minute.

4. The sheriff shall observe the direction in such minute Sheriff shall written upon such roll and writ, or endorsed thereon, and shall observe forbear accordingly to levy any such forfeited recognizance or fine so directed not to be levied. 55-56 V., c. 29, s. 919.

from

1109. If any person on whose goods and chattels a sheriff, Discharge bailiff or other officer is authorized to levy any such forfeited custody recognizance, gives security to the said sheriff or other officer on giving for his appearance at the return day mentioned in the writ, in security. the court into which such writ is returnable, then and there to abide the decision of such court, and also to pay such forfeited recognizance, or sum of money to be paid in lieu or satisfaction thereof, together with all such expenses as are adjudged and ordered by the court, such sheriff or officer shall discharge such person out of custody, and if such person does not appear in pursuance of his undertaking, the court may forthwith issue a Writ of fieri writ of fieri facias and capias against such person and the facias and surety or sureties of the person so bound as aforesaid. 55-56 V., c. 29, s. 921.

capias on non-appear

ance.

1110. The court, into which any writ of fieri facias and Discharge capias, issued under the provisions of this Part is returnable, of forfeited recognizmay inquire into the circumstances of the case, and may in its ance. discretion, order the discharge of the whole of the forfeited recognizance, or sum of money paid or to be paid in lieu or satisfaction thereof, and make such order thereon as to such court appears just; and such order shall accordingly be a discharge to the sheriff, or to the party, according to the circumstances of the case. 55-56 V., c. 29, s. 922.

An order made under sec. 1110 for the discharge of a forfeited recognizance is a civil and not a criminal proceeding. Re McArthur's Bail (1897), 3 Can. Cr. Cas. 195.

sheriff.

1111. The sheriff, to whom any writ is directed under this Return of Part, shall return the same on the day on which the same is writ by made returnable, and shall state, on the back of the roll attached to such writ, what has been done in the execution thereof; and such return shall be filed in the court into which such return is made. 55-56 V., c. 29, s. 923.

Minister of

1112. A copy of such roll and return, certified by the clerk Roll and of the court into which such return is made, shall be forth- return to with transmitted to the Minister of Finance, with a minute Finance. thereon of any of the sums therein mentioned, which have been

Estreat on default.

remitted by order of the court, in whole or in part, or directed to be forborne, under the authority of section eleven hundred and eight. 55-56 V., c. 29, s. 924.

Provisions Applicable only to the Province of Quebec. 1113. Whenever default is made in the condition of any recognizance lawfully entered into or taken in any criminal case, proceeding or matter, in the province of Quebec, within the legislative authority of the Parliament of Canada, so that the penal sum therein mentioned becomes forfeited and due to the Crown, such recognizance shall thereupon be estreated or withdrawn from any record or proceeding in which it then is, or, where the recognizance has been entered into orally in open court, a certificate or minute of such recognizance, under the made when seal of the court, shall be made from the records of such court. recognizance oral. 55-56 V., c. 29, s. 926.

Minute

Transmission of recognizance, etc., to Superior Court.

It is not essential to the validity of a recognizance that it should be signed by the cognizor. R. v. Corbett (1894), 7 Que. S.C. 465.

1114. Such recognizance, certificate or minute, as the case may be, shall be transmitted by the court, recorder, justice, magistrate or other functionary before whom the cognizor, or the principal cognizor, where there is a surety or sureties, was bound to appear, or to do that by his default to do which the condition of the recognizance is broken, to the Superior Court in the district in which the place where such default was made is included for civil purposes, with the certificate of the court, recorder, justice, magistrate or other functionary as aforesaid, Certificate of the breach of the condition of such recognizance, of which, and of the forfeiture to the Crown of the penal sum therein mentioned, such certificate shall be conclusive evidence. 55-56 V., c. 29, s. 926.

evidence of

forfeiture.

Judgment to be entered.

Execution to issue.

Execution

on fiat.

1115. The date of the receipt of such recognizance or minute and certificate by the prothonotary of the said court shall be endorsed thereon by him, and he shall enter judgment in favour of the Crown against the cognizor for the penal sum mentioned in such recognizance, and execution may issue therefor after the same delay as in other cases, which shall be reckoned from the time the judgment is entered by the prothonotary of the said court. 55-56 V., c. 29, s. 926.

1116. Such execution shall issue upon fiat or præcipe of the Attorney General, or of any person thereunto authorized in

writing by him; and the Crown shall be entitled to the costs
of execution and to costs on all proceedings in the case subse-
quent to execution, and to such costs, in the discretion of the Costs.
court, for the entry of the judgment, as are fixed by any tariff.

ment.

2. The cognizor shall be liable to coercive imprisonment for Imprisonthe payment of the judgment and costs. 55-56 V., c. 29, s. 926; 57-58 V., c. 57, s. 1.

lands.

