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Where an offender is convicted in one penalty, under a statute Commitment providing a corporal punishment on failure of sufficient distress, where goods are and has effects sufficient only to satisfy part, it has been held that
insufficient to the goods ought not to be taken, but the corporal punishment a part of a
pay more than should be resorted to. If, however, the same person be separately penalty. convicted in two penalties, and his goods are sufficient to satisfy one only, they ought to be levied under one conviction, and the corporal punishment should be inflicted for the other. (See R. v. Wyati, 2 Ld. Raym. 1195. Fort. 132. 11 Mod. 54.) But the law never intended that a man should suffer both punishments for one conviction. 2 Ld. Raym. 1196. Paley on Convictions, P. III. Ch. 1. $ 4. Ist ed. p. 185., and note l.
By 5 G. 4. c. 18. § 1., where magistrates have power of issuing On conviction, a distress warrant for a penalty or forfeiture on conviction, they power of demay detain offender in custody till the return of the distress taining till re
turn of distress warrant, unless he gives security to appear, &c.; but if it appear warrant, to the justice that the offender has no sufficient goods or chattels, the justice may commit him without issuing any distress warrant, the same as if nulla boda had been returned.
By $ 2., in cases where justices are empowered to issue distress Where distress warrants, but no farther remedy is provided if no sufficient goods only is authoror chattels can be found; whenever it shall appear to such justice ised, yet if there that sufficient goods and chattels are not to be found, the justice ficient goods, may commit, without issuing any distress warrant, for any term justice may not exceeding three months, unless the sum adjudged and all costs, commit for &c. be sooner paid, the amount of such costs, &c. to be specified three months. in the warrant of commitment. See Hutchinson v. Lowndes, 4 B. & A. 118. and post, p. 167.
By 9 4., whereas the recovery of penalty, &c. by distress may if distress be ruinous or injurious to the offender or his family, the justice would be inmay, if such consequences are likely to ensue, commit the offender jurious, justice immediately on nonpayment of the penalty, &c.; provided that it may commit
, be by the desire or consent in writing of the party on whose in writing of property the penalty, &c. is to be levied.
II. To what place. By stat. 5 H. 4 c. 10. all felons shall be committed to the com- 5 H. 4. c. 10. mon gaol, and not elsewhere.
To the gaol. And by stat. 23 H. 8. c. 2. felons shall be imprisoned in the 23 H. 8. c. 2. common gaol, which shall be kept by the sheriff. Vide 12 Howell's St. Tri. 1376.
By 6 G. 1. c. 19. ♡ 2. vagrants and other criminals, offenders, Small offenders and persons charged with small offences, may for such offences, or may be comfor want of sureties, be committed either to the common gaol or
mitted either to house of correction, as the justices in their judgment shall think gaol or house of proper.
By 4 G. 4. C. 64. & 4. the justices at sessions may declare and commitments make order to what class of prisoners every gaol, house of correc- under order for tion, or any part thereof shall be applicable, with notice, &c., after classification. which such class of prisoners and no other shall be committed or detained in such gaol, house of correction, &c.; and persons not coming within the class so appointed may be removed ; and every such gaol or house of correction shall be deemed the legal place of confinement of persons committed pursuant to such order:
4 G. 4. c. 64.
By stat. 4 G. 4. c. 64. ♡ 7. (tit. Baols, &c. $ xiv. (a)) idle and House of cor. disorderly persons, rogues and vagabonds, incorrigible rogues rection. and other vagrants, shall be committed to some house of correc Vagrants.
tion belonging to such county, &c. or place, and such house
any such person. 60 G. 3. &c. Stat. 60 G. 3. & 1 G. 4. c. 14., after reciting that " whereas the 1 G. 4. c. 14. trial of capital offences before justices of peace, within local and Power to
exclusive jurisdictions not being counties, may be attended with justices, acting
inconvenience, and it is desirable that some remedy should be proin any place not being a
vided for the same," enacts, “ that the justices of the peace acting county, to com- within and for any town, liberty, soke, or place, not being a county, mit offenders
but having an exclusive jurisdiction for the trial of felonies and to the gaol of
misdemeanors committed within the same, shall, from and after the county.
the passing of this act (28. Feb. 1820), have full power within their See 15 G. 2.
respective limits, at their discretion, to commit any person duly c. 24. antè,
charged before them, or any of them, with any capital offence 4 & 5 W. 4. committed within such limits, to the gaol of the county within c. 27. tit. which such town, liberty, soke or place shall be situated, then to Sessions. be tried at the next session of oyer and terminer or general gaol
delivery, to be held in and for such county, in the same manner as if such offence had been committed within any other part of the same county, and as if such person had been committed by any other justice of the same county, not being within such limits."
