C. 43.

but if he fail to re-appear, the justice may

transmit the re

clerk of the

peace.

11 & 12 VICT. shall think fit, or may discharge him upon his entering into a recognizance (E.), with or without surety or sureties, at the discretion of such justice or justices conditioned for his appearance at the time and place to which such hearing shall be so adjourned; and if such defendant shall not afterwards appear at the time and place mentioned in such recognizance, then the said justice who shall have taken the said recognizance, or any cognizance to the justice or justices who may then be there present, upon certifying (F.) on the back of the recognizance the nonappearance of the defendant, may transmit such recognizance to the clerk of the peace of the county, riding, division, liberty, city, borough, or place within which the offence shall be laid to have been committed, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient prima facie evidence of such nonappearance of the said defendant; but if both parties appear, either personally or by their respective counsel or attorneys, before the justice or justices who are to hear and determine such complaint or information, then the said justice or justices shall proceed to hear and determine the same."

If both parties appear, Justice

hear and determine the case.

Proceedings on the hearing of complaints and informations.

Proviso.

to

Sect. 14. "And be it enacted, that where such defendant shall be present at such hearing the substance of the information or complaint shall be stated to him, and he shall be asked if he have any cause to show why he should not be convicted, or why an order should not be made against him, as the case may be, and if he thereupon admit the truth of such information or complaint, and show no cause or no sufficient cause why he should not be convicted, or why an order should not be made against him as the case may be, then the justice or justices present at the said hearing shall convict him or make an order against him accordingly; but if he do not admit the truth of such information or complaint as aforesaid, then the said justice or justices shall proceed to hear the prosecutor or complainant, and such witnesses as he may examine and such other evidence as he may adduce, in support of his information or complaint respectively, and also to hear the defendant and such witnesses as he may examine and such other evidence as he may adduce in his defence, and also to hear such witnesses as the prosecutor or complainant may examine in reply, if such defendant shall have examined any witnesses or given any evidence other than as to his the defendant's general character; but 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 observations in reply upon the evidence given by the prosecutor or complainant in reply as aforesaid; and the said justice or justices, having heard what each party shall have to say as aforesaid, and the witnesses and evidence so adduced, shall consider the whole matter, and determine the same, and shall convict or make an order upon the defendant, or dismiss the information or complaint, as the case may be; and if he or they convict or make an order against the defendant, a minute or memorandum thereof shall then be made, for which no fee shall be paid, and the conviction (I. 1—3.) or order (K. 1—3.) shall afterwards be drawn up by the said justice or justices in proper form, under his or their hand and seal or hands and seals, and he or they shall cause the same to be lodged with the clerk of the peace, to be by him filed among the records of the general quarter sessions of the peace; or if the said justice or justices shall dismiss such information or complaint, it shall be lawful for such justice or justices, if he or they shall think fit, being required so to do, to make an order of dismissal of the same (L.) and shall give the defendant in that behalf a certificate thereof (M.) which said certificate afterwards, upon being produced, without further proof, shall be a bar to any subsequent information or complaint for the same matters respectively against the same party: provided always, that if the information or complaint in any such case shall negative any exemption, exception, proviso, or condition in the statute on which the same shall be framed, it shall not be necessary for the prosecutor or complainant in that behalf to prove such negative, but the defendant may prove the affirmative thereof in his defence, if he would have advantage of the same."

C. 43. Prosecutors and

Sect. 15. "And be it enacted, that every prosecutor of any such in- 11 & 12 Vict. formation, not having any pecuniary interest in the result of the same, and every complainant in any such complaint as aforesaid, whatever his interest may be in the result of the same, shall be a competent witness to complainants in support such information or complaint respectively; and every witness at certain cases to any such hearing as aforesaid shall be examined upon oath or affirmation, be deemed comand the justice or justices before whom any such witness shall appear for and examined the purpose of being so examined shall have full power and authority to upon oath, &c. administer to every such witness the usual oath or affirmation."

