be executed on a Sunday; 10 but it remains in force until executed, and may be backed (11 & 12 Vict. c. 43, s. 3). If the defendant escapes from the constable on his road to the gaol, he may be retaken on a Sunday; for it doubtless would be held to include a breach of the peace, and an arrest on Sunday would therefore be lawful under 29 Car. 2, c. 7, s. 6. The observations at p. 198 should be considered when granting a warrant of commitment against several offenders. Strictly, there should be a separate commitment for each defendant, where more than one is convicted for a joint or several offence, or where they are not all committed on the same day, as well as where the punishment is different to each. It might recite that A. B. was convicted, "for that he the said A. B., together with C. D. and another, or others," on &c., at &c., unlawfully did [stating the offence], and then proceed in the same way as if A. B. were the only person convicted.

Where several offenders, a

separate commitment is re

commended.

The execution of warrants of commitment by the county Execution of police, and the transference of prisoners from station to station commitment to the gaol, are provided for by 3 & 4 Vict. c. 88, s. 33.

in counties.

On payment of the amount mentioned in a warrant of com- Discharge of defendant on mitment or distress, with the expenses, the constable must payment of cease to execute it (11 & 12 Vict. c. 43, ss. 28, 31); but after sum adjudged committal to prison the same must be paid to the gaoler, who or otherwise. will discharge the defendant, if he be in his custody for no other matter (s. 28), such as under a commitment for a consecutive period for another offence, &c. There seems, however, no objection (where more convenient) to the committing justice or the clerk receiving the amount after committal; in which latter case the justice should issue a liberate or discharge to the gaoler, stating that the condition of the commitment has been complied with. 11 On no other ground can a justice order a person committed to prison in a summary proceeding to be liberated (except where the particular statute authorizes it, as 24 & 25 Vict. c. 96, s. 108; 24 & 25 Vict. c. 97, s. 66, where the justice convicting may discharge the offender from his conviction on making satisfaction to the party aggrieved for damages and costs, or either of them, without payment of

10 R. v. Myers, 1 T. R. 265; Ex parte Eggington, 23 L. J. (N. S.) Q. B. 41. 11 Vide Form of Liberate, No. 113, p. 60, of Oke's "Formulist, 6th ed.

Remission of

the Crown.

22 Vict. c. 32.

the fine adjudged), even in cases where he has by mistake committed for a longer period than the statute authorized, or disproportionate to the penalty, &c. In such cases the home secretary of state will usually on a proper application authorize the prisoner's liberation from gaol.

66

As to the remission of penalties, the 22 Vict. c. 32, after penalties by reciting that "penalties which under penal statutes are made payable to parties other than the Crown cannot be remitted or pardoned by the Crown where no express provision has "been made by the statute for that purpose, and it is expe"dient that the law as to the remission of such penalties should "be amended and made uniform," enacts,

42 & 43 Vict. c. 49, s. 7.

Payment by

"It shall be lawful for her Majesty . . . to remit in whole or in part any sum of money which under any act now in force or hereafter to be passed may be imposed as a penalty or forfeiture on a convicted offender, although such money may be in whole or in part payable to some party other than the Crown, and to extend the royal mercy to any person who may be imprisoned for non-payment of any sum of money so imposed, although the same may be in whole or part payable to some party other than the Crown."

The Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49, contains some new and very important provisions relative to the payment of sums adjudged by a conviction or order. Thus, by sect. 7, it is enacted that,

"A court of summary jurisdiction, by whose conviction or order instalments of any sum is adjudged to be paid, may do all or any of the following or security things; namely,

taken for pay

ment of

money.

"(1.) Allow time for the payment of the said sum; and

"(2.) Direct payment to be made of the said sum by instalments;

and

"(3.) Direct that the person liable to pay the said sum shall be at liberty to give to the satisfaction of that court, or of such other court of summary jurisdiction, or such person as may be specified by that court, security with or without a surety or sureties for the payment of the said sum or of any instalment thereof, and such security may be given and enforced in manner provided by this Act. "Where a sum is directed to be paid by instalments and default is made in the payment of any one instalment, the same proceedings may be taken as if default had been made in payment of all the instalments then remaining unpaid.

"A court of summary jurisdiction directing the payment of a sum or of an instalment of a sum may direct such payment to be

c. 49.

made at such time or times, and in such place or places, and to such 42 & 43 Vict. person or persons, as may be specified by the court; and every person to whom any such sum or instalment is paid, where not the clerk of the court of summary jurisdiction, shall as soon as may be account for and pay over the same to that clerk.”

"Where a fine adjudged by a conviction by a court of summary Sect. 8. jurisdiction to be paid does not exceed five shillings, then, except Provision as so far as the court may think fit to expressly order otherwise, an to costs in the case of small order shall not be made for payment by the defendant to the infines. formant of any costs; and the court shall, except so far as they think fit to expressly order otherwise, direct all fees payable or paid by the informant to be remitted or repaid to him; the court may also order the fine or any part thereof to be paid to the informant in or towards the payment of his costs."

a copy

summons to

force enforc

Some doubts have arisen whether a distress warrant or com- No demand of mitment can issue, where the defendant does not appear on the penalty or hearing and determination of the case and where time is given defendant for payment, without a demand being first made of the amount necessary of penalty, &c.; but, as the present statute, 11 & 12 Vict. ing conviction c. 43, contains no provision on the subject, except as requiring or order; of the minute of an Order to be first served (s. 17, ante, p. 194), it appears clear that no such demand is necessary upon a conviction, and an ex parte hearing being allowed in all cases. 12 Neither is notice of the conviction necessary when it takes place in the defendant's absence; nor need a summons issue on nonpayment of a penalty or sum adjudged to be paid before the issue of the process to enforce payment. 13 Where, except in cerhowever, the order is to pay a sum at stated periods in future, -e. g. an order of maintenance or to contribute to a reformatory or industrial school or other like cases,—and which sum is not due at the time of the making of the order, then a complaint of the disobedience of the order, and a summons to answer, should precede the issue of the distress warrant or commitment.

