Sect. 41.

NOTE.

The rule applying to this section is No. 30, S. J. Rules, 1886, post.

See the opinion of the law officers that a justice acting under the Indictable Offences Act, 1848, is a court of summary jurisdiction within the meaning of s. 13 (11) of the Interpretation Act, 1889, in the notes to that section, post.

A summons for poor rates is process of a court of summary jurisdiction within the meaning of 44 & 45 Vict. c. 24, post, and may be served in Scotland under s. 4 of that Act, and service may be proved by declaration under this section. See 51 J. P. 141 ; and also see R. v. Lord Mayor of London and Brown, 52 J. P. 70 ; 57 L. T. (N.S.) 491; and In re Elizabeth Allen, [1894] 2 Q. B. 924; 59 J. P. 229; 63 L. J. M. C. 267.

Under this section a summons issued in one jurisdiction may be legally sent to and served by the police in another jurisdiction, and a declaration of the service in such jurisdiction be sent to and received by the first jurisdiction in which the summons was issued, and will be legal evidence in the court of that jurisdiction.

42. Recognizances taken out of court.] When a court of summary jurisdiction has fixed, as respects any recognizance, the amount in which the principal sureties (if any) are to be bound, the recognizance, notwithstanding anything in this or any other Act, need not be entered into before such court, but may, subject to any rules made in pursuance of this Act, be entered into by the parties before any other court of summary jurisdiction or before any clerk of a court of summary jurisdiction or before a superintendent or inspector of police or other officer of police of equal or superior rank or in charge of any police station, or where any of the parties is in prison, before the governor or other keeper of such prison; and thereupon all the consequences of law shall ensue, and the provisions of this Act with respect to recognizances taken before a court of summary jurisdiction shall apply, as if the recognizance had been entered into before the said court as heretofore by law required.

By the operation of the Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 13, post, justices committing for trial are a court of summary jurisdiction. This section may, therefore, be deemed to apply to cases in which justices had committed for trial, but consented to take bail. A recognizance to prosecute an appeal may be taken under this section. See note to s. 31, ante, p. 182.

As to taking recognizance at prisons, see Rules 13 and 13A of the S. J. Rules, 1886, post, and Forms [36] and [50] of Consolidated Forms, 1886, post.

Married Women.-There seems no reason why the recognizance Sect. 42. of a married woman should not be taken since the Married Women's Property Act, 1884 (45 & 46 Vict. c. 75), where she has separate property.

43. Procedure on the execution of distress warrants.] The following regulations shall be enacted with respect to warrants of distress issued by a court of summary jurisdiction:

(1) A warrant of distress shall be executed by or under the direction of a constable; and

(2) Save so far as the person against whom the distress is levied otherwise consents in writing, the distress shall be sold by public auction, and five clear days at the least shall intervene between the making of the distress and the sale, and where written consent is so given as aforesaid the sale may be made in accordance with such consent; and

(3) Subject as aforesaid, the distress shall be sold within the period fixed by the warrant, and if no period is so fixed then within the period of fourteen days from the date of the making of the distress, unless the sum for which the warrant was issued, and also the charges of taking and keeping the said distress, are sooner paid; and

(4) Subject to any directions to the contrary given by the warrant of distress, where the distress is levied on household goods the goods shall not, except with the consent in writing of the person against whom the distress is levied, be removed from the house until the day of sale, but so much of the goods shall be impounded as are in the opinion of the person executing the warrant sufficient to satisfy the distress, by affixing to the articles impounded a conspicuous mark; and any person removing any goods so marked, or defacing or removing the said mark, shall on summary conviction be liable to a fine not exceeding five pounds; and

(5) Where a person charged with the execution of a warrant of distress wilfully retains from the produce of any goods sold to satisfy the distress, or otherwise exacts, any greater costs and charges

NOTE.

Sect. 43.

than those to which he is for the time being entitled by law, or makes any improper charge, he shall be liable on summary conviction to a fine not exceeding five pounds; and

(6) A written account of the costs and charges incurred in respect of the execution of any warrant of distress shall be sent by the constable charged with the execution of the warrant as soon as practicable to the clerk of the court of summary jurisdiction issuing the warrant; and it shall be lawful for the person upon whose goods the distress was levied, within one month after the levy of the distress, to inspect such account without fee or reward at any reasonable time to be appointed by the court, and to take a copy of such account; and

(7) A constable charged with the execution of a warrant of distress shall cause the distress to be sold, and may deduct out of the amount realised by such sale all costs and charges actually incurred in effecting such sale, and shall render to the owner the overplus, if any, after retaining the amount of the sum for which the warrant was issued and the proper costs and charges of the execution of the warrant; and

(8) Where a person pays or tenders to the constable charged with the execution of a warrant of distress the sum mentioned in such warrant, or produces the receipt for the same of the clerk of the court of summary jurisdiction issuing the warrant, and also pays the amount of the costs and charges of such distress up to the time of such payment or tender, the constable shall not execute the warrant.

