should have been carried to a decision upon the merits. (1) And it seems that the certificate of dismissal can only be granted when there has been a hearing upon the merits. (2) The granting of the certificate mentioned in the above Article 866 is a ministerial act, and the application for it need not be made in the presence of the other party; and, as it seems, it may be made at any time, the word FORTHWITH in Article 865 meaning forthwith on application for it, and not forthwith on dismissal of the information. (3) 867. Costs on Conviction or Order.-In every case of a summary conviction, or of an order made by a justice, such justice, may, in his discretion, award and order, in and by the conviction or order, that the defendant shall pay to the prosecutor or complainant such costs as to the said justice seem reasonable in that behalf. and not inconsistent with fees established by law to be taken on proceedings had by and before justices. 868. Costs on Dismissal.-Whenever the justice, instead of convicting or making an order, dismisses the information or complaint, he may in his discretion, in and by his order of dismissal, award and order that the prosecutor or complainant shall pay to the defendant such costs as to the said justice seem reasonable and consistent with law. 869. Recovery of Costs on Conviction or Dismissal.—The sums so allowed for costs shall, in all cases, be specified in the conviction or order, or order of dismissal, and the same shall be recoverable in the same manner and under the same warrants as any penalty, adjudged to be paid by the conviction or order, is to be recovered. The recovery of penalties is provided for by Article 872, infra. A conviction which imposes an amount of costs in excess of those authorized by the statute under which the conviction takes place (1) R. v. Herrington, 3 N. R. 468; 12 W. R. 420. (2) Reed v. Nutt, 24 Q. B. D. 669. (3) Hancock v. Somes, 1 E. & E. 795; 28 L. J. M. C. 196; Costar v. Hetherington, 1 E. & E. 802; 28 L. J. M.C. 198. will be invalid. (1) But where the statute authorizing the justice to award costs does not fix any tariff, the justice may award such costs as he thinks reasonable. (2) Where justices signed a conviction and warrant of commitment leaving blanks for the amount of costs to be inserted, it was held to be an irregularity, but not an excess of jurisdiction rendering them liable to an action. (3) 870. Recovery of Costs when there is no Penalty. Whenever there is no such penalty to be recovered, such costs shall be recoverable by distress and sale of the goods and chattels of the party, and in default of distress, by imprisonment, with or without hard labour, for any term not exceeding ONE MONTH. 871. Fees.-The fees mentioned in the following tariff and on others shall be and constitute the fees to be taken on proceedings before justices in proceedings under this part: 4. Fees to be taken by Justices of the Peace or their Clerks 1. Information or complaint and warrant or summons...... $ cts. 0250 0.10 0 10 ... 0 10 5. Information for warrant for witness and warrant........ 6. Each necessary copy of summons or warrant for witness. 7. For every recognizance.... 0 50 0 10 0.25 8. For hearing and determining case........... 0.50 100 9. If case lasts over two hours.... (1) Re Bibby, 6 M. L. R., 472. (2) R. v. Starkey, 7 M. L. R. 489. (3) Bolt v. Ackroyd, 28 L. J. M. C. 207. 10. Where one justice alone cannot lawfully hear and determine the case, the same fee for hearing and determining to be allowed to the associate justice. 11. For each warrant of distress or commitment........ 0.25 100 But in all cases which admit of a summary proceed ing before a single justice and wherein no higher penalty than $20 can be imposed, there shall be charged for the record of conviction not more than 0 50 13. For copy of any other paper connected with any case, and the minutes of the same if demanded, per folio of 100 words........................ 14. For every bill of costs when demanded to be made out 0.05 0.10 Constables Fees. 1. Arrest of each individual upon a warrant. (1).. 2. Serving summons..... 3. Mileage to serve summons or warrant, per mile (one way) necessarily travelled....... 0.10 4. Same mileage when service cannot be effected, but only upon proof of due diligence. 5. Mileage taking prisoner to gaol, exclusive of disbursements necessarily expended in his conveyance.......... 0 10 6. Attending justices on trial, for each day necessarily employed in one or more cases, when engaged less than four hours. (1)...... 7 Attending justices on trial, for each day necessarily employed in one or more cases, when engaged more than four hours. (1).......................... (1) As amended by 57-58 Vic., c. 57, sec. 1. 1.00 150 8. Mileage travelled to attend trial (when public conveyance can be taken only reasonable disbursements to be allowed) one way, per mile........ 9. Serving warrant of distress and returning same........... 10. Advertising under warrant of distress...... 11. Travelling to make distress, or, to search for goods to make distress when no goods are found (one way), per mile. ..... 12. Appraisements, whether by one appraiser or more, 2 cents in the dollar on the value of the goods. 13. Commission on sale and delivery of goods, 5 cents in the dollar on the net produce of the goods. Witnesses' Fees. 1. Each day attending trial....... 0.10 1 00 1.00 0 10 0275 2. Mileage travelled to attend trial (one way) per mile..... 0 10 872. Provisions Respecting Convictions.Whenever a conviction adjudges a pecuniary penalty or compensation to be paid, or an order requires the payment of a sum of money, whether the act or law authorizing such conviction or order does or does not provide a mode of raising or levying the penalty, compensation or sum of money, or of enforcing the payment thereof, the justice by his conviction, or order after adjudging payment of such penalty, compensation or sum of money, with or without costs, may order and adjudge— (a) that in default of payment thereof forthwith, or within a limited time, such penalty, compensation or sum of money shall be levied by distress and sale of the goods and chattels of the defendant, and, if sufficient distress cannot be found, that the defendant be imprisoned in the manner and for the time directed by the act or law authorizing such conviction or order or by the Code, or for any period not exceeding three months, if the act or law authorizing the conviction or order does not specify imprisonment, or does not specify any term of imprisonment, unless such penalty, compensation or sum of money AND COSTS, if the conviction or order is made with costs, and the expenses of the distress and conveying the defendant to gaol are sooner paid ; (1) or (b) that in default of payment of the said penalty, compeƉsation or sum of money, and costs, if any, forthwith, or within a limited time, the defendant be imprisoned in the manner and for the time mentioned in the said act or law, or for any period not exceeding three months, if the act or law authorizing the conviction or order does not specify imprisonment, or does not specify any term of imprisonment, unless the said sums with the like costs and expenses are sooner paid. (1) 2. The justice making the conviction or order mentioned in the paragraph lettered (a) of subsection one of this section may issue a warrant of distress in the form DDD or EEE, as the case requires; (2) and in the case of a conviction or order under the paragraph lettered (b) of the said subsection, a warrant in one of the forms FFF or GGG (3) may issue; (a.) If a warrant of distress is issued and the constable or peace officer charged with the execution thereof returns (form III) that he can find no goods or chattels whereon to levy thereunder (4) the justice may issue a warrant of commitment in the form JJJ. (5) 3. Where, by virtue of an act or law so authorizing, the justice by his conviction adjudges against the defendant payment of a penalty or compensation, and also imprisonment, as punishment for an offence, he may, if he thinks fit, order that the imprisonment in default of distress or of payment, as provided for in this section, shall commence at the expiration of the imprisonment awarded as a punishment for the offence. 4. The like proceeding may be had upon any conviction or order made as provided by this section as if the act or law authorizing the same had expressly provided for a conviction or order in the above terms. (1) As amended by 57-58 Vict., c. 57, sec. 1. (2) For forms DDD and EEE, see pp. 383 and 384, post. (3) For forms FFF and GGG, see pp. 385-387, post. (4) For form III see p. 388, post. (5) For form JJJ, see p. 389, post. |