ABSCONDING DEBTORS.

By the Division Court Act, 13 & 14 V. c. 53, § 54, it is enacted, That if any person or persons in any county of Upper Canada, being indebted in any sum not exceeding twentyfive pounds, nor less than twenty shillings, for any debt or damages arising upon any contract express or implied, or upon any judgment, shall abscond from this Province, leaving personal property liable to seizure under execution for debt in any county in Upper Canada, or shall attempt to remove his, her or their personal property of the description above mentioned, either out of Upper Canada or from one county to another therein, or from Upper to Lower Canada, or shall keep concealed in any county of Upper Canada to avoid service of process, it shall and may be lawful for any creditor or creditors of such person or persons, his, her or their servant or agent, to make application to the clerk of any division court of the county wherein the debtor or debtors were or was last domiciled, or where the debt was contracted, or to the judge of the county court therein, or to any justice of the peace in any county of Upper Canada, and upon making or producing an affidavit or affirmation to the purport of that in the schedule to this act annexed, marked D, (which affidavit or affirmation the said clerks, judges, and justices of the peace are respectively hereby authorized to administer,) and upon then and there filing the said affidavit or affirmation with such clerk or judge, or if taken before a justice of the peace, with such justice of the peace (whose duty it shall be to transmit the same forthwith to the clerk of the division court, within whose division the same was so made or taken, to be filed and kept among the papers in the cause,) it shall be lawful for such clerk, judge, or justice of the peace forthwith to issue a warrant under his hand and seal, directed to the bailiff of the division court within which the same was issued, or to any constable of the county, commanding such bailiff or constable to attach, seize, take and safely keep all the personal estate and effects of the absconding, removing or concealed person persons, of I what nature and kind soever, liable to seizure under execution for debt, within such county, or a sufficient portion thereof to secure the sum mentioned in the warrant, with the costs of the action, and to return the same forthwith to the division court of the division wherein such warrant

*Goods or chattels,

was issued, upon receipt of which warrant the bailiff or constable to whom the same may be directed shall (upon being paid his lawful fees for levy, mileage, and otherwise thereupon, including the fees of appraisement) forthwith execute the same, and make a just and true inventory of all such personal estate and effects as he shall seize and take by virtue thereof, and such bailiff or constable shall within twenty-four hours thereafter call to his aid two freeholders, who shall first be sworn by such bailiff or constable, to appraise the said personal estate and effects so seized; and such bailiff or constable shall forthwith return the said inventory, which shall be attached to such appraisement to the clerk of the division court of the division within which such warrant was issued, and which warrant may be in the form of that in the schedule to this act annexed, marked E provided always, that the said appraisers shall be entitled to receive for each day they may be employed in carrying its enactments into effect the sum of two shillings and sixpence each, to be paid in the first instance by the plaintiff or plaintiffs and allowed in the costs of the cause: provided always, that proceedings may be conducted to judgment and execution in any case commenced by attachment under the provisions of this section, in the division court of the division within which the warrant of attachment shall issue; and that when proceedings shall be commenced in any case before the issuing of an attachment under the provisions of this section, such proceedings may be continued to judgment and execution in the division court within which such proceedings may have been commenced; and the property seized upon any such attachment shall be liable to seizure and sale under the execution to be issued upon such judgment, or the proceeds thereof, in case such property shall have been sold as perishable, shall be applied in satisfaction of such judgment: provided further, that it shall not be lawful for any plaintiff to divide any cause of action into two or more suits for the purpose of bringing the same within the provision of this section, but any plaintiff having a cause of action above the value of twenty-five pounds, for which an attachment might be issued under this section if the same were not above the value of twenty-five pounds, may abandon the excess, and upon proving his case, shall and may recover to an amount not exceeding twenty-five pounds, and the judgment of the court in such case shall be in full discharge of all demands in respect of such cause of

action, and the entry of judgment therein shall be made accordingly.

County of

SCHEDULE D.

A. B. of in the county of (here state the county) the plaintiff (or agent, as the case may be) maketh oath and saith, that C. D., (the debtor's name) is (or are) justly and truly indebted to (the creditor's name) in the sum of

-of lawful money of Canada, for (here state the cause of action briefly :) and this deponent further saith, that he hath good reason to believe, and verily doth believe, that the said C. D. hath absconded from this province and hath left personal property liable to seizure under execution for debt within the county of; (or) that the said C. D., is (or are) about to abscond from this province, or to leave the county ofwith intent and design to defraud the said

-(the creditor) of the said debt, taking away personal estate liable to seizure under execution for debt; (or) that the said C. D. is concealed within the county of—to avoid being served with process, with intent and design to defraud the said (the creditor) of his said debt; and this deponent further saith, that this affidavit (or affirmation, as the case may be,) is not made, nor the process thereon to be issued, from any vexatious or malicious motive whatever. A. B. Signature of deponent. Sworn (or affirmed as the case may be,) before me, the day one thousand eight hundred and

County of (here insert the county

SCHEDULE E.