§ 2. “ In all cases where any justice or justices of the peace, Justices authorised to bind under the authority of this 'act, shall commit any person to the over witnesses county gaol, it shall be lawful for such justice or justices, and he by recognis- and they is and are hereby authorised and required also to bind ance, to give over all necessary parties and witnesses by recognisance, to proevidence at the sessions of oyer
secute and give evidence against such offenders at the next sesand terminer;
sions of oyer and terminer and general gaol delivery, and to and transmit transmit such recognisance, and all depositions taken before him depositions or them relating to the charge, to the clerk of the crown, clerk of taken before
assize and other proper officer, to be filed in the court of oyer them to the
and terminer and general gaol delivery for such county, to the clerk of the crown, &c.
intent that the same may be used or put in force by the judge or judges of the said court, as he or they shall deem proper, accord
ing to law." Expenses of
Ø 3. “ In all cases of any commitments to the county gaol, under the prosecution the authority of this act, all the expenses to which the county to be paid by may be put by reason of such commitment, together with all such the town or expenses of the prosecution and witnesses as the judge shall be place within which the of
pleased to allow by virtue of any law now in force, shall be borne fence shall be
and paid by the said town, liberty, soke, or place within which committed. such offence shall have been committed, in like manner and to
be raised by the same means whereby such expenses would have
officer within the same, who, by the custom and usage of such place, ought to pay the same in the first instance." See the new stat. 4 & 5 W. 4. c. 26.
Justices may commit certain offenders to the stocks, or other Stocks. custody, by particular statutes.
Generally, if a man commit felony in one county, and be ar. Different rested for the same in another county, he shall be committed to county. gaol in that county where he is taken. Dalt. c. 170. p. 409.
Yet, if he escape, and be taken on fresh suit in another county, he may be carried back to the county where he was first taken. Dalt. c.
c. 170. p. 409. Also by stat. 24 G. 2. c. 55. s 1., if a person is apprehended 24 G. 2. c. 55. upon a warrant indorsed in another county, for an offence not bailable, or if he shall not there find bail, he shall be carried back into the first county, and there be dealt with according to law. See this act at length, post, tit. Warrants. See also stat. 15 G. 2. c. 24. ante, f 1. p. 163.
III. The form of the Commitment. It must be in writing, either in the name of the king, and only In whose name. tested by the person who makes it, or it may be made by such person in his own name, expressing his office or authority, and must be directed to the gaoler or keeper of the prison, and must be under hand and seal. 2 Haw. c. 16. § 13.
The commitments mentioned in 2 Haw. c. 16. § 13. mean commitments to the custody of sheriffs, gaolers, &c.; but a magistrate may by parol order an offender to be detained in custody until he can make out his warrant of commitment. Still v. Walls, 7 East, 533. (a)
So a magistrate, in the case of a breach of the peace within his view, may instantly order the offender to be taken into custody. Per Cur. S. C.
A commitment by a court of record need not be under seal, Commitment as the record itself, or a memorial of it, will be sufficient. by court of 2 Hale, 583, 584.
record. Where 13 G. 3. c. 80. authorised the justice to issue a distress Order to detain warrant, on nonpayment of a penalty on conviction, and to order till return of the offender to be detained in custody, unless he give sufficient by parol, good.' security for his appearance till the return of the distress warrant, it was held that the order to detain in custody might be by parol. Still v. Walls and another, 7 E. R. 533.
It is fit to mention the name of the justice, and his authority, in the beginning of the mittimus, though not always necessary; for the seal and subscription of the justice to the mittimus is sufficient warrant to the gaoler; for it may be supplied by averment, that it was done by the justice. 2 Hale, 122.
It ought also to mention the time and place at which it is made. 2 Haw. c. 16. § 13.
It should contain the name and surname of the party committed, The party's if known; if not known, then it may be sufficient to describe the name, if known. person by his age, stature, complexion, colour of his hair, and the like, and to add, that he refuseth to tell his name. 1 Hale, 577.
(a) Acc. Hutchinson v. Lowndes, 4 B. & d. 118.
It is safe, but not absolutely necessary, to set forth that the
party is charged upon oath, 2 Haw. c. 17. $ 17. Cause.
It ought to contain the cause, as for treason, or felony, or suspicion thereof: otherwise, if it contain no cause at all, if the prisoner escape it is no offence at all; whereas, if the mittimus contained the cause, the escape were treason or felony, though he were not guilty of the offence; and therefore for the king's benefit, and that the prisoner may be the more safely kept, the mittimus ought to contain the cause. 2 Inst. 52.
And hereupon it appeareth that a warrant or mittimus, to answer to such things as shall be objected against him," is utterly
against law. 2 Inst. 591. The nature of
Also it ought to contain the certainty of the cause; and therethe felony.
fore, if it be for felony, it ought not to be generally for felony, but it must contain the special nature of the felony, briefly; as for felony for the death of J. S., or for burglary in breaking the house of J. S.; and the reason is, because it may appear to the judges of the K. B., upon an habeas corpus, whether it be felony or not.
2 Hale, 122. Treason, ge
In Dr. Groenvelt's case, it was resolved, “ that the cause of nerally. commitment ought to be certain, to the end that the party may
know for what he suffers, and how he may regain his liberty. 1 Ld. Raym. 213.
