When the issuing a warrant

to defendant, or

of such warrant within the limits of his jurisdiction; by virtue of which said warrant and endorsement the penalty or sum aforesaid, and costs, or so much thereof as may not have been before levied or paid, shall be levied by the person bringing such warrant, or by the person or persons to whom such warrant was originally directed, or by any constable or other peace officer of such last mentioned territorial division, by distress and sale of the goods and chattels of the defendant therein.

59. Whenever it appears to any Justice of the would be ruinous Peace to whom application is made for any warrant when there are of distress as aforesaid, that the issuing thereof would may commit him be ruinous to the defendant and his family, or when

no goods, Justice

to prison.

When distress issued, defendant may be bailed until it is returned.

ever it appears to the said Justice, by the confession of the defendant or otherwise, that he hath no goods and chattels whereon to levy such distress, then such Justice, if he deems it fit, instead of issuing a warrant of distress, may (O 1, 2) commit the defendant to the common gaol, house of correction, or lock-up house in the territorial division, there to be imprisoned with or without hard labor, for the time and in the manner the defendant could by law be committed in case such warrant of distress had issued, and no goods or chattels had been found whereon to levy the penalty or sum and costs aforesaid.

60. In all cases where a Justice of the Peace issues any such warrant of distress, he may suffer the defendant to go at large, or, verbally or by a written warrant in that behalf, may order the defendant to be kept and detained in safe custody until return has been made to such warrant of distress, unless the defendant gives sufficient security, by recognizance or otherwise, to the satisfaction of such Justice, for his appearance before him at the time and place appointed for the return of such warrant of distress,

or before such other Justice or Justices for the same territorial division as may then be there.*

not afterwards

cognizance to be

Clerk of the

61. In all cases where a defendant gives security If defendant does by recognizance as aforesaid, and does not after- appear, the rewards appear at the time and place in the said recog- certified by a nizance mentioned, the Justice who hath the same, Peace. or any Justice or Justices who may then be there present, upon certifying (F) on the back of the recognizance the non-appearance of the defendant, may, in Upper Canada, transmit such recognizance to the Clerk of the Peace for the territorial division within which the offence is said to have been committed, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient prima facie evidence of such non-appearance of the said defendant.†

ficient distress,

mit defendant to

62. If at the time and place appointed for the In default of suf return of any such warrant of distress, the constable, Justice may com who has had execution of the same, returns (N 4) prison. that he could find no goods or chattels, or no sufficient goods or chattels, whereon he could levy the sum or sums therein mentioned, together with the costs of, or occasioned by the levy of the same, the Justice of the Peace before whom the same is returned may issue his warrant of commitment (N 5) under his hand and seal, directed to the same or any other constable, reciting the conviction or order shortly, the issuing of the warrant of distress, and the return thereto, and requiring such constable to convey such defendant to the common gaol, house

* Care should be taken, in acting under the provision of this section, that the warrant of distress be made returnable on a certain day; for if no day be fixed, and the defendant is ordered into custody until such time as the return is made, the imprisonment would be for an indefinite period, and would subject the Justice to an action.

The marginal note of this section is not correct. After the words "certified by a" insert the words "Justice, and transmitted to the," which appear to have been omitted.

of correction, or lock-up house of the territorial division for which such Justice is then acting, and there to deliver him to the keeper thereof, and requiring such keeper to receive the defendant into such gaol, house of correction or lock-up house and there to imprison him, or to imprison him and keep him to hard labor, in such manner and for such time as is directed and appointed by the statute on which the conviction or order mentioned in such warrant of distress is founded, unless the sum or sums adjudged to be paid, and all costs and charges of the distress, and also the costs and charges of the commitment and conveying of the defendant to prison, if such Justice thinks fit so to order (the amount thereof being ascertained and stated in such commitment) be sooner paid.*

63. Where a Justice or Justices of the Peace, upon such information or complaint as aforesaid, adjudges the defendant to be imprisoned, and such defendant is then in prison undergoing imprison

ment upon conviction for any other offence, the

*The term of imprisonment will commence running from the time when the prisoner is taken into custody under the warrant, and not from the time of signing the order or warrant.

