CHAP. IV. SUMMARY PRO some act has expressly authorized a distress warrant, and then that act gives the justice a discretionary power to proceed by CEEDINGS, &c. distress or commitment, as he may think would be the least injurious to the offender and his family. The four recent general acts, 9 Geo. 4, c. 31. s. 27, 7 & S Geo. 4, c. 29. s. 67, 7 & 8 Geo. 4, c. 30. s. 33, and 1 & 2 W. 4, c. 32. s. 38, 9, appear to suppose that only a warrant to commit for the penalty incurred by committing a common assault or battery, or petty stealing, or small wilful o malicious injury, or trespass in pursuit of game, shall be issued, and not a distress warrant; and therefore, it should seera that no distress can be sustained on these acts, though, perhaps, under the general act 18 Geo. 3, c. 19, the costs may be distrained for. Probably the legislature considered that a warrant to commit would be less expensive than a distress warrant, and therefore enjoined that course of proceeding. The general act 5 Geo. 4, c. 18, contains very full directions and discretionary powers when a justice has authority to issue a distress warrant, and then superadds as an incident the power of commitment; and he may then imprison in the first instance without waiting for a return of nulla bona upon a distress warrant. To avoid any useless extension of this part of the subject beyond our present limits, the reader is requested to refer to the 26th edition of Burn's Justice, title Distress and Commitment, for the whole law applicable to those modes of enforcing a conviction. (y) સ lies. Although the statutes use the term distress, yet the proceed- No replevin ing is in the nature of an execution, and goods taken under a distress founded upon a conviction under the game laws, or other penal statute, are not repleviable. (z) When a distress has been authorized, then the 27 Geo. 2, Sale of goods distrained, &c. c. 20, contains a general power to sell the distress at such time as the justice may direct; and the 33 Geo. 3, c. 55, authorizes justices to execute a warrant of distress in a county different to that where the conviction took place, on the warrant having been dúly backed or indorsed by a justice of the county where the offence was committed. Defects in warrants of commitment before the enactments in Commitments. (a) the four recent general acts we have noticed, were a very fertile source of litigation. They should strictly pursue the conviction upon which they are founded. And it was recently decided, that (y) Titles Distress, Commitment and Costs. (*) R. v. Burchett, 8 Mod. 209; Burn J. tit. Distress, 1 Vol. 1021. ment. CEEDINGS, &c. CHAP. IV. although there had been a valid conviction, yet, that if the comSUMMARY PRO- mitment were by a small mistake or variation on the face thereof for a different offence, or even if it did not disclose any offence at all, the magistrate who issued the warrant of commitment was liable to an action of trespass, merely on account of such deviation and discrepancy; (b) and although there is no general act to remedy this hazard in framing a commitment, yet all the four recent acts expressly provide for it by enacting, "that no "warrant of commitment shall be held void by reason of any "defect therein, provided it be therein alleged that the party "has been convicted, and there be a good and valid conviction "to sustain the same." (c) In general, before the Court would quash a commitment, they required the conviction to be returned upon certiorari. (d) But although all the four acts alluded to, expressly take away a certiorari, so as to prevent the Superior Courts directly removing the supposed conviction, in order to ascertain whether or not there has been a sufficient conviction to support the commitment; yet the Court in which the question respecting the validity of the commitment is under discussion, may ascertain the contents of the conviction, by examining a verified copy. (e) Appeal to sessions. (h) Under the 5 Geo. 4, c. 18. s. 2, it has been very recently decided, that the justice's authority to detain a convicted party must be in writing, and not verbal; and that a detention without written commitment, for a longer time than is absolutely requisite to draw up a warrant in due form, is not authorized. (f) Although usual and proper, yet it seems that a demand of the penalty is not absolutely necessary to precede or be stated in the warrant of commitment, unless expressly required by the statute. (g) If the party convicted think that the conviction was contrary to the weight of evidence, or that in cases where the justice had a discretionary power, he has awarded too large a penalty, he may in some cases, on showing himself to be a party aggrived, (i) appeal to a higher tribunal, as the sessions, and in (b) Wickes v. Clutterbuck, 2 Bing. 483; and see other cases, Burn J. tit. Commitment in Execution. (c) 9 Geo. 4, c. 31, s. 36; 7 & 8 Geo. 4, c. 29. s. 77; id. chap. 30, s. 39; and 1 & 2 W. 4, c. 32. s. 45, all in exactly the same terms. (d) R. v. Taylor, 7 Dowl. & R. 622; R. v. Rogers, 5 B. & Ald. 773; 1 Dowl. & R. 156, S. C. (e) R. v. Mellor, 2 Dowl. Pra. Rep. 173. (f) Hutchinson v. Lowndes, 4 B. & Adolph. 118, qualifying Still v. Walls, 7 East, 533. (g) Ex parte Edwards, 8 Dowl. & R. 115; but see R. v. Bucks, 1 B. & Cres. 485. (h) See in general, Burn J. tit. Appeal; and id. Poor Law Index, tit. Appeal. (i) Who is not a party aggrieved, R. v. J. Madden, 3 B. & Adolph. 