Besides fine or imprisonment or both, the court may adjudge a defendant to enter into a recognizance to keep the peace, or for good behaviour, with or without sureties, at the expiration of his imprisonment, or upon payment of his fine, and that he be imprisoned until such recognizance be given. In such a case, notice of the sureties must be given to the prosecutor's attorney a reasonable time before; and at the time mentioned in the notice, the recognizance may be taken before any justice of the peace who can attend for that purpose, at the prison, and it must then forthwith be transmitted to the crown-office. Judgment, when and how signed, &c.] The postea being indorsed on the nisi prius record, and produced at the crownoffice in four days after the return of the distringas, or at any subsequent time, judgment will be marked thereon by the master or assistant-master, unless a rule shall have been obtained for a new trial, or for judgment non obstante verdicto, or in arrest of judgment, in cases wherein such rules may, by the practice of the court, be obtained. Reg, 19. Pay for the first defendant, 7s.; for every other, 3s. 6d. No rule for judgment is necessary. Reg. 20. Either party may at any time have the roll made up, to the judgment inclusive, and in the meantime, all the proceedings, with their respective dates, are entered in a book at the crownoffice. Reg. 15. In the caption of the indictment, in the commencement of the entry on the roll, it is not necessary to state the names of the grand jurors; it is sufficient to say that the indictment was found by twelve good and lawful men. Aylett v. R. in error, 3 Bro. P. C. 529. As to writs of error, see post. Final Judgment, after Judgment by Default. After the entry of the judgment by default.-And because the court of our said Lady the Queen now here, is not as yet advised about giving their judgment of and upon the premises whereof the said J. N. is so convicted as aforesaid, day is therefore given as well to the said C. F. R., who prosecuteth for our said Lady the Queen in this behalf, as to the said J. N., until the day of - [the first day of next term, or if judgment is given in the next term, the day judgment is given], before our said Lady the Queen at Westminster, to hear their judgment SECTION XIX. Execution. In what cases, &c.] The court of Queen's Bench has power to award execution, not only against those who are attainted or sentenced there, but also against persons attainted in parliament, or any other court of record, the record of their attainder or a transcript thereof being first removed there, and the parties brought thither by habeas. 2 Hawk. c. 51, s. 1. And the attorney-general, upon motion, is entitled as of course to a habeas corpus and certiorari, to bring up a prisoner and the record of his conviction, in a case of felony. R. v. Garside, 2 Ad. & El. 266. Where persons convicted of murder were brought up to the court of Queen's Bench by habeas, and the record removed by certiorari, the court gave the prisoners three days time to examine the record, and to instruct counsel to show cause why execution should not be awarded against them. Id. In the same case, afterwards, the prisoners insisting on having the benefit of a free pardon, which had been promised by a proclamation, and which the court held could not be pleaded as a pardon, the court in their discretion deferred the awarding of execution upon the sentence, until the prisoners should have had time to apply to the secretary of state for a pardon, according to the terms of the proclamation. Id. The court of Queen's Bench has authority to order the sheriff of any county in England or Wales, to carry into execution their sentence, or the sentence of any other court, even sen tence of death, where the record and prisoner has been removed here. R. v. Garside, supra. And they may order this, without writ, if they will. 2 Hawk. c. 51, s. 4. For a fine.] If the judgment be that the defendant pay a fine, it may be levied by writ of levari facias if against the inhabitants of a parish, &c., or by fieri facias against an individual, which may be obtained upon affidavit. Engross the writ on parchment, indorse on it the name and address of the attorney suing it out, and the place of abode and additions of the defendant, get it signed, sealed and entered at the crownoffice (pay 5s.), and deliver it to the sheriff to be executed. In case of imprisonment.] If the judgment be, that the defendant be imprisoned,-if he be already in custody of the gaoler by whom he is to be imprisoned, the rule for sentence is merely lodged with the gaoler, and the defendant is thenceforth in custody in execution. But if he is to be imprisoned elsewhere, then he is remanded to the Queen's prison in the first instance, and the rule for sentence lodged with the keeper; and afterwards the prosecutor, or the prisoner himself, may have him removed to the proper custody by virtue of the rule for sentence, without habeas, for the residue of the term, the prosecutor paying the costs of the removal. But if the defendant be out of custody,-then, if he be under recognizance, and, after notice to him and his bail, he do not surrender, his recognizance may be estreated. See ante, p. 104. And whether he be under recognizance or not, or the recognizance be estreated or not, the prosecutor, on obtaining from the crown-office a certificate of the conviction, may obtain a judge's warrant for his apprehension. Or, the prosecutor may proceed by ca. sa., and so to outlawry. The outlawry after judgment is the same as is mentioned ante, p. 47, except that the ca. sa. is the first writ sued out, and there is no necessity for an alias and pluries; 2 Hawk. c. 27, s. 111; and except that there is no writ of proclamations in outlawry after judgment. 