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II. (2.) Df enforcing Convictions. A justice can- R.v. Robinson, 2 Smith, 274. Mandamus to George Robinson
esquire, one of the justices, &c. for the county of Durham, compelled to enforce manding him to levy, or cause to be levied, a penalty in a certain conviction. conviction against one John Longstaff, &c. ; whereupon the said
George Robinson returned, that the within-named George Longstaff was, upon the complaint and information of the said Henry Barron, inspector of hides and skins for the market town of Sunderland near the sea, on the 24th of February, at Sunderland near the sea, convicted before him as such justice of the peace, which conviction is as follows : viz. “ Durham to wit: Be it remembered, that on the 24th of February 1804, George Longstaff, of Sunderland near the sea, in the county of Durham, butcher, was, upon the complaint of Henry Barron, inspector of raw hides and skins at Sunderland aforesaid, convicted before George Robinson esquire, one of the justices of the peace for the said county of Durham, in the mitigated penalty of 2001, in pursuance of acts passed in the 39th, and 40th, and 41st years of the reign of his majesty king George the third, or some of them, for sending from Sunderland aforesaid 100 sheep-skins, without first bringing the same to the said Henry Barron to be examined, inspected, and marked, at the usual place for that purpose, and without giving notice of his intention of carrying the same to any other places for examination, contrary to the said acts, or the one of them. Given under my hand and seal, &c. And I, the within-named G. R., do humbly certify, that the withinnamed J.L. hath not been convicted before me of any offence against the said acts of parliament, or either of them, as in the said writ of mandamus is above alleged, or otherwise howsoever except as aforesaid, wherefore, inasmuch as the said conviction is invalid in the law, and is not a conviction of any offence for which the mitigated penalty is payable, or can legally be levied by virtue of any law or statute whatsoever, and inasmuch as the said G. L. hath not been otherwise convicted of any offence whatsoever before me, the said justice, as within is supposed; I, the within-named G. R., have not levied nor caused to be levied the said penalty and forfeiture in the conviction above set forth mentioned, nor any such penalty or forfeiture as within supposed, or distributed the same as by the said writ I am commanded.”—Holroyd, for the defendant, stated, that the conviction was altogether bad, and therefore, the defendant ought not to be compelled to proceed upon it; the conviction, which ought to state an offence, either upon the 39 or 40 G. 3. c. 66. § 10. or the 41 G. 3. c. 53. $ 6. (a), was clearly defective, as it neither stated that the person resided within a market town or a district, nor that the informant was appointed inspector for Sunderland, nor that he was inspector at all at the time, nor that the raw hides belonged to the party convicted, nor that they were flayed in the market town.Carr, contrà, gave up the conviction, but insisted that the court would not inquire whether it was erroneous or not ; because the statute had appointed a method of redress by appeal to the sessions,
(a) Both these statutes were repealed by 5 G. 4. c. 57.
and had taken away the certiorari; and if the conviction should turn out to be so bad, then the party would not appeal, but leave the prosecutor to levy the penalty or bring his action of trespass : but here the fact was, that the magistrate heard the evidence and convicted Longstaff, and took minutes in order to draw up the conviction; and as he admits that the man was convicted, he ought to proceed to enforce that conviction.—Holroyd here said, that the conviction was drawn up according to the evidence and the original information.-Lord Ellenborough C.J.“ The magistrate cannot be right here ; I do not mean to say that there may not, however, be a venial error, and then it is right that he should stop immediately, as where, by some mistake, he has convicted a person improperly ; but where he has once fairly convicted a man, he ought to proceed to enforce that conviction. If it is altogether a nullity, the magistrate is not bound to proceed further, in order to subject himself to damages ; but it may be otherwise, if the conviction is merely informal.”— Lawrence J. “ If a man has proceeded to conviction for an offence of which the party is not guilty, it would be very hard indeed to compel him to enforce that conviction by warrant, when he would be likely to have an action brought against him for so enforcing it. It is said here, indeed, that this conviction is bad, and yet that it is drawn up according to the evidence. If so, it puts the magistrate in a dilemma; for he has either convicted a man of an offence of which he is not guilty, or he has drawn up a conviction which is bad.”—Judgment, that the return to the writ of mandamus is good and sufficient, &c.
It has already appeared, that by the provisions of the stat. 3 G. 4. 36. 4. c. 25. c. 25. § 2. (see anté, p. 685.), after an adjudication has been made A conviction by by any two justices authorized to hear and determine any com
two justices plaint, all subsequent proceedings to enforce obedience thereto, forced by either
may be enwhether respecting the penalty, fine, imprisonment, costs, or other of them, or by matter, may be enforced by either of the said justices, or other any other jusjustice for the same county.
tice for the same An investigation of the power of justices of the peace to enforce county. convictions in pecuniary penalties, by distress and sale, and the Enforcing by proper mode of doing so, will be found under tit. Distress (Of
distress. Distress by Warrant of Justices of the Peace).
