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11 & 12 Vict. c. 43.

Where no remedy given in default of distress.

Where there is
no remedy for
enforcing pay-
ment;
by distress;

Sect. 22, after reciting that by some acts of parliament justices of the peace are authorized to issue warrants of distress to levy penalties or other sums recovered before them by distress and sale of the offender's goods, but no further remedy is thereby provided in case no sufficient distress be found whereon to levy such penalties, enacts, that in all such cases, and in all cases of convictions or orders where the statute on which the same are respectively founded provides no remedy in case it shall be returned to a warrant of distress thereon that no sufficient goods of the party against whom such warrant shall have been issued can be found, it shall nevertheless be lawful for the justice to whom such return is made, or to any other justice of the peace for the same county, &c. if he or they shall think fit, by his warrant as aforesaid, to commit the defendant to the house of correction or common gaol as aforesaid for any term not exceeding three calendar months (g), unless the sum or sums adjudged to be paid, and all costs and charges of the distress, and of the commitment and conveying of the defendant to prison (the amount thereof being ascertained and stated in such commitment), shall be sooner paid. The form of commitment will be (N 5), ante, p. 113.

Where a conviction adjudges a pecuniary penalty or compensation to be paid, and by the statute in that behalf no mode of raising or levying such penalty, &c. or of enforcing the payment of the same (h), is stated or provided; by section 19, a warrant of distress must be issued to levy the same; the forms of proceedings will therefore be the same as where the statute provides for levying penalties, &c. by distress, ante, p. 112, &c. ; the imprisonment in default would, in such a case, be (under the 22nd section above) for not exceeding three calendar months, unless sooner paid.

2. Enforcing Orders on Complaints.

The several forms of Orders (K 1 to 3), given in the schedule to 11 & 12 Vict. c. 43, here applicable are given ante, pp. 99-101.

(g) Hard labour cannot be added to the imprisonment.

(h) The last session furnishes an instance in the New Beer Act (11 & 12 Vict. c. 49), as well as many previous statutes, where no mode of proceeding is enacted at all. Where the legislature intends that the penalty shall be recovered under the 11 & 12 Vict. c. 43, by distress, &c., future acts need not contain any procedure clauses whatever; in this respect our statute law will be much shortened and simplified.

Any one justice may enforce an Order (s. 29).

served.

It will be seen by section 17, ante, p. 95, that a copy of the Minute of order minute of the order must be served upon the defendant before to be first the order is enforced in any way. An order of justices for payment of money may be bad in part and good for the residue (R. v. Green, 20 Law J. M. C. 168; R. v. Winster, 19 Law J. M. C. 185); but a second order cannot, like a conviction, be drawn up and substituted for one which is found to be defective or informal (R. v. Cheshire, 5 B. & Ad. 439).

Sect. 24, ante, p. 105, equally applies to where an order Where imprimade is not for the payment of money, but for the doing of sonment only. some other act, and directs that in case of the defendant's

neglect or refusal to do such act, he shall be imprisoned, or imprisoned and kept to hard labour; a commitment issues, and also a distress warrant for the costs as under a Conviction.

on

To the constable of

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FORMS.

and to the keeper of the [house of cor- (P 2) Commitin the said [county] of·

in

rection] at Whereas on last past complaint was made before the undersigned, [one] of her Majesty's justices of the peace in and for the said county of for that [&c. as in the order], and afterwards, to wit, at the said parties appeared before me [or as it may be in the order], and thereupon having considered the matter of the said complaint, I adjudged the said A. B. to [&c. as in the order], and that if, upon a copy of the minute of that order being duly served upon the said A. B., either personally or by leaving the same for him at his last or most usual place of abode, he should neglect or refuse to obey the same, it was adjudged that in such case the said A. B. for such his disobedience should be imprisoned in the [house of correction] at the said county [and there kept to hard labour] for the space of [unless the said order should be sooner obeyed]: And whereas it is now proved to me that after the making of the said order a copy of the minute thereof was duly served upon the said A. B., but he then refused [or "neglected"] to obey the same, and hath not as yet obeyed the said order: These are therefore to command you, the said constable of to take the said A. B., and him safely to convey to the [house of correction] at aforesaid, and there to deliver him to the keeper thereof, together with this precept; and I do hereby command you the said keeper of the said [house of correction], to receive the said A. B. into your custody in the said [house of correction], there to imprison him [and keep him to hard labour] for the space of -, and for so doing this shall be your sufficient warrant. Given [&c. as (N 1), ante, p. 112].

ment.