petent witnesses,

to adjourn the

his own recog

Sect. 16. "And be it enacted, that before or during such hearing of Power to justices any such information or complaint it shall be lawful for any one justice, hearing of cases, or for the justices present, in their discretion, to adjourn the hearing of and commit dethe same to a certain time and place to be then appointed and stated in fendant, or suffer him to go at the presence and hearing of the party or parties, or their respective at- large, or distorneys or agents then present, and in the meantime the said justice or charge him upon justices may suffer the defendant to go at large, or may commit (D.) him nizance; to the common gaol or house of correction or other prison, lock-up house, or place of security in the county, riding, division, liberty, city, borough, or place for which such justice or justices shall be then acting, or to such other safe custody as the said justice or justices shall think fit, or may discharge such defendant upon his entering into a recognizance (E.), with or without surety or sureties, at the discretion of such justice or justices, conditioned for his appearance at the time and place to which such hearing or further hearing shall be adjourned; and if at the time or place to which such hearing or further hearing shall be so adjourned either or both of the parties shall not appear personally, or by his or their counsel or attorneys respectively, before the said justice or justices, or such other justice or justices as shall then be there, it shall be lawful for the justice or justices then there present to proceed to such hearing or further hearing as if such party or parties were present; or if the prosecutor or complainant shall not appear, the said justice or justices may dismiss such information or complaint, with or without costs, as to such justices shall seem fit: provided always, that in all cases where a defendant shall be discharged on recognizance as aforesaid, and shall not afterwards appear re-appear, the justice may the time and place mentioned in such recognizance, then the said justice transmit the reor justices who shall have taken the said recognizance, or any other jus- the clerk of the cognizance to tice or justices who may then be there present, upon certifying (F.) on peace. the back of the recognizance the nonappearance of such accused party, may transmit such recognizance to the clerk of the peace of the county, riding, division, liberty, city, borough, or place within which such recognizance shall have been taken, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient primâ facie evidence of such nonappearance of the said defendant."

at

but if he fail to

tions and orders.

Sect. 17. "And be it enacted, that in all cases of conviction where no Form of convicparticular form of such conviction is or shall be given by the statute creating the offence or regulating the prosecution for the same, and in all cases of conviction upon statutes hitherto passed, whether any particular form of conviction have been therein given or not, it shall be lawful for the justice or justices who shall so convict to draw up his or their conviction on parchment or on paper in such one of the forms of conviction (I. 1-3.) in the schedule to this act contained as shall be applicable to such case, or to the like effect; and where an order shall be made, and no particular form of order is or shall be given by the statute giving authority to make such order, and in all cases of orders to be made under the authority of any statutes hitherto passed, whether any particular form of order shall therein be given or not, it shall be lawful for the justice or justices by whom such order is to be made to draw up the same in such one of the forms of orders (K. 1-3.) in the schedule to this act contained as may be applicable to such case, or to the like effect; and in all cases where by any act of Parliament authority is given to commit a person to prison, or to levy any sum upon his goods or chattels by distress, for

11 & 12 VICT. not obeying any order of a justice or justices, the defendant shall be

c. 43.

Power to justice to award costs, which shall be

specified in conviction or order may be recovered

of dismissal, and

by distress.

Power to Justice to issue warrant of distress.

be backed.

served with a copy of the minute of such order before any warrant of commitment or of distress shall issue in that behalf, and such order or minute shall not form any part of such warrant of commitment or of distress."(a)

Sect. 18. "And be it enacted, that in all cases of summary conviction or of orders made by a justice or justices of the peace it shall be lawful for the justice or justices making the same, in his or their discretion, to award and order in and by such conviction or order that the defendant shall pay to the prosecutor or complainant respectively such costs as to such justice or justices shall seem just and reasonable in that behalf; and in cases where such justice or justices, instead of convicting or making an order as aforesaid, shall dismiss the information or complaint, it shall be lawful for him or them, in his or their discretion, in and by his or their order of dismissal to award and order that the prosecutor or complainant respectively shall pay to the defendant such costs as to such justice or justices shall seem just and reasonable, and the sums so allowed for costs shall in all cases be specified in such conviction or order, or order of dismissal aforesaid, and the same shall be recoverable in the same manner and under the same warrants as any penalty or sum of money adjudged to be paid in and by such conviction or order is to be recoverable; and in cases where there is no such penalty or sum to be thereby recovered then such costs shall be recoverable by distress and sale of the goods and chattels of the party, and in default of such distress by imprisonment, with or without hard labour, for any time not exceeding one calendar month, unless such costs shall be sooner paid.”(b)