938. SUMMARY PRO&c. effect obtain a new trial upon the merits. (k) But unless an CHAP. IV. appeal be expressly, or by the terms of the particular act, CEEDINGS, clearly impliedly given, none is sustainable. (4) Thus, in case of a conviction for a common assault or battery before two justices, no appeal is given; (m) and, although under the 7 & 8 Geo. 4, c. 29. s. 72, and c. 30. s. 38, an appeal lies from a conviction when the penalty exceeds 5l., or the adjudged imprisonment would exceed one calendar month, or when the conviction has been before only one justice, yet when the conviction under either of those acts is for a sum not exceeding 51., or before two justices, no appeal is given. As there is no general act giving or prohibiting an appeal, it is always necessary in each particular case to examine all the statutes relating to the subject, so as to ascertain whether an appeal is or not afforded. When the party has a right to appeal, he is in strictness bound to know the law; and unless expressly so directed by a particular statute, it is not legally incumbent on the justices to inform him of his right, though they must not mislead; and it may be advisable for them in general to inform the party of his right. (n) The defendant however may in all cases waive his right to be informed, as by declaring that he will not appeal. (2) In most cases the act giving an appeal imposes as a condition Recognithe terms of entering into a recognizance with two sufficient zance. (p) sureties, to abide the judgment of the Court of Appeal, and pay the costs, if any, that may be adjudged; and this, when imposed, is a condition precedent, the performance of which cannot be dispensed with. (9) The form of recognizance, in the subscribed note, was settled by counsel in a recent case, and may be safely acted upon; and in similar cases the following form of affirmance of the conviction and for the costs of appeal, pronounced in the same case by the Court of Sessions, may also be safely relied upon. (r) (k) See in general, Burn's Justice, tit. Appeal. () 2 T. R. 509; 1 M. & S. 448; 4 B. & Ald. 521; 1 B. & Cres. 64; R. v. Stone, 6 East, 514; 1 Wightw. 22. (m) 9 Geo. 4, c. 31. (n) R. v. Leeds, 4 T. R. 583. (0) R. v. Yorkshire, 3 M. & S. 493; 7 and 8 Geo. 4. c. 29, s. 72, and id. c. 30. s. 38. (p) See in general for full particulars, Burn's Justice, 26th edit. tit. Recogni zance. (g) See Burn J. tit. Recognizance. (r) Form of recognizance, Be it remembered, that on the 16th day of Febru- on an appeal ary, in the third year of the reign of our Sovereign against a Lord William the Fourth by the grace of God of the conviction united kingdom of Great Britain and Ireland King, under the the year of our Lord 1833, J. W., of Leverton, in the Game Act, 1 & 2 W. 4. c. 32. CHAP. IV. SUMMARY PRO CEEDINGS, &c. Notice of appeal. Form of judg- Act, 1 & 2 W. In general there must be a notice of appeal, stating explicitly all the objections to the conviction or proceedings on which the parts of Holland, in the county of Lincoln aforesaid, farmer, and W. D. G., of Boston, in the parts of, &c. aforesaid, butcher, personally came before me 1. D., Esquire, one of His Majesty's Justices of the Peace for the parts of Holland aforesaid, and acknowledged themselves to owe to our said lord the King the sum of 101. each, of good and lawful money of Great Britain, to be made and levied of their several goods and chattels, lands and tenements, to the use of our said lord the King, his heirs and successors, if default shall be made in the condition hereunder written. Whereas, by a certain conviction under the hand and seal of me the said A. D., the above bounden J. W. is convicted, for that he the said J. W., on Monday the fourth day of the said month of February, did commit a trespass by entering in the day time upon certain lands in the parish of Leverton, in the parts of Holland aforesaid, in the county of Lincoln aforesaid, in the occupation of James Woollerton, the informant in the information upon which the said information was found, in search of game, contrary to the statute in such case made and provided. And whereas the said J. W., hath given notice unto the said James Woollerton of his intention to appeal against the said conviction, and of the causes and grounds thereof. Now the condition of this recognizance is such, that if the above bounden J. W. shall personally appear at the next general quarter sessions of the peace, to be holden at Boston for the parts of Holland aforesaid, and shall then and there try such appeal and abide the judgment of the said court of quarter sessions, and pay the costs occasioned by such information, conviction, and appeal, as shall seem meet to and be awarded by the justices at such quarter sessions; then this recognizance to be void, otherwise of force. Taken and acknowledged before me, A. D. Lincolnshire, At a general quarter sessions of the peace of our sovereign lord the King, held by proclamation at Spalding, in and for the parts of Holland within the county of Lincoln, on, &c. in the year of the reign of our sovereign lord William the Fourth, that now is King of the united kingdom of Great Britain and Ireland, and in the year of our Lord 1833, before A. B., C. D., E. F., and others, their fellows, the justices of our said lord the King assigned to keep the peace of our said lord the King within the parts of Holland aforesaid, and also to hear