before any justice of any other territorial division, such justice shall thereupon make an endorsement on the warrant, signed with his hand, authorizing the execution of the warrant within the limits of his jurisdiction, by virtue of which warrant and endorsement the penalty or sum and costs, or so much thereof as has not been before levied or paid, shall be levied by the person bringing the warrant, or by the person or persons to whom the warrant was originally directed, or by any constable or other peace officer of the last mentioned territorial division, by distress and sale of the goods and chattels of the defendant therein. 2. Such endorsement shall be in form 47.

Origin]-Sec. 874, Code of 1892; R.S.C. 1886, ch. 178, sec. 63.

Form of Endorsement in backing a warrant of distress]-Code form 47, following sec. 1152.

When distress would be ruinous to defendant and family. When defendant admits he has no goods.-Committal without distress.

744. Whenever it appears to any justice that the issuing of a distress warrant would be ruinous to the defendant and his family, or whenever it appears to the justice, by the confession of the defendant or otherwise, that he has no goods and chattels whereon to levy such distress, then the justice, if he deems fit, instead of issuing a warrant of distress, may commit the defendant to the common gaol or other prison in the territorial division, there to be imprisoned, with or without hard labour, for the time and in the manner he would have been committed in case such warrant of distress had issued and no sufficient distress had been found.

Origin] Sec. 875, Code of 1892; R.S.C. 1886, ch. 178, sec. 54.

Whenever it appears to the justice that defendant has no goods"]— If the defendant appears he is entitled to be heard on the question of dispensing with the distress. R. v. Rawding, 7 Can. Cr. Cas. 436; but if he defaults in appearing, the justice, if he convicts on an ex parte hearing, may also hear evidence and make an adjudication as to whether there are any chattels whereon to levy a distress, and if there are none he may, under sec. 744, dispense with the issue of a distress warrant and may issue a commitment in the first instance. R. v. Degan, 14 Can. Cr. Cas. 148, 17 O.L.R. 366.

Proceedings pending execution of distress warrant.-Requiring recognizance for appearance on return of distress warrant. 745. Whenever a justice issues a warrant of distress as hereinbefore provided, he may suffer the defendant to go at large, or verbally, or by a written warrant in that behalf, may order the defendant to be kept and detained in safe custody, until return has been made to the warrant of distress, unless the defendant gives sufficient security, by recognizance or otherwise, to the satisfaction of the justice, for his appearance, at the time and place appointed for the return of the warrant of distress, before him or before such other justice for the same territorial division as shall then be there.

Origin]-Sec. 876, Code of 1892; R.S.C. 1886, ch. 178, sec. 65.

Commitment when party in prison.—Cumulative punishment.

746. Whenever a justice, upon any information or complaint. adjudges the defendant to be imprisoned, and the defendant is then in prison undergoing imprisonment upon conviction for any other offence, the warrant of commitment for the subsequent offence shall be forthwith delivered to the gaoler or other officer to whom it is directed.

2. The justice who issued the same, if he thinks fit, may award and order therein that the imprisonment for the subsequent offence shall commence at the expiration of the imprisonment to which the defendant was previously sentenced.

Origin]-Code of 1892, sec. 877; R.S.C. 1886, ch. 178, sec. 69; Summary Jurisdiction Act, 1848, Imp., sec. 25.

"And the defendant is then in prison undergoing imprisonment upon conviction for any other offence]-In R. v. Martin (1911) 75 J.P. 425, Pickford, J., said: "It was decided in R. v. Cutbush, (1867) L.R. 2 Q.B. 379, that at any rate two sentences may be passed, the second to commence at the expiration of the first. The reasoning on which that decision was based was that as sec. 25 of the Summary Jurisdiction Act, 1848 (Imp.), provides that where the justices adjudge the defendant to be imprisoned and the defendant is then in prison undergoing imprisonment upon a conviction for any other offence, the justices may order that the imprisonment for the subsequent offence shall commence at the expiration of the imprisonment to which the defendant shall have been previously sentenced, the defendant being in court and being under

such restraint that he may be considered to be imprisoned as soon as the first sentence has been passed, and the section then comes into operation and a second sentence can be passed to take effect upon the expiration of the first. But imprisonment for the second sentence does not begin till the expiration of the imprisonment for the first sentence, and therefore the defendant cannot be said to be in prison under the second sentence, and therefore there seems to me to be no power to impose a sentence beginning at the expiration of the second, because he cannot be said to be in prison under the second sentence as it, by its terms, does not begin till the expiration of the first. Therefore, there is no power to impose more than a second sentenee to run consecutively to the first." R. v. Martin, 75 J.P. 427.

There is, however, sec. 1055 of the Criminal Code which directs that when an offender is convicted of more offences than one, before the same court or person at the same sitting, or when any offender, under sentence or undergoing punishment for one offence, is convicted of any other offence, the court or person passing sentence may, on the last conviction, direct that the sentences passed upon the offender for his several offences shall take effect one after another.

Tender or payment on distress warrant.-Payment when party in prison to keeper. By him to justice.

747. Whenever a warrant of distress has issued against any person, and such person pays or tenders to the peace officer having the execution of the same, the sum or sums in the warrant mentioned, together with the amount of the costs and charges of the distress up to the time of payment or tender, the peace officer shall cease to execute the same.