1117. When sufficient goods and chattels, lands or tene- Insufficient ments cannot be found to satisfy the judgment against a coggoods or nizor and the same is certified in the return to the writ of execution or appears by the report of distribution, a warrant of commitment addressed to the sheriff of the district may issue upon the fiat or præcipe of the Attorney General, or of any person thereunto authorized in writing by him, and such warrant shall be authority to the sheriff to take into custody the body Arrest of of the cognizor so in default and to lodge him in the common cognizor. gaol of the district until satisfaction is made, or until the court which issued such warrant, upon cause shown as hereinafter mentioned, makes an order in the case and such order has been fully complied with.

2. Such warrant shall be returned by the sheriff on the day Return of on which it is made returnable and the sheriff shall state in his warrant. return what has been done in execution thereof.

3. On petition of the cognizor, of which notice shall be given Discharge of to the clerk of the Crown of the district, the court may inquire cognizor. into the circumstances of the case and may in its discretion order the discharge of the amount for which he is liable or make such order with respect thereto and to his imprisonment Order may as may appear just, and such order shall be carried out by the sheriff. 57-58 V., c. 57, s. 1.

Where there are several cognizors the goods and lands of all of them must be proceeded against before enforcing the default by personal arrest of any of them. R. v. Ferris (1895), 9 Que. S.C. 376.

be made.

ance.

1118. When a person has been arrested in any district for Process on an offence committed within the limits of the province of recognizQuebec, and a justice has taken recognizances from the witnesses heard before him or another justice, for their appearance at the next session or term of the court of competent criminal jurisdiction, before which such person is to undergo his trial there to testify and give evidence on such trial and such recognizances have been transmitted to the office of the

Recovery by action.

Imprisonment.

clerk of such court, the said court may proceed on the said recognizances in the same manner as if they had been taken in the district in which such court is held. 55-56 V., c. 29, s. 926.

1119. Whenever any sum forfeited by the non-performance of the conditions of a recognizance cannot for any reason be recovered in the manner provided in the last four preceding sections, the same shall be recoverable, with costs, by action in any court having jurisdiction in civil cases to the amount, at the suit of the Attorney General of Canada or of Quebec, or other person or officer authorized to sue for the Crown; and in any such action it shall be held that the person suing for the Crown is duly empowered so to do, and that the conditions of the recognizance were not performed, and that the sum therein mentioned is, therefore, due to the Crown, unless the defendant proves the contrary.

2. The cognizor for the recovery of the judgment in any such action shall be liable to coercive imprisonment in the same manner as a surety is in the case of judicial suretyship in civil matters. 55-56 V., c. 29, s. 926; 57-58 V., c. 57, s. 1.

PART XXII.

EXTRAORDINARY REMEDIES.

accused on

ment.

1120. Whenever any person in custody charged with an Detention indictable offence has taken proceedings before a judge or of person criminal court having jurisdiction in the premises by way of inquiry as to certiorari, habeas corpus or otherwise, to have the legality of legality of imprisonhis imprisonment inquired into, such judge or court may, with or without determining the question, make an order for the further detention of the person accused, and direct the judge or justice, under whose warrant he is in custody, to take any proceedings, hear such evidence, or do such further act as in the opinion of the court or judge may best further the ends of justice. 55-56 V., c. 29, s. 752.

Further detention on habeas corpus, etc.]—It was held in Re Timson (1870), L.R. 5 Exch. 257, that where a prisoner is brought up on a writ of habeas corpus, and the return shews a commitment bad on the face of it, the court will not, on the suggestion that the conviction is, good, adjourn the case for the purpose of having the conviction brought up, and amending the commitment by it in a case where the magistrates had not brought the conviction before the court, although served with notice and appearing by counsel.

In R. v. Fife (1889), 17 Ont. R. 710, a warrant of commitment for trial, issued in a preliminary enquiry upon a charge of having "wilfully and maliciously" burned down a fence, was quashed by MacMahon, J., as insufficient because it did not charge also that the act was done "unlawfully." The prosecution was there taken under the Malicious Injuries to Property Act, R.S.C. 1886, ch. 168, sec. 58, under which section the injury must have been done "unlawfully and maliciously" in order to constitute an offence thereunder.

In R. v. Chaney (1838), 5 Dowl. 281, the commitment was defective in not alleging matter essential to the offence, and the right to certiorari on the part of the accused had been taken away by statute, but not the right to habeas corpus. The court held that unless the Crown brought up the conviction, the commitment, although defective, would be considered as a true recital of it.

Where, however, the application is one upon affidavits for a writ of habeas corpus, the usual practice is to require that the conviction be brought up, before the court will take any notice of a defect in the warrant; and for this purpose a certiorari in aid is taken to bring up the record, and a writ of habeas corpus to bring up the defendant. R. v. Taylor, 7 D. & R. 622.

The inclusion of the process of certiorari in Code sec. 1120, leads to the inference that the powers thereby conferred are to apply as well after as before the conviction, and that a person convicted still remains a person "charged" with an indictable offence.