state the amount The Conviction or Order should also be very Conviction to particular as to stating the amount of the penalty of penalty and or compensation awarded, or the sum of money costs. to be paid by the defendant, and how the same is to be applied; and where there are two or more defendants found guilty of jointly committing an offence, they should be separately fined, and a separate conviction should be made out for each defendant. (a) The same particularity is required as to inserting the amount of costs to be paid by the defendant, and which should be directed to be paid to the complainant. the conviction. In the practice of some Benches, it is usual Great care to be for the Magistrates' Clerk to have forms of Con- used in drawing victions and Orders, applicable to the various statutes, printed in blank, but it is necessary for Justices as well as practitioners in Police Courts to observe, that although the Legislature has taken pains to make the Conviction as simple as possible, yet, in many cases considerable difficulty exists with regard to this part of the duty of a Justice of the Peace. And it is therefore recommended, that where the proceedings are likely to be followed up by an appeal to the Quarter Sessions, or action, or other proceeding in the superior courts, the formal record of conviction should be submitted to some person conversant with this branch of practice. orders to be Peace. It is the duty of the Magistrates' Clerk to Convictions and make out and procure the convicting Magistrates' returned to signatures and seals to a record of the conviction Clerk of the or order in every case summarily decided, and to return the same to the Clerk of the Peace. (b) This return is necessary, not only in those cases where a defendant has the privilege of appeal, but in all cases of summary conviction, in order that such records may be duly filed. (c) (a) Morgan v. Brown, 6 Nev. & M. 57, P. C. 4 Ad. & E. 515. (b) 18 & 12 Vict. c. 43, s. 14. (c) In this colony, it has not, hitherto, been customary, in practice, to draw up convictions, and return them to the Clerk of the Peace in cases where the amount awarded by the conviction is immediately paid. Convictions and orders should be drawn up without delay. Conviction or order enforced by warrant of distress or commitment. When warrant of distress may be issued. It is customary for Magistrates' clerks to draw up the several convictions and orders which have been decided during the quarter, a few days prior to the Sessions, together with the recognizances in cases of felony, &c., and other documents necessary to be returned. But it is advisable not to delay the completion of these documents, when there is a probability of the convicting or committing Magistrates leaving their residences, either temporarily or permanently, because in such cases there might be a difficulty in procuring their signatures. Instances have occurred where great expense and trouble have been occasioned by inadvertent delays of the kind here alluded to. There is indeed no part of his duty, the neglect of which exposes a Magistrate's clerk to more severe censure than carelessness in making the proper returns to the Quarter Sessions. When a conviction adjudges a pecuniary penalty or compensation to be paid, or when an order requires the payment of a sum of money, and such conviction or order is not complied with by the defendant immediately when so directed, or within the period allowed when time is given by the convicting Magistrate, it is enforced by means of a warrant of distress in the nature of an execution, (as in the forms to Act No. 2, Schedule No. 1 & No. 2, p. p. 128, 129,) or by a commitment to prison according as it is prescribed by the particular statute under which the proceedings may have been taken, and which must, of course, be consulted for the purpose. (a) The conviction or order is enforced by warrant of distress in all cases where the statute authorising the same directs the penalty or sum of money to be levied by distress, and also in all cases where no mode of raising or levying the penalty or sum of money is provided by the statute. (a) 11 & 12 Vict. c. 43, s. 19. Under the Acts relating to "Injuries to the "Person," "Petty Larcenies," and "Malicious "Injuries to Property," the conviction can only be enforced by commitment; but under most of the other statutes relative to summary convictions, it may be carried into effect by means of a warrant of distress in the first instance. commit defendant until the the warrant. Wherever a warrant of distress shall be issued Justices may against the goods of the defendant, and from his situation in life or character, the Magistrate shall return is made to be in doubt whether there are sufficient goods to satisfy the sums to be levied under the warrant, or whether the defendant may abscond between the time of issuing the warrant and that appointed for its return, he may order the defendant into custody, either verbally or by warrant, until such time as the return shall be made, or may discharge him on recognizances conditioned for his appearance at such time. (a) backed. If no sufficient distress is found within the Warrant may be jurisdiction of the Justice who issued the warrant of distress, it may be executed within the limits of the jurisdiction of any other Justice upon being backed by him, (according to the form in Act No. 2, Schedule N 3, p. 130,) which is done upon proof on oath being afforded of the handwriting of the Justice who issued the warrant.