To the constable of and to all other peace officers in the said (P 4) Warrant [county] of of distress for Whereas on last past complaint was made before the under- the costs. signed, [one] of her Majesty's justices of the peace in and for the said

(P 5) Commit

ment for want of distress.

Where impri

sonment in de

fault of payment of a sum in the first instance.

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county of for that [&c. as in the order], and afterwards, to wit,
on, at the said parties appeared before me as such justice
as aforesaid [or as it may be in the order], and thereupon, having con-
sidered the matter of the said complaint, I adjudged the said A. B. to
[&c., as in the order]; and that if upon a copy of the minute of that
order being served upon the said A. B., either personally or by leaving
the same for him at his last or most usual abode, he should neglect or
refuse to obey the same, I adjudged that in such case the said A. B.
for such his disobedience should be imprisoned in the [house of correc-
tion] at in the said [county, and there kept to hard labour] for
the space of [unless the said order should be sooner obeyed]; and
I thereby also adjudged the said A. B. to pay to the said C. D. the
sum of
for his costs in that behalf; and I ordered that if the said
sum for costs should not be paid [forthwith] the same should be levied
of the goods and chattels of the said A. B.; [and in default of suf-
ficient distress in that behalf I thereby adjudged that the said A. B.
should be imprisoned in the said [house of correction and there kept to
hard labour] for the space of, to commence at and from the
termination of his imprisonment aforesaid, unless the said sum for
costs, and all costs and charges of the said distress, and of the com-
mitment and conveying of the said A. B. to the said [house of correc-
tion], should be sooner paid]: And whereas after the making of the
said order a copy of the minute thereof was duly served upon the said
A. B., but the said A. B. did not then pay, nor hath he paid the said
for costs, or any part thereof, but therein hath made
default: These are therefore to command you, in her Majesty's name,
forthwith to make distress of the goods and chattels of the said A. B.,
and if within the space of days next after the making of such
distress the said last-mentioned sum, together with the reasonable
charges of taking and keeping the said distress, shall not be paid, that
then you do sell the said goods and chattels so by you distrained, and
do pay the money arising from such sale to the clerk of the

sum of

justices of the peace for the division of in the said [county], that he may pay the same as by law directed, and may render the overplus, if any, on demand, to the said A. B.; and if no such distress can be found, then that you certify the same unto me, to the end that such proceedings may be had therein as to the law doth appertain. Given [&c. as (N 1), ante, p. 112].

[Vide (N 3) and (N 4), indorsement to execute in another jurisdiction, and constable's return of no effects, ante, p. 82.]

This form is at p. 108.

[Vide form of commitment forthwith for the costs, No. 64, p. 56, "Formulist."]

Sect. 23, ante, p. 108, applies also to where an order is for the payment of money, and the statute makes no provision for such sum being levied by distress; a commitment issues, which includes the costs, as upon a conviction.

FORM.

on

To the constable of

at

and to the keeper of the [house of cor- (O 2) Commitin the said [county] of ment immediate

in

rection] at Whereas on last past complaint was made before the under- or after time signed, [one] of her Majesty's justices of the peace in and for the said given. County of for that [&c. as in the order], and afterwards, to wit, the parties appeared before [me] the said justice [or as it may be in the order], and thereupon having considered the matter of the said complaint, I adjudged the said A. B. to pay to the said C. D. the sum of on or before the day of then next, and also to pay to the said C. D. the sum of for his costs in that behalf; and I also thereby adjudged that if the said several sums should not be paid on or before the day of then next, the said A. B. should be imprisoned in the [house of correction] at the said county [and there kept to hard labour] for the space of unless the said several sums [and the costs and charges of conveying the said A. B. to the said house of correction] should be sooner paid: And whereas the time in and by the said order appointed for the payment of the said several sums of money hath elapsed, but the said A. B. hath not paid the same or any part thereof, but therein hath made default: These are therefore to command you the said constable of - to take the said A. B. and him safely convey to the said [house of correction] at aforesaid, and there to deliver him to the keeper thereof, together with this precept; and I do hereby command you the said keeper of the said [house of correction] to receive the said A. B. into your custody in the said [house of correction], there to imprison him and keep him to hard labour] for the space of unless the said several sums [and the costs and charges of conveying him to the said house of correction, amounting to the further sum of

