could not certify; but, under such circumstances, the order mentioned supra might be made with the variation suggested, and would doubtless be complied with. In the other instances where the justices exercising the discretion given to them by the 11 & 12 Vict. c. 43, do not include the costs of conveying to prison in the warrant of commitment, the 3 Jac. 1, c. 10, and the 27 Geo. 2, c. 3, may be applied in the usual manner without alteration of the forms of distress warrant or order.

Recognizances and Securities.

The Summary Jurisdiction Act, 1879, having introduced 42 & 43 Vict. several new provisions with reference to recognizances and c. 49. securities, it will be here advisable to refer to them.

By sect. 42 of the statute it is enacted that

Sect. 42.

court.

"When a court of summary jurisdiction has fixed, as respects Recognizance any recognizance, the amount in which the principal and the taken out of sureties (if any) are to be bound, the recognizance, notwithstanding anything in this or any other act, need not be entered into before such court, but may, subject to any rules made in pursuance of this act, be entered into by the parties before any other court of summary jurisdiction, or before any clerk of a court of summary jurisdiction, or before a superintendent or inspector of police or other officer of police of equal or superior rank or in charge of any police station, or where any of the parties is in prison, before the governor or other keeper of such prison; and thereupon all the consequences of law shall ensue, and the provisions of this act with respect to recognizances taken before a court of summary jurisdiction shall apply as if the recognizance had been entered into before the said court, as heretofore by law required."

Rules as to Forfeited Recognizances and varying Order for

Sureties.

forfeiture of

"Not less than two clear days before a warrant of distress is Rule 15. issued for a sum due by a principal in pursuance of a forfeited Notice to security under the Summary Jurisdiction Act, 1879, the clerk principal of of the court issuing the warrant shall cause notice of the security. forfeiture to be served on the principal. Service of the notice may be effected either by prepaid letter sent to the address mentioned in the security, or as service of a summons may be effected under the Summary Jurisdiction Acts."

42 & 43 Vict. c. 49.

Rule 16.

Mode of ap-
plication to
vary order
for sureties.
Regulations
as to securities
taken in pur-
suance of act.

"An application under sect. 26 of the Summary Jurisdiction Act, 1879, shall be an application for a summons requiring the complainant to show cause why the order made on his complaint should not be varied."

Sect. 23. (1.) "A person shall give security under this act, whether as principal or surety, either by the deposit of money with the clerk of the court, or by an oral or written acknowledgment of the undertaking or condition by which and of the sum for which he is bound, in such manner and form as may be for the time being directed by any rule made in pursuance of this act, and evidence of such security may be provided by entry thereof in the register under this act of proceedings of a court of summary jurisdiction or otherwise as may be directed by such rule.

(2.) "Any sum which may become due in pursuance of a security under this act from a surety shall be recoverable summarily, in manner directed by this act with respect to a civil debt, on complaint by a constable or by the clerk of the court directing such security to be given, or by some other person authorized for the purpose by that court or any other court of summary jurisdiction for the same county, borough or place.

(3.) "A court of summary jurisdiction may enforce payment of any sum due by a principal in pursuance of a security under this act which appears to such court to be forfeited, in like manner as if that sum were adjudged by a court of summary jurisdiction to be paid as a fine which the statute provides no mode of enforcing, if the security was given for a sum adjudged by a conviction, and in any other case in like manner as if it were a sum adjudged by a court of summary jurisdiction to be paid as a civil debt; provided that before a warrant of distress for the sum is issued, such notice of the forfeiture shall be served on the said principal, and in such manner as may be directed for the time being by rules under this act, and subject thereto by the court authorizing the security, or by any court to whom application is made for the issue of the warrant.

(4.) "Any sum paid by a surety on behalf of his principal in respect of a security under this act, together with all costs, charges and expenses incurred by such surety in respect of that security, shall be deemed a civil debt due to him from the principal, and may be recovered before a court of summary jurisdiction, in manner directed by this act, with respect to the recovery of a civil debt which is recoverable summarily.