(b) warrant of The warrant of distress should be strictly con- Requisites of formable to the conviction upon which it is distress. grounded, and which it should shortly recite; and it should command the officer to levy the amount specified, directing when the distress is to be sold, and to whom the money is to be paid. When issued, it should be immediately placed in the hands of the constable, or one of the constables, to whom it is directed; and, in order to avoid delay from the absence of any particular peace officer, it is directed generally to all the constables. It is the duty of the officer in whose hands the warrant is placed, to proceed as soon (a) Ibid, s. 20. . (b) 11 & 12 Vict., c. 43, s. 19. If penalty, &c., is paid distress to be stayed. nulla bona. as conveniently may be to the defendant's premises, and seize a sufficient quantity of goods to cover the amount to be levied, as well as the expenses of the levy and sale; and forthwith to remove the same to a place of safety, or leave a trusty person in possession, until the time fixed for the sale, which is usually five days after the levy. But whenever the person against whom the warrant is issued, shall pay or tender to the officer the amount mentioned in the warrant, together with the expenses up to the time of the tender, the officer shall stay further execution of the warrant.(a) On the return of If no goods can be found, or not a sufficient quantity whereupon to make the levy, the constable should apprise the prosecutor thereof, and attend with him before the convicting Justice or Justices to prove the fact, which is technically called "making the return of nulla bona." This is done by putting the constable upon his oath, and he then makes a short deposition to prove his attempt to make the levy, and that no sufficient goods can be found: a form of which will be found in form in Act No. 2, Schedule N 4, p.131. As soon as this deposition has been made, the prosecutor or informant may, if he deem it proper, apply to the Justice for a warrant of comised by statute. mitment, (form in Act No. 2, Schedule N 5, p. 131,) which is then prepared and issued, as a matter of course, and authorises the commitment of the defendant to prison, with or without hard labour, in such manner and for such time as is appointed by the statute on which the conviction or order was founded. (b) Such commitment is, however, defeasible upon the defendant's paying the penalty and costs; the amount of which, as will be seen in the next section, must be correctly inserted in such commitment. On the return of nulla bona warrant of commitment to be issued if author If statute does not authorise commitment Justices may commit notwithstanding. There are some statutes which although they authorise the issuing of a warrant of distress to (a) 11 & 12 Vict., c. 43, s. 28. (b) Ibid, s. 21. enforce conviction and orders made under them, yet, provide no further remedy in case no sufficient distress can be found, in all such cases it is provided by the Act 11 & 12 Vict. c. 43, (a) that the Justices may commit the defendant to prison for any term not exceeding three months, unless the sums adjudged to be paid, and the costs of the distress, and of the commitment are sooner paid. distress and The warrant of distress or of commitment may One Justice may be issued by one Justice in all cases, notwith- issue warrants of standing the conviction may be required to be commitment. made by two Justices. issued on return The most important of the general statutes Warrant of com extending the summary jurisdiction, viz., those mitment may be relating to "Injuries to the Person," "Petty of nulla bona. Larcenies," "Malicious injuries to Property," uniformly empower Magistrates to enforce their conviction by issuing a warrant of commitment in the first instance, upon default of paying the penalty and costs. In most cases the primary process to enforce the conviction is by a warrant of distress, and where no further remedy in default of distress is provided, the Justices are empowered under the general statute, upon a proper return of nulla bona, to commit for any period not exceeding three months. (b) if the issuing of ruinous to Whenever the Justices are empowered to issue May be issued in a warrant of distress for enforcing a conviction the first instance or order, a discretionary power is given to them, a warrant of whereby if it shall appear to them that the distress would be issuing of the warrant should be ruinous to the defendant. defendant and his family, or it shall appear by the confession of the defendant or otherwise, that he has no goods whereon a distress can be levied, they may commit him in the first instance, with or without hard labor, for such time and in such manner as he might have been committed, in case such warrant had been issued, and no sufficient distress had been found. (c) (a) Sect. 22. (b) 11 & 12 Vict. c. 53, s. 22. (c) Ibid s. 19. |