SUMMARY PRO CHAP. IV. conviction it would be otherwise. (t) But the safer and more ceedings, &c. judicious course in all these cases, is for Justices to draw up their orders with the same precision and particularity as we have seen are essential in convictions. (u) The form of a declaration for a fraudulent removal, shews the necessary allegations and statements in the order; (v) and the usual proceedings are published in Burn's Justice, which may, at least, assist in preparing the requisite form, but should never govern. (w) Oath and war ize the break house to seize there, to prevent a distress 11 G. 4, c. 19. for rent under s. 7. In connection, also, with cases of fraudulent removal, Justices rant to author of the Peace are, under the 11 Geo. 2, c. 19. s. 7, on the appliing a dwelling cation of a landlord or lessor, or his steward, bailiff, or receiver, goods fraudu- to administer an oath, "of a reasonable ground to suspect that lently removed such goods or chattels (that is, goods previously fraudulently removed to prevent a landlord from distraining for an arrear of rent, as previously prohibited in the statute; (x)) are in a dwelling house," so as thereupon, in the day time, to authorise the constable, or other peace officer of the hundred, borough, parish, district, or place, where the goods are suspected to be concealed, in aid of the landlord or other party applying, to break open and enter such house, and to take and seize such goods and chattels for the arrears of rent." This clause in the statute, requiring an oath, in order to enter a dwelling house, does not extend to other buildings, nor does the act, in terms, require any warrant from the Justice; but, as calculated to induce respect and submission, the most prudent course is to obtain a regular sealed warrant from the Justice, directed to the constable and all other Peace Officers; and the Justice should examine the parties as to the facts, and require so full and explicit an oath, as unquestionably to bring the facts within the meaning of the statute. (y) If the oath should be insufficient, and the Justice nevertheless should issue his warrant, he might perhaps be liable to an action of trespass; (≈) and if a party should make the oath without adequate cause, he might be sued in case; (a) and in this proceeding, as much care (t) R. v. Rabbits, 6 Dowl. & R. 341, ante, 165. (u) Ante, 195 to 212; and see R. v. Morgan, Caldecot, 156. As to the distinctions between the stricter requisites of convictions, than of orders, see Burn J. tit. Orders of Justices, and R. v. Bissex, Sayer Rep. 304. (v) See 2 Chitty on Pleading, 5th ed. 495, b, c, d. (w) Burn J. tit. Distress, 26th edit. I Vol. p. 1009 to 1013. (x) What is a fraudulent removal or not, anie, 246. (y) See form of oath and warrant, in Burn's Justice, title Distress, Forms, 26th edit. 1 Vol. 1012, 3. (2) Morgan v. Hughes, 2 T. R. 225, and ante, 178, 179. (a) Semble, Elsee v. Smith, 2 Chit. Rep. 304; and ante, 179, 180, 227. in ascertaining that there has been a removal, in every sense of CHAP. IV. that term fraudulent, as also that the goods are concealed in the particular dwelling-house, is as essential as in obtaining a search warrant. (b) SUMMARY PRO- &c. possession after permission The 59 G. 3. c. 12. s. 24, after reciting "that difficulties had Thirdly, Sumfrequently arisen, and considerable expenses had sometimes been mary remedy by justices, incurred, by the refusal of persons who had been permitted to where paupers occupying as occupy, or who had intruded themselves into parish or town such retain houses, or otherwise, belonging to such parishes, to deliver up the possession thereof when thereunto required," enacts, that withdrawn under 59 G. 3, if any person who has been permitted to occupy, or hath inc. 12. s. 24, 25. truded himself into such house or property, shall neglect to quit or deliver up possession within one month after notice and demand in writing, signed by the churchwardens and overseers of the poor of the parish, or the major part of them, and delivered to the person in possession, or in his absence affixed to some notorious part of the premises, it shall be lawful for two justices, upon complaint of one or more of the then churchwardens or overseers, to issue their summons to the person complained against, to appear before such justices, at a time and place therein appointed, and to cause such summons to be personally served, or to be affixed on the premises, seven days at the least before the time appointed for hearing such complaint; and such justices are thereby empowered and required, upon the appearance of the party, or upon proof on oath of such service or affixing of the summons, to proceed to hear and determine the matter of such complaint, and if they shall find and adjudge the same to be true, then by warrant under their hands and seals to cause possession of the premises to be delivered to the churchwardens and overseers of the poor, or to some of them." The 25th section extends the like summary proceeding to recover land appropriated for the poor from the persons intruding thereon. And the schedule of the act directs the forms of proceedings. The difficulties alluded to in the recital, were principally that of ascertaining in whom the legal estate or interest of the house or property was vested, so as to lay the demise properly in ejectment; for before the enactment in the 17th section of the statute, parish property did not vest in the churchwardens and overseers for the time being as a body corporate; (c) and (b) What not a fraudulent removal, ante, 246; and as to Search Warrants, ante, 179, 180. (c) Woodcock v. Gibson, 4 B. & Cres. 525; Phillips v. Pearce, 5 B. & Cres. 433. CHAP. IV. SUMMARY PRO the expenses were those of an action of ejectment, which CEEDINGS, &c. Would frequently much exceed the value of the fee simple of the property to be recovered. This statute, however, is accumulative, and does not take away the common law right of the parish officers to take possession without a month's notice, and without the assistance of justices, where a pauper or other person wrongfully refuses to quit, provided the possession can be obtained without a breach of the peace or forcible entry. (d) Fourthly, Justice's assistance, in case of exorbitant charges upon a distress for arrear of rent, not exceed ng 201. 