Warrant to issue in Petty Sessions.] There is no express provision in the Petty Sessions Act directing magistrates to issue their warrants in cases of summary conviction in petty sessions, but it would appear to be the intention of the legislature that their jurisdiction in this respect should be exercised in petty sessions. If the party be fined, and in default of payment, imprisonment is added in the conviction, the J. P.s may direct the imprisonment in the same warrant, and this should clearly be done in petty sessions; but in case a distress warrant issues in the first instance on default of payment on a conviction ordering imprisonment in default of payment, it would appear that the warrant to imprison should also be issued in petty sessions, and this construction seems fairly deducible from the 22nd & 23rd sections of the Petty Sessions Act (9).

Doubtful cases.] Where it was doubtful whether the convicting justices had power to issue a warrant of commitment, the Court of Q. B. would not grant a mandamus to compel them to do so (r). And in Ireland the Court of Q. B. refused to grant an order upon the magistrates to compel them to issue their warrant upon a conviction for an assault, it appearing that a question of title had been raised at petty sessions, although no objection had been taken to their jurisdiction until after conviction had been recorded, and which conviction was legal and valid upon the face of it (s).

Where party enters into recognizance, warrant not to issue.] If the party convicted gives notice of appeal and enters into the proper recognizance, the justice is not to issue any warrant to execute the order until the appeal has been decided, or the appellant has failed to perform the condition of the recognizance (t). But the justice should commit the offender to prison, for it is a condition precedent that he should enter into sureties to prosecute his appeal.

Committal on adjournments.] In the case of an adjournment

(2) See sec. 65 of Malicious Injuries Act, 24 & 25 Vic. c. 97.

(r) R. v. Twyford, 5 Ad. & E. 490 R. v. Godolphin, 8 A. & E. 338; ex parte Fuller, 8 Dowl. 355; re

;

Williams, 9 Q. B. 976; see R. v.
Codd, 9 A. & E. 682.

(8) R. v. O'Brien, 5 Ir. Jur. 132.
(t) 14 & 15 Vic. c. 93, s. 23.

of an offence, where an information on oath has been taken that the defendant is guilty of the offence, the justice may commit him to gaol by warrant (u) until the time of the hearing is to take place (v). Magistrates should be careful, if the defendant is committed to custody, that the adjournment be for a reasonable time, since, should such be ultimately unreasonable, they may render themselves liable to an action (w). Although a statute empowers justices to proceed immediately to the convic tion or acquittal of an offender, yet, by virtue of the 14 & 15 Vic. c. 93, s. 20, it would seem that he has power to adjourn the hearing and to issue a warrant for committal of the accused (x).

Committal on remand.] In indictable cases, if it becomes nceessary to defer the further examination of a witness, the justice before whom the prisoner is brought may by like warrant, from time to time, remand the accused to gaol for such time as he thinks expedient, and not exceeding eight clear days (y). This remand should be at the instance of the magistrate, and not of the prosecutor; for, if the giving into custody was wrongful, such remand at the instance of the latter would be ground for damages against the magistrate (z). It will be seen, therefore, that justices cannot remand for more than eight clear days at any one time, unless authorized by statute (a).

Distinction between remand and committal.] A remand is to be carefully distinguished from a committal. A person ought not to be committed for an offence until the depositions against him are complete, and show the whole corpus delicti on the face of them; whereas the person is remanded for further examination because the depositions are not complete, and do not shew the corpus delicti (b).

(u) See sched. to 14 & 15 Vic. c. 93, form E. B.

(v) 14 & 15 Vic. c. 93, s. 20.

(w) Davis v. Capper, 10 B. & C. 28, in which Lord Tenterden observes: "The duty of a magistrate is to commit for a reasonable time, and if he commits for an unreasonaable time, he does an act which he is not authorized by law to do."

(x) See Gelan v. Hall, 2 H. & N.

379.

(y) 14 & 15 Vic. c. 93, s. 14. (z) Locke v. Aston, 12 Q. B. 875. (a) Persons who cannot satisfactorily account for stolen property, may be remanded till the next day of holding petty sessions, 18 & 19 Vic., c. 126, s. 5.

