when the justices choose to inflict the former penalty, they should issue their distress warrant before the imprisonment (b). In offence cases justices have the power under 14 & 15 Vic. c. 93, s. 22, to substitute for a distress warrant, a warrant to commit the person against whom the order shall have been made to gaol for the period which might have been directed by the original order; but the warrant for committal should not issue until the amount of a sufficient distress is properly ascertained (c).

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 mean time enter into such recognizance as required (or until the — day of unless he shall in the mean time 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" (d). A warrant by a justice authorizing the imprisonment of a party until he shall find bail, without specifying the term of the imprisonment, has been held to be illegal (e). If the commitment be in execution, it must be distinctly expressed in the warrant, whether the commitment be for a certain time or only until the payment of a fine (f). The form given by the 14 and 15 Vic. c. 93 (g), requires the period for which the imprisonment is to take place to be specifically stated. A committal by a magistrate not shewing a sufficient cause for committal, and being uncertain as to the time and place of committal, is bad (h). 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

(b) If the offender be a feme covert, and the act of parliament authorizes the recovery of the penalty by distress and sale of the offender's goods, the goods of the husband are not liable to be distrained for the penalty, II. Co. 61 b.; see also R. v. Johnson, 5 Q. B. 635.

(c) Hill v. Bateman, 1 Str. 710.

(d) See notes to form Eb. schedule, 14 & 15 Vic. c. 93. In cases of surety to keep the peace or be of good behaviour, see tit. Surety to keep the peace.

(e) Grady v. Hunt, 1 Ir. J. N.S. 10.
(f) Paley on Conv. 285.
(g) See schedule, form Eb.
(h) R. v. Gregg, 3 Ir. L. R. 316.

without) hard labour, unless said sum be sooner paid" (i). 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 (k); also the condition of the discharge should agree with the cause stated in the conviction or order (1). 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 in their warrant of commitment nothing is said about hard labour, it is to be taken that they did not mean to give hard labour, and the warrant is not objectionable for omitting to state whether the imprisonment is to be with or without hard labour (m).

Name or description of the prisoner.] The warrant should name the defendant correctly (n). If the name be unknown, and the accused will not disclose it, a sufficient description of his stature, complexion, etc., stating also a reason for omitting the same, e. g., that it is unknown, and he refuses to give it, is sufficient (o).

Name of magistrate.] The warrant for committal in execution, or for committal for trial, should be signed by the committing magistrate; the form provided by the schedule to 14 & 15 Vic. c. 93 (p) gives also the style of the justice; the warrant will thus shew that the justice had authority to convict (g).

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, for if it be

not complete it would be a warrant issued in blank, which would be void under the statute; but in England it has been held that if the date be omitted, the warrant will not become thereby null and void, for the period of imprisonment will be reckoned from the time of the defendant being taken into custody (r); but it is to be observed that there is no provision in the English statute against issuing the warrant in blank. The particular prison in warrants of committal for trial should also be specified, which is generally the county gaol (s). But in cases of summary jurisdiction, where a person is committed to gaol for any period, either in default of payment of a fine, distress, or 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 (t). A warrant of committal, for an offence punishable either upon indictment or summary conviction, is to be addressed to the sub-inspector or head-constable who acts for the petty sessions district where the warrant is issued (u), and need not be addressed to the keeper of the gaol (v).

Bad in part, bad in toto.] If a commitment be bad in part, it is in most instances bad in toto (w). 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 (x). 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 (y). In R. v. Woodside (z) it was held that a defective

(r) See Bowdler's case, 12 Q. B. 612; ex parte Foulkes, 15 M. & W. 612; Braham v. Joyce, 4 Exch. 487; over-ruling in this respect re Fletcher, 1 D. & L. 726; see also Newman v. Lord Hardwick, 8 A. & E. 124.

(8) Where the proper description of the prison was, "the Richmond bridewell, in the county of the city of Dublin," and a warrant of commitment was directed to the keeper "of the Penitentiary at Harold's Cross, in the county of Dublin," it was held bad. See 1 N. & W. J. P. p. 404, n.

(t) 14 & 15 Vic. c. 93, s. 32; see ib. as to committal on adjournments. (u) 14 & 15 Vic. c. 93, s. 25. (v) Ib. see post, p. 112. (w) Paley on Conv. 289.

