debt due to the person entitled to receive the same from the person so convicted, and the order for payment of such amount may be enforced in such and the same manner as in the case of any costs ordered by the Court to be paid under section eight hundred and thirty-two. 33-34 V. (U.K.) c. 23, s. 4.

This Article is derived from and extends,-to all cases of persons tried upon an indictment, the provisions of sec. 4, of the Imperial Act, 33-34 Vict. c. 23, upon which Archbold comments as follows:

16

The discretionary power given by this section is far more extensive that the power conferred by the 24-25 Vict. c. 96, s. 100; (1), and, if exercised in every case to which it may in strictness be applicable, will compel a Criminal Court at the close of many trials for felony to enter upon complicated enquiries involving the expenditure of a large amount of time and labor. It is probable however that Criminal Courts will decline to exercise the powers thus conferred upon them, except in very simple cases, and will, in the majority of instances, leave the applicant to enforce his right by the ordinary civil procedure.” (2)

It will be seen that the power conferred by the above Article is limited to the awarding of compensation for a loss of property. It would appear, therefore, as pointed out by Archbold that, in the case of serious personal injuries caused by an indictable offence, no cempensation could under this Article, be awarded in respect of such personal injuries, and that even where the personal injuries caused by the indictable offence may have incapacitated the prosecutor from earning his livelihood, it would not be such a loss of property as would form the subject of compensation under this Article. (3)

"

The expression PROPERTY' includes:-(i) every kind of real and personal property, and all deeds and instruments relating to or evidencing the titles or right to any property or giving a right to recover or receive any money or goods: (ii) not only such property as was originally in the possession or under the control of any person but also any property into or for which the same has been converted or exchanged and any thing acquired by such conversion, or exchange, whether immediately or otherwise: (iii) any postal card, postage stamp, or other stamp issued or prepared for issue by the authority of the Parliament of Canada or of the Legislature of any province of Canada for the payment to the Crown or any corporate body of any fee rate or duty and whether still in the possession of the Crown or of any person or corporation, and such postal card or stamp shall be held to be a chattel and to be equal in value to the amount of the postage rate or duty expressed on its face in words or figures or both." (Article 3 (v.) ante.)

837, Compensation to bonâ fide purchaser of stolen property.— When any prisoner has been convicted, either summarily or otherwise, of any theft or other offence, including the stealing or unlawfully obtaining any property, and it appears to the Court, by the evidence, that the prisoner sold such property or part of it to any person who had no knowledge that it was stolen or unlawfully obtained, and that money has been taken from the prisoner on his apprehension, the Court may, on application of such purchaser and on restitution of the property to its owner, order that, out of the money so taken from the prisoner, (if it is his), a sum, not exceeding

(1) For provisions similar to those contained in the Imperial statute 24 and 25, Vict. c. 96, sec. 100, see Article 838, post, which is a re-enactment, (with certain changes) of R.S.C. c. 174, sec. 250.

(2) Arch. Cr. Pl. & Ev. 21 Ed., 206. (3) lb.

the amount of the proceeds of the sale, be delivered to such purchaser. R.S.C., c. 174, s. 251.

838. Restitution of stolen property.—(As amended by 56 Vict. c. 32). If any person who is guilty of any indictable offence in stealing, or knowingly receiving, any property, is indicted for such offence, by or on behalf of the owner of the property, or his executor or administrator, and convicted thereof, or is tried before a Judge or justice for such offence under any of the foregoing provisions and convicted thereof, the property shall be restored to the owner or his representative.

2. In every such case, the Court or Tribunal before which such person is tried for any such offence, shall have power to award, from time to time, writs of restitution for the said property or to order the restitution thereof in a summary manner; and the Court or Tribunal may also, if it sees fit, award restitution of the property taken from the prosecutor, or any witness for the prosecution, by such offence, although the person indicted is not convicted thereof, if the jury declares, as it may do, or if, in case the offender is tried without a jury, it is proved to the satisfaction of the Court or Tribunal by whom he is tried, that such property belongs to such prosecutor or witness, and that he was unlawfully deprived of it by such offence.

