the court or judge before which or whom the question is raised is, upon perusal of the depositions, satisfied that an offence of the nature described in the conviction, order or warrant, has been committed, over which such justice has jurisdiction, and that the punishment imposed is not in excess of that which might have been lawfully imposed for the said offence; and any statement which, under this Act or otherwise, would be sufficient if contained in a conviction, shall also be sufficient if contained in an information, summons, order or warrant: Provided that the court or judge, where so satisfied as aforesaid, shall, even if the punishment imposed or the order made is in excess of that which might lawfully have been imposed or made, have the like powers in all respects to deal with the case as seems just as are by section eight hundred and eighty-three conferred upon the court to which an appeal is taken under the provisions of section eight hundred and seventy-nine.

c. 178 s. 87. 53 V. c. 37, s. 27.

R. S. C.

890. The following matters amongst others shall be held to be within

the provisions of the next preceding section :

(a) The statement of the adjudication, or of any other matter or thing, in the past tense instead of in the present;

(b) The punishment imposed being less than the punishment by law assigned to the offence stated in the conviction or order, or to the offence which appears by the depositions to have been committed;

(c) The omission to negative circumstances, the existence of which would make the act complained of lawful, whether such circumstances are stated by way of exception or otherwise in the section under which the offence is laid, or are stated in another section.

2. But nothing in this section contained shall be construed to restrict the generality of the wording of the next preceding section. R. S. C. c. 178, 8. 88.

891. If an application is made to quash a conviction or order made by a justice, on the ground that such justice has exceeded his jurisdiction, the court or judge to which or whom the application is made, may, as a condition of quashing the same, if the court or judge thinks fit so to do, provide that no action shall be brought against the justice who made the conviction, or against any officer acting under any warrant issued to enforce such conviction or order. R. S. C. c. 178, s. 89.

892. The court having authority to quash any conviction, order or other proceeding by or before a justice may prescribe by general order that no motion to quash any conviction, order or other proceeding by or before a justice and brought before such court by certiorari, shall be entertained unless the defendant is shown to have entered into a recognizance with one or more sufficient sureties, before a justice or justices of the county or place within which such conviction or order has been made, or before a judge or other officer, as may be prescribed by such general order, or to have made a deposit to be prescribed in like manner, with a condition to prosecute such writ of certioruri at his own costs and charges, with effect, without any wilful or affected delay, and, if ordered so to do, to pay the person in whose favour the conviction, order or other proceeding is affirmed, his full costs and charges to be taxed

according to the course of the court where such conviction, order or proceeding is affirmed. R. S. C. c. 178, s. 90.

893. The second section of the Act of the Parliament of the United Kingdom, passed in the fifth year of the reign of His Majesty King George the Second, and chaptered nineteen, shall no longer apply to any conviction, order or other proceeding by or before a justice in Canada, but the next preceding section of this Act shall be substituted therefor, and the like proceedings may be had for enforcing the condition of a recognizance taken under the said section as might be had for enforcing the condition of a recognizance taken under the said Act of the Parliament of the United Kingdom. R. S. C. c. 178, 8. 91.

See R. v. Nunn, 10 P. R. Ont., 395, and R. v. Swalwell, 12 O. R. 391, and preceding section.

894. No order, conviction or other proceeding shall be quashed or set aside, and no defendant shall be discharged, by reason of any objection that evidence has not been given of a proclamation or order of the Governor in Council, or of any rules, regulations, or by-laws made by the Governor in Council in pursuance of a statute of Canada or of the publication of such proclamation, order, rules, regulations or by-laws in the Canada Gazette; but such proclama tion, order, rules, regulations and by-laws and the publication thereof shall be .judicially noticed. 51 V. c. 45, s. 10.

895. If a motion or rule to quash a conviction, order or other proceeding is refused or discharged, it shall not be necessary to issue a writ of procedendo, but the order of the court refusing or discharging the application shall be a sufficient authority for the registrar or other officer of the court forthwith to return the conviction, order and proceedings to the court or justice from which or whom they were removed, and for proceedings to be taken thereon for the enforcement thereof, as if a procedendo had issued, which shall forthwith be done. R. S. C. c. 178, s. 93.

896. Whenever it appears by the conviction that the defendant has appeared and pleaded, and the merits have been tried, and the defendant has not appealed against the conviction, where an appeal is allowed, or if appealed against, the conviction has been affirmed, such conviction shall not afterwards be set aside or vacated in consequence of any defect of form whatever, but the construction shall be such a fair and liberal construction as will be agreeable to the justice of the case. R. S. C. c. 178, 8. 94.

897. If upon any appeal the court trying the appeal orders either party to pay costs, the order shall direct the costs to be paid to the clerk of the peace or other proper officer of the court, to be paid over by him to the person entitled to the same, and shall state within what time the costs shall be paid. R. S. C. c. 178, s. 95.