The commitment must be for a time certain; and a Justice's warrant committing a party in default of his finding sureties to keep the peace, "until he should find such sureties, or be discharged by due course of law," was held bad. (Bickett v. Greatrex, 8 Q. B. 1021).

With regard to the duration of the imprisonment, the statutes will be found to vary considerably, 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.

Warrants of commitment should carefully recite the convictions on which they are grounded, and should not be in any respect repugnant thereto; 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 Justice was liable to an action of trespass on account of such omission or variation. (Weikes v. Clatterbuck, 2 Bing. 483.)

The warrant of commitment, like the conviction, should be precise in setting out the nature of the offence, and that it was committed in such a place, naming the township and county, or otherwise shewing that the offence was committed within the jurisdiction of the convicting Justice. But the warrant will be generally sufficient if it substantially follow the forms given in the schedule to this act, and found under the article "Commitment."

warrant of conviction for such subsequent offence shall be forthwith delivered to the gaoler or other officer to whom the same is directed, and the Justice or Justices who issued the same, if he or they think fit, may award and order therein, that the imprisonment for such subsequent offence shall commence at the expiration of the imprisonment to which such defendant was previously adjudged or sentenced.

dismissed; costs

by distress upon

64. When any information or complaint is dis- If information be missed with costs as aforesaid, the sum awarded for may be recovered costs in the order for dismissal may be levied by dis- prosecutor. tress (Q1) on the goods and chattels of the prosecutor or complainant, in the manner aforesaid; and in default of distress or payment, such prosecutor or complainant may be committed (Q 2) to the common gaol or other prison or lock-up house, or house of correction, in manner aforesaid, for any term not exceeding one month, unless such sum, and all costs and charges of the distress, and of the commitment and conveying of such prosecutor or complainant to prison (the amount thereof being ascertained and stated in such commitment), be sooner paid.

tion shall be en

65. In case an appeal against any such conviction And the convic or order as aforesaid be decided in favor of the respon- forced. dents, the Justice or Justices who made the conviction or order, or any other Justice of the Peace for the same territorial division, may issue the warrant of distress or commitment as aforesaid for execution of the same, as if no such appeal had been brought.

be ordered to be

66. If upon any such appeal the Court of General If costs of appeal or Quarter Sessions orders either party to pay costs, paid. the order shall direct the costs to be paid to the Clerk of the Peace of the court, to be by him paid over to the party entitled to the same, and shall state within what time such costs shall be paid.

If they be not

paid within a

be not secured

67. If the same be not paid within the time so certain time and limited, and the party ordered to pay the same has by recognizance. not been bound by any recognizance conditioned to pay such costs, the Clerk of the Peace or his deputy, on application of the party entitled to such costs, or of any person on his behalf, and on payment of a fee of twenty cents, shall grant to the party so applying a certificate (R) that such costs have not been paid, and upon production of such certificate to any Justice or Justices of the Peace for the same territorial division, he or they may enforce the payment of such costs by warrant of distress (S 1) in manner aforesaid, and in default of distress, he or they may commit (S 2) the party against whom such warrant has issued in manner hereinbefore mentioned, for any time not exceeding two months, unless the amount of such costs and all costs and charges of the distress, and also the costs of the commitment and conveying of the said party to prison, if such Justice or Justices think fit so to order (the amount thereof being ascertained and stated in such commitment), be sooner paid.

On payment of penalty, distress

68. In all cases where a warrant of distress has not to be levied. issued as aforesaid against any person, and such person pays or tenders to the constable having the execution of the same, the sum or sums in such warrant mentioned, together with the amount of the expenses of such distress up to the time of payment or tender, such constable shall cease to execute the same.

Or the party, if Imprisoned for non-payment, may be discharged.

69. In all cases in which any person is imprisoned as aforesaid for non-payment of any penalty or other sum, he may pay or cause to be paid to the keeper of the prison in which he is imprisoned the sum in the warrant of commitment mentioned, together with the amount of the costs, charges and expenses (if any) therein also mentioned, and the said keeper shall receive the same, and shall thereupon discharge