Sect. 19. "And be it enacted, that 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 statute authorizing such conviction or order such penalty, compensation, or sum of money is to be levied upon the goods and chattels of the defendant by distress and sale thereof, and also in cases where by the statute in that behalf no mode of raising or levying such penalty, compensation, or sum of money, or of enforcing the payment of the same, is stated or provided, it shall be lawful for the justice or justices making such conviction or order, or for any justice of the peace for the same county, riding, division, liberty, city, borough, or place, to issue his or their warrant of distress (N. 1. 2.) for the purpose of levying the same, which said warrant of distress shall be How war ant to in writing under the hand and seal of the justice making the same; and if after delivery of such warrant of distress to the constable or constables to whom the same shall have been directed to be executed sufficient distress shall not be found within the limits of the jurisdiction of the justice granting such warrant, then, upon proof alone being made on oath of the handwriting of the justice granting such warrant before any justice of any other county or place such justice of such other county or place shall thereupon make an indorsement (N. 3.) on such warrant, signed with his hand, authorizing the execution of such warrant within the limits of his jurisdiction, by virtue of which said warrant and indorsement the penalty or sum aforesaid, and costs, or so much thereof as may not have been before levied or paid, shall and may be levied by the person bringing such warrant, or by the person or persons to whom such warrant was originally directed, or by any constable or other peace officer of such last-mentioned county or place, by distress and sale of the goods and

(a) It will of course not escape the attention of justices that this clause will not apply to convictions or orders upon acts subsequently passed, if those acts themselves contain the requisite forms.

It should also be observed that the latter part of this section applies only to orders, and not to convictions.

(b) The mode now of enforcing the payment of costs is the same as that of enforcing the penalty; so that, in cases where the punishment is to be placing in the stocks, the same course will be adopted for recovering the costs.

c. 43.

Where the

where there are

chattels of the defendant in such other county or place: provided always, 11 & 12 VICT. that whenever it shall appear to any justice of the peace to whom application shall be made for any such warrant of distress as aforesaid that the issuing thereof would be ruinous to the defendant and his family, or issuing a warrant wherever it shall appear to such justice, by the confession of the defendant would be ruinous or otherwise, that he hath no goods or chattels whereon to levy such to defendant, or distress, then and in every such case it shall be lawful for such justice, if no goods, justice he shall deem it fit, instead of issuing such warrant of distress, to commit may commit him to prison. such defendant to the house of correction, or if there be no house of correction within his jurisdiction then to the common gaol, there to be imprisoned, with or without hard labour, for such time and in such manner as by law such defendant might be so committed in case such warrant of distress had issued, and no goods or chattels could be found whereon to levy such penalty or sum and costs aforesaid."(a)

66

may suffer defen

recognizance;

Sect. 20. And be it enacted, that in all cases where a justice of the Justice, after peace shall issue any such warrant of distress it shall be lawful for him issuing warrant, to suffer the defendant to go at large, or verbally or by a written warrant dant to go at in that behalf, to order the defendant to be kept and detained in safe large, or order him into custody, custody until return shall be made to such warrant of distress, unless until return be such defendant shall give sufficient security, by recognizance or otherwise, made, unless he to the satisfaction of such justice, for his appearance before him at the gives security by time and place appointed for the return of such warrant of distress, or before such other justice or justices for the same county, riding, division, liberty, city, borough, or place as may then be there: provided always, but if he fail to that in all cases where a defendant shall give security by recognizance as re-appear, the aforesaid, and shall not afterwards appear at the time and place in such transmit the rerecognizance mentioned, then the said justice who shall have taken the cognizance to said recognizance, or any justice or justices who may then be there present, upon certifying (F.) on the back of the recognizance the nonappearance of the defendant, may transmit such recognizance to the clerk of the peace of the county, riding, division, liberty, city, borough, or place within which the offence shall be laid to have been committed, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient prima facie evidence of such nonappearance of the said defendant."(b)

justice may

the clerk of the

peace.

