Upon the issue of a warrant of distress, the justices may either suffer the defendant to go at large, or order him (in the manner provided in this section) to be detained until return be made to the warrant, unless he gives sufficient security for his appearance at the time and place of its return.

"Mandamus.”—In Ex parte Thomas, 11 J. P. 295; 16 L. J. M. C. 57; 11 Jur. 107, it was held that as a general rule a mandamus will not be granted for the purpose of compelling justices to enforce a conviction either by commitment or distress. But in the case of a distress warrant to levy a rate, a mandamus will issue. See also In re Williams, 2 New Sess. Cas. 570.

Further, with regard to warrants of commitment, see s. 39 of S. J. Act, 1879, post.

See s. 9 of S. J. Act, 1879, post, as to enforcing of recognizances by a court of summary jurisdiction in the same manner as a fine payable on conviction.

21. In default of distress defendant may be committed.] If at the time and place appointed for the return of any such warrant of distress the constable who shall have had the execution of the same shall return [27] that he could find no goods or chattels, or no sufficient goods or chattels, whereon he could levy the sum or sums therein mentioned, together with the costs of or occasioned by the levying of the same, it shall be lawful for the justice of the peace before whom the same shall be returned to issue his warrant of commitment [31] under his hand and seal, directed to the same or any other constable, reciting the conviction or order shortly, the issuing of the warrant of distress, and the return thereto, and requiring such constable to convey such defendant to the house of correction, or if there be no house of correction then to the common gaol of the county, riding, division, liberty, city, borough, or place for which such justice shall then be acting, and there to deliver him to the keeper thereof, and requiring such keeper to receive the defendant into such house of correction or gaol, and there to imprison him, or to imprison him and keep him to hard labour, in such manner and for such time as shall have been directed and appointed by the statute on which the conviction or order mentioned in such warrant of distress was founded, unless the sum or sums adjudged to be paid, and all costs and charges of the distress, and also the costs and charges of the commitment and conveying of the defendant to prison, if such justice shall think fit so to order, (the amount

Sect. 20.

NOTE.

Sect. 21.

thereof being ascertained and stated in such commitment,) shall be sooner paid.

Commitment.—The warrant of commitment need not be signed by the convicting justices, or one of them. If it is signed by one justice having the same jurisdiction, it is sufficient.

See s. 29, post, and notes to s. 19, ante, p. 98, as to form of commitment.

The costs and charges of the commitment, and of conveying the defendant to prison, if ordered in the justice's discretion, must be inserted in the commitment.

The term of imprisonment to be imposed must now be regulated by the scale in s. 5 of the S. J. Act, 1879, post.

The Debtors Act, 1869 (32 & 33 Vict. c. 62), s. 4, enacts that, with the exceptions hereinafter mentioned, no person shall after the commencement of this Act be arrested or imprisoned for making default in payment of a sum of money-there shall be excepted from the operation of the above enactment :

1. Default in payment of a penalty, a sum in the nature of a penalty other than a penalty in respect of any contract ;

2. Default in payment of any sum recoverable summarily before a justice or justices of the peace.

It was decided in R. v. Pratt, 5 L. R. Q. B. 176; 39 L. J. M. C. 73; 18 W. R. 626; 21 L. T. 750; S. C. Ex parte Cole, 21 L. T. 750, that costs awarded by quarter sessions against one of the parties to the appeal, and which by the Quarter Sessions Act, 1849 (12 & 13 Vict. c. 45), s. 5, and 11 & 12 Vict. c. 43, s. 27, may be enforced before a justice by warrant of distress, and in default of distress by warrant of commitment, are within the above exception mentioned in the Debtors Act, 1869, and the defaulter is, therefore, not protected from imprisonment. But the more recent case of R. v. Lord Mayor of London and Another, Ex parte Boaler, 57 J. P. 633; 9 T. L. R. 508, seems to imply that the civil debt procedure of s. 35 of the S. J. Act, 1879, post, should be followed in recovering such costs. See note to s. 47 of S. J. Act, 1879, post. Sums payable under 38 & 39 Vict. c. 90, s. 9 (The Employers and Workmen Act), are within s. 5 of the Debtors Act, 1869.

