NOTE.

420; 24 W. R. 883). In this case ARCHIBALD, J., said: "The Sect. 35. proviso in section 5, I take to mean that when once there has been an imprisonment of the debtor it is a satisfaction of the debt to this extent, that the creditor cannot take the person of his debtor again for the debt, but that it is not a satisfaction so as to prevent his taking the goods and chattels of the debtor." See as to costs on appeal to quarter sessions recoverable under this section, R. v. Pratt, ante, in pp. 102, 111.

By the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), s. 681 (2), sums of money as therein specified may be recovered as civil debts. As to the meaning of this sub-section, see the judgment of CHANNELL, J., in R. v. Stewart, 68 L. J. Q. B. 582.

Imprisonment of married woman.—It was held in In re Clara Walker, 55 J. P. 551, that a married woman cannot be imprisoned for non-payment of costs in a civil proceeding in a county court. See also note to s. 6, ante. For county court procedure, see the Yearly County Court Practice.

See the S. J. Rules, 1886, post, Nos. 19-29, and forms in Part II. of the Consolidated Forms, 1886, post.

36. Summons of witness when out of the jurisdiction of a court of summary jurisdiction.] Where a court of summary jurisdiction for any county borough or place would have power to issue a summons to a witness, if such witness were within the said county borough or place, and such witness is believed to be within some other county borough or place in England, such court may issue a summons to such witness in like manner as if such witness were within the jurisdiction of such court; and any court of summary jurisdiction for the county borough or place in which the witness may be, or be believed to be, may, on proof on oath, or such solemn declaration as provided by this Act, of the signature to the summons, endorse the summons, and the witness, on service of the summons so endorsed and on payment or tender of a reasonable amount for his expenses, shall obey the summons, and in default shall be liable to be apprehended or otherwise proceeded against either in the county borough or place in which the summons was issued, or in that in which the witness may happen to be, in manner directed by the Summary Jurisdiction Act, 1848 (11 & 12 Vict. c. 43), as if such witness had been duly summoned by a court of summary jurisdiction for the county borough or place in which such witness is apprehended or proceeded against.

For the mode of compelling a witness to attend a court of summary jurisdiction, see 11 & 12 Vict. c. 43, s. 1, ante, p. 1, and s. 7, ante, p. 37, and notes respectively.

Sect. 36.

NOTE.

As to service of process in Scotland, see 44 & 45 Vict. c. 24, s. 4, post, and notes thereon.

One justice may endorse the summons. See definition of "court of summary jurisdiction" in the Interpretation Act, 1889, s. 13 (11), post, and he need not sit in open court for the purpose, as he is not hearing, etc., a case arising under this Act. As to proof of signature, etc., see s. 41, post.

See Forms [7 and 35] of Consolidated Forms, 1886, post.

37. Summons or warrant not avoided by death of justice, etc.] A warrant or summons issued by a justice of the peace under the Summary Jurisdiction Act, 1848, or any other Act, whether past or future, or otherwise, shall not be avoided by reason of the justice who signed the same dying or ceasing to hold office.

Death of informer in criminal proceedings causes no abatement. See R. v. Truelove, ante, pp. 20, 89.

38. Bail of person arrested without a warrant.] A person taken into custody for an offence without a warrant shall be brought before a court of summary jurisdiction as soon as practicable after he is so taken into custody, and if it is not or will not be practicable to bring him before a court of summary jurisdiction within twenty-four hours after he is so taken into custody, a superintendent or inspector of police, or other officer of police of equal or superior rank, or in charge of any police station, shall inquire into the case, and, except where the offence appears to such superintendent, inspector, or officer to be of a serious nature, shall discharge the prisoner, upon his entering into a recognizance, with or without sureties, for a reasonable amount, to appear before some court of summary jurisdiction at the day, time, and place named in the recognizance.

This section applies to indictable as well as summary offences. It would appear to be reasonable to require a surety when a wrong name or address has been given by the accused person, or when he has no known place of abode.

This section is in similar terms to the provisions of the Metropolitan Police Act, 1839 (2 & 3 Vict. c. 47), ss. 70 and 71; further with regard to it, see the S. J. Act, 1884, s. 9, post, which removes doubts as to the effect of the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), s. 227, relative to the power of borough constables to take bail, and enacts that nothing in s. 227 is to be taken to have repealed s. 38 of this Act.

NOTE.

Section 227 enacts as follows: "(1) Where a person charged Sect. 38. with a petty misdemeanor is brought without a warrant of a justice into the custody of a borough constable during his attendance in a watch-house in the borough, at any time (by day or night) at which a justice is not actually sitting for the public administration of justice at the justices' room, or town hall, or other place used for that purpose in the borough, the constable may, if he thinks fit, take bail without fee from that person, by recognizance conditioned for his appearance for examination within two days before a justice in the borough at some time and place therein specified.

"(2) A recognizance so taken shall be of equal obligation on the parties entering into the same, and liable to the same proceedings for the estreating thereof, as if taken before a justice.