2. Whenever any person is imprisoned for non-payment of any penalty or other sum, he may pay or cause to be paid to the keeper of the prison in which he is imprisoned, the sum in the warrant of commitment mentioned, together with the amount of the costs and charges therein also mentioned, and the keeper shall receive the same, and shall thereupon discharge the person. if he is in his custody for no other matter.

3. Such keeper shall forthwith pay over any moneys so received by him to the justice who issued the warrant.

Origin]-Sec. 901, Code of 1892; R.S.C. 1886, ch. 198, secs. 97, 98.

1025

Sureties to Keep the Peace.

Recognizance to keep the peace on a trial under Part XV.-And in case of complaint if threats made. Procedure. Imprisonment in default of sureties.Forms.

748. Whenever any person is charged before a justice with any offence triable under this Part which, in the opinion of such justice, is directly against the peace, and the justice after hearing the case is satisfied of the guilt of the accused, and that the offence was committed under circumstances which render it probable that the person convicted will be again guilty of the same or some other offence against the peace unless he is bound over to good behaviour, such justice may, in addition to, or in lieu of, any other sentence which may be imposed upon the accused, require him forthwith to enter into his own recognizance, or to give security to keep the peace and be of good behaviour for any term not exceeding twelve months.

2. Upon complaint by or on behalf of any person that on account of threats made by some other person or on any other account, he, the complainant, is afraid that such other person will do him, his wife or child some personal injury, or will burn or set fire to his property, the justice before whom such complaint is made, may, if he is satisfied that the complainant has reasonable grounds for his fears, require such other person to enter into his own recognizance, or to give security, to keep the peace, and to be of good behaviour, for a term not exceeding twelve months.

3. The provisions of this Part shall apply, so far as the same are applicable, to proceedings under this section, and the complainant and defendant and witnesses may be called and examined, and cross-examined, and the complainant and defendant shall be subject to costs as in the case of any other complaint.

4. If any person so required to enter into his own recognizance or give security as aforesaid, refuses or neglects so to do, the same or any other justice may order him to be imprisoned for any term not exceeding twelve months.

5. The forms 48, 49 and 50, with such variations and additions as the circumstances may require, may be used in proceedings under this section.

Origin]-Sec. 959, Code of 1892; 56 Vict., Can., ch. 32, sec. 1; 51

Vict., Can., ch. 47; R.S.C. 1886, ch. 181; Summary Jurisdiction Act, 1879, Imp., sec. 25.

Recognizance to keep the peace "for any term not exceeding twelve months "]—The recognizance should bind for a definite period. R. v. Edgar, 29 Times L.R. 512, 9 Cr. App. R. 13; re John Doe, (1893) 3 Can. Cr. Cas. 370 (Que.). If the term exceeds twelve months the recog nizance is void. Re Sarah Smith's bail, 31 N.S.R. 468.

Provocation for the threats]-It was said in Pouliot v. Descroisselles, 22 Can. Cr. Cas. 243 (Que.), that binding over a person to keep the peace was dependent only upon proof of the complainant's fear of bodily harm based upon some reasonable ground, and that it was not an answer to show that there was provocation for the threats; but if the complainant had himself provoked the threat, it would be a circumstance to be considered by the justice in deciding how far to credit the complainant's story that he was in fear upon some reasonable ground. A conditional threat of violence followed on a subsequent occasion by additional misconduct may be a sufficient ground for requiring sureties where there is a fear of future violence. Ex parte Hulse, 21 L.J. 21. Likewise, a threat contingent upon complainant doing something which he had a right to do. R. v. Mallinson (1850) 20 L.J.M.C. 33.

Threats to burn buildings]—Threats verbally made to burn the complainant's buildings are not indictable under the Code, and give rise only to proceedings to force the offender to give security to keep the peace. Ex parte Welsh (1898), 2 Can. Cr. Cas. 35 (Que.).

Jurisdiction of justices as to binding over to keep the peace]-Justices of the peace had jurisdiction under the statute 34 Edw. III, c. 1, upon proper evidence before them that a person is guilty of conduct calculated to incite others to commit offences in violation of the law and in disturbance of the peace, to require such person to find sureties for his good behaviour, and in default of finding such sureties to be imprisoned; and apart altogether from the construction of that statute by the course of authoritative decisions for so many years the courts are now bound to hold that with proper materials before them justices have this power to bind a person over to be of good behaviour. In a recent English case it was said that the justices have this power to bind over; although no complainant comes forward to testify on oath that he has been threatened, or that he is actually under fear of bodily harm from the person sought to be bound over. Lansbury v. Riley, [1914] 3 K.B. 229, 83 L.J.K.B. 1236; Haylock v. Sparke, 1 E. & B. 471; and see R. v. Wilkins, [1907] 2 K.B. 380; Wise v. Dunning, [1902] 1 K.B. 167, 71 L.J.K.B. 165, 20 Cox C.C. 121.

The fact that threats, or an assault, which would authorize justices in requiring sureties for the peace and good behaviour, arose by reason of a bona fide dispute as to title, does not oust the jurisdiction of the justices to require such sureties. R. v. Monaghan Justices, [1914] 2

Irish R. 156.