. 618. (5) The same may be suggested of a search warrant; if the warrant has been executed and no goods found, a second search should not be made under the old warrant, but a new one should be obtained on fresh infor mation laid, to give the J. P. jurisdiction to issue it. (k) 14 & 15 Vic. c. 93, s. 32, cl. 3. (2) 14 & 15 Vic. c. 93, ss. 22 & 32. If there is no distress, or it be impossible to execute a distress warrant, the J. P. at petty sessions may order a warrant of committal to issue; see id. s. 22, cl. 4. (m) Id. s. 32, cl. 2. (n) Morley v. Stacker, 6 Mod. 83. "To be levied by distress," means Impounding distresses.] The decision and regulation of certain matters relating to the impounding of animals distrained are subject to the provisions of 14 & 15 Vic. c. 92, s. 19. The magistrates of each petty sessions district are empowered by that act to establish pounds in their district, and to appoint poundkeepers, who are to receive from the person by whom the animal is impounded the fees fixed by the act. The rate of sustenance the pound-keeper is to receive from the person impounding is also to be fixed by the justices at petty sessions. By the 12 & 13 Vic. c. 92, s. 5, persons impounding animals are obliged to provide them with a sufficient quantity of wholesome food and water, under a penalty of twenty shillings; and by section 6, any other person may, when the animal shall have been twelve hours without food, enter the pound and supply it, without being liable to an action for so doing, and shall be entitled to recover from the owner the reasonable price of such food, before removal of the cattle from the pound. But the statute 14 & 15 Vic. c. 92, imposes it as a duty upon the pound-keeper also to supply the animals with necessary food and water. And now, any person who has impounded or confined any animal, and provided food and water, as in 12 & 13 Vic. c. 92, enacted, may recover from the owner of the animal a sum not exceeding double the value of the food and water; or, instead of proceeding for the recovery of the value of the food, after seven clear days from the time of impounding, he may sell the animal openly at any public market, after giving three days public notice thereof, for the most money he can get, and apply the produce in discharge of the value of the food and water so supplied, and the expenses of the sale, and render the surplus, if any, to the owner of the animal (0). Where animals to be impounded.] Where animals have been taken under a distress warrant, or otherwise (except in cases of distress for rent), they are not to be impounded in any other place than in the nearest licensed pound of the county (p), distress and sale, id.; Paley Conv. (0) 17 & 18 Vic. c. 60, s. 1. Irish, which enacts that where cattle have been taken as a distress, they should be impounded in the pound next and nearest to the land. |