-], shall be sooner paid unto you the said keeper, and for your so doing this shall be your sufficient warrant. Given [&c., as (N 1), ante, p. 112].

Where the sum

Sect. 19, ante, p. 109, applies equally to cases where an order 11 & 12 Vict. requires payment of a sum of money, and by the statute autho- c. 43. rizing such order such sum is to be levied by distress; a war- is to be levied rant of distress ((N 2), infra) should issue in the usual manner, by distress, and and the proceedings throughout would be the same as on a imprisonment conviction, and the observations thereon, ante, pp. 110-112, as to the manner of levying the distress, &c. would be applicable here.

in default.

FORM.

warrant.

To the constable of and to all other peace officers in the said (N 2) Distress [county] ofWhereas on last past a complaint was made before the undersigned, [one] of her Majesty's justices of the peace in and for the said county of for that [c., as in the order], and afterwards, to wit, the said parties appeared before me [or as in the order], and thereupon having considered the matter of the said com

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* Form (N 5), ante, p. 113.

plaint, I adjudged the said A. B. to [pay to the said C. D. the sum of on or before the then next], and also to pay to the said C. D. the sum of for his costs in that behalf; and I thereby ordered that if the said several sums should not be paid on or before the said then next, the same should be levied by distress and sale of the goods and chattels of the said A. B.; and it was adjudged that in default of distress in that behalf the said A. B. should be imprisoned in the [house of correction] at in the said county [and there kept unless the said several sums, and

and

hath

to hard labour] for the space of
all costs and charges of the distress, [and of the commitment and con-
veying of the said A. B. to the said house of correction], should be
sooner paid: And whereas the time in and by the said order appointed
for the payment of the said several sums of
elapsed, but the said A. B. hath not paid the same or any part thereof,
but therein hath made default: These are therefore to command you,
in her Majesty's name, forthwith to make distress of the goods and
chattels of the said A. B.; and if within the space of

days after
the making of such distress the said last-mentioned sums, together with
the reasonable charges of taking and keeping the said distress, shall
not be paid, that then you do sell the said goods and chattels so by
you distrained, and do pay the money arising from such sale unto
the clerk of the justices of the peace for the division of
- in the
said [county], that he may pay and apply the same as by law directed,
and may render the overplus, if any, on demand, to the said A. B.;
and if no such distress can be found, then that you certify the same
unto me, to the end that such proceedings may be had therein as to
the law doth appertain. Given [&c., as (N 1), ante, p. 112].

Where no re

medy given in default of distress,

or where there is no remedy for enforcing payment.

Costs on dismissal.

In these cases sects. 22, p. 114, and 19, p. 109, on convictions, will also apply to orders for payment of sums of money (i).

The form of commitment to be used where no remedy given by the statute in default of distress will be (N 5), p. 113, adapted to an order, as in "Formulist," No. 71, p. 59, and where there is no remedy provided by the particular statute for enforcing payment, the distress warrant will be as (N2), supra.

3. Enforcing Costs on Dismissal of Information or Complaint. It will be seen, ante, p. 80, that the costs on the dismissal of an information or complaint are recovered by distress, and in default thereof, imprisonment for not exceeding one calendar month. For forms, see ante, pp. 81-83.

(i) The repealed statute 5 Geo. 4, c. 18, s. 1, only applied to penalties, and not to other sums of money, such as wages, and in the latter cases there formerly could be no imprisonment in default of distress (Wiles v. Cooper, 5 N. & M. 276).

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