time when the prisoner is lodged in the gaol, which date may in outlying districts be several days later than the date when he is delivered to an officer to be conveyed to gaol. See Code forms 41, 42, 44, 46; 2 Hawk, P.C., ch. 18, sec. 4; 52 J.P. 419. The justice can, of course, take this into consideration in fixing the term of imprisonment to be ordered. it being essential that the warrant of commitment shall of itself give definite information to the gaoler as to the time of detention in the gaol. Henderson v. Preston, 21 Q.B.D. 362.

Imprisonment in default of paying fine may exceed that authorized as a direct punishment]--Although under the special Act a sentence of imprisonment in the first instance for the offence could not be for a term as long as three months, there is power under sec. 739 to make the imprisonment in default of paying the fine for any term not exceeding three months, unles the special Act makes express provision for the term which may be imposed on such default. Ex parte Richard, R. v. Steeves, (1914) 42 N.B.R. 596, 24 Can. Cr. Cas. 183; R. v. Blank, 38 N.S.R. 337; R. v. Horton, 34 N.S.R. 217; R. v. Stafford, 1 Can. Cr. Cas. 239 (N.S.); R. v. Leach, ex parte Fritchley, [1913] 3 K.B. 40, 82 L.J.K.B. 897.

Discharge from commitment issued for non-payment, on paying gaoler]-Code sec. 747, sub-secs. (2) and (3).

Costs awarded with imprisonment in first instance]-On a summary conviction awarding imprisonment, costs may also be awarded, and in default of payment imprisonment for a further term not exceeding three months. Ex parte Tierney, 14 Can. Cr. Cas. 194, 17 Que. K.B. 486.

Appeal where imprisonment ordered in default]-See sec. 750.

Stay of warrant of commitment pending an appeal]-If an appeal has been duly lodged against the summary conviction and security given (sec. 750), the appellant cannot be re-arrested on the original warrant as its operation is suspended by the appeal. Rex v. Trottier, 22 Can. Cr. Cas. 102, 25 W.L.R. 663.

Forms]-Distress warrants under sec. 739 (a), Code forms 39 or 40. Distress warrants under sec. 739 (b), Code forms 41 or 42. See sec. 741.

Sub-sec. (2)-When imprisonment to collect fine may be with hard labour]-Imprisonment in default of payment or of distress may be with hard labour only where hard labour might have been imposed because of "imprisonment with hard labour" being a “part of the punishment" in the first instance; sub-sec. (2) applies where the special Act authorizes not only a fine but imprisonment with hard labour in addition to the fine. In that event the imprisonment for not paying the fine may be with hard labour in the same way as the imprisonment of first instance imposed as part of the punishment for the offence. R. v. McIver, 7 Can. Cr. Cas. 183; R. v. Riley, (1905) 14 Can. Cr. Cas. 346 (N.S.); R. v. Clark, 12 Can. Cr. Cas. 17 (N.S.). The phraseology of sub-sec. (2) on that interpretation refers to phrase "part of the punishment not to the words "hard labour," but to the phrase "imprisonment

with hard labour." If it were intended that the enactment should apply when hard labour was part of the punishment, one would expect instead of the words "imprisonment with hard labour" the words "hard labour on imprisonment."

Excess of punishment may be corrected on certiorari]-Code sec. 1124. Case under prior law: R. v. Gavin, 30 N.S.R. 162, 1 Can. Cr. Cas. 59, referred to in R. v. Brindley, 12 Can. Cr. Cas. 170 (N.S.); R. v. Vantassel, 34 N.S.R. 79, 5 Can. Cr. Cas. 128, 133; R. v. Beagan, 36 N.S.R. 208.

Mandamus to justice to issue commitment pursuant to the conviction]-The court has a discretion to refuse a mandamus to justices to issue a warrant of commitment on a conviction; Re Williams, 9 Q.B. 976; and a mandamus may be refused if there is a reasonable foundation to suppose that if the warrant be issued he will be subjected to an action of which the issue is doubtful; R. v. Buckingham Justices, 1 B. & C. 485; R. v. Broderip, 5 B. & C. 239; R. v. McConnell, 6 U.C.Q.B. (O.S.) 629 (Ont.); ex parte Gilbert, 10 Can. Cr. Cas. 38 (N.B.); or if the conviction were open to grave objections going to his jurisdiction. R. v. Ray, (1878) 44 U.C.Q.B. 17 (Ont.).