12 Ex parte Edwards, 8 D. & Ry. 115; Wooton v. Harvey, 6 East, 79; Barnes v. White, 1 New Sess. Cas. 504; 1 C. B. 192, 205, 210; Arnold v. Dimsdale, 2 E. & B. 580; and other cases in Paley, 4th ed. pp. 255,

256.

13 See Bessell v. Wilson, 22 L. J. (N. S.) M. C. 94; and ss. 19, 23 of 11 & 12 Vict. c. 43 (post, pp. 224, 225), and the Forms of Distress Warrant and Commitment in that act.

tain cases.

Where time is

given, proof of non-payment.

Where time is given for payment of a penalty, &c., proof should be given by some qualified person of the nonpayment, before issuing the commitment or distress warrant.

11 & 12 Vict. c. 43.

Where imprisonment only is adjudged.

Sect. 24.

Defendant to be committed forthwith.

1. Enforcing Convictions on Informations.
2. Detention of Juveniles in Reformatories.
3. Enforcing Orders on Complaints.
4. Enforcing Costs on Dismissal.

5. Enforcing Costs of Conveyance to Gaol.

1. Enforcing Convictions on Informations.
The several descriptions of Convictions are:-
1 Where imprisonment only is adjudged (I 3);

2. Where imprisonment in default of payment of a penalty (I 2);
3. Where the penalty is to be levied by distress (I 1).

In the case of absolute imprisonment being adjudged for an
offence, as the commencement of the period cannot be post-
poned, 14 the defendant should be ordered into the custody of
some constable immediately on conviction.

11 & 12 Vict. c. 43, s. 24, enacts,-" That where a convic"tion does not order the payment of any penalty, but that the "defendant be imprisoned, or imprisoned and kept to hard labour, for his offence, or where an order is not for the

66

payment of money, but for the doing of some other act, and "directs that in case of the defendant's neglect or refusal to do "such act, he shall be imprisoned, or imprisoned and kept to "hard labour, and the defendant neglects or refuses to do "such act,-in every such case, it shall be lawful for such justice or justices making such conviction or order,—or for some other justice of the peace for the same county, riding, division, liberty, city, borough or place,-to issue his or "their warrant of commitment (P 1), under his or their hand "and seal or hands and seals, and requiring the constable or "constables to whom the same shall be directed 15 to take "and convey such defendant to the house of correction or

14 See observations of Cockburn, C. J., and Blackburn, J., in Reg. v. Cutbush and another, Justices of Maidstone, 36 L. J. (N. S.) M. C. 70; 2 L. Rep., Q. B. 379.

15 Vide Note 5, ante, p. 157, as to the manner of directing the warrant.

66

c. 43.

common gaol for the same county, riding, division, liberty, 11 & 12 Vict. city, borough or place, as the case may be, and there to "deliver him to the keeper thereof, and requiring such keeper "to receive such defendant into such house of correction or "gaol and there to imprison him, or to imprison him and keep "him to hard labour, as the case may be, for such time as the "statute on which such conviction or order is founded as afore"said shall direct;-and in all such cases, whereby such Costs to be "conviction or order any sum for costs shall be adjudged "to be paid by the defendant to the prosecutor or com"plainant, such sum may, if the justice or justices shall "think fit, be levied by warrant of distress (P 3), in manner aforesaid, 16 and in default of distress the defendant may, and in default "if such justice or justices shall think fit, be committed (P5) committal. "to the same house of correction or common gaol in manner "aforesaid, there to be imprisoned for any time not exceed

ing one calendar month; 17 to commence at the termination "of the imprisonment he shall then be undergoing, 18 unless "such sum for costs, and all costs and charges of the said "distress, and also the costs and charges of the commitment " and conveying of the defendant to prison, 19 if such justice "or justices shall think fit so to order, shall be sooner paid."

levied

rately,

sepa

mitted forth

If the defendant at the time of conviction confess he has no Defendant goods, or that fact appears to the justice or justices, or that may be comthe distress for the costs would be ruinous to him, as provided with for the by the 19th section (post, p. 225), it is generally supposed that costs. he may be committed forthwith for the additional term for these costs without issuing the distress warrant the form of conviction (I 3), it will be seen, providing for such an event,

16 See post, s. 19, p. 223.

17 This imprisonment may be either with or without hard labour, as the forms of Conviction I 3 and Commitment P 1 appear to authorize hard labour, and so does s. 18, ante, p. 195. But it will be subject to the scale in the Small Penalties Act, 1865 (28 & 29 Vict. c. 127), s. 4.

18 Costs. The defendant may be out of prison before the distress warrant for these costs is returned, and he could not then be committed for them. Neither this section (24th), nor the 18th, ante, p. 195, applies when the defendant has obeyed the order, for instance, to deliver up books, &c., and refuses to pay the costs, and, therefore, the costs cannot be recovered before justices.

19 Conveyance to Gaol.]-Upon the commitment for the offence it is presumed is meant here, because, the defendant being in gaol undergoing imprisonment, there would be but that conveyance; for by Note 18, supra, he could not be conveyed to prison for the costs after the termination of the imprisonment for the offence. However, the expenses can be recovered under 3 Jac. 1, c. 10, post, pp. 237, 238.