As to the liability of a governor of a prison for detaining a prisoner on a warrant of commitment founded on a conviction held to be bad, see note to s. 27 of this Act, post.

As to this section, see 42 & 43 Vict. c. 49, s. 21 (3), post, and 47 & 48 Vict. c. 43, s. 5, post, and the S. J. Rules, 1886, post. And see, as to money and other property found on prisoners, s. 44 of the S. J. Act, 1879, post.

See Leverick v. Mercer, 17 J. P. 196; 22 L. J. M. C. 81, post, note to s. 26 of this Act. And also, to what constable the warrant should be addressed, R. v. Saunders, L. R. 1 C. C. R. 75 ; 36 L. J. M. C. 87, ante, p. 23.

22. Where the statute provides no remedy in default of distress defendant may be committed.] And whereas by

some Acts of Parliament justices of the peace are authorised to issue warrants of distress to levy penalties or other sums recovered before them by distress and sale of the offender's goods, but no further remedy is thereby provided in case no sufficient distress be found whereon to levy such penalties: Be it therefore enacted, that in all such cases, and in all cases of convictions or orders where the statute on which the same are respectively founded provides no remedy in case it shall be returned to a warrant of distress thereon that no sufficient goods of the party against whom such warrant shall have been issued can be found, it shall nevertheless be lawful for the justice to whom such return is made, or to any other justice of the peace for the same county, riding, division, liberty, city, borough, or place, if he or they shall think fit, by his warrant as aforesaid to commit the defendant to the house of correction or common gaol as aforesaid for any term not exceeding three calendar months, unless the sum or sums adjudged to be paid, and all costs and charges of the distress, and of the commitment and conveying of the defendant to prison, (the amount thereof being ascertained and stated in such commitment,) shall be sooner paid.

Commitment on Default of Distress.-With regard to this section, see the Stipendiary Magistrates Act, 1858 (21 & 22 Vict. c. 73), s. 5, which is as follows: "Section twenty-two of the Summary Jurisdiction Act, 1848, shall extend and be deemed to have extended to all cases in which it is returned to a warrant of distress issued under the authority of such Act for levying any penalty, compensation, or sum of money adjudged or ordered to be paid by any conviction or order, that no sufficient goods of the party against whom such warrant was issued can be found, where the statute on which the conviction or order is founded provides no mode of raising or levying such penalty, compensation, or sum of money, or of enforcing payment of the same, as well as to cases where the statute on which the conviction or order is founded authorises the issuing thereon of a warrant of distress." The term of imprisonment must now be regulated by the scale in s. 5 of the S. J. Act, 1879, post. As to signing the warrant of commitment, see s. 29, post, and note to s. 21, ante.

In Migotti v. Colville, 4 C. P. D. 233; 43 J. P. 620; 15 Cox C. C. 305; 40 L. T. 522; 58 L. J. C. P. 695; 27 W. R. 744, it was held that a sentence of one calendar month's imprisonment expires on the day preceding that day which corresponds numerically in the next succeeding month with the day on which the sentence was passed. If there is no such corresponding day in the next month then the sentence expires on the last day of that month,

Sect. 22.

Sect. 22.
NOTE.

and so where a prisoner was on October 31st sentenced to one month's imprisonment it was held that the month expired on November 30th.

The imprisonment of a person does not necessarily begin from the day of the arrest or conviction, but from the day on which he is lodged in gaol (Henderson v. Preston, 21 Q. B. 360; 52 J. P. 759, 820). See also an article in 52 J. P. 419. By the Prison Act, 1898 (61 & 62 Vict. c. 41), s. 12, post, in any sentence of imprisonment "month" shall, unless the contrary is expressed, mean "calendar month."

As to expenses of commitment and conveyance to prison, see Leverick v. Mercer, post, s. 26 of this Act, post.