A commitment to imprisonment, in order to enforce a conviction, Enforcing by is either a primary punishment of the party convicted, or only commitment. secondary to a pecuniary one, as the means of
compelling payment. In either aspect this authority in the convicting justice is derived entirely from special enactment, and is not any necessary consequence of the conviction itself. (See Paley, Conv. 175. 183. 2d edit.)
At common law, therefore, where a statute only gave the convicting justice power to issue his warrant to levy the penalty by distress and sale of the goods of the person convicted, the magistrate had no authority to commit the offender, in case no sufficient distress could be found.
But now, by stat. 5 G. 4. c. 18. § 2., reciting that “ by some 5 G. 4. c. 18. acts certain penalties or sums of money are to be recovered In cases where before a justice or justices of the peace, or a magistrate or magis- penalties are trates, and he or they is and are authorized to issue forth his recovered by or their warrant for levying such penalties or sums of money, by distress, but no
5 G. 4, c. 18.
vided where sufficient distress cannot be
tress warrant or
distress and sale of the goods and chattels of the offender or defend
ant; but no further remedy is provided in case no sufficient goods remedy pro- and chattels can be found whereon to levy such penalties or sums
of money;" it is enacted, “that whenever it shall appear to any
such justice or justices of the peace, magistrate or magistrates, by found, justices whom any penalty or sum of money is adjudged to be paid, upon may commit the the return of any such warrant of distress, that no sufficient goods offender, &c.;
and chattels of the offender or defendant can be found whereon to levy the sum adjudged to be paid, and all costs and charges, within
the jurisdiction of such justice or justices, magistrate or magiseither on re- trates; or in case it shall appear to such justice or justices, magisturn of the dis. trate or magistrates, either by the confession of the party or parties,
or otherwise, that he, she, or they have not sufficient goods and without pre
chattels within the jurisdiction of such justice or justices, magisvious warrant
trate or magistrates, sufficient whereon to levy such sum of money, of distress, in case it shall ap- costs, and charges; such justice or justices, magistrate or magispear that there
trates, at his or their discretion, and without issuing any waris no sufficient
rant of distress, may proceed in such and the like manner as if a distress.
warrant of distress had been issued, and a nulla bona returned thereon; and it shall be lawful for such justice or justices, or magistrate or magistrates, to issue forth his or their warrant for committing such offender or defendant to the common gaol, for any term not exceeding three calendar months, unless the sum adjudged to be paid, and all costs and charges of the proceedings, shall be sooner paid : Provided always, that the amount of such costs and expenses shall be specified in such warrant of com
mitment." If offender, $ 3. enacts, “ That in the case of any offender or offenders after committal committed to the common gaol or house of correction for default to prison, shall
of payment of such penalty or forfeiture, together with the reapay the amount of penalty, &c.
sonable costs and charges attending the conviction, if such offender to the keeper, or offenders shall at any time, during the period of his, her, or he shall be their imprisonment, pay or cause to be paid to the governor or forthwith dis
keeper of the prison, the full amount of such penalty, together charged.
with the costs and charges, it shall be lawful for such governor or keeper of such prison, and he or they are hereby required forthwith to discharge such offender or offenders from his or their custody.'
Again, at common law, where the statute authorizes the convicting justice to commit the offender, in case no sufficient distress can be found whereupon to levy the penalty, the justice could not legally commit, till he had ascertained the want of sufficient goods to answer the penalty by the officer's return of the distress warrant: nor was there, it should seem, any authority to detain the party in custody in the mean time, unless such a power were
specially provided by statute. 5 G. 4. c. 18. But now, by stat. 5 G. 4. c. 18. § 1., intituled An act for the more
effectual recovery of penalties before justices and magistrates on conviction of offenders, and for facilitating the execution of warrants by constables, reciting that, “ by several acts, certain penalties and forfeitures are imposed on persons for offences committed against the directions of such acts, which are directed to be recovered before any justice or justices of the peace, or any magistrate or magistrates, within their respective jurisdictions ; and on nonpayment thereof, such penalties and forfeitures, together with the 5 G. 4. c. 18. reasonable costs and charges attending the several convictions, are directed to be levied by distress and sale of the goods and chattels of the offender or offenders, by warrant under the hand and seal of such justice and magistrate respectively: and whereas no power is given to such justices and magistrates, on conviction of such offenders, to detain him, her, or them in custody till return is made to the warrant of distress, for the purpose of ascertaining whether such offenders have any goods and chattels to satisfy such penalties, forfeitures, costs, and charges, whereby such offenders frequently escape any punishment for their offences :" it is enacted, “that from and after the passing of this act Whenever a (31 March 1821), whenever any penalty or forfeiture is or shall be justice may en directed to be recovered before any justice or justices of the peace, force a penalty or magistrate or magistrates for any county, riding, soke, city, di- by distress and vision, or place, and such justice or justices of the peace, magis- sufficient distrate or magistrates, is or are authorized