(5.) "Where security is given under this act for payment of a sum of money, the payment of such sum shall be enforced by means of such security iu substitution for other means of enforcing such payment."

sional court

order for

26. "Where a person has been committed to prison by a court of Power of summary jurisdiction for default in finding sureties, any petty petty sessessional court for the same county, borough or place may, on with respect application made to them in manner directed by a rule made in to varying pursuance of this act, by him or by some one acting on his behalf, gureties. inquire into the case of the person so committed, and if upon new evidence produced to such court, or proof of a change of circumstances, the court think, having regard to all the circumstances of the case, that it is just so to do, they may reduce the amount for which it is proposed the sureties or surety should be bound, or dispense with the sureties or surety, or otherwise deal with the case as the court may think just."

SECT. VII. THE APPLICATION OF PENALTIES, &c.

The mode of application of penalties, compensation or other Application of penalties sums of money paid by defendants by virtue of convictions or in general. orders, is regulated by the particular statute under which the conviction or order is made,-i.e. either to the overseers of the poor in aid of the county rate, to the churchwardens of the parish where the offence is committed, or to an informer, to the party aggrieved, or the complainant, and in many other modes.1 Before the 11 & 12 Vict. c. 43 was passed, unappropriated Unappropriated fines. penalties were payable to the crown under 3 Geo. 4, c. 46, s. 2, and paid through the clerk of the peace and sheriff; but now, by 11 & 12 Vict. c. 43, s. 31, infra, they are payable to the treasurer of the county, &c., and as the statute contains no further provision, the treasurer would hold the monies so paid to him like any other county monies, just as the borough treasurer holds the penalties imposed by borough magistrates for the use of the borough. See the Form (T 1) in the schedule to the act.

By 11 & 12 Vict. c. 43, s. 31, set out ante, p. 73, the clerk Penalties, &c. to be paid to to the justices of the division where the conviction or order is justices' clerk, made is now made responsible for the due appropriation of all and applied penalties and sums "according to the directions of the statute by him.

1 To whom Penalties payable.]-The seventh column of Chap. II. of this part of the Work will show to whom the penalties or sums are payable in each case, and for what purpose. Penalties may be remitted by the crown although payable to other parties. See 22 Vict. c. 32, ante, P. 220.

O.S.

VOL. I.

R

c. 43, s. 31.

Sums unappropriated by statute.

11 & 12 Vict. on which the information or complaint in that behalf shall have been framed;"2 and in the forms of warrants of distress given by the statute, the constable is directed to pay the amount levied to the "clerk of the division;"3 and where the same is paid to the gaoler after committal, he is to remit the amount to the clerk also. 4 The same section (31st) provides, that if such statute shall contain no such directions for the payment of such sums to any person or persons, "then such clerk shall pay the same to the treasurer of the county, riding, division, liberty, city, borough or place5 for which such justice or justices shall have acted, and for which such treasurer shall give him a receipt without stamp." The clerk and gaoler, it will be seen by the section at p. 73, are to keep and render monthly accounts of sums received by them to the justices of the division, as well as the court of quarter sessions, when ordered to do so; but the justices in quarter sessions have no power to direct the clerks to the justices to pay those fines, &c., which are payable by the particular statutes to the overseers, to the county treasurer.

66

By 18 & 19 Vict. c. 126, s. 22-"In all cases where any justice or justices of the peace have or shall hereafter have power to order a sum of money to be forfeited and paid to the party aggrieved, as amends or compensation for any injury "to property, real or personal, the right of such party to re"ceive the money so ordered to be paid shall not be affected by such party having been examined as a witness in proof "of the offence, any law or statute to the contrary notwith"standing." 6

66

2 See Note 1, supra.

3 In the forms of distress warrants in the schedule to 11 & 12 Vict. c. 43, N 1, N 2, P 3, P4, Q 1 and S 1, he is called "Clerk of the Justices of the Peace for the Division," and in the form of return of fines, T 1, "Clerk of the Court of Petty Sessions."

