So, where, on a conviction under the 11 Geo. 1. (Imp.). c. 30, sec. 16, for knowingly harbouring and keeping certain spirits liable to excise duty, it appeared, from the evidence, that search having been made in the defendant's house during the defendant's absence, but in the presence of his wife, the spirits were found concealed in an inner room therein, that the defendant before the convicting justices produced no evidence, but insisted that the room in which the seizure was made was detached from his dwellinghouse and had a door always left unlocked, it was held that the evidence was too slight to found a conviction, and that the mere naked fact of the spirits being found in the defendant's house during his absence-although abundant as a ground of suspicion -could not be considered as satisfactory evidence that the defendant KNOWINGLY harboured or permitted the spirits to remain in the house; and the conviction was quashed. (1)

The defendant, upon being convicted, is entitled, upon application, to a copy of the conviction; (2) and a justice who refuses it may have to pay the costs of a certiorari to obtain it. (3) But the justices are not bound by the copy they deliver; and if it should be found to be defective or informal, from misstating the name of the informer or any other fact, without there being any fraud or intention to mislead, a more correct one may be returned. to the sessions; and the court can only take notice of the latter. (4)

It seems, indeed, that the formal conviction may be drawn up at any time before the return of the certiorari, although such return be after a commitment, (5) or after the penalty has been levied by distress, (6) or after action brought against the magistrates. (7)

A magistrate has even been allowed to return an amended conviction to the sessions after having returned an erroneous one; (8)

(1) Ex parte Ransley, 3 D. & R. 572.

(2) R. v. Midlam, 3 Burr, 1720.

(3) R. v. Huntingdon, 5 D. & R, 588.

(4) R. v. Allen, 15 East, 333, 346.

(5) Massey v. Johnson, 12 East, 82; R. v. McCarthy, 11 O. R. 657. (6) R. v. Barker, 1 East, 186.

(7) Lindsay v. Leigh, 11 Q. B. 455; Gray v. Cookson, 16 East, 13. (8) Sellwood v. Mount, 9 C. & P. 75; 1 Q. B. 729.

but it was held that he could not do this after the conviction as first returned had been quashed either on appeal or by the Court of Queen's Bench, nor after the discharge of the defendant by the Queen's Bench by reason of the conviction recited in the warrant of commitment being bad. (1)

860. Disposal of penalties on conviction of joint offenders.—When several persons join in the commission of the same offence, and upon conviction thereof each is adjudged to pay a penalty which includes the value of the property, or the amount of the injury done, no further sum shall be paid to the person aggrieved than such amount or value, and costs, if any, and the residue of the penalties imposed shall be applied in the same manner as other penalties imposed by a Justice are directed to be applied.

861. First conviction in certain cases.—Whenever any person is summarily convicted before a Justice of any of fence against Parts XX. to XXX. inclusive, or Part XXXVII, of the Code, and it is a first conviction, the Justice may, if he thinks fit, discharge the offender from his conviction upon his making such satisfaction to the person aggrieved. for damages and costs. or either of them, as are ascertained by the Justice.

Parts XX. to XXIII. relate to ASSAULTS. RAPE. LIBEL, etc.; parts XXIV. to XXX. relate to THEFT. BURGLARY, etc., and part XXXVII. relates to MISCHIEF.

A person summarily convicted of any offence for which no punishment is specially provided shall be liable to a penalty not exceeding $50, or to imprisonment with or without hard labor for at term not exceeding 6 months, or to both. (Code. Art. 951, sub-sec. 2.)

Whenever the offence of which the defendant is convicted is, in the opinion of the justice, directly against the peace, and if the justice is of opinion that the offence was committed under circumstances rendering it probable that the person convicted will be again guilty of the same or some other offence unless bound over

(1) Chaney v. Payne, 1 Ad. & Ell (N. S.) 712; 10 L. J. M. C. 114.

to good behaviour, such justice may, in addition to or in lieu of any other sentence, require the accused to give security to keep the peace and be of good behaviour for any term not exceeding twelve months. (Code. Art. 959.)

As to COSTS, see p. 342, post; and as to COMPENSATION TO THE BONA FIDE PURCHASER OF STOLEN PROPERTY, see p. 271, ante.

862. Certificate of dismissal.-If the Justice dismisses the information or complaint, he may, when required so to do, make an order of dismissal in the form BBB in schedule one and he shall give the defendant a certificate in the form CCC in the said schedule, (1) which certificate, upon being afterwards produced, shall, without further proof, be a bar to any subsequent information or complaint for the same matter, against the same defendant.

At common law and independently of statutory enactment, a former conviction or acquittal, whether on a criminal summary pro ceeding or on an indictment, will be an answer to an information of a criminal nature before justices founded on the same facts.