Special statutes]-Where a fine is imposed under sec. 808 of the Shipping Act, R.S.C., 1906, ch. 113, upon a pilot instead of cancelling or suspending his license, payment may be ordered in instalments. Sec. 808 of the Shipping Act further provides for recovery of penalties thereunder in the name of His Majesty in a summary manner with costs under the provisions of Part XV of the Code.

By Con. Stat., N.B., c. 90, s. 11, it was enacted that, "where the plaintiff shall be entitled to recover in any action against a justice, he shall not have a verdict for any damages beyond two cents, or any costs of suit, if it shall be proved that he was guilty of the offence of which he was convicted, etc." In an action of false imprisonment brought against a magistrate, who without jurisdiction had committed to prison the plaintiff for making default in the payment of a fine imposed upon him for selling liquor without a license, evidence was offered and admitted in proof of the plaintiff's innocence of the charge. It was held that the evidence was properly received and that the plaintiff, in order to prove his innocence, was not confined to such evidence as had been given before the magistrate on the trial of the information. Labelle v. McMillan, 34 N.B.R. 488.

Warrant of distress]-It is not essential that a warrant of distress should be dated, and if it is not issued too soon, it is not material that it bears too early a date. R. v. Sanderson (1886), 12 O.R. 178; Newman v. Earl of Hardwicke, 3 N. & P. 368.

It is not necessary that the bailiff should go to the premises and search for goods on which he might distrain if he was otherwise satisfied that it would be useless to do so. R. v. Sanderson (1886), 12 O.R. 178. A distress to enforce payment of a fine upon a conviction under the

Canada Temperance Act is not a proceeding in right of the Crown, but goods seized under a distress warrant therefor are not repleviable unless the magistrate who issued it acted without jurisdiction. Hannigan v. Burgess (1888), 26 N.B.R. 99.

If there is not sufficient distress to cover the penalty and costs, the return upon the warrant of distress should state that fact, and upon that a warrant of commitment may issue, but if a portion of the penalty has been paid the amount should be returned to the party who paid it before the alternative punishment of imprisonment is resorted to. Sinden v. Brown (1890), 17 A.R. 173, 176 (Ont.).

For example, if one-half of the penalty had been made by distress the party convicted cannot be made to suffer imprisonment for a term in addition; and there is no provision in the law to graduate or reduce the term of imprisonment in proportion to the amount paid upon the penalty. Sinden v. Brown (1890), 17 A.R. 173, 176, per Burton, J.A.

False return to distress warrant]-The court cannot in certiorari proceedings try the truth of the return on affidavits. R. v. Sanderson (1886), 12 O.R. 178.

The magistrate is justified in acting upon the bailiff's return that sufficient distress cannot be found although it should subsequently appear that the return was untrue. R. v. Sanderson (1886), 12 O.R. 178; Hill v. Bateman, 2 Strange 710; Moffat v. Barnard, 24 U.C.Q.B. 498, 502. But the bailiff will be liable to an action if he makes an untrue return know

ing it to be false. R. v. Sanderson, supra. But it may be shown that the constable's return to the warrant of distress, that there was not sufficient property to satisfy it, was known to the magistrate to be false, in which case the commitment may be set aside. Ex parte Fitzpatrick (1893), 5 Can. Cr. Cas. 191; 32 N.B.R. 182.

Commitment in lieu of distress]-See sec. 744.

Defective warrant cured by valid conviction]-Code sec. 1024. The warrant of commitment is subject to review on certiorari only upon grounds affecting the conviction. R. v. Melanson, ex parte Bertin, (1904) 36 N.B.R. 577. Where both the conviction and the commitment are brought up on certiorari, the warrant will not be quashed if the conviction is held valid. R. v. Melanson, supra; Code sec. 1124.

Habeas corpus is the appropriate process for determining the validity of detention under the warrant; R. v. Melanson, supra; but the various curative clauses of the Code applicable to the case have to be considered in determining whether or not the warrant of commitment is objectionable or insufficient. See Code secs. 723-725, 1124 (2).

