Sect. 5.
NOTE.

required to depart is a fine of not more than 40s., or, in the discretion of the magistrate, imprisonment for not more than three days-Held, that under s. 77 of the former Act the magistrate, where he has imposed a fine, may, in default of payment, commit to prison for a month (R. v. Hopkins, [1893] 1 Q. B. 621 ; 57 J. P. 153; 62 L. J. M. C. 57; 9 T. L. R. 294; 68 L. T. 292).

See also s. 47, post, and as to inland revenue and customs cases, see s. 53, post.

As to the release of a prisoner on payment of a portion of the fine, see the Prison Act, 1898 (61 & 62 Vict. c. 41), s. 9, post, and the correspondence from the Home Office there set out.

Provision may be made by rules under s. 29 of the S. J. Act, 1879, post, for the application of sums paid under this section and for any matter incidental thereto. See Rule of April 6th, 1899, at the end of the S. J. Rules, 1886, post.

6. Sum recoverable by summary order to be recoverable as a civil debt.] Where under any Act, whether past or future, a sum of money claimed to be due is recoverable on complaint to a court of summary jurisdiction, and not on information, such sum shall be deemed to be a civil debt, and if recovered before a court of summary jurisdiction shall be recovered in the manner in which a sum declared by this Act to be a civil debt recoverable summarily is recoverable under this Act, and not otherwise; and the payment of any costs ordered to be paid by the complainant or defendant in the case of any such complaint shall be enforced in like manner as such civil debt, and not otherwise.

As to the recovery of civil debts in a court of summary jurisdiction, see s. 35 of this Act. With regard to the distinction between an information and a complaint, see the note to s. 1 of 11 & 12 Vict. c. 43, s. 1, ante, p. 3.

As to the commitment of a married woman for costs in a civil proceeding, see In re Clara Walker, referred to in note to s. 35, post.

The penalty imposed by the Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), s. 103, which section, so far as relates hereto, is repealed but practically re-enacted by 52 & 53 Vict. c. 57, s. 5, for travelling in a railway carriage without having paid the fare and with intent to avoid payment, is not a sum of money claimed to be due and recoverable on complaint to a court of summary jurisdiction within the meaning of this section, and is not subject to the procedure for the recovery of civil debts in a court of summary jurisdiction prescribed by s. 35, post (Reg. v. Paget, 8 Q. B. D. 151; 46 J. P. 151; 51 L. J. M. C. 9; 45 L. T. 794; 30 W. R. 336).

From the case of R. v. Master and Another, JJ. of Gloucestershire, L. R. 4 Q. B. 285; 33 J. P. 436; 19 L. T. (N.s.) 733;

was not an

64

38 L. J. M. C. 73; 17 W. R. 442, it seems that the non-payment of money certified to be due from an overseer created a debt, and offence" in respect of which the power of commitment was given by the Poor Law Amendment Act, 1834 (4 & 5 Will. 4, c. 76), s. 99.

As to the S. J. Acts not applying to the recovery of poor rates, etc., see note to s. 11 of 11 & 12 Vict. c. 43, ante, and the cases of R. v. Price and R. v. Lord Mayor of London and Brown there quoted, at p. 53, ante. As to general district rate, see note to s. 22, post, and Southwark and Vauxhall Water Co. v. Hampton Urban Council, [1899] 1 Q. B. 273; 63 J. P. 100; 68 L. J. Q. B. 207; 15 T. L. R. 95.

See s. 19 of 11 & 12 Vict. c. 43, ante, and note, and s. 8, as to complaints for orders.

The enforcement of affiliation orders is by s. 54, post, excluded from this section.

An order for payment of a cab fare, although the Act said it was to be recoverable as a penalty, is now recoverable as a civil debt (Reg. v. Kerswell and Others, Devon JJ., [1895] 1 Q. B. 1; 59 J. P. 342; 11 T. L. R. 8; 64 L. J. M. C. 70; 71 L. T. 574 ; 18 Cox C C. 49).

