2ND EDIT. REVISED STATUTES 1906 REMARKS been 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. Slightly altered, as here set forth. PROVISIONS APPLICABLE ONLY TO THE PROVINCE OF QUEBEC. Sec. 39 Sec. 926. Sec. 1113. Estreat on default.-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penal sum therein mentioned becomes forfeited and due to the Crown, such recognizance shall thereupon be estreated or withdrawn from any record or proceeding in which it then is, or, where the recognizance has been entered into orally in open court, a certificate or minute of such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 seal of the court, shall be made from the records of such court.. (25). Sec. 1114. Transmission of recognizance, etc., to Superior Court.-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, 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. (26). (25) Taken from the first paragraph of subsection 2 of the old section 926. (26) Taken from clause (a) of subsection 2 of the old section 926. 2ND EDIT. REVISED STATUTES 1906 REMARKS Sec. 1115. Judgment to be entered. 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. (27). Sec. 1116. Execution on fiat of Attorney-General.Such execution shall issue upon fiat or praecipe 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 subsequent to execution, and to such costs, in the discretion of the court, for the entry of the judgment. as are fixed by any tariff. 2. The cognizor shall be liable to coercive imprisonment for the payment of the judgment and costs. (28). Sec. 1117. Proceedings when goods or lands insufficient to satisfy judgment.-When sufficient goods and chattels, lands or tenements cannot be found to satisfy the judgment against a cognizor and the same is certifieed 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 praecipe 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 of the cognizor so in default and to lodge him in the common jail of the district until satisfaction is made, or until the court which issued such warrant, upon cause shown as hereinafter mentioned, makes an (27) Taken from clause (b) of subsec. 2 of the old sec. 926. (28) Taken from clauses (c) and (d) of subsec. 2 of the old sec. 926. 2ND EDIT. REVISED STATUTES 1906 REMARKS order in the case and such order has been fully complied with. 2. Such warrant shall be returned by the sheriff on the day on which it is made returnable and the sheriff shall state in his return what has been done in execution thereof. 3. On petition of the cognizor, of which notice shall be given to the clerk of the Crown of the district, the court may inquire 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 as may appear just, and such order shall be carried out by the sheriff. (29). Sec. 1118. Process of recognizance.-When a person has been arrested in any district for an offence committed within the limits of Quebec, 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 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. (30). Sec. 1119. Recovery by action.-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 author (29) Taken from clauses (e), (f), (g), of subsec. 2 of the old sec. 926. (30) Taken from subsec. 5 of the old section 926. 2ND EDIT., REVISED STATUTES 1906 REMARKS ized 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. (31). PART XXII. EXTRAORDINARY REMEDIES. Sec. 752. Sec. 1120. Further detention of person accused on en quiry as to legality of his imprisonment.Whenever any person in custody charged with an indictable offence has taken proceedings before a judge or criminal court having jurisdiction in the premises by way of certiorari, habeas corpus or otherwise, to have the legality of his 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. Under this provision, the accused, who has taken proceedings to have the legality of his imprisonment enquired into, may be sent back to the court, judge or justice, under whose order he is held, for further evidence to be taken, or to be dealt with by a fresh warrant of commitment; (32) and, although, in speaking of the person in custody, the section uses the expression, "the person in custody charged," it has been said that a person convicted of an (31) Taken from subsec. 3 of the old section 926. (32) Seager's Magistrates Manual, p. 47. 2ND EDIT. REVISED STATUTES 1906 REMARKS indictable offence still remains a person charged with an indictable offence, (33) it may be that, as the proceedings to which the section refers are not only to proceedings by way of habeas corpus but also proceedings by way of certiorari, the powers which are conferred are to apply as well after as before conviction. Where, however, a writ of habeas corpus was issued and an order was made suspending a part of the sentence (the penalty of whipping), and, on its return, the judge quashed the writ of habeas corpus on the ground that the petitioner was in custody under a sentence legally pronounced by a competent tribunal, it was held by such judge that, being unable to find a single case in which the above section had been interpreted as being capable of application after condemnation, he was unable to do more than order the quashing of the writ of habeas corpus and of the order of suspension, and had no power to direct the tribunal to execute the part of the sentence which had been suspended. (34) Where the conviction itself was lodged with the gaoler as his authority for the detention, in lieu of a warrant of commitment, the judge, before whom the prisoner is brought upon habeas corpus, may properly order the further detention of the prisoner for a limited time until a warrant in due form can be obtained from the magistrate. (35) Where the evidence as to the commission of the alleged offence is conflicting, and the term of imprisonment imposed by the conviction is in excess of that authorized by law, the judge before whom the case is brought on habeas corpus should not exercise the powers conferred by above section, 1120, of making an order for the further detention of the accused. (36) Where a justice, having no summary jurisdiction over the offence charged other than to hold a preliminary enquiry and commit for trial, has himself tried and convicted the accused, no order should be made, in habeas corpus proceedings, for the further detention of the accused and his return to the justice's court for a preliminary enquiry. (37) See further, as to certiorari, pp. 332-338, post. And see further, as to habeas corpus, pp. 342-349, post. Sec. 886. Sec. 1121. Conviction affirmed on appeal not to be quashed for want of form, nor removed by certiorari. No conviction or order made (33) Tremeear on the Criminal Code, p. 659. (34) R. v. Goldsberry, 11 Can. Cr. Cas., 159.. (35) R. v. Morgan, 5 Can. Cr. Cas., 63. And see R. v. Morgan. (No. 2), 5 Can. Cr. Cas., 272. (36) R. v. Randolph, 4 Can. Cr. Cas., 165. (37) R. v. Blucher, 7 Can. Cr. Cas., 278. |