But a commitment for treasonable practices is legal. R. v. Despard, 7 T.R. 736.
And commitments for high treason in general are good. 2 Haw. c. 16. § 16.
Even in cases of felony, the want of the certainty of the cause seems not to make the commitment absolutely void, so as to subject the gaoler to a false imprisonment; but it lies in averment to excuse the gaoler or officer, that the matter was for felony.
1 Hale, 584. Not the same A commitment need not be drawn with the same precision as an strictness, as in indictment; but if the facts stated therein do not amount to an indictment. felony, the prisoner will be entitled to be bailed. R. v. Remnant,
5 T. R. 169. Need not state And although it is not necessary to state, in a warrant of comthe offence to mitment on a charge of felony, that the act was done “ felonihave been done ously,” yet unless it sufficiently appears on the facts stated in the “ feloniously."
commitment to be in law a felony, the judges of the court of K. B.
are bound to bail the defendant. R. v. Judd, 2 T. R. 255. There may be a Rex v. James Gordon, M. 1777, 1 B. & A. 572. (n.) James Gorfresh valid de- don was committed to New Prison, Clerkenwell, till the next tainer after a
general sessions, for assaulting a custom-house officer's assistant bad commit
in execution of his duty. Motion for a habeas corpus, because the And see R. stat. 13 & 14 Car. 2. c. 11. directs that such offender shall be comv. Marks, post. mitted, without bail, till the next quarter sessions. Writ granted.
Afterwards, the defendant being brought up, the keeper of New Prison returned the warrant of commitment, which appeared to be to the general sessions : but he also returned a warrant of detainer for the same offence, issued the day before he was brought up, by the same justice, which was till the next quarter sessions. The defendant, therefore, was remanded without opposition, the warrant of detainer being strictly regular.
If a man be committed for nonpayment of two sums, one of For two sums, which is not due, the warrant of commitment is bad for the whole. one not being Ez parte Addis, M. 1822, 1 B. & C. 90.
due, bad. Also a warrant of commitment in execution after a conviction On conviction, must show before whom the conviction was, as likewise the au
must show thority of the person committing. R. v. York, 5 Burr. 2684.
before whom Though the commitment need not state the conviction in a precise or technical form, yet it must show that the party has been convicted of some specific offence, and by a person having competent authority.
Thus, where there had been a previous regular conviction on Specific offence 5 G. 4. c. 14. for fishing in a private fishery, but the commitment must be stated. omitted to state that the offence was committed “ in an inclosed ground :" held to be bad, and that the justice was liable in an action for false imprisonment. Wickes v. Clutterbuck, 2 B. 483.
Rer v. Evered, Cald. 26. Two justices committed Robert Not to be in the Collehole, an apprentice, for running away from his master.
An disjunctive. objection was taken to the form of the commitment, for the uncertainty thereof, which ran thus: “ As an apprentice or servant, for disobeying his indentures or articles.” Ld. Mansfield said, that the objection to the warrant of commitment, as running in the disjunctive, must undoubtedly prevail. The counsel for the prosecution consented to the prisoner's discharge.
It must have an apt conclusion; as, if it be for felony, to detain Apt conclusion. him till he be thence delivered by law, or by order of law, or by due course of law. 2 Hale, 123. 2 Haw. c. 16. § 18.
But when a man is committed for contumacy in refusing to do where as a something which he ought to do, the conclusion ought to be criminal, or for “ until he comply, and perform the thing required;" for he is contumacy. entitled to be discharged immediately upon the performance of his duty. If, therefore, an overseer of the poor be committed for refusing to account, the warrant of commitment must conclude, * there to remain until he shall account.” Carth. 152.
The true distinction is, that, where a man is committed for any Where for an crime, either at common law or created by act of parliament, for offence, punishwhich he is punishable by indictment, there he is to be committed
able by indicttill discharged by due course of law: but, when it is in pursuance special au
ment, or under of a special authority, the terms of the commitment must be spe- thority only. cial, and exactly pursue that authority. Nash's case, H. 12 G. 3. 2 Black. Rep. 806.
But in a recent case, where a parish collector of the rates was Goff's case. committed to the county gaol by warrant of two justices, upon
Commitment of complaint for that he, having been duly appointed collector of the parish officer rates for the parish of Richmond, pursuant to stat. 25 G. 3. c.41., account, and to refused to account and pay over the monies collected by him by be detained till virtue of the act to W. S., the person duly authorised to receive discharged by them;" and the justices adjudged that he should be committed to due course of the gaol, there to remain without bail or mainprize, until he should law; good. have made a true and fair account, and until such money, as upon the said account should appear to be remaining in his hands, should be paid by himn or his sureties to W. S., and they required the keeper of the gaol to receive and safely keep him “ until he should be discharged by due course of law,” it was contended that the warrant was void; a habeas corpus having been obtained, and the prisoner brought up under it (after argument), Ld. Ellenborough