"(3) The constable shall enter in a book, kept for that purpose in every watch-house, the name, residence, and occupation of the person entering into the recognizance, and of his surety, or sureties, if any, with the condition of the recognizance, and the sums acknowledged.

"(4) The constable shall lay the book before the justice present at the time when and place where the recognizor is required to appear.

"(7) If the recognizor applies by any person on his behalf to postpone the hearing of the charge against him, and the justice thinks fit to consent thereto, the justice may enlarge the recognizance to such further time as he appoints.

"(8) When the matter is heard and determined, either by the dismissal of the charge, or by binding over the recognizor to answer the matter of the complaint at quarter sessions, or otherwise, the recognizance for his appearance before a justice shall be discharged without fee."

This section only applies to boroughs within the Municipal Corporations Act, 1882.

Form of Recognizance, No. [36] of Consolidated Forms, 1886, post.

39. Provisions as to proceedings, etc.] The following enactments shall apply to proceedings before courts of summary jurisdiction; (that is to say,)

1. The description of any offence in the words of the Act, or any order, byelaw, regulation, or other document creating the offence, or in similar words, shall be sufficient in law; and

2. Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany in the same section the description of the offence in the Act, order, byelaw, regulation, or other document creating the offence, may be proved by the defendant, but need not be specified or negatived in the

S. J.

information or complaint, and, if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the informant or complainant; and

3. A warrant of commitment shall not be held void by
reason of any defect therein, if it be therein alleged
that the offender has been convicted or ordered to
do or abstain from doing any act or thing required
to be done or left undone, and there is a good and
valid conviction or order to sustain the same; and
4. A warrant of distress shall not be deemed void by
reason only of any defect therein, if it be therein
alleged that a conviction or order has been made,
and there is a good and valid conviction or order
to sustain the same, and a person acting under a
warrant of distress shall not be deemed a trespasser
from the beginning by reason only of any defect in
the warrant, or of any irregularity in the execution
of the warrant, but this enactment shall not
prejudice the right of any person to satisfaction
for any special damage caused by any defect in or
irregularity in the execution of a warrant of dis-
tress, so however that if amends are tendered before
action brought, and if the action is brought are paid
into court in the action, and the plaintiff does not
recover more than the sum so tendered and paid
into court, the plaintiff shall not be entitled to any
costs incurred after such tender, and the defendant
shall be entitled to costs, to be taxed as between
solicitor and client; and

5. All forfeitures not pecuniary which are incurred in
respect of an offence triable by a court of summary
jurisdiction, or which may be enforced by a court
of summary jurisdiction, may be sold or disposed of
in such manner as the court having cognizance
of the case or any other court of summary juris-
diction for the same county borough or place may
direct, and the proceeds of such sale shall be applied
in like manner as if the proceeds were
a fine
imposed under the Act on which the proceeding for
the forfeiture is founded.

In Smith v. Moody, [1903] 1 K. B. 56; 67 J. P. 69; 72 L. J. K. B. 43; 87 L. T. 682; 19 T. L. R. 7, it was held that this section only

refers to the general description of the offence, and does not justify Sect. 39. the omission to specify the precise circumstances in which the particular defendant is alleged to have committed the offence.

40. Case from quarter sessions without certiorari.] A writ of certiorari or other writ shall not be required for the removal of any conviction, order, or other determination, in relation to which a special case is stated by a court of general or quarter sessions for obtaining the judgment or determination of a superior court.

As to this section, see 12 & 13 Vict. c. 45, s. 11, post; and see s. 10 of 20 & 21 Vict. c. 43, post.

41. Proof by declaration of service of process, handwriting, etc.] In a proceeding within the jurisdiction of a court of summary jurisdiction, without prejudice to any other mode of proof, service on a person of any summons, notice, process, or document required or authorised to be served, and the handwriting and seal of any justice of the peace or other officer or person on any warrant, summons, notice, process, or document, may be proved by a solemn declaration taken before a justice of the peace, or before a commissioner to administer oaths in the Supreme Court of Judicature, or before a clerk of the peace or a registrar of a county court; and any declaration purporting to be so taken shall, until the contrary is shown, be sufficient proof of the statements contained therein, and shall be received in evidence in any court or legal proceeding, without proof of the signature or of the official character of the person or persons taking or signing the same; and the fee, if any, for taking such declaration shall be such sum, not exceeding one shilling, as may be directed by rules made in pursuance of this Act, and any such fee shall be costs in the matter or proceeding to which it relates.

The declaration may be in the form provided by a rule under this Act, and if any declaration made under this section is untrue in any material particular, the person wilfully making such false declaration shall be guilty of wilful and corrupt perjury.

See r. 30, Forms [35, 46, and 47] of the S. J. Rules and Consolidated Forms, 1886, post.

As to service of process of English court in Scotland, and vice versá, see 44 & 45 Vict. c. 24, s. 4, post.

NOTE.