offence be bailable or not, and also that the party may know for what he suffers, and how he may regain his liberty. And if it does not, it is not only a ground for discharging the party, but the warrant is void, and no justification in an action for false imprisonment. The very nature of the warrant requires that it shall state the cause of the committal; and a warrant issued by a justice, founded upon an information which discloses no criminal offence, cannot be sustained by proof that there was in fact parol evidence on oath given, which conveyed a criminal charge. The same precision is not required in a commitment for safe custody before trial, nor is the latter construed with the same strictness as a commitment in execution. But a commitment of a party to answer generally to such things as shall be objected against him is utterly against law.

Particularity in warrants in execution. It is no ground of objection to a warrant that it differs in some particulars from the convictions so long as it discloses substantially the same offence. But it should show a good conviction. The King's Bench Division will not criticise a warrant of commitment with the same strictness to which a conviction is subjected, if there be reasonable grounds for presuming that the conviction (on which the commitment is founded) is free from objection (R. v. Rogers, 1 D. & R. 156). If a warrant of commitment in execution manifestly defective on the face of it, shows that there has been a conviction, the Court will not notice the defect until the conviction is returned into Court, if the defect is one the conviction may cure, and if the applicant can remove the conviction by certiorari; and in such case if the conviction be right, the defect in the commitment will be cured, provided the latter shows a like offence to that stated in the conviction (R. v. Taylor, 7 D. & R. 623). The commitment is to be read with the conviction and construed the same way (R. v. Mellor, 2 Dowls. 173). Where the warrant gave an insufficient description of the offence, it was cured by a good conviction which was put in evidence, in an action brought against the magistrate (Stamp v. Sweetland, 8 Q.B. 13). But where there is a material variance between the conviction and the recital of it in the warrant of commitment, as where the commitment is for an offence created by a different statute from that on which the defendant was convicted, although it may relate to the same subject matter, the conviction is bad (Wood v. Fenwick, 10 M. & W. 193).

Cause to be specified. Every warrant of commitment must specify the cause and show jurisdiction; and where it is in execution (and it is, in all cases of commitment after conviction) it must allege the party to have been convicted of the offence [Petty Sessions Act, Sched. (E, b); R. v. Gourlay, 7 B. & C. 669].

A good conviction not presumed in support of commitment.-The Court, however, will not assume a good conviction in support of the commitment. If the writ of certiorari be taken away from the applicant, the conviction will, primâ facie, be taken to be such as is recited in the warrant of commitment, and it lies upon the party who asserts that it is in a different form to bring it before the Court.

Where imprisonment ordered on default of distress.-Imprisonment in

default of distress is not an original punishment, but is merely the means of enforcing payment of a fine or compelling obedience to the order of the magistrate. Except in cases where he is authorised by statute so to do, the magistrate cannot legally commit where the power of imprisoning is merely a subsidiary means of enforcing payment of the fine or penalty in default of a sufficient distress, until the want of sufficient goods to answer the fine or penalty has been first ascertained, which should regularly be certified by the officer's return to the warrant of distress.

In offence cases where there is the option of fining or imprisoning, when the justices choose to inflict the former penalty they should, in cases not coming within the Small Penalties (Ireland) Act, 1873, or where the party ordered to pay the penalty does not admit, or it is not otherwise proved on oath that a distress would be ruinous to him or his family, issue their distress warrant in the first instance, and the defendant should not be committed to prison until the want of a sufficient distress has first been ascertained, unless there be some statute dispensing with the necessity for issuing a distress warrant in the particular case, and authorising the justices to commit to prison without any warrant of distress having been issued.

By the Petty Sessions Act, sect. 22, cl. 3, when the party convicted admits, or it is otherwise proved on oath that he has no goods, or that a distress would be ruinous to himself or his family, the justices may order that such party shall be imprisoned in the first instance for the like period for which he might be imprisoned in default of distress.

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not

By the Small Penalties (Ireland) Act, 1873, sect. 4, where upon summary conviction any offender is adjudged to pay a penalty exceeding five pounds, such offender in case of non-payment thereof, may without any warrant of distress be committed to prison for any term not exceeding the period specified in the scale mentioned unless the penalty shall be sooner paid. But when the "penal sum" exceeds five pounds, the proceedings are regulated by the Petty Sessions Act, sect, 22, "Penal sum in this section does not include costs (cl. 9).

cl. 3.

