payment of the same, and the party ordered to pay the same is not bound by any recognizance to pay them, the Clerk of the Peace, on the application of the party entitled to the costs, or any person on his behalf, on payment of a fee of one shilling, shall grant a certificate, (after the form to Act No. 2, Schedule R, p. 141,) to the party so applying, that the costs are not paid, upon the production of which to any Justice, he may enforce the payment thereof by warrant of distress, (as in form to Act No. 2, Schedule S 1, p. 142,) and in default of distress may commit the party, (according to form No. 2, Schedule S 2, p. 143,) for any time not exceeding three calendar months, defeasible, however, on payment of such costs and the expenses. issue warrant of commitment. It is not necessary after the appeal is decided After appeal any in favor of the respondent that the warrant of one Justice may distress or of commitment, for enforcing the con- distress or of viction or order, should be issued by the Justices at Quarter Sessions, but the Justice who made the conviction or order, or any other Justice of the county, may issue them as if no appeal had been brought. (a) Court exercises proceedings In connexion with the proceedings before Ma- Mode in which gistrates, it may now be proper to notice the the Supreme methods by which the Supreme Court exercises its control over control over them; and these are chiefly by manda- of Justices. mus and certiorari. The former is granted where Magistrates refuse to entertain a proper case within their jurisdiction; (b) the latter can always be obtained (unless expressly taken away by the statute under which the proceedings are laid) to remove a conviction into the Court above, for the purpose of discussing any defects apparent upon the face of such document, or any miscon (a) 11 & 12 Vict., c. 43, s. 27. (5) In a recent case where Magistrates, from a doubt as to their jurisdiction, declined giving possession of premises to a landlord, pursuant to the 11 Geo. II., c. 19, s. 16, the Court of Queen's Bench refused to compel them by mandamus to do so. — Ex-parte Fulder, 8 Dow. P. C. 535. Court will not on rari, re-hear the merits. struction of the statute relative to the offence described therein, or any irregularities in the different stages of the proceedings. But the Supreme Court will not, upon the rereturn of certio- turn of the writ of certiorari, re-hear the merits ; although in certain cases, and under peculiar circumstances, the Judges in England have consented to receive affidavits from both sides, for the purpose of procuring information with respect to collateral extrinsic proceedings. (a) Of the mode of Where certiorari is taken away by Crown is not barred. It is not considered necessary to swell the bulk of this work by going into any detail with regard to the practical means to be pursued in order to obtain the mandamus or certiorari, as full particulars will be readily found in any of the books relating to the practice of the superior courts of Common Law. And it is the less necessary to notice them further, on account of the unfrequency with which summary convictions will now be brought under the notice of the Judges; arising, doubtless, from the clause which is usually inserted in modern statutes relating to the summary jurisdiction, expressly taking away the power to remove the proceedings by certiorari, or otherwise, into any of the superior courts. (b). The general clause, taking away the certiorari the statute, the usually inserted in modern statutes, does not, however, extend to the Crown, which can only be barred by an enactment in which it is expressly referred to by nomination: and that there is no difference in this respect between the Crown and a private individual preferring an indictment or information in his own name, as every prosecution is considered in law to be on behalf of the Crown. A certiorari, therefore, at the instance of the informant to bring up to the Court of Queen's Bench an order of Sessions quashing a conviction of a Justice for a trespass under the new Game Act (1 & 2 Will. 4, c. 32) was allowed. (c) (a) Rex v. Jukes, 8 T. R., 542. 2 Chit. 137. (c) Rex v. Boultbee, Ad. & E., 496. Although this decision was made under the English Game Act, yet as the clause in that Act taking away the certiorari is worded in the same way as in other recent statutes, the judgment will apply equally to them all. ceedings before. reviewed by the The validity of convictions or warrants of com- Other modes mitment is also discussed in the superior courts whereby proupon the trial of actions for false imprisonment, Justices may be where the defendant has been committed for de- Superior Courts. fault in payment of the penalty imposed on him by the convicting Magistrate, upon which action the defendant is obliged to set up the conviction or commitment as his justification, when its legality is necessarily brought to an issue. An action may in like manner be brought so as to try the validity of the conviction upon the execution of a distress warrant. But it is obvious that it would