(b) See R. v. Lord Mayor of London, 5 Q. B. 555.

Jailor to produce prisoner.] In cases of adjournments or remands, the keeper of the gaol in which the prisoner is committed is to produce him at the time and place fixed by the warrant for that purpose (c).

Cause of complaint should be stated.] The commitment should set forth with convenient certainty the particular offence with which the prisoner is charged, so that if an application be made by the party to be bailed or discharged, the court may know from the document whether the offence be bailable or not (d); and also that the party may know for what he suffers, and how he may regain his liberty (e). And if it be not, it is not only a ground for discharging the party, but the warrant is void, and no justification in an action of false imprisonment (f). The very nature of the warrant requires that it shall state the cause of the committal (g); and a warrant issued by a justice, founded upon an information which discloses no criminal offence, cannot be sustained by proof that there was in fact parol evidence on oath given, which conveyed a criminal charge (h). The same precision is not required in a commitment for safe custody before trial, nor is it construed with the same strictness as a commitment in execution (i). But a commitment of a party to answer generally to such things as shall be objected against him is utterly against law ().

Particularity in warrants in execution.] It is no ground of objection to a warrant that it differs in some particulars from the conviction, so long as it discloses substantially the same offence (k). But it should shew a good conviction (). The

(c) 14 & 15 Vic. c. 93, s. 25. (d) 2 Hawk. c. 16, s. 16.

(e) Groenvelt's case, 1 Ld. Raym.

213.

(f) Groome v. Forrester, 5 M. & Selw. 314, contrary to the dictum of Lord Holt, in Bracey's case, Comb. 391; see Daniell v. Phillips, 1 C. M. & R. 662.

(g) Lawrenson v. Hill, 10 Ir. C. L. R. 184; 1 Burns, J. P. 779; 1 Hale, Pc. p. 111, part 2, c. 13; 2 Inst. pp. 52, 591; and see the 21st & 22nd Answers of the Judges to the Articuli Cleri, 2 Inst. pp. 615, 616.

(h) Lawrenson v. Hill, sup.

(i) R. v. Gourlay, 7 B. & C. 669 R, v. Goodall, Say. 129; Elder-; ton, in re 6 Mod. 75.

(j) 2 Inst. 591; 1 Burn, 785; 1 Hale, 580.

(k) Barnes v. White, 1 New. Sess. Cas. 504; 1 C. B. 192, S. C.; Rogers v. Jones, 3 B. & C. 409; Wood r. Fenwick, 10 M. & W. 195; Charter v. Greame, 18 L. J. M. C. 73; 13 Q. B. 216, S. C.

(1) Re Peerless, 1 Q. B.; R. v. Chaney, 6 Dowl. 281; see further as to the offence being described with

Court of Q. B. will not criticise a warrant of commitment with the same strictness to which a conviction is subjected, if there be reasonable ground for presuming that the conviction (on which the commitment is founded) is free from objection (m); but no intendment can be made in support of a commitment (n). And if a warrant of commitment in execution, manifestly defective on the face of it, shows that there has been a conviction, the court will not notice the defect until the conviction is returned into court, if the defect be one that the conviction may cure, and if the applicant is in a position to remove the conviction by certiorari; and in such case, if the conviction be right, the defect in the commitment will be cured, provided the latter shews the like offence as is stated in the conviction (o). The commitment is to be read with the conviction, and construed the same way (p); and where the warrant gave an insufficient description of the offence, it was cured by a good conviction, which was put in evidence in an action brought against the magistrate (q). But where there is a material variance between the conviction and the recital of it in the warrant of commitment, as where the commitment is for an offence created by a different statute from that on which the defendant was convicted, although it may relate to the same subject matter, the commitment is bad (r).

Cause to be specified.] Every warrant of commitment must specify the cause and shew jurisdiction; and where it is in execution (which it is in all cases of commitment after conviction) it must allege the party to have been convicted of the offence (s).

certainty, R. v. Everett, Cald. Cas. 26; re Nesbitt, 9 D. & L. 529 ; R. v. Harpur, 1 D. & R. 222 ; R. v. Cavanagh, 1 Dowl. N. S. 546; R. v. Dugger, 5 B. & Ald. 791; R. v. Maby, 3 D. & R. 570.