898. If such costs are not paid within the time so limited, and the person ordered to pay the same has not been bound by any recognizance conditioned to pay such costs, the clerk of the peace or his deputy, on application of the person entitled to the costs, or of any person on his behalf, and on pay

ment of any fee to which he is entitled, shall grant to the person so applying, a certificate that the costs have not been paid; and upon production of the certificate to any justice in and for the same territorial division, such justice may enforce the payment of the costs by warrant of distress in manner aforesaid, and in default of distress may commit the person against whom the warrant has issued in manner hereinbefore mentioned, for any term not exceeding one month, unless the amount of the costs and all costs and charges of the distress and also the costs of the commitment and conveying of the party to prison, if the justice thinks fit so to order (the amount thereof being ascertained and stated in the commitment), are sooner paid. The said certificate shall be in the form PPP and the warrants of distress and commitment in the forms QQQ and RRR respectively in schedule one to this Act. R. S. C. c. 178, s. 96.

PPP. (Section 898.)

CERTIFICATE OF CLERK OF THE PEACE THAT THE COSTS OF AN APPEAL ARE NOT PAID.

Office of the clerk of the peace for the county of

Title of the Appeal.

I hereby certify that at a Court of General Sessions of the Peace,, (or other court discharging the functions of the Court of General Sessions, as the case may be), holden at

in and

for the said county, on last past, an appeal by A. B. against a conviction (or order) of J. S. Esquire, a justice of the peace in and for the said county, came on to be tried, and was there heard and determined, and the said Court of General Ses-· sions (or other court, as the case may be) thereupon ordered that the said conviction (or order), should be confirmed (or quashed), and that the said (appellant) should pay to the said (respondent) the sum of for his costs incurred by him in the said appeal, and which sum was thereby ordered to be paid to the clerk of the peace for the said county, on or before the

day of (instant), to be by him handed over to the said (respondent), and I further certify that the said sum for costs has not, nor has any part thereof, been paid in obedience to the

QQQ.-(Section 898.)

WARRANT OF DISTRESS FOR COSTS OF AN APPEAL AGAINST A CONVICTION OR ORDER..

Canada,

Province of
County of

To all or any of the constables and other peace officers in the said county of

:

Whereas (&c., as in the warrants of distress, DDD or EEE., and to the end of the statement of the conviction or order, and then thus) And whereas the said A. B. appealed to the Court of General Sessions of the Peace (or other court discharging the functions of the Court of General Sessions, as the case may be), for the said county, against the said conviction or order, in which appeal the said A. B. was the appellant, and the said C. D. (or J. S., Esquire, the justice of the peace who made the said conviction or order) was the respondent, and which said appeal came on to be tried and was heard and determined at the last General Sessions of the Peace (or other court, as the case may be) for the said county, holden at and the said court thereupon ordered that the said conviction (or order) should be confirmed (or quashed) and that the said (appellant) should pay to the said (respondent) the sum of for his costs incurred by him in the said appeal, which said sum was to be paid to the clerk of the peace for the said county, on or be fore the

and

day of

day of

on

one thousand eight hundred to be by him handed over to the said C. D.; and

whereas the clerk of the peace of the said county has, on the (instant), duly certified that the said sum for costs had not been paid:* These are, therefore, to command you, in Her Majesty's name, forthwith to make distress of the goods and chattels of the said A. B., and if, within the term of days next after the making of such distress, the said last mentioned sum, together with the reasonable charges of taking and keeping the said distress, are not paid, then to sell the said goods and chattels so by you distrained, and to pay the money arising from such sale to the clerk of the peace for the said county of that he may pay and apply the same as by law directed; and if no such distress can be found,

then to certify the same unto me or any other justice of the peace for the same county that such proceeding (proceedings) may be had therein as to law appertain.

Given under my hand and seal, this

day of

WARRANT OF COMMITMENT FOR WANT OF DISTRESS IN THE LAST CASE.

Canada,

Province of

County of

To all or any of the constables and other peace officers in the said county of

Whereas (dc., as in form QQQ, to the asterisk * and then thus) : And whereas, afterwards, on the

day of

, commanding

for costs,

in the year aforesaid, I, the undersigned, issued a warrant to all or any of the peace officers in the said county of them, or any of them, to levy the said sum of by distress and sale of the goods and chattels of the said A. B.; And whereas it appears to me, as well by the return to the said warrant of distress of the peace officer who was charged with the execution of the same, as otherwise, that the said peace officer has made diligent search for the goods and chattels of the said A. B., but that no sufficient distress whereon to levy the said sum above mentioned could be found: These are, therefore, to command you, the said peace officer, or any one of you, to take the said A. B., and him safely to convey to the common gaol of the said county of aforesaid, and there deliver him to the said keeper thereof, together with this precept: And I do hereby command you, the said keeper of the said common gaol, to receive the said A. B. into your custody in the said common gaol, there to imprison him (and keep him at hard labour) for the term of unless the said sum and all costs and charges of the said distress (and for the commitment and conveying of the said A. B. to the said common gaol,

at