When imprisonment is directed as a mode of punishment for an offence, the defendant must stay in prison for the period ordered. But when imprisonment is directed as a mode of enforcing payment of a penalty or fine, the defendant may pay, and thus avoid the imprisonment; or, if he does not pay at once, and is sent to gaol, he can obtain his release before the end of the time by paying.

When the judgment orders the money to be levied by distress, and that, in default of there being sufficient goods, the defendant shall be imprisoned, the distress warrant should be issued first, and it should be ascertained that there are no sufficient distress upon which to levy, and a return to that effect should be made before the warrant of commitment is issued. And it seems that the defendant's goods cannot be sold for part of the penalty and costs, and the defendant sent to gaol for the balance. So that, if the defendant has paid part of the penalty, it must be returned to him before he can be sent to gaol for non-payment. (1)

873. Order as to Collection of Costs on a dismissal.—When any information or complaint is dismissed with costs, the justice may issue a warrant of distress on the goods and chattels of the prosecutor or complainant, in the form KKK, for the amount of such costs; (2), and, in default of distress, a warrant of commitment in the form LLL may issue. (3) Provided that the term of imprisonment in such case shall not exceed ONE

MONTH.

874. Endorsement of Warrant of Distress.If, after delivery of any warrant of distress issued under this part to the constable or constables to whom the same has been directed to be executed, sufficient distress cannot be found within the limits of the jurisdiction of the justice granting the warrant, then upon proof being made upon oath or affirmation of the handwriting of the justice granting the warrant, before any justice of any other territorial division, such justice shall thereupon make an endorsement on the warrant, signed with his hand, authorizing the execu

(1) Brown v. Linden, 17 Ont., App. Rep. 173.

(2) For form KKK, see p. 390, post.

(3) For form LLL, see p. 391, post.

tion of the warrant within the limits of his jurisdiction, by virtue of which warrant and endorsement the penalty or sum and costs, or so much thereof as has not been before levied or paid, shall be levied by the person bringing the warrant, or by the person or persons to whom the warrant was originally directed, or by any constable or other peace officer of the last mentioned territorial division, by distress and sale of the goods and chattels of the defendant therein. 2. Such endorsement shall be in the form HHH in schedule one of the Code. (1)

875. Distress not to Issue in Certain Cases.— Whenever it appears to any justice that the issuing of a distress warrant would be ruinous to the defendant and his family, or whenever it appears to the justice, by the confession of the defendant or otherwise, that he has no goods and chattels whereon to levy such distress, then the justice, if he deems it fit, instead of issuing a warrant of distress, may commit the defendant to the common gaol or other prison in the territorial division, there to be imprisoned, with or without hard labour, for the time and in the manner he would have been committed in case such warrant of distress had issued and no sufficient distress had been found.

876 Remand of Defendant When Distress is Ordered.—Whenever a justice issues a warrant of distress as herein before provided, he may suffer the defendant to go at large, or verbally, or by a written warrant in that behalf, may order the defendant to be kept and detained in safe custody, until return has been made to the warrant of distress, unless the defendant gives sufficient security, by recognizance or otherwise, to the satisfaction of the justice, for his appearance, at the time and place appointed for the return of the warrant of distress, before him or before such other justice for the same territorial division as shall then be there.

877. Cumulative Punishment.-Whenever a justice, upon any information or complaint, adjudges the defendant to be, imprisoned and the defendant is then in prison undergoing im

(1) For form HHH, see p. 388, post.

prisonment for any other offence, the warrant of commitment for the subsequent offence shall be forthwith delivered to the gaoler or other officer to whom it is directed; and the justice who issued the same, if he thinks fit, may award and order therein that the imprisonment for the subsequent offence shall commence at the expiration of the imprisonment to which the defendant was previously sentenced.

When the defendant is not already in prison upon some other conviction, the imprisonment upon a warrant of commitment is to be calculated from the earliest moment of the day of the arrest under the warrant of commitment. (1)

878. Recognizances.-Whenever a defendant gives security by or is discharged upon recognizance and does not afterwards appear at the time and place mentioned in the recognizance, the justice who took the recognizance, or any justice who is then present, having certified upon the back of the recognizance the non-appearance of the defendant, may transmit such recognizance to the proper officer in the province appointed by law to receive the same, to be proceeded upon in like manner as other recognizances; and such certificate shall be prima facie evidence of the non-appearance of the said defendant.