and determine divers felonies, trespasses, and other misdemeanors done and committed within the said parts in the said county, and one of whom is of the quorum. And afterwards, by adjournment (to wit) at Boston, in and for the said parts, on, &c. in the third year of the reign aforesaid, before G. H., I. K., L. M., and others, their fellows, also the justices of our said lord the King assigned to keep the peace of our said lord the King within the parts of Holland aforesaid, and also to hear and determine as aforesaid, within the said parts in the said county, and one of whom is also of the quorum. At the same Court so held at Boston, on the day and year aforesaid, J. W., of Leverton, in the parts of Holland, in the county of Lincoln, farmer, entered his appeal to and against a conviction, under the hand and scal of A. D., Esquire, one of His Majesty's Justices of the Peace for the parts of Holland aforesaid, dated and made on the 13th day of February, 1833, for that he the said J. W. did, on Monday, the 4th day of February then instant, commit a trespass, by entering in the day time upon certain lands in the parish of Leverton, in the parts of Holland aforesaid, in the county of Lincoln aforesaid, in the occupation of James Woollerton, in search of game, contrary to the statute in such case made and provided; and by which said conviction he the said A. D. did adjudge that the said J. W. should for the said offence forfeit the sum of two pounds, together with the sum of seventeen shillings for costs, and did order that the said sums should be paid by the said J. W. on or before the 20th day of February last, and that in defanlt of payment on or before that day he the said A D. did by the said conviction adjudge the said J. W. to be imprisoned and kept to hard labour in the House of Correction at Shirbech Quarter, in the parts of Holland, in the county of Lincoln aforesaid, for the space of two calendar months, unless the said sums should be sooner paid; and that the said .1. D. did, in and by the said conviction, direct that the said sum of two pounds should (s) This judgment of sessions was settled by counsel after examining all the printed and MS. precedents, and with care. same is founded, and which must be served upwards of the prescribed time; or when the time has not been prescribed, then a reasonable time (usually eight days) fixed by the practice of each session. (t) If the charge in the conviction be general, as under the Vagrant Act, 5 Geo. 4, c. 83, s. 4, the notice of appeal may merely state that the defendant was not guilty of the supposed offence; (u) but in general it must state all the particular objections very distinctly. (v) If the notice be too short, the Court of Sessions should receive the appeal, and respite and adjourn the hearing. (w) CHAP. IV. SUMMARY PRO CEEDINGS, &c. If the Court of Sessions should erroneously quash a conviction When sessions, for want of form, that is not an acquittal on the merits, so as to viction, not quashing conpreclude the Court of King's Bench from commanding the ses- conclusive. sions, by mandamus, to rehear the conviction upon the merits;(x) but where the sessions affirmed a conviction, which afterwards, on certiorari, was bad, and it was discovered that the justices had not returned the original correct information to the sessions, the Court of King's Bench refused a mandamus to return the original information which had not the defect, or to compel the magistrates to proceed on the original information. (y) With respect to the costs of appeal, the Game Act, 1 & 2 W. 4, c. 32. s. 44, and other modern acts, expressly give the sessions power to award costs; and the concluding words of that section also give authority to the Court of Session to issue process to enforce every part of their judgment, affirming the conviction and awarding costs by the like process as the con be paid to P. S., being one of the overseers of the poor of the said parish of Leverton, to be by him applied according to the directions of the statute in such case made and provided; and that the sum of seventeen shillings, for costs, should be paid to the said James Woollerton, the informant on the information upon which the said information was founded. Now therefore, at the said Court so holden as aforesaid by adjournment at The judgment Boston as aforesaid, upon hearing of the said appeal, it is now here ordered and ad- of affirmance. judged by the said Court that the said conviction be, and the same is hereby in all things afirmed; and it is also now here by the same Court further ordered and adjudged that the said J. W. be dealt with and punished according to the said conviction; and also that he the said J. W. do and shall pay to the said James Wool lerton, the said informant, and the respondent in the said appeal, the sum of Costs of appeal. 107. 3s. 2d., the amount of the costs sustained by the said James Woollerton, and by him incurred by reason of the said appeal, and now by the said Court here adjudged to be paid to him by the said J. W. according to the statute in such case made and provided. (t) See fully Burn J. tit. Appeal, and tit. Poor Law, Index, Appeal, and Notice. (u) R. v. Newcastle, 1 B. & Apolph. 933. (v) 10 Bar. & C. 226, 792. (w) R. v. Wills, 8 B. & Cres. 380; 2 Man. & R. 401, S. C.; R. v. Lanca- (x) R. v. Ridgway, 5 B. & Ald. 527; (y) R. v. Jukes, 8 T. R. 625; see R. v. Allen, 15 East, 332; ante, 211, 212. |