To A. B., bailiff of the division court of the said county of(or to A. B., a constable of the county Jof(as the case may be.)

You are hereby commanded to attach, seize, take and safely keep all the personal estate and effects of C. D., (naming the debtor,) an absconding, removing or concealed debtor, of what nature or kind soever, liable to seizure under execution for debt within the county of (here name the county) or a sufficient portion thereof to secure A. B., (here name the creditor,) for the sum of (here state the amount sworn to be due) together with the costs of his suit thereupon, and to return this warrant with what you shall have taken thereupon, to the clerk of the (here state the

number of the division) division court of the county aforesaid forthwith-and herein fail not. Witness my hand and seal, the

E. F.

day of

18

(L. S.)

Judge, clerk or justice of the peace, (as the case may be.)

ACCESSORY.

An Accessory is one guilty of Felony, not as a principal, but by participation, command, advice or concealment. In high treason there can be no accessories, as all concerned are considered principals: so in petit larceny, misdemeanor, or inferior crimes of the like nature, under the degree of felony, there can be no accessories. The mere concealment of a felony intended to be committed, does not render the concealer an ac essory. It is only misprision of felony.-2 Haw. c. 29, § 23.

There are accessories before and after the fact.

An Accessory before the fact is, as Hale defines it, one who being absent at the time the crime is committed doth procure, counsel, or advise the commission of it; and his absence is necessary to constitute him an accessory.

Accessories after the fact, are those, who knowing the felony to have been committed by another, receive, relieve, comfort or assist, the felon.-1 Hale, 618.

But if others accompany the principal to commit a felony, and keep within hearing, or upon watch, all are in such case deemed principals.-2 Haw. c. 29, § 7, 8.

A wife cannot be accessory to her husband, either before or after the fact, unless she be any way guilty of procuring him to commit the felony.-2 Haw. 320.

Anciently, the accessory could not be tried unless the principal were attainted; 3 Ed. I. c. 14; but the law in this respect has been altered by several statutes,* and now, by the 4 & 5 V. c. 24, §37, accessories before the fact to felony at common law, or by statute, shall be deemed guilty of felony, and may be indicted and convicted as accessory before the fact to the principal felony, either together with, or after the conviction of the principal felon, or may be indicted for and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, and may be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished, and • 1 Ann. c. 9, § 1. 19 G. II. c. 30.

such accessory may be tried and punished by any Court having jurisdiction to try the principal felon. § 38. Acces sories after the fact, may also be tried where the principal felony was committed, or where the party shall have become accessory: accessories not liable to be again indicted for the same offence. § 39. Accessories may be prosecuted, notwithstanding the principal felon shall die or be pardoned, or otherwise delivered before attainder. § 53. In the case of every felony punishable under this Act, every principal in the second degree, and every accessory before the fact, shall be punishable with death or otherwise, in the same manner as the principal in the first degree is by this Act punishable, and every accessory, after the fact to any felony punishable by this Act, (except only a receiver of stolen property), shall, on conviction, be liable to be imprisoned for any term not exceeding two years; and every person who shall aid, abet, counsel, or procure the commission of any misdemeanour punishable under this Act, shall be liable to be indicted and punished as a principal offender.

By the 4th and 5th V. c. 25, § 54, if any person shall aid, abet, counsel, or procure the commission of any offence which is by this Act punishable on summary conviction, either for every time of its commission, or for the first and second time only, or for the first time only, every such person shall, on conviction, before a Justice or Justices of the Peace, be liable for every first, second, and subsequent offence, of aiding, abetting, counselling, or procuring, to the same forfeiture and punishment to which a person guilty of a first, second, or subsequent offence, as a principal offender is by this Act made liable.

The 4th and 5th V. c. 26, § 26, also contains a provision similar to the 4th and 5th V. c. 25, § 54, for the punishment of accessories to felonies, &c. under that Act.

And by the 4th and 5th V. c. 27, § 35, principals in the second degree and accessories before the fact to offences under this Act, shall be punishable as the principal in the first degree and accessories after the fact shall be liable to imprisonment, not exceeding two years.-See also post title, "Receivers of Stolen Goods." "Explosive Substance."

Information of the party, to ground a Warrant for apprehending an Accessory before the fact.

A. B. of the Township of in the County of York, maketh oath and saith, that on

the

day of