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amount to a threat, they had a discretion whether or not to bind over the party complained against. And in that case it was further objected that not allowing the party complained against to deny the facts sworn to was against the principle that a man may always be heard in his own defence. But BLACKBURN, J., said, “That argument would be irresistible if this were a case of punishment, but it is not. It is to prevent the apprehended danger of a breach of the peace."

But the party complained against could have before the passing of this Act shown that the complainant was actuated by malice, and might explain ambiguities in the complaint (R. v. Dunn, 12 A. & E. 599; 10 L. J. M. C. 29; 5 Jur. 721; R. v. Bringloe, 12 Ea. 174 n.; R. v. Doherty, 13 Ea. 171).

It is laid down in 2 Hawk. P. C. Book 5, c. 60, s. 6, that wherever a person has just cause to fear that another will do him some bodily harm, as by killing or beating him or his wife or child, or will procure others to do so, he may demand surety of the peace against such person; and every justice of the peace is bound to grant it, upon the party making oath before him that he is actually under such fear, and has just cause to be so, by reason of such person having threatened to beat him, or laid in wait for that purpose, and that he doth not require it out of malice or for vexation.

If the party is before the justices on another charge, a formal complaint is not required to be laid (Ex parte Davis, 35 J. P. 551; 24 L. T. 547). But if the allegations in the complaint are on the face of them insufficient, a commitment may be set aside on habeas corpus, and the defendant discharged (R. v. Dunn, supra). A case for the opinion of a divisional court may be stated, as in Lort v. Hutton, supra.

Sureties may be required though the threats of injury implied that such injury would be conditional upon complainant doing something he had a right to do. See Ex parte Halse, 21 L. J. M. C. 21; and R. v. Mallinson, 20 L. J. M. C. 33; 1 Lowndes Max & Pol. 619. And in some cases of libel against private individuals sureties for good behaviour may be required. "Libellers may be bound to their good behaviour as disturbers of the peace, whether they be contrivers, procurers, or publishers of the libel; for such libels and defamations tend to the raising of quarrels and the effusion of blood" (Haylock v. Sparke, 17 J. P. 262; 1 E. & B. 471; 22 L. J. M. C. 67 ; 17 Jur. 731 ; and Phillips v. Gateshead JJ., Law Times newspaper, July 19th, 1879. As to language or conduct tending to produce a breach of the peace see Wise v. Dunning, 71 L. J. K. B. 165; [1902] 1 K. B. 167; 67 J. P. 212; 18 T. L. R. 85; 85 L. T. 721; 20 Cox C. C. 121).

The court will not grant a certiorari to quash a recognizance to keep the peace, or to be of good behaviour, although the party so bound has recovered damages in an action for malicious prosecution against the exhibitant (R. v. Groves, 8 L. T. 311). But see as to quashing a recognizance irregularly taken (Bent v. Ingle, 66 Law Times newspaper, 138).

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Sect. 25.

NOTE.

Sect. 25.

NOTE.

There is a diversity of opinion as to whether a warrant in the first instance can be granted for threats, as by this section the power of a court of summary jurisdiction to adjudge a person before it to enter into a recognizance and to find sureties is to be exercised by an order on complaint to which the S. J. Acts are to apply, and the 11 & 12 Vict. c. 43, does not authorise the issue of a warrant in the first instance upon a complaint. It is, however, considered by many magistrates that in grave cases, where serious personal violence following the threats may be apprehended, the authority given by the commission of the peace is sufficient to justify the issue of a warrant, and it may be mentioned here that this course is adopted by the magistrate at Bow Street police court, London, and at the Mansion House and Guildhall Justice Rooms. See the remarks on Surety of the Peace in Stone's Justices' Manual (38th ed.), p. 1043.

As to Crown Office practice in reference to articles of the peace, see The Practice of the Crown Office, by Short & Mellor, pp. 417 et seq. As to directing the treatment of a person imprisoned in default of finding sureties for the peace or good behaviour, see 60 & 61 Vict. c. 41, s. 6, post.