(m) R. v. Rogers, 1 D. & R. 156; Paley on Conv. 281; R. v Helps, 3 M. & S. 331; re Reynolds, ib. 849.

(n) In re Geswood, 2 El. & Bl. 952; Eggington's case, id. 731.

(0) Paley Conv. 282; R. v. Taylor, 7 D. & R. 623; see R. v. Chaney, 6 Dowl. 281: re Allison, 18 Jur.

1055; 10 Exc. 561; re Reynolds, 1 D. & L. 846; Daniel v. Philipps, 5 Tyr. 293; 1 Cr. M. & R. 662.

(p) Tarry v. Newman, 15 M. & W. 645, 656; R. v. Mellor, 2 Dowl. 173.

(2) Stamp v. Sweetland, 8 Q. B. 13; see as to an order supporting a warrant; Coster v. Wilson, 3 M. & W. 411; Paley Conv. 283.

(r) Leary v. Patrick, 15 Q. B. 266; Wood v. Fenwick, 10 M. & W. 195.

(8) See form Eb, schedule to 14

A good conviction not presumed in support of commitment.] The court, however, will not assume a good conviction in support of the commitment (t). If the writ of certiorari be taken away from the applicant, prima facie the conviction will be taken to be such as is recited in the warrant of commitment; and it lies upon the party who asserts that it is in a different form, to bring it before the court (u).

Commitment for contempt.] If a justice sitting in any court or place is wilfully insulted, or if the person commits any other contempt of any such court, the justice may by any verbal order either direct such person to be removed or taken into custody, and at any time before the rising of such court by warrant commit such person to gaol for any period not exceeding seven days (v). It is not necessary to state in the commitment that the magistrate was wilfully insulted (w). It is said that wherever a J.P. is empowered by statute to bind a person over, or to cause him to do a certain thing, and such person, being in his presence, shall refuse to be bound, or to do such thing, the justice may commit him to gaol, to remain there for a specified time unless he shall sooner comply (x); he may also commit summarily or prosecute by indictment or information any one who assaults or insults (y) him in the execution of his office (2)

Where imprisonment ordered on default of distress.] In offence cases, where there is the option of fining (a) or imprisoning,

& 15 Vic. c. 93; re Peerless, 1 Q. B. 143; Eggington v. Mayor of Lichfield, 1 Jur. N. S. 908; R. v. Rhodes, 4 T. R. 220; R. v. Cooper, 6 T. R. 509; see R. v. Gourlay, 7 B. & C. 669; 1 M. & R. 616; Paley Conv. 278. (t) R. v. Tordoft, 5 Q. B. 933; R. v. Cavanagh, 1 Dowl. N. S. 547 ; R. v. King, 1 D. & L. 723.

(u) See Paley on Conv. 284; re Reynolds, 1 D. & L. 846, 851; R. v. Chaney, 6 Dowl. 281; see further as to substituting a more formal commitment for one already drawn up, R. v. Richards, 5 Q. B. 926; Lindsay v. Leigh, 11 Q. B. 455; re Fletcher, 1 D. & L. 726 ; R. v. Turk, 10 Q. B. 540; re Bell, 15 L. J. M. C. 25; in re Charles Smith, 3 & H.

N. 227; ex parte Cross, 2 id. 354.

(v) 14 & 15 Vic. c. 93, s. 9.

(w) Levy v. Moylan, 10 C. B. 189; 1 Prac. Rep. 307; 14 Jur. 983; 19 L. J. 308, C. P. It will be therefore sufficient to use the form of committal given in the schedule to P. S. Act, 1853, using the words "Whereas A. B. has been this day guilty of a contempt of the court, (specifying the cause minutely). This is to command you, &c. as in form Ea. (x) 2 Hawk. c. 16, s. 2. (y) R. v. Symonds, ca. t. Hardw.

240.

(2) R. v. How. Str. 699; R. v. Griffith, V. & S. 612; 2 Hayes, C. L. 463.

(a) See 14 & 15 Vic. c. 93, s. 22.