The provisions of this section do not apply to the execution of warrants of distress for poor rate, etc., where the warrant is issued by a justice, not as a court of summary jurisdiction. Subsection (8) is practically a re-enactment of 11 & 12 Vict. c. 43, s. 28, ante, p. 112.

Section 4 of the Law of Distress Amendment Act, 1888 (51 & 52 Vict. c. 21), exempts from distress for rent goods to the value of £5, protected from seizure in execution by s. 147 of the County Courts Act, 1888 (51 & 52 Vict. c. 43), and the word " bedding in the latter section includes "bedstead" (Davis v. Harris, [1900] 1 Q. B. 729 ; 64 J. P. 136 ; 69 L. J. Q. B. 232 ; 16 T. L. R. 140).

NOTE.

In regard to what are "tools and implements of his trade" (see Sect. 43. Consolidated Forms, 1886, post, [24], [25], [26], and Part II. [8]); the case of Masters v. Fraser, 66 J. P. 100; 85 L. T. 611; 18 T. L. R. 31, decided that a sewing machine hired by a tenant under a hire-purchase agreement for the purpose of his trade comes within these words in s. 147 of the County Courts Act, 1888, and is privileged from distress for rent, though the tenant has not the property in the machine, but merely the possession.

See also 44 & 45 Vict. c. 24, s. 5, post, as to warrants of distress executed in Scotland, and Scotch warrants of poinding and sale executed in England. As to distress under the Merchant Shipping Act, 1894, see 57 & 58 Vict. c. 60, s. 693.

See also s. 21 of the S. J. Act, 1879, as to goods distrainable and postponement of distraint; and Forms [24] and [28] of Consolidated Forms, 1886, post.

44. Return by order of court of property taken from prisoner.] Where any property has been taken from a person charged before a court of summary jurisdiction with an offence punishable either on indictment or on summary conviction, a report shall be made by the police to such court of summary jurisdiction of the fact of such property having been taken from the person charged and of the particulars of such property, and the court shall, if of opinion that the property or any portion thereof can be returned consistently with the interests of justice and with the safe custody of the person charged, direct such property, or any portion thereof, to be returned to the person charged or to such other person as he may direct.

See note to s. 27, ante, p. 168, and R. v. Lovett, there quoted. This section is limited to the case of persons under charge and to the time during which they are under charge (R. v. D'Eyncourt, L. R. 21 Q. B. D. 109; 52 J. P. 628; 57 L. J. M. C. 64.

45. Local jurisdiction of court under this Act.] Where a person is charged with an indictable offence mentioned in the First Schedule to this Act, before a court of summary jurisdiction for any county borough or place, and the court have jurisdiction to commit such person for trial in such county borough or place, although the offence was not committed therein, such court shall also have jurisdiction to deal with the offence summarily in pursuance of this Act.

With reference to this section, see 11 & 12 Vict. c. 42, s. 2, post, and notes thereto, and see note to s. 6 of 11 & 12 Vict. c. 43, ante, pp. 32 et seq.

Sect. 46.

46. General provisions as to local jurisdiction of courts of summary jurisdiction.] For the purposes of the trial of any offence punishable on summary conviction under this Act or under any other Act, whether past or future, the following provisions shall have effect:

(1) Where the offence is committed in any harbour,

river, arm of the sea, or other water, tidal or other, which runs between or forms the boundary of the jurisdiction of two or more courts of summary jurisdiction, such offence may be tried by any one of such courts.

(2) Where the offence is committed on the boundary of the jurisdiction of two or more courts of summary jurisdiction, or within the distance of five hundred yards of any such boundary, or is begun within the jurisdiction of one court and completed within the jurisdiction of another court of summary jurisdiction, such offence may be tried by any one of such courts.

(3) Where the offence is committed on any person or in respect of any property in or upon any carriage, cart, or vehicle whatsoever employed in a journey, or on board any vessel whatsoever employed in a navigable river, lake, canal, or inland navigation, the person accused of such offence may be tried by any court of summary jurisdiction through whose jurisdiction such carriage, cart, vehicle, or vessel passed in the course of the journey or voyage during which the offence was committed; and where the side, bank, centre, or other part of the highway, road, river, lake, canal, or inland navigation along which the carriage, cart, vehicle, or vessel passed in the course of such journey or voyage is the boundary of the jurisdiction of two or more courts of summary jurisdiction, a person may tried for such offence by any one of such courts. (4) Any offence which is authorised by this section to be tried by any court of summary jurisdiction may be dealt with, heard, tried, determined, adjudged, and punished as if the offence had been wholly committed within the jurisdiction of such court.

be

Sub-section (2). Offences committed within the boundary of the jurisdiction of two or more courts of summary jurisdiction,