In the case of a "penalty" (under Small Penalties Act, 1873, sect. 3) the scale of imprisonment mentioned in the fourth section of that Act is the proper one to be followed, whether such penalty is adjudged under a statute passed before or after the commencement of that Act (1st Sept. 1873) unless the statute passed after that date prescribes a different scale, in which case the latter scale should be followed. In the case of "penal sums" exceeding five pounds, the scale of imprisonment in the Petty Sessions Act, sect. 22, cl. 3 is the one to be followed unless a different scale has been prescribed by statute subsequent to that Act.

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The word penalty" in sect. 4 of the Small Penalties (Ireland) Act, 1873, means the aggregate amount of the penalty strictly so-called and the costs. At least (per Lord O'Brien, L.C.J.), where the incorporation of the costs with the penalty strictly so-called does not produce an aggregate sum exceeding £5.

R. was summarily convicted by justices at Petty Sessions (under sect. 1 of the Motor Car Act, 1903, and ordered to pay for fine £3, and costs 5s. 6d., or in default of payment to be imprisoned for two months unless said sums are sooner paid.

It was held that the conviction was good. Lord O'Brien, in the course of his judgment, observed that, "having regard to the 3rd, 4th,

and 6th sects. of the Small Penalties Act, the amount of the penalty, strictly so described, and the amount of the costs, if any, can, in my opinion, be bulked so as to constitute one penal sum, as in this case, where the aggregate of the sums adjudged for penalty and costs does not exceed the maximum limit under the Small Penalties Act, that is to say the sum of £5.”

Per Andrews, J.: "Having regard to the 3rd, 4th, and 6th sections of the Act, I am of opinion that the word 'penalty,' in and throughout the Act, means the penal sum and the costs adjudged to be paid by the offender, that is, the total amount of both." So, also, in R. (Hastings) v. Galway JJ. (1907, 2 I. R. 18), the same principle is followed. In both these cases the decision of R. (Herbert) v. Kildare JJ. (1895, 2 I. R. 577), is commented on, and in the latter case is disapproved of by Wright, J.

Time of imprisonment and condition of discharge, &c.-If the commitment be for safe custody until trial the warrant should state "until his trial for said offence, and he shall be discharged by due course of law." If it be a witness who is committed it should state, "until the trial of the said C. W., unless he shall in the meantime enter into such recognisance as required (or until the day of -, unless he shall in the meantime consent to answer as required)." If the commitment be for adjournments, "until the above time of adjournment (or hearing), when he shall have him at the above place." A warrant by a justice authorising the imprisonment of a party until he shall find bail to keep the peace, without specifying the term of the imprisonment, has been held to be illegal. If the commitment be in execution (which it is in all cases after conviction) it must be distinctly expressed in the warrant whether the commitment be for a certain time or only until the payment of a fine, and if it be until payment, the sum must be fixed. The form given by the 14 & 15 Vict. c. 93, requires the period for which the imprisonment is to take place to be specifically stated. A committal by a magistrate not showing a sufficient cause for committal, and being uncertain as to the time and place of committal, is bad. If the commitment be for a fine, it ought to be, "to lodge him in the gaol at F., to be imprisoned there for the period of with (or without) hard labour, unless said sum be sooner paid." Both the time and the condition of the discharge must strictly conform to the directions of the statute from which the authority is derived. A commitment "until he should be discharged by due course of law" is bad; also the condition of the discharge should agree with the cause stated in the conviction or order. Where by a statute giving justices a power to commit summarily, they are empowered to commit the offender to prison for a certain period, with or without hard labour, and if in their warrant of commitment nothing is said about hard labour, it is to be taken that they did not mean to give it, and the warrant is not wrong for omitting to mention either with or without hard labour.

Name or description of prisoner. The warrant should name the defendant correctly. If the name be unknown, and the accused will not disclose it, a sufficient description of his stature, complexion, &c., stating also a reason for the omission of the name, e.g. that he refuses to give it.

Name of justice.-The warrant for committal in execution, or for committal for trial, should be signed by the committing justice; and where two justices are required for adjudication in summary cases, it is advisable that two should sign the warrant for committal. The form provided by the schedule to the Petty Sessions Act (Sched. E, a, E, b) gives also the office or authority of the justice; the warrant will thus show that the justice had authority to commit.