As to commission of the peace, see 11 & 12 Vict. c. 42, s. 1, post, and form of commission there given.

Before issuing the warrant of commitment, a copy of the minute of the order (signed by the clerk of the court) should be served on the defendant. See 11 & 12 Vict. c. 43, s. 17, ante, p. 92.

As to what is a petty sessional court, and what is a court of summary jurisdiction, see notes to s. 20, ante, p. 151, and the Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 13, post, in the Appendix.

See Form [20], Consolidated Forms, 1886, post.

26. Power of petty sessional court with respect to varying order for sureties.] Where a person has been committed to prison by a court of summary jurisdiction for default in finding sureties, any petty sessional court for the same county borough or place may on application made to them in manner directed by a rule made in pursuance of this Act by him or by some one acting on his behalf, inquire into the case of the person so committed, and if upon new evidence produced to such court or proof of a change of circumstances the court think, having regard to all the circumstances of the case, that it is just so to do, they may reduce the amount for which it is proposed the sureties or surety should be bound, or dispense with the sureties or surety, or otherwise deal with the case as the court may think just.

The mode of application under this section is given in r. 17 of the Summary Jurisdiction Rules of 1886, post.

See Forms [4 and 43] of Consolidated Forms, 1886, post.

27. Regulations as to indictable offences dealt with summarily.] Where an indictable offence is under the circumstances in this Act mentioned authorised to be dealt with summarily,

(1) The procedure shall, until the court assume the power to deal with such offence summarily, be the same in all respects as if the offence were to be dealt with throughout as an indictable offence, but when and so soon as the court assume the power to deal with such offence summarily, the procedure shall be the same from and after that period as if the offence were an offence punishable on summary conviction and not on indictment, and the provisions of the Acts relating to offences punishable on summary conviction shall apply accordingly; and

(2) The evidence of any witness taken before the court assumed the said power need not be taken again, but every such witness shall, if the defendant so require it, be recalled for the purpose of crossexamination; and

(3) The conviction for any such offence shall be of the same effect as a conviction for the offence on indictment, and the court may make the like order for the restitution of property as might have been made by the court before whom the person convicted would have been tried if he had been tried on indictment; and

(4) Where the court have assumed the power to deal with the case summarily, and dismiss the information, they shall, if required, deliver to the person charged a copy certified under their hands of the order of such dismissal, and such dismissal shall be of the same effect as an acquittal on a trial on indictment for the offence; and

(5) The conviction shall contain a statement either as to the plea of guilty of an adult, or in the case of a child as to the consent or otherwise of his parent or guardian, and in the case of any other person of the consent of such person, to be tried by a court of summary jurisdiction; and

(6) The order of dismissal shall be transmitted to and filed by the clerk of the peace in like manner as the conviction is required by the Summary

Sect. 27.

Sect. 27.

Jurisdiction Act, 1848, to be transmitted and filed, and together with the order of dismissal or the conviction, as the case may be, there shall be transmitted to and filed by such clerk in each case the written charge, the depositions of the witnesses, and the statement, if any, of the accused.

See ss. 10, 11, 12, and 13 of this Act, ante, as to the circumstances under which indictable offences are authorised to be dealt with summarily, and 11 & 12 Vict. c. 43, s. 1, et seq., ante; and as to the procedure upon indictable offences, see 11 & 12 Vict. c. 42, post.

For Forms, see [14, 15, 16, 21, 22, and 23] Consolidated Forms, 1886, post.

Section 14 of 11 & 12 Vict. c. 43, ante, p. 74, enacts that, when the conviction is drawn up by the justice or justices, in proper form under his or their hand and seal, or hands or seals, he or they shall cause the same to be lodged with the clerk of the peace to be by him filed among the records of the general quarter sessions of the peace, but see note to that section.

With regard to sub-s. (3), it should be noted that the Larceny Act, 1861 (24 & 25 Vict. c. 96), s. 7, imposed penal servitude on the offence of simple larceny after a previous conviction of felony whether upon indictment or under the repealed statute, the Criminal Justice Act, 1855 (18 & 19 Vict. c. 126).