23. Provision where the statute does not direct lery by distress, but directs commitment in case of non-payment.] In all cases where the statute by virtue of which a conviction for a penalty or compensation or an order for the payment of money is made makes no provision for such penalty or compensation or sum being levied by distress, but directs that if the same be not paid forthwith, or within a certain time therein mentioned, or to be mentioned in such conviction or order, the defendant shall be imprisoned, or imprisoned and kept to hard labour, for a certain time, unless such penalty, compensation, or sum shall be sooner paid, in every such case such penalty, compensation, or sum shall not be levied by distress; but if the defendant do not pay the same, together with costs, if awarded, forthwith, or at the time specified in such conviction or order for the payment of the same, it shall be lawful for the justice or justices making such conviction or order, or for any other justice of the peace for the same county, riding, division, liberty, city, borough, or place, to issue his or their warrant of commitment [32 and 34] under his or their hand and seal, or hands and seals, requiring the constable or constables to whom the same shall be directed to take and convey such defendant to the house of correction or common gaol for the county, riding, division, liberty, city, borough, or place aforesaid, as the case may be, and there to deliver him to the keeper thereof, and requiring such keeper to receive such defendant into such house of correction or gaol, and there to imprison him, or to imprison him and keep him to hard labour, as the case may be, for such time as the statute on which such conviction or order is founded as aforesaid shall direct, unless the sum or sums adjudged to be paid, and also the costs and charges of taking and con

veying the defendant to prison, if such justice or justices Sect. 23. shall think fit so to order, shall be sooner paid.

Commitment in First Instance.-This section applies to cases in which the conviction or order is based on a statute which provides the alternative of imprisonment (without prior distress) on non-payment of the penalty imposed. The term of imprisonment to be imposed must now be regulated in accordance with the scale in s. 5 of the S. J. Act, 1879, post. The warrant of commitment

must be sealed.

As to who may sign it, see s. 29, post, and note to s. 21, ante, p. 102.

Backing Warrant.-By s. 3, ante, p. 21, the provisions of 11 & 12 Vict. c. 42, as to backing warrants, are made to extend to warrants of commitment.

A conviction under the Game Act, 1831 (1 & 2 Will. 4, c. 32), s. 30, included four persons and adjudged each of them to forfeit and pay the sum of £2, and if the said sums be not paid that each of them so making default should be imprisoned for one month, unless the said several sums, and costs and charges of conveying each of them so making default to gaol should be sooner paid :Held, that the conviction made each defendant liable to be imprisoned until he had paid the penalty, and the expense of conveying not himself only, but all the other defendants to gaol, and was therefore bad, and the power of amendment under the Quarter Sessions Act, 1849 (12 & 13 Vict. c. 45), s. 7, was not to be exercised (Reg. v. Cridland, 3 Jur. 1213; 7 E. & B. 853 ; 27 L. J. M. C. 28); and a conviction of A. and B. for an assault, adjudging that they, A. and B., for their said offence, do forfeit the sum of, etc., and in default of payment be imprisoned for a certain time is bad, inasmuch as the penalty ought to be imposed on the parties severally, and not jointly (Morgan v. Brown, 6 N. & M. 57; 4 Ad. & E. 515). And further as to joint and several offences, see note to s. 5, ante, p. 30.

The warrant of commitment must be under seal, and it may be issued by any justice having jurisdiction (see s. 29, post), and it may be backed if the defendant be not found within the jurisdiction. See s. 3, ante, p. 21.

In Ex parte Allison, 18 J. P. 746; 24 L. J. M. C. 73; 10 Exch. 561, the Criminal Procedure Act, 1853 (16 & 17 Vict. c. 30), s. 6, repealed, gives jurisdiction to the justices of the peace sitting at a place where petty sessions are usually held to convict persons accused of certain assaults :-Held, that a warrant of commitment in the general form under 11 & 12 Vict. c. 43, is sufficient without any allegation that the convicting justices were sitting at a place where petty sessions were usually held.

In Egginton v. Mayor of Lichfield, 19 J. P. 819; 24 L. J. Q. B. 360; 1 Jur. 908; 5 E. & B. 100, it was held that a warrant not showing the jurisdiction of the justices under the statute, and not following the form in Part I. in 11 & 12 Vict. c. 43, was bad.