A fine for the breach of a rule made under s. 24 of 26 & 27 Vict. c. 65 (The Volunteer Act, 1863), is a sum of money recoverable on complaint before a court of summary jurisdiction. See 60 &

61 Vict. c. 47.

Where a statute gives a right to recover expenses in a court of summary jurisdiction from a person who is not otherwise liable, there is no right to come to the High Court for a declaration that the expenses may be recovered in a court of summary jurisdiction (Barraclough v. Brown, 62 J. P. 275; 66 L. J. Q. B. 672; 76 L. T. 797; 13 T. L. R. 527).

Money due under an order to maintain a relation is merely a civil debt, and comes within the provisions of ss. 6 and 35 of the S. J. Act, 1879 (In re Gamble, 63 J. P. 101; 68 L. J. Q. B. 195). See Rules 19-29 of the S. J. Rules, 1886, post, as to procedure for recovery of civil debts.

7. Payment by instalments of or security taken for payment of money.] A court of summary jurisdiction, by whose conviction or order any sum is adjudged to be paid, may do all or any of the following things; namely,—

(1) Allow time for the payment of the said sum; and
(2) Direct payment to be made of the said sum by
instalments; and

(3) Direct that the person liable to pay the said sum
shall be at liberty to give to the satisfaction of
that court, or of such other court of summary
jurisdiction, or such person as may be specified
by that court, security with or without a surety

Sect. 6.

NOTE.

or sureties, for the payment of the said sum or of any instalment thereof, and such security may be given and enforced in manner provided by this Act.

Where a sum is directed to be paid by instalments and default is made in the payment of any one instalment, the same proceedings may be taken as if default had been made in payment of all the instalments then remaining unpaid.

A court of summary jurisdiction directing the payment of a sum or of an instalment of a sum may direct such payment to be made at such time or times, and in such place or places, and to such person or persons, as may be specified by the court; and every person to whom any such sum or instalment is paid, where not the clerk of the court of summary jurisdiction, shall as soon as may be account for and pay over the same to that clerk.

The enforcement of securities taken for payment of money on convictions or orders is provided for by s. 23 (2)—(4), post.

See r. 12 of S. J. Rules, 1886, post, as to application of sum due under forfeited security.

Form of security is given in Parts I. and II. of the Schedule to the rules.

By r. 15, the clerk of the court is to keep a security book.

By r. 16, notice is to be given to the principal of the forfeiture of the security and served as therein mentioned.

Rule 17 regulates the mode of applications to vary orders for sureties.

See also Consolidated Forms, 1886, post.

See r. 7 as to sums of which payment is deferred or to be made by instalments, and r. 9 as to entry of receipts by clerk.

There may be a separate committal for non-payment of each instalment (Evans v. Wills, 40 J. P. 552; 45 L. J. Q. B. 420; 24 W. R. 883; 1 C. P. D. 229; 34 L. T. 679).

Attention is directed to the following extracts from a circular letter from the Home Office to clerks to justices, dated June 14th, 1905:

"Certain cases have recently come to the notice of the Home Secretary where defendants sentenced on summary conviction to pay a fine and in default to imprisonment, have been taken to prison before they could obtain the money necessary for the payment of the fine, although it subsequently appeared that if a little time and some facilities for communication with their friends had been allowed they would have been able without difficulty to pay the full amount of the penalty.

"The Secretary of State therefore thinks it incumbent on him to urge that justices, before committing to prison in such cases, should

exercise most carefully the discretion expressly conferred on them by sections 7 and 21 of the S. J. Act, 1879; and especially that they should not make an order of commitment on the ground that imprisonment would be less injurious than distress without ascertaining by careful questions what the prisoner has to say on the point. The justices are not, in the Secretary of State's opinion, entitled to assume, from the absence of any statement by the prisoner or from his general appearance, that imprisonment is likely to be less injurious than distress.

