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SECT. 5.-Of appropriating the Penalty, &c., in the

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The appropriation of the penalty is either fixed by the statute itself, or it is left to the discretion of the convicting magistrate to assign the object, or proportion, according to which it is to be disposed of. In the former case, that is, where the statute itself makes a complete and determinate disposal, the conviction need not contain any express award to that effect. Thus, on the old Deerstealing Act, 3 & 4 W. & M. c. 10, which ordered the penalty to be divided equally between the poor of the parish and the party grieved, it was held sufficient to award a forfeiture of the penalty, without proceeding to specify the application (8). This is the usual mode, wherever the statute applies the penalty with such certainty, that the judgment can be unequivocally carried into effect by reference to the act alone (t). The form of the judgment in such cases usually awarded the penalty to be distributed as the act directs (u). But the general form now in use under the Summary Jurisdiction Rules, 1886, gives no direction. The words in the form for a conviction for a penalty are "And it is adjudged that the defendant for his said offence do forfeit and pay the sum of and do also

pay the further sum of for compensation and

for

costs" (x). The old form under the Summary Jurisdiction

Act, 1848, directed the

according to law" (y).

penalty "to be paid and applied

Where in pursuance of any statute a Court of Summary

(s) R. v. Barret, 1 Salk. 383.

(t) 8 East, 573.

(u) See R. v. Thompson, 2 T. R. 18, where the conviction was confirmed, without any objection to it on account of its being in that form. At that time, the penalty was given by the act, half to the informer, and

half to the poor, though it was afterwards altered, and given wholly to

the informer.

(x) Form 11, in schedule to Summary Jurisdiction Rules, 1886. (y) 11 & 12 Vict. c. 43, Schedule (II.).

Jurisdiction specially directs the appropriation of a fine, the statute under which the appropriation is made is to be set forth in the register and authenticated by the signature of the justice, or one of the justices constituting the Court (2).

Where there is a material variation, in the appropriation of the penalty, from the directions of the act of parliament, the conviction will be bad (a). Where the penalty was ordered to be paid to a party who was not the party authorized by the statute to receive it, and in the event of non-payment imprisonment was awarded, the conviction was held to be invalid (b).

And where any discretion is vested in the magistrate, Where specific either as to the object or rate of appropriation, or where necessary. any sum is to be assigned by way of satisfaction or reward, the judgment must in such cases specifically appoint the manner and proportion in which the penalty is to be distributed (c).

In like manner, where the amount is ascertained by the Specification of party act, but the description of persons entitled is the subject of entitled to. the magistrate's selection, or even where both the amount and the description of persons are determined, but the individuals answering that description are uncertain, in each of these cases, the magistrate must exercise his discretion in these particulars at the time of the adjudication, and make the requisite selection, by name, of the party entitled; and that must appear upon the record, so as to leave no part of the judgment or execution liable to uncertainty (d).

(2) Rule 4 of the Summary Jurisdiction Rules, 1886. The register here referred to is the register required to be kept by the clerk of each court of summary jurisdiction in pursuance of s. 22 of the Summary Jurisdiction Act, 1879, with such particulars as appear by the form in part III. of the schedule to such rules.

(a) Griffith v. Harries, 2 M. & W.

335.

(b) Chaddock v. Wilbraham and another, 5 C. B. 645.

(c) R. v. Dimpsey, 2 T. R. 96; and see Re Boothroyd, 15 M. & W. 1, 10; R. v. Symonds, 1 East, 189.

(d) R. v. Seale, 8 East, 568, 573. Note, the statute 32 Geo. 3, c. 53, regulating the seven public offices in Middlesex and Surrey, provided

Informer's share.

It is the policy of most of the statutes inflicting penalties, to give part of the penalty to the informer (e). The

that the penalties levied by the justices, under that act, should (except the informer's share) be paid to the receiver appointed by the act. This clause was held only to warrant the magistrates in paying the money to the receiver, but did not vary the form of the conviction made at those offices, per Buller, J., 3 T. R. 341; see now 10 Geo. 4, c. 44; 2 & 3 Vict. c. 71, for regulating the police of the metropolis. By sect. 47 of 2 & 3 Vict. e. 71, when penalties are made payable to any person, except to the informer, and are recovered before a metropolitan police magistrate, they shall be adjudged to be paid to the receiver for the metropolitan Folice district; see Wray v. Ellis, 1 El. & El. 276; 28 L. J., M. C. 45. By sect. 6 of 3 & 4 Vict. c. 84, any two justices having jurisdiction within metropolitan police district while sitting together in petty sessions, except in divisions assigned to the police courts, have all the powers, privileges, and duties which any one magistrate of the police courts has. It has been held that this did not make penalties, which were recovered before two justices sitting as above, penalties recovered before a police magistrate; and that therefore the share of such penalties unappro priated to the informer or party aggrieved did not go to the receiver of the metropolitan police district; see Receiver for Metropolitan Police District v. Bell, L. R., 7 Q. B. 433; and see 35 & 36 Vict. c. 94, s. 66. By 11 & 12 Vict. c. 43, s. 31, the constable, or other person to whom a warrant of distress is directed, shall be thereby ordered to pay the amount to be levied thereunder to the clerk of the division in which the justice issuing the warrant usually acts; if a person convicted in any penalty, or ordered by a justice to pay a sum of money, pays it to a constable or other person, it is then to be paid over to

such clerk; if any person committed to prison on any conviction or order for non-payment of any penalty, or sum thereby ordered to be paid, desires to pay the same and costs before the expiration of the time for which he shall be

ordered to be imprisoned, he is to pay it to the gaoler or keeper of the prison, who is then to pay the same to the said clerk. All sums so received by the said clerk are forthwith to be paid by him to the party or parties to which the same are to be paid according to the directions of the statute on which the information was framed; and if the statute contains no such directions, then to the treasurer of the county, riding, &c. for which such justice shall have acted. Provisions are also made by the same section for insuring regularity in accounting for penalties.