The true test to show that such previous conviction or acquittal is a bar is whether the evidence necessary to support the second proceeding would have been sufficient to procure a legal conviction on the first. (2)

See comments and authorities at pp. 295, ante, and 340-342, post.

863. Disobedience to Order of Justice.-Whenever, by any Act or law, authority is given to cominit a person to prison, or to levy any sum upon his goods or chattels by distress, for not obeying an order of a Justice, the defendant shall be served with a copy of the minute of the order before any warrant of commitment or of distress is issued in that behalf; and the order or minute shall not form any part of the warrant of commitment or of distress.

(1) For Forms BBB and CCC, see p. 382, 383, post.

(2) Per Coleridge, J., in R. v. Drury, 18 L. J. M. C., 189.

864. Assaults.-Whenever any person unlawfully assault s or beats any other person, any Justice may summarily hear an‹ 1 determine the charge, unless at the time of entering upon the investigation the person aggrieved or the person accused object → thereto.

2. If such Justice is of opinion that the assault or battery com plained of is, from any other circumstance, a fit subject for prosecution by indictment, he shall abstain from any adjudication there upon, and shall deal with the case in all respects in the same manner as if he had no authority finally to hear and determine the

same.

865. Dismissal of Complaint for Assault. -If the justice, upon the HEARING of any case of assault or battery upon the merits where the complaint is preferred by or on behalf of the person aggrieved, under the next preceding section, deems the offence not to be proved, or finds the assault or battery to have been justified, or so trifling as not to merit any punishment, and accordingly dismisses the complaint, he shall forthwith make out a certificate under his hand stating the fact of such dismissal, and shall deliver such certificate to the person against whom the complaint was preferred.

866. Release from further Proceedings.-If the person against whom any such complaint has been preferred, by or on behalf of the person aggrieved, obtains such certificate, or. having been convicted, pays the whole amount adjudged to be paid or suffers the imprisonment or imprisonment with hard labour, awarded, he shall be released from all further or other proceedings, civil or criminal. for the same cause.

In R. v. Miles. already cited at p. 295, ante. a case was stated for the consideration of the Court for Crown Cases Reserved. The defendant had been convicted at the Central Criminal Court upon an indictment charging him (in the first count) with unlawfully and maliciously wounding the prosecutor; (in the second count) with unlawfully and maliciously inflicting grievous bodily harm ; (in the third count) with causing actual bodily harm to the prosecutor and (in the fourth count) with common assault. The defendant pleaded and pointed out at the trial the following con

viction in respect of this same assault before a Court of Summary Jurisdiction: G. J. Miles, hereinafter called the defendant, is this day convicted for that he......did unlawfully assault and beat one Chubs Living, and the court being of opinion that the said offence was of so trifling a nature that it is inexpedient to inflict any other than a nominal punishment, and the defendant, having given security to the satisfaction of the court to be of good behaviour, is discharged. The question for the opinion of the court was whether the above summary conviction was a bar to the proceedings against him at the Central Criminal Court for the same offence, Poland, Q. C., and Warburton, for the defendant, said: "Express power is given by the Summary Jurisdiction Act. 1879 (42 & 43 Viet. c. 49), s. 16, subsec 2. to Justices, upon convicting a person of assault, to discharge him conditionally on his giving security to be of good behaviour; and the provisions in 24 & 25 Vict. c. 100, s. 45, must now be read with the section above referred to. Moreover, apart from statutes, the summary conviction formed a bar at common law to the present indictment." Lockwood. Q.C., and Besley, for the prosecution. said: The 24 & 25 Vict. c. 100, s. 45, only operates as a bar where a defendant shall have paid the whole amount adjudged or shall have suffered the imprisonment awarded ; but the Court neither fined nor imprisoned the defendant. The proceedings under the Summary Jurisdiction Act 1889, did not bring the case within section 45 of the earlier statute." Cur, adv. vult. The court (Lord Coleridge, C. J. Pollock, B., Hawkins. J.. Charles, J., and Grantham, J.), upon the above facts, held that the summary conviction was a good answer at common law to the indictment. apart altogether from the question whether the defendant was entitled to the protection afforded by 24 & 25 Vict. c. 100, sec. 45; and quashed the conviction. (1)

The objection of res judicata must when raised against a second prosecution for an offence already disposed of, be taken before the magistrates at the hearing and not reserved as a ground for quashing the conviction or order after it has been made. (2)

The previous proceeding when used as an answer to a new one

(1) R. v. Miles, 13 L, N. 79; 24 Q. B. D. 423; 59 L. J. M. C. 56. See other cases cit. at p. 295, ante.

(2) R. v. Herrington, 12 W. R. 420.