“Further, it should be borne in mind that the justices have power to allow payment by instalments. In a recent case where the prisoner had actually in his possession money enough to pay three-fourths of the fine and costs an exercise of this power would have prevented serious hardship to the prisoner and much public comment on the administration of justice."

8. Provision as to costs in the case of small fines.] Where a fine adjudged by a conviction by a court of summary. jurisdiction to be paid does not exceed five shillings, then, except so far as the court may think fit to expressly order otherwise, an order shall not be made for payment by the defendant to the informant of any costs; and the court shall, except so far as they think fit to expressly order otherwise, direct all fees payable or paid by the informant to be remitted or repaid to him; the court may also order the fine or any part thereof to be paid to the informant in or towards the payment of his costs.

With regard to power of a court of summary jurisdiction to award costs in summary convictions or orders, see 11 & 12 Vict. c. 43, s. 18, ante, p. 95. As to limitation of costs in the case of children and young persons, see 1 Edw. 7, c. 20, s. 3, post, in Appendix.

See form of conviction in penalties [No. 11] of Consolidated Forms, 1886, post.

The following extract from a letter addressed to the chairmen of the various petty sessional divisions by the Home Secretary on March 23rd, 1891, relative to the remission of costs under this section are worthy of attention :

"The enactment appears to the Secretary of State clearly to imply that the non-imposition of costs is the course that should be ordinarily followed where the fine imposed is not more than five shillings, and that an express order to the contrary should be made only when the justices have some special reason for so doing. But from the information before him the Secretary of State is led to believe that in many courts the express order for the payment of costs is made as a matter of course, while the remission of the justices' clerks' and the constables' fees is regarded as justifiable only in exceptional circumstances. The disproportion thus occasioned between the fine imposed and the costs payable by the

Sect. 7.

NOTE.

Sect. 8.
NOTE.

defendant is, in his opinion, very much to be deprecated as apt to give rise to a complete misconception of the principles on which justice should be meted out to offenders. He is aware that the smallness of the fine is frequently due to the comparatively heavy costs that have been incurred, and that it is not an uncommon practice for magistrates to determine the amount of the fine to be paid by reference to the amount of the costs in the case. Defendants, however, may not be aware of this, or at least may not take it into consideration, and Mr. Matthews thinks that when a defendant is required to pay as fees to a justices' clerk a sum very largely in excess of the penalty imposed on him in respect of the offence of which he has been convicted, a not unnatural dissatisfaction is likely to be excited, which it would be very desirable to prevent. It seems to him that the course sanctioned by the enactment above referred to is the one that should ordinarily and apart from special circumstances be followed.

"I am to add that in estimating the quantity of work done by a justices' clerk as one of the matters to be considered in determining the amount of salary to be paid to him, the amount of fees remitted ought always to be taken into account no less than the amount of fees received."

9. Enforcing of recognizances by court of summary jurisdiction.] (1) Where a recognizance is conditioned for the appearance of a person before a court of summary jurisdiction, or for his doing some other matter or thing to be done in, to, or before a court of summary jurisdiction, or in a proceeding in a court of summary jurisdiction, such court, if the said recognizance appears to the court to be forfeited, may declare the recognizance to be forfeited, and enforce payment of the sum due under such recognizance in the same manner as if the sum were a fine adjudged by such court to be paid which the statute provides no means of enforcing, and were ascertained by a conviction:

Provided that at any time before the sale of goods under a warrant of distress for the said sum, the said court of summary jurisdiction, or any other court of summary jurisdiction for the same county, borough, or place, may cancel or mitigate the forfeiture, upon the person liable applying, and giving security to the satisfaction of the court for the future performance of the condition of the recognizance, and paying or giving security for payment of the costs incurred in respect of the forfeiture, or upon such other conditions as the court may think just.

(2) Where a recognizance conditioned to keep the peace or to be of good behaviour, or not to do or commit some