2. Such certificate shall be in the form MMM in schedule one of the Code. (2) The proper officer to whom the recognizance and certificate of default are to be transmitted, in the province of Ontario, shall be the clerk of the peace of the county for which such justice is acting, except in the district of Nipissing, as to which district the proper officer shall be the clerk of the peace for the county of Renfrew; and the Court of General Sessions of the Peace for such county shall, at its then next sitting, order all such recognizances to be forfeited and estreated, and the same shall be enforced and collected in the same manner and subject to the same conditions as any fines, forfeitures or amercements imposed by or forfeited before such court; and in the other provinces of Canada the proper officer to whom any such recognizance and certificate

(1) Bowdler's case, 12 Q. B. 612; Ex parte Foulkes, 15 M. & W. 612, Braham v. Joyce, 4 Exch. 487.

(2) For form MMM, see p. 392, post.

shall be transmitted shall be the officer to whom like recognizances have been heretofore accustomed to be transmitted under the law in force before the passing of the Code; and such recognizance shall be enforced and collected in the same manner as like recognizances have heretofore been enforced and collected.

879. Appeal.-Unless it is otherwise provided in any special Act under which a conviction takes place or an order is made by a justice for the payment of money or dismissing an information or complaint, any person who thinks himself aggrieved by any such conviction or order,—the PROSECUTOR OR COMPLAINANT, as well as the defendant.-may appeal.-in the province of ONTARIO, to the Court of GENERAL SESSIONS of the peace; in the province of QUEBEC, to the Court of QUEEN'S BENCH, crown side; in the provinces of NOVA SCOTIA, NEW BRUNSWICK and MANITOBA, to the COUNTY COURT of the district or county where the cause of the information or complaint arose; in the province of PRINCE EDWARD ISLAND, to the SUPREME COURT; in the province of BRITISH COLUMBIA, to the COUNTY OF DISTRICT COURT, at the sitting thereof which shall be held nearest to the place where the cause of the information or complaint arose; and, in the NORTH-WEST TERRITORIES, to a JUDGE of the SUPREME COURT of the said TERRITORIES, sitting without a jury,―at the place where the cause of the information or complaint arose, or the nearest place thereto where a court is appointed to be held.

2. In the district of NIPISSING, such person may appeal to the Court of GENERAL SESSIONS of the peace for the county of RENFREW. See Article 900 of the Code, post, as to stating a case for review.

80. Certificate of Appeal.-Every right of appeal shall, unless it is otherwise provided in any special Act, be subject to the conditions following, that is to say :

-

(a.) If the conviction or order is made more than FOURTEEN days before the sittings of the court to which the appeal is given, such appeal shall be made to the then NEXT sittings of such court; but if the conviction or order is made within fourteen days of the sittings of such court, then to the SECOND sittings next after such conviction or order;

(b.) The appellant shall give to the respondent, or to the justice who tried the case, for him, a notice IN WRITING, in the FORM NNN IN SCHEDULE ONE of the Code, (1) of such appeal, within TEN DAYS after such conviction or order;

(c.) The appellant, if the appeal is from a conviction adjudging imprisonment, shall either remain in custody until the holding of the court to which the appeal is given, or shall enter into a recognizance in the FORM OOO in the said SCHEDULE (2) with two sufficient sureties, before a justice, conditioned personally to appear at the said court, and to try such appea!, and to abide the judgment of the court thereupon, and to pay such costs as are awarded by the court; or, if the appeal is against any conviction or order, whereby only a penalty or sum of money is adjudged to be paid, the appellant (although the order directs imprisonment in default of payment), instead of remaining in custody as aforesaid, or giving such recognizance as aforesaid, may deposit with the justice convicting or making the order such sum of money as such justice deems sufficient to cover the sum so adjudged to be paid, together with the costs of the conviction or order, and the costs of the appeal; and upon such recognizance being given, or such deposit being made, the justices before whom such recognizance is entered into, or deposit made, shall liberate such person, if in custody.

(d.) In the case of an appeal from the order of a justice, pursuant to section 571, for the restoration of gold or gold-bearing quartz, or silver, or silver ore, the appellant shall give security by recognizance to the value of the said property to prosecute his appeal at the next sittings of the court and to pay such costs as are awarded against him;

(e.) The court to which such appeal is made shall thereupon hear and determine the matter of appeal and make such order therein, with or without costs to either party, including costs of the court below, as seems meet to the court,-and, in case of the dismissal of an appeal by the defendant and the affirmance of the conviction or order, shall order and adjudge the appellant to be punished according to the conviction or to pay the amount adjudged

(1) For Form NNN, see p. 392, post. (2) For Form 000, see p. 393, post.