A similar provision has not been made for a previous conviction under the S. J. Act, 1879. Sir Harry Poland was of opinion that s. 7 of the Larceny Act, 1861, must be read as if ss. 12 and 13 of the S. J. Act, 1879, were substituted for 18 & 19 Vict. c. 126 (48 J. P. 297).

In order to encourage the prosecution of offenders, it has been enacted by s. 100 of the Larceny Act, 1861 (24 & 25 Vict. c. 96), as to Restitution and Recovery of Stolen Property as follows:

If any person guilty of any such felony or misdemeanor as is mentioned in this Act, in stealing, taking, obtaining, extorting, embezzling, converting or disposing of, or in knowingly receiving, any chattel, money, valuable security, or other property whatsoever, shall be indicted for such offence, by or on behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his representative; and in every case in this section aforesaid the court before whom any person shall be tried for any such felony or misdemeanor 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.

The 3rd sub-section of s. 27 of the S. J. Act, 1879, provides for the restitution of stolen property on a summary conviction in like manner as might have been made by the court if the offender had been tried on indictment.

NOTE.

Sales of Stolen Goods not in Market Overt.-As a general Sect. 27. rule a person who buys goods otherwise than in market overt, acquires no better title than that possessed by his immediate vendor, even though such purchaser buys bona fide, without notice of any infirmity of title on the part of such vendor, and therefore if they were sold by a person who found them the owner may recover them from the buyer, and if they were stolen the owner may recover them from such purchaser, although the thief has not been convicted. As to this subject generally, see Addison on Torts, and Chitty on Contracts; and Hardman v. Booth, 1 H. & C. 803.

Market overt in the City of London means a sale by a shopkeeper of goods usually sold by him, and which are exposed for sale to the public in a shop therein, on every day except Sunday, but does not include a sale to a shopkeeper (Crane v. London Dock Co., 5 B. & S. 313). In the country, market overt is only held on certain customary days and at certain customary places. As to the sale of stolen horses in market overt, see statute 2 & 3 P. & M. c. 7, and 31 Eliz. c. 12.

Sales of Stolen Goods in Market Overt.-Under the repealed statute 7 & 8 Geo. 4, c. 29, s. 57 (which was in similar terms to 24 & 25 Vict. c. 96, s. 100, above), it was held that the property in a stolen chattel, although sold in market overt, re-vests in the owner on the conviction of the felon, though there has been no order of restitution by the court, and the owner may maintain trover for such chattel (Scattergood v. Sylvester, 15 Q. B. 506; 19 L. J. Q. B. 447; 14 Jur. 977), Lord CAMPBELL, C.J., saying: "In this case it is admitted that sale in market overt would be no answer to the action if an order of restitution had been made. We are now to determine what is the consequence of the want of such order. On reference to the statutes we are satisfied that the property is re-vested on conviction. The order is not a condition precedent to the re-vesting of the property." See also Horwood v. Smith, 2 T. R. 750. And goods innocently bought in market overt are the property of the purchaser till conviction of the thief, and the bona fide purchaser cannot claim from the owner the cost of the keep of animals so purchased by him (Walker v. Matthews, 8 Q. B. D. 105; 46 L. T. 915; 51 L. J. Q. B. 243; 30 W. R. 338).

Restitution. The compensation of an innocent purchaser is provided for by the Criminal Law Amendment Act, 1867 (30 & 31 Vict. c. 35), s. 9 of which enacts in effect that where any person shall be convicted, either summarily or otherwise, of larceny or other offence which includes the stealing of any property, and it shall appear that such property was sold by the prisoner to some person who bought it innocently, the court may order such a sum of money from that, if any, found on the prisoner on his apprehension as does not exceed the amount of the proceeds of such sale to be given to such innocent purchaser. The order of restitution may be made against a person who purchased from the thief if the

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