57 G. 3, c. 93. () The statute does not expressly require a complaint in writing or on oath; and therefore neither is strictly necessary; (e) but the forms in the schedule should be observed; and it is recommended to magistrates fully to investigate the facts, so as to ascertain whether they strictly fall within the meaning of the act, and not otherwise to interfere. The 57 G. 3. c. 93, was enacted in favour of tenants, and to enable a justice of the peace to afford redress, by summary proceeding, against excessive charges of a distress for rent, when made for an arrear not exceeding 207. The schedule of the act specifies the allowed charges incident to such a distress, viz. 3s. for the levy, and 2s. 6d. per day for the man in possession, and 6d. in the pound for appraising, and the stamp duty thereon; and for all the expenses of advertisements, if any, 10s., and a charge at the rate of 51. per cent. on the net produce of the sale, for catalogues, sale and commission, and delivery of goods; so that if the rent be paid on the day of distress, the expenses may not exceed 5s. 6d. (f) If there be an unlawful charge, a justice is to summon the party complained of; and if, upon the hearing, it be established that more has been levied, taken, received, or had than is lawful, he is to order and adjudge treble the amount of the money unlawfully taken, to be paid by the wrong-doer, with full costs, to be levied by distress; and in default of goods, the party is to be committed till satisfaction of the order or judgment. The 3d section gives the justice express power to summon witnesses, and subjects them to 40s. penalty if they do not attend or refuse to give evidence, to be levied as aforesaid; and the 4th section enables the justice, if the complaint be unfounded, to give costs to the party complained against; but no judgment is to be given against any (d) Wildboar v. Rainforth, 8 Bar. & Cres. 4. (e) And see 3 Bar. & Cres. 649; 5 Dowl. & R. 558. (f) It would prevent the increase of trifling actions for small irregularities in distresses, if summary remedy were given to the extent of five pounds damages in general. At present there is almost a daily waste of time in the Superior Courts, in trying actions of this nature, where scarcely two pounds damages are recovered, but the costs exceed perhaps one hundred. landlord, unless he personally levied the distress. The act then provides, that this summary remedy, unless there has been a justice's order or judgment, shall not be any bar to any other proceeding; and the schedule gives the form of order, as well for as against the complainant. The provisions of this act having been found of great practical utility, they have been extended to distresses for land tax, assessed taxes, poor rates, church rates, tithes, highway rates, sewer rates, or any other rates, taxes, impositions, or assessments whatsoever, where the sum demanded and due does not exceed 201. (g) CHAP. IV. SUMMARY PRO CEEDINGS, &c. toms and Ex Under the antecedent system of laws relating to the customs Summary proand excise, as well as the new enactments in 3 & 4 W. 4. c. 50 ceedings before justices, under to c. 60, justices have summary jurisdiction to hear and determine the laws reoffences, in a manner much resembling the general course lating to Cusof proceeding pointed out in this chapter, and the principle of cise. which will in all cases apply, where there has not been an express enactment upon the subject, but which must always be ascertained. The usual course of proceedings under the Custom Laws (h) and Excise Laws, (i) are stated exclusively in the 26th edition of Burn's Justice, title Excise and Customs; and the observations there to be found would assist in general. We have thus given an outline of the principal requisites to Conclusion. be observed by magistrates and others, in conducting summary proceedings, from the complaint of an injured individual or informer to final conviction, and the proceedings to enforce the same; a jurisdiction and practice of most essential and extensive importance. It will be a source of great gratification to the author, if it should be pronounced that this attempt has afforded any assistance to Justices of the Peace, or guarded them against those errors, the frequency of which might tend to bring their office into disrepute; for although he has been compelled to point out some discreditable instances of gross blunders, and some still more culpable wilful abuses of power, yet long experience has induced him to entertain a deep respect for the majority of magistrates, whose gentlemanly, temperate, and humane, but at the same time firm and judicious conduct, have, he is confident, mainly conduced to the continuance of the public peace and harmony of society. (g) 7 & 8 Geo. 4, c. 17; and see the statutes, Burn's J. 26th edit. 1 Vol. 630. (h) See course of proceedings for a penalty, &c. under the former Customs Laws, 2 Burn J. 26th edit. 2 Vol. 210 to 224; but see now 3 and 4 W. c. 50 to c. (i) See course of proceeding for a |