Sect. 21. "And be it enacted, that if at the time and place appointed In default of suffor the return of any such warrant of distress the constable who shall ficiency of distress, justice may have had the execution of the same shall return (N. 4.) that he could find commit defenno goods or chattels or no sufficient goods or chattels whereon he dant to prison. could levy the sum or sums therein mentioned, together with the costs of or occasioned by the levying of the same, it shall be lawful for the justice of the peace before whom the same shall be returned to issue his warrant of commitment (N. 5.) under his hand and seal, directed to the same or any other constable reciting the conviction or order shortly, the issuing of the warrant of distress, and the return thereto, and requiring such constable to convey such defendant to the house of correction, or if there be no house of correction then to the common gaol of the county, riding, division, liberty, city, borough, or place for which such justice shall then be acting, and there to deliver him to the keeper thereof, and requiring such keeper to receive the defendant into such house of correction or gaol, and there to imprison him, or to imprison him and keep him to hard labour, in such manner and for such time as shall have been directed and appointed by the statute on which the conviction or order mentioned in such warrant of distress was founded,

(a) Power is given by this section to justices to issue their warrant of distress, to recover any penalty or compensation in all cases of convictions or orders in which no mode of raising or levying the penalty or sum is provided; and it also consolidates the provisions relative to warrants of distress of the 33 Geo. 3, c. 55, s. 3; 5 Geo. 4, c. 18, ss. 1 and 4, which acts (so far as relates to the subject) are repealed by the 36th

section.

(b) This section further carries out the provisions of the 5 Geo. 4, c. 18, s. 1.

c. 43.

11 & 12 VICT. unless the sum or sums adjudged to be paid, and all costs and charges of the distress, and also the costs and charges of the commitment and conveying of the defendant to prison, if such justice shall think fit so to order, (the amount thereof being ascertained and stated in such commit. ment,) shall be sooner paid.

In all cases of penalties, convic

tions, or orders,

where the statute provides no

remedy in default

of distress, justice may commit

defendant to prison.

Sect. 22. "And whereas by some acts of Parliament justices of the peace are authorized to issue warrants of distress to levy penalties or other sums recovered before them by distress and sale of the offender's goods, but no further remedy is thereby provided in case no sufficient distress be found whereon to levy such penalties; be it therefore enacted, that in all such cases, and in all cases of convictions or orders where the statute on which the same are respectively founded provides no remedy in case it shall be returned to a warrant of distress thereon that no sufficient goods of the party against whom such warrant shall have been issued can be found, it shall nevertheless be lawful for the justice to whom such return is made, or to any other justice of the peace for the same county, riding, division, liberty, city, borough, or place, if he or they shall think fit, by his warrant as aforesaid, to commit the defendant to the house of correction or common gaol as aforesaid for any term not exceeding three calendar months, unless the sum or sums adjudged to be paid, and all costs and charges of the distress, and of the commitment and conveying of the defendant to prison (the amount thereof being ascertained and stated in such commitment,) shall be sooner paid."

Sect. 23. "And be it enacted, that in all cases where the statute by virtue of which a conviction for a penalty or compensation, or an order for the payment of money, is made, makes no provision for such penalty or compensation or sum being levied by distress, but directs that if the same be not paid forthwith, or within a certain time therein mentioned, or to be mentioned in such conviction or order, the defendant shall be imprisoned, or imprisoned and kept to hard labour, for a certain time, unless such penalty, compensation, or sum shall be sooner paid, in every such case such penalty, compensation, or sum shall not be levied by distress, but if the defendant do not pay the same, together with costs, if awarded, forthwith, or at the time specified in such conviction or order for the payment of the same, it shall be lawful for the justice or justices making such conviction or order, or for any other justice of the peace for the same county, riding, division, liberty, city, borough, or place, to issue his or their warrant of commitment (O. 1. 2.) under his or their hand and seal, or hands and seals, requiring the constable or constables to whom the same shall be directed to take and convey such defendant to the house of correction or common gaol for the county, riding, division, liberty, city, borough, or place aforesaid, as the case may be, and there to deliver him to the keeper thereof, and requiring such keeper to receive such defendant into such house of correction or gaol, and there to imprison him, or to imprison him and keep him to hard labour, as the case may be, for such time as the statute on which such conviction or order is founded as aforesaid shall direct, unless the sum or sums adjudged to be paid, and also the costs and charges of taking and conveying the defendant to prison, if such justice or justices shall think fit so to order, shall be sooner paid."

Sect. 24. "And be it enacted, that where a conviction does not order the payment of any penalty, but that the defendant be imprisoned, or imprisoned and kept to hard labour, for his offence, or 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, in every such case it shall be lawful for such justice or justices making such conviction or order, or for some other justice of the peace for the same county, riding, division, liberty, city, borough, or place, to issue his or their warrant of commitment (P. 1. 2.) under his or their hand and seal or hands and seals, and