3. If it appears before any award or order is made, that any valuable security has been bonâ fide paid or discharged by any person liable to the payment thereof, or being a negotiable instrument, has been bonâ fide taken or received by transfer or delivery, by any person, for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had, by any indictable offence, been stolen, or if it appears that the property stolen has been transferred to an innocent purchaser for value who has acquired a lawful title thereto, the Court or Tribunal shall not award or order the restitution of such security or property.

4. Nothing in this section contained shall apply to the case of any prosecution of any trustee, banker, merchant, attorney, factor, broker or other agent intrusted with the possession of goods or documents of title to goods, for any indictable offence under sections three hundred and twenty, or three hundred and sixty-three of this Act R.S.C., c. 174, s. 250.

Clause 3 of this Article makes an exception in favor of an innocent third party who has purchased, for value, the stolen property, and who has acquired a lawful title thereto, that is, a lawful title according to the law, as to civil rights, of the province where the offence has been committed. For instance, by the law of the province of Quebec, "If a thing lost or stolen be bought in good faith, in a fair or market or at a public sale, or from a trader dealing in similar articles, the owner cannot reclaim it, without re-imbursing to the purchaser the price he has paid for it:" and "If the thing lost or stolen be sold under the authority of law, it cannot be reclaimed." (1)

The power to award restitution of property under the above Article extends

(1) See Articles 1489 and 1490 Civ. Code, L. C.

to the proceeds of the property as well as the property itself. Therefore, if the property stolen, has been sold before the conviction, an application may be made to the Court, before which the criminal is convicted, for the restitution of the proceeds, which, of they are in the hands of the criminal or of an agent who holds them for him, should be granted. (1)

Where, after the trial and conviction of a prisoner for larceny, the judges who presided at the trial ordered property found in his possession, when arrested, to be disposed of in a particular manner, such property not being part of that stolen nor connected therewith, it was held that the order was bad, as the Judges had no jurisdiction to make it. (2)

PART LVIII.

SUMMARY CONVICTIONS.

839. Interpretation.-In this part, unless the context otherwise requires,

(a.) the expression "Justice" means a Justice of the Peace and includes two or more Justices if two or more Justices act or have jurisdiction, and also a Police Magistrate, a Stipendiary Magistrate and any person having the power or authority of two or more Justices of the Peace;

(b.)the expression "Clerk of the Peace" includes the proper officer of the Court having jurisdiction in appeal under this part, as provided by section eight hundred and seventy-nine;

(c.) the expression "territorial division" means district, county, union of counties, township, city, town, parish or other judicial division or place;

(C

(d) the expression "district" or county includes any territorial or judicial division or place in and for which there is such Judge, Justice, Justice's Court, officer or prison as is mentioned in the context;

(e.) the expression "common gaol" or "prison" means any place other than a penitentiary in which persons charged with offences are usually kept and detained in custody. R.S.C., c. 178, s. 2.

840. Application.-Subject to any special provision otherwise enacted with respect to such offence, act or matter, this part shall apply to

(a.) Every case in which any person commits, or is suspected of

(1) R. v. Justices Cent.¡Crim. Ct., 17 Q. B. D. 598; 55 L. J. (Q.B.) 183 ; affirmed 18 Q. B. D. 314: 56 L. J. (M. C.) 25. See Article 3 (v.) ante.

(2) R. v. Corporation of City of London, E.B. & E. 509; 27 L.J. (M.C.) 231 ; R. v. Pierce, Bell, 235.

having committed, any offence or act over which the Parliament of Canada has legislative authority, and for which such person is liable, on summary conviction, to imprisonment, fine, penalty or other punishment;

(b.) Every case in which a complaint is made to any justice in relation to any matter over which the Parliament of Canada has legislative authority, and with respect to which such justice has authority by law to make any order for the payment of money or otherwise. R.S.C., c. 178, s. 3.