be very hazardous to bring actions of this kind lightly or without mature consideration, as a failure would necessarily entail an additional and heavy burden on the defendant in the shape of costs. civil nature. Having thus taken a general view of the pro- of summary proceedings upon summary convictions partaking of ceedings of a a criminal nature, it will be necessary to refer but briefly to the other branch of the summary jurisdiction, namely, that which savours of the civil character. There are various cases in the nature of civil remedies which may be judicially determined by Justices of the Peace; some of which are for enforcing the payment of money upon contract, such as the recovery of servants' wages, (in this Colony one of the most frequent subjects for Magisterial adjudication.) There are also proceedings in the place of, and intended to supersede pro tanto, the action of ejectment, and to provide for the speedy and effectual recovery of the possession of premises unlawfully held over after the determination of the tenancy: and there are important powers confided to Magistrates relative to forcible entries and detainers. Various proceedings are also authorised and directed to be taken under our local statutes, wherein Justices are called upon to exercise their judicial authority, and enforce the payment of money by distress warrant and imprisonment, in the nature of civil remedies. The proceedings here alluded to, come, for the most part, under the denomination Various kinds of of orders; the course of proceedings being nearly civil proceedings the same as in the case of summary convictions. A are in the nature formal record of the order is required to be drawn of orders. up and signed by the Magistrates, and returned to the Quarter Sessions in the same way as in a conviction, and an order can be enforced in the same manner as a conviction by distress and commitment in most cases. It is necessary, however, that when a statute gives authority to Justices to enforce their orders by distress or commitment, the defendant should be served with a copy of the minute of such order, before the warrant of distress or of commitment is issued. With respect to the practical details of proceedings in this branch of summary jurisdiction, the practitioner will, it is believed, derive sufficient practical information from the preceding remarks, to enable him to shape his course with precision and proper effect; always bearing in mind that the observations and practical directions given in the foregoing pages, with regard to the process and general management of criminal cases tried summarily before Justices, are fully applicable to the general routine of proceedings in civil cases. Very varied are the latter cases wherein Justices are called upon to exercise their judicial authority; indeed every Session of our local Legislature is productive of statutes containing provisions to be carried into effect by the aid of the summary jurisdiction of Justices of the Peace. The annual increase of business thus thrown into the Magisterial Courts affords the best testimony which can be offered, as well of their general usefulness, as of the satisfactory discharge of their functions. Under our local Acts, important duties of various kinds are vested in Magistrates, but the clauses are framed in so dissimilar a manner that it would be useless to lay down any general forms of proceedings applicable to cases under those Acts; and the practitioner is recommended to examine carefully the provisions of the particular Act under which any proceedings are proposed to be taken, and adopt such of the preceding modes of procedure as may appear to be most opposite to its provi sions. indemnity, and This detailed examination of the principal requi- of the liability, sites to be observed by Magistrates in conducting protection of summary proceedings, from the complaint of an Magistrates. injured individual or informer, to the defendant's final acquittal or conviction, and the proceedings to enforce the same, concludes our review of “The "Administration of Justice Acts," which, it is seen, refer to a jurisdiction and practice of most essential and extensive importance; and relate to proceedings which, whilst they are of considerable interest to every Magistrate and professional person concerned, are of no less interest to the community at large. In now proceeding to consider the third of Sir J. Jervis's measures,"The Protection of Justices Act," (11 & 12 Vict., e. 44,)-it will be the duty of the Compiler to invite the attention of the Magistracy to the excellent provisions of this statute, which clearly define their liability, indemnity, and protection. It may be advisable to premise, that, on every Justices should account, Justices should refrain from taking a not act in cases part in any proceedings in which they have a personal inpersonal interest; because, although their conduct may be fair and honourable, it is still open to suspicion. In the case of Rex v. Gudridge,(a) it was held that the Magistrates should not inter(a) 5 B. & C. 459, where they have a terest. |