2. If such Justice is of opinion that the assault or battery complained of is, from any other circumstance, a fit subject for prosecution by indictment, he shall abstain from any adjudication thereupon, 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. R.S.C., c. 178, s. 73. 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. R.S.C, c. 178, s. 74. 866. Release from further proceedings.- If the person against whom any such complaint has been preferred, by or on the 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. R.S.C., c. 178, s. 75. See comments and authorities at pp. 183, 184, 596, 597, and under Articles 797-799, at p. 688; and see form of plea at p. 600, ante. • In R. v. Miles, already cited at p. 597, 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 conviction 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 Vict. c. 49), s 16, subsec 2, to Justices, upon convicting a person of assault, to discharge him conditionally on his giving security to b 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 46 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, s. 45: and quashed the Conviction. (1) 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 the fees established by law to be taken on proceedings had by and before Justices. R.S.Č., c. 178, s. 59. 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. R.S.C., c. 178, s. 59. 869. Recovery of costs when penalty is adjudged. 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. R.S.C., c. 178, s. 60. 870. Recovery of costs in other cases.-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. R.S.C., c. 178, s. 61. 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 : Fees to be taken by Justices of the Peace or their Clerks. $ cts. ... 0 50 0.10 0 10 1. Information or complaint and warrant or summons (Only one summons on each side to be charged for in 5. Information for warrant for witness and warrant... 0.10 0.50 (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. 597. 6. Each necessary copy of summons or warrant for witness.. 0 10 7. For every recognizance........ 0 25 8. For hearing and determining case 0 50 9. If case lasts over two hours. . 1 00 10. Where one Justice alone cannot lawfully hear and deter- 11. For each warrant of distress or commitment..... .... But in all cases which admit of a summary proceeding 14. For every bill of costs when demanded to be made out in detail.... (Items 13 and 14 to be chargeable only when there has Constables' Fees. 1. Arrest of each individual upon a warrant...... 2. Serving summons ...... 3. Mileage to serve summons or warrant, per mile (one way) necessarily travelled.......... 4. Same mileage when service cannot be effected, but only upon proof of due diligence. ... 0 05 0.10 5. Mileage taking prisoner to gaol, exclusive of disbursements necessarily expended in his conveyance 7. Attending Justices on trial in one or more cases, per hour. 8. Mileage travelled to attend trial (when public conveyence 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... 0 25 13. Commission on sale and delivery of goods, 5 cents in the dollar on the net produce of the goods. 52 V., c. 45, s. 2 and Sch. Witnesses' Fees. 100 0 50 1 00 0 25 0 10 0 10 0 25 11. Travelling to make distress, or, to search for goods to make distress when no goods are found, (one way) per mile.. 0 10 12. Appraisements, whether by one appraiser or more, 2 cents in the dollar on the value of the goods. 0 10 1.00 1.00 1. Each day attending trial 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 common gaol or other prison of the territorial division for which the Justice is then acting, in the manner and for the time directed by the Act or law authorizing such conviction or order or by this Act, 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 of conveying the defendant to gaol are sooner paid; or (b.) that in default of payment of the said penalty, compensation or sum of money, and costs, if any, forthwith, or within a limited time, the defendant be imprisoned in the common gaol or other prison of the said territorial division 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. 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; (1), and 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 (2) 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, (3) the Justice may issue a warrant of commitment in the form JJJ. (4) 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 de (1) For forms DDD, and EEE, see pp 734 and 735, post. (2) For forms FFF, and GGG, see pp. 736 and 737, post. (3) For Form III, see p. 738, post. (4) For Form JJJ, see p. 739, post. fault 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. R.S.C. c. 178, ss. 62, 66, 67 and 68. 873. Order as to collection of costs.-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; (1), and, in default of distress, a warrant of commitment in the form LLL may issue. (2) Provided that the term of imprisonment in such case shall not exceed one month. R.S.C., c. 178, s. 70. 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 execution 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 to this Act. (3) R.S.C., c. 178, s. 63. 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. R.S.C., c. 178, s. 64. (1) For Form KKK, see p. 740, posl. |