(e) The policy of this expedient is enforced in a preamble to a clause in an old statute, 25 Hen. 8, c. 9, concerning pewterers; which, after reciting a former act, proceeds to take notice, "that forasmuch as the forfeiture therein is to the only use of the king's highness, and that any party searching or finding the articles there condemned is not entitled to have any benefit thereby, it hath not been known that any person or persons have taken any pains to search or make inquiry thereof, by reason whereof divers evil-disposed persons, &c. daily go about from village to village, selling such pewter and brass, which is not good, and using such deceivable weights and beams, as they did before the making of the said act, to the great hurt and detriment of the king's subjects;" for which reason, it is enacted by that clause, that half the forfeiture shall belong to the informer. 26 & 27 Viet. c. 113 (prohibiting the use of poisoned grain or seed), s. 5, the justices have power to

By

proportion is now generally one-half. At first it was commonly one-fourth, afterwards one-third by later statutes, and lastly, one-half. Even this large proportion, says an eminent writer on the penal statutes, seldom hath its effect (ƒ).

The same rules will of course apply, where, instead of Amount of or in addition to, a penalty, the defendant is to pay the injury. amount of the injury he has occasioned. Thus, 24 & 25 Vict. c. 96, contains such a provision, and then, by s. 106, provides that every sum of money forfeited on summary conviction for the value of any property stolen or taken, or for the amount of any injury done (such value or amount to be assessed in each case by the convicting justice), shall be paid to the party aggrieved, except where he is unknown, and in that case such sum shall be applied in the same manner as a penalty; and every sum which shall be imposed as a penalty by any justice, whether in addition to such value or amount, or otherwise, shall be paid and applied in the same manner as other penalties recoverable before justices are to be paid and applied in cases where the statute imposing the same contains no direction for the payment thereof to any person (see 11 & 12 Vict. c. 43, s. 31); provided that where several persons shall join in the commission of the same offence, and shall, on conviction, each be adjudged to forfeit a sum equivalent to the value of the property or to the amount of the injury, no further sum shall be paid to the party aggrieved than such value or amount, and the remaining sum or sums shall be applied in the same manner as any penalty imposed by a justice is hereinbefore directed to be applied. And 24 & 25 Vict. c. 97, contains analogous provisions.

award to the informer or prosecutor (not being a police-constable or peace-officer) any portion not exceeding one moiety of the penalty recovered under that act, and he or any person giving evidence is to be freed from penalties he may

M.

have incurred under it, if he has
laid the information or given the
evidence before an information has
been laid against him for such
penalties.

(f) Barrington's Observations on
the Statutes, 207, n. (a).

Compensation.

The Factory and Workshop Act, 1878 (g), declares that if any person is killed, or suffers any bodily harm, in consequence of the occupier of a factory having neglected to fence any machinery, &c., as required by that Act, such occupier shall be liable to a fine not exceeding 100l., the whole or any part of which may be applied for the benefit of the injured person or his family.

Justices dealing summarily with an indictable offence in pursuance of the Summary Jurisdiction Act, 1879 (h), may grant to the person who preferred the charge, or appeared to prosecute or give evidence, a certificate of the amount of the compensation which the Court may deem reasonable for his expenses, trouble, and loss of time therein; and the Restitution of 24 & 25 Vict. c. 96 (i), contains provisions as to restitution. property, &c. And by 30 & 31 Vict. c. 35, it is provided that where any prisoner shall be convicted, either summarily or otherwise, of larceny or other offence which includes the stealing of any property, and it shall appear to the Court by the evidence that the prisoner has sold the stolen property to any person, and that such person had no knowledge that the same was stolen, and that any monies have been taken from the prisoner on his apprehension, it shall be lawful for the Court, on the application of such purchaser, and on the restitution of the stolen property to the prosecutor, to order that out of such monies a sum not exceeding the amount of the proceeds of the said sale be delivered to the said purchaser (k).

(g) 41 Vict. c. 16, s. 82.

(h) 42 & 43 Vict. c. 49, s. 28.
(i) Larceny Act. As to restitu-
tion of property, see R. v. The
London Corporation, 27 L. J., M. C.

231.

As to returning property to a person charged with an offence, see 42 & 43 Vict c. 49, s. 44.

(k) See also 33 & 34 Vict. c. 23,

ss. 4, 5, under which a person convicted of treason or felony may be condemned in costs, and the court may award compensation, to be paid by the person convicted to persons defrauded or injured by the felony. See R. v. D'Eyncourt, 21 Q. B. D. 109; 51 L. J., M. C. 64; R. v. Slade, 21 Q. B. D. 433.

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