4 Before the passing of the Stamp Act, 1870, 33 & 34 Vict. c. 97, if the penalty received was 21. or above, the Commissioners of Inland Revenue considered that receipts given for them were not liable to stamp duty; but that act attaches the duty to any "receipt given for, or upon the payment of, money," and is not confined, as before, to a "debt or demand." (See s. 120.)

5 See the decisions in Note 7, infra, as to the definition of the words "borough or place" in this section.

6 24 & 25 Vict. c. 96, s. 106; 24 & 25 Vict. c. 97, s. 64, which contain the re-enactments of the provisions here alluded to in 7 & 8 Geo. 4, cc. 29, 30, omit the disqualification of the party aggrieved, and therefore this enactment may be said to have ceased to be operative.

The following are other special provisions applicable to boroughs and counties respectively.

For offences in boroughs regulated by the 5 & 6 Will. 4, -in boc. 76, sect. 126 of that act enacts :

roughs;

"That when by any act any penalty or forfeitures are or shall 5 & 6 Will. 4, hereafter be made recoverable in a summary manner before any c. 76, s. 126. justice or justices of the peace, and by such act respectively the same are or shall be limited and made payable to his Majesty or to any body corporate, or to any person whomsoever, save and except the informer who shall sue for the same, or any party aggrieved, in every such case the same, if recovered and adjudged before any justice of any borough in which a separate court of quarter sessions for the peace shall be holden as aforesaid, shall, notwithstanding anything in such act respectively contained, be recovered for and adjudged to be paid to the treasurer of such borough for the time being, to the credit and on account of the borough fund of such borough,—and no such penalty or forfeiture, or share of such penalty or forfeiture, shall in any case be recovered by or adjudged to be paid to any other person than the said treasurer, unless such person be the informer or the party aggrieved; 7—provided always, that

7. Penalties in Boroughs.]—Reg. v. Dale (22 L. J. (N. S.) M. C. 44), decided on a conviction under the Alehouse Act, 9 Geo. 4, c. 61, by justices of a borough (as Tynemouth) which had a separate commission of the peace, but no court of quarter sessions, that the portion of the penalty— which by sect. 26, is to be paid in the "county or place" for which the justices are acting-must be paid to the treasurer of the county in which the town is situated, and not to the treasurer of the borough. In Mayor of Reigate v. Hunt or Hart (37 L. J. (N. S.) M. C. 70; 18 Law T., N. S. 237), it was decided that penalties levied in a borough which has no separate court of quarter sessions (as Reigate) are, in the absence of directions in the penal statute, payable to the county treasurer under 11 & 12 Vict. c. 43, s. 31, when imposed by the mayor, concurrently with the county justices or otherwise, the borough forming part of the petty sessional division of the county, the mayor being in the nature of a justice of the county with powers limited to a special locality. More recently, in Winn v. Mossman (38 L. J. (N. S.) Exch. 200; 20 L. T., N. S. 672), it was decided that penalties imposed by justices acting in and for a municipal borough having a separate commission of the peace, but no separate court of quarter sessions (as Bradford), in respect of offences against the general law of the land, or under 9 Geo. 4, c. 61, are, under the 11 & 12 Vict. c. 43, s. 31, to be paid to the treasurer of the county and not of the borough, notwithstanding the 24 & 25 Vict. c. 75, s. 4, which only defines "town corporate" and "place" in the 9 Geo. 4, c. 61, for the purpose of granting and withholding licences, and does not affect the application of penalties by that act. By the Public Health Act, 1875, s. 254, it is enacted that, "where the application of a penalty under this act is not otherwise provided for, one-half thereof shall go to the informer, and the remainder to the local authority of the district in which the offence was committed: Provided, that if the local authority are the informer, they shall be entitled to the whole of the penalty recovered; and all penalties or sums recovered by them on account of any penalty shall be paid over to their treasurer, and shall by him be carried to the account of the fund applicable by such authority to the general purposes of this act."