If the warrant of commitment alone is attacked on habeas corpus, it seems that the prosecutor may apply for a certiorari to remove the conviction as well as the warrant, and then set up the validity of the conviction in answer to the habeas corpus motion and otherwise obtain the benefit of sec. 1124. See R. v. Gage (No. 1), 36 O.L.R. 183, 26

Can. Cr. Cas. 385; R. v. Gage (No. 2), (1916) 27 Can. Cr. Cas. 330 (Ont.).

The court would thus be enabled to ascertain from the depositions whether the power of amendment conferred by sec. 1124 should be exercised, as it may be, in like manner as upon an appeal from the conviction. R. v. Gage (No. 2), (1916) 27 Can. Cr. Cas. 330 (Ont.).

Imprisonment when ordered in addition to fine. This and section 739 construed as if in special Act.

740. Where, by virtue of an Act or law so authorizing, the justice by his conviction adjudges against the defendant payment of a penalty or compensation, and also imprisonment, as punishment for an offence, he may, if he thinks fit, order that the imprisonment in default of distress or of payment, shall commence at the expiration of the imprisonment awarded as a punishment for the offence.

2. The like proceeding may be had upon any conviction or order made in accordance with this or the last preceding section as if the Act or law authorizing the conviction or order had expressly provided for a conviction or order in the terms permitted by this or the last preceding section.

Origin]-Sec. 872, Code of 1892; R.S.C. 1886, ch. 178, secs. 62, 66, 67, 68.

Enforcing Adjudication.

Distress warrant.-Warrant of commitment.

741. The justice making the conviction or order mentioned in paragraph (a) of sec. 739 may issue a warrant of distress in form 39 or 40, as the case requires, and in the case of a convietion or order under paragraph (b) of the said section, a warrant in one of the forms 41 or 42 may issue.

2. If a warrant of distress is issued and the constable or peace officer charged with the execution thereof returns (form 43) that he can find no goods or chattels whereon to levy thereunder, the justice may issue a warrant of commitment in form 44.

Origin]-Sec. 872, Code of 1892; R.S.C. 1886, ch. 178, secs. 62, 66, 67, 68.

Goods levied upon to be removed]-A constable seizing goods as a distress should remove the goods immediately unless the defendant consents to his remaining with the goods and using the premises of the

defendant for storing them or holding the sale. He will be liable for trespass if he remains on the defendant's premises an unnecessarily long time. Paley, 6th ed., 319. On that account it is advisable that any consent obtained should be in writing and signed by the defendant, and that his voluntary assent should further be capable of being verified by calling in some disinterested witness when the consent is taken. Stay of proceedings by appealing and giving security]-Code sec. 750; R. v. Trottier, 22 Can. Cr. Cas. 102, 25 W.L.R. 663.

Form of warrant of distress upon a conviction for a penalty]-Code form 39, following sec. 1152.

Form of warrant of distress upon an order for the payment of money]-Code form 40, following sec. 1152.

Form of warrant of commitment upon a conviction for a penalty in the first instance]-Code form 41, following sec. 1152.

Form of warrant of commitment on an order in the first instance]— Code form 42, following sec. 1152.

Form of constable's return to a warrant of distress]-Code form 43, following sec. 1152.

Form of warrant for commitment for want of distress]-Code form 44, following sec. 1152.

Distress and commitment for costs.-Term of imprisonment.

742. When any information or complaint is dismissed with costs the justice may issue a warrant of distress on the goods and chattels of the prosecutor or complainant, in form 45, for the amount of such costs; and, in default of distress, a warrant of commitment in form 46 may issue.

2. The term of imprisonment in such case shall not exceed one month.

Origin]-Sec. 873, Code of 1892; R.S.C. 1886, ch. 178, sec. 70.

Form of warrant of distress for costs upon an order for dismissal of an information or complaint]-Code form 45, following sec. 1152. Form of warrant of commitment for want of distress]-Code form 46, following sec. 1152.

Endorsement of warrant for distress.

743. If, after delivery of any warrant of distress issued under this Part to the constable or constables to whom the same has been directed to be executed, sufficient distress cannot be found within the limits of the jurisdiction of the justice granting the warrant, then upon proof being made upon oath or affirmation of the handwriting of the justice granting the warrant.