May be issued in not provide for issue of warrant of distress, but directs a warrant of commitment to be issued. May be issued in first instance," where the punishment is only by imprisonment. In some cases the It has been before remarked, that in all cases when the conviction is for a penalty or compensation, or the order is for the payment of a sum of money, and the statute on which the proceedings are founded provides that the penalty or sums of money should be levied by means of a warrant of distress, or where the statute provides no means whatever of levying the same, the Justices are authorised to issue a warrant of distress. Where however, the particular statute does not provide for the issue of a warrant of distress, but directs that if the penalty or sum of money is not paid forthwith, or within a certain time, the defendant shall be imprisoned, the Justices have no power to issue a warrant of distress, but the conviction or order must be enforced by warrant of commitment, (as in forms to Act No. 2, Schedules O. 1, O. 2, p, p. 132, 133.) This warrant is defeasible on the defendant's paying such penalty or sum of money, with the costs, either before he goes to gaol, or at any time during his imprisonment. (a) There are many cases under different local Acts, and some few under general statutes, where the conviction does not order the payment of the penalty or compensation, but that the defendant shall be imprisoned, or imprisoned and kept to hard labor for his offence, and there are cases where the order is not for the payment of money but for the doing of some other act, or the neglect or refusal to do which, the defendant is directed to be imprisoned. In all such cases the defendant has no alternative, but must satisfy justice by going to prison, and the Magistrates are empowered to issue their warrant accordingly. (b) (See forms to Act No. 2, Schedules P. 1, P. 2, p. p. 134, 135.) There is another class of cases where Magisdefendant may be trates may either commit the defendant to prison in the first instance, or impose a fine according punished either by fine or imprisonment. (a) Ibid s. 23. (b) 11 & 12 Vict. c. 43, s. 24. to their discretion. In such cases it therefore rests with the Bench to enforce the payment of the fine by warrant of distress and commitment, or to punish by imprisonment, and issue the warrant for such purpose accordingly. ment. With regard to the duration of the imprison- of the duration ment, the statutes will be found to vary conside- of the imprisonrably, according to the several offences thereby made punishable, and before making out a warrant of commitment in any particular case, it will be expedient to refer to the statute under which the conviction is made. In all cases where the commitment is in Dissimilarity in the duration default or in payment of a certain sum of money, under different it would obviously seem to be proper for the term statutes. of imprisonment to be in conformity with the extent of the fine, and for a graduated scale to be fixed for the former, with relation to the amount of the latter, so that the respective punishments by fine and imprisonment might be founded on the same uniform basis. This however, is not the case, for even in some of the most recent general Acts, great dissimilarity and disproportion exists in this respect. Thus under the three important statutes just referred to, the general scale of imprisonment for default in payment of penalties and compensations in the nature of penalties, is as follows, viz., where the penalty does not exceed five pounds, for any term not exceeding two calendar months; where the penalty does not exceed ten pounds, for any term not exceeding four months; and in other cases, six months, with or without hard labor, at the Justices' discretion. While under other Acts the term of imprisonment for default of payment of penalties and forfeitures, or on the return of nulla bona upon distress warrants, whatever may be the amount, is not exceeding three calendar months, with hard labor. Warrant should carefully recite, Warrants of commitment should carefully recite the convictions on which they are grounded. the conviction or And should not be in any respect repugnant be liable to an the Justice might action; though it would be otherwise if the conviction had been confirmed on appeal. Warrant should set out the offence, &c. thereto, and more particularly when prepared under those statutes which contain no provisions for aiding defects therein. For it has been decided that even where there had been a good and valid conviction, but on the face of the commitment no offence was disclosed, or an error was made so as to make the description of the offence vary from that stated in the conviction, a Magistrate was liable to an action of trespass, on account of such omission or variation. (a) But when a warrant of distress or commitment has been granted upon a conviction or order, which before or after the granting thereof shall be confirmed on appeal, no action will lie against the Justice for anything done under the warrant by reason of any defect in the conviction or order. (b) And in case the warrant is issued by any other Justice than the one who