2 Hawk. c. 27, s. 127. For a nuisance, forcible entry, &c.] If upon an indictment for a nuisance, the court give judgment that the nuisance be abated, you may sue out a writ de nocumento amovendo, and deliver it to the sheriff to be executed. Upon an indictment for a forcible entry, if restitution be awarded by the judgment, or be ordered otherwise by the court, you may sue out a writ of restitution, and deliver it to the sheriff to be executed. If the inhabitants of a parish be convicted of not repairing a highway, you may from time to time sue out a distringas until the road is put in proper repair. Writ, how tested and returnable.] Every writ of execution may be tested as of the day on which it actually issues, and may be made returnable either on a day certain in term, or immediately after the execution thereof; and the party suing forth the same, shall indorse thereon the place of abode and addition of the party against whom the same is issued, or such other description of him as such party suing out such writ may be able to give. Reg. 10. Levari Facias. VICTORIA, &c. To the sheriff of , greeting: Whereas sometime ago, that is to say, on the day of -, in the year of our reign, [at the assizes and general session of oyer and terminer, holden at in and for our county of before Sir J.P., knight, one of our justices, assigned to hold pleas before us, Sir J. G., knight, one of our barons of our court of Exchequer, at Westminster, our justices assigned to deliver our gaol of the said county of - of the prisoners therein being, and also to hear and determine all felonies, trespasses, and other evil doings committed within the same county,] by the oath of twelve good and lawful men of the said county of, then and there sworn, and charged to inquire for us and the body of the said county, it was presented as follows, that is to say: [Here set out the indictment.] Which said indictment we afterwards, for certain reasons, caused to be brought before us, to be determined, according to the law and custom of England, and such proceedings were thereupon had in our court before us, upon the said indictment, that the inhabitants of the said parish of — by a jury of the country taken between us and the said inhabitants, stand convicted of the trespasses and nuisances above specified and charged upon them in and by the said indictment, in manner and form as in and by the said indictment is alleged against them; And whereas it hath thereupon been considered and adjudged in our court before us, that the inhabitants of the said parish, for their offences aforesaid, should pay a fine of pounds of lawful money of Great Britain, [according to the rule of court for fine], and that such fine should be paid into the hands of, of, to be by him applied, pursuant to the directions of the statute in such case made and provided, as in our court before us appears upon the record: We therefore command you, that of the goods and chattels, lands and tenements of the said inhabitants of the said parish of, you levy and cause to be levied the sum of pounds, being the fine so imposed upon them, in our said court before us, for their said offences, whereof they are indicted and convicted as aforesaid, and that you pay the said fine, when levied, into the hands of the said- to be by him applied to the repair of the said [several] highways, so as aforesaid, in decay and out of repair, pursuant to the directions of the statute in such case made and provided; and how you shall have executed this our writ, make known to us at Westminster, on-the day of, then returning to us this our said writ; and this you are not to omit. Witness, Thomas Lord Denman, at Westminster, the day of, in the year of our reign. By the Court. VICTORIA, &c. To the sheriff of greeting: Whereas on the day of at &c. [recite the caption of the indictment and the indictment, as in the levari, supra], which said indictment we afterwards, for certain reasons, caused to be brought before us, to be determined according to the law and custom of England. And whereas thereupon afterwards, that is to say, at the assizes holden atin and for the county of -, on the day of, in the year of our reign, before and justices, &c., upon the trial of the issue joined between us and the said J. N., he the said J. N. was in due manner convicted of the matters contained in the said indictment, in manner and form as in and by the said indictment was alleged against him, as in our court before us doth more fully appear upon record. Whereupon on the day of " in the year of our reign, it was adjudged in and ordered by our said court before us, that the said J. N., for the nuisances aforesaid charged upon him by the said indictment, whereof he was so convicted as aforesaid, should pay a fine of, and that such nuisances should be abated, as in our said court before us also appeareth upon record. We therefore command you, that the said so erected and built upon the said highway, at the parish of the said county of, and so as aforesaid continued, as in the said indictment mentioned, you do without delay remove, or cause to be removed. And how you shall execute this our writ, make known to us at Westminster, on the day ofnext, then returning to us this our said writ. Witness, Thomas Lord Denman, at Westminster, the day of in the year of our reign. By rule of Court. By the Court. |