Date and direction.-The form of warrants given by the above statute also expresses that each warrant of committal should be dated and directed to the person who is to execute it. It can be executed only by the person to whom it is directed (R. v. Sanders, L. R. 1 C. C. R. 76). If it be not complete, it would be a warrant issued in blank and void under the statute. The particular prison in warrants of committal for trial should also be specified. But in cases of summary jurisdiction, where a person is committed to gaol for any period, either in default of payment of any sum, or in default of distress, as a punishment for any offence, the committal shall be to the county gaol, district bridewell, or house of correction of the county in which the party has been arrested, unless where such arrest is made in a county adjoining to that in which the warrant has been issued, in which case the committal shall be to any of the above prisons in such last-mentioned county. A warrant of committal for an offence punishable either upon indictment or summary conviction is to be addressed to the district-inspector or head-constable who acts for the Petty Sessions District where the warrant is issued, and need not be addressed to the keeper of the gaol.

Bad in part, bad "in toto."-If a commitment be bad in part, it is in most instances bad in toto. Where a party was committed until he paid two several sums of money, one of which was not due, the Court quashed the commitment altogether. But where the legal can be distinguished from the illegal part, and there has been a demand and seizure only in respect of the legal part, the warrant is good, and affords a justification to that extent. In R. v. Woodside it was held that a defective warrant of commitment was not cured by lodging with the keeper of the gaol a second warrant issued on a subsequent day, imposing the proper sentence, but not specifying that the imprisonment was to reckon from the date of the first warrant. In that case the Court observed, if the time of commitment under this second warrant was to count from its date, the result in that case would be that the prisoner would remain in custody for a longer period than the magistrates had legally a power to order. If the time was not to be reckoned from the date of the second warrant it was bad for uncertainty, because there was no date specified from which the imprisonment was to be reckoned. Where a warrant of commitment was bad a second warrant was allowed to be substituted for it, on a return to a habeas corpus (ex parte Smith, 3 H. & N. 227), and the second warrant can be looked at as justifying the detention. (Ib.)

Execution of the warrant. The district-inspector or head-constable to whom the warrant is addressed, or any head-constable, or other constable appointed by him, is the person to execute it (Petty Sessions Act, s. 26). But in case of emergency, the warrant may be addressed to

D

any constable of the county. Such constable may execute it at any place within such county or in case of fresh pursuit at a place in the next adjoining county. (Ib.)

May be executed on a Sunday.-By the Petty Sessions Act all warrants of indictable offences may be executed on Sunday. But a warrant of commitment for a penalty cannot be executed on a Sunday, and the apprehension on that day is void.

Delivery to gaoler.-This is regulated by sect. 32 Petty Sessions Act, form F in Schedule).

Discharge of prisoner.--If the prisoner has been arrested, and lodged in gaol for payment of any fine, if he pays the sum mentioned on the warrant to the gaoler, he is to be forthwith discharged, if he be not in custody for any other matter. So also the defendant ought to be discharged on payment of the sum to the officer charged with the execution. of the warrant. When a justice admits a prisoner to bail, who is then in gaol charged with the offence, he is to send to the keeper of the gaol a warrant addressed to him, requiring the discharge of the prisoner, if he be detained for no other offence, and is not in custody under civil process, and upon such warrant being delivered to the keeper, he is forthwith to obey it. By the Summary Jurisdiction over Children (Ireland) Act, 1884, 47 & 48 Vict. c. 19, s. 7, if upon the hearing of a charge against children and young persons for an offence punishable on summary conviction under that Act, or under any other Act, whether past or future, the Court of Summary Jurisdiction think that, though the charge is proved, the offence was in the particular case of so trifling a nature that it is inexpedient to inflict any punishment, or any other than a nominal punishment :

(1) The Court, without proceeding to conviction, may dismiss the information, and, if the Court think fit, may order the person charged to pay such damages, not exceeding forty shillings, and such costs of the proceeding, or either of them, as the Court think reasonable; or

(2) The Court, upon convicting the person charged, may discharge him conditionally on his giving security, with or without sureties, to appear for sentence when called upon, or to be of good behaviour, and either without payment of damages and costs, or subject to the payment of such damages and costs, or either of them, as the Court think reasonable.

And by sect. 9 in that Act the expression "child" means a person who in the opinion of the Court before whom he is brought is under the age of twelve years.

The expression "young person" means a person who in the opinionof the Court before whom he is brought is of the age of twelve and under the age of sixteen years.

Remission of penalty.-By 22 Vict. c. 32 the Lord Lieutenant may limit in whole or in part any sum of money which may have been imposed as a penalty on a convicted offender, although such money may