841. Time within which proceedings shall be commenced.—In the case of any offence punishable on summary conviction, if no time is specially limited for making any complaint, or laying any information in the Act or law relating to the particular case, the complaint shall be made, or the information shall be laid within six months from the time when the matter of complaint or information arose, except in the North-west Territories, where the time within which such complaint may be made, or such information may be laid, shall be extended to twelve months from the time when the matter of the complaint or information arose. 52 V., c. 45, s. 5.

It will be seen by this Article that in summary matters, not otherwise specially limited, the prosecution must be commenced by the making of the complaint or the laying of the information within six months, (in all places except the N. W. Territories where the time limited is twelve months), from the time when the matter of complaint or information arose. But the laying of the complaint or the making of the information should be followed up by useful proceedings in the shape of a warrant or summons and the arrest of or otherwise bringing the defendant before the Magistrate or Justice. See authorities and comments under Art. 551, at pp 519 and 520 anle.

842. Jurisdiction.-Every complaint and information shall be heard, tried, determined and adjudged by one justice or two or more justices as directed by the Act or law, upon which the complaint or information is framed or by any other Act or law in that behalf.

2. If there is no such direction in any Act or law, then the complaint or information may be heard, tried determined and adjudged by any one justice for the territorial division where the matter of the complaint or information arose : Provided that every one who aids, abets, counsels or procures the commission of any offence punishable on summary conviction, may be proceeded against and convicted either in the territorial division or place where the principal offender may be convicted, or in that in which the offence of aiding, abetting, counselling or procuring was committed.

3. Any one justice may receive the information or complaint, and grant a summons or warrant thereon, and issue his summons or warrant to compel the attendance of any witnesses for either party, and do all other acts and matters necessary preliminary to the hearing, even if by the statute in that behalf it is provided that the information or complaint shall be heard and determined by two or more Justices.

4. After a case has been heard and determined one justice may issue all warrants of distress or commitment thereon.

5. It shall not be necessary for the Justice who acts before or after the hearing to be the Justice or one of the Justices by whom the case is to be or was heard and determined.

6. If it is required by any Act or law that an information or complaint shall be heard and determined by two or more Justices, or that a conviction or order shall be made by two or more Justices, such Justices shall be present and acting together during the whole of the hearing and determination of the case.

8. No Justice shall hear and determine any case of assault or battery, in which any question arises as to the title to any lands, tenements, hereditaments, or any interest therein or accruing therefrom, or as to any bankruptcy or insolvency, or any execution under the process of any court of justice. R.S.C., c. 178, ss. 4, 5, 6, 7, 8, 9, 12 and 73. (1)

843. Hearing before justices.—The provisions of Parts XLIV. and XLV. of this Act relating to compelling the appearance of the accused before the justice receiving an information under section five hundred and fifty-eight and the provisions respecting the attendance of witnesses on a preliminary inquiry and the taking of evidence thereon, shall, so far as the same are applicable, except as varied by sections immediately following, apply to any hearing under the provisions of this part: Provided that whenever a warrant is issued in the first instance against a person charged with an offence punishable under the provisions of this part, the Justice issuing it shall furnish a copy or copies thereof, and cause a copy to be served on the person arrested at the time of such arrest.

2. Nothing herein contained shall oblige any Justice to issue any summons to procure the attendance of a person charged with an offence by information laid before such Justice whenever the application for any order may, by law, be made ex parte. RS.C., c. 178, ss. 13 to 17 and 21.

844. Backing warrants. The provisions of section five hundred and sixty-five relating to the endorsement of warrants shall apply to the case of any warrant issued under the provisions of this part against the accused, whether before or after conviction, and whether for the apprehension or imprisonment of any such person. R.S.C., c. 178, s. 22; 52 V., c. 45, s. 4.

845. Informations and complaints.-It shall not be necessary that any complaint upon which a Justice may make an order for the payment of money or otherwise shall be in writing, unless it is so required by some particular Act or law upon which such complaint. is founded.

(1) See alphabetical list, at the end of this part, of offences which are, for the most part, non-indictable, and over which Justices have absolute summary jurisdiction. (pp. 647-650, posl.