and empowered, on the tress by comconviction of the offender or offenders, in default of payment of mitment, the such penalty or forfeiture, together with the reasonable costs and justice may charges attending such conviction, to cause the same to be levied order the ofby distress and sale of the goods and chattels of the offender or detained until offenders, by warrant or warrants under the hand and seal of such the warrant of justice or magistrate, or hands and seals of such justices or magis- distress be trates, together with the reasonable costs of such distress and returned. sale ; and in case, upon a valuation being taken of the goods and chattels of the offender or offenders, sufficient distress for the payment of all such penalties and forfeitures and other costs and charges cannot be found, or in case it shall appear to such justice or justices, magistrate or magistrates, either by the confession of the offender or offenders or otherwise, that the offender or offend. ers has or have not sufficient goods or chattels whereupon the same may be levied, within the jurisdiction of such justice or justices, magistrate or magistrates, no sale shall take place of the goods and chattels of such offender or offenders, but it shall be lawful for such justice or justices, magistrate or magistrates, to commit such offender or offenders to the common gaol or house of correction, for such time and in such manner as in such acts respectively mentioned and directed; then and in every such case it shall and may be lawful to and for such justice or justices, magistrate or magistrates, at his or their discretion, to order the offender or offenders so convicted to be kept and detained in safe custody until return shall be made to such warrant or warrants of distress, unless such offender or offenders shall give sufficient security, to the satisfaction Unless security of such justice or justices, magistrate or magistrates, for his, her, be given. or their appearance before him or them on such day or days as shall be appointed for the return of such warrant or warrants of distress, such day or days not being more than eight days from the time of taking such security; and such security such justice or justices, magistrate or magistrates, is and are hereby empowered to take by way of recognizance or otherwise, as to him or them shall seem right and proper ; or in case it shall appear to the satis- In case it shall faction of such justice or justices, magistrate or magistrates, either appear that by the confession of the offender or offenders or otherwise, that he, there is no suf
5 G. 4. c. 18. jurisdiction of such justice or justices, magistrate or magistrates,
sufficient whereon to levy all such penalties and forfeitures, costs without a pre- and charges, such justice or justices, magistrate or magistrates, vious warrant of distress,
may, at his or their discretion, without issuing any warrant of disthe justice may
tress, commit the offender or offenders for such period of time, commit offender and in such and like manner, as if a warrant of distress had been
issued, and a nulla bona returned thereon.” Justices em- By $ 4., after reciting “Whereas cases may occur where the powered to coinmit to
recovery of such penalty or forfeiture by distress and sale of the prison without goods and chattels of the offender or offenders may appear to the issuing warrant justice or justices of the peace, or magistrate or magistrates for of distress in any county, riding, soke, city, division, or place, to be attended certain cases. with consequences ruinous, or in an especial manner injurious to the
offender or offenders and their family or families:" it is enacted, " that the justice or justices, and magistrate or magistrates aforesaid, shall be empowered, and they are hereby authorized, in all cases and upon all such occasions as to them shall seem fit, and where such consequences are likely to arise, to cause to be withheld the issue of any warrant or warrants of distress, and to commit the offender or offenders aforesaid immediately after conviction, and in default of payment of the penalty or forfeiture, with costs and charges, to the common gaol or house of correction, for
such time and in such manner as are in such acts respectively Consent of
mentioned and directed : Provided always, that it be by the departy.
sire or with the consent in writing of the party or parties upon whose property the penalty or forfeiture is to be levied.”
[As to the form of the commitment and other matters connected with this subject, see tit. Commitment.]
II. (3.) De resisting Convictions, By appeal. Those statutes which give a power of appeal to the party con
victed, frequently also provide, that, upon the appeal, and security given for prosecuting it, the distress shall be stayed till the determination of the appeal
. In such cases, after the appeal is decided, if the time limited for making the distress be expired, the magis. trate may, it seems, issue his warrant immediately, without any fresh demand; for the time runs from the order. But if the warrant has been issued before, and suspended by the appeal, it is better, after the decision of the appeal, to apply to the magistrate, and lay the facts before him, before proceeding to the execution of the warrant. Paley, Conv. 176.
[For the general law relating to this subject, see tit. Appeal.] By habeas cor- If there be any fault or illegality in the commitment alone, the
defendant may obtain his discharge by suing out a writ of habeas corpus, which may be granted by any of the superior courts of Westminster in term time, or by a judge of any of those courts in vacation, directed to the gaoler, &c. in whose custody the defendant is detained. (See further on this subject, tit. Habeas
Corpus.) By certiorari. But if the defect be not on the face of the commitment, but in
the conviction, the defendant, besides a writ of habeas corpus to bring up the warrant, must likewise sue out a certiorari directed to the convicting magistrate, or to the sessions, if the conviction