made the conviction or order, in virtue of which the warrant is issued, any action by reason of a defect in the conviction or order, or for any want of jurisdiction in the Justice who made the same, must be brought against the Justice who made the conviction or order. (c) The warrant of commitment, like the conviction, should be precise in setting out the nature of the offence, and that it was committed at such a place, naming the parish and county, or otherwise shewing that the offence was committed within the jurisdiction of the convicting Magistrate. Thus in an action against a Magistrate on a warrant of commitment under the 4 Geo. 4. c. 34, s. 3, which set forth that the plaintiff did on a certain day contract with his master to do certain work, and that he entered into the service, and was therein guilty of divers miscarriages, ill behaviour, &c., towards his said master, and particularly that he refused to perform his contract, and left his work unfin (a) Wicks v. Clutterbuck, 2 Bing. 483. ished, and the service of his master without his license or consent, and then went on to adjudge the complaint to be true, and commanded the constable to convey the plaintiff to gaol in the usual way; the court held that this was a commitment in execution, and that it was bad, because it did not shew either that the contract was entered into, or the work refused to be done, &c., within the jurisdiction of the convicting Magistrate, (a) and the latter was consequently obliged to pay the costs of the action. should be direct ed. The warrant of commitment should be directed To whom it to the chief constable of the place where the offence was committed, and his assistants, and also to the keeper of the gaol. It should, after reciting the conviction or order, specify the term of imprisonment, and whether with or without hard labor, and where it is defeasible on payment of a penalty, compensation, or sum of money, the precise amount of the same, with the cost, should be accurately stated in it. (b) there is a provi Petty sion that the warrant shall not be held void for any In the three statutes before mentioned, relating In many statutes to "Malicious injuries to Property," Larcenies," and "Injuries to the Person," an express provision is inserted, for the purpose of defect. guarding against litigation upon warrants of commitment, to the effect that no warrant of commitment shall be held void by reason of any defect therein, if it is alleged therein that the party had been convicted, and there is a good and valid conviction to sustain the same. This provision is doubtless sufficiently comprehensive, and it is desirable that a similar protective clause should be introduced into all new statutes which extend or relate to the summary jurisdiction. In all cases where no such provision is made, the greatest care should be taken in making out the warrant of commitment, that its formal requisites (a) Johnson v. Reid, 6, M. & W. 124. (b) Where in a warrant of commitment, the day of the month on which it was issued, was omitted, the warrant was held bad. In re Fletcher, 22 L. J. (M. C.) 16. Imprisonment offence may commence at the ex piration of that for previous of fence. are strictly complied with. And this is more particularly necessary as this proceeding is the one upon which defendants usually bring actions for damages when they consider that they have been improperly dealt with, or that the committing Magistrate has laid himself open to litigation, by incautiously issuing an incorrect war rant. Should the defendant at the time of the issuing for a subsequent of the warrant of commitment, be in prison, undergoing imprisonment upon a conviction for any other offence, the recent statute of 11 & 12 Vict., c. 43, provides that the warrant of commitment for the subsequent offence shall commence at the expiration of the imprisonment which the defendant is then undergoing, thus assimilating the law with regard to summary convictions and orders, with that which exists with respect to imprisonment for felonies. Costs recoverable by distress and imprisonment. Clerk to the Ma the penalties and costs. Justices are also authorised to issue warrants of distress and commitment, to enforce the payment of costs incident to the conviction or order, where the punishment is by imprisonment, or where the costs may fall upon the prosecutor or complainant, by reason of the dismissal of the information or complaint. Upon payment by the defendant of the sum gistrate receives awarded to be paid either as a penalty or by way of compensation to the party injured, by virtue of the conviction, or of the sum directed to be paid under the order, it becomes necessary to ascertain the mode in which such penalty, compensation, or sum of money is to be applied. In practice, the clerk to the Magistrates receives all sums of money payable under the convictions or orders, together with the costs, whether the same are paid forthwith or are levied under a warrant of distress. In cases also where a warrant of commitment is defeasible on the payment of the penalty and costs, the amount is received by the keeper of the gaol, and by him paid forthwith to the clerk. (a) (a) 11 & 12 Vict., c. 43, s. 41. |