(x) Ex parte Addis, 2 D. & R. 167; 1 B. & C. 90; see Goff's case, 3 M. & S. 203; Skingley v. Surridge, 11 M. & W. 503, 516; Clarke v. Woods, 2 Exch. 395; see Sibbald v. Rodsrick, 11 A. & E. 38.

(y) Skingley v. Surridge, 11 M. & W. 503; Walsh v. Southworth, 6 Exch. 150.

(2) Q. B. Ir. M. T. 1856.

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. Not having specified that, 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 (a), and the second warrant can be looked at as justifying the detention (6).

Execution of the warrant.] The sub-inspector or head-constable to whom the warrant is addressed, or any head or other constable appointed by him, is the person to execute it (c). But in case of emergency, the warrant may be addressed to any constable of the county; and 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 (d).

May be executed on Sunday.] By the 14 & 15 Vic. c. 93, in all cases of indictable crimes and offences, where an information that any person has committed the same has been taken in writing and on oath, the warrant may be executed on a Sunday as well as on any other day (e). Before this statute, the general rule was, that the service of any process or warrant on a Sunday was void, except in cases of treason, felony, or breach of the peace (ƒ); but now this exemption is extended to every case of a warrant for any indictable offence.

(a) In re Smith, 3 H. & N. 227, 27 L. J. M. C. 186; in which case in re Elmy & Sawyer, 1 Ad. & E. 843, and in re Geswood, 2 El. & Bl. 952, are commented on.

(b) Ib; see also ex parte Cross, 2 H. & N. 354; see ante, p. 108. (c) 14 & 15 Vic. c. 93, s. 26; see

But a warrant of commit

as to certifying the warrant for execution, when accused is not to be found in the district, ib. & s. 27.

(d) Ib. For expense of conveying prisoners, see 6 & 7 Will. IV., c. 116, s. 108.

(e) Ib. s. 11.

(f) See 7 Will. III. c. 17, s. 7.

ment for a penalty cannot be executed on a Sunday, and the apprehension on that day is wholly void (g).

Delivery to jailor.] The constable or person who conveys the prisoner to gaol should deliver the warrant and the prisoner to the keeper of the gaol, who is to give to the constable a receipt, setting forth the state and condition in which the prisoner has been delivered into custody (h).

Discharge of prisoner.] If the prisoner has been arrested and lodged in gaol for the non-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 (i). So also the defendant ought to be discharged on payment of the sum to the officer charged with the execution of the warrant (j). 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 (k), requiring the discharge of the prisoner, if he be detained for no other offence, or is in custody under no civil process, and upon such warrant being delivered to the keeper, he is forthwith to obey it (?).

Remission of penalty.] By 22 Vic. c. 32, the Lord Lieutenant may remit in whole or in part any sum of money which may have been imposed as a penalty on a convicted offender, and may extend the royal mercy to any person imprisoned for nonpayment of any sum of money so imposed; and by the 14 & 15 Vic. c. 92, s. 22, power is also conferred upon the Lord Lieutenant to extend the royal mercy to any person imprisoned by virtue of that act, although he shall be imprisoned for nonpayment of money to some party other than the Crown (m).

(g) See cases collected in Paley's Conv. 292.

(h) 14 & 15 Vic. c. 93, s. 32, see form F. in schedule.

(i) 14 & 15 Vic. c. 93, s. 32; Chaddock v. Wilbraham, 5 C. B. 650; R. v. Rogers, 1 D. & R. 158; see further as to duty of jailor in this respect, 14 & 15 Vic. c. 90, s. 5.

(j) See 14 & 15 Vic., c. 90, s. 5 ; Bee 1 N. & W., J. P. 635 ; Smith v. Sibson, 1 Wils. 153; Walsh v. Southworth, 6 Exch. 150; Atkins v. Kilby,

11 A. & E. 777.

(k) For form, see sch. to 14 & 15 Vic. c. 93, Ed.

(1) 14 & 15 Vic. c. 93, s. 16, when a witness has been committed, see as to his discharge, ib.

(m) See also 24 & 25 Vic. c. 96, s. 109. Before the passing of these enactments, the prerogative of mercy could not be exercised by the Crown to the prejudice of the vested rights of a subject, R. v. Codrington, Cro. Car. 198; R. v. Barret, 1 Salk. 383;